1. Chapter 14
Unions and Collective Bargaining

2. National Labor Relations Act
The National Labor Relations Act (NLRA) is administered by the National Labor Relations Board (NLRB).
Its duty is to protect the right of employees to engage in “concerted activities” and to decide whether or not to form a labor union for the purposes of negotiating with their employer.
Supervisors and managers are excluded from this protection.
The Act attempts to balance the competing concerns of labor and management.

3. INTRODUCTION
Labor law involves collective bargaining between employers & employees
The theory is that it is easier & better for both sides if employer only has to contend with representative of the group and not negotiate with each employee individually.
As non-farming labor class grew in this country, modern labor problems developed.
A great deal of tension has existed between laborers & those who own or manage businesses.

4. Early Labor Laws
W.W.I’s need for uninterrupted production made preventing wartime strikes critical.
The National War Labor Board was convened to peacefully resolve labor disputes.
Later, in response to the Depression, Congress enacted the National Industrial Recovery Act (Later declared unconstitutional by the Supreme Court in 1935).

5. Businesses used four means of controlling early unionization efforts:
Criminal conspiracy laws
Injunctions
Antitrust laws
Constitutional challenges

6. The system & laws that have developed have one objective: industrial peace
This is accomplished through the use of:
Collective bargaining
Arbitration
Originally it was an alternative to strikes
Today it is probably an alternative to litigation
During W.W. II 73% of all CBAs contained a provision for no strike grievance arbitration
Rights are enforceable by law for economic struggles between employer & employees, as developed and interpreted by a federal labor agency

7. Grievance arbitration
CBA is the collective bargaining agreement
Includes terms of employment, working conditions, seniority rules, etc., and usually a procedure for resolving disputes.
If one side violates the CBA, the other side files a grievance.
The CBA usually provides for the dispute to be resolved through binding arbitration, and includes an agreement not to strike over the matter.
If the violation effects an employee, he/she is the grievant, and is represented by the union at the arbitration.

8. Alternatively, violations of federal law are usually taken before the National Labor Relations Board.

9. You should understand these terms:
Arbitration
Grievance arbitration
Collective bargaining agreement or CBA
Union
Bargaining unit
Strike
Boycott
Yellow dog contract

10. LABOR LAW
Four main federal laws are the statutory basis for labor law and unionization
Norris-LaGuardia Act of 1932
Wagner Act of 1935
Taft-Hartley Act
Landrum-Griffin Act of 1959

11. The Norris- LaGuardia Act
Endorsed collective bargaining as a matter of public policy
Curtailed use of the injunction
Made yellow dog contracts unenforceable
Prohibited restraint of strikes and picketing
Permitted relief funds from union to strikers and publication of labor disputes
Injunctions could only be issued if an open-court hearing was held that established that unlawful act had been threatened or committed and would be or would continue to be committed unless restraints were order.

12. The Wagner/National Labor Relations Act
Mainstay of seminal labor legislation
Established National Labor Relations Board to enforce labor laws in the private sector
Gave both judicial and remedial powers to NLRB
Guarantees employees the right to engage in concerted activities for mutual aid or protection

13. The Wagner/National Labor Relations Act
Allowed for the certification and decertification of unions
Shop stewards are intermediaries between union and employer
Industrial unions are unions with branches at particular workplaces
Business agents represent union members’ interests at a given jobsite
Employers must bargain in good faith
Unions have duty of fair representation
Prohibits other unfair labor practices
Permits certain strikes and lockouts as well as picketing

14. The Taft-Hartley Act
Enacted as an amendment to Wagner Act to curb excesses by unions
Subordinated rights of employers, employees and unions to public health, safety and interest
Identified unfair labor practices committed by unions
Recognized right of employee to refrain from concerted activity

15. The Taft-Hartley Act Outlawed closed shops
Employee must become a member of the union to obtain a job
Allowed for agency shops and union shops
Agency shops require nonunion members to pay union dues
Union shops require employees to join the union with a certain amount of time after becoming employed
Permitted right-to-work laws

16. The Landrum-Griffin Act
Labor Management Reporting and Disclosure Act
Enacted in response to union corruption
Provided a bill of rights for union members
Provided procedures for conduction of union elections
Provided for safeguarding of union funds

17. NLRA: Employee Rights 1 Engage in self-organization
Form, join, or assist labor organizations
Bargain collectively with their employer through representatives of their own choosing
Go on strike
Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection
Refrain from such activities

18. Five Star Transportation v NLRB
Facts: After winning a 3 year contract to provide bus service for schools, employee bus drivers organized a union. When the school district put the next contract for bid, a non-union company (Five-Star) posted a bid $300,000 lower. Following a union meeting, some drivers wrote letters to the school district, urging them not to award the contract to Five-Star, because their bid was so low that they could not maintain current wage, benefit and safety conditions for the drivers. The contract was awarded to Five-Star. Some drivers applied to Five-Star and were not hired, admittedly because of their letters. They charged an unfair labor practice (ULP), and the NLRB found in their favor. Five-Star appealed.
Issue: Did Five-Star’s action constitute a ULP even though no employment relationship existed between it and the drivers?
Held: Yes. The Act defines “employee” broadly, and is not “limited to employees of a particular employer.” Other grounds for reversal were also denied.

19. Protection under the NLRA
For activity to be protected under the NLRA, it must be:
“Concerted activity” undertaken with or on behalf of other employees, not on behalf of an individual employee only
Undertaken in “mutual aid or support” of a group, not solely for an individual employee’s benefit
Protection for such activity may be lost if it constitutes "insubordination, disobedience or disloyalty," which is "adequate cause for discharge."

20. Just the Facts
A company purchased a manufacturing plant from IBM, which then became the largest customer for the products produced at the plant. Following the purchase, 10% of the workforce was permanently laid off. The plant was not unionized. As part of an effort to organize the plant, one of the employees was asked by a union to speak with a newspaper reporter about the layoffs. The article quoted the employee as saying that the layoffs had left “gaping holes” in the business and “voids in [its] critical knowledge base.” An IBM official read the article and contacted the company president to express his concerns that the layoffs had “gutted” the plant’s engineering staff. The company president reassured the IBM official that this had not occurred and then threatened the employee with termination if he made any more “disparaging” comments. A few weeks later, the employee posted a message on a newspaper’s website complaining about “all the bad things” that the company had done to its employees, stating that the employees needed union representation to protect themselves, and charging that the “business is being tanked by a group of people that have no good ability to manage it.” The employee was fired. Was the employee engaged in protected concerted activity? Did his termination violate the NLRA?
Endicott Interconnect Technologies v. NLRB, 453 F.3d 532 (D.C. Cir. 2006)

21. See Timekeeping Systems, Inc., 323 NLRB 244 (1997).

23. NLRB handles two types of cases:
Those alleging that an unfair labor practice has taken place in violation of the act
Representation questions concerning whether & how employees will be represented for collective bargaining
Board does not initiate these cases.

24. Unfair Labor Practices 1
Employers must refrain from:
Interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA
Dominating or interfering with the formation or administration of a labor organization
Discriminating against employees for the purpose of encouraging or discouraging membership in any labor organization
Retaliating against employees for filing charges or giving testimony under the act
Refusing to engage in collective bargaining

25. Unfair Labor Practices 2
Labor Unions must refrain from:
Restraining or coercing employees in the exercise of their rights under the Act
Causing an employer to discriminate against an employee for the purpose of encouraging or discouraging membership in a labor organization
Refusing to engage in collective bargaining
Broadening labor disputes to include neutral employers (“secondary boycott”)
Charging excessive or discriminatory initiation fees or dues
Causing an employer to pay for work not performed (“featherbedding”)
Picketing for more than 30 days for the purpose of obtaining union recognition

26. Elements of Discrimination
To establish a prima facie case of discrimination, the NLRB must show that:
The employee engaged in protected activity.
The employer was aware of the protected activity.
The employer demonstrated hostility toward the protected activity.
There was a causal connection between this hostility and the decision to deny an employment opportunity.

27. Union Organizing & Employer Response
Asking employees about their attitudes towards unions is not a per se violation of the NLRA, but tends to be intimidating and coercive, even without threats.
Employers should refrain from interrogating or polling employees to determine who wants a union or how employees intend to vote at a representation election.
The NLRA permits employers to state their views regarding unionization at meetings to which they may require attendance.
However, employers may not threaten reprisals or promise benefits for voting a certain way.

28. Representation Election Procedures 1
The group of employees entitled to vote in a representation election must be determined by the NLRB to be an “appropriate bargaining unit”.
The determining factor is whether employees, who may hold differing job titles and be spread across many workplaces, share a “community of interest”.
Factors to be considered include:
similarity of skills
interrelationship of tasks
common pay systems, supervision, and personnel policies

29. Representation Election Procedures 2
At least 30% of employees in a bargaining unit must wish to be represented by a particular union and sign authorization cards to that effect.
If an election is ordered, the employer must provide the names and addresses of all employees in the unit to the union, so that they may be contacted before the election.
It is during this time between the order and the election that activities of both parties are closely reviewed.
Employers may also voluntarily recognize a union.

30. CERTIFICATION PROCEDURES
Representation petition with regional office of NLRB
30% of employees must demonstrate they want an election
One valid election in a 12-month period.
Employer may also file petition.
Election usually occurs within 60 days of filing the petition.

31. DECERTIFICATION PROCEDURES
To determine if union continues to represent a majority of employees in the bargaining unit.
Must be supported by 30% of employees
Employers cannot start the decertification process

32. PREELECTION BOARD RULES
Employer may not
Interfere or coerce
Make threats or promise benefits
Violation of Board rule (set aside election) vs. violation of the Act (unfair labor practice).
Board’s preelection rules
No electioneering activities at polling places
24-hour rule
Excelsior list: provide list of eligible voters

33. Bargaining It is an unfair labor practice (ULP) to refuse to bargain.
Both parties have a duty to bargain in good faith.
If the parties agree, a mediator may be called in, but the mediator cannot impose an agreement.
If the parties are unable to reach agreement and a bargaining impasse is reached, then the employer can unilaterally implement its last, best offer.

34. GOOD FAITH BARGAINING Either side could violate
Management rights clause
Examples of bad faith:
Does not bargain. Just rejects all offers.
Rejections with no counterproposals.
Failure to show up for negotiations.
Failure to sign the written agreement.

35. UNFAIR LABOR PRACTICES: GOOD FAITH BARGAINING
Mandatory subjects of bargaining
Wages
Hours
Terms and conditions of employment
Other matters are “permissive subjects” of bargaining
Only refusal to bargain over mandatory subjects may form the basis of an unfair labor practice.

36. Strikes and Other Economic Weapons
Most negotiations conclude without strikes.
Strikers are not quitting, but trying to pressure their employers to act differently.
Private employers must not terminate employees for engaging in strikes.
Strikes, picketing, and related activities constitute “concerted activity”.
Federal government employees do not have the right to strike.
Strikers may not be fired, but can be replaced.

37. STRIKES AND LOCKOUTS
NLRA permits under certain circumstances, i.e., economic reasons, unfair labor practice, CBA expires.
Strikers remain employees.
CBA may contain no-strike, no-lockout provision.

38. REPLACEMENT WORKERS
Once a strike is over, strikers have a right to reinstatement if they offer an unconditional offer to return to work.
If jobs are occupied by replacement workers:
Unfair labor practice strikers are entitled to be reinstated
Economic strikers are not entitled to reinstatement

39. Enforcing Labor Agreements
The union becomes the voice for each individual employee, so that if the employee wishes to file a grievance, he must notify the union, which may wish to have a representative present at any meeting about the grievance.
Individual employees cannot agree to resolve grievances in ways that would conflict with the union labor agreement.
In arbitration of grievance disputes, the arbitrator decides disputes regarding the labor agreement.

40. EXCLUDED EMPLOYERS Federal, state, or municipal corporations
Federal reserve banks
Railroad companies under RLA, airline, & related companies
Labor organizations in their representative capacity

41. JUDICIAL EXCLUSIONS
Foreign crews on foreign vessels temporarily in U.S. ports (unless it involves American residents).
Organizations devoted principally to the promulgation of the faith of a religion.

42. EXEMPTED EMPLOYEES Agricultural laborers
Domestics within a person’s home
Employed by parent or spouse
Independent contractors
Supervisor
Those subject to RLA

43. SUPERVISOR
Individual having authority, in the interest of the employer, to hire , transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees
Or responsibly direct other employees
Or to adjust their grievances
Or effectively to recommend such action
The exercise of authority must not be of a routine or clerical nature, but requires the use of independent judgment.

44. NLRB v. Kentucky Community Care, Inc. 532 U.S. 706 (2001)
Carpenters Union petitioned to represent a single unit of 110 potentially eligible employees at residential care facility for persons suffering from mental retardation or mental illness.
The Care Home objected to the inclusion of 6 registered nurses in the bargaining unit, arguing that they were supervisors
The union was elected, and the Home refused to bargain with them.
The NLRB’s General Counsel filed an unfair labor practice complaint.

45. MANAGERIAL EMPLOYEES
Excluded not because of statutory language but because of Board policy approved by the Supreme Court.
They formulate, determine, & effectuate an employer’s policies.
Are full-time faculty members “professional” or “managerial” employees? See NLRB v. Yeshiva University.

46. What Would You Do?
Your small “big box” store recently acquired a manager who formerly worked at Wal-Mart, which has a long-standing opposition to unions. Over the past few years, some of your employees have talked about unionizing, but your low-key approach to handling it has kept you union-free. The new manager, upon hearing talk about unionizing from one of his subordinates, is taking a hard line and threatening improper action against the employee. What would you do?

47. See Issues for the Non-Union Workplace