With Labor Day approaching, it seems like a good time to offer my take on the ten most significant labor law decisions.  As with any top ten list, this one is highly subjective, and somewhat arbitrary, recalling Justice Frankfurter’s words about “the drawing of lines more nice than obvious.”  These decisions, a mix of good and bad, have had the biggest impact in shaping the labor law we have today.  Here they are in chronological order:

1.  NLRB v. Jones & Laughlin Steel Corp. (1937):  By a five to four vote, the Supreme Court rejected the argument that the National Labor Relations Act was unconstitutional.  This opinion made the others on this list possible, and the NLRA’s constitutionality was not seriously questioned again until the Roberts Court escalated its attack on administrative agencies.

2.  NLRB v. Mackay Radio(1938):  Congress did not decide that employers should have the right to permanently replace strikers.  But, in this case, when an employer refused to recall prominent union activists at the end of a strike, the Supreme Court declared, without any analysis, that employers do not need to displace replacement workers when workers end their strike.  Thus, employers were given a powerful weapon — the right to permanently replace strikers.  No other decision has altered the balance of power between unions and employers as much.

3.  Thornhill v. Alabama (1940):  An Alabama law made it illegal to “go near or loiter about any place of lawful business for the purpose of or with the intention of influencing or inducing other persons not to buy from, deal with or be an employee of such place of business or to picket a place of lawful business for the purpose of impeding, interfering with or injuring such business.”  Byron Thornhill was convicted under this law for peacefully picketing an employer during a strike. The Supreme Court struck down the law, holding that “free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” The Court decided other First Amendment cases involving unions in the 1930s and 1940s, but this makes my top ten for its recognition that core labor activities like picketing cannot be banned entirely, and as the first of several failed attempts by southern states to use state law to undermine the NLRA.

4.  Steele v. Louisville & Nashville Railroad Co. (1944):  This case, which grew out of a shameful episode in labor history, was where the Supreme Court invented the duty of fair representation.  William Bestor Steele, was a Black man who worked as a railroad fireman in Alabama.  The union that represented firemen did not accept Black workers as members, and it entered into a contract that gave preferences to white workers over Black workers.  The Supreme Court held that by virtue of its status as the exclusive representative of the firemen, the union had a duty to fairly represent all workers.  This decision led to an entire body of judge-made law regarding the obligations that unions owe to workers they represent.

5.  Republic Aviation v. NLRB (1945):  This case is important for three reasons.  First, the Court recognized that Congress “left to the [NLRB] the work of applying the [NLRA’s] general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms.”  Second, the Court approved of the Board’s statement that “inconvenience or even some dislocation of property rights may be necessary in order to safeguard the right to collective bargaining.”  Finally, there is the specific holding that workers have a right to wear union insignia on the job and to hand out union leaflets on company property.

6.  NLRB v. Borg Warner Corp. (1958):  In this case Court held that the only mandatory subjects of bargaining are those that directly address “wages, hours, and other terms and conditions of employment,” and while unions and employers are free to make proposals on other matters, they may not insist upon them as a condition to any agreement.  This decision has shaped collective bargaining ever since.  The question of which subjects count as mandatory has been heavily litigated, and disputes often turn on whether a particular proposal is considered mandatory or permissive.

7.  H.K. Porter v. NLRB(1970):  Here, the Court held that even when the NLRB finds that an employer has bargained in bad faith, the Board may not impose a contract term as a remedy.  While the decision left open the possibility that the NLRB could order a monetary remedy for the refusal to bargain, the Board has not tried that approach. Instead the NLRB’s standard remedy for an employer’s refusal to bargain a first contract is simply a prospective order requiring the employer to bargain.  Needless to say, this toothless remedy has emboldened many employers to flout their obligation to bargain.

8.  Lodge 76, Int’l. Assn. of Machinists v. Wisc. Emp. Relations Comm.(1976):  This case significantly expanded the scope of federal labor law preemption.  Here, workers engaged in a concerted refusal to work overtime that was neither protected nor prohibited by the NLRA.  Even though their employer could have fired the workers, the Court held that the NLRA preempted a state labor agency from regulating the workers’ conduct.  The Court ruled that Congress intended certain activity to be left to the “free play of economic forces,” and thus immune from state action.  The Court later relied on Machinists to hold that a city may not terminate a taxi franchise in an effort to get the taxi company to reach an agreement with the drivers’ union, and to strike down a California law that prohibited employers from using State funds to “assist, promote, or deter” union organizing.

9.  DeBartolo Corp. v. Florida Gulf Coast Trades Council  (1988):  This case brought us Scabby the Rat.  The NLRA makes it illegal for unions to “threaten, coerce, or restrain” secondary employers – clients and other entities that don’t directly employ the workers, but have the power to resolve the conflict.  Here, in light of the First Amendment, the Court held that this provision does not restrict peaceful handbilling, and the ruling implicitly authorized the use of props.

10.  Epic Systems v. Lewis(2018):  For eighty years, the NLRB and the courts uniformly held that the NLRA protects the right to engage in collective litigation.  Despite this consensus, in this case the Court held that employers may force workers to resolve all their disputes in individual private arbitration proceedings by imposing “agreements” to arbitrate as a condition of employment.  While Congress has carved out an exception for sexual harassment claims, the Court’s rewriting of the NLRA had a huge impact, since two-thirds of large employers require their employees to submit all other disputes to individual arbitration.

It was hard to pare down this list.  I wanted to include NLRB v. Washington Aluminum, which I’ve written about here, but it just hasn’t had the same impact as these cases.  Then again, the appeal of top ten lists is that there are no right or wrong answers.