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
– 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
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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
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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
14
U.S. 443, 488)
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 UFLP’s
• 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?: 1947Present
• Taft-Hartley Act of 1947
• Addressed many employer concerns about
Wagner Act
• What did T-H do?
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Government as Umpire?: 1947Present (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?: 1947Present (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)
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Government as Umpire?: 1947Present (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”
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Government as Umpire?: 1947Present (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?: 1947Present (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
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