Labor Law – Abridged (chap 17)

Why do unions exist?

As industrialization spread across America, workers found employment conditions increasingly unbearable and wages inadequate. Workers began to band together into unions. But early in the 19th century, American courts regarded any coordinated effort by works as a criminal consipiracy.In 1842, the Massachusetts high court became the first to reject this use of the criminal law

In 1890 Congress passed the Sherman Act to outlaw monopolies.  With the economic collapse of 1929 and the vast suffering of the Great Depression, public sympathy shifted to the workers.

In 1932 Congress passed the Norris-LaGuardia Act, which prohibited federal court injunctions in nonviolent labor disputes. In 1935 Congress passed the Wagner Act, generally known as the National Labor Relations Act (NLRA). This is the most important of all labor laws. The NLRA ensures the right of workers to form unions. Sections 7 and 8 are most important.

• Section 7 guarantees employees the right to organize and join unions, bargain collectively through representatives of their own choosing, and engage in other concerted activities.
• Section 8 reinforces these rights by outlawing unfair labor practices. 8(a) makes it an unfair labor practice (ULP) for an employer:

1. to interfere with union organizing efforts
2. to dominate or interfere with any union
3. to discriminate against a union member or
4. to refuse to bargain collectively with a union.

• The NLRA also established the National Labor Relations Board (NLRB) The NLRB has two primary tasks:

1. grant Representation rights
2. declare Unfair Labor Practices

In 1947 Congress crafted the Taft-Hartley Act, also known as the Labor-Management Relations Act, designed to curb union abuses. The statue amended section 8 of the NLRA. Section 8(b) makes it an unfair labor practice for a union:

1. to interfere with employees who are exercising their labor rights under section 7
2. to encourage an employer to discriminate against a particular employee because of a union dispute.
3. to refuse to bargain collectively, or
4. to engage in an illegal strike or boycott, particularly secondary boycotts.
   

To combat corrupt leadership, in 1959 Congress passed the Landrum-Griffin Act, generally called the Labor-Management Reporting and Disclosure Act (LMRDA).

Organizing a Union

Exclusivity

A validly recognized union is the exclusive representative of the all employees.

A collective bargaining unit is the precisely defined group of employees who will be represented by a particular union.

Organizing

A union organizing effort generally involves the following pattern:

1. Campaign for support
2. collect Authorization Cards
3. try to receive formal Recognition from the company
4. Petition if company rejects
5. Election of union

What Workers May Do

The statute permits an employer to restrict organizing discussions only if they interfere with discipline or production.

What Employers May Do

Management is entitled to communicate to the employees why it believes a union will be harmful to the company.

When an employer outrageously interferes with a union organizing campaign, the NLRB may forgo the normal election and order a bargaining order.

Appropriate Bargaining Unit

The Board generally certifies a proposed bargaining unit if and only if the employees share a community of interest. The Board pays particular attention to two kinds of employees:

• Managerial employees must be excluded from the bargaining unit.
• Confidential employees are generally excluded from the bargaining unit.
• Once these two groups are out, the Board looks at whether the rest of the employees share a community of interest. The board looks for:

1. rough equality of pay and benefits
2. similar total hours per week and type of work
3. similar skills and training, and
4. previous bargaining history and the number of authorization cards

Collective Bargaining

The goal of bargaining is a contract, which is called a collective bargaining agreement. Three areas of conflict:

• Subjects of Bargaining –  Mandatory subjects include wages, hours and Courts generally find these subjects to be mandatory: pay, benefits, order of layoffs and recalls, production quotas, work rules (such as safety practices) retirement benefits, and in-plant food service and prices.
• subcontracting means that a manufacturer contracts for other companies to make some of the parts.
• An employer is not required to bargain over the closing of a plant, only the effects of the closing.
  
• No Strike/No Lockout  no-strike clause – meaning that the union promises not to strike during the term of the contract. no-lockout clause – meaning that in the event of a labor dispute, management will not prevent union members from working.
• Both the union and the employer must bargain in good faith with an open mind. However, they are not obligated to reach an agreement.
• “Bargaining to impasse” means that both parties must continue to meet and bargain in good faith until it is clear that they cannot reach an agreement.
• Virtually all CBAs provide for their own enforcement, typically through grievance-arbitration

Concerted Action

Concerted Action refers to any tactics union members take in unison to gain some bargaining advantage. Most common types:

• Strikes – The NLRA guarantees employees the right to strike, but with some limitations. Strikes are illegal when

1. a no-strike clause has been implemented.
2. Cooling Off Period – Once the union agrees to a CBA, it may not strike to terminate the agreement or modify it, without giving management 60 day’s notice.
3. Statutory Prohibition – Many states have outlawed strikes by public employees.
4. Violent Strikes – the NLRA prohibits violent strikes. A union may stage a sit-down strike.

• Replacement Workers – Management can legally replace workers that are on strike. After an economic strike, an employer may not discriminate against a striker, but the employer is not obligated to lay off a replacement worker to give a striker his job back. An economic strike is one intended to gain wages or benefits. After a ULP strike, a union member is entitled to her job back, even if that means that the employer must lay off a replacement worker.
• Picketing – Picketing the employer’s workplace in support of a strike is generally lawful. The company may terminate violent picketers and permanently replace them.
• Secondary boycotts are generally illegal. A secondary boycott is a picket line established  not at the employer’s premises but at the workplace of a different company that does business with the union’s employer.
• Lockouts –  In a lockout, management prohibits workers from entering the premises. Most lockouts are legal.  A defensive lockout is almost always legal. It is one way management can respond to union pressure such as sit-down strike or a whipsaw strike, which may occur when a union is simultaneously bargaining with various employers. An offensive lockout is legal if the parties have reached a bargaining impasse. Management, bargaining a new CBA with a union, may wish to use a lockout to advance it’s  position.

Regulating Union Affairs

The union’s duty of fair representation was created by the NLRA. The duty of fair representaion requires that a union represent all members fairly, impartially, and in good faith.

A member may sue his union. A union’s decision not to file a grievance is illegal only if it was arbitrary, discriminatory, or in bad faith.

Labor Law – Full Version (chap 17)

Some Americans revere unions, believing that organized labor has pulled the working class up from poverty and shielded it from exploitative management. Others loathe organized labor, convinced that unions foment mindless conflicts, decrease productivity, increase costs, and harm corporations and the economy generally.

Why do unions exist?

During the 19th century, as industrialization spread across America, workers found employment conditions increasingly unbearable and wages inadequate. Workers, often women and sometimes children, worked 60-70 hours per week and sometimes more.

Because of the intolerable conditions and impoverishing wages, workers began to band together into unions. But early in the 19th century, American courts regarded any coordinated effort by works as a criminal consipiracy. Courts convicted workers merely for the act of joining together, even if no strike took place. In 1842, the Massachusetts high court became the first to reject this use of the criminal law. The court ruled that workers could join together for legitimate economic goals; their efforts would become criminal only if the workers used illegal means to achieve them.

In 1890 Congress passed the Sherman Act to outlaw monopolies. For the next 40 years, courts relied on this statute to issue anti-strike injunctions, declaring that strikes illegally restrained trade. But with the economic collapse of 1929 and the vast suffering of the Great Depression, public sympathy shifted to the workers.

In 1932 Congress passed the Norris-LaGuardia Act, which prohibited federal court injunctions in nonviolent labor disputes. In 1935 Congress passed the Wagner Act, generally known as the National Labor Relations Act (NLRA). This is the most important of all labor laws. A fundamental aim of the NLRA is the establishment and maintenance of industrial peace, to preserve the flow of commerce. The NLRA ensures the right of workers to form unions and ecourages management and unions to bargain collectively and productively. Sections 7 and 8 are most important.

• Section 7 guarantees employees the right to organize and join unions, bargain collectively through representatives of their own choosing, and engage in other concerted activities.
• Section 8 reinforces these rights by outlawing unfair labor practices. 8(a) makes it an unfair labor practice (ULP) for an employer:

1. to interfere with union organizing efforts
2. to dominate or interfere with any union
3. to discriminate against a union member or
4. to refuse to bargain collectively with a union.

• The NLRA also established the National Labor Relations Board (NLRB) to administer and interpret the statue and to adjudicate labor cases. The NLRB has two primary tasks:

1. Representation – the board decides whether a particular union is entitled to represent a group of employees
2. Unfair Labor Practices – the Board adjudicates claims by either the employer or workers that the other side has committed a ULP.

• NLRA has headquarters in Washington D.C. but does most of it’s work through regional offices, headed by a regional director. The General Counsel, a staff of lawyers , investigates ULP claims. If the General Counsel believes that a party HAS committed a ULP, it prosecutes the case before an administrative law judge (ALJ).
• The Board itself has 5 members. Note that the Board has no power to enforce its orders. The NLRB describes its mission and methods at http://www.nlrb.gov.

In 1947 Congress crafted the Taft-Hartley Act, also known as the Labor-Management Relations Act, designed to curb union abuses. The statue amended section 8 of the NLRA to outlaw certain unfair labor practices by unions. Section 8(b) makes it an unfair labor practice for a union:

1. to interfere with employees who are exercising their labor rights under section 7
2. to encourage an employer to discriminate against a particular employee because of a union dispute.
3. to refuse to bargain collectively, or
4. to engage in an illegal strike or boycott, particularly secondary boycotts.
   

In the 1950s, the public became aware that certain labor leaders were corrupt. In 1959 Congress passed the Landrum-Griffin Act, generally called the Labor-Management Reporting and Disclosure Act (LMRDA). The LMRDA requires union leadership to make certain financial disclosures and guarantees free speech and fair elections within a union.

Organizing a Union

Exclusivity

It is difficult to organize a union. Under section 9 of the NLRA, a validly recognized union is the exclusive representative of the employees. This means that the union will represent all of the designated employees, regardless of whether a particular worker wants to be represented. The company may not bargain directly with any employee in the group, nor with any other organization representing the designated employees.

A collective bargaining unit is the precisely defined group of employees who will be represented by a particular union.

Organizing

A union organizing effort generally involves the following pattern:

1. Campaign – union organizers try to gain support for a new union
2. Authorization Cards – Union organizers ask workers to sign authorization cards, which state that the particular worker requests the specified union to act as her sole bargaining representative.
3. Recognition – if they get a “sizable” percentage of workers, they can seek recognition as the exclusive representative for the bargaining unit from the employer. The NLRA permits an employer to refuse recognition.
4. Petition – if the employer does not voluntarily recognize the union, the union generally petitions the NLRB for an election. Must have 30% of workers sign authorization cards.
5. Election – all members of the proposed bargaining unit vote on whether they want the union to represent them. If more than 50% of the workers vote for the union, the NLRB designates that union as the exclusive representative of all the members.

What Workers May Do

The NLRA guarantees employees the right to talk among themselves about forming a union, to hand out literature, and ultimately to join a union. The statute permits an employer to restrict organizing discussions if they interfere with discipline or production.

What Employers May Do

Management is entitled to communicate to the employees why it believes a union will be harmful to the company. But the employer’s efforts must be limited to explanation and advocacy. The employer may vigorously present anti-union views to its employees, but may not use either threats or promises of benefits to defeat a union drive. Normally a union claiming such interference will file a ULP charge.

When an employer outrageously interferes with a union organizing campaign, the NLRB may forgo the normal election, certify the union as the exclusive representative, and order the company to bargain. This bargaining order is an extreme measure, and the Board uses it only when an employer has shown extreme anti-union actions.

Appropriate Bargaining Unit

When a union petitions for elect, the Board determines whether the proposed bargaining unit is appropriate. The Board generally certifies a proposed bargaining unit if and only if the employees share a community of interest. Employers frequently assert that the bargaining unit is inappropriate. If the Board agrees with the employer and rejects the proposed bargaining unit, it dismisses the union’s request for an election. The Board pays particular attention to two kinds of employees:

• Managerial employees must be excluded from the bargaining unit.
• Confidential employees are generally excluded from the bargaining unit. A confidential employee is one who works so closely with executives or other management employees that there would be a conflict of interest if the employee were in the bargaining unit.
• Once these two groups are out, the Board looks at various criteria to decide whether the remaining employees should logically be grouped in one bargaining unit, that is, whether they share a community of interest. The board looks for:

1. rough equality of pay and benefits, and methods of computing both
2. similar total hours per week and type of work
3. similar skills and training, and
4. previous bargaining history and the number of authorization cards from any different groups within the unit

Collective Bargaining

The goal of bargaining is a contract, which is called a collective bargaining agreement. Three areas of conflict:

• Subjects of Bargaining – NLRA permits parties to bargain almost any subject, but requires them to bargain certain issues. Mandatory subjects include wages, hours, and other terms and conditions of employment. Courts generally find these subjects to be mandatory: pay, benefits, order of layoffs and recalls, production quotas, work rules (such as safety practices)m retirement benefits, and in-plant food service and prices.
• Subcontracting is a controversial issue; subcontracting means that a manufacturer rather than  producing all parts of a product and then assembling them, contracts for other companies to make some of the parts. A company that subcontracts in order to maintain its economic viability is probably not required to bargain first; however, bargaining is mandatory if the subcontracting is designed to replace union workers with cheaper labor.
• An employer is not required to bargain over the closing of a plant, only the effects of the closing.
  
• No Strike/No Lockout – most agreements include some form of no-strike clause, meaning that the union promises not to strike during the term of the contract. In turn, unions insists on a no-lockout clause, meaning that in the event of a labor dispute, management will not prevent union members from working. Both are legal.
• Both the union and the employer must bargain in good faith with an open mind. However, they are not obligated to reach an agreement. If an employer states that is is financially unable to meet the union’s demands, the union is entitled to see records that support the claim.
• Management may not unilaterally change wages, hours, or terms of employment without bargaining the issues to impasse. “Bargaining to impasse” means that both parties must continue to meet and bargain in good faith until it is clear that they cannot reach an agreement.
• Virtually all CBAs provide for their own enforcement, typically through grievance-arbitration – an employee complains to a union, the union files a grievance notifying management of the violation, there is generally some sort of hearing, and then management has a short period of time to decide the grievance. If union is unsuccessful they may go for a formal hearing and finally arbitration. A CBA also permits a company to file a grievance. Courts generally do not examine the merits of an arbitrator’s decision. However, a court may refuse to enforce an arbitrator’s award that is contrary to public policy.

Concerted Action

Concerted Action refers to any tactics union members take in unison to gain some bargaining advantage. The NLRA guarantees the right of employees to engage in concerted action for mutual aid or protection. Most common types:

• Strikes – The NLRA guarantees employees the right to strike, but with some limitations: if unable to reach an agreement through collective bargaining, to exert economic pressure on management, to protest an unfair labor practice, or to preserve work that the employer is considering subcontracting. Strikes are illegal when

1. a no-strike clause has been implemented.
2. Cooling Off Period – Once the union agrees to a CBA, it may not strike to terminate the agreement or modify it, without giving management 60 day’s notice.
3. Statutory Prohibition – Many states have outlawed strikes by public employees. However, even employees subject to such a rule may find other tactics to press their cause.
4. Violent Strikes – the NLRA prohibits violent strikes. A union may stage a sit-down strike, in which members stop working but remain at their job posts, physically blocking replacement workers from taking their places. Any such violence is illegal.

• Replacement Workers – When employees go on strike, management generally wants to replace them to keep the company operating. Replacement workers ARE legal. Management has the right to hire replacement workers during a strike. After an economic strike, an employer may not discriminate against a striker, but the employer is not obligated to lay off a replacement worker to give a striker his job back. An economic strike is one intended to gain wages or benefits. After a ULP strike, a union member is entitled to her job back, even if that means that the employer must lay off a replacement worker.
• Picketing – Picketing the employer’s workplace in support of a strike is generally lawful. The picketers are not permitted to use physical force to prevent anyone from “crossing the line” they have drawn. The company may terminate violent picketers and permanently replace them, regardless of the nature of the strike.
• Secondary boycotts are generally illegal. A secondary boycott is a picket line established  not at the employer’s premises but at the workplace of a different company that does business with the union’s employer.
• Lockouts – The power of a union comes ultimately from its potential to strike. In a lockout, management prohibits workers from entering the premises, denying the employees work and a chance to earn a paycheck. Most lockouts are legal.  A defensive lockout is almost always legal. It is one way management can respond to union pressure such as sit-down strike or a whipsaw strike, which may occur when a union is simultaneously bargaining with various employers. An offensive lockout is legal if the parties have reached a bargaining impasse. Management, bargaining a new CBA with a union, may wish to use a lockout to advance it’s  position. If there is no impasse, a lockout will probably be illegal. Managment must notify the union before locking it out.

Regulating Union Affairs

Along with a union’s exclusive bargaining power goes a duty of fairness to all of its members. The union’s duty of fair representation was created by the NLRA and the Labor-Management Reporting and Disclosure Act. The duty of fair representaion requires that a union represent all members fairly, impartially, and in good faith.

A member may sue his union, claiming that the organization violated its duty of fair representation by deciding not to pursue a grievance on his behalf. A union’s decision not to file a grievance is illegal only if it was arbitrary, discriminatory, or in bad faith.