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
“(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 Canada Other countries
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: /35
Pro-Union Tilt: 1926/
Government as Umpire?: Present

15. Pro-Employer Tilt: /35
Conspiracy Doctrine Established
Cordwainer’s Case in 1806
Any Combination to Raise Wages Unlawful
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 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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Pro-Union Tilt: 1926/1935-1947 (continued)
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. Government as Umpire?: 1947- Present (continued)
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. Government as Umpire?: 1947- Present (continued)
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. Government as Umpire?: 1947- Present (continued)
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. Government as Umpire?: 1947- Present (continued)
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 Representation 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 Representation 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

38. 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%)
Mean size of unit = 66.4 employees
No representative selected
586 elections (36.4%)
43,009 employees (38.7%)
Mean size of unit = 73.4 employees

39. Election Results and Employment in Bargaining Units, NLRB RC Elections, Fiscal 1992 - 2008
Fiscal Year
Total 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
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%
2003
2457
1406
57.2%
1051
165462
74828
90634
45.2%
12.0%
2004
2262
1289
57.0%
973
161073
79132
81941
49.1%
2005
2215
1354
61.1%
861
148831
69537
79294
46.7%
14.4%
2006
1583
1045
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, , Table 13

41. 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?

42. Organizing in Perspective
Mean number of employees in all units selecting representation, =77,366
Seating capacity, Michigan State University (MSU) Spartan Stadium = 75,005
Average attendance at MSU football games, = 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:

43. 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
Year Range
Total Bd. Nominations and Renominations
Pct. Bd. Nominations Involving Recess Appointment
Pct. Bd. Nominations Involving Recess Appointments Never Confirmed 11 27 19
10.5% 30
63.3%
26.7%

44. Unsuccessful Attempts to Amend NLRA
Advocated by Unions, Opposed by Employers
1975: Common Situs Picketing
: 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

45. Current Bill Advocated by unions, opposed by employers EFCA Link
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