Chapter

Key Points• Understand the history out of which labor unions grew• Identify unfair labor practices by management and unions• Understand the union election process• Understand the collective bargaining process and the

consequences of work stoppages

14

Employment Law III:Labor-Management Relations

Unions Today

Although the labor union movement grew up as a counter weight to big business, today it appears to be more of a counterweight to big government. 40% of public sector employees belong to unions. Fewer than 10% of private sector employees belong to unions.

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Labor Union History—Part I

Late 1800s: The industrial revolution prospered through the exploitation of labor—adult and child

1870s-’80s: The Knights of Labor admitted nearly all workers and started fighting for wage and hour laws, health care and mandatory education

AFL later organized workers along craft lines 1932: Norris-LaGuardia Act passed providing some

minimal protection for unionizers 1935: CIO evolved to serve the interests of ordinary labor

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Labor Union History—Part II

1935: Wagner Act passed clearly legalizing unions and establishing the NLRB

1947: Taft-Hartley Act passed prohibiting unfair labor practices by unions

1955: AFL and CIO combined 1959: Landrum-Griffin Act passed regulating union

financial matters and providing a “Bill of Rights” for union members

Today: The National Labor Relations Act (NLRA) now includes the Wagner and Taft-Hartley Acts and much of the Landrum-Griffin Act

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Unfair Labor Practices by Management

Section 8(a) of the NLRA makes it an unfair labor practice for an employer to: Interfere with, restrain, or coerce employees in the exercise of their

legal rights. Dominate, interfere, or assist with the formation of any labor

organization, including contributing financial support to it. Encourage or discourage membership in any labor organization by

discrimination in regard to hiring, tenure of employment, promotion, salary or any other term of employment.

Discharge or take any other action against an employee because he or she has filed charges or given testimony under the act.

Refuse to bargain collectively with a duly certified representative of the employees.

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Unfair Labor Practices by Unions

Section 8(b) of the NLRA makes it an unfair labor practice for a labor organization to: Restrain or coerce any employee in the exercise of his or her legal rights. Cause or attempt to cause an employer to discriminate against an employee

who has chosen not to join a particular labor organization or has been denied membership in such.

Refuse to bargain collectively with an employer on behalf of the bargaining unit it is certified to represent.

Induce or attempt to induce an employer to engage in secondary boycott activities.

Require employees to become union members and then charge them excessive or discriminatory dues.

Try to make an employer compensate workers for services not performed. Picket or threaten to picket an employer in an attempt to force the employer

to recognize or bargain with a labor organization that is not the duly certified representative.

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National Labor Relations Board (NLRB)

The primary obligations of the NLRB are: To designate appropriate bargaining units of workers (deciding

which workers have sufficient community of interest so that their needs can best be acknowledged and so that collective bargaining is efficient for the employer and the union).

To conduct elections for union representation. To certify the results of such elections. To investigate, prosecute and adjudicate charges of unfair

labor practices.

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Elections

Election Petition: A union, employee or an employer may initiate the formal organizing process by filing an election petition with the NLRB. Minimum requirement is signatures of 30% of the employees In practice, usually no election without signatures of 50-65%

Determination of appropriate bargaining unit: Requires a community if interest among employees Certain employees must be excluded, such as supervisors

Election is by majority of votes cast by employees of the bargaining unit identified.

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Protection of Free Speech During Election Process

Employers: Cannot use direct or indirect threats of reprisal or force to

influence outcome. Also cannot use promise of future benefits. Example: Multi-Ad Services v. NLRB (7th Cir. 2001)

Unions: Also restricted in types of acceptable persuasion, although

promises of benefits not as problematic here.

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Loss of Bargaining Unit

Decertification: After at least one year has passed, an unsatisfied group of employees may file a decertification petition with the NLRB, which must have the support of at least 30% of the covered employees. An election would then proceed.

Withdrawal of Recognition: An employer may unilaterally withdraw recognition of a union only where the union has lost the support of a majority of its members. One way of demonstrating that is to file an RM petition with the NLRB for an employer-requested election.

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Collective Bargaining Principles

The Union as Exclusive Bargaining Agent: The union is the exclusive agent for all of the employees within that bargaining unit, whether they voted for the union or not. The employer must deal with the certified representative who acts on behalf of all employees in the bargaining unit.

Good Faith Bargaining: Section 8(a)(5) of the NLRA requires an employer to engage in good faith collective bargaining with a representative of the employees and Section 8(b)(3) imposes the same duty on labor organizations.

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Bargaining in Good Faith

Relevant factors:1. One must bargain with an open mind and a sincere desire to reach

agreement.2. Counterproposals must be offered when another party’s proposal is

rejected.3. A position with regard to contract terms may not be constantly changed.4. The employee must be willing to incorporate oral agreements into a

written contract. Mandatory bargaining subjects include wages, hours and “other terms and

conditions of employment.” Permissive and Prohibited Bargaining Subjects:

1. Either party may raise permissive subjects but may not pursue them to the point of a bargaining impasse.

2. Prohibited bargaining subjects are those that are illegal under the NLRA or other laws.

Example: Colgate-Palmolive Co. (NLRB 1997)

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Work Stoppages

Strikes: Unfair labor practice strikes are those instituted by workers in

response to the employer’s commission of an unfair labor practice. Economic strikes are those instituted purely as economic weapons

against an employer. Example: Diamond Walnut Growers v. NLRB (D.C. Cir. 1997)

Lockouts: Management locks its doors to some or all of its employees.

Picketing and Boycotting: Primary picketing/boycotting is expressed directly against the

employer. Secondary picketing/boycotting against third parties, such as

suppliers, is generally illegal.

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Employees’ Rights within or against the Union

Unions have a duty to fairly represent all members of the bargaining unit, whether or not they become members of the union.

The Bill of Rights is designed to ensure equal voting rights, the right to sue the union, and the rights of free speech and assembly.

Nonunion employees can be compelled to pay union dues and fees only for core collective bargaining activities.

At least 22 states have enacted right-to-work laws. In these states, nonmembers do not pay dues or fees but, as members of the bargaining unit, they must be represented by the union.

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