Labor Law I

The industrial revolution markedly changed the relationship between master and servant. Individual workers came to be viewed as free economic units within a competitive market economy. As individuals in the marketplace, they could bid for employment under competitive conditions, and their wages would be set by the laws of supply and demand, which the theory asserted, would naturally lead to maximizing economic well being. Following the civil war, the labor movement began to assert that the marketplace did not treat industrial workers fairly, that an individual worker was no match for increasingly large industrial employers. Workers began to organize.

But, under prevailing legal and economic views, competitors in the marketplace should not combine to restrain free competition. Just as two competing manufacturers should not combine to restrain trade in their products, so workers should not combine to restrain free competition for labor, according to 19th century thinking. As a result, courts generally weighed in on the side of management in labor disputes. A union might thus be viewed as a criminal conspiracy of competitors to restrain trade. Often, an employer threatened with a strike or job action of some kind could obtain a state or federal court temporary or permanent injunction against actions in furtherance of the "conspiracy." In the early part of the twentieth century, the federal courts, arguably less sensitive to popular will than their state counterparts, increasingly became important allies of management in the labor struggle. Employers sued using the courts' diversity jurisdiction, or a variety of federal statutes, including the Sherman Anti-trust Act. During the first three decades of the twentieth century, labor made small gains in the Congress, but these advances continually met resistance in the Courts. Ultimately, Congress responded by dramatically restricting the courts jurisdiction to enjoin labor activites.

Labor's Magna Carta came with the Wagner Act of 1935 which established the National Labor Relations Board (NLRB). It granted unions the right to organize, the right to bargain collectively, and the right to strike and engage in other collective action. The Constitutionality of the Wagner Act was upheld in the Jones & Laughlin Steel Corp case in 1937. For a decade, the Wagner Act governed labor relations in the United States, contributing to the establishment of the major trade unions as an important force in our industrial economy. By 1947 there were 15 million union members. In 1947, a new Republic majority in Congress passed the Taft-Hartley amendments to the Wagner Act. The new act conferred certain rights upon union members relative to their own unions, sought to change a perceived imbalance in the bargaining power between unions and management, guaranteed the right of employers to communicate to their employees (within certain limits) and sought to curb abuses in internal union management. It also contained the so-called "Right to Work" provision which allows states to prohibit union-shops. Under this provision, a state may prohibit unions for negotiating a contract which requires union membership as a condition of employment. Landrum-Griffin, the final major labor legislation was passed in 1959. It bars the use of picketing and strikes to resolve disputes between competing labor organizations for recognition, and contains certain other modifications to the prior legislation. These three laws combine, along with other less important legislation, to define the labor law environment at the national level.

Under Section 7 of the Wagner Act, as amended, the National Labor Relations Act, employees have the following rights:

To form, join, assist labor organizations
To choose to refrain from engaging in labor activitie
To engage in other joint activities.

Section 8(a)(1) prohibits employer interference, restraint and coercion against these protected activities; section 8(b)(1)(A) contains a prohibition against union interference with employee rights.

Section 8(c) permits employers some freedom of speech to communicate views about labor relations. This freedom of speech has engendered a fair amount of litigation, and the limits of the employer rights has varied depending upon the composition of the NLRB and the ideological bent of the courts. The basic idea is that an employer may issue information to its employees of a non-coercive nature, even during the organizational process or during labor disputes.

Basic Outline of the Labor-Management Relationship: In the absence of a union, the employer and employee contract directly. The contract may be in writing, or it may result from oral communication. But in all events, the contract runs from one employee to the employer. The employee "bargains" for his individual wages, benefits and working conditions, at least in theory. The employer may have employment policies and prevailing wage scales, but the employer and employee are free to depart from those standards in individual cases. The bargaining takes place between employer and his employer's representative.

Once a union is recognized as the exclusive representative of a group of employees, however, the nature of the employer-employee relationship is markedly changed. Now, the basic underlying contract is between the union and the employer. The Collective Bargaining Agreement is signed by the union and the employer. The union signs as representative, on behalf of the employees for whom it bargained. But it is important to understand that for most purposes, the agreement is between union and employer. This means that disputes about performance under the agreement are matters between the union and the employer in most cases. For example, if the employer violates the agreement by meting out inappropriate discipline, or by underpaying an employee for overtime, or by violating a worker's seniority rights, it is the union's contract, not the employee's contract, which has been breached. For this reason, when an employee's rights under the contract have been violated, the dispute proceeds between management and union representative. An individually impacted employee may notify his union that he wishes the union to proceed with a grievance, but the grievance itself is carried forward by the union, in the name of the union, and the ultimate resolution of the grievance represents a decision in the union-management arbitration which ensues, or a resolution of the dispute between union and management. If the employee wishes to grieve, but union does not, then the employee's basic recourse is to file an unfair representation charge against his union seeking to compel fair representation in the grievance process.

Important Protected Rights: One aspect of labor law involves determining the scope of protected rights. Each right involves a corresponding area of evolving law. Some of these issues are:

The right of organizers to access employees. (What reasonable restrictions may the employer place on organizational activity at the workplace).
The right to organize free from coercive statements. (What statements by employers constitute prohibited coercive communications. )
The right to organize free from coercive or retaliatory actions. (What actions by the employer constitute interference. (When do changes in working conditions, compensation, disciplinary actions and terminations, solicitation of grievances, promises of future improvements, constitute interference with the organizational process).
The right to engage in concerted activity relating to conditions of employment. (What actions fall within this protection? What is concerted activity? When do workers have the right to have a representative present during disciplinary meetings with management (Weingarten Rule)? May employees engage in safety related protests? What employee activity is unprotected because it violates the duty of loyalty? ).
The right to be free from improper coercion by the union and its representatives. (When can a union fine or discipline its members?)

Discrimination in Employment Section 8(a)(3) of the NLRA prohibits an employer from discrimination in employment designed to encourage or discourage membership in a labor organization. Employers and employees may agree, however, to a union shop under certain circumstances. Correspondingly, section 8(b)(2) states that a union may not discriminate against employees because they oppose the union or because they prefer a different bargaining representative. Section 8(a)(4) prohibits discharge or discrimination against an employee who makes charges or who gives testimony. To be discriminatory, an employer action must be motivated by anti-union animus: that is, there must be an intentional discrimination. There are numerous categories of discrimination. One of the most hotly scrutinized is:

Reinstatement after strike: Reinstatement of striking workers is typically the subject of a bargaining agreement after a strike. But if the strike fails, when an employer hires replacement workers during a strike, the employer may continue the employment of the replacement workers. And, if this means that there are insufficient positions, the employer need not reinstate the striking workers. But the employer may not select workers for re-hire based upon their union activity. Also, the employer must rehire former workers as positions become available unless their are non strike-related reasons.

Selection of the representative. The union becomes the exclusive bargaining representative through a certification process supervised by the NLRB. The certification process seeks to make sure that the decision whether to have a union at all, and the choice of which union, represents the fair unimpeded choice of the employees. When the appropriate number of employees petition for a certification election, the NLRB must first decide the appropriate bargaining unit. Defining the bargaining unit may determine the outcome of the election, because it determines who may vote. We discuss the selection of the exclusive bargaining representative, and other topics in the next panel.