1. Legal Framework1

2. 2 Historical Overview 1806 - 1842: Conspiracy Doctrine 1842 - 1932: Decline of Conspiracy Doctrine - Legal Focus on Union Tactics –Through 1870’s: Damage Suits –1880’s - early 1930s: Injunction 1932 - 47\55: Legal Environment Favorable to Unions and CB 1947\55 - Present: Legal Environment Neutral to Pro-Employer

3. 3 Basic Legal Framework National Law in U.S. for Private Sector –Mixed Federal\Provincial in Canada Employee Choice Some Exclusions –Some Employers Railway Labor Act –Some Employees Broad Definition of “Labor Organization” Representation by “Bargaining Unit” –Majority Rule –Exclusive Representation

4. 4 Labor Law Private Sector –National Labor Laws Public Sector –State Labor Laws Different in Canada –Provincial labor laws govern labor relations except for certain industries

5. 5 Private Sector National Labor Laws in United States –National Labor Relations Act In general, covers most of private sector except railroads and airlines –Will discuss coverage of law later –Railway Labor Act Covers railroad and airline industry

6. 6 Basic Principles of Private Sector Labor Law in United States Creates Basic Structure of U.S. Industrial Relations System Basic Principles –Decentralization –Employee Choice –Majority Rule –Exclusive Representation –Parties determine terms and conditions of employment Industrial conflict part of system of NLRA System Lengthy dispute resolution procedures under RLA –Written, Legally Enforceable Contracts Similar principles govern Canadian labor law

7. 7 Decentralized System System is organized by bargaining units – may be –Firm –Plant/Facility –Craft –Department –Multi-Firm if all parties agree

8. 8 Employee Choice –Employees in a unit choose whether they wish a union (labor organization) to represent them –Which union will represent? –No “enterprise unions” –No union registration with government –No presumption that employees should be represented by a union

9. 9 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

10. 10 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

11. 11 Parties Determine Terms and Conditions of Employment Parties create contracts No government involvement Use of economic weapons –Strikes –Striker replacements generally permitted (“scabs”) –lockouts

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

13. 13 Basic Legal Institutions Administration by an administrative agency –National Labor Relations Board (NLRB) in U.S. –Comparable bodies in Canada NLRB Structure –Five members appointed by President with advice and consent of U.S. Senate –Serve five-year terms, with a new vacancy occurring each year –Results in An agency that changes composition, and to some extent, views of labor issues, with changes in political views of the country An agency that can reverse itself on issues

14. 14 Legalism in U.S. System creates potential for legalism If one party wishes to use law, other party forced to it.

15. 15 Labor Law Statutes Amended Infrequently Enacted – 1935 Amendments –1947 –1958 –1974 Result – NLRB and judges are primary decision-makers with respect to employer and employee rights

16. Legal Framework16 Implications of Legal Doctrine Union Organizing –Evolution Employer noninvolvement, 1935-41 Employer involvement but required to permit union on premises to present views, 1941-53 Union exclusion –From presenting views, 1953 –From coming on premises (generally) 1956 1992 –Development of employer union resistance tools by mid-1950’s

17. Legal Framework17 Implications of Legal Doctrine (cont.) Bargaining –Board not involved in determining terms and conditions of employment –Mandatory and nonmandatory subjects Corporate restructuring –Defaults to an adversarial system System does not encourage cooperation –Bargaining power Implementation at impasse Strikers and replacements Flexibility in paying strike replacements –No subsystem to prevent employer pyramiding legal rights to deunionize

18. Legal Framework18 Implications of Legal Doctrine (cont.) Remedies –Little disincentive Delay Minimal government involvement –Favors economically stronger party

19. 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 19

20. 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. Representation 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 SOURCES: National Labor Relations Board, U.S. Bureau of Labor Statistics 20

21. 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 21

22. 22 Bargaining Basic Legal Doctrine – No obligation to agree – Implementation at impasse – Industrial Conflict Strikes – Permanent Replacements – Assertion of “good faith doubt” Lockouts – Temporary Replacements First Contract – 62% of certifications did not obtain a first contract within 1 year of certification (Ferguson, 2008) – Probability of first contract reduced by Delay (Objections) UFLP charge after cert.

23. 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 23

24. 24 Bargaining Basic Legal Doctrine – No obligation to agree – Implementation at impasse – Industrial Conflict Strikes – Permanent Replacements – Assertion of “good faith doubt” Lockouts – Temporary Replacements First Contract – 62% of certifications did not obtain a first contract within 1 year of certification (Ferguson, 2008) – Probability of first contract reduced by Delay (Objections) UFLP charge after cert.

25. Legal Framework25 Other Legal Issues Individual Rights –EEO –ADA –Age Discrim. –FMLA Workplace-Based –OSHA –WARN