1. Mgmt 583 Chapter 3: The National Labor Code Fall 2008

2. The National Labor Code  National Labor Relations Act (1935) Wagner-Connerly Act  Labor Management Relations Act (1947) Taft-Hartley Act  Labor Management Reporting and Disclosure Act (1959) Landrum-Griffin Act

3. National Labor Relations Act  Objectives: Reduce work stoppages Increase wages through collective bargaining Increase demand for more goods through increased wages, hence stimulate the economy

4. National Labor Relations Act  Covered Employers: Private sector employers engaged in interstate trade. Employers defined by size & industry:  Nonretail $50,000  Retail $500,000  Hotels $500,000  Colleges $1,000,000  Healthcare $250,000

5. National Labor Relations Act  Exempt Employers: United States government or any wholly owned federal government corporation. Any Federal Reserve Bank. Any State or political subdivision thereof. Any entity subject to the Railway Labor.

6. National Labor Relations Act  § 2 Definitions § 2(3) The term employee shall include any employee, unless the Act explicitly states otherwise.  any agricultural laborer.  a domestic servant of any family or person at his home.  any individual employed by his parent or spouse.  any individual having the status of an independent contractor.  any individual employed as a supervisor.  any individual employed by an employer subject to the Railway Labor Act.  any other person who is not an employer as herein defined.

7. National Labor Relations Act  § 2 Definitions § 2(5) an entity is consider to be a labor organization under the Act if it meets the following conditions:  Employees participate.  The organization exists (at least in part) for the purpose of “dealing with’ employers.  These “dealings” involve conditions of work, grievances, labor disputes, wages rates of pay or hours of employment,

8. National Labor Relations Act  § 3 Creates the National Labor Relations Board (NLRB) Enforces the NLRA Investigates unfair labor practice charges. Oversees certification elections and the recognition process Composition:  Five members serve 5-year terms  Appointed by the president  Confirmed by the Senate

9. National Labor Relations Act  National Labor Relations Board (NLRB) The current Members are:  Robert J. Battista (Chairman) - Bush  Wilma B. Liebman - Clinton  Peter C. Schaumber - Bush  Dennis P. Walsh - Bush  Peter N. Kirsanow - Bush Of the total ULP charges filed each year [approximately 30,000], only one-third are found to have merit of which over 90% are settled.

10. National Labor Relations Act  § 7 Employees Right to Organize Employees have the right to organize without interference Employees have the right to bargain collectively Employees have the right to strike for better conditions Employees have the right not to organize (Employee Free Choice)

11. National Labor Relations Act  § 8(a) Unfair Labor Practices by Management § 8(a)(1) the Derivative Violation. Interfering with, restraining, or coercing employees in the exercise of their § 7 rights.  Threatening discharge  Spying  Threatening to move the plant (run away plants)  Bribing or extorting employees for their votes  Questioning employees about their votes

12. National Labor Relations Act § 8(a)(2) Unlawful Domination. Prohibits company unions. Broadly worded:  Interferes with a labor organization’s formation  Interferes with a labor organization’s administration  Provides financial support to a labor organization Note: The employer’s motives are irrelevant. NLRB v. Newport News Shipbuilding, 308 U.S. 241 (1938). Employee participation programs violate § 8(a)(2) Electromation v. IBT 309 N.L.R.B. no. 163 (1992). Electromation v. NLRB, 35 F.3d 1148 (7 th Cir. 1993).

13. National Labor Relations Act § 8(a)(3) Unlawful Discrimination Based on Union Membership:  Cannot discriminate against union [or nonunion] employees with regard to their conditions of employment  Requires proof of employer’s intent to discourage union membership  Examples: Discharging pro union employees Refusing to hire pro union applicants Constructive discharges Superseniority to permanent strike replacements

14. National Labor Relations Act § 8(a)(4) Whistleblowers Clause:  Cannot retaliate against an employee who files an unfair labor practice complaint against the employer.

15. National Labor Relations Act § 8(a)(5) Obligation to Bargain in Good Faith:  Employer must bargain with the bargaining units recognized/certified bargaining agent  Mandatory Bargaining Issues: Wages Hours Conditions of Employment

16. National Labor Relations Act § 9 Certification Process NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937) declared the NLRA to be constitutional [though under duress]

17. Labor Management Relations Act  Historical Background At its enactment, NLRAs critics claimed it gave the unions too much power with no checks & balances  Closed shops were rampant  Mgmt had to bargain in good faith, but not the union  Secondary boycotts were common place  Employees were coerced into joining unions  Strikes were used to coerce employers into making concessions

18. Labor Management Relations Act  Historical Background cont’d  Featherbedding was common  Organized crime had infiltrated some unions Instead of reducing labor stoppages, under the NLRA they actually increased  1941 4,300 strikes  1945 4,750 strikes  In 1943 UMW strikes caused the coal mining industry to be seized by the federal government and administered by the Dept of the Interior  In Post-War American unions were fueling inflation

19. Labor Management Relations Act  Objectives Balance power between the two parties in the collective bargaining process Curb union abuses  § 8(b) Unfair Labor Practices by the Union

20. ULPs by the Union  § 8(b)(1) Employee’s § 7 Rights § 7 8(b)(1)(a) Employee’s Right to Free Choice  Union cannot interfere with employees § 7 rights.  Examples: Picket line violence Threats of violence to nonunion employees Threaten loss of job to nonunion employees if the union wins certification Entering into a recognition agreement when the union does not have a majority showing of interest

21. ULPs by the Union  § 8(b)(1) Employee’s § 7 Rights § 8(b)(1)(b) Union cannot coerce the employer in the selection of the employer’s bargaining representative.  Union cannot insist on meeting only with the owner.  Employers may select whomever they want to represent their interests

22. ULPs by the Union  § 8(b)(2) Fair Representation Unlawful to force any employer to discriminate against non-union members of the bargaining unit.  Demanding different wages or benefits based on union membership.  Failing to submit a grievance based on union membership.

23. ULPs by the Union  § 8(b)(3) Bargain in Good Faith Unions cannot refuse to collectively bargain with an employer.  No “take or leave it “ultimatums.

24. ULPs by the Union  § 8(b)(4) Secondary Boycotts § 8(b)(4)(A) Hot cargo clause. Forcing an employer to enter an agreement with the union to refrain from handling goods of another employer against whom the union has labor dispute. § 8(b)(4)(B) Forcing an employer to cease doing business with another employer against whom the union is striking

25. ULPs by the Union  § 8(b)(4) Secondary Boycotts cont’d § 8(b)(4)(C) Forcing an employer to recognized a union when another union has already been certified as the bargaining representative.. § 8(b)(4)(D) Forcing an employer to assign work to employees of one union rather than members of another union (jurisdictional disputes)

26. ULPs by the Union  § 8(b)(5) Excessive Dues & Fees Unlawful for the union to charge a fee that the NLRB would consider excessive or discriminatory.

27. ULPs by the Union  § 8(b)(6) Anti-Featherbedding Clause Featherbedding - payment for services not performed or not to be performed.

28. ULPs by the Union  § 8(b)(7) Limitations on Organizational Picketing No picketing when a certified bargaining agent is already in place No picketing within 12 months of the last certification or decertification election. Picketing must cease if a certification petition has not been filed with the NLRB 30 days after the commencement of such picketing

29. Notification of Modification of CBA  § 8(d) Written notice no later than 60 days prior to the expiration of the contract. Health care institutions have a 90 day notification requirement.

30. Right-to-Work Laws  § 14(b) Right-to-Work Laws Nothing in this Act shall be construed as authoring the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which the execution or application is prohibited by State or Territorial law. Does not apply to employees who work on federal property or for a railway or airline (RLA).

31. Continuum of Compulsory Union Membership Exclusive Bargaining Rights Agency Shop Maintenance of Membership Shop Modified Union Shop Union Shop Preferential Union Shop Closed Shop Open Shop

32. Compulsory Union Membership  Open Shop - non union  Exclusive Bargaining Rights Certified/recognized bargaining agent Membership is strictly voluntary Only union members must pay dues

33. Compulsory Union Membership  Agency Shop Certified/recognized bargaining agent Membership is strictly voluntary Union members must pay dues; nonunion members of the BU pay equivalent of dues. Highest form of recognition in a right-to-work states,

34. Right-to-Work States (22)  Alabama  Arizona  Arkansas  Florida  Georgia  Idaho  Iowa  Kansas  Louisiana  Mississippi (1954)  Nebraska  Nevada  North Carolina  North Dakota  Oklahoma (2001)  South Carolina  South Dakota  Tennessee  Texas  Utah  Virginia  Wyoming

35. Compulsory Union Membership  Maintenance of Membership Shop Certified/recognized bargaining agent Membership is voluntary in a limited sense. Union members must pay dues; nonunion members of the BU pay equivalent of dues. However, once a member joins the union they must remain a member in good standing as a condition of employment

36. Compulsory Union Membership  Modified Union Shop Certified/recognized bargaining agent All new hires must join the union old nonunion employees may remain non union. Union members must pay dues; nonunion members of the BU pay equivalent of dues. However, once a member joins the union they must remain a member in good standing as a condition of employment.

37. Compulsory Union Membership  Union Shop Certified/recognized bargaining agent All employees must join the union. Union members must pay dues. Union membership is a condition of continued employment.

38. Compulsory Union Membership  Preferential Union Shop Applicable only to building & construction trade unions (§ 8 (f)). Allows temporary (7-day) assignment of nonunion workers to the local. Temporary members must pay dues. Temporary union membership is renewable.

39. Compulsory Union Membership  Closed Shop Must be a union member before applying for the job. Illegal under the LMRA..

40. Mediation and Conciliation Service  § 202 Federal Mediation and Conciliation Service (FMCS) Nonbinding Purpose is to get the two parties (labor and management) talking to one another.

41. National Emergency Disputes  §§ 206-210 National Emergency Dispute Resolution Must involve an actual or threatened strike or lockout affecting an entire industry, or a substantial part thereof, that if permitted would:  Imperil national health  Imperil national safety

42. National Emergency Disputes  National Emergency Dispute Resolution Process President forms a board of inquiry which investigates and reports on the magnitude of the strike or lockout. President may direct the Attorney General to petition any federal district court for an 80-day injunction

43. National Emergency Disputes  National Emergency Dispute Resolution Process cont’d The FMCS will be sent in to attempt mediation At the end of 60 days the board of inquiry reports any progress to the president. President may make the report available to the public. NLRB within the next 15 days makes the employer’s final offer available to each employee for individual balloting.

44. National Emergency Disputes  National Emergency Dispute Resolution Process cont’d The NLRB certifies the results. If a settlement is reached the matter is closed. If not, the president reports to Congress and makes recommendations as appropriate.

45. Labor Management Reporting and Disclosure Act  Labor Management Reporting and Disclosure Act (LMRDA), a.k.a. the Landrum-Griffin Act of 1959.  Enacted because of the undemocratic and corrupt actions of the IBT, UMW, and ILA. "I'm paid $25,000 a year to run this outfit.... Why should truck drivers and bottle washers be allowed to make decisions affecting policy? No corporation would allow it." Dave Beck, IBT The McClellan Committee (United States Senate Select Committee on Improper Activities in Labor and Management) brought about the conviction of Dave Beck, for tax evasion and misuse of union funds in 1957. James Riddle "Jimmy" Hoffa took over the IBT after Beck’s conviction. Hoffa was convicted in 1964 of using the assets of the Teamsters' pension plans, particularly the Central States plan, to support Mafia projects, such as the development of Las Vegas in the 1950s and 1960s.

46. Labor Management Reporting and Disclosure Act  The major provisions of the LMRDA: Bars members of the Communist Party and convicted felons from holding union office. Requires labor unions to submit annual financial reports to the DOL. Requires secret ballot elections of local union officers Declares that every union officer must act as a fiduciary in handling the assets and conducting the affairs of the union. Limits the power of unions to put subordinate bodies in trusteeship, a temporary suspension of democratic processes within a union. Provides minimum standards to be met before a union may expel or take other disciplinary action against a member of the union.