Government Regulation of Labor Relations

1
Government Regulation of Labor Relations

• Criminal Conspiracy Trials 1806-42
• U.S. constitution doesnt mention unions, Ee
  relations. No federal statutes, state statutes,
  state court decisions to guide early judicial
  decision-making
• Philadelphia Cordwainers (1806)
• First court case for which there are written
  records
• Grew out of labor dispute involving Er and
  skilled shoemakers (cordwainers)
• Workers struck in response to cut by Ers in price
  paid per pair of boots produced
• Cordwainers indicted and charged w/crime of
  criminal conspiracy to raise their wages
• Found guilty. First labor law case ever decided
  in U.S. found that unions organized w/objective
  of raising wages were illegal per se

2
Government Regulation of Labor Relations

• Criminal Conspiracy Trials 1806-42
• Commonwealth v. Hunt (1842)
• Mass. Supreme Court decision, disagreed with
  Cordwainers decision and served as basis for new
  judicial theory of labor unions and their actions
• Case involved bootmakers union in Boston
• Officers indicted for criminal conspiracy, had
  expelled and fined bootmaker for violating union
  work rules
• Court found that mere fact that society agreed
  not to work for Er who employed nonmember of
  society was not in itself unlawful
• In addition, court found means used by U. were
  not illegal
• Case articulated what is today called means-ends
  doctrine
• If U. uses legal means to attain lawful
  objective, action protected by law
• Unions not illegal in and of themselves

3
Government Regulation of Labor Relations

• Labor Injunctions
• Unions faced, beginning in 1870s, new legal
  device not previously used in labor cases
• Injunction is order issued by court to protect
  property
• Sherman Anti-trust Act of 1890 gave federal
  courts power to restrain combinations in
  restraint of trade through use of injunctions
• Injunctions proved source of aggravation for
  labor leaders until 1932, when their use sharply
  limited by Norris-LaGuardia

4
Government Regulation of Labor Relations

• Railway Labor Act (1926)
• First federal statute whose sole purpose was
  regulation of labor relations
• Major principles
• To prevent interruption of service
• To ensure rights to Ees to organize
• To provide for independent organizations to
  represent Ees
• To provide for settlement of disputes
• To provide for resolution of grievances
• Constitutionality determined by Supreme Court in
  1930
• For first time Court upheld power of Congress to
  regulate labor-mngt relations in a major industry
  through federal statute
• Act covers railway Ees and now airline Ees as well

5
Government Regulation of Labor Relations

• National Labor Relations (Wagner) Act (1935)
• Cornerstone of private sector labor law in U.S.
• Influenced by RLA, Norris-LaGuardia Act of 1932,
  National Industrial Recovery Act of 1933
• Norris-LaGuardia did not provide unions w/any new
  legal rights rather, it gave unions freedom to
  operate wo/court intervention through injunctions
• Also made unenforceable yellow-dog contracts
• NIRA Section 7(a) specifically recognized right
  of Ees to join unions, to bargain collectively,
  and to refrain from joining company unions
• National Labor Board had no enforcement powers
• NIRA declared unconstitutional in 1935, Wagner
  Act passed just 11 days later many felt it
  would meet similar fate

6
Government Regulation of Labor Relations

• National Labor Relations (Wagner) Act (1935)
• Section 1 Findings and Policy
• Commerce promoted when causes of conflict
  removed, labor and mngt sit down and negotiate
  differences as equals
• Section 2 Definitions
• Specifically excludes government Ees,
  agricultural Ees, workers covered by RLA
• Section 7 Rights of Ees
• To join labor organizations
• To bargain collectively
• To engage in other concerted activities
• To refrain from such activities (added by
  Taft-Hartley)

7
Government Regulation of Labor Relations

• National Labor Relations (Wagner) Act (1935)
• Section 8 Er Unfair Labor Practices
• 8a1 to interfere with, restrain, or coerce Ees
  in the exercise of Section 7 rights
• 8a3 discrimination for the purpose of
  discouraging union membership
• 8a5 refusal to bargain in good faith
• Section 9 Elections
• Requires that U selected as bargaining
  representative serve as exclusive representative
  of Ees in particular work group
• NLRB determines composition of work group which
  votes in election unit determination
• NLRB conducts secret ballot elections for purpose
  of certifying labor organizations and collective
  bargaining representatives
• Act found to be Constitutional in 1937, by 5-4
  decision

8
Government Regulation of Labor Relations

• Taft-Hartley Act (1947) (Labor-Mngt Relations
  Act, LMRA)
• Republicans took control of both House and Senate
  in 1946 elections, Truman vetoed bill in
  nationwide radio broadcast, Congress overrode
  veto
• Amended Wagner Act
• Section 1 Findings and Policy
• States that public policy of U.S. is eliminating
  obstruction of commerce by both Ers and unions
• Section 2 Definitions
• Excluded supervisors and foremen from coverage of
  NLRA, as amended
• Section 7 Rights of Ees
• Added right to refrain from U activity (although
  not from U membership if there is U shop
  provision)

9
Government Regulation of Labor Relations

• Taft-Hartley Act (1947) (Labor-Mngt Relations
  Act, LMRA)
• Section 8 Union ULPs
• 8b1 Interference
• 8b2 Discrimination
• 8b3 Refusal to Bargain in Good Faith
• 8b4 Secondary Boycotts
• 8b6 Featherbedding
• Payment for work not done (as distinguished from
  work done but arguably not necessary)
• Section 8c Free Speech Amendment
• Speech alone is not ULP, provided speech does
  not threaten, coerce, or promise benefit

10
Government Regulation of Labor Relations

• Taft-Hartley Act (1947) (Labor-Mngt Relations
  Act, LMRA)
• Section 8d Defines bargaining requirements
• Requires that parties meet and confer in good
  faith
• Section 9 Elections
• Provides for decertification elections, creates
  election bar (an election blocks any subsequent
  election in same unit for 12 months)
• Section 14 Limitations
• Section 14b allows passage of right-to-work
  laws
• Currently, 22 RTW states

11
Government Regulation of Labor Relations

• Taft-Hartley Act (1947) (Labor-Mngt Relations
  Act, LMRA)
• New provisions
• FMCS
• National Emergency Disputes
• Allows President to appoint special board of
  inquiry to investigate dispute, 80-day injunction
  for cooling-off period
• Political Contributions
• Unions prohibited from direct campaign
  contributions to candidates for national office
• Unions, like Ers, form political action
  committees (PACs), establish funds separate from
  dues for political contributions
• Federal Ee strikes prohibited

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13
Government Regulation of Labor Relations

• Landrum-Griffin Act (1959) (Labor-Mngt Reporting
  and Disclosure Act, LMRDA)
• Created mechanism for federal govt to regulate
  internal U affairs
• Bill of Rights
• To participate equally in all official affairs
• To assemble and express views
• To vote on dues increases
• To sue union
• To copy of collective bargaining agreement
• Safeguards established on discipline
• Detailed financial reporting required
• Unions have right to impose membership
  qualifications and (under specific procedures)
  discipline members for various offenses
• However, right to members to resign from U and
  escape U authority reduces ability of U
  discipline to maintain solidarity
• E.g., crossing picket line

14
Government Regulation of Labor Relations

• National Labor Relations Board
• Administers NLRA
• Conducts representation elections, investigates
  and prosecutes ULPs
• Acts in response to petitions and charges
• Consists of five NLRB members, General Counsel,
  Regional Offices (e.g., Indy)
• Board members appointed by President, w/consent
  of Senate, for 5-year terms
• NLRA is remedial statute, not criminal
• Board may issue cease and desist orders, direct
  reinstatement w/back pay

15
National Labor Relations Board

• Chair, Wilma Liebman (D)
• U atty, term expires 8/11
• Clinton appointee, twice reappointed by Bush,
  appt Chair by Obama
• Three positions had been vacant since 12/07
• Two U attys nominated for the D seats (Craig
  Becker and Mark Pearce), mngt atty and Senate
  staffer nominated for R seat (Brian Hayes)
• Senate committee voted in October 2009 to send
  nominations to full Senate McCain placed hold on
  Becker
• Becker and Pearce recess appointments in April
  2010 Hayes and Pearce confirmed June 2010
• One vacant position as of August 2010
• Regional Offices
• Region 25, Indianapolis (also covers Henderson
  and Owensboro)

16
LABOR LAW IN PRACTICE NLRB DECISIONS AND REFORM

• Current NLRB framework for adjudicating U.S.
  labor law is not without critics
• Major political influences on NLRB decisions.
• See Labor Boards Detractors See a Bias Against
  Workers, New York Times, 1/2/05
• Several recent NLRB decisions reversed
  Clinton-era rulings that overturned precedents
  set by Republican Boards
• E.g., decision as to whether nonU ee has right to
  have colleague accompany them to investigative or
  disciplinary meeting w/ mngt
• NLRB lacks sufficient remedial power (punitive
  damages).
• The NLRA has also been called into question.
  Unions favor
• Expanding coverage to supervisors.
• Streamlining the certification process.
• Board to review use of card checks
• Banning use of permanent strike replacements.
• Some favor replacing the NLRA
• Others argue that assumptions of NLRA, especially
  the sharp divide between labor and management, no
  longer matches the 21st century workplace.

17
Employee Free Choice Act

• Stalled in Congress, due to lack of support from
  moderate Senate Democrats
• Prospects for card-check dimming, in favor of
  shortening U election process to 5-10 days after
  petition filed (current median is 38 days)
• Also under consideration is providing U
  organizers w/ access to Co property, barring
  captive audience meetings
• Clinton NLRB Chair and Stanford Law prof William
  Gould supports time limits for elections and
  increased penalties for ULPs
• Business opposes mandated arbitration (if first
  contract negotiation not completed within 120
  days)
• Note that mandatory arbitration common in public
  sector in states banning strikes by uniformed ees
  but providing impasse-resolution mechanism (e.g.,
  Michigan, New York, Pennsylvania)
• Note also that mandated arbitration increasingly
  used by business to resolve rights disputes in
  nonU employment, as well as consumer disputes.

18
Employee Free Choice Act

• WSJ editorialized (7/20/09) that organizers
  want the rush because they know the more time
  workers have to learn about a union, the less
  they usually want one. Once supporters hear the
  other side of the story, support dwindles.
• Empirical evidence does suggest that the longer
  the delay between petition filing and the
  election, the lower the likelihood of union
  victory delay works to managements advantage.
  But why? True question is what amount of time is
  required so as to lead to an informed decision by
  employee.
• Captive audience meetings are one of
  managements few opportunities to address
  workers, since companies are barred from the sort
  of outreach allowed to union organizers such as
  visiting employees at home.
• Note that Co is perfectly free to mail literature
  to Ees home, and that Co not required to provide
  names and addresses of Ees in bargaining unit
  until after U files election petition with NLRB
  so how exactly does this outreach give unions an
  advantage? If business wants Ees to be able to
  hear both sides of the story, then how exactly
  does mngts ability to limit Ee solicitation to
  nonwork time and to bar nonEe organizers from Co
  property altogether facilitate an informed
  decision?
• Most workers show time and again that they
  dont want a union.
• The evidence suggests exactly the opposite

19
The Demise of the National Labor Policy A
Question of Social Justice

• Conflicting Statutory Purposes
• National labor policy has been at cross-purposes
  with itself since passage of Taft-Hartley
• Wagner Act stated purpose was to promote
  collective bargaining
• Right of workers to participate in decisions
  affecting working lives essential part of social
  justice
• Taft-Hartley concept is neutral guarantor of Ee
  free choice between individual and collective
  bargaining
• NLRB can choose between these contradictory
  purposes and claim they are conforming to
  congressional intent while reaching very
  different outcomes
• Result is not merely revisions in case law but
  radical changes that swing labor policy from one
  purpose to the other

20
The Demise of the National Labor Policy A
Question of Social Justice

• NLRBs Role in Making Labor Policy
• Lawmaking by Board inevitable, for they must
  apply broad statutory language to specific fact
  situations
• Given conflicting statutory purposes, Board is in
  position of choosing between competing visions of
  national labor policy
• President can change labor policy without
  legislative changes through appointments to NLRB
• Previous example of union discipline of those who
  cross picket line

21
The Demise of the National Labor Policy A
Question of Social Justice

• Employer Resistance
• Gross asserts that considerable management
  opposition is motivated by belief that industrial
  democracy and free enterprise are fundamentally
  incompatible
• Growing conviction among Ers that successful
  competition in markets requires evading or
  resisting unions
• Unions and National Labor Policy
• Meanwhile, union image has shifted from that of
  force for economic and social justice to
  instrument of oppression and exploitation

22
The Demise of the National Labor Policy A
Question of Social Justice

• Thoughts on a National Labor Policy
• Gross argues that primary objective of policy
  should not be promotion of productivity and
  competitiveness, but promotion of social justice
• And social justice flows from industrial
  democracy
• Ultimate objective of Wagner Act was
  establishment, through collective bargaining, of
  system of labor-management cooperation based on
  mutual interest in success of enterprise
• Argued that Taft-Hartley undermined this
  objective by enabling and encouraging Ers to
  contest and resist organization and collective
  bargaining

23
POSTCRIPT THE RISE OF EMPLOYMENT LAW

• Labor law focuses on workers collective actions
• After 1960s, private sector law received little
  attention by lawmakers, while employment law
  exploded
• Board has upheld Cos decision to fire Ee who had
  asked colleague to testify before state agency to
  support her claim of sexual harassement NLRA
  prohibits Ers from retaliating against workers
  who engage in concerted activity for mutual
  protection, but Board found fired Ee was acting
  only in self-interest
• Employment law focuses on individual employment
  rights.
• First, social insurance (workers comp,
  unemployment insurance, social security) and
  protective employment standards (minimum wage,
  maximum hours and child labor restraints) in the
  1930s
• Second, restrictions on employment-at-will
  starting in the 1960s (Equal Pay Act, Civil
  Rights Act, Age Discrimination Act, Pregnancy
  Discrimination Act, Americans with Disabilities
  Act)
• Third, other employment laws impacted employment
  conditions beyond FLSA (OSHA, ERISA, WARN, FMLA)

24
Public Sector Labor Relations

• Legal Regulation
• Public ees excluded from coverage under NLRA
• Separate legal regulations in each state
• Federal Ees
• Received rights to unionize and bargain over
  working conditions other than wages and fringes
  via Kennedy E.O.
• In 1970 postal ees provided right to bargain over
  wages (strike still illegal)
• E.O. replaced w/ Civil Service Reform Act in 1978
• Regulated by Federal Labor Relations Authority
• Impasse resolution responsibility of Federal
  Services Impasse Panel

25
Public Sector Labor Relations

• Legal Regulation
• State and local govt ees
• Some 41 states have legislation that provides at
  least some public ees w/ right to organize and
  bargain
• Those wo/ laws primarily in South
• Most politically powerful groups tend to have
  most comprehensive laws (police, fire, teachers)
  state govt ees tend to have least
• First-term Republican governors in Missouri and
  Indiana (Daniels) have rescinded bargaining
  rights of state ees Marylands governor
  suspended pay increase negotiated by predecessor
• Governors argue public ee unions waste resources
  and block restructuring efforts
• Some states provide limited right to strike
• PA, e.g., permits strikes by nonuniformed ees if
  public health, safety, welfare not endangered
• NY, on other hand, provide 2 for 1 penalty (Er
  gets to keep money)
• Strikes do occur even in states making them
  illegal less likely where compulsory interest
  arbitration provided and where penalties are
  consistently enforced