NLRB v. Jones and Laughlin
U. S. Supreme Court
• Is the National Labor Relations Act
– Congress did not exceed authority under
– Size and scope of J&L’s activities means that
its labor relations problems would affect
– Board will determine effect on interstate
• Right to Self-Organization a Fundamental Right
• Er may still exercise its legitimate rights to select
and discharge employees, but may not
discriminate on basis of exercise of Sec. 7 rights
• One-sidedness of Act does not make it
unconstitutional - Congress need not address all
evils at once
• Procedures are fair -
– court review
• Represented a broadening of the powers of
the federal government to regulate all
• Balancing of Rights of Employer with
Rights of Employees.
Canadian Labor Law Based on
the Flow Concept
• Most labor relations regulation in Canada under
jurisdiction of the provinces.
• All industries that do not directly move goods and
services between the provinces are regulated by
the provinces for labor relations purposes.
– Auto manufacturing - provinces
– Telecommunications - federal government
• British North American Act of 1867
Reconsideration: Return to “
• “The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the
several States, and with the Indian Tribes . . . (U.S.
• Originalism – interpretations of constitution
should be based on what the authors of the
• Textualism – interpretations of the constitution
should be based on the text, nothing more
Compare Hughes (1937) and Thomas (1995):
“To regulate Commerce . . . among the
several States. . ..”
• “Because there may be but indirect and • “At the time the original Constitution was
remote effects upon interstate commerce in ratified, "commerce" consisted of selling,
connection with a host of local enterprises buying, and bartering, as well as transporting
throughout the country, it does not follow that for these purposes. . . . . As one would expect,
other industrial activities do not have such a the term "commerce" was used in
close and intimate relation to interstate contradistinction to productive activities such
commerce as to make the presence of
industrial strife a matter of the most urgent as manufacturing and agriculture. . . .
national concern. When industries organize Moreover, interjecting a modern sense of
themselves on a national scale, making their commerce into the Constitution generates
relation to interstate commerce the dominant significant textual and structural problems.
factor in their activities, how can it be For example, one cannot replace "commerce"
maintained that their industrial labor relations with a different type of enterprise, such as
constitute a forbidden field into which manufacturing. . . .. Parts may come from
Congress may not enter when it is necessary different States or other nations and hence
to protect interstate commerce from the may have been in the flow of commerce at
paralyzing consequences of industrial war? one time, but manufacturing takes place at a
We have often said that interstate commerce discrete site. Agriculture and manufacturing
itself is a practical conception. It is equally involve the production of goods; commerce
true that interferences with that commerce encompasses traffic in such articles (U.S. v.
must be appraised by a judgment that does Lopez, U.S. Supreme Court, 1995, No. 93-
not ignore actual experience.” (CJ Hughes 1260, Thomas dissent, all citations omitted)
for Majority, NLRB v. Jones & Laughlin, 301
U.S. 1, 41-42) 7