LABOR AND LABOR PRACTICES

The role of labor organizations in modern U.S. industrialized society has its roots in the European merchant and craft guilds of the Middle Ages. The guilds were associations of people with common interests, usually setting prices and quality standards for their goods and wage rates for their employees. The guilds grew to have considerable political power before eventually dying out by the seventeenth century.

Early efforts in the United States for employees to organize into organizations seeking better pay, fewer working hours, and improved working conditions met with fierce opposition. Labor organizers were often considered criminals. This early conflict between employers and unions shaped labor law and labor relations throughout U.S. history.

Early organized labor actions in the United States included efforts by Philadelphia shoemakers in 1792 to improve their work conditions. Their actions met with little success as their organization was ruled illegal by a Pennsylvania court. Unions were considered illegal conspiracies. President Andrew Jackson (1829–1837) even sent U.S. troops in 1834 to break up a strike by canal construction workers in Ohio. A strike by employees is an organized refusal to work. Jackson claimed the strike interfered with interstate commerce (trade across state lines) by threatening not to complete the canal construction. Finally, in 1842 a Massachusetts court recognized a worker's right to strike and that unions were legally valid organizations, the first such ruling in the nation.

Labor organizations began to appear in the mid-nineteenth century. Skilled laborers were the first to organize with the railroad workers leading the way. Railroad workers held a particular edge in that they could potentially cause large scale economic disruptions.

Industrialization and Labor Unrest

Following the American Civil War (1861–1865) industrialization (growth of large manufacturers) expanded rapidly. Rapid changes in technology spurred the growth of capitalism (an economic system in which businesses are privately owned and operated for profit) in which the newly emerging large corporations were much more concerned with profits than employee comfort and safety. As a resul, interest in labor unions grew. In 1869, the Noble Order of the Knights of Labor became one of the first national labor organizations. The eight-hour work day and restrictions on child labor were two of its objectives.

Many still considered unions as obstacles to capitalism and, therefore, un-American. Translating new Darwinian theories of biological evolution to society in general, many believed in a social version of survival of fittest. Those persons who did not prosper on their own initiative were obviously deficient in character and should not be aided by organized groups. A laissez-faire economic system which was based on freedom from of governmental or labor union interference was considered most desirable for economic success. The unhampered marketplace was to dictate business success and workers were to perform based on the market needs. In the factories and sweatshops twelve hour workdays and six-day workweeks were common with wages barely at subsistence levels. Working conditions were dangerous and unsanitary. Death and injury were common in industrial accidents.

By the 1880s European immigration escalated providing an increased labor force for the industrialists. Unskilled workers and their families living in crowded slums became common. Support for social reform grew more and the public began to push for protective legislation. Confrontations between laborers and their employers and police began to turn violent in the late 1870s continuing in a series of strikes through the 1880s. Federal troops were called to stop one strike. Finally, police killed dozens of strikers in a 1894 incident. Public acceptance of unions decreased with each incident. In addition, discrimination against the immigrants was prevalent. Typical of the labor movement in general, the Knights of Labor declined, disappearing by 1900.

Two notable developments during this period were the formation of the American Federation of Labor (AFL) in 1886 and passage of the Sherman Antitrust Act in 1890. The AFL was a loose organization of twenty-five national trade unions representing skill workers. Stressing cooperation with employers, the AFL represented over 300,000 workers.

Congress passed the Sherman Antitrust in 1890 with intentions of breaking up the business monopolies. Ironically, courts tended to apply the prohibitions against workers' strikes rather than against business activity ruling that strikes were illegal restraints of trade. With strikes proving ineffective and attracting much public scorn, the use of boycotts soon became a popular alternative. Boycott is an organized effort to convince people not to purchase or handle products made by a particular business. Regional or national boycotts proved more effective than localized strikes, but they also met with much legal opposition. In Loewe v. Lawlor (1908) the Court ruled that coordinated boycotts by combinations of workers, like strikes, violated the Sherman Antitrust Act of 1890. Even the publicizing of a proposed boycott was considered in violation of the act despite claims of First Amendment free speech rights by the organizers. The First Amendment protection of the freedom of assembly prevented the banning of unions altogether.

Labor and the Courts

The main court activity in the late nineteenth and early twentieth centuries involved the issuing of injunctions (court order to stop an action) against union activities and rulings often striking down reform legislation. Rulings, such as Lochner v. New York (1908) striking down a state law setting maximum hours of work for bakers, were normally unfavorable to labor because of the court's desire to define and protect the "liberty of contract," as interpreted in the due process clauses of the Fifth and Fourteenth Amendments. The clauses state "No person shall be . . . deprived of life, liberty, or property, without due process of law." The right of an employer to contract for labor with employees was considered a "liberty" protected by the clause.

Employers commonly used court injunctions to stop strikes and hinder organizing efforts. The first came in 1877 against railroad workers. In a national boycott of railway cars built and owned by the Pullman company, a series of injunctions were issued by federal courts. The injunctions were upheld by a unanimous (all justices agree) Supreme Court in In re Debs (1895). Likewise, in Gompers v. Buck's Stove & Range Co. (1911) the Court reaffirmed the legality of labor injunctions. Between 1880 and 1930 approximately 4,300 court orders were issued against labor activities.

Persistent court losses led labor leaders to begin lobbying Congress for protective laws including prohibition of injunctions against labor activities. To seek improved working conditions, Congress created the U.S. Department of Labor in 1913. The following year Congress passed the Clayton Act of 1914 barring courts from issuing injunctions against peaceful strikes or boycotts. Formation of unions was no longer to be considered a violation of antitrust law. However, the act proved of little help as it was too vaguely worded for lower courts to apply effectively. Use of injunctions continued. In addition, a common means of controlling union activity was yellow-dog contracts. Employers required employees and those applying for jobs to sign an agreement that they were not and would not become union members. The Court upheld yellow dog contracts in Coppage v. Kansas (1915). Union membership correspondingly declined from over five million in 1920 to 3.5 million in 1929.

A desire to protect the "vulnerable" (person who could easily be harmed) did exist through this period. In Muller v. Oregon (1908) a state maximum hour law for women was upheld. But federal child labor laws did not fair as well. In Hammer v. Dagenhart (1918), the Court ruled that such laws fell outside congressional authority and should be left to the states. Yet, states were unwilling to pass laws prohibiting child labor since children were popular sources of cheap labor for businesses operating in their boundaries. Despite some limited gains with state reform laws, any effort to recognize broad reforms for all workers was found unacceptable. One result was that laws allowing protection of women only led to a gender-based division in America's working class.

Maintaining Peaceful Labor Relations

Finally, greater recognition of unions and protection of workers rights came in the 1930s. The Great Depression brought a decline in business influence and increased strife among workers. Congress passed the Norris-LaGuardia Act in 1932 more clearly restricting use of injunctions. With improved protection of unions, unskilled workers began to have a voice with the rise of the Congress of Industrial Organizations (CIO).

A truly new era in labor relations and labor law arrived in 1935 with the Wagner Act, also known as the National Labor Relations Act. The act is the most important labor legislation in U.S. history guaranteeing workers "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 other concerted activities for . . . mutual aid or protection." Collective bargaining is when the employer and employees' representatives negotiate a labor agreement concerning work conditions including wages, hours, and safety. Employers are required to bargain with their employees' elected representatives. Importantly, the act also prohibited employers from committing "unfair labor practices" that would violate these employee rights. Yellow-dog contracts were outlawed. The act created the National Labor Relations Board (NLRB), a federal agency to enforce the act's provisions. The NLRB has power to investigate employees' complaints and issue orders for employers to stop certain labor practices. The Board can go to a federal appeals court for enforcement of its orders if need be. The NLRB can also conduct elections to determine which union is to represent employees of a particular company.

With the Supreme Court's rejection of a National Industrial Recovery Act only two months before passage of the Wagner Act, the new act received few favorable rulings in the lower courts for two years until a case finally made it to the Supreme Court. Due largely to considerable political pressures from President Franklin D. Roosevelt (1933–1945) and the public, the Court made one of its most dramatic constitutional shifts in U.S. history. Suddenly, the laissez-faire economic concepts and protection of business from labor actions was largely abandoned, replaced by recognition of workers' rights and role of government in regulation of economic activities. The Court first abandoned the liberty of contract doctrine in West Coast Hotel Co. v. Parrish (1937) by upholding a state law setting minimum wages for women. Then, in National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) the Court upheld the NLRA, greatly expanding federal authority to regulate economic matters. The Court for the first time recognized that individual workers were at a disadvantage in negotiating with employers over work conditions. Unions and government intervention were now considered appropriate to make labor relations more balanced.

In Hague v. Congress of Industrial Organizations (1939) the Court went further in using First Amendment protections to protect union organizing activities. Freedom to discuss labor issues was recognized as crucial to a modern industrial society. As follow-up to Hague, the Court soon ruled in support of peaceful picketing in Thornhill v. Alabama (1940). Picketing is physically interfering with a particular business to influence the public against purchasing its products. As a result of the NRLA and sudden favorable Court rulings, union membership substantially grew for the next several decades.

Unfortunately for labor, the favorable rulings came largely from the Court's concern about the public being informed of key labor issues through picketing, strikes, and boycotts and maintaining labor peace than actually protecting workers' rights. This perspective supported substantial government regulation of labor unions and workers' rights. Two key revisions (amendments) to the Wagner Act occurred in 1947 and 1959 which served to restrict union activities. The Taft-Hartley Act of 1947, also known as the Labor Management Relations Act, applied unfair labor practice prohibitions against labor unions, just as the Wagner Act had against employers. For example, unions and union members could not threaten or intimidate other employees into supporting union activities. It also restricted workers' rights to select their own representatives partly in fear of Communist infiltration of labor unions with onset of the Cold War (1946–1991). These restrictions were upheld in American Communications Association v. Douds (1950) in the name of protecting commerce from the threat of disruption. Picketing was also limited by the act.

By the late 1950s workers' rights had declined with the government still emphasizing labor peace. Use of injunctions against union activities reappeared. The AFL and CIO merged in 1955 to form the AFL-CIO to increase its power in the face of increased restrictions. The 1959 Landrum-Griffin Act, also known as the Labor Management Reporting and Disclosure Act, curbed abuses of power by union leaders and regulated how labor unions conduct their internal affairs. Still, a strong U.S. economy in the 1960s, based largely on manufacturing industries which dominated the world economy, led to growth of union membership. The workforce also began to change. Passage of the Civil Rights Act of 1964 opened up employment as well as union memberships to both racial minorities and women. But, unfavorable legal rulings toward labor continued as the Court in American Ship Building Co. v. NLRB (1965) upheld an employer's right to "lockout" employees as part of collective bargaining pressure on workers. Lockout means refusal to allow employees to enter their workplace.

Propelled by the Wagner Act and its amendments, the field of labor law grew, focusing on the rights of employees, employers, and labor unions. The process of organizing unions, conducting elections for union representatives, spending union monies, negotiating labor contracts, and resolving disputes became well established. Though both unions and employers are required to bargain when one or the other requests it, there is no requirement that workers and employers must reach agreement on a labor contract. Federal or state government mediators (officials stepping in between the two sides) may even be called upon to help with negotiations. Strikes or boycotts could result from failed negotiations. If disputes threaten public health or safety, the U.S. president has authority to obtain an eighty day injunction from federal courts against strikes or lockouts. This power was often used in the 1950s and 1960s, but much less so after 1970. Almost every labor contract that is established includes a grievance (complaint) procedure designed to settle disputes between workers and employers. Failure of immediate solution may lead to arbitration, meaning another person not connected to the two sides decides the issues. The resulting solution is considered final and both sides must comply with it.

A Changing Economy

Labor relations continued to change in the late twentieth century. A decline of union membership and activity occurred through the 1970s and 1980s. A combination of economic slowdowns, increased automation in factories, and shift of manufacturing jobs to less developed countries with cheaper labor costs contributed to the change. The U.S. economy shifted from manufacturing to service jobs, including health care, food service, information technology, and insurance which generally pay less for lesser skilled employees and are more temporary in nature. In addition, women who were generally less inclined to participate in union activities entered the workforce in substantially larger numbers. Almost 35 percent of the U.S. workforce claimed union membership in 1954 compared to less than 15 percent in 1995.

Changes in the U.S. economy in the 1990s led to more cooperative working relations between employers and labor unions, including agreements in some instances to reduce wages in tradeoff for greater job security. Some employers began giving unions a greater voice in company policies. The NLRA, built on the notion that labor and employers always have opposing viewpoints and goals, became viewed as outdated by both labor and business as some new workplace cooperative practices were ruled in violation of the act. Some called for repeal of the NLRA and restructuring of labor law to better conform to the changing work environment in the twenty-first century.

Suggestions for further reading

Boyett, Joseph H. Beyond Workplace 2000. New York: Dutton Books, 1995.

Foner, Philip S. History of the Labor Movement in the United States. New York: International Publishers, 1974.

Foner, Philip S. Women and the American Labor Movement From World War I to the Present. New York: The Free Press, 1980.

Milkman, Ruth, ed. Women, Work and Protest: A Century of U.S. Women's Labor History. Boston: Routledge & Kegan Paul, 1985.

Tilley, Chris. Work Under Capitalism. Boulder, CO: Westview Press, 1998.

Trattner, Walter L. Crusade for the Children: A History of the National Child Labor Committee and Child Labor Reform in America. Chicago: Quardrangle Books, 1970.

Yellen, Samuel. American Labor Struggles. New York: Arno Press, Inc., 1967.