Labor laws and labor relations - due by midnight

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Chapter Three

Employment Law and Federal Agencies This chapter covers federal law and federal agencies that regulate employ- ment, with particular emphasis on labor relations. The primary labor rela- tions laws include the Railway Labor Act, Norris-LaGuardia Act, Wagner Act (as amended by Taft-Hartley and later legislation), Landrum-Griffin Act, and Civil Service Reform Act. The chapter gives an overview of the statutes and major government agencies, as well as examples of the agen- cies’ organizational structures. This chapter also examines some of the effects of how laws are enforced by federal government agencies and how employees use protections granted by some employment laws.

In studying this chapter, keep the following questions in mind:

1. What specific types of activities are regulated? 2. In what areas have regulations been extended or retracted? 3. What employee groups are excluded or exempted from various

regulations? 4. How do administrative agencies interact with employers and unions in

implementing laws and regulations?

OVERVIEW

Statutory employment laws result from the interaction of the positions of a variety of interest groups in society. When a pluralistic coalition of interest groups emerges, the climate necessary for passage is created. 1 New laws or the amendment of existing laws requires the bonding of interest groups

1 For an extended and insightful treatment of the interaction between labor organizations and the state, see R. J. Adams,”The Role of the State in Industrial Relations,” in D. Lewin, O. S. Mitchell, and P. D. Sherer, eds., Research Frontiers in Industrial Relations and Human Resources (Madison, WI: Industrial Relations Research Association, 1992), pp. 489–523. See also W. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).

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around issues or agendas. As Chapter 5 will note, organized labor in the United States has been politically active in advocating laws that support unions and progressive social positions.

Current laws governing organizing and collective bargaining date back to 1926 when the Railway Labor Act was enacted. Since then, five other significant pieces of legislation have followed: Norris-LaGuardia (1932), Wagner (1935), Taft-Hartley (1947), Landrum-Griffin (1959), and the Civil Service Reform Act, Title VII (1978). Each was enacted to clarify and/or constrain the roles of management and labor. Table 3.1 lists each piece of major legislation and the areas of labor relations to which it applies.

Law Coverage Major Provisions Federal Agencies

Railway Labor Act Private sector nonmanagerial rail and airline employees and employers

Employees may choose bargaining representatives for collective bargaining; no yellow-dog contracts; dispute settlement procedures include mediation, arbitration, and emergency boards.

National Mediation Board, National Railroad Adjustment Board

Norris-LaGuardia Act All private sector employers and labor organizations

Outlaws injunctions for nonviolent labor union activities. Makes yellow-dog contracts unenforceable.

Labor Management Relations Act (originally passed as Wagner Act, amended by Taft-Hartley and Landrum-Griffin Acts)

Private sector nonmanagerial and nonagricultural employees not covered by Railway Labor Act; postal workers

Employees may choose bargaining representatives for collective bargaining; both labor and management must bargain in good faith; unfair labor practices include discrimination for union activities, secondary boycotts, and refusal to bargain; national emergency dispute procedures established.

National Labor Relations Board, Federal Mediation and Conciliation Service

Landrum-Griffin Act All private sector employers and labor organizations

Specification and guarantee of individual rights of union members. Prohibits certain management and union conduct. Requires union financial disclosures.

U.S. Department of Labor

Civil Service Reform Act, Title VII

All nonuniformed, nonmanagerial federal service employees and agencies

Employees may choose representatives for collective bargaining; bargaining rights established for noneconomic and nonstaffing issues. Requires arbitration of unresolved grievances.

Federal Labor Relations Authority

TABLE 3.1 Federal Labor Relations Laws

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RAILWAY LABOR ACT (1926)

The Railway Labor Act (RLA) applies to rail and air carriers and their nonmanagerial employees. The act has five general purposes:

1. Avoiding service interruptions. 2. Eliminating any restrictions on joining a union. 3. Guaranteeing the freedom of employees in any matter of self-

organization. 4. Providing for prompt dispute settlement. 5. Enabling prompt grievance settlement.

In railroads, train drivers, maintenance-of-way employees, conductors, ticket agents, shop workers, and others are covered, regardless of whether they are personally involved in moving passengers or freight. Similarly, airline pilots, cabin attendants, mechanics, reservation agents, baggage handlers, and others are covered. In 1996, the Federal Aviation Authoriza- tion Act brought air express companies, including their ground employees, under the RLA. FedEx was brought within RLA jurisdiction, but United Parcel Service (UPS) remained outside since FedEx is considered primarily an air express company while UPS is seen as primarily a ground carrier.

The RLA enables employees to choose, by majority vote, an organiza- tion to exclusively represent them for collective bargaining purposes. Under the RLA, employees within a given craft (or occupation) are entitled to be represented separately within their employers, and initial representation elections are held within a single defined occupational group. Unions or associations seeking to represent employees must be free of employer domination or assistance.

Majority representatives become the exclusive bargaining agent for the employees within the bargaining unit and are entitled to negotiate with the carrier over wages, terms, and conditions of employment. Negotiated contracts must contain a grievance procedure consistent with the require- ments of the RLA.

Contract negotiations under the RLA are substantially different than under other private sector and many public sector labor laws. Under the RLA, a contract remains in effect, even after its stated amendment date, until a new agreement is reached. Before a contract can be amended, written notice must be given 30 days before the intended changes would go into effect. At this point the parties begin negotiation activities. They may request assistance from the National Mediation Board (NMB) to help reach an agreement. The board may also offer its services without the request of the parties. No unilaterally imposed changes or strikes can occur (if a settlement is not reached) unless an impasse has been declared by the NMB. Only if the parties reject arbitration of their differences does the NMB release them to engage in “self-help.” Finally, if the president

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believes a work stoppage would substantially disrupt interstate com- merce, an emergency board can be convened to investigate the dispute and render a report. No changes or strikes can take place until at least 30 days after the completion of an emergency board’s report. Thus, relatively long periods often elapse between when negotiations start and when an agreement is reached. Presidential boards are not infrequent. President George W. Bush convened an emergency board in 2001 to deal with threat- ened strikes at both Northwest and United Airlines. Exhibit 3.1 covers his appointment of a board in the Northwest Airlines–Aircraft Mechanics Fraternal Association contract dispute in early 2001. (An agreement was reached before the board had completed its work.)

The National Railroad Adjustment Board (NRAB) and the NMB were created by the RLA. The NRAB consists of an equal number of union and management members and is empowered to settle grievances of both

NORTHWEST AIRLINES–AIRCRAFT MECHANICS FRATERNAL ASSOCIATION EMERGENCY BOARD

Executive Order Establishing an Emergency Board to Investigate a Dispute Between Northwest Airlines, Inc., and Its Employees Represented by the Aircraft Mechanics Fraternal Association.

A dispute exists between Northwest Airlines, Inc. and its employees represented by the Air- craft Mechanics Fraternal Association.

The dispute has not heretofore been adjusted under the provisions of the Railway Labor Act, as amended (45 U.S.C. 151-188) (the “Act”).

In the judgment of the National Mediation Board, this dispute threatens substantially to interrupt interstate commerce to a degree that would deprive sections of the country of essen- tial transportation service.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, including sections 10 and 201 of the Act (45 U.S.C. 160 and 181), it is hereby ordered as follows:

Section 1. Establishment of Emergency Board (“Board”). There is established, effective

March 12, 2001, a Board of three members to be appointed by the President to investigate this dispute. No member shall be pecuniarily or otherwise interested in any organization of airline employees or any air carrier. The Board shall perform its functions subject to the avail- ability of funds.

Sec. 2. Report. The Board shall report to the President with respect to this dispute within 30 days of its creation.

Sec. 3. Maintaining Conditions. As provided by section 10 of the Act, from the date of the creation of the Board and for 30 days after the Board has submitted its report to the President, no change in the conditions out of which the dispute arose shall be made by the parties to the controversy, except by agreement of the parties.

Sec. 4. Record Maintenance. The records and files of the Board are records of the Office of the President and upon the Board’s termination shall be maintained in the physical custody of the National Mediation Board.

Sec. 5. Expiration. The Board shall terminate upon the submission of the report provided for in sections 2 and 3 of this order.

GEORGE W. BUSH THE WHITE HOUSE, March 9, 2001.

Exhibit 3.1

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parties. If the board deadlocks on a grievance, it obtains a referee to hear the case and make an award. Awards are binding, and prevailing parties may sue in federal district courts to enforce the awards. In reality, most disputes are handled by Public Law Boards and Special Boards of Adjust- ment, which involve ad hoc arbitrators or rotating boards of neutrals who hear and rule on deadlocked dispute cases.

The NMB is composed of three members appointed by the president. It handles representation elections, mediates bargaining disputes on request, urges parties to arbitrate when mediation is unsuccessful, interprets medi- ated contract agreements, and appoints arbitrators if disputing parties cannot agree on one.

Compared with later acts, dispute handling under the RLA is highly detailed. Subsequent laws generally leave this up to the parties. The RLA also requires that employees be organized by craft (or occupational area), thus forcing employers to bargain with several unions, often having conflicting goals. Over time, bargaining by craft has changed somewhat as mergers have formed new unions such as the United Transporta- tion Union (UTU) and the Transportation Communications International Union (TCIU). The TCIU constitutes a merger among employees in blue- and white-collar railroad and airline occupations.

There have been differences in the way the law has been implemented in the rail and airline industries. Intracontract disputes in the airline industry are arbitrated as they are in industries covered by the NLRA. In addition, contrary to the technical wording of the law, some railway supervisors, such as yardmasters, are represented by unions.

NORRIS-LAGUARDIA ACT (1932)

The Norris-LaGuardia Act was the first law to protect the rights of unions and workers to engage in union activity. The act forbids federal courts to issue injunctions (orders prohibiting certain activities) against specifically described union activities and outlaws yellow-dog contracts (in which employees agree that continued employment depends on abstention from union membership or activities). These contracts had been upheld previ- ously by the Supreme Court. 2 Since enactment, federal courts have strictly construed Norris-LaGuardia provisions.

The act recognizes that freedom to associate for collective bargaining purposes is the corollary of the collectivization of capital through incor- poration. Injunctions and yellow-dog contracts interfere with freedom of association. Besides the absolute prohibition of yellow-dog contracts,

2 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917).

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injunctions against specific activities are prohibited regardless of whether the act is done by an individual, a group, or a union. The following cannot be enjoined:

1. Stopping or refusing to work. 2. Participating in union membership. 3. Paying or withholding strike benefits, unemployment benefits, and the

like to people participating in labor disputes. 4. Providing aid or assistance for persons suing or being sued. 5. Publicizing a labor dispute in a nonviolent, nonfraudulent manner. 6. Assembling to organize. 7. Notifying anyone that any of these acts are to be performed. 8. Agreeing to engage or not engage in any of these acts. 9. Advising others to do any of these acts.

The Norris-LaGuardia Act also finally and completely laid to rest the 18th-century conspiracy doctrine. Section 5 prohibits injunctions against any of the above activities if pursued in a nonviolent manner. The effects of the Danbury Hatters decision 3 (which required that union members pay boycott damages) were substantially diminished by Section 6. That sec- tion mandates that an individual or labor organization may not be held accountable for unlawful acts of its leadership unless those acts were directed or ratified by the membership.

Section 7 ensures the act may not be used as a cover for violent and destructive actions. An injunction may be issued if:

1. Substantial or irreparable injury to property will occur. 2. Greater injury will be inflicted on the party requesting the injunction

than the injunction would cause on the adversary. 3. No adequate legal remedy exists. 4. Authorities are either unable or unwilling to give protection.

Before an action can be enjoined, the union must have the opportunity for rebuttal. If immediate restraint is sought and there is insufficient time for an adversary hearing, the employer must deposit a bond to compen- sate for possible damages done to the union by the injunction. Injunctions cover only those persons or associations actually causing problems.

Section 8 restricts injunction-granting powers by requiring that request- ers try to settle disputes before asking for injunctions. Section 9 forbids injunctions against all union activities in a case except those likely to lead to an injury. For example, mass picketing might be enjoined if it is violent; but the strike, payments of strike benefits, and so on could not be enjoined.

3 Loewe v. Lawlor, 208 U.S. 274 (1908).

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While the Norris-LaGuardia Act did not require that an employer rec- ognize a union or bargain with it, it provided labor some leverage in organizing and bargaining. Labor could, henceforth, bring pressure on the employer through strikes, boycotts, and the like without worrying about federal court injunctions.

WAGNER AND TAFT-HARTLEY ACTS (AS AMENDED)

The Wagner (1935) and Taft-Hartley (1947) acts were enacted 12 years apart, with Taft-Hartley amending and extending the Wagner Act. In 1959, the Landrum-Griffin Act added amendments. In 1974, jurisdiction was extended to and special rules were enacted for private nonprofit health care organizations. The acts establish a statutory preference for using collective bargaining to resolve conflicts in the employment relationship and for roughly balancing the power of management and labor. The Wagner Act, passed during a period of relative weakness for organized labor, only spoke to employer practices. As the pendulum swung in the other direction, Taft-Hartley added union practices to the proscribed list. Finally, Landrum-Griffin aimed to fine-tune the law to match day-to-day realities.

The heart of the Wagner Act (Section 7, as amended) embodies public policy toward the individual worker and collective bargaining. It reads:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3).

Defi nitions The act defines the terms employer, employee, supervisor, and professional employee.

Employer An employer is an organization or a manager or supervisor acting on its behalf. However, federal, state, and local governments or any organi- zation wholly owned by these agencies (except the U.S. Postal Service), persons subject to the RLA, and union representatives when acting as bargaining agents are excluded. Casinos owned and operated by Native American tribes that primarily employ and cater to non-Native Amer- icans are considered employers, while other Native American–governed

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ventures on reservation property are not. 4 Where a person is employed by a labor supplier who provides workers for an employer, that person cannot be included in a unit of permanent employees unless the supplied employer consents. 5

Employee An employee need not be an employee of an organization in which a labor dispute occurs. For example, if firm A is struck and employees of firm B refuse to cross picket lines, even though no dispute exists with B, the workers at firm B are considered employees under the act. A person remains an employee under interpretations of the act if he or she is on strike for a contract or on strike about or fired as a result of an unfair labor practice—even if the employer does not consider the person as such— until the person is rehired or reemployed at or above a level equivalent to his or her previous job. The following groups in the private sector are not considered to be employees for organizing purposes: domestic workers, agricultural workers, independent contractors, 6 individuals employed by a spouse or parent, 7 graduate research or teaching assistants employed by private universities 8 (but not research assistants employed by private research foundations of either public or private universities), 9 or persons covered by the RLA.

Supervisor A supervisor is an employee with independent authority to make person- nel decisions and to administer a labor agreement. Examples of personnel decisions include hiring, firing, adjusting grievances, making work assign- ments, and deciding pay increases. A supervisor may belong to a union (although this is unlikely outside the construction or maritime industries), but groups of supervisors may not organize and bargain collectively. The supervisory definition has been narrowed recently by two Supreme Court decisions to exclude professional employees who give work direction to nonprofessionals but do not have any of the other supervisory powers

4 San Manuel Indian Bingo and Casino, 341 NLRB 1055; enforced by U.S. Circuit Court of Appeals, D. C. Circuit, in San Manuel Indian Bingo and Casino v. NLRB, No. 05-1392 (2007); see also A. Wermuth, “Union’s Gamble Pays Off: In San Manuel Indian Bingo and Casino, the NLRB Breaks the Nation’s Promise and Reverses Decades-Old Precedent to Assert Jurisdiction over Tribal Enterprises on Indian Reservations,” The Labor Lawyer, 21 (2005), pp. 81–108. 5 H.S. Care L.L.C., d/b/a Oakwood Care Center and N&W Agency, Inc., 343 NLRB No. 76 (2004). 6 P.Q. Beef Processors, Inc., 231 NLRB 179 (1977). 7 Viele & Sons, Inc., 227 NLRB 284 (1977). 8 Brown University, 342 NLRB 42 (2004); S. D. Pollack and D. V. Johns, “Graduate Students, Unions, and Brown University,” The Labor Lawyer, 20 (2004), pp. 243–256. 9 The Research Foundation of the State University of New York Office of Sponsored Programs, 350 NLRB 18 (2007).

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listed above. 10 These decisions were viewed very positively by investors in health care facilities as share prices of companies in this industry rose abnormally in the days following the decision. 11

Professional Employee A professional employee is one whose work is intellectual in character, requiring independent judgment or discretion; whose performance cannot readily be measured in a standardized fashion; and whose skills are learned through prolonged, specialized instruction. 12 Professional employees may organize, but they may not be included in a nonprofessional unit without a majority vote of the professionals.

National Labor Relations Board The National Labor Relations Board (NLRB) consists of five members appointed by the president and confirmed by the Senate. Members serve five-year terms and may be reappointed. One member, designated by the president, chairs the board. The NLRB is responsible for conducting repre- sentation elections and resolving or ruling on unfair labor practice charges.

The board may delegate its duties to a subgroup of three or more mem- bers. It can also delegate authority to determine representation and election questions to its regional directors. The board has a general counsel respon- sible for investigating charges and issuing complaints. More details on the board’s organization, function, and performance follow later in this chapter.

Unfair Labor Practices The amended labor acts specify a variety of employer tactics presumed to interfere with employees’ freedom of choice in being represented by their chosen advocates. They also specify union tactics that might coerce employees of a nonunion organization to join a union or that would interfere with a nonunion employer’s ability to operate. The specified unfair labor practices (ULPs) are contained in Section 8; part (a) applies to employers, part (b) to unions.

Employer Unfair Labor Practices An employer may not interfere with an employee engaging in any activity protected by Section 7. The employer may not assist or dominate a labor organization. If two unions are vying to organize a group of workers, an employer may neither recognize one to avoid dealing with the other nor

10 NLRB v. Health Care and Retirement Corp., 511 U.S. 571 (1994); and NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). 11 S. E. Abraham and P. B. Voos, “The Market’s Reaction to Two Supreme Court Rulings on American Labor Law,” Journal of Labor Research, 26 (2005), pp. 677–687. 12 See N. A. Beadles II and C. Scott,”Professionals under the Labor Management Relations Act: Lessons from the Health Care Industry,” Journal of Collective Negotiations in the Public Sector, 24 (1995), pp. 285–300.

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express a preference for one over the other. The employer may not create a company-sponsored union and bargain with it. Employers may not create employee groups within the organization and ask them to participate in setting wages, hours, and terms and conditions of employment.

An employer may not discriminate in hiring, assignment, or other terms of employment on the basis of union membership. However, employers and unions may negotiate contract clauses requiring union membership as a condition of continued employment (a union shop agreement). But if such a clause is negotiated, the employer cannot discriminate against non- membership if the union discriminatorily refuses to admit an employee to membership.

Employees may not be penalized or discriminated against for charging an employer with unfair labor practices.

Finally, employers may not refuse to bargain with a union over issues of pay, hours, or other terms and conditions of employment.

Union Unfair Labor Practices Unions may not coerce employees in the exercise of Section 7 rights, but this does not limit union internal rule making, discipline, fines, and so on. Unions cannot demand or require that an employer take action against an employee for any reason except failure to pay union dues.

Unions may not engage in—or encourage individuals to engage in— strikes or refusals to handle some type of product or work if the object is to accomplish any of the following ends:

1. Forcing an employer or self-employed person to join an employer or labor organization or to cease handling nonunion products (except in certain cases, detailed later).

2. Forcing an employer to bargain with an uncertified labor organization, that is, one whose majority status has not been established.

3. Forcing an employer to cease bargaining with a certified representative. 4. Forcing an employer to assign work to employees in a particular labor

organization unless ordered to do so or previously bargained to do so. 5. Requiring excessive initiation fees for union membership. 6. Forcing an employer to pay for services not rendered. 7. Picketing an employer to force recognition of the picketing union if:

a. The picketing group has not been certified as the employees’ representative;

b. Either no union election has taken place within the past 12 months or the picketing union requests a representation election within 30 days after picketing begins; but

c. Nothing can prohibit a union’s picketing to advise the public that an employer’s employees are not unionized, provided the picketing does not interfere with pickups and deliveries.

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Protected Concerted Activity Where no evidence of threat, reprisal, or promise of benefit exists, the parties involved in collective bargaining activities are free to express views in any form.

Duty to Bargain Unions and employers have a mutual duty to bargain in good faith about wages, hours, and terms and conditions of employment. Each must meet with the other when requested to negotiate an agreement, reduce it to writ- ing, and interpret its meaning if disagreements arise. Neither is required to concede any issue to demonstrate good faith. Notifying the Federal Mediation and Conciliation Service (FMCS) is required as a condition to modify a contract. Specific and more stringent requirements are laid out for health care organizations.

Prohibited Contract Clauses Except in the construction and apparel industries, employees and unions cannot negotiate contracts providing that particular products of certain employers will not be used. This is the so-called hot cargo issue. For example, a trucking union could not negotiate a contract prohibiting hauling goods manufactured by a nonunion employer. But a construction union could refuse to install nonunion goods if a contract clause had been negotiated.

Construction Employment Contractors can make collective bargaining agreements with construction unions, even without a demonstration of majority status. The agreements may require union membership within seven days of employment and give the union an opportunity to refer members for existing job open- ings. These exceptions recognize the short-run nature of many construc- tion jobs. Labor agreements may also provide for apprenticeship training requirements and may give preference in job openings to workers with greater past experience.

Health Care Picketing A union anticipating a strike or picketing at a health care facility must notify the Federal Mediation and Conciliation Service (FMCS) 10 days in advance.

Representation Elections The act provides that when a majority of employees in a particular unit desire representation, all employees (regardless of union membership) will be represented by the union regarding wages, hours, and terms and conditions of employment. Individuals can present their own grievances and have them adjusted if the resolution is consistent with the contract.

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The NLRB determines what group of employees would constitute an appropriate unit for a representation election and subsequent bargain- ing. Its discretion is limited, however. First, it cannot include professional and nonprofessional employees in the same unit unless a majority of the professionals agree. Second, it cannot deny separate representation to a craft solely on the basis that it was part of a larger unit determined appro- priate by the board. Third, it cannot include plant guards and other types of employees in the same unit. Also, supervisors are not employees as defined by the act; so, for example, a unit of production supervisors would be an inappropriate group for representation.

In cases of questionable union majority status, the board is authorized to hold elections (subject to certain constraints, detailed in Chapter 6). The board may also conduct elections to determine whether an existing union maintains a continuing majority status.

Unfair Labor Practice Charges and NLRB Procedures If the board finds that an unfair labor practice (ULP) occurred, it can issue cease-and-desist orders, require back pay to make wronged persons whole, and petition a court of appeals to enforce its orders. Board activities with regard to ULPs are detailed later in this chapter.

Right-to-Work Laws Section 14(b), one of the most controversial in the act, permits states to pass right-to-work laws. In states with these laws, employees represented by unions cannot be compelled to join a union or pay dues as a condition of continued employment. Union and agency shop clauses are unenforce- able in these states.

Religious Objections to Union Membership in Health Care Organizations Health care organization employees whose religious beliefs preclude membership in a union may donate a sum equal to union dues to a nonre- ligious charity in lieu of the dues.

Federal Mediation and Conciliation Service The act holds that the public has an interest in maintaining stable labor relations. If conflicts between the parties interfere with stability, the gov- ernment should be able and willing to offer assistance. Thus, the Federal Mediation and Conciliation Service (FMCS) was created to offer mediation services whenever disputes threaten to interrupt commerce or where they involve a health care organization. The FMCS is directed to emphasize services in contract negotiations, not grievance settlements.

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National Emergency Disputes If the president believes a labor dispute imperils the nation, a board of inquiry studies the issues surrounding the dispute. After the board submits its report, the attorney general may ask a district court to enjoin a strike or lockout. If the court agrees that the dispute threatens national security, an injunction may be issued. If an injunction is ordered, the board is reconvened and monitors the settlement process. If an agreement is not reached after 60 days, the board reports the positions of labor and management and includes management’s last offer. Over the next 15 days, the NLRB holds an election among the employees to determine whether a majority favors accepting management’s last offer. Five more days are taken to certify the results. At this time (or earlier, if a settlement was reached), the injunction will be discharged. If a settlement was not reached, the president forwards the report of the board, the election results, and the president’s recommendations to Congress for action. Until President George W. Bush invoked the national emergency provisions in the 2002 West Coast Dock Workers strike, they had been unused since President Carter invoked them in a 1978 United Mine Workers strike.

Suits, Political Action, and Financial Relationships Unions may sue on behalf of their members and can be sued and found liable for damages against organizational assets but not those of members. Financial dealings between an employer and a union representing its employees are forbidden. Union agents are forbidden from demanding payment for performing contractual duties. Certain regulations relating to the establishment of trust funds are also included.

Unions and corporations are forbidden to make political contributions in any elections involving the choice of federal officeholders.

Summary and Overview The important aspects of Taft-Hartley relate to the establishment, function, and powers of the NLRB; the delineation of employer and union unfair labor practices; the promulgation of rules governing representation and certification; the creation and functions of the FMCS; and the national emergency injunction procedures. These aim at balancing the power of labor and management and stabilizing industrial relations.

Taft-Hartley was enacted the year following the largest incidence of strikes and the most time lost from work due to strikes of any year in U.S. history. Besides identifying and adding a number of union unfair labor practices, the law also specifically aimed to reduce the level of strike activity by requiring that employers and unions planning to renegotiate contracts must inform the FMCS at least 30 days before contract expiration, making FMCS services available, and creating national emergency procedures to protect the public from highly disruptive strikes in essential industries. The legislation created an environment supportive of a corporatist approach to labor-management relations that would reign until the late 1970s.

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LANDRUM-GRIFFIN ACT (1959)

The Landrum-Griffin Act, formally the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959, resulted from congressional hearings into corrupt practices in labor-management relations. It regulates internal activities of employers and unions covered by both Taft-Hartley and the Railway Labor Act.

Bill of Rights for Union Members Unions must provide equal rights and privileges to members in nominat- ing, voting, participating in referenda, meetings, and so on. Each member has a right to be heard and to oppose policies of the union’s leaders insofar as this does not interfere with its legal obligations. Dues, initiation fees, and assessments cannot be increased without a majority vote of approval. Members’ rights to sue their unions are guaranteed as long as they have exhausted internal union procedures and are not aided by an employer or an employer association. Members of unions cannot be expelled unless due process consistent with the Bill of Rights section of the act is followed. Copies of the labor agreement between the employer and the union must be provided to every member.

Reports Required of Unions and Employers All unions are required to file constitutions and bylaws with the secretary of labor. Unions must file annual reports detailing assets and liabilities, receipts, salaries and allowances of officers, loans made to officers or busi- nesses, and other expenditures as prescribed by the secretary of labor. The report must also be made available to the membership. Employees covered by union contracts have little access to information on union expenditures to influence political outcomes, litigation, and the like before it is filed with the Department of Labor. 13

Every officer and employee (except clerical and custodial employees) must submit annual reports to the secretary of labor detailing any fam- ily income or transaction in stocks, securities, or other payments (except wages) made by a firm where the union represents employees; income or other payments from a business with substantial dealings with these firms; or any payments made by a labor consultant to such a firm.

Employers must report payments made to union officials (even if only to reimburse expenses); payments to employees to convince other employ- ees to exercise or not exercise their rights to organize and bargain collec- tively; and payments to obtain information about unions or individuals

13M. F. Masters, R. S. Atkin, and G. W. Florkowski,”An Analysis of Union Reporting Requirements under Title II of the Landrum-Griffin Act,” Labor Law Journal, 40 (1989), pp. 713–722.

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involved in disputes with the employer. Employers must also report agree- ments with or payments to labor relations consultants to oppose union organizing campaigns.

Trusteeships A national union may act against a local for breaching the union’s constitution or bylaws. To reduce the possibility of stifling dissent, an administrative takeover or trusteeship of a local can be imposed only to restore democratic procedures, correct financial malfeasance or corrup- tion, ensure performance of collective bargaining agreements, or facilitate other legitimate union functions. If a trusteeship is imposed, the national union must report the reasons for the takeover to the secretary of labor and disclose the subsidiary’s financial situation. A union exercising a trusteeship cannot move assets from the subsidiary or appoint delegates to conventions from it (unless elected by secret ballot of the membership). Trustreeships are rarely imposed, but when they are it is most often to deal with corruption or financial malfeasance.

OTHER FEDERAL LAWS AND REGULATIONS

Byrnes Act (1936) Under the Byrnes Act of 1936 it is illegal to recruit and/or transport indi- viduals across state lines for the purpose of interfering forcefully or threat- eningly with peaceful picketing or the right of self-organization.

Copeland Anti-Kickback Act (1934) The Copeland Anti-Kickback Act prohibits anyone from requiring or coerc- ing employees on a public works construction project (or project financed by loans or grants from the federal government) to kick back part of their compensation as a condition of continued employment.

Racketeer Infl uenced and Corrupt Organizations Act (1970) The Racketeer Influenced and Corrupt Organizations (RICO) Act was passed to deter corruption by requiring the forfeiture of illegal gains. Penalties treble the forfeiture amount. States have also enacted laws to reduce or eliminate corruption. In the New Jersey casino industry, the laws police employers well, but unions are more difficult to control because locals often represent workers both inside and outside casinos. 14 An analysis of corruption in New York City construction found that the

14 B. A. Lee and J. Chelius,”Government Regulation of Union-Management Corruption: The Casino Industry Experience in New Jersey,” Industrial and Labor Relations Review, 42 (1989), pp. 536–548.

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work coordination necessary in construction, coupled with the unions’ monopoly power to supply skilled labor, could lead to organized-crime involvement in monitoring or facilitating activities. The effect of possible corruption on union construction worker wages does not appear to be significant, however. 15

OTHER MAJOR EMPLOYMENT LAWS

Under common law in the United States, an employer could hire or fire an employee for a good reason, a bad reason, or no reason at all. 16 Thus, at its very basis, employment is “at-will” unless a contract to the contrary has been negotiated. However, a large set of federal and state laws and their accompanying administrative regulations limit the unfettered dis- cretion of the employer in designing and implementing the employment relationship.

Civil rights laws and regulations broadly prohibit employers from taking race, sex, color, religion, national origin, or age (being age 40 or over) into account when making employment decisions. Employers are expected to make reasonable accommodations for persons with disabili- ties. When men and women are employed in jobs requiring similar skill, effort, responsibility, and working conditions, differences in pay based on gender are not permitted.

Minimum wages are established by both federal and state laws and cover most employees. Employees who are not in certain defined job categories are entitled to a 50 percent pay premium for each hour beyond 40 worked in a given week. Prevailing wages for similar employment in the labor market must be paid to employees working on federal contracts. These laws are of particular interest to organized labor since they essen- tially take wages out of competition. To successfully bid on government contracts, a nonunion employer is required to pay wages equal to a union- ized employer and therefore needs to be able to save costs on other factors or accept a lower profit. Many states also have versions of these laws that apply to contracts for construction, goods, or services with the respective state governments. A study of the extension of prevailing wage legislation to the construction of low-income public housing in California found that costs increased by between 9 and 37 percent, leading to a reduction of 3,100 units built per year with a given appropriation level. 17

15 C. Ichniowski and A. Preston,”The Persistence of Organized Crime in New York City Construction: An Economic Perspective,” Industrial and Labor Relations Review, 42 (1989), pp. 549–565. 16 Payne v. Western Atlantic Railroad, 81 Tenn. 507 (1884). 17 S. Dunn, J. M. Quigley, and L. A. Rosenthal, “The Effects of Prevailing Wage Requirements in the Cost of Low-Income Housing,” Industrial and Labor Relations Review, 59 (2005), pp. 141–157.

76 Labor Relations

Law Coverage Major Provisions Federal Agencies

Title VII, 1964 Civil Rights Act (as amended)

Public and private sector employers with 15 or more employees; unions.

Discrimination in employment decisions is prohibited on the basis or race, sex, religion, color, and national origin.

Equal Employment Opportunity Commission (EEOC)

Age Discrimination in Employment Act (ADEA)

Persons age 40 or over (except between 40 and 65 for bona fide executives)

The act prohibits discrimination in employment decisions or mandatory retirement based on age.

EEOC

Equal Pay Act (EPA)

Most employers Differences in pay between men and women in jobs requiring substantially equal skill, effort, responsibility, and working conditions must be based on factors other than gender.

EEOC

Americans with Disabilities Act (ADA)

Employees or applicants with a mental or physical disability as defined by the ADA

Employer may not discriminate on the basis of a mental or physical disability. Employee or applicant must be able to perform the job in question with reasonable accommodations for the disability.

EEOC

Fair Labor Standards Act (FLSA)

Private sector and nonfederal public sector employers; all employees except managers, supervisors, and executives; outside salespersons and professional workers

The act mandates a minimum wage of $6.55 (2008) and $7.25 (2009) per hour; requires time- and-one-half pay for over 40 hours per week for covered (nonexempt) employees; and places restrictions on employment by occupation and industry for persons under age 18.

Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor

Walsh-Healy (W-H), Davis-Bacon (D-B), and Service Contracts Acts (SC)

Contractors with the federal government manufacturing or supplying goods (W-H), contract construction, or services

Employers must pay wages not less than those prevailing in the area for the type of employment used.

Same as FLSA

Social Security Act Retirees, dependent survivors, and disabled persons who are insured by payroll taxes on their past earnings or earnings of heads of households (Railroad workers are covered by the similar Railroad Retirement Act.)

Employer and employee each pay 6.2% for retirement, survivors, and disability insurance on income up to an annually established limit and pay 1.45% each on all income for Medicare insurance. Retirees are eligible for benefits based on contribution levels beginning at age 62 and for benefits to survivors or disabled insureds and medical care benefits beginning at age 65.

Social Security Administration

TABLE 3.2 General Federal Employment Laws

Source: Adapted from H. G. Heneman, III, D. P. Schwab, J. A. Fossum, and L. D. Dyer, Personnel/Human Resource Management, 4th ed. (Homewood, IL: Irwin, 1989), pp. 83–88; U.S. Department of Labor Web site; U.S. Department of Justice Web site.

Chapter 3 Employment Law and Federal Agencies 77

Federal Unemployment Tax Act

All employers and employees except some state and local government, domestics, farm workers, railroad workers, some non-for-profit employers

Payroll tax is paid by employer (except in a few states) on defined levels of income. Levels vary across states, and rates vary across employers within states, depending on the rate and duration of layoffs from each employer. There are legislated levels of income replacement for workers who are involuntary unemployed through no fault of their own. Replacement is generally at 50% or less of regular income for a duration of 26 weeks or until new employment is secured, whichever is less.

U.S. Bureau of Employment Security, U.S. Training and Employment Service, each of the state and territorial employment security commissions

Workers’ Compensation

In most states, employees of nonagricultural private sector firms except railroads

Employees are entitled to compensating benefits of up to about two-thirds of weekly wage (to a maximum limit) for work-related accidents and illnesses leading to temporary or permanent disabilities. Depending on the state law, employers make payroll-based payments to a state insurance system, purchase insurance through a private carrier, or self-insure. Insurance rates depend on the riskiness of the occupations covered and the experience rating of the insured.

Various state commissions

Employee Retirement Income Security Act (ERISA)

Private sector employers that provide pensions or insurance benefits to employees

Employers must make current payments to fund future expected liabilities. The act provides for vesting (ownership) for employees of accrued benefits after 5 years of service (generally), allows tax-free portability of pension benefits for a terminating employee, regulates fiduciaries, and requires insurance of benefits for underfunded plans.

Department of Labor, Internal Revenue Service, Pension Benefit Guaranty Corporation

Occupational Safety and Health Act (OSHA)

Private sector employers except domestic service employers; excludes employers covered by Federal Mine Safety Act

Employers have a general duty to provide working conditions that will not harm their employees and to meet specific standards of care as published in regulations and guidelines. Agents inspect workplaces with appropriate authorization and may issue citations calling for correction and penalties. If an employer disputes a citation, a review commission determines its appropriateness. Enforcement authority may be given to states after they have passed laws consistent with OSHA.

Occupational Safety and Health Administration, U.S. Department of Labor; National Institute for Occupational Safety and Health; Occupational Safety and Health Review Commission

(Continued)

78 Labor Relations

Social security taxes employers and employees and provides benefits for retirees, persons with disabilities, and surviving spouses and children of covered employees. The federal and state unemployment insurance program provides benefits and job-seeking services for persons who become involuntarily unemployed. The Employee Retirement Income Security Act regulates pension and benefit programs and requires that employers adequately fund established plans. Worker compensation reg- ulations require partial income replacement and health and rehabilitation services for workers who were injured on the job.

Health and safety requirements are spelled out in the Occupational Safety and Health Act and the Mine Safety Act. Facilities are inspected by the Occupational Safety and Health Administration or corresponding state agencies. Evidence indicates that inspections with penalties for viola- tions are more effective for reducing injuries than those without. The effect is greater in smaller and nonunion facilities—possibly because union facilities are more likely to have joint labor-management safety commit- tees. The Family and Medical Leave Act establishes rights for employees to take unpaid leaves to deal with family medical emergencies. Advance notification of significant layoffs is required by the Worker Adjustment and Retraining Notification Act. Table 3.2 summarizes the provisions of major federal employment laws.

Law Coverage Major Provisions Federal Agencies

Federal Mine Safety Act

Employees in underground and surface mining operations

The act establishes procedures for identifying and eliminating exposure to toxic and other harmful materials and for inspecting mines; mandates health and safety training; and provides benefits for pneumoconiosis (black lung disease).

Mine Safety and Health Administration, U.S. Department of Labor; Federal Mine Safety and Health Review Committee

Worker Adjustment and Retraining Notification Act

Private sector employers with 100 or more employees

Employer must provide 60 days’ notice of a plant closing involving 50 or more employees and 30 days’ notice for mass layoffs of more than 500 employees or more than one-third of the workforce. Back-pay penalties are incurred if the notice period is inadequate.

Employment and Training Administration, U.S. Department of Labor

Family and Medical Leave Act

Employers with 50 or more employees and employees with one or more years of service (generally)

Employees may take up to 12 weeks of unpaid leave each 12-month period for care of a newborn or newly adopted baby, personal illness, or care of family member who is ill.

Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor

TABLE 3.2 General Federal Employment Laws (continued)

Chapter 3 Employment Law and Federal Agencies 79

EFFECTS OF IMPLEMENTATION OF LAWS

An intriguing analysis of labor law and labor history suggests courts have consistently interpreted new statutory law to reinforce market-oriented practices. For example, the Supreme Court, while finding the Wagner Act constitutional, reiterated management’s exclusive right to make certain decisions unless it voluntarily agreed to bargain about them. Further, courts have generally permitted employer-sponsored participation plans, not finding them to be employer-dominated labor organizations. 18 Legal interpretation appears to be based on a pluralist assumption that man- agement, labor, and government operate together, with market activities facilitated through the operation of statutory labor-management conflict resolution mechanisms. 19

Employers are more likely to engage in actions that are later found to be unfair labor practices when there are greater differences between union and nonunion wages. The NLRB has difficulty coping with these problems because complaints cannot be processed quickly without increased staff, which must be appropriated by Congress, and the board can levy no pen- alties above the requirement that workers be made whole for the effects of violations. 20

FEDERAL DEPARTMENTS AND AGENCIES

All three branches of government—legislative, executive, and judicial— are involved in labor relations. Congress writes and amends the law; the executive agencies implement and regulate within the law; and the judi- ciary examines the actions of the other two in light of the Constitution, the statutes, and common law. This section examines the departments and agencies concerned with labor relations functions.

18 G. Grenier and R. L. Hogler,”Labor Law and Managerial Ideology: Employee Participation as a Social Control System,” Work and Occupations, 18 (1991), pp. 313–333. 19 R. L. Hogler,”Critical Labor Law, Working-Class History, and the New Industrial Relations,” Industrial Relations Law Journal, 10 (1988), pp. 116–143; and R. L. Hogler,”Labor History and Critical Labor Law: An Interdisciplinary Approach to Workers’ Control,” Labor History, 30 (1989), pp. 185–192. For a comprehensive review and commentary on labor law and regulation, see B. E. Kaufman, ed., Government Regulation of the Employment Relationship (Madison, WI: Industrial Relations Research Association, 1997). 20 R. J. Flanagan,”Compliance and Enforcement Decisions under the National Labor Relations Act,” Journal of Labor Economics, 7 (1989), pp. 257–280.

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Department of Labor The Department of Labor, created in 1913, has a broad charter:

The Department of Labor fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. In carrying out this mission, the Department administers a variety of Federal labor laws including those that guarantee workers’ rights to safe and healthful working conditions; a minimum hourly wage and overtime pay; freedom from employment discrimination; unemployment insurance; and other income support. 21

The organization of the Department of Labor is shown in Figure 3.1 . Several agencies that are directly involved with employers and unions are described below.

21 U.S. Department of Labor, www.dol.gov, July 26, 2007.

FIGURE 3.1 Organizational Chart of the Department of Labor

Source:http://www.dol.gov/dol/aboutdol/orgchart.htm, November 12, 2007.

Executive Secretariat

Center for Faith Based & Community Initiatives

Office of the 21st Century Workforce

Office of Small Business Programs

Office of the Chief Financial

Officer

Office of the Assistant Secretary for Administration &

Management

Office of the Solicitor

Office of Congressional &

Intergovernmental Affairs

Office of Public Affairs

Office of the Assistant

Secretary for Policy

Employment Standards

Administration

Occupational Safety & Health Administration

Bureau of International Labor Affairs

Office of Administrative Law Judges

Office of the Secretary of Labor

Office of Deputy Secretary of Labor

Benefits Review Board

Employees’ Compensation Appeals Board

Administrative Review Board

Office of Job Corps

Veterans’ Employment &

Training Service

Employee Benefits Security

Administration

Employment & Training

Administration

Mine Safety & Health Administration

Bureau of Labor Statistics Women’s Bureau

Office of Disability Employment Policy

Office of the Inspector General

Chapter 3 Employment Law and Federal Agencies 81

Employment Standards Administration The Employment Standards Administration (ESA) contains several agencies responsible for collecting information, promulgating regula- tions, and enforcing laws and regulations. There are four offices within the ESA: Labor-Management Standards, Federal Contract Compliance Programs, the Wage and Hour Division, and Workers’ Compensation Programs.

Labor-Management Standards The Office of Labor-Management Stan- dards administers and enforces provisions of the Landrum-Griffin and Civil Service Reform acts.

Federal Contract Compliance Programs The Office of Federal Contract Compliance Programs administers laws and regulations banning employ- ment discrimination based on race, sex, color, religion, national origin, dis- ability, and veterans’ status for employers with federal contracts. It also administers affirmative action provisions of Executive Order 11246 and the Vietnam Era Veterans’ Readjustment Act.

Wage and Hour Division The Wage and Hour Division enforces various wage and hour laws requiring minimum-wage and overtime-premium payments for covered workers. It also enforces several other laws such as the Family Medical Leave Act.

Workers’ Compensation Programs This office administers worker com- pensation programs for federal employees and maritime and coal mining worker compensation laws.

Occupational Safety and Health Administration The Occupational Safety and Health Administration (OSHA) is respon- sible for the interpretation and enforcement of the Occupational Safety and Health Act of 1970. It investigates violations and assesses penalties through hearings held by Department of Labor administrative law judges. Workers who are better educated or unionized appear to be more knowl- edgeable about hazards, and workers who are better protected in the exer- cise of their rights are more likely to refuse unsafe work. 22

Employment and Training Administration The Bureau of Apprenticeship and Training in the Employment and Training Administration (ETA) assists employers and unions in estab- lishing high-quality skilled-trades training programs with consistent standards.

22 V. Walters and M. Denton,”Workers’ Knowledge of Their Legal Rights and Resistance to Hazardous Work,” Relations Industrielles, 45 (1990), pp. 531–545.

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Bureau of Labor Statistics The Bureau of Labor Statistics (BLS) collects, maintains, and publishes data that interested persons use to assess the current state of the economy— nationally, regionally, or locally. It publishes the consumer price index, conducts area wage surveys, and provides unemployment data.

Bureau of International Labor Affairs The Bureau of International Labor Affairs represents the United States on multilateral trade bodies such as the General Agreement on Tariffs and Trade (GATT), the International Labor Organization (ILO), and the Organization for Economic Cooperation and Development (OECD). It also manages the labor attaché program in U.S. embassies abroad and monitors conformance with internationally recognized worker rights.

Women’s Bureau The Women’s Bureau focuses on the priorities of working women. Its objectives include alerting women about their rights in the workplace, proposing legislation that benefits working women, researching work aspects of concern to women, and reporting its findings to the president and Congress.

Employee Benefits Security Administration The Employee Benefits Security Administration (EBSA) is primarily respon- sible for protecting the integrity of employer-sponsored pension and ben- efit plans. It assists workers in obtaining benefits to which they are entitled, monitors plan performance, and enforces benefit protection statutes.

Veterans Employment and Training Service The Veterans Employment and Training Service (VETS) facilitates transi- tions from military service to civilian employment through training and employment search assistance. It also helps protect veterans’ job-return rights following military service.

Mine Safety and Health Administration The Mine Safety and Health Administration (MSHA) enforces health and safety requirements of the Federal Mine Safety and Health Act of 1997.

Office of Disability Employment Policy The Office of Disability Employment Policy (ODEP) develops and influ- ences the implementation of policies to enhance the employability of disabled persons.

Federal Mediation and Conciliation Service The Federal Mediation and Conciliation Service (FMCS) was established by the Taft-Hartley Act to help parties resolve labor disputes. In contract negotiation, it may mediate either through invitation or on its own motion.

Chapter 3 Employment Law and Federal Agencies 83

Mediators assist the parties in bargaining but have no power to impose settlements or regulate bargaining activity.

The FMCS offers preventive mediation and alternative dispute resolu- tion programs, including problem resolution services for federal agen- cies as mandated by the Alternative Dispute Resolution and Negotiated Rulemaking acts of 1990. It aids local labor-management cooperation programs through grants and technical assistance enabled by the Labor- Management Cooperation Act of 1978. To foster peaceful conflict reso- lution of employment issues internationally, the FMCS has provided mediator training in a number of developing economies. 23

It provides to requesting parties panels of arbitrators, who are qualified under FMCS rules, from which the parties may choose one to hear and rule on a contract dispute.

National Mediation Board A 1934 amendment to the Railway Labor Act established the National Mediation Board (NMB). It mediates contract disputes between carriers and their unions and certifies bargaining representatives for employees. Under the RLA, unions may not strike and employers may not lock out employees unless and until the NMB has declared an impasse in negotia- tions and has released the parties to engage in “ self-help .” The self-help cannot begin until 30 days after the declaration of an impasse. The NMB refers grievances to the National Railroad Adjustment Board (NRAB). The NMB may appoint a referee to assist in making NRAB awards when the panel is deadlocked. The NMB also designs and offers alternative dispute resolution training programs for employers and unions.

The NMB is also responsible for notifying the president if an unsettled, mediated dispute threatens to cripple transport in some section of the country. The president may then appoint an emergency board to study the situation and make recommendations.

Most of the NMB’s activities involve mediation and arbitration. There are many fewer union certification elections since the airline and rail indus- tries are substantially more concentrated and mature than many others. 24

National Labor Relations Board The NLRB was established by the Wagner Act and has jurisdiction over most for-profit employers, private for-profit and nonprofit hospitals, and the U.S. Postal Service. It determines whether employees desire union representation and whether, under federal law, unions or companies have committed unfair labor practices.

23 J. C. Wells,”FMCS: Past, Present, and Future,” Proceedings of the Industrial Relations Research Association, 48 (1996), pp. 396–406. 24 National Mediation Board, Annual Performance and Accountability Report, FY06, available at www.nmb.gov/documents/nmb_ar06_web.pdf.

84 Labor Relations

The NLRB responds to complaints or requests from unions, employ- ees, or employers. 25 In 2005, the board received 24,720 unfair labor prac- tice complaints (C cases) and 5,138 election petitions (R cases) at its 51 regional, subregional, and field offices. 26 When a C case is filed, the regional office investigates. If the charge appears not to be meritorious (about two-thirds of all C cases), the charging party is asked to withdraw it or charges are dismissed. Such decisions can be appealed to the general counsel, but only about 4 percent are reversed. If the case has merit, the regional director works with the parties to try to fashion a remedy and settle the case. This succeeds in over 90 percent of cases. If the parties agree, an unresolved case may be assigned to a “settlement judge” who works with them to reach an agreement without resorting to litigation. Evidence indicates that this process is generally positively viewed by the parties if a settlement is reached. 27 Failing that, the case is heard within one to three months by an administrative law judge . After the judge issues a ruling, exceptions can be filed, and the case is assigned to a board member. The board must then study the case, and a three-member panel issues a ruling. 28

If a party does not comply with an NLRB decision, the board may petition a U.S. court of appeals for enforcement. Board orders must be publicized to employees and/or union members. The board may issue cease-and-desist orders, bargaining orders, and decisions making employees whole for ille- gal personnel actions, such as termination for union activity.

Very few initial unfair labor practice charges are ever heard by adminis- trative law judges and passed on to the NLRB for its review. Cases that are not settled before board review are of two general types: (1) those involv- ing a complex or unsettled issue for which there is no clear precedent, and (2) those that one party (usually management) expects to lose but in which delay of a final determination is to that party’s advantage.

As noted above, the five members of the NLRB are appointed for fixed terms by the president (with the consent of the Senate). Board members are individuals with expertise in labor-management relations, almost invari- ably attorneys, and usually members of the president’s political party. To be confirmed, nominees must be knowledgeable about the law and appear

25 For complete details, see B. Garren, E. S. Fox, J. C. Truesdale, and J. A. Norris, How to Take a Case before the National Labor Relations Board, 7th ed. (Washington, DC: Bureau of National Affairs, 2000). 26 Seventieth Annual Report of the National Labor Relations Board (Washington, DC: U.S. Government Printing Office, 2005) p. 9. 27 L. Stallworth, A. Varma, and J. T. Delaney, “The NLRB’s Unfair Labor Practice Settlement Program: An Empirical Analysis of Participant Satisfaction,” Dispute Resolution Journal, 59, no. 4 (2004), pp. 22–29. 28 D. L. Dotson,”Processing Cases at the NLRB,” Labor Law Journal, 35 (1984), pp. 3–9; updated data from Seventieth Annual Report of the National Labor Relations Board (Washington. DC: U.S. Government Printing Office, 2005).

Chapter 3 Employment Law and Federal Agencies 85

fair, regardless of their political orientation. Thus, board members may be Democrats appointed by a Democratic president (Dem-Dem), Republicans appointed by a Democratic president (Rep-Dem), Democrats appointed by a Republican president (Dem-Rep), or Republicans appointed by a Republican president (Rep-Rep). Democrats may be presumed to favor labor more often when precedents are not clear, while Republicans may be expected to favor management. Board members may also be expected to pay attention to the position of the president who appointed them and, to some extent, to the makeup of Congress.

A careful study of board decisions found that in complex cases, relative to Dem-Dem members, Rep-Rep and Rep-Dem members were more likely to decide for management, while labor was favored more often during periods when Congress was more likely to favor labor’s political agenda, when unemployment was high, and when unemployment was chang- ing rapidly. In simpler cases, decisions favoring employers were more likely from Dem-Rep members, during high unemployment, and where the regional officer and administrative law judge ruled for the employer. Negative factors were influential when the regional officer and admin- istrative law judge ruled for the union and where the case occurred in a southern right-to-work state. Dem-Dems decided against the employer in almost all cases. 29 This is contrary to the conventional wisdom that Rep- Rep members are the most doctrinaire in their decisions and the most likely to disregard precedent. The general counsel’s political orientation may also strongly influence outcomes because that office decides which cases should be referred to the board for decisions.

Regional staff decisions also affect how charges are handled. One study of regional staff decisions during the Reagan years—a period in which a substantial number of NLRB precedents were reversed—indicated that regional directors dismissed many fewer cases and sent more on to Wash- ington. Evidence also indicated that unions withdrew many more charges, probably fearing adverse decisions and the establishment of new prec- edents by the board once it hears a case. 30 A review of regional board actions on unfair labor practice complaints found that refusals to issue charges were more likely when the charge was brought by an employer and where several complaints were alleged and that refusals were less likely when the charge was related to right-to-work law violations. Issuance of formal complaints was less likely when they were related to right-to-work law charges, when charges were brought by the employer, when the bargain- ing unit was larger, and where several violations were alleged. Voluntary settlements before issuance of a complaint were related to right-to-work

29 W. N. Cooke, A. K. Mishra, G. M. Spreitzer, and M. Tschirhart,”The Determinants of NLRB Decision-Making Revisited,” Industrial and Labor Relations Review, 48 (1995), pp. 237–257. 30 D. E. Schmidt,”Partisanship in the NLRB and Decision Making in Regional Offices,” Labor Law Journal, 42 (1991), pp. 484–490.

86 Labor Relations

laws, the number of charges by the employer, and negatively to the number of charges by the union. Voluntary settlements after issuance of a complaint were related to the number of charges by the union and negatively to the number of employer charges and the size of the bargaining unit. 31

These findings indicate that employers are less likely than unions to have the regional board issue charges or complaints and are more likely than unions to voluntarily settle before a complaint. But if a complaint is issued, the larger the number of charges and the bigger the bargaining unit (greater potential gain from winning), the less likely the employer is to settle voluntarily.

It is unquestionably the case that the NLRB is politicized. Whenever a new president is elected from the party that was previously out of power, it is quite likely that precedents established by the outgoing administration will be modified or swept aside as new cases are brought forward to test precedents that either labor or management hopes will be overturned. 32

NLRB decisions may alter the bargaining power between labor and management if a previously used practice is prohibited. Filing rates are influenced by the level of economic activity, and they increase for both unions and managements when it appears that board composition will lead to more favorable decisions for management. Employers may increase their filings because they believe pro-management decisions may deter union tactics. 33

LABOR LAW REFORM: A CONTINUING CONTROVERSY

Depending on which side—management or labor—is interested, calls for labor law reform are frequent. As noted in the discussion of the NLRB (above), the interpretation of the law has some degree of fluidity depend- ing on the political orientation of the executive branch of the federal government. In general, labor favors reforms that would improve oppor- tunities to organize and speed the process by which employees decide whether to be represented. Management favors reforms that would allow companies to implement more employee participation programs dealing

31 J. F. O’Connell, “The NLRB at the Grassroots,” Journal of Labor Research, 22 (2001), pp. 761–775. 32 For commentary on whether recent decisions have set new directions or restored established precedents, see K. R. Dolin, “Analyzing Recent Developments at the National Labor Relations Board,” Labor Law Journal, 56 (2005), pp. 120–138; “Bush Labor Board Decisions: Pendulum Shift or Permanent Changes?” Labor Law Journal, 56 (2005), pp. 212–223; and W. B. Gould IV (an NLRB chair during portions of the Clinton administration), “The NLRB at Age 70: Some Reflections on the Clinton Board and the Bush II Aftermath,” Berkeley Journal of Employment and Labor Law, 26 (2005), pp. 309–320. 33 M. Roomkin,”A Quantitative Study of Unfair Labor Practice Cases,” Industrial and Labor Relations Review, 34 (1981), pp. 245–256.

Chapter 3 Employment Law and Federal Agencies 87

with subjects that might involve wages, hours, and terms and conditions of employment—issues that are prohibited under the law in employer- sponsored programs.

In the 1990s, bills were introduced to allow the establishment of employee work teams and communications programs without violating Section 8(a)(2) of the labor acts. The pro-management so-called Team Act was passed by Congress in 1996 but vetoed by President Clinton. Ironi- cally, there has been no attempt to resurrect it during President George W. Bush’s administration.

In both 2005 and 2007, an amendment to the Taft-Hartley Act was introduced that would allow the NLRB to determine majority status and certify union representation on the basis of a check of signed union autho- rization cards. The so-called Employee Free Choice Act would eliminate the need for elections and prevent managements from mounting an anti- union campaign if a majority of bargaining unit members had signed cards. Opponents of the bill stress the role of secret elections in democra- cies, while those in favor argue that it eliminates coercive campaigns and unnecessary delays. In 2007, the House of Representatives passed the bill, but it failed in the Senate and would most certainly have faced a presiden- tial veto. The free-choice act would introduce recognition mechanisms closer to what exists in much of Canada, where there is substantially higher private sector union coverage. Two Canadian researchers suggest that while this type of reform may enhance organizing efforts, they will not be sufficient to revitalize unionization in the United States. 34

Some argue that economic globalization has made increasing employ- ment regulation a liability and that responsiveness by employers is required to survive in an economic era the labor acts never contem- plated. 35 Others argue that relatively minor changes need to be made to the labor acts to enhance competition and worker outcomes. 36 In the absence of major events like the Great Depression, World War II, or some other major economic or geopolitical crisis, it’s unlikely that a significant statutory change can be mobilized. 37

34 J. Godard, “Do Labor Laws Matter? The Density Decline and Convergence Thesis Revisited,” Industrial Relations, 42 (2003), pp. 458–492; R. J. Adams, “The Employee Free Choice Act: A Reality Check,” Proceedings of the Labor and Employment Relations Association, 58 (2006), pp. 184–189; and R. J. Adams, “The Employee Free Choice Act: A Skeptical View and Alternative,” Labor Studies Journal, 31, no. 4 (2007), pp. 1–14. 35 M. L. Wachter,”Labor Law Reform: One Step Forward and Two Steps Back,” Industrial Relations, 34 (1995), pp. 382–401. See also L. Galloway and R. Vedder, “Labor Laws: Then and Now,” Journal of Labor Research, 17 (1996), pp. 253–276. 36 R. N. Block,”Labor Law, Economics, and Industrial Democracy: A Reconciliation,” Industrial Relations, 34 (1995), pp. 402–416. 37 D. J. B. Mitchell, “Discussion,” Proceedings of the Labor and Employment Relations Association, 58 (2006), pp. 160–163.

88 Labor Relations

Relative to the European Union (EU), workers in the United States have fewer rights to be represented in the workplace. Requirements for exclusive representation and winner-take-all elections mean that fewer workers have representation than would prefer it. Additionally, in some EU countries democratically elected works councils meet with manage- ment to discuss and/or approve or disapprove various initiatives, often involving issues that U.S. employers are not legally required to discuss. Proponents of labor law reform and industrial democracy argue that U.S. employers should be required to permit more employer representation and participation in decision making. 38

TRADE TREATIES

Trade treaties often include provisions for minimum labor standards. These are usually included to protect jobs in high-wage countries. Devel- oping countries seldom can afford to duplicate conditions experienced in first-world countries. Prohibitions on child labor and forced (prison) labor may be somewhat easier to enforce. 39 Area trade treaties, such as the North American Free Trade Agreement (NAFTA), offer opportunities for inter- national cooperation by unions. To this point, however, evidence suggests they have had a greater effect on nurturing national identities rather than international development. 40

Summary and Preview

U.S. labor law consists primarily of the Railway Labor, Norris-LaGuardia, Wagner, Taft-Hartley, and Landrum-Griffin acts. These enable collective bargaining, regulate labor and management activities, and limit interven- tion by the federal courts in lawful union activities.

The legislative branch of government enacts the laws, the executive branch carries them out, and the court system tests their validity and rules on conduct within their purview.

As a cabinet department, the Department of Labor is primarily respon- sible for implementing human resource programs and monitoring activi- ties. It has little direct influence on collective bargaining.

Rule-making, interpretive, and assistance agencies have major influ- ences on employers, through either direct intervention or regulation. The

38 See, for example, S. Friedman and S. Wood, eds., “Employers’ Unfair Advantage in the United States of America: Symposium on the Human Rights Watch Report on the State of Workers’ Freedom of Association in the United States,” British Journal of Industrial Relations, 39 (2001), pp. 585–605, and 40 (2002), pp. 113–149. 39 C. L. Erickson & D. J. B. Mitchell, “Labor Standards in International Trade Agreements: The Current Debate,” Labor Law Journal, 47 (1996), pp. 763–775. 40 J. Cowie, “National Struggles in a Transnational Economy: A Critical Analysis of U.S. Labor’s Campaign against NAFTA,” Labor Studies Journal, 21, no. 4 (1997), pp. 3–32.

Chapter 3 Employment Law and Federal Agencies 89

FMCS and NLRB have the greatest impact on collective bargaining. The NLRB has been troubled by politicization throughout its history and by delay in ruling on unfair labor practices during the past 30 years.

Selected Web Sites of Federal Agencies

www.dol.gov www.fmcs.gov www.nlrb.gov www.nmb.gov

1. In the absence of federal labor laws, what do you think the scope and nature of labor relations would be in the United States?

2. Are current laws strong enough to preserve individual rights in collec- tive bargaining?

3. To what extent should the federal government have power to intervene in collective bargaining activities?

4. Should such administrative agencies as the NLRB be allowed to render administrative law decisions that can be enforced by the courts, or should an agency be required to go directly to court?

5. Are current labor laws capable of dealing with labor-management p roblems, or should they be abolished? If abolished, what should their replacements (if any) address?

Discussion Questions

Key Terms Railway Labor Act, 62 Representation election, 62 National Mediation Board, 62 National Railroad Adjustment Board, 63 Injunction, 64 Employer, 66 Employee, 67

Supervisor, 67 Professional employee, 68 National Labor Relations Board, 68 Unfair labor practice, 68 Union shop, 69 Duty to Bargain, 70 Hot cargo, 70 Cease-and-desist orders, 71

Agency shop, 71 Certification, 72 Trusteeship, 74 Mediator, 83 Self-help, 83 C cases, 84 R cases, 84 Administrative law judge, 84