Legal Environment for a New Century

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Legal Environment for a New Century 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

Legal Environment for a New Century 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.

Legal Environment for a New Century 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

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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 excluded from the bargaining unit.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.  An (illegal) “hot cargo” clause in union contracts attempts to prohibit an employer from doing business with a specified other company.

Legal Environment for a New Century 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 union’s 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.

Legal Environment for a New Century 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 arbitrator’s decision. A court may refuse to enforce an arbitrator’s award that is contrary to public policy.

Legal Environment for a New Century 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.

Legal Environment for a New Century 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.

Legal Environment for a New Century Picketing  Picketing the employer’s 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.

Legal Environment for a New Century 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 union’s decision not to file a grievance is illegal only if it was arbitrary, discriminatory, or in bad faith.

Legal Environment for a New Century “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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