Sections 8 (b) (4) A and 10 (1) of the Labor management relations act of 1947; the secondary boycott and the mandatory injunction
Pollack, Edward Lewis
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The last six to seven decades have been marked by inconsistent attitudes on the part of the Federal Government in the field of labor. Beginning with the application of the Sherman Anti-trust Act against organized labor, federal attitude has vacillated. Concerted secondary activities on the part of unions which interfered with interstate commerce were held to be illegal under the Sherman Act. The Clayton Act was passed to exempt labor unions from the Anti-trust laws, but the Courts ruled, much to the chagrin of Samuel Gompers, that those who take part, in a labor dispute must be directly concerned. Thus one local could not appeal to another located elsewhere to aid them in a dispute. There was no additional federal labor legislation until the Norris - LaGuardia Act in 1932. By this time, Congress had gone through a complete change in attitude toward labor, no doubt accentuated by the Depression. As a result, the Norris - LaGuardia Act was passed, outlawing the use of the labor injunction except in special instances. This act as rapidly followed by the National Labor Relations Act of 1935. The import of the two acts was that "concerted activities" on the part of unions were permissible. Included in the provisions of the National Labor Relations Act (the Wagner Act) was a list of employer unfair labor practices. For the first time, employers could be held liable for certain acts in labor disputes. The pendulum of power had swung toward labor. Within a short time, voices were being raised in opposition to the Wagner Act. It was claimed that the Act was not equitable for it listed employer unfair labor practices while not listing employee unfair labor practices. It was also claimed that labor unions had economic power which was so great that it was destructive. After World War II, anti - union feeling was high because of the wave of post war strikes. Therefore, the new 80th Congress, passed in 1947, the omnibus Labor Management Relations Act commonly known as the Taft-Hartley Act. The Taft-Hartley Act was supposed to have amended the inequities of the Wagner Act. Included in the provisions of the Act is a list of employee unfair labor practices as well as a provision outlawing the secondary boycott. There is also a provision providing for the issuance of an injunction in case of "prima facie" violation of the boycott section. Congress, in passing the secondary boycott provision, wished to protect "neutrals" in industrial disputes, but in doing so weakened labor's power. In the simple type of secondary boycott case, in which there was no question as to the existence of the boycott, both the National Labor Relations Board and the Courts applied the proscription of Section 8 (b)(4)A, thus protect ing the secondary employer, the so-called "neutral." But the National Labor Relations Board and the Courts recognized that a union's lawful primary rights must be preserved. These rights, in connection with Section 8 (b) (4)A, are the rights to strike and picket the primary employer for legitimate ends as defined by Taft-Hartley. It was ruled in such cases as Pure Oil and others that primary action with secondary effects is permissible. By secondary effects, the National Labor Relations Board referred to cases in which a union would be conducting a lawful strike against a primary employer, but would affect secondary employers just as if they were being struck against. Recently, the Supreme Court of the United States exempted from the proscriptions of Section 8 (b)(4)A "hot cargo" clauses. The decision allows labor unions to have clauses written into their collective bargaining agreements to the effect that the employees of the employer could refuse to work on another employer's struck goods. Therefore, any union which has such an agreement can refuse to handle the primary employer's struck goods. The implication is that general ubiquity of such clauses will completely negate Section 8 (b) (4) A. But it is evident that protection of the "neutral" in industrial disputes has weakened labor. To what extent is not certain, for "hot cargo" clauses might very well provide a loophole for labor. The labor injunction, the use of which was effectively curtailed by the Norris-La Guardia Act, was reinstated by Section 10 (1) of the Taft-Hartley Act. The General Counsel of the National Labor Relations Board can petition a Federal District Court for an injunction for suspected violation of Section 8 (b) (4). If there is "prima facie" evidence to the effect that a secondary boycott exists, the court will issue an injunction to remain in effect until the National Labor Relations Board rules on the case. The success of a union varies inversely with the length of the injunction. This statement holds true for several reasons. First, injunctions are in effect on the average seven months. There have been some that have been in effect less than two months and some that have been in effect for more than two years. In many cases, unions have given up before the Board decision. The building unions, more than others, are most affected by injunctions of extended duration and it is in the building industry that one finds the most withdrawals. Threat of a lengthy injunction seems to be the best reason for the great incidence of withdrawals in the building industry. Secondly, the mandatory injunction restores the "status quo" which is the situation that existed before the labor dispute began. But the injunction, by restoring the original situation, prevents the union from taking any action whatsoever. If the dispute was over some immediate problem, then the union is defeated no matter what the later decision of the Board might be. If the dispute occurs in the construction industry, a lengthy injunction might allow the project to be finished without the dispute having been decided upon by the Board. Thus, in such cases, the belated decisions of the Board are of no concern to the union involved. We see then, that restoration of the ''status quo" works against the union. Thirdly, the General Counsel is affiliated with the National Labor Relations Board. When an employer petitions the General Counsel to go before a Federal District Court, he is attempting to enlist the aid of a person that has "the massive prestige of the United States Government behind him." Also, conclusive proof is not needed for issuance of an injunction. Therefore, the injunction procedure has been severely criticized by labor and pro-labor sympathizers. In summation, it can be said that Sections 8 (b)(4)A and 10 (1) of the Taft - Hartley Act have been instrumental in reversing the trend of increased labor power. Modifications of both sections have been suggestions by President Truman and President Eisenhower. If past events are any key to the future, then there will be a reveraal of governmental attitude once more.
Thesis (M.A.)--Boston University