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Abstract

Labor rights in countries with predominantly free market economies have generally passed through three stages--repression, tolerance, and recognition. In the United States, nineteenth-century state and federal governments repressed labor unions by making conduct, such as workers banding together for higher wages, subject to criminal penalty and civil liability. Courts paved the way for tolerating labor unions by overruling repressive precedents. By the early twentieth century, Congress followed suit by legislatively exempting unions from certain legal liabilities. In 1935, Congress enacted Section 7 of the National Labor Relations Act (NLRA), marking the first formal federal government recognition of employees' “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.” Technically, we are currently in an era of recognition. After examining the NLRA's seventy-five-year history, however, it is at least debatable whether labor rights in the United States have diverged from the repression-tolerance-recognition pattern. Notwithstanding the fundamentally progressive nature of Section 7, the protective power of the original NLRA, as enacted in 1935 (popularly called “the Wagner Act”), has been eroded by congressional amendments, coupled with successive interpretations of the courts and the National Labor Relations Board (hereinafter “the NLRB” or “the Board”)--the very agency tasked by Congress with protecting workers' rights. By weakening the NLRA's protective power, all three branches of the government have legally and economically disempowered unions and thus weakened their capacity to protect the working class. This Article focuses on several of the sixty-one decisions issued by the NLRB's five-member Board in September 2007 as well as a few of its other more controversial decisions. The labor community has come to regard the Board's September 2007 decisions as the “September Massacre.” The term “massacre” suggests an indiscriminate and instantaneous destruction of a large number of longstanding labor doctrines. But, on closer scrutiny, it becomes clear that many of the September decisions fit into a long history of legislative, administrative, and judicial cutbacks to the original NLRA.

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