Europe in Need of a New Deal: On Federalism, Free Market, and the Right to Strike

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C. The Right to Strike During the New Deal

By the mid-1930s, however, the Lochner-era doctrines were no longer tenable. (242) Although the U.S. Congress had already intervened during the early decades of the twentieth century in the regulation of labor relations in interstate industries, (243) the Great Depression had highlighted a need for much broader federal intervention in the economy. Pushed into power by a sweeping electoral victory, Franklin D. Roosevelt and his administration began a New Deal for the United States, enacting major pieces of social legislation. (244) According to the Administration, the resolution of the tensions between management and labor was a key ingredient for economic stabilization, and to this end, the legal rights of the unions had to be strengthened in order to ensure a workable system of collective bargaining. (245) In 1932, Congress enacted the Norris-La Guardia Act, (246) "which eliminated federal court jurisdiction to enforce yellow dog contracts (agreements not to join a union)," (247) and in 1933, Congress passed the National Industrial Recovery Act (NIRA), (248) which protected unions' rights to conclude collective agreements. In Schechter Poultry Corp. v. United States, (249) however, the Supreme Court invalidated the NIRA as an unconstitutional exercise of federal power, precipitating one of the most severe constitutional crises in U.S. history. As is well known, President Roosevelt threatened to change the composition of the Supreme Court through a "court-packing plan" (250) and, in response, Congress enacted a new statute, the National Labor Relations Act (NLRA, also known as the Wagner Act) (251) which largely resembled the NIRA. Eventually, in 1937 the Supreme Court made what is popularly called the "switch in time" and upheld the constitutionality, of the NLRA, (252) definitively sanctioning the constitutionality of the New Deal legislation. (253)

The NLIRA--also called the Wagner Act after its sponsor, Senator Robert Wagner--recognized a federal right for employees to organize trade unions and to engage in industrial action and prohibited employers from taking anti-union activities. As clarified in its opening provision, the NLRA found its legal basis in the Commerce Clause of the U.S. Constitution and was inspired by the goal of "promoting the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees." (254) Section 7(a) of the Act provided that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (255) Moreover, Section 13 affirmed that "[n]othing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike." (256) Finally, the NLRA set up a National Labor Relations Board (NLRB) (257) empowered to act as a mediator in industrial disputes, to investigate unfair labor practices, and to certify, representative unions for the purpose of collective bargaining in interstate industries.

As an exercise of Congress' power to regulate interstate commerce, the NLRA only applied to private firms operating in the nationwide market and excluded many employers and workers from coverage, including government employers, agricultural laborers, and domestic workers. (258) In the years immediately following the NLRA's enactment, however, many states adopted state labor relations acts. State laws were often modeled after the NLRA and extended the protection of the rights of labor organizations to intra-state industries. …


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