NLRB v. Jones and Laughlin Steel Corporation U. S. Supreme Court 1937

Issue Is the National Labor Relations Act Constitutional? Yes! Congress did not exceed authority under commerce clause Size and scope of J&L’s activities means that its labor relations problems would affect interstate commerce Board will determine effect on interstate commerce

Other Issues 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 - complaint notice hearing evidence court review

Summary Represented a broadening of the powers of the federal government to regulate all economic activity. 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 “ Flow Concept?” “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . (U.S. Constitution);” Originalism – interpretations of constitution should be based on what the authors of the constitution wrote Textualism – interpretations of the constitution should be based on the text, nothing more

Compare Hughes (1937) and Thomas (1995): “To regulate Commerce Compare Hughes (1937) and Thomas (1995): “To regulate Commerce . . . among the several States. . ..” “Because there may be but indirect and remote effects upon interstate commerce in connection with a host of local enterprises throughout the country, it does not follow that other industrial activities do not have such a close and intimate relation to interstate commerce as to make the presence of industrial strife a matter of the most urgent national concern. When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? We have often said that interstate commerce itself is a practical conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience.” (CJ Hughes for Majority, NLRB v. Jones & Laughlin, 301 U.S. 1, 41-42) “At the time the original Constitution was ratified, "commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes. . . . . As one would expect, the term "commerce" was used in contradistinction to productive activities such as manufacturing and agriculture. . . . Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace "commerce" with a different type of enterprise, such as manufacturing. . . .. Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles (U.S. v. Lopez, U.S. Supreme Court, 1995, No. 93-1260, Thomas dissent, all citations omitted)