Taft–Hartley Act

In jurisdictional strikes, outlawed by Taft–Hartley, a union strikes in order to assign particular work to the employees it represents. Secondary boycotts and common situs picketing, also outlawed by the act, are actions in which unions picket, strike, or refuse to handle the goods of a business with which they have no primary dispute but which is associated with a targeted business.[13] A later statute, the Labor Management Reporting and Disclosure Act, passed in 1959, tightened these restrictions on secondary boycotts still further.

According to First Amendment scholar Floyd Abrams, the Act "was the first law barring unions and corporations from making independent expenditures in support of or [in] opposition to federal candidates".[8]

The law outlawed closed shops which were contractual agreements that required an employer to hire only labor union members. Union shops, still permitted, require new recruits to join the union within a certain amount of time. The National Labor Relations Board and the courts have added other restrictions on the power of unions to enforce union security clauses and have required them to make extensive financial disclosures to all members as part of their duty of fair representation. On the other hand, Congress repealed the provisions requiring a vote by workers to authorize a union shop a few years after the passage of the Act when it became apparent that workers were approving them in virtually every case.

The amendments also authorized individual states to outlaw union security clauses (such as the union shop) entirely in their jurisdictions by passing right-to-work laws. A right-to-work law, under Section 14B of Taft–Hartley, prevents unions from negotiating contracts or legally binding documents requiring companies to fire workers who refuse to join the union. Currently all of the states in the Deep South and a number of states in the Midwest, Great Plains, and Rocky Mountains regions have right-to-work laws (with six states—Alabama, Arizona, Arkansas, Florida, Mississippi, and Oklahoma—going one step further and enshrining right-to-work laws in their states' constitutions).

The amendments required unions and employers to give 80 days' notice to each other and to certain state and federal mediation bodies before they may undertake strikes or other forms of economic action in pursuit of a new collective bargaining agreement; it did not, on the other hand, impose any "cooling-off period" after a contract expired. The Act also authorized the President to intervene in strikes or potential strikes that create a national emergency, a reaction to the national coal miners' strikes called by the United Mine Workers of America in the 1940s. Presidents have used that power less and less frequently in each succeeding decade. President George W. Bush invoked the law in connection with the employer lockout of the International Longshore and Warehouse Union during negotiations with West Coast shipping and stevedoring companies in 2002.[14]

The Act also prohibited federal employees from striking.[15]

The amendments required union leaders to file affidavits with the United States Department of Labor declaring that they were not supporters of the Communist Party and had no relationship with any organization seeking the "overthrow of the United States government by force or by any illegal or unconstitutional means" as a condition to participating in NLRB proceedings. Just over a year after Taft–Hartley passed, 81,000 union officers from nearly 120 unions had filed the required affidavits.[11] This provision was at first upheld in the 1950 Supreme Court decision American Communications Ass'n v. Douds, but in 1965, the Supreme Court held that this provision was an unconstitutional bill of attainder.[16]

The amendments expressly excluded supervisors from coverage under the act, and allowed employers to terminate supervisors engaging in union activities or those not supporting the employer's stance.[17] The amendments maintained coverage under the act for professional employees, but provided for special procedures before they may be included in the same bargaining unit as non-professional employees.[18]

The Act revised the Wagner Act's requirement of employer neutrality, to allow employers to deliver anti-union messages in the workplace.[6] These changes confirmed an earlier Supreme Court ruling that employers have a constitutional right to express their opposition to unions, so long as they did not threaten employees with reprisals for their union activities nor offer any incentives to employees as an alternative to unionizing. The amendments also gave employers the right to file a petition asking the Board to determine if a union represents a majority of its employees, and allow employees to petition either to decertify their union, or to invalidate the union security provisions of any existing collective bargaining agreement.

The amendments gave the General Counsel of the National Labor Relations Board discretionary power to seek injunctions against either employers or unions that violated the Act. The law made pursuit of such injunctions mandatory, rather than discretionary, in the case of secondary boycotts by unions. The amendments also established the General Counsel’s autonomy within the administrative framework of the NLRB. Congress also gave employers the right to sue unions for damages caused by a secondary boycott, but gave the General Counsel exclusive power to seek injunctive relief against such activities.

The act provided for federal court jurisdiction to enforce collective bargaining agreements. Although Congress passed this section to empower federal courts to hold unions liable in damages for strikes violating a no-strike clause, this part of the act has instead served as the springboard for creation of a "federal common law" of collective bargaining agreements, which favored arbitration over litigation or strikes as the preferred means of resolving labor disputes.

The Congress that passed the Taft–Hartley Amendments considered repealing the Norris–La Guardia Act to the extent necessary to permit courts to issue injunctions against strikes violating a no-strike clause, but chose not to do so. The Supreme Court nonetheless held several decades later that the act implicitly gave the courts the power to enjoin such strikes over subjects that would be subject to final and binding arbitration under a collective bargaining agreement.

Finally, the act imposed a number of procedural and substantive standards that unions and employers must meet before they may use employer funds to provide pensions and other employee benefit to unionized employees. Congress has since passed more extensive protections for workers and employee benefit plans as part of the Employee Retirement Income Security Act ("ERISA").

• Bowen, Michael (2011). The Roots of Modern Conservatism: Dewey, Taft, and the Battle for the Soul of the Republican Party. UNC Press Books. ISBN 9780807869192.
• McCoy, Donald R. (1984). The Presidency of Harry S. Truman. University Press of Kansas. ISBN 978-0-7006-0252-0.