Chapter 31 - Labor Law

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Norris-LaGuardia Act of 1932:

Back 1

Prohibited federal court injunctions in nonviolent disputes.

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National Labor Relations Act (NLRA) of 1935:

Back 2

Also known as the Wagner Act, this is the most important of all labor laws. A fundamental aim of the NLRA is the establishment and maintenance of industrial peace, to preserve the flow of commerce. The NLRA ensures the right of workers to form unions and encourages management and union to bargain collectively and productively.

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Section 7 of the NLRA

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Guarantees employees the right to organize and join unions, bargain collectively through representatives of their own choosing, and engage in other concerted activities.

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Section 8 of the NLRA makes it an unfair labor practice (ULP) for an employer:

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1. To interfere with union organizing efforts
2. To dominates or interfere with any union
3. To discriminate against a union member
4. To refuse to bargain collectively with a union

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National Labor Relations Board (NLRB):

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Established by the NLRA to administer and interpret the statute and to adjudicate labor cases.

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The NLRB has two primary tasks:

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1. Representation. The Board decides whether a particular union is entitled to represent a group of employees.
2. Unfair Labor Practices. The Board adjudicates claims by either the employer or workers that the other side has committed a ULP.

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Labor-Management Relations Act:

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Designed to curb union abuses, the statute amended section 8 of the NLRA to outlaw certain unfair labor practices by unions.

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Section 8(b) makes it an unfair labor practice for a union:

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1. To interfere with employees who are exercising their labor rights under Section 7
2. To encourage an employer to discriminate against a particular employee because of a union dispute
3. To refuse to bargain collectively
4. To engage in an illegal strike or boycott, particularly secondary boycotts.

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Labor-Management Reporting and Disclosure Act (LMRDA) of 1959:

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Also know as the Landrum-Griffin Act, the Act requires union leadership to make certain financial disclosures and guarantees free speech and fair elections within a union.

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State Labor Laws

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Preemption - states have no jurisdiction to regulate any labor issue that is governed by federal law.

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Who are Union Workers?

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1. Government employees - 36.4 percent are in unions
2. Private sector - 7.9 percent are in unions

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Which Occupational Groups have higher Membership?

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1. Education - 37.6 percent unionized
2. Police and Fire - 37.3 percent unionized

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Which Private Industries have the highest percentages of Union Workers?

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1. Transportation and utilities - 24.9 percent
2. Construction - 14.7 percent
3. Information Industries - 14.2 percent
4. Manufacturing - 12.9 percent

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Where do union workers live?

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1. Union membership is highest in the Northeast, North Central, and Pacific states
2. Half of all union workers live in just six states: California, New York, Illinois, Michigan. Ohio, and Pennsylvania.
3. Union membership is lowest in the South
4. In four states, union membership is below five percent: North Carolina, South Carolina, Arkansas, and Mississippi

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How Does Union/Non-Union Pay Compare? (Wage and Salary Workers)

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1. Union members average $781 per week
2. Non-union members average $612 per week

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Exclusivity:

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Under section 9 of the NLRA, a validly recognized union is the exclusive representative of the employee.

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Collective Bargaining Unit:

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The precisely defined group of employees who will be represented by a particular union.

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Organizing:

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1. Campaign - Union organizers talk with employees and interest them in forming a union
2. Authorization Cards - Union organizers ask workers to sign authorization cards, which state that the particular worker requests the specified union to act as her sole bargaining representative.
3. Recognition - If a union obtains authorization cards from a sizable percentage of workers, it seeks recognition as the exclusive representative for the bargaining unit.
4. Petition - Assuming that the employer does not voluntarily recognize a union, the union generally petitions the NLRB for an election.
5. Election - The NLRB closely supervises the election to ensure fairness. If more than 50 percent of the workers vote for the union, the NLRB designates that union as the exclusive representative of all members of the bargaining unit.

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Common issues that arise during an organizing effort:

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1. What may a union do during it organizing campaign?
2. What may the employer do to defeat the campaign?
3. What is an appropriate bargaining unit?

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What Workers May do:

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The NLRA guarantees employees the right to talk among themselves about forming a union, to hand out literature, and ultimately to join a union.

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What Employers May Do:

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The employer may vigorously present anti-union views to its employees, but may not use either threats or promises of benefits to defeat a union drive. When an employer outrageously interferes with a union organizing campaign, the NLRB may forgo the normal election, certify the union as the exclusive representative, and order the company to bargain.

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Appropriate Bargaining Unit:

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1. The Board generally certifies a proposed bargaining unit if and only if the employees share a community of interest.
2. Managerial employees must be excluded from the bargaining unit.
3. Confidential employees are generally excluded from the bargaining unit.

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Once the Board excludes managers and confidential employees, it looks for:

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1. Employees that share a community of interest
2. Rough equality of pay and benefits, and methods of computing both
3. Similar total hours per week and type of work
4. Similar skills and training
5. Previous bargaining history and the number of authorization cards from any different groups within the unit

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Collective Bargaining Agreement (CBA):

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The goal of bargaining is a contract.

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The three most common conflicts of a CBA are:

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1. Whether an issue is a mandatory subject of bargaining
2. Whether the parties are bargaining in good faith
3. How to enforce the agreement

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Mandatory Subjects of bargaining:

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1. wages
2. hours
3. Terms and conditions of employment

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Subcontracting:

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A manufacturer, rather than producing all parts of a product and then assembling them, contracts for other companies, frequently overseas, to make some of the parts. A company that subcontracts in order to maintain its economic viability is probably not required to bargain first; however, bargaining is mandatory if the subcontracting is designed to replace union workers with cheaper labor.

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Plant closing:

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An employer is not required to bargain over the closing of a plant, only the effects of the closing.

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No Strike/ No Lockout:

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Most agreements include some form of no-strike clause, meaning that the union promises not to strike during the term of the contract. No-strike and no-lockout clauses are both legal.

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Closed Shop:

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The employer must hire only union members. A closed shop is illegal.

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Union and Agency Shops:

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Membership in the union becomes compulsory after the employee has been hired. A union shop is generally legal.

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Agency shop:

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similar to a union shop, the new hire must pay union fees but need not actually join the organization.

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Hot Cargo Clause:

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Prohibits an employer from doing business with a specified company. Hot Cargo Clauses are illegal.

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Duty of Bargain:

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1. Both union and the employer must bargain in good faith with an open mind. However, they are not obligated to reach an agreement.
2. If an employer states that it is financially unable to meet the union's demands, the union is entitled to see records that support the claim.
3. Management may not unilaterally change wages, hours, or terms and conditions of employment without bargaining the issues to impasse.

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Grievance:

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a formal complaint with the company, notifying management that the union claims a contract violation.

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Concerted Action:

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Any tactics union members take in unison to gain some bargaining advantage. The NLRA guarantees the right of employees to engage in concerted action for mutual aid or protection.

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Strikes:

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The NLRA guarantees employees the right to strike, but with some limitations.

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Replacement Workers:

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Management has the right to hire replacement workers during a strike. After an economic strike, an employer may not discriminate against a striker, but the employer is not obligated to lay off a replacement worker to give a striker his job back. After a ULP strike, a union member is entitled to her job back, even if that means the employer must lay off a replacement worker.

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Picketing:

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Picketing the employer's workplace in support of a strike is generally lawful.

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Secondary Boycotts:

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Generally illegal, a secondary boycott is a picket line established not at the employer's premises but at the workplace of a different company that does business with the union's employer.

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Lockouts:

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A defensive lockout is almost always legal. It is one way management can respond to union pressure such as a sit-down strike or a whipsaw strike, which may occur when a union is simultaneously bargaining with various employers.

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Duty of Fair Representation:

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Requires that a union represent all members fairly, impartially, and in good faith. A union's decision not to file a grievance is illegal only if it was arbitrary, discriminatory, or in bad faith.

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Chapter Conclusion:

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Workers first attempted to organize unions in this country about 200 years ago in response to appalling working conditions.

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Chapter Review #1

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Section 7 of the National Labor Relations Act (NLRA) guarantees employees the right to organize and join unions, bargain collectively, and engage in other concerted activities.

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Chapter Review #2

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Section 8(a) of the NLRA makes it an unfair labor practice for an employer to interfere with union organizing, discriminate against a union member, or refuse to bargain collectively.

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Chapter Review #3

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Section 8(b) of the NLRA makes it an unfair labor practice for a union to interfere with employees who are exercising their rights under §7, to encourage an employer to discriminate against an employee because of a labor dispute, to refuse to bargain collectively, or to engage in an illegal strike or boycott.

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Chapter Review #4

Back 47

Section 9 of the NLRA makes a validly recognized union the exclusive representative of the employees.

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Chapter Review #5

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During a union organizing campaign, an employer may vigorously present anti-union views to its employees, but it may not use threats or promises of benefits to defeat the union effort.

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Chapter Review #6

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The National Labor Relations Board (NLRB) will certify a proposed bargaining unit only if the employees share a community of interest.

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Chapter Review #7

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The employer and the union must bargain over wages, hours, and other terms and conditions of employment. They may bargain other subjects, but neither side may insist on doing so.

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Chapter Review #8

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The union and the employer must bargain in good faith, but they are not obligated to reach an agreement. Management may not unilaterally change wages, hours, or terms and conditions of employment without bargaining to impasse.

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Chapter Review #9

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The NLRA guarantees employees the right to strike, with some limitations.

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Chapter Review #10

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After an economic strike, an employer is not obligated to lay off replacement workers to give a striker her job back, but it may not discriminate against a striker. After a ULP strike, the striking worker must get her job back.

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Chapter Review #11

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Picketing the employer's workplace in support of a strike is generally lawful; a secondary boycott is generally illegal.

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Chapter Review #12

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An employer may lock out workers, but only after giving them notice.

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Chapter Review #13

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Multi-employer bargaining and implementation do not violate antitrust laws.

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Chapter Review #14

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The duty of fair representation requires that a union represent all members fairly, impartially, and in good faith.

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Practice Test #1

Back 58

Power, Inc., operated a surface coal mine in central Pennsylvania. Financial losses led it to lay off a number of employees. After that, several employees contacted the United Mine Workers of America (UMWA), which began an organizing drive at the company. Power's general manager and foreman both warned the miners that if the company was unionized, it would be shut down. An office manager told one of the miners that the company would get rid of union supporters. Shortly before the election was to take place, Power laid off 13 employees, all of whom had signed union cards. One employee, who had not signed a union card, had low seniority but was not laid off. Later, one of Power's lawyers told several miners that anyone caught helping the 13 laid-off workers by contributing to a union hardship fund would “be out there looking for help from somebody else.” Comment.

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Practice Test #2

Back 59

Triec, Inc., is a small electrical contracting company in Springfield, Ohio, owned by its executives Yeazell, Jones, and Heaton. Employees contacted the International Brotherhood of Electrical Workers, which began an organizing drive. Six of the 11 employees in the bargaining unit signed authorization cards. The company declined to recognize the union, which petitioned the NLRB to schedule an election. The company then granted several new benefits for all workers, including higher wages, paid vacations, and other measures. When the election was held, only 2 of the 11 bargaining unit members voted for the union. Did the company violate the NLRA?

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Practice Test #3

Back 60

Q-1 Motor Express was an interstate trucking company. When a union attempted to organize Q-1's drivers, it met heavy resistance. A supervisor told one driver that if he knew what was good for him, he would stay away from the union organizer. The company president told another employee that he had the right to fire everybody, close the company, and then rehire new drivers after 72 hours. He made numerous other threats to workers and their families. Based on the extreme nature of the company's opposition, what exceptional remedy did the union seek before the NLRB?

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Practice Test #4

Back 61

Douglas Kuroda worked for the Hertz Corp. He and his supervisor had a heated argument in which Kuroda told his boss, “You may have a master's degree but you don't know sh*t.” The supervisor instructed Kuroda to punch out for the day, but Kuroda refused to leave until security officers escorted him off the premises. Hertz fired him, and Kuroda filed a grievance. The union represented Kuroda at an arbitration hearing. During the hearing, the union made no objection to certain evidence that the company offered to demonstrate why it fired Kuroda. The arbitrator ruled in favor of the company. Kuroda sued his union (and also Hertz). What kind of claim is he making against the union? Is he likely to win his claim?

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Practice Test #5

Back 62

Gibson Greetings, Inc., had a plant in Berea, Kentucky, where the workers belonged to the International Brotherhood of Firemen & Oilers. The old CBA expired, and the parties negotiated a new one, but were unable to reach an agreement on economic issues. The union struck. At the next bargaining session, the company claimed that the strike violated the old CBA, which had a no-strike clause and which stated that the terms of the old CBA would continue in force as long as the parties were bargaining a new CBA. The company refused to bargain until the union at least agreed that by bargaining, the company was not giving up its claim of an illegal strike. The two sides returned to bargaining, but meanwhile the company hired replacement workers. Eventually, the striking workers offered to return to work, but Gibson refused to rehire many of them. continued on next card.

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Practice Test #5 Continued

Back 63

In court, the union claimed that the company had committed a ULP by (1) insisting the strike was illegal and (2) refusing to bargain until the union acknowledged the company's position. Why is it very important to the union to establish the company's act as a ULP? Was it a ULP?

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Practice Test #6

Back 64

YOU BE THE JUDGE WRITING PROBLEM Plainville Ready Mix Concrete Co. was bargaining a CBA with the drivers' union. Negotiations went forward, on and off, over many months, with wages the major source of disagreement. Plainville made its final offer of $9.50 per hour, with step increases of $.25 per hour in a year and another $.25 per hour the following year. The plan also included certain incentive pay. The union refused to accept the offer, and the two sides reached an impasse. Plainville then announced it was implementing its plans. It established a wage rate of $9.50 per hour but eliminated the step increases and incentive pay. Was the company's implementation of the wage increase legal? Argument for Plainville: The NLRA only requires the company to bargain in good faith, which we did. The law does not obligate us to agree to anything. Once the parties reached an impasse, Plainville could implement any plan it wanted. Continued on next card..

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Practice Test #6 continued

Back 65

Argument for the Union: When the parties reach an impasse, the employer is permitted to implement whatever it proposed at the bargaining table. It would defeat the purpose of collective bargaining if a company could implement plans it had never proposed.

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Practice Test #7

Back 66

Eads Transfer, Inc., was a moving and storage company with a small workforce represented by the General Teamsters, Chauffeurs and Helpers Union. When the CBA expired, the parties failed to reach agreement on a new one, and the union struck. As negotiations continued, Eads hired temporary replacement workers. After 10 months of the strike, some union workers offered to return to work, but Eads made no response to the offer. Two months later, more workers offered to return to work, but Eads would not accept any of the offers. Eventually, Eads notified all workers that they would not be allowed back to work until a new CBA had been signed. The union filed ULP claims against the company. Please rule.

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Practice Test #8

Back 67

Olivetti Office U.S.A., Inc., was located in Newington, Connecticut, and its workers were represented by the United Automobile, Aerospace and Agriculture Implement Workers of America. The company's president reported to the union that Olivetti was losing money. He insisted that unless the union renegotiated certain wage increases in the current CBA, Olivetti would subcontract work to cheaper parts of the country to save money. The union requested to bargain over the proposed subcontracting, and Olivetti agreed. But when the sides met, the company would not permit the union to see the financial data that supported its arguments. After several meetings, the company declared an impasse, implemented its subcontracting proposal, and laid off workers in Connecticut. The union claimed this was a ULP. Was it?

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Practice Test #9

Back 68

Fred Schipul taught English at the Thomaston (Connecticut) High School for 18 years. When the position of English Department chairperson became vacant, Schipul applied, but the Board of Education appointed a less senior teacher. Schipul filed a grievance, based on a CBA provision that required the Board to promote the most senior teacher where two or more applicants were equal in qualification. Before the arbitrator ruled on the grievance, the Board eliminated all department chairpersons. The arbitrator ruled in Schipul's favor. The Board then reinstated all department chairs—all but the English Department. Comment.

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Practice Test #10

Back 69

Labor Day is a national holiday originally intended to celebrate the contributions of working men and women. But for most people today it simply means a day off from work—or the day before school begins. What are some reasons that unions have declined in membership and power? Are there are any reasons to think that organized labor may rebound and increase its strength?

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Practice Test #11

Back 70

ETHICS The chapter refers in several places to the contentious issue of subcontracting. Make an argument for management in favor of a company's ethical right to subcontract, and one for unions in opposition.

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Practice Test #12

Back 71

ROLE REVERSAL Write an essay question involving a union organizing campaign and a management response that includes both permissible advocacy and illegal conduct.