You can find a couple of articles in Unit’s Guide breaking down the passage of the half dozen landmark pieces of U.S. labor legislation, which are “older than most Americans” as one writer put it.

While it’s true there have been very few Congressional changes in the 80+ year history of the National Labor Relations Board (NLRB), the courts have become the deciding force when it comes to clarifying, modernizing, strengthening, and weakening workers’ rights. For sometimes better and for other times worse, decisions made by the Supreme Court of the United States (SCOTUS) have greatly shaped the nation’s labor movement.

No one expects you to comb through the decades of annual reports put out by the NLRB, but with the help of Unit’s legal advisor, we’ve put together a brief rundown of 10 crucial SCOTUS rulings.

Our overworked Supreme Court by J. Keppler. Care of: U.S. Library of Congress

Decisions, Decisions, Decisions!

1. NLRB v. Fansteel Metallurgical Corp. - 1939
In February of 1937, the Steel Worker Organizing Committee (SWOC) took action in response to a series of unfair labor practices committed by the management of the Fansteel Metallurgical Corporation. SWOC organized a sit-down strike during which workers occupied two company buildings. Management retaliated that day and fired every worker on site, but the union decided to continue striking and went on to file grievances with the NLRB. The NLRB moved to reinstate the fired workers, but through legal challenges that wound up in front of SCOTUS, this Board's decision would later be reversed. NLRB v. Fansteel Metallurgical Corp. found that the right to hold a sit-down strike is not protected under U.S. law.

2. Republic Aviation Corp. v. NLRB - 1945
The Republic Aviation Corporation had a longstanding policy; "soliciting of any type cannot be permitted in the factory or offices." When management found a union organizer was handing out membership application cards while wearing a union button during his lunch break, management fired him. After a complaint of employer retaliation was filed through the NLRB, the Board reinstated the worker, a decision that was later upheld by SCOTUS. Republic Aviation Corp. v. NLRB upheld a worker’s right to campaign for a union at their job in non-working areas and during non-work hours.

3. The Steelworkers Trilogy - 1960
The Steelworkers Trilogy was a series of cases—Steelworkers v. American Manufacturing Co., Steelworkers v. Warrior & Gulf Navigation Co., and Steelworkers v. Enterprise Wheel & Car Corp.—that dealt with legal statutes concerning arbitration, the process in which a third party is needed to solve a disagreement between a union and management. According to the University of Missouri Law School, the Steelworkers Trilogy settled the following aspects of arbitration. They determined:

  • A party can only be compelled to arbitrate if they signed a contract.
  • The court, not the arbitrator, decides whether or not a party agreed to participate, unless they can clearly prove otherwise.
  • The arbitrator, not the court, decides the claim based on the collective bargaining agreement, even if the claim contradicts what the court thinks.
  • If a union contract contains an arbitration clause, then the parties need to arbitrate if it comes to that. Arbitration cannot be denied unless the dispute isn’t covered under the part of the contract that addresses arbitration circumstances. If the contract is vague on the dispute in question, the benefit of the doubt is given and the issue will go to arbitration.

4. NLRB v. Washington Aluminum Co. - 1962
With a high of 22 degrees, January 5, 1959 was a particularly cold day in Baltimore, Md. Workers arrived for the morning shift at Washington Aluminum's plant and found the heater was not working. All but one left due to the poor conditions in the facility. Later that morning, the company president terminated the workers who left the job, but the NLRB soon reinstated them, finding Washington Aluminum to have committed an unfair labor practice. SCOTUS later backed up the Board’s decision. NLRB v. Washington Aluminum Co. clarified that non-union workers have the right to engage in concerted protected activities, like strikes or walkouts, and cannot not be punished or discharged for doing so.

5. NLRB v. Gissel Packing Co., Inc. - 1969
After four NLRB rulings found employers in violation of U.S. law for refusing to recognize unions certified by the Board and who committed unfair labor practices, SCOTUS weighed in on the extent of the Board’s power to offer unions a remedy. NLRB v. Gissel Packing Co., Inc. allows the Board to order bosses to bargain with unions, including those that lost elections, as a remedy when management commits serious violations that make the ability to hold a fair election unlikely.

via GIPHY

(Above) Ginger, voiced by Julia Swatha, agitates for the chickens in the henhouse to work together for their survival in the 2000 animated film “Chicken Run.”

6. NLRB v. J. Weingarten, Inc. - 1975
A decision whose legacy lives on as “Weingarten rights” in the labor world, the case first stemmed from creepy surveillance practices employed by Weingarten Inc., which owned a fast food chain in the 1970s. After Weingarten salesperson Leura Collins was accused of taking more food than was permitted under a loosely defined free meal policy offered to employees, she underwent a series of investigatory interviews from management and a secretive several-day surveillance campaign.

The company accused her of stealing $160 worth of food and demanded she sign a piece of paper acknowledging it. When she repeatedly asked for her union representation during these meetings she was denied it. After Collins’ union, the Retail Clerks Union, brought a grievance to the NLRB, the Board found that Weingarten violated her rights by denying her union representation. SCOTUS agreed in a subsequent legal challenge. NLRB v J. Weingarten, Inc. gives workers the right to union representation during an interview that the employee reasonably believes could lead to discipline.

7. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council - 1988
The Edward J. DeBartolo Corporation (Debartolo) owned a shopping mall in Florida. A tenant of theirs, the H.J. Wilson Company (Wilson), sought to build its department store with a construction company currently in a wage dispute with a local union, Gulf Coast Building & Construction Trades Council (Gulf Coast). Members of Gulf Coast began handing out flyers to shoppers calling for a boycott of the mall because Wilson hired nonunion workers to do the job. Debartolo accused the workers of committing an unfair labor practice in targeting the entire mall in their organizing efforts, but both the NLRB and SCOTUS felt differently. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council established the right of workers and unions to engage in free speech activities against a secondary target.

8. Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc. - 1993
Otherwise known as the Boston Harbor Case, the court battle stems from a need to clean pollution in the bay near Boston, Mass. After the Massachusetts Water Resources Authority (a governmental agency) was ordered to clean up the dirty water, the state agency hired Kaiser Engineers Inc. In response to a contract offer from the state that required them to keep within the terms of a pre-existing collective bargaining agreement Massachusetts had with the Building and Construction Trades Council, Kaiser sued to get out of having to abide by the union's terms. In the end, SCOTUS sided with the Building and Construction Trades Council. Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc. allowed government agencies to require that public construction be done by unionized companies on specific projects.

9. Hoffman Plastic Compounds v. NLRB - 2002
Hoffman Plastics hired Jose Castro believing he was a citizen of the United States. The company found out he was helping to organize a union and decided to lay him off. A complaint was brought to the NLRB and the Board ordered back pay to be delivered to Castro as a remedy. A legal battle ensued, SCOTUS got involved, and unfortunately the Courts sided with Hoffman Plastics. Hoffman Plastic Compounds v. NLRB denied the Board the ability to offer backpay to undocumented workers in NLRB cases.

10. Janus v. AFSCME - 2018
An employee of the Illinois Department of Healthcare and Family Services was not a member of the American Federation of State, County and Municipal Employees (AFSCME), but because the union negotiated contracts on behalf of all department employees, the union required him to pitch in for bargaining-related costs. According to The Atlantic, Janus sued, arguing “that his union’s attempts to negotiate on behalf of him did not take into account the fiscal crises in Illinois; he basically disagreed with the union’s position in trying to negotiate for higher wages and benefits.” The case found its way up to SCOTUS, which sided with him. Janus v. AFSCME shut off a crucial source of revenue for unions that represent government workers: mandatory fees collected from union non members to cover their share of collective bargaining costs.

So, what do I do with this information?

Each of these cases and countless others both benefit and harm the labor movement. As Presidential administrations have come and gone, so too have NLRB members who represent a wide range of views on the ideological spectrum. While there remains a degree of hope for a more worker friendly Board under the Biden administration, the Supreme Court’s another story altogether. Case in point: this is no time to sit back and assume the system will sort itself out in favor of working people.

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“Don't beg for your rights. Organize and take them.”

-U.S. Senator Ed Markey (D-Mass.)