With Labor Day approaching, it seems like a good time to offer my take on the ten most significant labor law decisions. As with any top ten list, this one is highly subjective, and somewhat arbitrary, recalling Justice Frankfurter’s words about “the drawing of lines more nice than obvious.” These decisions, a mix of good and bad, have had the biggest impact in shaping the labor law we have today. Here they are in chronological order:
1. NLRB v. Jones & Laughlin Steel Corp. (1937): By a five to four vote, the Supreme Court rejected the argument that the National Labor Relations Act was unconstitutional. This opinion made the others on this list possible, and the NLRA’s constitutionality was not seriously questioned again until the Roberts Court escalated its attack on administrative agencies.
2. NLRB v. Mackay Radio(1938): Congress did not decide that employers should have the right to permanently replace strikers. But, in this case, when an employer refused to recall prominent union activists at the end of a strike, the Supreme Court declared, without any analysis, that employers do not need to displace replacement workers when workers end their strike. Thus, employers were given a powerful weapon — the right to permanently replace strikers. No other decision has altered the balance of power between unions and employers as much.
3. Thornhill v. Alabama (1940): An Alabama law made it illegal to “go near or loiter about any place of lawful business for the purpose of or...
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