A Brief and Incomplete Tour of U.S. Labor Law:
Where We Are, How We Got Here, and Who Drove the Bus
by Doug Bonney
The following article was presented at the June 23, 2001 conference, Workers and the Law, held in Kansas City under the sponsorship of kclabor.org.
Stephen Douglas Bonney received his law degree from the University of Kansas in 1985 and since then has practiced labor, employment, and civil rights law in Kansas City, primarily representing individuals and unions. Mr. Bonney is a member of the Legal Panel of the American Civil Liberties Union of Kansas and Western Missouri and has successfully litigated several civil liberties cases for the ACLU including challenges to the Westport Adult Curfew Ordinance and Kansas City, Missouri's Little Hatch Act regulations banning City employees from attending political rallies and displaying political signs. Mr. Bonney has handled dozens of employment discrimination claims and lawsuits and has represented both plaintiffs and defendants in sexual harassment cases filed in the federal courts in Kansas and Missouri. In addition, Mr. Bonney has been a contributing author to labor law treatises on the Fair Labor Standards Act and employee benefits litigation. He has also presented numerous seminars and training sessions on labor and employment issues, including sessions on "Mental Disabilities and the Americans with Disabilities Act" at the Missouri Psychological Association's annual meeting and on "The Duty to Bargain under the Labor Laws" and “Spending Union Members’ Money: Union Security Provisions and Political Contributions by Labor” at the Institute for Labor Studies at UMKC. Mr. Bonney is the author of the Know Your Rights articles posted on the kclabor.org web site.
I am solely responsible for the contents of this paper, both its merits and its errors and omissions. But this paper does not constitute legal advice, and no one should rely on it as such. This paper is a very broad brush treatment of a huge topic—labor and employment law in the United States. Anyone who has a problem involving labor and employment law should seek competent legal advice immediately because each case depends to a great extent on its peculiar facts and because labor and employment laws often have very short statutes of limitations. Delay in seeking legal advice on a labor or employment law problem may mean that the statute of limitations has run, thus leaving the affected person without any legal recourse.
II. Road Map
Laws relating to work can broadly be broken into three groups: (1) collective bargaining laws regulating the relationship between unions and employers; (2) civil rights laws governing discrimination based on race and other individual characteristics; and (3) other employment laws ranging from wage and hour laws to employee benefits laws. Moreover, four historical factors have probably had more influence on the development of labor and employment law in the United States than any others: (1) the Industrial Revolution; (2) the Civil War; (3) the railroads; and (4) the growth of government. This paper will consider these influences and types of labor laws.
III. The Wild West Days of Labor Law
At the beginning of the American industrial revolution, the federal and state legislatures had not yet enacted any labor laws. Instead, labor law was the creation of the courts, which were generally hostile to unions and workers. In this period, before World War I, employers drove labor with a whip hand.
The early court decisions on labor issues defined concerted employee activities as criminal conspiracies punishable by fines and imprisonment. But such criminal punishments drew widespread hostility from the public at large, and the courts abandoned the criminal conspiracy doctrine in relatively short order. Thereafter, employers faced with strikes and other concerted activities sued the responsible unions and workers for money damages, and the courts went along, happily awarding damages to employers unless the workers could show a "legitimate purpose" for their concerted activities. The problem with this balancing approach was that weighing the legitimacy of the union's purpose depended upon the judge's own subjective biases and often resulted in labor's interests sitting on the light side of the scale. The threat of money damages also had a chilling effect on union activity. Although not disappearing entirely, the importance of damages actions in the war against labor waned as employers turned to other weapons in the late Nineteenth Century.
When the early railroad unions staged dramatic strikes in 1877, 1893, and 1894, the employers enlisted the federal government—both the courts and the Executive Branch—to crush these strikes. For example, in 1893, the American Railway Union—organized by Eugene V. Debs—carried out a successful strike against the Great Northern Railway. In 1894, Debs led another strike, this time against the Pullman Palace Car Company, makers of passenger rail cars.
As the strike dragged along, Pullman called on President Grover Cleveland to use federal troops to break the strike. President Cleveland, ever indebted to big business and big railroads, graciously complied, calling in federal troops on the pretext that the Pullman strike was impeding the mails.
Although the use of federal troops was important in crushing the strike, the Pullman strike also involved a much more pervasive impediment to the right to strike: Federal court injunctions (court orders to stop doing something or, occasionally, to do something specific). At the company's request, a trial court ordered the strikers to return to work and—when Debs and others disobeyed those orders—the court held them in contempt. Debs spent six months in jail for refusing to call off the strike. Federal intervention crushed the strike and killed the ARU.
Debs' lawyer, Clarence Darrow—who ironically had earlier made a fortune as a railroad lawyer—took the case all the way to the United States Supreme Court. In an opinion written by Justice David Brewer, a Kansan, the Supreme Court upheld the power of the federal courts to enjoin strikes and other labor unrest. And, with these chilling words, the Court went further and approved President Cleveland's
use of federal troops to end the Pullman strike:
The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to its laws.1
This system of "government by injunction" started with an injunction issued during the 1877 railroad strike, not the Pullman Strike. But the Supreme Court's decision in the Debs case gave the green light to the established practice of using injunctions to stop strikes, boycotts, and other labor activity. Although the Executive Branch rarely sent in federal troops, the federal and state courts increasingly used their powers of injunction to suppress labor activity, issuing about 4,300 antistrike orders between 1880 and 1930. Even if a higher court overturned a trial judge's injunction, the brief interruption in labor activity caused by an injunction often quelled worker enthusiasm and thus killed a strike. No doubt the employers of the day were thrilled with the Debs Court's nearly unlimited recognition of federal power to keep the "wheels of commerce turning."
In the 1890s, employers began using the new federal antitrust laws to kill strikes, boycotts, and union organizing. Although originally enacted to harness the excesses of monopoly corporations like Standard Oil, employers and the lower federal courts happily employed the antitrust laws to thump labor. And, in the 1908 Danbury Hatters case, the Supreme Court held that the Sherman Act's prohibitions on actions in restraint of trade applied to unions and labor activities.2 In that case, the Court specifically ruled that the hatters' union's consumer boycott of an "unfair" employer's goods violated the Sherman Act and common law.
In the Clayton Act of 1914, Congress seemingly sought to add a labor exemption to the antitrust laws by providing that various types of concerted activities shall not "be considered or held to be violations of any law of the United States." Quite prematurely, Samuel Gompers heralded the Clayton Act as "labor's charter of freedom." In 1921, the Supreme Court dashed Gompers' hopes and read the Clayton Act extremely narrowly, thus rebuffing Congress's attempt to create a labor exemption in antitrust law.3 In fact, as interpreted by the Supreme Court, the Clayton Act made things worse for labor because it allowed those harmed to seek treble damages and permitted the federal government to sue for injunctive relief and to prosecute violations criminally. Antitrust litigation hung over labor's head until the 1930s when Congress enacted comprehensive labor laws.
IV. The Development of Traditional Labor Law
The Pullman Strike did have a very thin silver lining. In the aftermath of the strike, President Cleveland appointed the United States Strike Commission, which studied strikes and found that judicial regulation of labor relations was inappropriate given "the rapid concentration of power and wealth . . . in persons, corporations, and monopolies." Many of the Commission's recommendations are now bedrock principles underlying our labor laws, specifically including the idea that collective bargaining helps insure labor peace.
Based on the Strike Commission's work, Congress enacted the first federal labor statute—the Erdmann Act of 1898. That law recognized the role of unions in collective bargaining, provided procedures for the mediation and conciliation of railway labor disputes, and created criminal penalties for employers that discriminated against employees based on union membership or activity. But the Supreme Court held the Erdmann Act's protections against antiunion discrimination unconstitutional in 1908 on the theory that the law deprived railroads and employees of their liberty of contract.4 In 1915, the Court considered a similar Kansas law prohibiting "yellow dog" contracts (agreements requiring employees to refrain from union membership). Again, the Court held the Kansas statute unconstitutional based on liberty of contract principles.5
World War I provided the first real break for organized labor. Because of the need for uninterrupted industrial production during the war, President Wilson established the National War Labor Board, which adopted a policy protecting workers' rights to organize and engage in collective action and prohibiting employers from retaliating against union members:
The right of workers to organize in trade unions and to bargain collectively, through chosen representatives, is recognized and affirmed. This right shall not be denied, abridged, or interfered with by the employers in any manner whatsoever.
The Board also initiated a program of wage controls and arbitration of labor disputes. This system temporarily strengthened unions such as the Amalgamated Association of Iron, Steel and Tin Workers. But the Armistice ended the marriage of convenience between the federal government and organized labor. And, thereafter, employers and the government began a crackdown on unions that lasted until the Depression. In 1919, for example, the steel producers broke the steel strike and the Amalgamated, and the government initiated a Red Scare that focussed in part on labor. These events devastated unions for more than a decade.
In the wake of the Railway Shopman's Strike of 1922, however, both the railroads and Congress came to understand that labor peace was critical to insuring uninterrupted interstate transportation. As a result of that awakening, Congress passed the Railway Labor Act of 1926, which had been negotiated and pre approved by the railroads and railway labor. After passage of the RLA, the Texas & New Orleans Railroad tried—by firing and threatening active unionists—to establish a company union in violation of the RLA's provision insuring that employees had the right to select their representatives without employer "interference, influence or coercion." The Railway Clerks union sued and, in 1930, the Supreme Court upheld the constitutionality of the RLA's provisions regulating labor relations. Thus, the
RLA became the first federal labor law to pass constitutional muster.
In addition to protecting workers' rights to organize and engage in concerted activities, the RLA established intricate and—according to the Supreme Court—"interminable" bargaining mechanisms, imposing upon both railroads and labor the duty to make "every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." As part of the bargaining mechanism, the RLA created the National Mediation Board to mediate difficult negotiations between the rail unions and the railroads. When mediation failed to produce an agreement between the parties, the RLA permitted the NMB to release the parties to economic warfare—strikes or lockouts—after a 30 day cooling off period. But the RLA also permitted the President to appoint an emergency board to study the contract dispute and to make recommendations for a final agreement, which Congress could then force upon the parties through legislation. This process, still in use today, is highly political. When a Republican is President, the boards are frequently used to avert strikes by relatively strong unions; when a Democrat is President, the boards are often used to avert strikes by relatively weak unions, such as when President Clinton appointed a board to settle matters between American Airlines and its flight attendants.
Besides the bargaining machinery, the RLA recognizes the right of "collective action, without interference, influence or coercion exercised by either party over self-organization or designation of representatives by the other." In addition, the RLA establishes an arbitration mechanism to hear and decide "minor disputes," which generally involve disputes over the interpretation of collective bargaining agreements between rail unions and the railroads. But the RLA does not establish any general federal agency to resolve statutory disputes. Thus, where one party claims that the other party has violated the RLA, that party must file suit in federal court.
One of the problems with the RLA, however, was its strict limitation to the railroad industry. Although Congress amended the RLA to cover the fledgling airline industry in 1934, it initially left workers in all other industries unprotected.
In 1932, Congress directly confronted the challenge of "government by injunction" by enacting the Norris-LaGuardia Act, which prohibited federal courts from issuing injunctions against—among other things—strikes, labor picketing and speech, and union membership. This essentially imposed the antitrust labor exemptions that a hostile Supreme Court had refused to recognize in the Clayton Act.
In the Norris-LaGuardia Act, Congress also recognized, for the first time, the right of workers outside of the railroad industry to engage in concerted activity to improve their working conditions, declaring "the public policy of the United States . . . as follows:
Whereas . . . the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby obtain acceptable terms and conditions of employment; wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection;
therefore, the following definitions of and limitations upon the jurisdiction and authority of the courts of the United States are enacted.
The Act encouraged negotiation and arbitration of labor disputes, which it defined broadly, and made it much harder for employers to sue unions for damages. The Act also abolished "yellow dog" contracts, in which workers promised to quit or not join unions. Employers had long forced such contracts down workers' throats as a condition of employment.
In 1935, Congress finally passed a labor law of general application: the National Labor Relations Act, also known as the Wagner Act. Building on previous findings of public policy by the National War Labor Board and Congress (in the Erdmann Act, the RLA, and Norris-LaGuardia), Congress recognized that federal regulation of labor relations between most private sector employers and their employees would encourage labor peace and efficient, uninterrupted commerce. Among other things, the NLRA did the following:
Provided employees with "the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Provided that certain employer conduct constituted unfair labor practices, specifically employer domination of labor organizations (company unions), antiunion discrimination, retaliation against employees who file charges or testify in unfair labor practice proceedings, and bad faith bargaining.
Imposed on both employers and unions a duty to bargain in good faith "with respect to wages, hours, and other terms and conditions of employment."
Created the National Labor Relations Board and, among other things, charged it with the duty to preside over union representation elections and unfair labor practice proceedings.
In 1947, Congress passed the Taft-Hartley Act, which addressed alleged union abuses. Among other things, Taft-Hartley defined certain union conduct as unfair labor practices and made secondary boycotts unlawful. In 1959, Congress passed the Landrum-Griffin Act. Among many other things, that law further amended the NLRA to prohibit an effective union tool, the hot cargo clause. Landrum-Griffin also enacted the Labor-Management Reporting and Disclosure Act, which regulated internal union activities and guaranteed union members certain basic rights of free speech, voting, and due process in internal union disciplinary proceedings. The last significant amendments to the NLRA, enacted in 1974, created special rules for labor relations in health care institutions.
President Truman vetoed Taft-Hartley, but the Republican Congress overrode the veto. Since then, labor has fought in vain to repeal Taft-Hartley, and—tossing a meaningless bone to labor—the Democratic Platform has routinely called for such a repeal. At times, labor leaders have even called for the repeal of the NLRA. Among other things, they have complained that the procedures for elections are cumbersome and fraught with opportunities for employer delays, which effectively make organizing difficult or impossible. Although employers and their lawyers have become masters of delay, both in elections and in bargaining, the alternative of repeal is risky business because it would return the parties to the wild west days of labor law, leaving workers in the hostile hands of the courts. The adverse rulings of yesteryear are still on the books and would be quickly resuscitated by employers in the event of repeal. For instance, employers would seize on old decisions outlawing boycotts and would invoke the antitrust laws. The only reason those laws have for the most part lain dormant for over 65 years is that Norris-LaGuardia and the NLRA have preempted the field of labor regulation. Without the NLRA, all of those ghoulish specters from the past would come back to haunt unions and workers.
V. Regulating Hours & Wages
Early in the Twentieth Century, reformers militated for laws to redress some of the hardships caused by industrial employment, particularly the long hours industrial employers demanded from workers. Part of this militancy was the Eight Hour Movement, which argued that long hours were unsafe. And state legislatures responded with relatively modest laws regulating hours of work. The Supreme Court's response to these laws was mixed. In 1898, the Court upheld a Utah statute limiting miners to an 8-hour day.6 Then, in 1905, the Court struck down a New York law that limited the hours of work for bakery workers on the ground that the law violated the Constitutional right to freedom of contract.7 Although that case seemed to have been the death knell for all labor regulation, in 1908, the Court upheld an Oregon law regulating the hours of work for women on the theory that women needed special legal protections that men did not need. In a unanimous opinion, Justice Brewer wrote that "woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence." Just over ten years later, however, the Court reversed its course and upheld another Oregon law limiting to ten hours the work of men "employed in any mine, factory or manufacturing establishment."8 That same year, the Court also narrowly upheld a federal law limiting certain railroad employees to an 8-hour day.9
During the same time period, state legislatures and Congress also enacted laws banning child labor and establishing minimum wages. But, unlike the maximum hours laws, these statutes met with hostility in court. In 1916, Congress passed the Keating-Owen Child Labor Act, which barred goods manufactured by children from interstate commerce. The Supreme Court held that law unconstitutional.10 In 1923, furthermore, the Supreme Court held unconstitutional a District of Columbia law establishing minimum wages for women and children.11 As late as 1936, the Court struck down a New York minimum wage law for women.12 But, in 1937, in the famous West Coast Hotel case, the Court made "the switch in time that saved nine." In that case, the Court reversed course and upheld a Washington state minimum wage law, thus stopping President Roosevelt's plan to pack the Court and setting the stage for the validation of many of the New Deal laws enacted by Congress.13 In 1938, Congress adopted the Fair Labor Standards Act, which established a minimum wage, required time and a half pay for overtime work, and limited child labor. In 1941, the Court upheld the FLSA, thus completing the reversal of the old precedents finding such social legislation beyond the powers of government.14
Since enacting the FLSA, Congress has passed relatively little social employment legislation. Two of the very few examples are the Occupational Health and Safety Act and the Family and Medical Leave Act of 1993. OSHA obviously sets safety standards for workplaces and work. The FMLA requires larger employers to grant certain employees up to twelve weeks of leave for serious health conditions. Other than that statute, there are no federal laws requiring employers to provide specific employee benefits such as leaves or breaks. And, other than minimum wage laws and more recently living wage ordinances in some cities, there are precious few state laws regulating wages or employee benefits.
One other area of regulation involves mass layoffs. In 1988, in the wake of devastating layoffs and plant closings, the federal government enacted the Worker Awareness and Retraining Notification Act (WARN), which requires certain large employers to give 60 days' notice of mass layoffs or pay wages for such time if it fails to give notice. The law, however, is filled with loopholes that severely limit its utility.
VI. Civil Rights Laws
Although it had nothing to do with traditional labor law, the Civil War set the stage for later developments in labor and employment law. Specifically, after the Civil War, the States ratified the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which—among other things—abolished slavery, guaranteed equal protection and due process under state law to all citizens regardless of color, and guaranteed former slaves the right to vote. Late in the Reconstruction, Congress followed up on those Amendments by enacting the Civil Rights Act of 1875, which prohibited discrimination in public accommodations, such as inns, public conveyances, and places of public amusement. But the Supreme Court found that civil rights law unconstitutional.15
It took nearly 100 years before Congress again entered the waters of civil rights legislation with the Civil Rights Act of 1964. There, Congress forbade discrimination in employment and public accommodations based on race, sex, religion, and national origin. Later, Congress expanded these protections with amendments and new laws prohibiting discrimination in housing and education. Since 1964, Congress has also enacted laws barring age and disability discrimination. The Supreme Court held these laws to be constitutional under the federal government's power to regulate interstate commerce.
VII. Public Employees
As government has grown so has the number of public employees. There is no single law governing collective bargaining for public employees. The First Amendment guarantees public employees the right to join unions. But, because we live in a federal system of government, where the federal and state governments are recognized as separate sovereigns, Congress has very limited power to regulate employment conditions for state employees. Thus, the public employee labor laws are a crazy quilt, varying widely among the states.
For example, Missouri lacks a strong public sector collective bargaining law. Instead, Missouri law provides that some public sector employees have the right to "meet and confer" with their employers regarding their terms and conditions of employment. But the law specifically excludes law enforcement officers and teachers. To the extent that some schools negotiate with teachers' unions, it is for the sake of labor peace and convenience, not because the law requires it. Missouri's law is weak, and public employers are not even bound by agreements they make with the unions. The Missouri Supreme Court has held that, unlike regular contracts, public employers can unilaterally change their labor agreements. This is why public employee unions are currently mounting a drive for a strong collective bargaining law in Missouri.
Kansas' public sector bargaining law is based more on the model of the NLRA, and Kansas has a separate law for teacher bargaining. But, in the cases of at least some public employees, such as police, public employers in Kansas can opt out of bargaining and can refuse to recognize public employee unions.
In most states, public employees are prohibited from striking. And the federal sector labor law bars federal employees from striking and from bargaining with respect to wages, among other things. Moreover, promise of arbitration for federal employees is somewhat ephemeral because the Federal Labor Relations Authority can overturn arbtration awards it finds to have been wrongly decided, and the federal unions cannot appeal the FLRA's decision. This stands in stark contrast to arbitration decisions under private sector collective bargaining agreements, which are essentially unreviewable. Although hostile courts sometimes overturn private sector arbitration awards, the Supreme Court has time and again reversed such decisions and reitterated the general policy of deference to such awards.
Recently, the Supreme Court has found unconstitutional Congressional efforts to apply federal labor and employment statutes to states. Relying on the Eleventh Amendment, for instance, the Court has found unconstitutional provisions of the Americans with Disabilities Act and the Age Discrimination in Employment Act allowing state employees to sue states in federal court for violations of those laws.16 Moreover, the Court has found that state employees cannot even sue their employers in state courts for violations of federal laws.17 This trend is worrisome because, as noted by Justice Stephen Breyer, it "is reminiscent of the similar (now-discredited)
limitation . . . once imposed upon the Congress' Commerce Clause power." It was exactly that old limitation on the commerce power that the Court used to strike down labor legislation before 1937. Thus, we may be in for more surprises in the future, especially if more conservative Justices take seats on the Court.
Labor and employment laws in the United States are relatively limited, and employers retain widespread rights to operate their businesses as they see fit. Congress and state legislatures have made minimal inroads into the employment arena. And employers would like to repeal many of the laws that restrict them. But a major problem is lack of worker knowledge and education about their rights. Some of the statements in the federal labor laws—such as the fact that employers and employees have unequal bargaining power—would probably surprise most workers in the United States. Conversely, many workers erroneously believe they have rights to breaks and to be fired only for just cause. More education is the crucial first step. Without it, workers are doomed to continue muddling about in this dark age of decreasing organization and increasing employer power.
1 In re Debs, 158 U.S. 564, 582 (1895).
2 Loewe v. Lawlor, 208 U.S. 274 (1908).
3 Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921).
4 Adair v. United States, 208 U.S. 161 (1908).
5 Coppage v. Kansas, 236 U.S. 1 (1915).
6 Holden v. Hardy, 169 U.S. 366 (1898).
7 Lochner v. New York, 198 U.S. 45 (1905).
8 Bunting v. Oregon, 243 U.S. 426 (1917).
9 Wilson v. New, 243 U.S. 332 (1917).
10 Hammer v. Dagenhart, 247 U.S. 251 (1918).
11 Adkins v. Children's Hospital, 261 U.S. 525 (1923).
12 Morehead v. New York ex rel. Tipaldo,
13 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
14 Darby Lumber Co. v. United States, 312 U.S. 100 (1941).
15 Civil Rights Cases, 109 U.S. 3 (1883).
16 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (ADEA); Board of Trustees of Univ. of Alabama v. Garrett,
121 S.Ct. 955 (2000) (ADA).
17 Alden v. Maine, 527 U.S. 706 (1999).