OVERVIEW OF LABOR LAW

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OVERVIEW OF LABOR LAW
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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

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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

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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

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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

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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
• Procedures for employee deunionizing at specified
  intervals

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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

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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

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Collective Agreements

• Almost always written
• Legally enforceable in court
• Usually enforced by final and binding arbitration

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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

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THREE DISTINCT ERAS

• Pro-Employer Tilt 1806-1926/35
• Pro-Union Tilt 1926/1935-1947
• Government as Umpire? 1947- Present

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Pro-Employer Tilt 1806-1926/35

• 1806-42 Conspiracy Doctrine Established
• Cordwainers 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 1870s - Damage Suits Against Unions

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Pro-Employer Tilt 1806-1926/35(continued)

• Starting in 1870s - 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

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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)

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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

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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

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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

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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

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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

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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

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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

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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 UFLPs
• Board may issue complaints, compel evidence,
  decide cases, and petition courts for enforcement
• Section 11
• NLRB has investigatory authority

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Pro-Union Tilt 1926/1935-1947(continued)

• Wagner Act (continued)
• Section 12 - Fines for impairing Board Action
• Section 13 - Right to Strike

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Summary of Wagner Act

• Pro Union
• Focused on
• Employee Rights to organize
• Employer Actions that may impair that right

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Government as Umpire? 1947- Present

• Taft-Hartley Act of 1947
• Addressed many employer concerns about Wagner Act
• What did T-H do?

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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)

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Government as Umpire? 1947- Present (continued)

• Created a series of union UFLPs
• 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)

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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 Boards 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

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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)

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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

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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.

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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

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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

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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