Thomas C. Kohler Enacted in 1935, the National Labor Relations Act (NLRA) (49 Stat. 449) is the nation's basic labor relations statute. The act's provisions govern the relationship among employers, employees, and their labor unions in the private sector. The act also established the National Labor Relations Board (NLRB), an independent federal agency that administers and interprets the statute and enforces its terms. Often described as the "heart" of the act, section 7 of the statute reflects the law's basic purposes. It provides that "employees shall have 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 the purpose of collective bargaining or other mutual aid and protection," as well as the right to refrain from engaging in any of those activities. Since one of the core purposes of the act is to protect the ability of employees to organize themselves freely and to undertake other activities designed to protect and advance their status, the rights set forth in section 7 are guaranteed to all individuals who come within the statute's definition of being an employee. They are not limited to individuals holding union membership.
In framing the act, Congress did not invent the practices or institutions of collective bargaining. Instead, Congress simply adopted a system that had been worked out on a gradual, trial-and-error basis by employers and employees over the decades preceding the act's passage. There are three key principals on which the NLRA rests: 1) the exclusivity principle; 2) the notion of free collective bargaining; and 3) the structural autonomy of the bargaining representative of the employees (in other words, the independence of the employees' labor union from the employer). Exclusivity Principle. The exclusivity principle is a basic feature of American-style collective bargaining. According to the exclusivity principle, the union representative selected by a majority of employees in a workplace becomes the exclusive (sole) representative of all those employees. The principle is simply an expression of the democratic notion of majority rule. The principle requires the employer to deal with the majority-designated representative of its employees on all issues concerning their "wages, hours, and other terms and conditions of employment." The principle prohibits an employer from making changes in employment terms and conditions without consulting the representative. It also prohibits the employer from attempting to avoid the representative by dealing directly with individuals or groups of employees. The act links privileges with duties: the privileged status that the majority representative enjoys carries with it the legally enforceable duty to represent all employees fairly and even-handedly, regardless of whether they support or are members of the union. Free Collective Bargaining. Free collective bargaining is the second basic principle of the NLRA. The act leaves the decision whether to organize entirely to employees. Once they do select a bargaining representative, the NLRA requires the employer to bargain in good faith with the representative of the employees. The results of the bargaining process, however, are left wholly to the parties themselves, free from governmental intervention or influence. If the parties are unable to reach an agreement, the law leaves it to market forces — such as the application of economic power through strikes, lockouts, and other means — to set the terms that will govern the parties' relationship. Collective bargaining can best be understood as a private lawmaking system. In the words of the United States Supreme Court, a collective bargaining agreement "is more than a contract; it is a generalized code." This code represents "an effort to erect a system of industrial self-government" through which the entire employer-employee relationship can be "governed by an agreed-upon rule of law." In recognition of the lawmaking character of collective bargaining, the Supreme Court has compared a union's role in the bargaining process with that of a legislature. Not only do the employer and the union make the "law" that governs the employment relationship, they also have the responsibility for administering it. Consequently, collective bargaining agreements typically establish a system to resolve disputes or grievances through arbitration, a process that the union and employer administer together. The arbitration system normally has jurisdiction over nearly every type of dispute that might arise concerning the employer-employee relationship. According to this process, courts do not hear matters that come within the parties' arbitration scheme. Structural Autonomy. The structural autonomy of the employees' bargaining representative is the third key principle of the collective bargaining system adopted by the NLRA. This principle anchors the system of free collective bargaining. To guarantee employees free choice and freedom of self-organization, the act requires that the employee representative (the union) be solely the agent of the employees and that this representative stand completely independent of the employer. This requirement achieves one of the NLRA's basic goals: to remove barriers to employees' efforts to form autonomous associations, if they so choose, through which employees can engage in the lawmaking process. Section 8(a)(2) of the act forbids employers "to dominate or interfere with the formation or administration of any labor organization or to contribute financial or other support to it." The act broadly defines a "labor organization" as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."
The version of the NLRA enacted into law in 1935 is often referred to as the Wagner Act, after its chief sponsor, Senator Robert Wagner of New York. The lion's share of the congressional debates over the Wagner Act concerned the language of section 8(a)(2) and the statute's definition of a labor organization. In the years preceding the passage of the NLRA, many large-scale enterprises had appeared and unions had grown. Employers had begun to search for a system of dealing with employees as a group that could act as an alternative to unions and collective bargaining. They came up with a variety of substitute methods for involving workers in managerial decision-making, including semi-autonomous work teams, worker-representatives on company boards, and versions of "unions" sponsored by management. As the participants to the debate understood, the Wagner Act confronted Congress with a clear choice between two distinctly different models of group dealing: on the one hand, self-organized employee associations, and on the other, employer-organized or -sponsored representation schemes. Congress has made two significant amendments to the NLRA since its enactment. The first set of amendments came through the Taft-Hartley Act in 1947. Among other things, Taft-Hartley added a series of prohibitions against unfair labor practices by unions. These prohibitions largely mirrored those against unfair labor practices by employers that had been set forth in the Wagner Act. The Taft-Hartley amendments also outlaw most "secondary boycotts ." In a secondary boycott, a union puts economic pressure on an employer with whom it has no dispute to persuade it to stop doing business with an employer with whom the union does have a dispute. In order to prevent this practice the amendments call for restricting the audiences to whom unions can make appeals. These amendments also dealt with aspects of strikes and other forms of economic pressure undertaken by unions. Under Taft-Hartley's "secondary boycott provisions," unions could direct their strikes and economic appeals only at certain audiences: employees and customers of the employer with whom the union has its dispute, but not suppliers of the employer. Like some other provisions of the NLRA, the Taft-Hartley Amendments have been deeply controversial. They suggest strongly that unions and employee associations are a threat to individual status, and thus attempt to contain their activities. Many people oppose this view of unions and the way the amendments affect union activity. The second set of amendments to the NLRA, the Landrum-Griffin Amendments, passed in 1959, consist chiefly of a series of technical amendments designed to close a series of unintended loopholes in the act's Taft-Hartley provisions.
The commerce clause of the U.S. Constitution, which gives Congress the power to regulate trade among the states, serves as the constitutional basis for the NLRA. The constitutionality of the statute was sustained by the United States Supreme Court in its 1937 opinion in National Labor Relations Board v. Jones & Loughlin Steel Corp. Subsequently, the Court has had many opportunities to construe the statute. One of the most significant occasions came through the set of cases known as the Steelworkers' Trilogy. These cases produced a series of unusually challenging opinions on the issues of statutory interpretation, separation of powers, and federalism. The Court in these opinions began to fashion a body of law to govern the enforcement of agreements to arbitrate labor disputes. The Court has heard a second significant line of cases that produced opinions on the NLRA and its amendments. These cases made it necessary for the Court to 1) adjust First Amendment freedom of association issues arising out of the act's requirement that even employees who do not wish to belong to the union are exclusively represented by it, and 2) to resolve conflicts between the act's Taft-Hartley restrictions on union communicative activities and First Amendment freedom of speech guarantees. The union's duty of fair representation was established in the Supreme Court's landmark 1944 opinion in Steele v. Louisville & Nashville Ry. Co., a case that involved discrimination practiced by a union against African-American employees it represented. A subsequent line of cases involving duty of fair representation concerned the scope of a union's duty to represent individuals in grievances. The first such case produced the Court's 1967 Vaca v. Sipes opinion. Now largely resolved, this line of cases led to an unprecedented degree of substantive court review of union decisionmaking. Another very significant line of cases began with the Supreme Court's 1958 opinion in NLRB v. Wooster Division of Borg-Warner. There, the Supreme Court held that the NLRA makes a distinction between mandatory and permissive topics of bargaining. A mandatory topic settles an aspect of the relationship between the employer and employees. The parties must bargain over such topics and may use strikes, lockouts, and other economic pressure tactics concerning them. In contrast, the parties may discuss a permissive topic, but they are not required to do so. Moreover, they are forbidden to use economic pressure to achieve consensus over a permissive topic. In some important ways, the mandatory-permissive distinction contradicts the notion of free collective bargaining, and allows the courts a role in a process from which Congress had excluded them.
By any measure, the NLRA represents one of the landmarks of federal legislation. In passing the act, Congress deliberately opted for a system that would involve minimal government intervention in the employer-employee relationship. This is in sharp contrast to the course taken by the rest of the industrialized world. It is no accident that as the practice of collective bargaining has declined, the level of government regulation and intervention in the employer-employee relationship has substantially increased. In his analysis of the American political system, Alexis de Tocqueville, the great nineteenth-century French observer of democracy, insisted that for democracies, progress in all areas, including the future of self-rule itself, would depend on the "science of association" — the ways in which groups within democratic societies associate and work together. NLRA's greatest social contribution is the opportunity — and responsibility — it gives to employees to organize themselves and to determine and administer the law that most directly affects the day-to-day conditions of their lives. See also: Fair Labor Standards Act; Taft-Hartley Act.
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