Labor

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CHAPTER 31
Labor Law
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Quotes of the Day

• Without the power of the industrial union behind
  it, democracy can only enter the state as a
  victim enters the gullet of a serpent.
• James Connolly,
• Irish labor leader

Unionism seldom, if ever, uses such power as it
has to insure better work almost always it
devotes a large part of that power to
safeguarding bad work. H.L Mencken American
journalist
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Unions Develop...and the Law Responds

• Before 1932, employees were considered
  expendable, and even the act of joining together
  was considered criminal.
• Norris-LaGuardia Act (passed in 1932) prohibits
  federal court injunctions in nonviolent labor
  disputes.
• Permits workers to form unions and use collective
  bargaining power.

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National Labor Relations Act

• 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(a) makes it an unfair labor practice
  (ULP) for an employer
• To interfere with union organizing efforts
• To dominate or interfere with any union
• To discriminate against a union member, or
• To refuse to bargain with a union

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National Labor Relations Board (NLRB)

• Established by the NLRA
• Has two primary tasks
• Decides if a union has the right to represent a
  group of employees.
• Adjudicates claims by either the employer or
  workers that the other has committed an unfair
  labor practice.

The NLRB describes its mission and methods at
this website.
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Labor-Management Relations Act

• Section 8(b) makes it an unfair labor practice
  for a union
• To interfere with employees who are exercising
  their labor rights under 7.
• To encourage an employer to discriminate against
  a particular employee because of a union dispute.
• To refuse to bargain collectively, or
• To engage in an illegal strike or boycott,
  particularly secondary boycotts.

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State Labor Law

• All states have labor statutes. Some are
  comprehensive, some have a narrow focus.
• Preemption means that states have no jurisdiction
  to regulate any labor issue that is governed by
  federal law.

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Exclusivity

• Under 9 of the NLRA, a validly recognized union
  is the exclusive representative of the employees.
• A collective bargaining unit is the precisely
  defined group of employees who will be
  represented by a particular union.

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Organizing a Union

• Procedures
• Organizers talk to employees and ask them to sign
  authorization cards.
• If organizers get enough cards, they seek
  recognition as the official representative for
  the bargaining unit.
• They petition the NLRB for election as a valid
  union requires 30 of the workers approval.

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Rights

• What Workers May Do
• They may talk among themselves about forming a
  union, to hand out literature, and ultimately to
  join a union.
• What Employers May Do
• They may vigorously present anti-union views to
  its employees, but may not use either threats or
  promises of benefits to defeat a union drive.
• When an employer outrageously interferes, the
  NLRB may forgo the normal election, certify the
  union, and order the company to bargain.

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Appropriate Bargaining Unit

• The Board generally certifies a proposed
  bargaining unit if and only if the employees
  share a community of interest.
• Managerial employees must be excluded from the
  bargaining unit.
• Confidential employees are generally excluding
  from the bargaining unit.

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Collective Bargaining

• The goal is a contract, called a collective
  bargaining agreement (CBA).
• Subjects of Bargaining
• Mandatory subjects wages, hours, and other terms
  and conditions of employment.
• A company that subcontracts in order to maintain
  its economic viability is probably not required
  to bargain bargaining is mandatory if the
  subcontracting is to replace union workers with
  cheaper labor.
• An employer is not required to bargain over
  closing a plant, only effects of the closing.

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Employer Union Security

• No-strike and no-lockout clauses are both legal.
• A closed shop (requirement to hire only union
  members) is illegal.
• A union shop (requiring union membership after
  hiring) is generally legal.
• An agency shop (new hire pays union fees, but
  does not have to join) also legal.

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Duty to Bargain

• Both the union and the employer must bargain in
  good faith and with an open mind. However, they
  are not obligated to reach an agreement.
• If an employer states that it is financially
  unable to meet the unions demands, the union is
  entitled to see records that support the claim.
• Management may not unilaterally change wages,
  hours, or terms and conditions of employment
  without bargaining the issues to impasse.

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Enforcement

• CBAs provide for enforcement, usually through
  grievance-arbitration.
• Grievance complaint by the union, on behalf of
  an employee.
• Arbitration mediation process if grievance is
  not settled.
• Courts generally do not examine the merits of an
  arbitrators decision.
• A court may refuse to enforce an arbitrators
  award that is contrary to public policy.

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Limitations on Strikes

• The NLRA guarantees the right to strike, but with
  some limitations
• No-strike clause in CBA makes strike illegal.
• The union must give a 60-day cooling off period
  notice of its intent to strike.
• Some states have statutory prohibition against
  strikes by some public employees, like teachers
  or firefighters.
• Violent strikes are prohibited.
• Sit-down strikes (workers quit working, but
  remain at posts) and partial strikes (stop work,
  then resume, then stop) are prohibited because
  they prevent hiring of replacements.

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Replacement Workers

• 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.
• After a ULP strike, a union member is entitled to
  her job back, even if that means the employer
  must lay off a replacement worker.

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Picketing

• Picketing the employers workplace in support of
  a strike is generally lawful.
• Secondary boycotts (against suppliers, etc.) are
  generally illegal.
• Lockouts (refusing to let workers in)
• A defensive lockout is almost always legal.
• An offensive lockout is legal if the parties have
  reached a bargaining impasse.

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Multi-Employer Bargaining and Antitrust Law

• The Supreme Court has consistently held that
  multi-employer bargaining does not violate
  antitrust laws.
• Regulating Union Affairs
• The duty of fair representation requires that a
  union represent all members fairly, impartially,
  and in good faith.
• A unions decision not to file a grievance is
  illegal only if it was arbitrary, discriminatory,
  or in bad faith.

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Many decades after Congress guaranteed important
labor rights, management and workers in many
industries still clash over the old issues of
union organization, collective bargaining, and
concerted action.
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