TAFT-HARTLEY: A LEGAL ANALYSIS
FORKOSCH, MORRIS D.
TAFT-HARTLEY: A Legal Analysis By MORRIS D. FORKOSCH {First of two articles.) THE ACTIVITIES of John L. Lewis, and the tensions caused in our interdependent economic system by coal and other...
...In the first type of injunction, the board can petition for, and the Court of Appeals can issue an order for enforcement, as well as for an injunction...
...Sees...
...WHO PROCESSES and, in the name of the NLRB, makes and prefers charges concerning representation or a complaint of an unfair labor practice...
...in respect of the investigation of charges and issuance of complaints under Section 10...
...A specialist In labor law, he hat written articles on the subject for the New York Law Journal and other professional publications...
...The agency must go to a Federal Court of Appeals to obtain a judicial order compelling the employer to obey its order...
...Now, the National Labor Relations Board generally conducts two types of hearings — the representation and the complaint types...
...Upon receiving a factual report from hiS fact finding board, the President "may direct the Attorney-General to petition any district court...
...The injunction has been issued, and here a series of time limitations enter into the picture .for the first tunc...
...By this time our minute hand, which began its movement at twelve o'clock (Congressional passage of Taft-Hartley), has moved in a complete circle, and the entire matter has been-dumped back into its lap, it being up to Congress to rnake the next move in the threatened or actual strike or lockout in progress...
...206-210 cover the famous "national health or safety" injunction which the President may use under certain conditions...
...Once he does issue a complaint, however, he acts as the attorney who presents the case to the board, analogous to a district attorney who investigates and presents evidence to a grand jury...
...Whereas the President's fact-finding board reported and then dissolved, and the Attorney-General had to wait until the President directed him to petition for an injunction, once the injunction is issued the President must reconvene his original board...
...If the General Counsel "has reasonable cause to believe such charge is true and that a complaint should be issued, he shall [petition any District Court] for appropriate injunctive relief pending the final adjudication of the board...
...the vote taken in less than fifteen...
...Lastly, whether the threat to a substantial part of an industry "will, if permitted to occur" or result in a strike, "imperil the national health or safety," is also left to the President to decide...
...For violation of this court (not board) order, the court (not board) may punish the employer for contempt of the court (not board) upon the board's petition therefor...
...3. To pull a strike in an effort to force an employer to recognize a particular labor union v in a case where another union has already been certified by the NLRB...
...The results of this vote are to be certified to the Attorney-General within five days after the vote...
...Can the board punish the employer...
...It works out like this: Congress has given the President authority, whenever in his opinion certain conditions prevail, to appoint a board of inquiry...
...201-20S of the Act create a Federal "Mediation and Conciliation Service (of which Cyrus Ching is director), and a National Labor-Management Panel of twelve Presidential appointees who aid the director at his request...
...The first concerns the question of who is to be collective bargaining representative of the employees...
...Whereupon the President submits to Congress a full report of everything, together with his own recommendations for congressional action...
...Also, only a "substantial part" of, and not an entire industry, need be so "threatened"—and here again the President readers sole judgment on whether action is necessary...
...10 (e) of the amended Wagner Act, Sec...
...In addition, the District Court may immediately issue a preliminary, temporary restraining order, good for no more than Ave days, provided substantial and irreparable injury will otherwise result...
...Only the Government, acting through designated officials, may petition inland obtain an injunction...
...This to his first appearance In The New Leader...
...THE FOURTH TYPE of injuftctiln obtainable under Taft-Hartley cone/earns, not the NLRB, but the office of the President of the United States...
...The answer is, no power is invested in any board or agency to punish anyone directly...
...But actually, four types of injunctions are obtainable under the Act, and none of these can be obtained by a private individual or corporation...
...The court, however, can issue an injunction only if persuaded by the President, on the basis of the findings of his board, that a factual situation like that described above really exists...
...3 (d), a "General Counsel of the Board" is created who exercises general supervision over all attorneys and has "final authority...
...Sees...
...This appointment is not mandatory, but permissive...
...WE HAVE BEEN TALKING about unfair labor practices which come under Sees...
...4. To strike to get work for union members which the employer has already given to another union's members...
...Now under Sec...
...THE ACTIVITIES of John L. Lewis, and the tensions caused in our interdependent economic system by coal and other labor disputes, have once more focused attention upon the Taft-Hartley Act and its injunction provisions...
...The theory and procedure are extremely simple to follow...
...If the court, upon entertaining the petition, finds that an entire or substantial part of an industry is so affected, and that the national health or safety is imperiled, it has the authority to issue an injunction...
...to enjoin such (threatened) strike or lockout or the continuing thereof...
...The minute hand continues to move...
...The second concerns unfair labor pjraetices committed by an employer or union (Sec...
...This independent Counsel does not make any final decision on any unfair labor practice charge, but initially investigates and determines whether or not to issue a formal complaint...
...Within fifteen days after the board's second report, the NLRB must conduct a secret ballot of the employees involved in the dispute, to decide whether or not they wish td accept the final offer of settlement made by their employer...
...The first type of injunction is found under Sec...
...It is an unfair labor practice: 1. To compel any employer to join a labor or employer organization, or to force any employer into a secondary boycott (i.e., strike against an employer to coerce him to stop doing business with a second employer who is having labor trouble...
...Assuming the General Counsel's investigations result in the issuance of an unfair labor practice charge, then under Sec...
...2. To force any other employer to recognize an uncertified union as the bargaining agent of that other employer's workers...
...AT THIS POINT we have moved slightly around the clock-face...
...This is the procedure that was invoked against Lewis and the Mine Workers Union...
...Immediately upon receiving the certification the Attorney-General must request the court to discharge the injunction...
...10 of the Taft-Hartley Act...
...There is no exception to this limitation...
...Morris D. Forkoaeh, Professor of Law at Brooklyn Law School, was a prosecutor in the war crimes trial* in Japan...
...10 (j), and regardless of the ultimate holding of the board, power is given to petition immediately any Federal District Court "for appropriate temporary relief or restraining order...
...Most people, when discussing Taft-Hartley, have in mind chiefly its "national health and safety" injunction clause...
...The NLRB thereupon petitions the Federal Court of Appeals, under Sec...
...Since the five-day restraining order is ordinarily followed immediately by the injunction, and since the Act gives priority only to the General Counsel's investigations, an injunction of this— the third—type can remain in force for years while the unfair labor practice charges languish unheard and undecided...
...Eventually, the hand completes a full circle...
...If we add these three time limits we get a total of eighty days at most that an injunction may remain in effect: the board may act within less than sixty days...
...and the certification given in less than five...
...Suppose a union complaint is sustained, the employer adjudged to have committed an unfair labor practice, and the-NLRB orders the employer to cease and desist committing (he act—-but the employer ignores the Board's order...
...But what is an "unfair labor practice...
...i.e., the President "may" appoint the board, so that if the facts do exist he need not act The President's opinion, however, is based upon a "threatened or actual strike or lockout affecting an entire (interstate) industry or a substantial part thereof which, "if permitted to occur or to continue (will) imperil the national health or safety...
...in the second type the enforcement order is omitted (since the NLRB has not yet made any order) and the District Court (not the Court of Appeals, which is superior to the District Court) is made the issuing court for the injunction...
...Under Sec...
...8 (a) and 8 (b) of the Taft-Hartley Act, the first relating to employer and the second to union practices...
...In this he is all-powerful, cannot be restrained or directed by the board, and cannot be stayed by the courts in issuing a complaint...
...10, Subdivision 1, a charge of a union unfair labor practice of types 1, 2 or 3 above is given priority over all other charges insofar as the preliminary investigation is concerned...
...The board must then report to the President within sixty days from the date of issuance of the injunction, the report again remaining confined to factual statements, and made available to the public...
...Imagine a clock-face with twelve, the top figure, representing Congress — whicli passed Taft-Hartley — and the minute hand representing the Congressional scheme for handling a situation involving "national health or safety," as it unfolds...
...This is the second type of injunction possible under Taft-Hartley...
...10 (1) of the TaftHartley Act in its entirety...
...10 (a) of the TaftHartley Act gives the NLRB power "to prevent any person from engaging in" unfair labor practices...
...It should be noted that an actual employee strike or employer lockout need not be in progress but merely "threatened"—the President's opinion alone determines whether either is grounds for action...
...The famed Norris-LaGuardia Anti-Injunction Act of 1932,^which prevents federal courts from issuing injunctions in labor disputes unless certain procedures are followed, 'is expressly not a limitation on the court's injunttive powers under Sec...
...10 (e), "for the enforcement of such order and for appropriate temporary relief or restraining order"—in plain English, an injunction — and the court "[grants] such temporary relief or restraining order as it deems just and proper...
Vol. 33 • March 1950 • No. 11
