Taft-Hartley Act

Explanation and Analysis of the Document

Section 1

Section 1 gives a short title, the “Labor Management Relations Act, 1947,” to this first revision of the Wagner Act and specifies the purposes of the legislation. One purpose is to minimize “industrial strife.” This can be done, the paragraph asserts, if “employers, employees, and labor organization” recognize one another's “legitimate rights” but, more important, recognize that no one has the right to threaten “the public health, safety, or interest.” The second paragraph indicates that the act will “prescribe the legitimate rights of both employees and employers” and provide procedures to prevent either party from interfering with the rights of the other and, most important, to forbid “practices” by either party that harm “the general welfare” and protect the “rights of the public” in labor disputes.

Title I: Amendment of National Labor Relations Act

Section 101:1—Findings and Policies

This section amends the Wagner Act's Findings and Declaration of Policy. According to the 1935 law, the causes of industrial strife were the denial by employers of workers' right to organize and their failure to accept collective bargaining. The purposes of the law were to correct an imbalance of bargaining power between labor and management, protect workers' right to organize, and encourage the practice of collective bargaining. Whereas the Wagner Act stated that employers deny rights and refuse to bargain, the 1947 act makes the far less sweeping critical judgment that “some employers” commit such acts. The Taft-Hartley Act also adds an antilabor paragraph that states that the rights guaranteed by the act are contingent on the elimination of some union practices such as “strikes and other forms of industrial strife or unrest” or other “concerted activities” that hurt the interests of the public and “the free flow of … commerce.”

The conflicting statements of purpose in the 1947 legislation stem from the differing visions of the Hartley bill passed by the House of Representatives and the Taft bill passed by the Senate. The Taft bill, a bit less harsh toward unions, kept the Wagner Act wording with its pro–collective bargaining statement but added changes that made it less pro-labor. The new declaration of policy, which originated in the Hartley bill, focuses on ending industrial strife. The Hartley bill would have eliminated the pro–collective bargaining statement. The Conference Committee compromised by including the new statement of policy and the Senate's amended version of the Wagner Act wording.

Section 101:2—Definitions

The definition of “person” in paragraph (1) is modified in the 1947 act to include labor organizations, consistent with the addition to the act of a list of unfair labor practices by unions, a concept foreign to the Wagner Act. In defining employers in paragraph (2), the Wagner Act had included any person acting in the interest of an employer. The 1947 act revises this to those acting “as an agent” of an employer. Labor-relations professionals worried that some persons committing unfair labor practices for the employer would not be held accountable for their acts with the new wording. The 1947 law also expands the list of excluded employers by adding government corporations, Federal Reserve banks, and nonprofit hospitals. The latter exclusion nullified a 1944 Supreme Court decision supporting workers' collective bargaining rights at a Washington, D.C., nonprofit hospital. The nonprofit hospital exclusion ended in 1974 when workers won a qualified right to bargain collectively and strike.

In defining who was considered a covered employee in paragraph 3, the act for the first time excludes independent contractors and supervisors. Paragraph 11 provides a definition of “supervisor” that includes individuals who merely recommend actions such as hiring, recalling, or disciplining other employees. The exclusion of independent contractors reversed a victory by the Los Angeles Newsboys Local Industrial Union No. 75 against the Hearst Corporation. The supervisor exclusion meant the loss of coverage under collective bargaining agreements for unionized supervisors in printing, mining, and other industries. It also voided NLRB election victories won by the Foreman's Association of America in its campaign to unionize supervisors in the automobile industry.

Section 101:3–6—National Labor Relations Board

In Section 3, the 1947 act increases the number of members of the National Labor Relations Board from three to five. A quorum of three members is sufficient to issue rulings. Much of the power of the NLRB is shifted to a new position of general counsel. Appointed to a four-year term by the president, the general counsel supervises the regional offices and all attorneys except administrative law judges and board members' legal assistants. The general counsel has “final authority” with respect to investigations of charges and issuing unfair labor practices complaints.

The theory behind dividing the investigative and decision-making functions was that the NLRB had an interest in upholding complaints against employers it had investigated and was being unfair to them. In fact, the two activities had been functionally separate and were required to be so by the Administrative Procedure Act of 1946. The Attorney General's Committee on Administrative Procedure had recommended against creating independent counsels in federal agencies because doing so was likely to lead to excessive litigation. The separation the act imposes on the NLRB was greater than that for any other federal agency. A significant increase in litigation did occur during the term of the first general counsel, Robert N. Denham (1947–1950), but the board was able to reassert its leadership role in policy making.

Section 101:7—Rights of Employees

The Wagner Act emphasized workers' rights to organize unions and “to engage in concerted activities for the purpose of collective bargaining” (http://www.ourdocuments.gov/doc.php?doc=67&page=transcript). The 1947 law keeps this statement intact, merely adding the word “other” before “concerted activities.” It adds, however, a “right to refrain from any or all such activities” unless an authorized union shop agreement between union and employer makes union membership a condition of employment. By declaring a “right to refrain” from collective action and equating it with a right to join in collective action, the new paragraph emphasizes the importance of the individual. It also weakens the Section 1 declaration that it is government policy to protect workers' self-organization and to encourage collective bargaining.

Section 101:8—Unfair Labor Practices

Wagner Act language permitting closed and union shop agreements is changed by Section 8 (a) (3). The act prohibits the closed shop and qualifies the sanction given to union shop agreements. In a closed shop, only union members are hired, while in a union shop one must join the union after a probationary period. At the time of the enactment of the Taft-Hartley Act, many unions had closed-shop agreements. These agreements remained in effect, but the parties were unable to renew them. Union attempts to formally challenge what they saw as a loss of their traditional rights were unsuccessful, but de facto closed-shop agreements persisted in some areas of the economy. The Taft-Hartley Act specifies that union shop agreements can take effect “on or after the thirtieth day” a worker is employed or on the effective date of the agreement, whichever is later.

One additional qualification is that 30 percent of the workers have to petition for an election in which a majority of workers voting favor authorizing a union shop agreement. Another is that employers can refuse to discriminate against workers for nonmembership in unions if they think the union is discriminating on any other ground than nonpayment of dues and initiation fees. These qualifications abridge the Wagner Act's emphasis on noninterference of employers in workers' self-organization activities, since they provided for government and employer review of union internal procedures. Overwhelming worker votes in favor of union shop agreements dashed conservative expectations. A bipartisan coalition in Congress in October 1951 eliminated the requirement that such elections be conducted, since they were wasting the NLRB's time and resources.

The addition of unfair labor practices by labor organizations in paragraph (b) is new in the 1947 act. The NLRB is hereby given responsibility for issuing cease-and-desist orders against a number of union activities now deemed improper. The act prohibits unions from coercing employees in the exercise of their right of self-organization or employers in selecting their representatives. The implication of these prohibitions is that unions are, at least in some instances, an outside gangsterlike entity in labor-management relations rather than, in the Wagner Act theory, an instrument for securing more peaceful labor relations by providing employees with representation and a say over their wages and working conditions.

In Section (b) (4) (A), unions or their agents are prohibited from organizing or encouraging secondary boycotts—acts of solidarity by workers not directly engaged in a dispute. such as refusing to handle products of a struck company. Section (b) (4) (B) prohibits unions from forcing “any other employer” to recognize a union unless it is certified by the NRLB. Sections (b) (4) (C) and (D) prohibit actions to gain recognition when another union is certified or to get work reassigned from one union or craft to another union or craft; these two provision target jurisdictional disputes common in the construction trades. A qualification to these numerous antistrike provisions is that an employee may lawfully refuse to enter the premises of a struck employer if a certified union sanctions the strike.

In paragraph (c), the 1947 law grants a free speech right to employers that, as former NRLB chair Harry Millis put it, “went far beyond the constitutional protection of free speech” (Millis and Brown, p. 422). No longer would the NLRB be able to cite expressions of views “whether in written, printed, graphic, or visual form” as “evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.” Under this provision, employers are given the right to be a party to the debate among workers on whether unionization is a good idea, thereby reversing the Wagner Act approach that decisions about self-organization were to be made by the workers alone. During the first five years of its existence under chair J. Warren Madden, the NLRB had held that the law required employers to maintain strict neutrality and not communicate antiunion views, because such communications were inherently intimidating. Employers had won court decisions in 1940 and 1941 that caused the NLRB to drop that approach. The NLRB had Supreme Court support, however, for using evidence of employer antiunion statements in the context of a pattern of antiunion conduct, but it had stopped using such evidence six months before passage of Taft-Hartley. Employers are now permitted to campaign against a union vote in compulsory employee meetings. Employers may not, however, make a direct threat to close a plant if workers vote for a union.

Paragraph (d) states that the employer and the representative of the employees are required to engage in good-faith collective bargaining over contract terms and over issues arising under terms of agreements. Neither party, however, is required to “agree to a proposal” or make a “concession.” The latter admonition had little consequence, but the remainder of the section includes several specific limitations on collective bargaining. A party desiring to modify or terminate an existing contract has four obligations: to provide the other party with sixty days' notice; to offer to meet and confer on contract terms; to provide thirty days' notice to the Federal Mediation and Conciliation Service and appropriate state and territorial mediation agencies of the existence of a dispute; and to continue “in full force and effect, without resorting to strike or lock-out, all the terms of the existing contract” for sixty days after notification or until the end of the contract, whichever was later. Paragraph (d) also gives management a new weapon. Any worker who engages in a strike during the sixty-day period loses his or her “status as an employee” and thus the right to use the services of the NLRB to complain about an unfair labor practice or to vote in an NLRB election. In the event that workers are rehired by the employer, they regain their status.

Section 101:9—Representatives and Elections

In keeping with the emphasis on individual employees rather than on employees organized in unions, paragraph (a) states that an individual employee or group of employees can present grievances to the employer. They could also have the grievances “adjusted, without the intervention of the bargaining representative” as long as the adjustment does not contradict a collective bargaining agreement provision. A bargaining representative has a right to be present, but the paragraph forbids his or her “intervention” in the handling of the grievance.

Paragraph (b) gives special rights to professionals and craft workers. The NLRB is required to give those groups of employees separate elections unless the majority of them opt to be part of a larger bargaining unit. The craft-unit provision met a long-standing goal of the American Federation of Labor (AFL). The NLRB was prohibited, on the other hand, from including plant guards in the same bargaining unit with other employees and from certifying a union that included plant guards and other employees alike as members. Although they are not excluded from coverage under the law, plant guard unions are segregated from the rest of the labor movement.

In eliminating the option of a prehearing election, which the NLRB had been using effectively, paragraph (c) continues the emphasis on litigation rather than quick resolution of representation issues. This paragraph also establishes a one-year minimum period between representation elections. The NLRB had established a one-year rule for a new election when a union was certified or a contract was in place. Under the new law, it loses the discretion of ordering a second election when there is clear evidence that employee opinion has changed. Millis commented that the drafters of the new law thought “the right of collective bargaining … was of less importance than the right not to bargain and the desirability of avoiding agitation” (Millis and Brown, pp. 517–518). The most startling changes introduced by paragraph (c) give employers the right to request a representation election and giving employees the right to seek an election to decertify a union. These procedures reverse the Wagner Act principles of support for the self-organization of employees and encouragement of collective bargaining.

In a major intrusion into internal union affairs, paragraphs (f) and (g) require local, national, and international unions wishing access to the NLRB to file their constitution, bylaws, membership requirements, and financial reports with the secretary of labor. A union failing to file the specified documents cannot be certified. Under paragraph (h), unions lose access to the NLRB unless local, national, and international union officers file affidavits with the NLRB stating that they are not members of the “Communist Party or affiliated with such party” and do not “believe in” or support any organization that “believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.” The paragraph further states that criminal sanctions apply for filing a false affidavit: a fine of $10,000 or ten years in prison or both.

The non-Communist affidavit provision, adopted in the context of the developing cold war, proved especially important. Along with Truman's Loyalty Program for federal employees, the House Un-American Activities Committee investigations of Communism, the Justice Department's prosecution of the leaders of the Communist Party, and blacklisting by many industries, the non-Communist affidavits were one of the central pillars of the architecture of the domestic side of U.S. policy in the cold war, the Red scare. Initially, however, labor leaders of various political persuasions opposed the non-Communist affidavit requirement as a violation of civil liberties that impugned their loyalty and was discriminatory, since there was no such requirement imposed on management. Unions condemned the Taft-Hartley Act as a whole, and many initially boycotted the filing requirements. Once some unions began to comply, noncomplying unions were in a vulnerable position, since they could not appear on election ballots. Even Communist-led unions eventually felt the need to comply. Communists who were union officers sometimes resigned from union leadership, occasionally resigned from the Communist Party, and at times were prosecuted for filing false affidavits.

Paragraphs 9 (f), (g), and (h) were replaced by new provisions regulating internal union conduct in the Landrum-Griffin Act of 1959. Section 504 of the latter act made it a crime for members of the Communist Party and those who had been members in the previous five years from serving as union officers. The initial legal protest of the non-Communist affidavit requirement of Taft-Hartley failed in 1950 when the Supreme Court, in a 4-to-1 decision (with one abstention), sanctioned them in American Communications Association v. Douds, 339 U.S. 382 (1950). The Supreme Court struck down the Landrum-Griffin regulation as an unconstitutional bill of attainder—a legislative punishment of an individual or group—in United States v. Brown 381 U.S. 437 (1965).

Section 101:10—Prevention of Unfair Labor Practices

Section 10 (b) was amended to disallow filing of complaints when more than six months had elapsed from the date of the unfair labor practice and to provide that NLRB proceedings use the “rules of evidence” applicable in federal district courts. Note, however, that the free speech provision in Section 8 (c) prevents the board from considering employer statements as evidence.

While the Wagner Act granted the NLRB authority to seek injunctions to enforce its orders, Section 10 (j) expands that power by permitting the agency to seek an injunction when it issues a complaint. An even more important change provided for by Section 10 (l) is a mandatory injunction provision in cases of alleged violations of Section 8 (b) (4) (A) (B) and (C) (secondary boycotts, jurisdictional strikes, and strikes to force recognition by another employer of an uncertified union). The “preliminary investigation of such charge” must be immediate and “given priority over all other cases except cases of like character.” Once the NLRB general counsel decides that a complaint is warranted, he or she is required to seek an injunction to stop the violation. Courts may issue injunctions without regard to “any other provision of law,” thereby ending the protection against injunctions established by the Norris-LaGuardia Act. Two qualifications are added: The petition must allege that there will be “substantial or irreparable injury to the charging party,” and the temporary restraining order shall be for a period of no more than five days.

Section 101:11 and 12—Investigatory Powers

The Wagner Act had granted any NLRB member the power to issue subpoenas relevant to “any matter under investigation or in question before the Board” (http://www.ourdocuments.gov/doc.php?doc=67&page=transcript). This provision was deleted. The NLRB is now required to issue subpoenas “upon application of any party” rather than by its own initiative and at its own discretion.

Section 101:13–14—Limitations

Section 13 qualifies the Wagner Act affirmation of the right to strike: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualification on that right.” (Taft-Hartley additions are in bold.) The act contains several restrictions on the right to strike. The purpose of the latter phrase in the sentence is to ensure that limitations that other legislation, such as the Railway Labor Act, placed on the right to strike are not challenged.

New to the 1947 act is a statement in Section 14 (a) that supervisors have a right to belong to unions. This affirmation is coupled, though, with the statement that employers covered by the act do not have to recognize supervisors as employees for the purpose of collective bargaining under any local, state, or national laws. The exclusion of supervisors from coverage under the act in Section 2 (3) is extended to prevent local and state laws from granting them collective bargaining rights.

One of the most important and controversial provisions of the Taft-Hartley Act is Section 14 (b), the so-called “right to work” provision: “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” A few states had passed laws against union and closed-shop agreements, and many more would do so with the green light given by this section. Allowing a significant diminution of union rights in antilabor states subverted the existing uniform national labor policy. It also encouraged campaigns to enact such restrictive laws in conservative states and efforts by those states to attract runaway shops from states where unions were not so restricted. In 2007 laws or constitutional amendments barred union shop contract provisions in twenty-three states.

Title II: Conciliation of Labor Disputes and National Emergencies

Section 202 creates the independent Federal Mediation and Conciliation Service (FMCS) to replace the Conciliation Service in the Department of Labor. The drafters of the Taft-Hartley Act felt that as long as the service remained in the Department of Labor, it would tilt in a pro-labor direction, limiting its effectiveness as a mediator. Critics thought the decision failed to recognize the effective mediating role played by the old agency and saw the move as weakening the Department of Labor. The new agency is to take over the staff and records of the old agency. The president appoints the director with the advice and consent of the Senate; a National Labor-Management Panel advises the director.

Section 203 directs the FMCS to avoid mediating disputes having a minor impact on commerce. If the FMCS is unable to “bring the parties to agreement … within a reasonable time,” it “shall seek to induce the parties” to find other means of resolving their dispute without resorting to a strike or lockout, “including submission to the employees in the bargaining unit of the employer's last offer of settlement for approval or rejection in a secret ballot.” There is no recommendation for a vote by a corporation board of directors on the union's last best offer. Based on the theory that union leaders are sometimes unrepresentative, the recommendation is another example of interference in union internal affairs.

Sections 206 to 210 govern disputes deemed national emergencies. Government operation of the coal mines, authorized by Truman under terms of the War Labor Disputes Act in response to a coal strike in May 1946, was scheduled to end on June 30, 1947, with the expiration of the wartime legislation. The authors of Taft-Hartley sought to establish a permanent mechanism for preventing stoppages in critical industries. If the president believes a strike or lockout would “imperil the national health or safety,” he or she “may appoint a board of inquiry” to look into the facts and make a report, without recommendations, to the president, who “shall” file it with the FMCS and “make its contents available to the public” (Section 206). This provision is similar to a proposal Truman made for a fact-finding procedure in nationally important disputes on December 3, 1945.

Section 208 gives the president the power to direct the attorney general to seek court injunctions to “enjoin” a strike or lockout in such disputes. When such an order has been issued, the parties have a “duty … to make every effort to adjust and settle their differences” with the aid of the FMCS, but they are not obligated to accept any FMCS proposal, according to Section 209 (a). If the enjoined dispute is not settled at the end of sixty days, the board of inquiry reports to the president on the current state of negotiations and includes in the report a statement of the current position of each party and the employer's “last offer of settlement.” The NLRB then conducts an election within fifteen days “of the employees of each employer involved in the dispute” on their employer's final offer and certifies the results to the attorney general, according to Section 209 (b).

Section 210 provides for the termination of the injunction upon settlement of the dispute or certification of the election and for a presidential report to Congress on the dispute “together with such recommendations as he may see fit to make for consideration and appropriate action.” Section 208 (b) states that the Norris-LaGuardia restrictions on injunctions are not applicable, but, according to Section 208 (c), the writs may be appealed to circuit courts of appeal and the Supreme Court.

Title III

Section 301 provides for lawsuits against unions for contract breaches. Paragraph (b) provides for suits “in behalf of the employees whom it represents” but states that judgments are not enforceable against individual members. Some state laws had allowed for judgments against individuals, as had occurred in the Danbury Hatters' case of 1908 (Loewe v. Lawlor). Paragraph (e) makes the union liable for the act of its agents even if it does not know in advance about the acts and does not approve of them after they occur.

Section 302 (a) and (b) prohibits and provides criminal penalties for payments or acceptance of payments of “any money or other thing of value” by employers to employees. Exceptions are provided for compensation for services, arbitration awards, satisfying court judgments, and sales of commodities.

Section 302 (c) (4) provides that employers may send dues payments to unions under checkoff provisions, provided that each individual has authorized the payment and the authorizations are annually renewed. Automatic dues checkoff provisions in contracts covering more than three million workers would no longer be permitted after July 1, 1948. Section 302 also regulates health and welfare funds that were becoming an important feature of collective bargaining contracts. In place of the diverse forms of administration agreed upon by the parties, the act requires that funds be jointly administered by employer and union, with provisions included for breaking deadlocks by resort to a third party. Pension funds are to be kept separate from other funds.

Section 302 (d) provides for criminal penalties for anyone “willfully” violating this section of the law. Paragraph 302 (e) provides for court enforcement of the provisions of this section “without regard to” the exemptions from injunctions against unions in the Clayton and Norris-LaGuardia acts.

Section 303 provides the right of any private party injured “in his business or property” by a secondary boycott, pressure to recognize a noncertified union, or jurisdictional disputes to sue to recover damages.

Section 304 amends the Corrupt Practices Act to prohibit political contributions and expenditures by unions in federal elections and in primaries, caucuses, and conventions to select federal candidates. In the Senate debate over the bill, Taft stated that unions would be forbidden from commenting on candidates in their newspapers, in a pamphlet, or in a radio broadcast. The CIO was able to win a Supreme Court decision—United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948)—allowing its newspaper to report the endorsement of a federal candidate by CIO President Murray but was unable to overturn the general restriction on the political expenditure of union funds. As a result, union engagement in political activity has been based on collecting contributions from members rather than expending general union funds.

Although Section 2 of the act continues the Wagner Act exclusion of federal and state governments from the law's provisions, Section 305 forbids individuals employed by the federal government or by “wholly owned Government corporations” from taking strike action. Strikers “shall be discharged immediately,” lose their civil service status, and become ineligible for reemployment for three years. Section 305 was repealed in 1955 and replaced with Public Law 330 which “made it a felony for federal workers to strike, assert the right to strike, or belong to an organization that asserts such rights” (Halpern, p. 82).