Labor Relations week 2
Chapter 4
Labor Law
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1
Learning Objectives
Understand how a legal system can either promote or repress unionization.
List the major provisions of United States labor laws and their underlying logic and rationale.
Understand the role of the National Labor Relations Board and similar state agencies in United States labor relations.
Compare the similarities and differences between United States private and public sector law.
Discuss the criticisms of United States labor law and possible directions for reform.
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Introduction 1
Labor relations are always critically shaped by the legal system, whether or not there are explicit labor laws
Common Law: Laws based on custom and judicial precedent, dating back several centuries into English jurisprudence.
Conspiracy.
Contract.
Injunction.
Due Process.
Statutory Law: Laws (statutes) passed by legislatures. The implementation of statutory law is shaped by judicial interpretation of the written statutes; over time, the accumulation of judicial precedents creates a body of case law for a particular statute.
Business Law.
Labor Law.
Laws.
N L R B and Court rulings.
Employment Law.
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Introduction 2
Four periods of United States labor policy
Common law approach (1800 to 1932).
Intellectual foundation: Neoliberalism.
Business law approach (1890 to 1932).
Intellectual foundation: Neoliberalism.
Labor law approach (laws: 1932 to 1959, relevance: 1932 to present).
Intellectual foundation: Pluralist industrial relations.
Employment law approach (1960 to present).
Intellectual foundation: Human resource management school of thought
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Common Law Era 1
The Philadelphia shoemakers ruling started the conspiracy doctrine in labor relations
The first union convicted of being an illegal conspiracy in 1806.
Individual attempts to influence wages and working conditions are consistent with individual freedom.
But the collective aspect of union activity was considered an illegal conspiracy equals a criminal offense.
Between 1880s and 1920s, the application of common law to labor relations was dominated by the use of injunctions
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Common Law Era 2
Court-ordered restraints on action to prevent harm or damage to someone else.
Temporary restraining orders and injunctions are issued quickly by judges without full hearings.
Injunctions were most frequently issued to stop or limit picketing during strikes.
Injunctions contributed to breaking strikes in several ways
Turning public opinion away from strikers.
Draining the unions’ financial and human resources through legal proceedings.
Demoralizing strikers through fear and confusion.
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Common Law Era 3
In the 1900s labor injunctions were also applied to yellow dog contracts
Yellow dog contract: A promise by a worker not to join or support a union.
Refusal to agree to such conditions meant either termination or not being hired.
A union’s attempt to organize employees could result in an injunction.
If a union ignores such an injunction, there can be penalties for contempt of court.
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Business Law Era (1890 to 1932) 1
Sherman Antitrust Act (to prevent harmful effects of economic monopolies)
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” (section 1).
“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony…” (section 2).
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Business Law Era (1890 to 1932) 2
Does this apply to labor unions?
Supreme Court needed to decide.
Danbury Hatters case (1908)
United Hatters of North America initiated a nationwide boycott of hats made by a Danbury, C T, company.
The Supreme Court ruled that the union boycott violated the Sherman Antitrust Act.
Individual union members responsible for over 200,000 dollars in damages.
If a union monopolizes any part of the trade or commerce, then the Sherman Antitrust Act applies to such unions.
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Business Law Era (1890 to 1932) 3
Part of the transformation of the legal treatment of unions (and corporations) from voluntary associations beyond the state’s control to legally sanctioned organizations with corresponding rights and obligations in a pluralist society.
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Ending the Common and Business Law Eras 1
The onset of the Great Depression in the early 1930s
The political composition of Congress changed.
In 1932 the Norris–LaGuardia Act was enacted
Workers should be able to unionize to balance corporate power and obtain decent wages and working conditions.
Seeks to remove the courts from labor relations.
Forbids injunctions on strikes, strike benefits, publicizing a dispute, peaceful picketing, and workers joining unions.
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Ending the Common and Business Law Eras 2
Makes yellow dog contracts unenforceable and ends the criminal conspiracy doctrine of labor unions.
Exempts labor unions from the Sherman Antitrust Act.
But does not give unions any explicit rights.
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The Beginnings of the Labor Law Era 1
The National Industrial Recovery Act (N I R A) (1933 to 1935)
Broad-based act to try to stabilize competition, stimulate economic activity, and create jobs.
Specified that industry codes of fair competition should say that employees shall have the right to organize and bargain collectively.
Prohibitions on interference, restraint, and coercion by employers.
A National Labor Board was created to help settle labor disputes, but without specific enforcement powers it was ineffective.
Employers established sham company unions in an attempt to minimally comply with the N I R A without recognizing independent labor unions.
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The Beginnings of the Labor Law Era 2
The failure of the National Labor Board (Minneapolis Teamsters strike, 1934).
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14
The Beginnings of the Labor Law Era 3
The Railway Labor Act
Many failed attempts to improve highly disruptive railroad labor relations led to the Railway Labor Act in 1926.
The purpose of the Act was to avoid strikes and other forms of labor–management conflict.
Initially only applied to the railway industry.
Airlines added in 1936; still in force today.
Protects the rights of employees to form labor unions.
Provides government mediation of bargaining disputes.
Establishes adjustment boards to resolve grievances.
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The Beginnings of the Labor Law Era 4
A private sector example: The Amalgamated Clothing Workers
The garment industry was traditionally characterized by destructive competition.
In the 1910s and 1920s the A C W brought stability and order to the garment industry through strong collective bargaining and an orderly grievance procedure.
The militancy of small work groups was replaced by the discipline of “responsible” union leaders and union contracts.
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The Beginnings of the Labor Law Era 5
An early example of a union working cooperatively with employers and the government to create economic stability, increased purchasing power, and fair economic outcomes while also providing some form of employee voice
Labor law seeks the same goals.
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Solving Labor Problems: The Wagner Act 1
This act builds upon previous legislative attempts to promote and protect workers’ abilities to unionize in the private sector if they so choose
Enacted in 1935 after the N I R A was ruled unconstitutional.
Remains as the centerpiece of United States labor law today.
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Solving Labor Problems: The Wagner Act 2
The Principles of the Wagner Act [equals I R school of thought]
Labor is more than a commodity.
Labor and management are not economic or legal equals.
There is at least some conflict of interest between workers and employers that cannot be resolved by unitarist management policies.
Employee voice is important.
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Solving Labor Problems: The Wagner Act 3
The New Deal was based on the industrial relations school of thought, not neoliberalism, H R M, or critical I R
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Solving Labor Problems: The Wagner Act 4
Protecting union activity to balance efficiency, equity, and voice
Efficiency - Increasing the purchasing power of workers, reducing disruptive strike activity, and largely maintaining employer’s property rights.
Equity - Achieving fair employment conditions and protections against exploitation.
Voice - Providing democracy in the workplace.
But from the perspectives of other schools of thought:
Harmful protection of monopoly labor (mainstream econ).
Unnecessary support of adversarial third parties (H R M).
Imperfect attempt to empower labor (critical I R).
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Solving Labor Problems: The Wagner Act 5
Also known as the National Labor Relations Act (N L R A)
The core of the Wagner Act
Employees shall have the right to self-organization.
They may bargain collectively through representatives of their own choosing.
They may engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
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Solving Labor Problems: The Wagner Act 6
The act builds from earlier legislative failures and shortcomings in three ways
Specifying a certification procedure for establishing whether a majority of workers want union representation.
Defining illegal employer actions.
Creating an independent agency, the National Labor Relations Board (N L R B), to enforce the act.
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Solving Labor Problems: The Wagner Act 7
Exclusive representation and certifying majority status
Wagner Act explicitly establishes exclusive representation when a union has the support of a majority of a group of employees.
It is unique to North America and stems from Senator Wagner’s experience under the N I R A.
Without exclusivity, companies established multiple company unions.
Allows secret ballot elections to determine whether a majority of workers support a specific union.
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The Wagner Act: Key Provisions
| Section | Description |
| Section 3 to 6 | Creates the National Labor Relations Board (N L R B) to resolve representation questions and adjudicate unfair labor practices |
| Sections 7 | Guarantees employees the right to form unions, bargain collectively, and engage in other concerted activities for mutual aid and protection |
| Section 8 | Defines five employer unfair labor practices: (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it (3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization (4) To discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act (5) To refuse to bargain collectively with the representatives of his employees |
| Section 9 | Establishes exclusive representation for unions that have majority support and grants them rights of collective bargaining over wages, hours of employment, and other conditions of employment. Empowers the N L R B to define appropriate bargaining units and to determine majority support via a secret ballot election or other suitable means. |
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The National Labor Relations Board (N L R B) 1
Independent federal agency created by the Wagner Act
It comprises of a general counsel’s office and a five-member board of presidential appointees.
Conducts representation elections
Adjudicates unfair labor practices
If an individual believes an unfair labor practice has occurred, they can file charges with an N L R B regional office.
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The National Labor Relations Board (N L R B) 2
If the regional office finds merit in the charge, a hearing will be held before an administrative law judge.
Violators can be ordered to cease and desist from their illegal activities.
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Solving Labor Problems: The Wagner Act 8
The first years of the Wagner Act
The Wagner Act was immediately controversial.
Laissez faire proponents attacked the act as interfering with corporate liberty.
Companies ignored the law.
General Motors sit-down strike and the Memorial Day Massacre occurred after the passage of the Wagner Act.
Some claimed it was unconstitutional.
But the Supreme Court’s 1937 ruling in N L R B versus Jones and Laughlin Steel Corp. declared the act constitutional.
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The Taft–Hartley Act 1
The Great Strike Wave of 1945 to 1946 raised questions as to whether organized labor was too strong
Many proposals were drafted to amend the Wagner Act.
The Taft-Hartley Act was passed in 1947.
Seeks to correct perceived “excesses” of the Wagner Act.
But labor labeled it the “Slave Labor Act”.
Amends and adds to the Wagner Act .
Restrictions on union actions.
Enhanced rights of individuals and employers.
New dispute resolution procedures.
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The Taft–Hartley Act 2
| Section | Description |
| Section 2 | Excludes supervisors and independent contractors |
| Sections 3 to 6 | Expands and restructures the National Labor Relations Board (N L R B) |
| Section 7 | Guarantees employees the right to refrain from forming unions, bargaining collectively, and engaging in other concerted activities |
| Section8 (a) | Modifies the third employer unfair labor practice to outlaw the closed shop |
| Section 8 (b) | Defines six union unfair labor practices: (1) To restrain or coerce employees in the exercise of the rights guaranteed in section 7 (2) To cause an employer to discriminate against employees except for failure to pay required union dues (3) To refuse to bargain collectively with the employer (4) To engage in secondary boycotts and certain forms of strikes and picketing (5) To require excessive or discriminatory membership fees (6) To force an employer to pay for services not performed (featherbedding) [(7) is added in 1959: To picket an employer to demand recognition except in limited circumstances] |
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The Taft–Hartley Act 3
| Section | Description |
| Section 8 (c) | Grants employers the right to express views and opinions except for threats and promises (employer free speech) |
| Section 8 (d) | Defines the bargaining obligation as meeting in good faith with respect to wages, hours, and other terms and conditions of employment, but as not requiring agreement |
| Section 9 | Specifies secret ballot elections for determining questions of majority support for both certification and decertification cases |
| Section 14 (b) | Allows states to pass right-to-work laws |
| Sections 201 to 204 | Creates the Federal Mediation and Conciliation Service (F M C S) to provide voluntary mediation |
| Sections 206 to 210 | Empowers the United States President to petition a court to suspend a strike that is deemed a national emergency strike |
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The Taft–Hartley Act 4
Union actions are also restricted by a change that outlaws closed shop agreements
Closed shop agreement: Provision negotiated into a collective bargaining agreement that requires the employer to hire only union members.
Union shop agreement: Workers must join the union within a certain amount of time after being hired.
Agency shop agreement: Like a union shop agreement, but rather than joining the union, workers must pay dues.
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The Taft–Harley Act 5
States are allowed to pass right-to-work laws that prohibit union or agency shop agreements
As of January 2020, there are 27 right-to-work states.
Most right-to-work laws are decades old, but starting in 2012 there was a push by conservative groups to enact new right to work laws.
With the Supreme Court’s decision in Janus v. AFSCME Council 31 (2018), the entire public sector is a right-to-work sector.
Right-to-work advocates label union and agency shops as “compulsory unionism” that violates individual freedoms by depriving workers of their right to freely choose whether or not to become a union member and pay union dues
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The Taft–Harley Act 6
Unions and their supporters see the argument for right to work laws as a smokescreen for the true conservative agenda: strengthening its political and legislative powers by weakening the labor movement as a key political opponent.
From this perspective, “right to work” means “right to shirk” (from supporting a union that represents you).
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Right-to-Work States
As of January 2020, there are 27 right-to-work states (unshaded states).
With the Supreme Court’s June 2018 decision in Janus v. AFSCME Council 31, the entire public sector became a right-to-work sector.
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The Landrum–Griffin Act
Major concern in the 1950s: union corruption
The Landrum–Griffin Act (1959) focuses on internal union affairs
Labor organizations, employers, and their officials should adhere to the highest standards of responsibility and ethical conduct.
Guarantees all union members equal rights of participation in internal union affairs (Bill of Rights of Members of Labor Organizations).
Requires reporting of officers, salaries, and financial records.
Restricts union trusteeships.
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Public Sector Labor Law 1
The N L R A covers private sector workers (with some exceptions)
What about public sector workers?
Unionization attempts starting in 1800s.
But early laws and legal rulings treated attempts to bargain with governments as interfering with the responsibility of elected government officials to establish public policies and protect the public interest.
In the 1950s, this aversion to public sector unions started weakening in the face of worsening public sector employment conditions and a new legal respect for the freedom of association.
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Public Sector Labor Law 2
The N L R A covers private sector workers (with some exceptions)
Public sector labor law has 51 separate jurisdictions.
The United States federal government for federal employees.
The 50 states for state and local government workers.
There can be significant differences in public sector labor law across jurisdictions.
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Public Sector Labor Law 3
First state law: Wisconsin (1959), still a lot of variation today
Federal sector
Executive orders starting in the 1960s codified into law by the Civil Service Reform Act (1978).
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Civil Service Reform Act
| Major Features of the Civil Service Reform Act | Similar to the N L R A |
| Grants employees the right to form unions and engage in collective bargaining | Yes |
| Applies to many federal government employees | No |
| Exclusive representation with majority support is a key principle | Yes |
| A union with the support of 10 percent but less than 50 percent of the bargaining unit has consultation rights | No |
| Unfair labor practices are specified | Yes |
| An agency conducts elections to determine majority support and adjudicates unfair labor practice charges | Yes |
| Negotiable issues exclude wages and benefits; bargaining is generally limited to policies and procedures | No |
| Explicitly grants management rights (the right to determine mission and budgets, to hire, assign, direct employees, and other managerial functions) to managers | No |
| Strikes are prohibited | No |
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State-Level Public Sector Labor Law 1
| Comprehensive (bargaining rights for nearly all occupations) (28 states) | |||
| Alaska | Illinois | Montana | Oregon |
| Arkansas | Kansas | Nebraska | Pennsylvania |
| California | Maine | New Hampshire | Rhode Island |
| Connecticut | Maryland | New Jersey | South Dakota |
| Delaware | Massachusetts | New Mexico | Utah |
| Florida | Michigan | New York | Vermont |
| Hawaii | Minnesota | Ohio | Washington |
Where laws exist, they are generally similar to the N L R A, but with many unique aspects, and many do not allow strikes.
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State-Level Public Sector Labor Law 2
| Narrow (no bargaining rights for some occupations) (14 states) | |
| Alabama | Missouri |
| Arizona | Nevada |
| Colorado | North Dakota |
| Georgia | Oklahoma |
| Idaho | Tennessee |
| Indiana | Texas |
| Kentucky | Wyoming |
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State-Level Public Sector Labor Law 3
| No Law (bargaining neither protected nor banned) (3 states) |
| Louisiana |
| Mississippi |
| West Virginia |
| Prohibitive (bargaining is prohibited) (3 states) |
| North Carolina |
| South Carolina |
| Virginia |
| Broad But Shallow (comprehensive coverage with limited rights) (2 states) |
| Iowa |
| Wisconsin |
Up-to-date through end of 2019.
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North Carolina
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Public Sector Controversies 1
Public sector bargaining laws are currently a highly-charged political issue
Traditionally, opposition based on a belief that unionization undermined governmental authority and therefore democracy.
But now, opponents of big government also see public sector unions as too powerful because they support strong government rather than undermine it.
In states with public sector bargaining laws, Republican lawmakers have increasingly tried to limit or abolish bargaining rights
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Public Sector Controversies 2
Labor unions say that the real motivation to roll back public sector unionization policies is to weaken the political power of unions because they traditionally support Democratic rather than Republican lawmakers.
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The Janus Ruling 1
Do mandatory agency fee arrangements in the public sector violate an individual’s free speech rights?
In Janus v. AFSCME Council 31 (2018), the Supreme Court ruled “yes”.
So the entire public sector became a right-to-work sector in which public sector unions are only financially supported by union members.
In the short-term, Janus is likely to reduce the financial strength of public sector labor unions in non-right-to-work states.
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The Janus Ruling 2
Unions need to emphasize relationship-building with workers.
More likely to pay dues if they feel part of a vibrant organization.
Could benefit organized labor in the longer run.
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Labor Law in Practice 1
N L R B decisions and precedents
The N L R A contains numerous general standards: good faith interference, restraint, domination, discrimination.
But in practice, what do these standards mean?
The N L R B must apply the facts of specific cases to these general legal principles to determine if violations have occurred.
When the N L R B hears a case, it issues a written decision that may serve as a precedent for future cases.
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Labor Law in Practice 2
Some N L R B or court precedents are so important that they have become part of everyday labor relations jargon
Beck rights, the Mackay doctrine, Weingarten rights, Borg–Warner doctrine, the Excelsior list, the Wright Line test.
Debating the need for labor law reform
Excessive delays in the certification process and minimal penalties for violators.
Who is a supervisor under the N L R A?
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Labor Law in Practice 3
Undocumented workers are protected under the N L R A, but are not entitled to back pay awards.
The N L R A protects the right to strike, but the Supreme Court lets employers use permanent strike replacements.
Union proponents favor expanding N L R A coverage to supervisors, streamlining the certification election, and banning the use of permanent strike replacements
Alternative views emerge from alternative schools of thought
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The Rise of Employment Law 1
Labor law focuses on workers’ collective actions
Employment law pertains to individual employment rights
The Equal Pay Act of 1963.
Prohibits discriminating between men and women in determining compensation for equal jobs.
Title VII of the Civil Rights Act of 1964.
Prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.
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The Rise of Employment Law 2
The Occupational Safety and Health Act (1970).
Obligates employers to provide safe workplaces.
The Family and Medical Leave Act of 1993.
Guarantees employees 12 weeks of unpaid leave to care for themselves, their parents, or their children.
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The Rise of Employment Law 3
Rise of employment law is important for labor relations
These laws directly affect labor relations by providing standards that both employers and unions must fulfill.
Questions over the adequacy of employment law protections against the potential abuses of the employment-at-will doctrine provide a basis for evaluating the need for labor unions in the 21st century.
Does employment law give nonunion workers sufficient levels of equity and voice?
By some accounts, employment law has made unions obsolete by providing basic protections, and the rise of employment law may therefore underlie the long-term decline in union density.
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End of Main Content
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Accessibility Content: Text Alternatives for Images
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Right-to-Work States 1 - Text Alternative
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The data from the map are as follows:
| American States That Have Enacted a Right-to-Work Law | Year of Enactment |
| Arkansas | 1944 |
| Florida | 1944 |
| Arizona | 1946 |
| Nebraska | 1946 |
| South Dakota | 1946 |
| Georgia | 1947 |
| Iowa | 1947 |
| North Dakota | 1947 |
| North Carolina | 1947 |
Continued on next slide
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Right-to-Work States 2 - Text Alternative
Return to parent-slide containing images.
The data from the map are as follows:
| American States That Have Enacted a Right-to-Work Law | Year of Enactment |
| Virginia | 1947 |
| Tennessee | 1947 |
| Texas | 1947 |
| Nevada | 1951 |
| Alabama | 1953 |
| Mississippi | 1954 |
| South Carolina | 1954 |
| Utah | 1955 |
| Kansas | 1958 |
Continued on next slide
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Right-to-Work States 3 - Text Alternative
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The data from the map are as follows:
| American States That Have Enacted a Right-to-Work Law | Year of Enactment |
| Wyoming | 1963 |
| Louisiana | 1977 |
| Idaho | 1985 |
| Oklahoma | 2001 |
| Indiana | 2012 |
| Michigan | 2013 |
| Wisconsin | 2015 |
| West Virginia | 2016 |
| Kentucky | 2017 |
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