1. 1 OVERVIEW OF LABOR LAW

2. 2 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

3. 3 Private Sector National Labor Laws in United States –National Labor Relations Act In general, covers all private sector except railroads and airlines –Will discuss coverage of law later –Railway Labor Act Covers railroad and airline industry

4. 4 Basic Principles of Private Sector Labor Law in United States Creates Basic Structure of U.S. Industrial Relations System Basic Principles –Decentralized System –Employee Choice (with constraints) –Majority Rule –Exclusive Representation –Written, Legally Enforceable Contracts Similar principles govern Canadian labor law

5. 5 Decentralized System System is organized by bargaining units – may be –Firm –Plant/Facility –Craft –Department –Multi-Firm if all parties agree construction, longshoring, trucking Representation continues in the unit, even if employees change over time

6. 6 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 –Procedures for employee deunionizing at specified intervals

7. 7 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

8. 8 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

9. 9 Collective Agreements Almost always written Legally enforceable in court Usually enforced by final and binding arbitration

10. 10 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

11. 11 THREE DISTINCT ERAS Pro-Employer Tilt: 1806-1926/35 Pro-Union Tilt: 1926/1935-1947 Government as Umpire?: 1947- Present

12. 12 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

13. 13 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

14. 14 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 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)

15. 15 Clayton Act of 1014 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

16. 16 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

17. 17 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” 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

18. 18 Pro-Union Tilt: 1926/1935-1947 (continued) National Labor Relations (Wagner) Act of 1935 –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

19. 19 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 - Creates 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

20. 20 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

21. 21 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

22. 22 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) –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

23. 23 Pro-Union Tilt: 1926/1935-1947 (continued) Wagner Act (continued) –Section 12 - Fines for impairing Board Action –Section 13 - Right to Strike

24. 24 Summary of Wagner Act Pro Union Focused on –Employee Rights to organize – Employer Actions that may impair that right

25. 25 Government as Umpire?: 1947- Present Taft-Hartley Act of 1947 Addressed many employer concerns about Wagner Act What did T-H do?

26. 26 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)

27. 27 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)

28. 28 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”

29. 29 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)

30. 30 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

31. 31 Procedures in Board Cases Charge (C) Cases – charge to Board Regional office – investigation by a field examiner – complaint if charge has “merit” 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.

32. 32 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

33. 33 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

34. 34 Current Bills Advocated by unions, opposed by employers –Employee Free Choice Act Certification without elections First contract mediation and arbitration Priority handling to discharge cases Current co-sponsorship (as of August, 2006) –43 senators, 215 representatives Advocated by employers, opposed by unions –Secret Ballot Protection Act Require a majority vote by employees in a bargaining unit to establish a collective bargaining relationship –Current co-sponsorship (as of August, 2006) 6 senators, 97 representatives