2. 1 OVERVIEW OF LABOR LAW

3. 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

4. 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...

5. 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

6. 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

7. 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

8. 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

9. 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

10. 9 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

11. 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

12. 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

13. 12 Collective Agreements Almost always written Legally enforceable in court Usually enforced by final and binding arbitration

14. 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

15. 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

16. 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

17. 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

18. 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)

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 26 Pro-Union Tilt: 1926/1935-1947 (continued) Wagner Act (continued) –Section 12 - Fines for impairing Board Action –Section 13 - Right to Strike

28. 27 Summary of Wagner Act Pro Union Focused on –Employee Rights to organize – Employer Actions that may impair that right

29. 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?

30. 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)

31. 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)

32. 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”

33. 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)

34. 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

35. 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.

36. 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

37. 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

38. 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

39. 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 38

40. 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 19922927147650.4%145118386566984 11688136.4%14.0% 19932991152451.0%146720367485002 11867241.7%9.3% 19943020148149.0%153918633973643 11269639.5%9.5% 19952860145650.9%140419182576363 11546239.8%11.1% 19962738130247.6%143619192969881 12204836.4%11.2% 19973029153350.6%149621556292008 12355442.7%7.9% 19983289169651.6%159322739090248 13714239.7%11.9% 19993120165953.2%1461221210102708 11850246.4%6.8% 20002957153852.0%1419234111106459 12765245.5%6.5% 20012672145954.6%121320572279611 12611138.7%15.9% 20022580145856.5%112217391278713 9518145.3%11.2% 20032457140657.2%105116546274828 9063445.2%12.0% 20042262128957.0%97316107379132 8194149.1%7.9% 20052215135461.1%86114883169537 7929446.7%14.4% 20061583104553.2%919126364599056656947.4%5.8% 2007138279957.8%58383847421984164950.3%7.5% 20081610102463.6%586111013680044300961.3%2.3% SOURCE: National Labor Relations Board Annual Reports, Fiscal Years, 1992-2008, Table 13 39

41. 40

42. 41 NLRB RC REPRESENTATION ELECTIONS AND UNION REPRESENTATION, UNITED STATES, 1992-2008 Year Pct Pvt. Sector Nonag Ees Represented Total 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 20088.5%1110130.104%8.6%0.001 20078.2%838470.078%8.3%0.001 20068.1%1263640.118%8.2%0.001 20058.6%1488310.142%8.7%0.001 20048.7%1610730.157%8.9%0.002 20039.1%1654620.163%9.3%0.002 20029.4%1739120.173%9.6%0.002 20019.9%2057220.203%10.1%0.002 20009.9%2341110.234%10.2%0.002 199910.3%2212100.225%10.6%0.002 199810.4%2273900.235%10.7%0.002 199710.8%2155620.228%11.0%0.002 199611.2%1919290.208%11.4%0.002 199511.4%1918250.213%11.7%0.002 199412.0%1863390.211%12.2%0.002 199312.3%2036740.240%12.5%0.002 199212.7%1838650.219%12.9%0.002

43. 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?

44. 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

45. 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

46. 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 RangeTotal Bd. Nominations and Renominations Pct. Bd. Nominations Involving Recess Appointment Pct. Bd. Nominations Involving Recess Appointments Never Confirmed 1935-471100 1948-672700 1968-871910.5% 1988-20093063.3%26.7%

47. 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

48. 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 LinkEFCA Link