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How Did the Taft-Hartley Act Come About?

The Taft-Hartley Act was a major revision of the National Labor Relations Act of 1935 (the Wagner Act) and represented the first major revision of a New Deal act passed by a post-war Congress. So, in order to understand the Taft-Hartley Act, one must begin with the Wagner Act. The Wagner Act was the most important labor law in American history. It gave a major impetus to labor organizations and earned the nickname "labor's bill of rights." It covered all firms and employees in activities affecting interstate commerce except government employees, agricultural workers, and those subject to the Railway Labor Act. It gave workers the right to organize and join labor unions, to bargain collectively through representatives of their own choosing, and to strike. It also set up the National Labor Relations Board (NLRB), an independent federal agency with three members appointed by the president, to administer the act and gave it the power to certify that a union represented a particular group of employees.

The Wagner Act also forbade employers from engaging in five types of labor practices: interfering with or restraining employees exercising their right to organize and bargain collectively; attempting to dominate or influence a labor union; refusing to bargain collectively and in "good faith" with unions representing their employees; and, finally, encouraging or discouraging union membership through any special conditions of employment or through discrimination against union or non-union members in hiring. This last provision, in effect, permitted closed and union shops (a closed shop is when an employer agrees to hire only union members and a union shop is when an employer agrees to require anyone hired to join the union). There were no provisions in the Wagner Act that prohibited union practices that Congress might deem unfair. Another omission, according to the act's opponents, was a provision that would allow the government to delay or block a strike that threatened national interests.

In the mid-term elections of 1946, the Republican Party won control of the upcoming Eightieth Congress, gaining majorities in both houses for the first time since 1931. The "Class of 1946," as the first-term Republicans were called, was dominated by members of the conservative "old guard": John Bricker of Ohio, William Jenner of Indiana, William Knowland of California, George Malone of Nevada, Joseph McCarthy of Wisconsin, Arthur Watkins of Utah, John Williams of Delaware, Richard Nixon of California, Karl Mundt of South Dakota, and Charles Kersten of Wisconsin. These freshmen congressmen were eager to overturn as much New Deal legislation as possible and one of their first priorities was to amend the Wagner Act.

On June 23, 1947, the Republican-controlled Congress passed, over President Truman's veto, the Labor-Management Relations Act of 1947 (The Taft-Hartley Act, co-sponsored by Republican Senators Robert Taft of Ohio and Fred Hartley of New Jersey). The Taft-Hartley Act retained the features of the earlier Wagner Act but added to it in ways widely interpreted as anti-labor. Labor leaders dubbed it a "slave labor" bill and twenty-eight Democratic members of Congress declared it a "new guarantee of industrial slavery."

The act allowed the president, when he believed that a strike would endanger national health or safety, to appoint a board of inquiry to investigate the dispute. After receiving the report of the investigation, the president could ask the Attorney General to seek a federal court injunction to block or prevent the continuation of the strike. If the court found that the strike was endangering the nation's health or safety it would grant the injunction, requiring the parties in the dispute to attempt to settle their differences within the next sixty days. Other provisions extended the negotiating period by twenty days, in effect creating an eighty-day "cooling off" period during which the law would prohibit a "national emergency strike."

To the Wagner Act's list of prohibited management practices, the Taft-Hartley Act added a list of prohibited labor union practices. These practices included secondary boycotts (when a union induces employees to strike against their employer to get him or her to stop doing business with another employer with whom the real dispute exists); sympathy strikes or boycotts (attempting to compel an employer, other than one's own, to recognize or bargain with an unrecognized union--a practice anti-labor groups often called "blackmail picketing"); and jurisdictional strikes and boycotts (attempting to force an employer to give work to members of one particular union instead of another). Also outlawed were the closed shop and union hiring halls that discriminated against non-union members. The law allowed union shops as long as state law did not forbid them. This led to movements in several states for the passage of so-called "right-to-work" laws. Another provision that would become contentious required all union officers to file a non-communist affidavit and take an oath that they were not communists.

During the Eisenhower administration, labor policy debate centered on amending the Taft-Hartley Act. Eisenhower did not favor repeal of the act as organized labor advocated, but he did feel that some of its provisions were too harsh and needed amending. In his final years, Senator Taft had come to share these views. Early efforts to amend the act failed, however, and by the mid 1950s the motivation to do so had waned. Historian R. Alton Lee, in his book on the topic, concluded that "urgency for amending Taft-Hartley waned during the 1950s because it did not become the slave labor law union leaders predicted. Continued prosperity calmed fears that the law would adversely affect wages, hours, and working conditions, and labor-management relations steadily improved in most parts of the nation."

Presidents have invoked the Taft-Hartley Act thirty-five times in attempts to halt work stoppages in labor disputes. All but two of those attempts were successful. The most recent attempt, however, was in 1978 when President Jimmy Carter attempted to use the law to end a coal strike, but the courts refused to issue an injunction. The last successful attempt was in 1971 when President Nixon invoked the law to end a longshoremen's strike. The Taft-Hartley Act's eighty-day "cooling off" period has been enough time for the dispute to be settled 70% of the time.

On October 7, an attempt by Labor Secretary Elaine L. Chao to negotiate a thirty-day contract extension between port operators and the International Longshore Warehouse Union broke down. Port operators rejected the contract extension, believing that it would result in a work slow down, which they claim precipitated their lockout of the longshoremen. The union accepted the contract extension, and claimed the port operators were seeking government intervention.

Hours after the breakdown in negotiations, President Bush took the first step toward invoking Taft-Hartley by appointing the required board of inquiry to report to him on the economic damage of the shutdown and the likelihood that the parties involved could settle the dispute on their own. The board reported back to the president the following day, October 8, stating that they had "no confidence that the parties [would] resolve the West Coast port dispute within a reasonable time." President Bush then requested that the Federal District Court in San Francisco issue a court order halting the lockout.

As justification for invoking the act, President Bush said that he was worried about the movement of military supplies through West Coast ports in the event of war in Iraq or elsewhere. His aides, meanwhile, stressed the President's fear that a prolonged shutdown would undermine the nation's economic recovery (economists have estimated that the shutdown has already cost more than $10 billion). Later that evening Judge William Alsup issued a temporary injunction that ordered the ports reopened immediately. Judge Alsup said he would hold a hearing this week on whether to grant a full 80-day injunction.