Labor Relations 4

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Chapter 3Chapter 3

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Origin of Labor Relations LawOrigin of Labor Relations Law

 Under the preemption doctrine, federal law takes Under the preemption doctrine, federal law takes precedence over state law or local ordinancesprecedence over state law or local ordinances

 The judicial branch of government functions to The judicial branch of government functions to determine a law’s constitutionalitydetermine a law’s constitutionality

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Origin of Labor Relations Law (cont’d)Origin of Labor Relations Law (cont’d)

• Major Federal Labor Relations LawsMajor Federal Labor Relations Laws

 Railway Labor ActRailway Labor Act

 Norris-La Guardia ActNorris-La Guardia Act

 Wagner (National Labor Relations) ActWagner (National Labor Relations) Act

 Taft-Hartley (Labor-Management Relations) ActTaft-Hartley (Labor-Management Relations) Act

 Landrum-Griffin (Labor Management Reporting and Landrum-Griffin (Labor Management Reporting and Disclosure) ActDisclosure) Act

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Origin of Labor Relations Law (cont’d)Origin of Labor Relations Law (cont’d)

• Labor Relations Administrative AgenciesLabor Relations Administrative Agencies

 National Labor Relations Board (NLRB)National Labor Relations Board (NLRB)

 Federal Mediation and Conciliation Service (FMCS)Federal Mediation and Conciliation Service (FMCS)

 U.S. Department of Labor (USDOL)U.S. Department of Labor (USDOL)

 National Mediation Board (NMB)National Mediation Board (NMB)

 National Railroad Adjustment Board (NRAB)National Railroad Adjustment Board (NRAB)

 State and local administrative agenciesState and local administrative agencies

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The Norris-La Guardia Act of 1932The Norris-La Guardia Act of 1932 • Protection of Workers’ Basic RightsProtection of Workers’ Basic Rights

 Limited the power of federal courts to issue injunctions for Limited the power of federal courts to issue injunctions for employees’ lawful non-violent concerted acts as anti-trust employees’ lawful non-violent concerted acts as anti-trust violations.violations.

 Declared yellow-dog contracts unenforceable.Declared yellow-dog contracts unenforceable.  Encouraged more impartiality by courts in labor disputes.Encouraged more impartiality by courts in labor disputes.  Expressed congressional support for collective bargainingExpressed congressional support for collective bargaining

• ShortcomingsShortcomings  No regulatory agency designated to enforce the act.No regulatory agency designated to enforce the act.  No specific unfair labor practices for employers.No specific unfair labor practices for employers.

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The National Industrial Recovery Act The National Industrial Recovery Act of 1933of 1933

• Designed to stabilize economic activityDesigned to stabilize economic activity  Allowed businesses to form associations to draw up Allowed businesses to form associations to draw up

codes standardizing:codes standardizing:  MarketingMarketing

 PricingPricing

 Financial practicesFinancial practices

 Not effective in protecting employees’ rights to Not effective in protecting employees’ rights to organize and bargain effectively.organize and bargain effectively.

 Ruled unconstitutional by the Supreme Court in 1935.Ruled unconstitutional by the Supreme Court in 1935.

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The National Labor Relations Act of The National Labor Relations Act of 19351935• Also called the Wagner ActAlso called the Wagner Act

 Set national labor policy for labor peace and stability.Set national labor policy for labor peace and stability.

 Encouraged the use of collective bargaining.Encouraged the use of collective bargaining.

 Protected employees’ rights to organization and Protected employees’ rights to organization and representation.representation.

 Established the National Labor Relations Board Established the National Labor Relations Board (NLRB) to administer and enforce the act.(NLRB) to administer and enforce the act.

 Defined the unfair labor practices of employers.Defined the unfair labor practices of employers.

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Exhibit 3.1 Rights of Employees

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Labor Management Relations Act of Labor Management Relations Act of 19471947• Also called the Taft-Hartley ActAlso called the Taft-Hartley Act

 Amended the NLRA to balance labor relations policy.Amended the NLRA to balance labor relations policy.  Union unfair labor practices were added to the act.Union unfair labor practices were added to the act.

 Set up union security options for states to allow:Set up union security options for states to allow:  Union shopsUnion shops (mandatory union membership) (mandatory union membership)

 Open shopsOpen shops (union membership by employee choice) (union membership by employee choice)

 Agency shopsAgency shops (employees pay only for representation) (employees pay only for representation)

 Allowed unions to be sued by employers for damages Allowed unions to be sued by employers for damages resulting from illegal acts.resulting from illegal acts.

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Labor-Management Reporting and Labor-Management Reporting and Disclosure Act of 1959Disclosure Act of 1959

• Also called the Landrum-Griffin ActAlso called the Landrum-Griffin Act  Passed to protect union member rights and ensure Passed to protect union member rights and ensure

union democracy.union democracy.  Required secret-ballot elections of union officers.Required secret-ballot elections of union officers.

 Required union membership approval in setting dues and Required union membership approval in setting dues and levying assessments.levying assessments.

 Set federal financial reporting requirements.Set federal financial reporting requirements.

 Allowed neutral, secondary employers injured by unlawful Allowed neutral, secondary employers injured by unlawful union activities to sue unions for economic damages.union activities to sue unions for economic damages.

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National Labor Relations Board (NLRB)National Labor Relations Board (NLRB)

• Functions of the NLRBFunctions of the NLRB

 To interpret and administer the LMRATo interpret and administer the LMRA  Actions and decisions are subject to federal court review.Actions and decisions are subject to federal court review.

 Courts are to give deference to NLRB policies.Courts are to give deference to NLRB policies.

 Responsibilities:Responsibilities:  To prevent employer and union unfair labor practices.To prevent employer and union unfair labor practices.

 To determine employees’ desire for representation.To determine employees’ desire for representation.

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Composition of the NLRBComposition of the NLRB

• Five-Member PanelFive-Member Panel  Appointed by the president; confirmed by the Senate.Appointed by the president; confirmed by the Senate.  Members serve staggered five-year terms.Members serve staggered five-year terms.  Regional offices handle day-to-day affairs.Regional offices handle day-to-day affairs.

• General CounselGeneral Counsel  Investigates and prosecutes unfair labor practice Investigates and prosecutes unfair labor practice

charges.charges.  Represents the Board in federal court when it seeks a Represents the Board in federal court when it seeks a

court order to enforce its decisions or whenever its court order to enforce its decisions or whenever its decisions are appealed.decisions are appealed.

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Persons Covered under the LMRAPersons Covered under the LMRA

• Sources and Reasons for CoverageSources and Reasons for Coverage

 The commerce clause places most private-sector The commerce clause places most private-sector employers and employees under the act.employers and employees under the act.

 The NLRB may refuse to assert jurisdiction in cases The NLRB may refuse to assert jurisdiction in cases where it believes the effect on interstate commerce is where it believes the effect on interstate commerce is minor (minor (de minimusde minimus).).

 Monetary standards for firms set thresholds for Monetary standards for firms set thresholds for coverage of employers.coverage of employers.

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Persons Covered under the LMRA Persons Covered under the LMRA (cont’d)(cont’d)• Groups Excluded from Jurisdiction of the Act:Groups Excluded from Jurisdiction of the Act:

 Agricultural laborersAgricultural laborers

 Individuals covered by the Railway Labor ActIndividuals covered by the Railway Labor Act

 Private domestic service employeesPrivate domestic service employees

 Individuals employed by parent or spouseIndividuals employed by parent or spouse

 Public-sector employeesPublic-sector employees

 Independent contractorsIndependent contractors

 SupervisorsSupervisors

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Exhibit 3.2 NLRB Jurisdictional Standards Determining Employer Coverage under the LMRA

• Nonretail Business—Direct or indirect sales through others of goods to consumers in other states (called outflow), of at least $50,000 a year; or direct or indirect purchases through others of goods from suppliers in other States (called inflow), of at least $50,000 a year.

• Retail Business—At least $500,000 total annual volume of business.

• Office Building—Total annual revenue of $100,000, of which $25,000 or more is derived from organizations that meet any of the standards except the indirect outflow and indirect inflow standards for nonretail firms.

• Public Utility—At least $250,000 total annual volume of business, or $50,000 direct or indirect outflow or inflow.

• Newspaper—At least $200,000 total annual volume of business.

• Radio, Telegraph, Television, and Telephone Firms—At least $100,000 total annual volume of business.

• Private Health-Care Institutions—(e.g., hospital, HMO, clinic, nursing home)—At least $250,000 total annual volume of business for hospitals; at least $100,000 for nursing homes, visiting nurses associations, and related facilities; at least $250,000 for all other types of private health-care institutions.

• Hotel, Motel, Residential Apartment Houses—At least $500,000 total annual volume of business.

SOURCE: Office of the General Counsel, NLRB, A Guide to Basic Law and Procedures under the National Labor Relations Act (Washington, D.C.: U.S. Government Printing Office, 1997), pp. 33–35 at http://www.nlrb.gov/shared_files/brochures/basicguide.pdf.

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Exhibit 3.2 NLRB Jurisdictional Standards Determining Employer Coverage under the LMRA (cont’d)

SOURCE: Office of the General Counsel, NLRB, A Guide to Basic Law and Procedures under the National Labor Relations Act (Washington, D.C.: U.S. Government Printing Office, 1997), pp. 33–35 at http://www.nlrb.gov/shared_files/brochures/basicguide.pdf.

• Transportation Enterprises, Links, and Channels of interstate Commerce (e.g., Interstate bus, truck)—At least $50,000 total annual Income from furnishing Interstate passenger and freight transportation services or performing services valued at $50,000 or more for businesses which meet any of the jurisdictional standards except the indirect outflow and inflow standards established for nonretail firms. [Note: Airline and Railroad operations are covered under the Railway Labor Act (RLA), not the LMRA, and thus are not subject to NLRB jurisdiction].

• Transit Systems—At least $250,000 total annual volume of business.

• Taxicab Companies—At least $500,000 total annual volume of business.

• Associations—The annual business of each association member is totaled to determine whether any of the standards apply.

• Private Universities and Colleges—At least $1 million gross annual revenue from all sources (excluding contributions not available for operating expenses due to limitations by the donor).

• Any Firm with a Substantial Impact on National Defense.

• U.S. Postal Service by enactment of the Postal Reorganization Act of 1970.

• Symphony Orchestras—At least $1 million gross annual revenue from all sources (excluding contributions not available for operating expenses due to limitations by the donor).

• Social Service Organizations Not Covered under Any Other Standard—At least $250,000 gross annual revenue.

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Concerted and Protected Employee Concerted and Protected Employee ActivityActivity• Concerted ActivityConcerted Activity

 An action taken by or on behalf of two or more An action taken by or on behalf of two or more employees to express a grievance.employees to express a grievance.  Must be for a purpose contained in Section 7 of the LMRA.Must be for a purpose contained in Section 7 of the LMRA.

 Must be engaged in using lawful means; NLRB decides Must be engaged in using lawful means; NLRB decides lawfulness on case-by-case basis.lawfulness on case-by-case basis.

• TheThe Interboro Interboro Doctrine Doctrine

 An employee working alone may be considered to be An employee working alone may be considered to be engaged in concerted activity if seeking to enforce the engaged in concerted activity if seeking to enforce the terms of a collective bargaining agreement.terms of a collective bargaining agreement.

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NLRB Unfair Labor Practices (ULPs)NLRB Unfair Labor Practices (ULPs)

• Charging PartyCharging Party  The party (union, employer, or individual) filing the The party (union, employer, or individual) filing the

UPL chargeUPL charge  Represented by the General CounselRepresented by the General Counsel

• RespondentRespondent  The party accused of committing the violationThe party accused of committing the violation

• MeritMerit  A finding that a charge does involve a violationA finding that a charge does involve a violation

• Administrative Law Judge (ALJ) Administrative Law Judge (ALJ)  A judge who presides over the formal ULP hearingA judge who presides over the formal ULP hearing

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Exhibit 3.3 Unfair Labor Practice Procedure

SOURCE: National Labor Relations Board.

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Types of Unfair Labor Practice CasesTypes of Unfair Labor Practice Cases

• Routine CasesRoutine Cases  Involve ULP charges that do not raise novel or new Involve ULP charges that do not raise novel or new

issues of labor law.issues of labor law.  Can be determined by existing Board policies and Can be determined by existing Board policies and

legal principles.legal principles.

• Lead CasesLead Cases  Involve ULP charges that raise a new or novel labor Involve ULP charges that raise a new or novel labor

law issue or present the Board with the opportunity to law issue or present the Board with the opportunity to use the decision to create new policy or change use the decision to create new policy or change existing policy.existing policy.

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Remedies in Unfair Labor Practices Remedies in Unfair Labor Practices CasesCases• Cease-and-Desist OrdersCease-and-Desist Orders

 Instruct the respondent to stop the ULP.Instruct the respondent to stop the ULP.  Require respondent to post written notices of ULP.Require respondent to post written notices of ULP.

• Affirmative Relief Action Affirmative Relief Action  Requires the respondent to provide a make-whole Requires the respondent to provide a make-whole

remedy to individuals adversely affected by the ULP.remedy to individuals adversely affected by the ULP.  ReinstatementReinstatement  Compensation and benefitsCompensation and benefits  Promotion and restoration of seniorityPromotion and restoration of seniority  An order to bargain in good faithAn order to bargain in good faith  Decertification of the bargaining representativeDecertification of the bargaining representative

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Federal Courts and NLRB ULP Federal Courts and NLRB ULP DecisionsDecisions• Courts must enforce decision if:Courts must enforce decision if:

 the decision is a reasonable interpretation of the decision is a reasonable interpretation of congressional intent for the LMRA.congressional intent for the LMRA.

 the decision is supported by substantial evidence the decision is supported by substantial evidence contained in the case record.contained in the case record.

• Petition for Petition for CertiorariCertiorari

 A court of appeals’ decision appealed to the Supreme A court of appeals’ decision appealed to the Supreme Court when lower court decisions conflict with each Court when lower court decisions conflict with each other.other.

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Assessment of the LMRA and the Assessment of the LMRA and the NLRBNLRB• Current Labor PolicyCurrent Labor Policy

 Favors the powerful (employers) over the powerless Favors the powerful (employers) over the powerless (employees).(employees).

 Discourages unionism through foot-dragging.Discourages unionism through foot-dragging.

 Offers weak, insufficient statutory remedies.Offers weak, insufficient statutory remedies.

 Is grossly outdated and mismatched to the current Is grossly outdated and mismatched to the current labor relations environment.labor relations environment.

 Laws (e.g., Laws (e.g., BeckBeck rights) protecting individuals have rights) protecting individuals have usurped the role of collective bargaining as the usurped the role of collective bargaining as the employees’ voice.employees’ voice.

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Unions’ View of the LMRAUnions’ View of the LMRA

• LMRA Reforms that Unions Want Now:LMRA Reforms that Unions Want Now:

 Greater access to employees by organizers.Greater access to employees by organizers.

 Stronger penalties for employers’ ULPs against union Stronger penalties for employers’ ULPs against union supporters.supporters.

 Elimination of the use of permanent striker Elimination of the use of permanent striker replacements during economic strikes.replacements during economic strikes.

 No weakening of the Section 8 prohibition of No weakening of the Section 8 prohibition of employer domination and interference with union employer domination and interference with union organizations.organizations.

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Common Concerns about the NLRBCommon Concerns about the NLRB

• Excessive slowness of case processingExcessive slowness of case processing  Lack of standards and proceduresLack of standards and procedures  Lack of timely decisions on leading casesLack of timely decisions on leading cases  Board member turnover and vacanciesBoard member turnover and vacancies

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Transportation-Related Labor Transportation-Related Labor Relations Laws (Railway and Airlines)Relations Laws (Railway and Airlines) • Railway Labor Act of 1926Railway Labor Act of 1926

 First comprehensive collective bargaining lawFirst comprehensive collective bargaining law  Originally covered only railway employees; amended Originally covered only railway employees; amended

in 1936 to include airlines.in 1936 to include airlines.  Major RLA disputes are subject to mandatory Major RLA disputes are subject to mandatory

mediation through the National Mediation Board mediation through the National Mediation Board (NMB).(NMB).

 National Railroad Adjustment Board (NRAB)National Railroad Adjustment Board (NRAB)  Comprised of 18 union and 18 management membersComprised of 18 union and 18 management members  Resolves minor disputes related to terms of the labor Resolves minor disputes related to terms of the labor

agreement (which never expires)agreement (which never expires)

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Deregulation LegislationDeregulation Legislation

• Airline Deregulation Act of 1978Airline Deregulation Act of 1978  Ended government regulation of fares and routes.Ended government regulation of fares and routes.  Resulted in a rapid rise and fall in number of Resulted in a rapid rise and fall in number of

nonunion carriers.nonunion carriers.  Increased mergers of major airlines.Increased mergers of major airlines.  Economic slowdowns and terrorist attacks further Economic slowdowns and terrorist attacks further

exacerbated poor industry conditions.exacerbated poor industry conditions.

• Staggers Rail Act of 1980Staggers Rail Act of 1980  Increased flexibility in setting rates and service levels.Increased flexibility in setting rates and service levels.  Strikes have declined but nonstrike actions have Strikes have declined but nonstrike actions have

increased.increased.

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Additional Laws That Afect Labor Additional Laws That Afect Labor RelationsRelations• Employee Retirement Income Security Act of Employee Retirement Income Security Act of

1974 (ERISA)1974 (ERISA)  Establishes minimum standards for the operation of Establishes minimum standards for the operation of

voluntarily established private-sector pension and voluntarily established private-sector pension and health benefit plans.health benefit plans.

• The Americans with Disabilities Act of 1990The Americans with Disabilities Act of 1990  Requires “reasonable accommodation” of workers’ Requires “reasonable accommodation” of workers’

disabilities in all areas of the employment process.disabilities in all areas of the employment process.

• The Bankruptcy Act of 1984The Bankruptcy Act of 1984  Requires union and employer cooperation to avoid Requires union and employer cooperation to avoid

bankruptcy filings and the alteration of contracts.bankruptcy filings and the alteration of contracts.

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Other Laws…(cont’d)Other Laws…(cont’d)

• The Worker Adjustment and Retraining The Worker Adjustment and Retraining Notification (WARN) Act of 1988Notification (WARN) Act of 1988  Requires employers to notify employees and Requires employers to notify employees and

communities of major workforce reductions.communities of major workforce reductions.

• Racketeer Influenced and Corrupt Organizations Racketeer Influenced and Corrupt Organizations (RICCO) Act of 1970(RICCO) Act of 1970  Prohibits racketeering in an interstate commerce Prohibits racketeering in an interstate commerce

organization.organization.  Provides criminal penalties and allows for triple Provides criminal penalties and allows for triple

recovery of damages.recovery of damages.

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Employment Discrimination Laws and Employment Discrimination Laws and Executive OrdersExecutive Orders

• Civil Rights Act of 1991Civil Rights Act of 1991  Prohibits discrimination on the basis of race, color, Prohibits discrimination on the basis of race, color,

religion, sex, or national origin.religion, sex, or national origin.

• Age Discrimination in Employment Act of 1967Age Discrimination in Employment Act of 1967  Prohibits discrimination against persons over 40 Prohibits discrimination against persons over 40

years of age.years of age.

• Executive Orders 11246 and 11375Executive Orders 11246 and 11375  Prohibit discrimination in the federal government and Prohibit discrimination in the federal government and

by government contractors.by government contractors.

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Other Related Labor Relations LawsOther Related Labor Relations Laws

• Vocational Rehabilitation Act of 1973Vocational Rehabilitation Act of 1973  Section 503 requires affirmative action by government Section 503 requires affirmative action by government

contractors and federally funded educational contractors and federally funded educational organizations in the employment of qualified disabled organizations in the employment of qualified disabled persons.persons.

• Uniformed Services Employment and Uniformed Services Employment and Reemployment (USSERA) Act of 1994Reemployment (USSERA) Act of 1994  Protects the returning job rights of individuals called Protects the returning job rights of individuals called

to military service.to military service.

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Other Related Labor Relations Laws Other Related Labor Relations Laws (cont’d)(cont’d)• Social Security Act of 1935Social Security Act of 1935

 Provides protection against loss of income resulting Provides protection against loss of income resulting from unemployment, old age, disability, and death.from unemployment, old age, disability, and death.

 Provides protection for survivors of workers.Provides protection for survivors of workers.

• Fair Labor Standards Act of 1938Fair Labor Standards Act of 1938  Sets minimum wage and overtime pay rates.Sets minimum wage and overtime pay rates.  Prohibits child labor.Prohibits child labor.

• Employee Retirement and Income Security Act Employee Retirement and Income Security Act of 1974of 1974  Protects and guarantees employee retirements.Protects and guarantees employee retirements.

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Other Related Labor Relations Laws Other Related Labor Relations Laws (cont’d)(cont’d)• Occupational Safety and Health Act of 1970Occupational Safety and Health Act of 1970

 Provisions regulate work place safety and the Provisions regulate work place safety and the handling of hazardous materials.handling of hazardous materials.

• Family and Medical Leave Act of 1993Family and Medical Leave Act of 1993  Requires employers to provide unpaid leave for family Requires employers to provide unpaid leave for family

and medical purposes.and medical purposes.

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Key TermsKey Terms • Preemption doctrinePreemption doctrine

• National Labor Relations Board (NLRB)National Labor Relations Board (NLRB)

• Labor Management Reporting and Disclosure Labor Management Reporting and Disclosure (Landrum-Griffin) Act(Landrum-Griffin) Act

• Federal Mediation and Conciliation Service Federal Mediation and Conciliation Service (FMCS)(FMCS)

• U.S. Department of Labor (USDOL)U.S. Department of Labor (USDOL)

• National Railroad Adjustment Board (NRAB)National Railroad Adjustment Board (NRAB)

• National Mediation Board (NMB)National Mediation Board (NMB)

• Norris–La Guardia ActNorris–La Guardia Act

• Closed shop union security clauseClosed shop union security clause

• National Labor Relations Act (NLRA)National Labor Relations Act (NLRA)

• Labor Management Relations Act (LMRA)Labor Management Relations Act (LMRA)

• Union shop union security clauseUnion shop union security clause

• Agency shop union security clauseAgency shop union security clause

• Right-to-work lawRight-to-work law

• The BoardThe Board

• Union saltsUnion salts

• Weingarten RightsWeingarten Rights

• NLRB jurisdictionNLRB jurisdiction

• Postal Reorganization Act of 1970Postal Reorganization Act of 1970

• Concerted and protected activityConcerted and protected activity • InterboroInterboro doctrine doctrine • Charging PartyCharging Party • RespondentRespondent • MeritMerit • Administrative Law Judge (ALJ)Administrative Law Judge (ALJ) • Routine ULP caseRoutine ULP case • Lead ULP caseLead ULP case • Cease-and-desist orderCease-and-desist order • Post written noticesPost written notices • Affirmative actionAffirmative action • Forum shoppingForum shopping • Petition for Petition for certioraricertiorari • Railway Labor Act (RLA) of 1926Railway Labor Act (RLA) of 1926 • Major dispute under the RLAMajor dispute under the RLA • Minor dispute under the RLAMinor dispute under the RLA • Employee Retirement Income Security Act Employee Retirement Income Security Act

(ERISA)(ERISA) • Pension Benefit Guaranty Corporation (PBGC)Pension Benefit Guaranty Corporation (PBGC) • Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

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Key Terms (cont’d)Key Terms (cont’d) • Bankruptcy Act of 1984Bankruptcy Act of 1984 • Worker Adjustment and Retraining Worker Adjustment and Retraining

Notification Act (WARN)Notification Act (WARN)

• Racketeer Influenced and Corrupt Racketeer Influenced and Corrupt Organizations Act (RICO)Organizations Act (RICO)

• Civil Rights Act of 1964Civil Rights Act of 1964

• Civil Rights Act of 1991Civil Rights Act of 1991 • Age Discrimination in Employment Act of Age Discrimination in Employment Act of

19671967 • Equal Pay Act of 1963Equal Pay Act of 1963 • Lilly Ledbetter Fair Pay Act of 2009 (FPA)Lilly Ledbetter Fair Pay Act of 2009 (FPA)

• Executive Order 11246Executive Order 11246

• Executive Order 11375 Executive Order 11375

• Vocational Rehabilitation Act of 1973Vocational Rehabilitation Act of 1973

• Uniformed Services Employment and Uniformed Services Employment and Reemployment Rights Act (USERRA) of Reemployment Rights Act (USERRA) of 19941994

• Social Security Act of 1935Social Security Act of 1935 • Fair Labor Standards Act of 1938Fair Labor Standards Act of 1938 • Occupational Safety and Health Act of 1970Occupational Safety and Health Act of 1970 • Family and Medical Leave Act of 1993Family and Medical Leave Act of 1993