1. Chapter 3
The Legal Regulation of Unions and Collective Bargaining

2. The Conspiracy Doctrine
From 1800 to 1890 state courts relied on British common law to regulate the conduct of unions and employers
Cordwainers’ case: First landmark case in 1806
Court ruled efforts to raise wages were a criminal conspiracy
Commonwealth v. Hunt: In 1842, court ruled unions could exist, but were prohibited from using coercive practices

3. The Sherman Antitrust Act
Courts applied Sherman to unions, treating them as a “commodity”
Unions were treated like other monopolies or conspiracies that restricted trade
Courts used injunctions to discourage strikes
Employers could gain injunctions quickly

4. The Clayton Act Unions lobbied hard to end injunctions
In 1914, Congress passed the Clayton Act
The act was supposed to end the use of injunctions, but courts interpreted it narrowly and state courts continued to use injunctions

5. Legislation Granting Rights to Collective Bargaining
Legal and public policy opposition to the formation of unions began to erode in the early 20th century
Lloyd-LaFollette Act of 1912 gave postal employees the right to organize
War Labor Board supported rights for the private sector to organize
The start of pragmatic adjustments in response to union power and labor turmoil

6. The Railway Labor Act Passed by Congress in 1926
Specifies that the employees have the right to organize unions without employer interference and to bargain through the representatives of their own choosing
The purpose of the law was to establish procedures to reduce conflict in the railroads
Airlines were added in 1936

7. A Test of Constitutionality
The constitutionality of the RLA was in question until a Supreme Court Ruling
In 1930, Court heard Texas and New Orleans Railroad Company v. Brotherhood of Railway and Steamship Clerks
Court ruled that bargaining was in the “highest public interest” and would prevent the interruption of commerce
First time Supreme Court recognized the authority of the U.S. to protect union activities
Congress amended the RLA in 1934.
Established the National Mediation Board (NMB) to assist the bargaining process.
NMB conducts elections and certifies the lawful representative union of the employees.
The board is also authorized to mediate disputes in the railroad and airline industries.

8. The Norris LaGuardia Act
Passed in 1932, the Act provided an even stronger endorsement of collective bargaining than the RLA
It allows private sector employees full freedom of association, self-organization, and representatives to negotiate contractual terms
Also known as the “Federal Anti-Injunction Act” as it imposed restraints (but state courts continued to issue injunctions)

9. National Industrial Recovery Act
NIRA passed in 1933 to promote recovery from the Depression
Allowed business groups to plan & regulate prices; workers in the plan had minimum wages
Meant to stimulate business activity
Struck down by Supreme Court; Congress had exceeded its authority
From , union members grew from 2.9 to 3.9 million

10. National Labor Relations Act
Passed in 1935, the NLRA made union activity and strikes legal in the private sector
Purpose was to promote orderly and peaceful recognition of unions and collective bargaining as a means of establishing terms of employment
Later amended by Taft-Hartley (1947) and Landrum-Griffin (1959)
Key Provisions of the NLRA
Section 1
Congress states that employers who deny the right to organize and refuse to accept collective bargaining lead to labor strife and are harmful to the nation since these actions disrupt commerce.
Congress declares that it is the policy of the United States to encourage the practice collective bargaining.
Section 2
Defines the terms used in the act (employer, employees, supervisor, etc.)
Section 3
Establishes the National Labor Relations Board (NLRB)
Board consists of 5 members appointed by the President and confirmed by the Senate.
Members serve five year terms.
NLRB general counsel has responsibility to investigate unfair labor practice charges and issue complaints.
Section 7
Grants to employees “t he right to self-organization” and the right to “bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining.”
Unions were thus given the right to picket and strike.
An employer may not discriminate against workers because they have participated in a strike, but MAY hire temporary or permanent replacements for striking workers.
Employers may “lock out” employees over mandatory subjects of bargaining.
Thus, an employer may lock out to force the union to agree to the employer’s terms, even though the workers are content to accept present conditions and to continue bargaining.
A strike that is part of a secondary boycott is illegal. For example, a union in a dispute with a manufacturing company cannot extend a strike to a company that supplies parts to the manufacturing company.
Section 8
Requires both parties to bargain in good faith.
Bargaining in good faith means that the employer and the representative of the employees “meet at reasonable time and confer tin good faith with respect to wages, hours, and other terms and conditions of employment.”
The duty to bargain does not require either side to agree to the others conditions or to make concessions.
If either side chooses to bargain over a mandatory issue, the other is obligated also.
Either side can refuse to bargain over “permissible” items, such as the corporate advertising policy.
Neither side can engage in “illegal” subjects of bargaining, such as a closed shop clause or a racially discriminatory clause.
Unfair Labor Practices
Section 8 also outlines unfair practices of both the employer and union
Unfair practices of the employer
cannot discriminate against a worker for union activities or views.
Unfair Labor Practices by Unions
Unions cannot coerce employees in the exercise of their Section 7 rights.
Unions cannot cause an employer to discriminate against employees who have been denied union membership unless it was due to a failure to pay dues.
Unions are not allowed to engage in: forcing an employer to join any labor or employer organization, forcing an employer to bargain with a non-certified labor organization, forcing an employer to assign work to employees unless the NLRB has ordered the employer to do so, requiring employees to pay excessive union fees, unlawful picketing, or requiring employers to pay for services not performed.
Section 8 also outlaws “hot cargo” clauses except in the construction and apparel industries. Such clauses require that employees not handle particular goods, such as from a non-union firm.
Section 9
Provides that union representatives are selected by the majority of employees in a unit designated by the NLRB.
Section 10
NLRB is empowered to issue a cease-and-desist order if it discovers an unfair labor practice.

11. National Emergency Disputes
Title II of the NLRA includes procedures when a strike has caused a national emergency dispute
The NLRA created the Federal Mediation and Conciliation Service (FMCS) to mediate disputes and assist in the free flow of commerce
President can ask for a court injunction to require both sides to work under the expired contract while holding negotiations
If that fails, Congress can end the dispute

12. Administration of the NLRA
A five-member board with a general counsel, 50 regional boards and staff administers the NLRA
Key function of the NLRB is to supervise and conduct representation elections and to adjudicate charges of unfair labor practices
The NLRB can award back pay but cannot assess punitive damages
Court must enforce orders and the aggrieved can appeal to court

13. The Taft-Hartley Act
After WWII, labor unions had grown in strength and a strike wave stimulated hostility toward unions
Congress passed the Taft-Hartley in 1947 to balance the power and grant more individual rights in dealing with unions
Union unfair practices were added to Section 8
Excludes supervisors in the private sector from coverage under the NLRA
Mandates labor reports to DOL, frequency of union elections, and allows DOL trusteeship

14. The Landrum-Griffin Act
Known also as the Labor-Management Reporting and Disclosure Act of 1959
Major purpose was to protect union members from improper union conduct
Eliminated arrangements between unions and employers that deprive members of proper union representation
Includes “bill of rights” section for members

15. The Value of Collective Bargaining
The Contribution to Political Democracy
Right to form unions and carry out strikes is an essential component of political democracy
The Need for the Right to Strike
Since the freedom to enter a contract also requires the freedom to reject a contract offer, the right to negotiate and strike are closely related
Additional Justifications for Collective Bargaining
Employers and employees better understand their problems than third parties, thus better solutions can be effectuated by bargaining.
The parties may lose the capability to resolve their own problems once they begin to rely on outsiders for resolving their differences.

16. Public Sector Law
Collective bargaining rights were granted to federal employees through Executive Order in 1962
The Civil Service Reform Act of 1978 established the FLRA for the federal sector
Since the passage of the NLRA, 41 states have passed collective bargaining legislation for state and local employees

17. Employment at Will
Doctrine that stipulates that the employee and employer are free to end the employment relationship at any time, for any reason, and without liability, provided the termination does not violate any statutory or constitutional provisions
Thus, non-union employees may have no recourse if discharged

18. The Scope of the Doctrine
State courts have decided for the employment-at-will doctrine:
When there is no written contract, no specified term of employment, and no employee handbook
When an employee handbook is insufficient to establish exceptions to the “at will” doctrine
An expired union contract leads to employment at will
Otherwise, the contract would discourage good faith bargaining and be “inimical” to the collective bargaining process

19. Exceptions Imposed by State Courts
State courts have awarded back pay and reinstatement to discharged employees when:
The employer’s written policies constitute an implied contract and employment security
This limits employer discharge to “just cause”
Promises of employment security in a oral or written agreement, or through actions that lead employees to expect employment security
Firing an employee for refusing to violate statutory policy

20. Employment Law
Society has regulated certain employment conditions more directly than it does collective bargaining
In the U.S., such regulations include overtime, minimum wages, unemployment insurance, pensions, and other issues
The Fair Labor Standards Act of 1938 includes many of the key regulations
Regulation increased markedly in the 1960s and early 1970s.
Title VII of the 1964 Civil Rights Act provided government with regulation on promotion, transfer, seniority, and other terms of employment.
The Occupational Safety and Health act (OSHA) of 1970 established on-the-job safety and health standards and granted inspection and enforcement authority to the DOL.
ERISA in 1974 established minimum standards for private pension plans.
Americans With Disabilities Act (1990) make it unlawful for employers to discriminate against a qualified individual with a disability. Requires “reasonable accommodation.”
Family and Medical Leave Act (FMLA) of 1993 requires employers with 50 or more employees to grant up to 12 weeks of unpaid leave per year for health, child or family care needs.

21. Seniority and Equal Employment Opportunity Policy Goals
Seniority provisions regulate which worker will be laid off and who is eligible for promotion
In the past, some seniority systems were used to discriminate against minorities and women by creating segregated seniority units or progression ladders
Key Court Decisions on Seniority Systems
Supreme Court ruled in 1977 that departmental seniority units are legal as long as there is no intent to discriminate

22. Key Court Decisions on Seniority Systems
Supreme Court ruled in 1977 that departmental seniority units are legal as long as there is no intent to discriminate
Consent decrees are separate from judicial rulings
Federal agencies negotiate settlements, such as in the steel industry
Cannot be binding on persons who are not parties to the proceedings
Seniority systems cannot be altered by a court to benefit workers not victims of discrimination
An employer may follow seniority in layoffs, even if it effects blacks and women. p67

23. Key Court Decisions on Affirmative Action
The term “affirmative action” was first introduced by JFK in 1961 by Executive Order 10925
Title VII does not require affirmative action, but does require nondiscrimination in hiring, pay, and promotion
In the 1960s and 1970s, the Supreme Court expanded legal avenues for women and minorities battling discrimination
A more conservative shift began in the late 1970s
The term was first introduced by JFK in 1961 by Executive Order
Title VII does not require “affirmative action,” but does require nondiscrimination in hiring, pay, and promotion.
In the 60s and 70s, the Supreme Court expanded legal avenues for women and minorities battling discrimination.
A more conservative shift began in the late 70s
Benefits only to affected party, not the entire group.

24. A Timeline Placed on Civil Rights
Workers cannot be compensated for discrimination that occurred prior to the Civil Rights Act
An individual has 2 years to file a charge
In 1989, the Supreme Court ruled that affirmative action settlements can be reopened when a white male alleges reverse discrimination

25. Important Administrative Agencies
National Labor Relations Board (NLRB)
Administers the NLRA, including Taft-Hartley and Landrum-Griffin amendments
Key activities include designating bargaining units, conducting representation elections, and investigating and adjudicating unfair labor practice charges
U.S. Department of Labor
Conducts research and collects data
Also oversees equal opportunity employment, health and safety, and internal union affairs

26. Federal Mediation and Conciliation Service (FMCS)
Offers mediation service to labor and management in collective bargaining
National Mediation Board
Administers the Railway Labor Act, union representation, and mediation services
State and Local Agencies
A variety of agencies that regulate the conduct of public sector bargaining, provide mediation, and administer regulations

27. Summary Labor laws influence the conduct of collective bargaining
The NLRA is the key labor law that governs collective bargaining
Passed in 1935, it gives unions the right to strike, exclusive jurisdiction, defines unfair labor practices, and regulates bargaining
Before the NLRA, courts had applied the conspiracy doctrines and injunctions