Employment Law Unit VI

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit VI Upon completion of this unit, students should be able to:

6. Explain the authority of unions in the workplace. 6.1 Outline seven different areas or processes in collective bargaining that are of interest to you.

Course/Unit

Learning Outcomes Learning Activity

6 Unit Lesson Chapter 16 and 17

6.1 Unit Lesson Chapter 15 and 17 Unit VI PowerPoint Presentation

Reading Assignment Chapter 15: Collective Bargaining Chapter 16: Picketing and Strikes Chapter 17: The Enforcement and Administration of the Collective Agreement, pp. 549-567, 577 Unit Lesson Studying the history of labor laws in the United States is a bit like looking at a pendulum in a clock – it swings one way until it reaches the extreme of its movement, and then it moves back the other way. By the beginning of the 20th century, employers had become powerful as a result of the Industrial Revolution, and employees were often at the mercy of the policies that employers instituted and the wages that employers were willing to pay. As you can imagine, that power in the hands of employers sometimes led to employers taking advantage of and even abusing employees. In 1932, Congress passed the Norris-LaGuardia Act and in 1935, the Wagner Act (also called the National Labor Relations Act or NLRA). These acts declared certain actions by employers to be illegal and empowered unions to form to represent workers in dealing with employers, thus limiting and, in some cases eroding, the power that employers had exercised over employees. Although the increased power of unions was, in theory, good for employees, in too many cases, unions used their new power to improperly convince employees to allow the unions to represent them and to improperly force employers to make concessions to employees. There are still cases in which either management (employers) or labor (unions) allege that the other has violated some federal law that establishes what management and labor cannot do in dealing with employees and each other. However, the federal law framework for labor relations is now in place, and there are other federal laws that influence the relationship between employers and employees. Collective Bargaining Collective bargaining is the exertion of force by employees and employers on each other to force an agreement (Cihon & Castagnera, 2017). Is collective bargaining a right or a privilege? Have unions helped the economy or hurt it? Do unions help the worker or politicians? Is the United States going broke because of unions and collective bargaining? Do unions promote market inefficiency in workers? These are questions that many are asking. The answers are not clear.

UNIT VI STUDY GUIDE Collective Bargaining

BHR 3565, Employment Law 2

UNIT x STUDY GUIDE Title

Collective bargaining gives workers power in numbers to negotiate for increased wages, benefits, safe working conditions, and pay for overtime hours. Do these increases in benefits, such as pensions and wages, make our economy stronger or make companies less competitive and drive them out of business? Arguably, if workers have higher wages and benefits, they are more productive and contribute to society. Employers argue that higher wages mean they can hire fewer employees. Some argue that collective bargaining has driven them out of business. Companies that are not unionized or are overseas can charge less for their products and are more competitive. For example, teachers with tenure cannot be fired unless they do something wrong. Is this conducive to providing quality education to our children? Are state budgets inflated because of unionized state employees such as firefighters and teachers receiving pensions that are compounded and increased by a rate of return higher than investments? Individual contracts give way to collective bargaining. In 2010, some states such as Wisconsin and Ohio tried to take this bargaining power away from public workers. The workers rebelled and launched recall campaigns such as the one in Wisconsin to unseat the governor and legislators that supported laws to rein in public expenditures at the expense of working class employees. This right to bargain collectively helps the working class earn a decent living. It will not be taken away easily by state governments (Cihon & Castagnera, 2017). Some argue that the best way to fight for fair wages is collective bargaining. Many employees sign a contract to arbitrate instead of collective bargain. The right to collectively bargain is considered a concerted activity and is protected under the NLRA (Becker, 2012). The Taft- Hartley Act prohibited many kinds of strikes such as wildcat, jurisdictional, solidarity, and political (Smiley, 2015). Many states have passed right to work laws. These laws allow workers to receive the benefits of union negotiated contracts, but they do not have to pay union dues. Some argue that employees should not be forced into unions, but the right to work laws give employees the benefits of union members who pay dues. Strikes Jurisdictional strikes: This refers to the union members’ concerted refusal to work. The purpose is to assert the union’s right to particular job assignments and to protest the assignment of disputed work to members of another union or to unorganized workers (Brinker, 1972). This type of strike is illegal and hurts a secondary employer or innocent parties. Wildcat strikes: These types of strikes are also illegal and are undertaken without the authority of the union leadership (Cihon & Castagnera, 2017). Solidarity strikes: This is a secondary strike or an easy way to remember is a sympathy strike. Union members of one union strike in support of another union (Becker, 2012). Political strikes: This type of strike is directed against the government and not a specific employer. The goal may be to have the government pass a particular law (Becker, 2012). Picketing There is not a constitutional right to strike. However, there is a constitutional right to picket under the First Amendment freedom of speech. For decades, picketing has been practiced by those wishing to call attention to issues or concerns. Picketers display signs, distribute pamphlets, and speak to bystanders. Patrolling by moving around the premises of the employer usually accompanies picketing. Employees may also boycott the employers’ products and encourage others to do so. There are certain rules that must be followed by the picketers. They cannot block passage to the place of employment, and they cannot be threatening or violent. Employers use lockout tactics, which is withholding work from employees. All of these means are called pressure tactics.

Labor strikers picket in NY in the 1930s (“Photograph of labor strikes,” [ca. 1937])

BHR 3565, Employment Law 3

UNIT x STUDY GUIDE Title

The Enforcement and Administration of Collective Bargaining If one party is not upholding the contract that was agreed on in collective bargaining, the aggrieved party may bring a lawsuit in a state or federal court. The contract may indicate that disputes are to be handled through arbitration. The arbitration process is less costly and takes less time than a court proceeding. Arbitration would come after the parties have gone through the grievance process and have been unsuccessful. There are two types of arbitration:

x interest arbitration, and x rights arbitration.

Interest arbitration may interpret an existing contract, create a new contract, or modify an existing contract. Rights arbitration is the final step after all grievances have been exhausted. This is a process that is used when one party to the contract is not living up to the terms of the agreement.

References Becker, C. (2012). David E. Feller Memorial Labor Law Lecture: The continuity of collective action and the

isolation of collective bargaining: Enforcing federal labor law in the Obama Administration. Berkeley Journal of Employment and Labor Law, 33(2), 401-.417.

Brinker, P. A. (1972). Secondary strikes and picketing. Labor Law Journal, 23(11), 681-696. Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage

Learning. [Photograph of labor strikes in New York City]. [ca. 1937]. Franklin D. Roosevelt Library Public Domain

Photographs, 1882 - 1962 Collection. Retrieved from https://commons.wikimedia.org/wiki/File:Labor- Strikes-New_York_City,_New_York-strike_pickets_along_street_FSA_photo_by_-_NARA_-_196513.tif

Smiley, E. (2015). Collective bargaining 3.0. Dissent, 62(4), 69. Suggested Reading In order to access the following resource, click the link below. This is a short, one-page article on the wearable technology revolution. Wearable technology could unleash a Pandora's box of HR evils. (2016). HR Specialist: California

Employment Law, 10(10), 7. Retrieved from https://libraryresources.columbiasouthern.edu/login?url=http://search.ebscohost.com/login.aspx?direc t=true&db=buh&AN=118406826&site=ehost-live&scope=site