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OVERVIEW OF LABOR LAW.

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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

40

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


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