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Chapter 15 Labor Law

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Learning Objectives Discuss history of unions in the United States

Cover Norris-LaGuardia Act of 1932, National Labor Relations Act of 1935 (Wagner Act), Taft-Hartley Act of 1948, Landrum Griffin Act of 1959

List and explain several common collective bargaining agreement (CBA) clauses

Explain unfair labor practices and give examples

Discuss collective bargaining in the public sector and how it differs from the private sector

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Coming Together on Issues Labor law – different and discrete from

employment law

Collective bargaining: Negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment Replaces employment “at-will” for those workers

Defines ‘other terms and conditions,’ by contract

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Historical Accounting (1)

Shift of the American economy from agrarian to industrial

Criminal conspiracy laws – Early union activity considered to be common law criminal conspiracies

Case: Commonwealth v. Hunt, 1842

Injunctions: Court order requiring individuals or groups of persons to refrain from performing certain acts (like striking) that the court has determined will do irreparable harm

Yellow dog contract: Agreements with provision that employee does not belong to a union and will not join one; now illegal

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Historical Accounting (2)

Antitrust attacks Sherman Antitrust Act -- 1890

Unions as “Conspiracies in restraint of trade”

Clayton Act Exempted labor union activity from Antitrust coverage

Constitutional challenges to early congressional labor laws – no federal “interstate commerce” power to regulate, as it was then defined

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Out of Necessity, Change (1)

National War Labor Board – WW1 Peaceful resolution of labor disputes -> model

National Industrial Recovery Act – New Deal Put business in charge of regulating prices and

production

Established a minimum wage

Gave workers collective bargaining and other rights

Declared unconstitutional in 1935

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Out of Necessity, Change (2)

FDR frustration, ‘Court-packing scheme’

Supreme Court gets message, broadens definition of Interstate Commerce

New Deal legislation upheld (including FLSA)

National Labor Relations Act (Wagner Act) Guaranteed rights to organize and bargain

Established NLRB to oversee unionization elections and bargaining

Management Unfair Labor Practices (none for Labor, yet)

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Out of Necessity, Change (3)

Unions flourished (pendulum) --> expensive strikes Taft-Hartley Act 1948

Union Unfair Labor Practices (symmetry)

Right-to-work states

Cooling-off period

Union Corruption/organized crime linkage

Landrum Griffin Act 1959 to guarantee internal democracy

MPPAA amendments to ERISA 1980, re pensions

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Out of Necessity, Change (4)

1970s+ Decrease in private sector unionization Heavily unionized industries decline (manufacturing)

Aggressive anti-unionizing campaigns by employers

Union concessions during downturns in the economy

North American Free Trade Agreement (NAFTA)

International competition, ‘Globalization’

Lack of success in new private sector campaigns

Labor unions remain an important part of the workplace, esp. public sector

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The National Labor Relations Act of 1935 (Wagner Act) – concepts (1)

Unions Meaning

Community of interests

Factors employees have in common for bargaining purposes

Bargaining unit The group of employees in a workplace that have the legal right to bargain with the

employer

Shop steward Union member chosen as intermediary between union members and employer

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The National Labor Relations Act of 1935 (Wagner Act) – more concepts (2)

Unions Meaning

Collective bargaining agreement

Negotiated contract between labor and management

Industrial union Union organized across an industry, regardless of members’ job type

Craft unions Unions organized by the employee’s craft or trade

Business agent The representative of a union, usually craft

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The National Labor Relations Act of 1935 (Wagner Act) (3)

Good faith bargaining Mandatory subjects of bargaining: Wages, hours,

and other conditions of employment, which, by law, must be negotiated between labor and management Scenario 2

Permissive subjects of bargaining: Non-mandatory subjects that can be negotiated between labor and management

Closed shop: Employer hires only union members Bad-faith bargaining

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The National Labor Relations Act of 1935 (Wagner Act) (4)

Organizing Campaigns: NLRB oversight ‘Laboratory conditions’, majority vote

Scenario 1

Economic strikes vs. ULP strikes and the re-hire obligation

Duty of fair representation Requires the union to represent all employees fairly

and non-discriminatorily

Emphasis on latter – does not ensure a good deal for members

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Collective Bargaining Agreements Management security clause: Parties agree

that management has the right to run the business and make appropriate business decisions as long as applicable laws and agreements are complied-with

Midterm negotiations: Collective bargaining negotiations during the term of the contract

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Employer Unfair Labor Practices Unfair labor practices may include

Refusal to bargain in good faith

Case: Gimrock Construction v. IUOE, Local 487

Engaging in activities that would tend to attempt to control or influence the union

Interfering with union’s affairs

Case: Electromation v. NLRB, Scenario 3

Discriminating against employees who join or assist unions

Strikes and Lockouts – both legal if “primary” Economic vs. ULP strikes re: rehire obligation

Case: Columbia Portland Cement v. NLRB,

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The Taft-Hartley Act (1)

Amendment to the NLRA

Enacted to curb excesses by unions, rebalance process

Section 7, unfair labor practice for unions Restrain employees in the exercise of their rights or

employers in the selection of their representatives for collective bargaining

Cause an employer to discriminate against an employee

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The Taft-Hartley Act (2)

Section 7, unfair labor practice for unions to (continued) Refuse to bargain with an employer

Engage in jurisdictional or secondary boycotts.

Charge excess or discriminatory initiation fees or dues.

Cause an employee to pay for goods or services that are not provided (“featherbedding”)

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The Taft-Hartley Act (3)

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Key Terms MeaningRight-to-work

lawsPermits employees to choose not to become a

part of the union

Union shop Union and management agree that employees must join union within some period after hire

(vs. closed shop)

Union shop clause

Provision in a collective bargaining agreement allowing a union shop

Agency shop clause

Requires non-union members to pay union dues without having to be subject to the union rules

Free riders Bargaining unit employees who do not pay dues but whom the union is still obligated to

represent

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The Landrum-Griffin Act Also known as the Labor Management

Reporting and Disclosure Act

Enacted in response to congressional investigations into union corruption

Bill of rights for union members

Procedures for holding union elections

Safeguarding funds: see also Multi-Employer Pension Plan Amendments Act (part of ERISA)

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Union Members’ Bill of Rights Right to attend union meetings, vote on union

business, and nominate candidates for union Right to bring an agency or court action against the union after exhausting union procedures

Certain procedures must be followed before any dues or initiation fee increases

Full and fair hearing when being disciplined by the union; exception – failure to pay dues

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Labor Relations in the Public Sector (1)

Fundamental economics differ vs. private sector Can’t outsource DMV to India

No ‘invisible hand’ to protect against overreaching

Public employees covered Many states have collective bargaining statutes

covering most public employees

Federal restrictions

Civil Service Reform Act of 1978 Federal Labor Relations Authority

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Labor Relations in the Public Sector (2)

State, county, and municipal public employees Professional associations

Craft unions

Industrial-type unions

AFL-CIO

Difference between public and private collective bargaining No strike clauses slowdowns and the Blue Flu

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Management Tips (1)

Recognize that your employees know unions affect your workplace without organizing your employees, and there are costs assoc’d. with union (dues). Philosophical objections, too.

If employees consider unionizing, do not directly interfere with the process (seek expert advice)

Do not assume any employee you speak to for the purpose of persuading employees not to unionize [or any other reason] will keep the conversation confidential

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Management Tips (2)

Know the kinds of things the employer can legally do to influence the unionizing decision, and do only those things that are permissible

Once the union is in place, conduct all negotiations only with the union representatives

Treat the collective bargaining process as one would any business activity

Know what the law requires

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Management Tips (3)

Keep the lines of communication open

Try to keep “us versus them” mentality from having a negative impact on the collective bargaining process

Bargain hard without setting management up for an unfair labor practice charge

You often ‘get’ the union you ‘deserve.’