1 OVERVIEW OF LABOR LAW 2 Purpose of Labor Law To provide legal protection for the collectivization of the employment relationship –Organizing/Recognition

1

OVERVIEW OF LABOR LAW

2

Purpose of Labor Law• To provide legal protection for the

collectivization of the employment relationship– Organizing/Recognition

• Does a group (unit) of employees desire to collectivize their employment relationship?

• Will a union represent a group of employees for the purpose of determining terms and conditions of employment

– Collective Bargaining• If so, what are the terms and conditions of employment

that result?

• Often called the process of unionization

3

International Views• Right to Collective Bargaining as a human right

– United Nations Universal Declaration of Human Rights (1948)

• “Article 23 . . . – “(4) Everyone has the right to form and to join trade unions for the

protection of his interests.”

– International Labor Organization Declaration on Fundamental Principles and Rights at Work (1998)

• Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining . . .

4

Should the Unionization Process Be Protected?

• Libertarian View (U.S. view pre-1926)– Unionization should be purely voluntary

• Freedom of Association– Others should not be affected

• employers, employees not interested in unions

• Current Policy in U.S., Canada and Developed Asia Countries– Employees must be protected in unionization process– Balance rights to unionize with rights/interests of others affected

• European Union Policy– Unions an integral component of society and should be consulted

at the societal level on all matters relating to labor and employment

• Social partners

5

Labor Law• United States

– Private Sector in the U.S.• National Labor Laws

– Public Sector in the U.S.• State Labor Laws

• Canada– Provincial labor laws govern labor relations

except for certain industries

• Other countries– Labor law is at the national level

6

Private Sector

• National Labor Laws in United States– National Labor Relations Act

• In general, covers private sector employers who affect commerce, except railroads and airlines

– Will discuss coverage of law later

– Railway Labor Act• Covers railroad and airline industry

7

Basic Principles of Private Sector Labor Law in United States

• Creates Basic Structure of U.S. unionized industrial relations system

• Basic Principles – Decentralized System– Employee Choice (with constraints)– Majority Rule– Exclusive Representation– Written, Legally Enforceable Contracts/Agreements

• Similar principles govern Canadian labor law

8

Decentralized System• System is organized by bargaining units – may

be – Firm– Plant/Facility– Craft– Department– Multi-Firm/Multi-Unit

• if all parties agree• construction, longshoring, trucking

• Representation continues in the unit, even if employees change over time

9

Employee Choice• Employee Choice

– Employees in a unit choose whether they wish a union (labor organization) to represent them

– Which union will represent them

– No official “enterprise unions”

– No union registration with government

– No imposed representation

– No presumption that employees should be represented by a union

– Possibility of employee deunionization at specified intervals

10

Majority Rule

• Choice of union or or no union is by a majority of employees in unit

• If majority select representation, employees in unit are represented by a union

• If majority do not select representation, employees in unit are not represented by a union

11

Exclusive Representation

• If a union is chosen by a majority of employees, it represents all employees in the unit, whether they voted for union or not

• Employer must negotiate with that union

• No other union may represent those employees

12

Collective Agreements

• Almost always written

• Legally enforceable in court

• Usually enforced by final and binding arbitration

13

Basic Legal Framework (cont.)• Unfair Labor Practices• Bargaining

– Limited to terms and conditions of employment in U.S.– Broader in Canada

• Outcomes determined by economic strength and, occasionally use of economic weapons

• Administration by an administrative agency– NLRB in U.S.– Comparable bodies in Canadian jurisdictions

14

U.S. LABOR LAW:THREE DISTINCT ERAS

• Pro-Employer Tilt: 1806-1926/35

• Pro-Union Tilt: 1926/1935-1947

• Government as Umpire?: 1947- Present

15

Pro-Employer Tilt: 1806-1926/35

• 1806-42 Conspiracy Doctrine Established– Cordwainer’s Case in 1806

– Any Combination to Raise Wages Unlawful

• 1842-1932– Conspiracy Doctrine Rejected (Commonwealth v.

Hunt) • A pro-union exception to the generally pro-employer period

– Focus on Tactics

– Through Early 1870’s - Damage Suits Against Unions

16

Pro-Employer Tilt: 1806-1926/35(continued)

• Starting in 1870’s - Injunction– Impairs union activity at its inception– Generally enjoined picketing at or near the

employer's place of business

• Anti-Trust Laws– Sherman Act (1890) prohibited combinations

and conspiracies in restraint of trade– Union activity construed as a combination in

restraint of trade

17

Pro-Employer Tilt: 1806-1926/35(continued)

• Clayton Act (1914) attempt to exclude union activity from anti-trust – Narrow interpretation (Duplex case)

• unions permitted to carry out “legitimate” objective• actions in restraint of trade (boycott) not “legitimate”

• No protection for workers from employer retaliation for union activity

• No vehicle for formal recognition of unions– Strikes were generally recognition strikes

• Brandeis in dissent in Duplex case: “I have come to the conclusion that both the common law of a state and a statute of the United States declare the right of industrial combatants to push their struggle to the

limits of the justification of self-interest . . . ” (254 U.S. 443, 488, 1921)

18

Clayton Act of 1914

• Sec. 17. - Antitrust laws not applicable to labor organizations

• The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor . . . organizations, instituted for the purposes of mutual help, . . . or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws

19

Pro-Union Tilt: 1926/1935-1947

• Railway Labor Act of 1926– covered labor relations in rails– developed by agreement of carriers and rail

unions– rail strikes of concern due to impact of strikes on

commerce– Created a National Mediation Board

• Recognition• Settlement of Disputes

20

Pro-Union Tilt: 1926/1935-1947(continued)

• Norris La-Guardia Act of 1932– Removed Authority from Federal Courts to Issue

Injunctions in Labor Disputes• Many states passed “Little Norris La-Guardia Act”• Northwest Airlines and refusal of bankruptcy court to enjoin a

flight attendants’ strike (August ’06)

• National Industrial Recovery Act (1933)– Section 7(a)– Participation in program contingent on recognizing rights

of employees to organize• Difficulty in enforcement• Limited to Participants

21


• National Labor Relations (Wagner) Act of 1935– Opposed by employers (unlike RLA)

– Provides structure of IR system

– Still in Existence Today

– Basic Principles• Procedures to determine whether ees wish to be represented by

a labor organization (union)

• Exclusive Representation

• Unfair Labor Practices

• National Labor Relations Board

22


• Structure of Wagner Act– Section 1 - Findings and Policies

– Section 2 - Definitions• “Employer,” “Employee,” “Labor Organization”

– Section 3 - Created a National Labor Relations Board• (at time) 3 members, 3 yr terms, appt. by President with

consent of Senate

– Section 4,5 - NLRB pay and location

– Section 6 - Rule Making Authority

23


• Wagner Act (continued)– Section 7 - source of employee rights

• self organization

• form, join, assist labor orgs

• bargain collectively through reps

• other concerted activities for mutual aid or protection

24


• Wagner Act (continued)– Section 8 - Unfair Labor Practices by Employers

• 8(1) no interference, restraint, or coercion

• 8(2) no domination of labor organization

• 8(3) no discrimination in regard to employment for purpose of encouraging or discouraging membership

• 8(4) no discrimination for involvement in NLRB procedures

• 8(5) may not refuse to bargain collectively with representative of ees

25


• Wagner Act (continued)– Section 9

• Selection of Representatives (through procedures determined by Board)

• Appropriate Unit (determined by Board)• Majority rule

– Section 10• Prevention of UFLP’s• Board may issue complaints, compel evidence, decide cases,

and petition courts for enforcement

– Section 11• NLRB has investigatory authority

26


• Wagner Act (continued)– Section 12 - Fines for impairing Board Action– Section 13 - Right to Strike

27

Summary of Wagner Act

• Pro Union

• Focused on – Employee Rights to organize– Employer Actions that may impair that right

28

Government as Umpire?: 1947- Present

• Taft-Hartley Act of 1947

• Addressed many employer concerns about Wagner Act

• Enacted by a Republican Congress, overriding a Presidential veto.

• What did T-H do?

29

Government as Umpire?: 1947- Present (continued)

• Increased size of NLRB from 3 to 5 members (Section 3)– Board may delegate authority to 3-member panel

(quorum)

• Created a General Counsel as an independent prosecutorial arm of NLRB (Section 3)

• Provided employees with the right to refrain from union activity (Section 7)

30


• Created a series of union UFLP’s– Prohibition on restraining or coercing employees or

employers– Limitations on secondary activity (pressure on employees of

uninvolved employers)– Prohibitions on featherbedding (pay for no work)– Prohibited “hot cargo” agreements

• Outlawed closed shop – Permitted union shop if employer and union agree – States permitted to enact “right-to-work” statutes (Sec. 14b)

• Permitted Employer “free speech (Sec. 8c)

31


• Defined “duty to bargain”

• Defined evidentiary obligations of Board

• Made elections the preferred method of determining representation

• Placed some constraints on Board’s unit determination authority

• Excluded supervisors from coverage of the Act

• Created a Federal Mediation and Conciliation Service

• National Emergency Dispute Provisions

– “imperil the national health or safety”

32


• Labor-Management Reporting and Disclosure Act of 1958– Main purpose was to regulate internal union

affairs– Amended NLRA

• placed limits on recognitional/organizational picketing by unions

– 8(b)(7)

• closed loopholes in secondary activity provisions– -8(b)(4)

33


• Health Care Amendments of 1974– Brought nonprofit health care institutions under

the NLRA– Special measures to reduce possibility of strikes

34

Procedures in Board Cases

• Charge (C) Cases– charge to Board

• Regional office

– investigation by a field examiner– complaint if charge has “merit” (General Counsel)

• No complaint issued if charge has no merit

– hearing before ALJ (formerly TX)– To Board– To Court of Appeals– To SC, if Court grants cert.

35

Procedures in Board Cases (continued)

• Representation (R) Cases– To regional director– Will order an election if there is a showing of “substantial

interest”• 30% of employees in a unit

– Addresses unit dispute (if any)• Settlement• Hearing in front of field examiner with decision by regional director

on behalf of Board– No direct appeal to courts, but employer may refuse to bargain if

employees choose representation

• Election– May be delayed if there is a UFLP charge– Regional office may entertain objections to outcome based on conduct

during election

36

Fiscal 2006 Data• Unfair Labor Practice Cases

– 24,153 cases closed• 17,963 charges against employers under 8(a)• 5,603 charges against unions under 8(b)• 587 charges under other provisions

• Representation Cases– 1,583 RC elections, 126,364 employees

• Representative selected– 1,045 elections (53.2%)– 59,905 employees (47.4%)– Mean size of unit = 57.3 employees

• No representative selected– 919 elections (46.8%)– 66,459 employees (52.6%)– Mean size of unit = 72.3 employees

37

Fiscal 2007 Data• Unfair Labor Practice Cases

– 23,131 cases closed• 17,058 charges against employers under 8(a)• 5,625 charges against unions under 8(b)• 448 charges under other provisions

• Representation Cases– 1,382 RC elections, 83,847 employees

• Representative selected– 799 elections (57.8%)

– 42,198 employees (50.3%)

– Mean size of unit = 52.8 employees

• No representative selected– 583 elections (42.2%)

– 41,649 employees (49.7%)

– Mean size of unit = 71.4 employee

Fiscal 2008 Data• Unfair Labor Practice Cases (NLRB Ann. Rep. Table 7)

– 23,308 cases closed• 17,001 charges against employers under 8(a)

• 6,307 charges against unions under various provisions

• Representation Cases (NLRB Ann. Rep. Table 13)– 1,610 RC elections, 111,013 employees

• Representative selected– 1,024 elections (63.6%)

– 68,004 employees (61.3%)


• No representative selected– 586 elections (36.4%)

– 43,009 employees (38.7%)


38

Election Results and Employment in Bargaining Units, NLRB RC Elections, Fiscal 1992 - 2008

Fiscal YearTotal RC Elections

Total RC Elections Won

by Unions

Percent RC Elections Won

by Union

Elections in which no Rep.

Chosen

Total Employees in

All RC Elections

Employees In Elections Won

by Unions

Employees In Elections in Which

no Rep. Chosen

Pct of all Employees in Elections in

Elections Won By Unions

Diff. Pct Elections Won by Unions and

Pct Ees in Units Unions Won

1992 2927 1476 50.4% 1451 183865 66984 116881 36.4% 14.0%

1993 2991 1524 51.0% 1467 203674 85002 118672 41.7% 9.3%

1994 3020 1481 49.0% 1539 186339 73643 112696 39.5% 9.5%

1995 2860 1456 50.9% 1404 191825 76363 115462 39.8% 11.1%

1996 2738 1302 47.6% 1436 191929 69881 122048 36.4% 11.2%

1997 3029 1533 50.6% 1496 215562 92008 123554 42.7% 7.9%

1998 3289 1696 51.6% 1593 227390 90248 137142 39.7% 11.9%

1999 3120 1659 53.2% 1461 221210 102708 118502 46.4% 6.8%

2000 2957 1538 52.0% 1419 234111 106459 127652 45.5% 6.5%

2001 2672 1459 54.6% 1213 205722 79611 126111 38.7% 15.9%

2002 2580 1458 56.5% 1122 173912 78713 95181 45.3% 11.2%

2003 2457 1406 57.2% 1051 165462 74828 90634 45.2% 12.0%

2004 2262 1289 57.0% 973 161073 79132 81941 49.1% 7.9%

2005 2215 1354 61.1% 861 148831 69537 79294 46.7% 14.4%

2006 1583 1045 53.2% 919 126364 59905 66569 47.4% 5.8%

2007 1382 799 57.8% 583 83847 42198 41649 50.3% 7.5%

2008 1610 1024 63.6% 586 111013 68004 43009 61.3% 2.3%

SOURCE: National Labor Relations Board Annual Reports, Fiscal Years, 1992-2008, Table 13

39

40

41

NLRB RC REPRESENTATION ELECTIONS AND UNION REPRESENTATION,

UNITED STATES, 1992-2008

YearPct Pvt. Sector Nonag

Ees RepresentedTotal Employees in

All RC Elections

Workers in All RC Elections as

Percentage of All Pvt. Nonag Workers, Pctg.

Representa-tion Rate if Unions Won 100%

of Elections

Difference, Hypothetical - Actual

Pvt. Sector Nonag Rep. Rate

2008 8.5% 111013 0.104% 8.6% 0.001

2007 8.2% 83847 0.078% 8.3% 0.001

2006 8.1% 126364 0.118% 8.2% 0.001

2005 8.6% 148831 0.142% 8.7% 0.001

2004 8.7% 161073 0.157% 8.9% 0.002

2003 9.1% 165462 0.163% 9.3% 0.002

2002 9.4% 173912 0.173% 9.6% 0.002

2001 9.9% 205722 0.203% 10.1% 0.002

2000 9.9% 234111 0.234% 10.2% 0.002

1999 10.3% 221210 0.225% 10.6% 0.002

1998 10.4% 227390 0.235% 10.7% 0.002

1997 10.8% 215562 0.228% 11.0% 0.002

1996 11.2% 191929 0.208% 11.4% 0.002

1995 11.4% 191825 0.213% 11.7% 0.002

1994 12.0% 186339 0.211% 12.2% 0.002

1993 12.3% 203674 0.240% 12.5% 0.002

1992 12.7% 183865 0.219% 12.9% 0.002

42

Implications

• Unions win a majority of elections but only organize a minority of workers in units in which elections held

• Unions have less success in larger units– Better working conditions?

– Resources to oppose unions?

Organizing in Perspective

• Mean number of employees in all units selecting representation, 1992-2008 =77,366– Seating capacity, Michigan State University (MSU) Spartan

Stadium = 75,005– Average attendance at MSU football games, 1957-2007 =

70,540 • A very small number of employees are involved in

representation elections– If the union win rate were 100%, would make little

difference in union representation rate

SOURCE FOR SPARTAN STADIUM DATA: http://www.msuspartans.com/facilities/spartan-stadium.html

43

Current Election Issue

• How is majority determined?– NLRA

• NLRB determination of majority of votes case

– Railway Labor Act• Currently

– National Mediation Board (NMB)determination of majority of employees in a craft or class system-wide/company-wide

• non-votes count as no votes

• Proposed– NMB determination of majority of votes cast

• NLRB counting model

44

45

Administration of Act• NLRB

– Two Members since December, 2007

– Perceptions of partisanship and lack of confidence by unions and management

• Increase in recess appointments to NLRB

• Permits president to appoint a decision-maker with no consultation with other party

• “Batching” of appointments– Two from President’s party

– One from other party

Year Range Total Bd. Nominations and Renominations

Pct. Bd. Nominations Involving Recess Appointment

Pct. Bd. Nominations Involving Recess Appointments Never Confirmed

1935-47 11 0 0

1948-67 27 0 0

1968-87 19 10.5% 10.5%

1988-2009 30 63.3% 26.7%

46

Unsuccessful Attempts to Amend NLRA

• Advocated by Unions, Opposed by Employers

– 1975: Common Situs Picketing

– 1977-78: Rights to Organize, faster elections, increase penalties on employers

– 1990 and 1993: Ban employers from hiring perm. replacements during strikes

• Advocated by Employers, Opposed by Unions

– 1996: Ease restrictions on employee involvement programs

47

Current Bill• Advocated by unions, opposed by employers

– Employee Free Choice Act• Certification without elections if a majority of employees sign

authorization• First contract mediation and arbitration• Priority handling to discharge cases• Co-sponsorship in last session of Congress

– 46 senators, 215 representatives

– EFCA Link

http://www.govtrack.us/congress/bill.xpd?bill=h109-1696&tab=related

Documents

1 OVERVIEW OF LABOR LAW 2 Purpose of Labor Law To provide legal protection for the collectivization of the employment relationship –Organizing/Recognition