The Supreme Court on Unions

The Supreme Court on Unions: Why Labor Law is Failing American Workers, by Julius G. Getman (Ithaca, NY: Cornell University Press, 2016)

Professor Julius Getman casts a shining light on the role of the Supreme Court in weakening the effect of the National Labor Relations Act, a ninety-year-old statute once hailed as the “Magna Carta of labor.” 

Getman argues that the NLRA, already diminished by the Taft-Hartley Act, has had its effectiveness reduced by the Supreme Court which, he claims, has been historically hostile to the organizational rights of labor. His careful analysis of the Court’s cases supports his conclusion that it has “played a major role in transforming the NLRA from a law meant to empower workers to a law that helps to sustain the power of employers.”

Getman analyzes the Court’s decisions in areas including union organizing, collective bargaining, strikes, picketing and boycotts, and arbitration. He concludes that the Court’s “changing personnel [and] lack of labor relations experience” led to its “confusing, biased and inconsistent” interpretation of the law.  

The book presents a series of landmark cases supporting Getman’s arguments that the Court, in the areas presented, favors employers’ positions. For example, the Court permits “captive audience speeches” to assembled employees on company time but denies the union a “meaningful right of response.” (Our recent Commerford Awards honoree, former NLRB General Counsel Jennifer Abruzzo, sought to ban such meetings.)  The Supreme Court invariably favored property rights over access by union organizers to an employer’s shop. 

Getman also correctly blames cumbersome, lengthy Board procedures and sometimes nominal remedies as contributing to the lack of success of union organizing. The author notes that the lawful hire of permanent replacements for strikers with economic-based grievances is a “pernicious form of discrimination that discourages union membership in violation of the [Act].”

This is an important book which illuminates the shortcomings of the NLRA as exacerbated by the decisions of the Supreme Court. It may encourage efforts for reformed thinking in both institutions. 

Reviewed by Steven Davis, a member of the Executive Board of the New York Labor History Association and a retired Administrative Law Judge with the National Labor Relations Board.