The Norris-LaGuardia Act was the first major labor law. Enacted in 1932, it restricted the ability of courts to issue injunctions against unions engaged in concerted activity. Historically, employers used antitrust law against employees who hoped that by banding together, they would improve their bargaining position with the employer. The act also outlawed “yellow dog contracts,” an employer practice in which applicants had to agree that they were not a union member as a condition of employment.
The Wagner Act or the National Labor Relations Act (NLRA), passed in 1935, established the right of employees to form unions, bargain collectively, and strike. It also defined unfair labor practices. The National Labor Relations Board (NLRB) is another result of that legislature. The NLRB (an independent agency) conducts elections among employees to determine what union—if any—is to represent specific workers, adjudicates unfair labor practice claims, and generally administers the NLRA.
In collective bargaining, employees with a community of interests (meaning similar workplace concerns and conditions) form a single bargaining unit. The community of interests is based on factors such as similarity of the jobs employees perform, work conditions, skills, and training.
Unions are created when a sufficient number of employees sign authorization cards, a majority votes for a union in a union representation election, or the NLRB orders the employer to bargain with a union. The last method is used only when the actions of the employer are so outrageous that the NLRB determines no other method can yield a fair indication of employee sentiment. The NLRB supervises the elections and certifies the results in such a case. Unions are composed of nonsupervisory or managerial employees and may include part-time workers.
Under the NLRA, an employer is required to bargain collectively in good faith about wages, hours, and terms and conditions of employment. These are considered mandatory bargaining subjects. Employers may bargain about other matters (permissive subjects), but only a refusal to bargain over mandatory subjects is considered an unfair labor practice.
The intent of the collective is to prevent management from unilaterally instituting workplace policies that affect workers. The law requires that the parties bargain in good faith, not that they reach an agreement. Examples of bad faith bargaining are if one party refuses to offer any evidence to explain or support a position, one side rejects a proposal and makes no counter proposal or fails to show up for negotiations.
The duty of fair representation requires the union to represent all employees fairly and nondiscriminatory. Employees will sometimes use this clause to challenge the union leadership’s decisions or the contract itself.
In most collective bargaining agreements, job and union security are the main issues for the employees, while the employers are concerned with freedom from labor strikes and slowdowns. Other topics often included are seniority, benefits, employment classifications, and the role of arbitration in solving disputes. Often the agreements will allow for midterm bargaining over certain issues not settled or subject to unforeseeable change.
Unfair labor practices may include activities that attempt to control or influence the union, interfere with, or restrain union affairs. It is also unfair for employers to promise an increase or reduction of benefits to influence the outcome of an election.
The union’s shop steward—elected by the members—is the intermediary between the union and the employer. The steward may collect dues, recruit new members, and be the first line of representation when an unfair labor practice complaint has been raised.
The NLRA permits certain strikes and lockouts as a legitimate form of protest. During a strike, the members do not work. Instead, they often gather outside the employer’s place of business, carrying signs about the nature of the strike and chanting slogans to draw attention to the striker’s demands and to discourage others from supporting the employer’s business.
Strikes may be called for economic reasons or because of an unfair labor practice. As long as they are legal, the striking workers are considered employees. Once the strike is over, the strikers have a right to reinstatement, provided they offer an unconditional return to work. If the strike was for economic reasons and the employer replaced the strikers, then they do not have a right to immediately return to work. Workers out on an unfair labor private strike have a right to return immediately, even if the employer has hired replacement workers.
An employer may impose a lockout on employees. During a lockout, the employer either closes shop, thereby preventing employees from working, or brings in replacement workers. An employer must engage in negotiations with the union during a lockout. Strikes that are not authorized by the union are called wildcat strikes and are illegal.
Many collective bargaining agreements contain clauses that prevent strikes and lockouts. They use the grievance process to resolve disputes.
The Taft-Hartley Act was enacted in 1947 in response to perceived excesses by the unions. The act defines labor practices as unfair when the union refuses to bargain or coerces employees to join the union and charges members discriminatory dues and entrance fees. It also allows states to establish right-to-work laws, meaning individual workers in a unionized shop are not required to join the union. Despite their nonparticipation in the union, the union must still represent these workers as part of the bargaining unit.
If a state is not a right-to-work state, then it is permissible for a collective bargaining agreement to contain a union security clause, meaning all workers in the shop must join the union.
The Landrum-Griffith Act, also known as the Labor Management Reporting and Disclosure Act, established basic procedures for unions to follow to ensure democratic and fair elections and to provide individual union members with a bill of rights. The act also safeguards union funds, prohibiting use of union funds for anything other than those expenses benefitting the union or its members. Funds cannot be used to support candidates for union office and union officials. Stealing and embezzling union funds was also made a federal crime.
Labor Relations in the Public Sector
The NLRA applies only to the private sector. Federal employees are covered by the Civil Service Reform Act of 1978, which established the Federal Labor Relations Authority. State and local government employees are covered by a state public employees relations commissions.
Probably the most significant difference between public and private collective bargaining is the fact that public employees cannot strike. The prohibition on striking is grounded in the need to protect public health, as well as the doctrine of sovereignty, meaning the federal government has the highest authority in such matters.
There are also differences in what can be negotiated. Federal employees cannot bargain over wages, hours, or benefits. They can bargain about the numbers, types, the use of grades of positions, procedures for performing work, exercise of authority, the use of technology, and the alternatives for employees harmed by management decisions.
1. True or false: Any employee—except corporate officers—can be a union member.
2. True or false: Management’s refusal to bargain in good faith is an unfair labor practice, regardless of the subject matter in question.
3. As part of every employment interview, the employer asks the applicants their views on unionization. Discuss the legality of this behavior.
4. What is the purpose in locking out the employees if during a lockout the employer must continue to negotiate with the union?
The Occupational Safety and Health Act (OSHA) is a federal law enacted in 1970 to improve safety in the workplace. Before OSHA, employees had only the common law (general principles of personal injury/torts law, contract law, and the like) to protect them from injuries in the workplace. The act creates both specific and general standards for employers to follow. It imposes two requirements on employers:
· compliance requirements—employers must comply with all of the safety and health standards dictated by the Department of Labor
· general duty clause—employers must furnish to each employee a job and workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm
OSHA is enforced by the Occupational Safety and Health Administration, an agency within the Department of Labor. Approximately 25 states have similar agencies and act as a partner with the federal OSHA. The act is enforced through inspections of the workplace by compliance officers following a complaint, a grievance, or reports of fatal or multiple accidents. In certain high-risk industries, routine inspections regularly are conducted. All inspections are conducted without notice.
An antiretaliation clause protects workers who notify OSHA of hazardous conditions. Penalties and abatement orders are assessed in connection with a violation.
A number of specific requirements regarding the physical layout of the work site must be met. For example, all employees must be trained on protective measures. Medical examinations must be provided by employers to employees exposed to dangerous chemicals.
Emergency Temporary Standards
When a grave danger is discovered by a compliance officer, the act allows the Secretary of Labor to establish temporary emergency standards that are effective immediately upon publication in the Federal Register without having to go through the lengthy rule-making process required by the act. The emergency standards are effective until regular standards are approved.
The general duty clause protects employees against certain hazards in the workplace when no other applies. The clause reads: “Each employer ¼ shall furnish to each of his employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm¼”
Although the definition of a recognized hazard has not been completely settled, the most often adapted definition is that a recognized hazard may take the form of actual knowledge when the employer actually knows of the hazard, or constructive knowledge if the industry recognizes the hazard even if the employer doesn’t actually know of the hazard.
Actual knowledge can be demonstrated in two ways:
· past safety practices or policies of the employer suggesting that the employer knew there might be a hazard
· the hazard is so obvious that anyone would be aware of it
Barring actual knowledge, the employer may be liable for knowledge of those hazards of which the entire industry is aware.
When an employee believes the employer has violated its general duty to provide a safe working environment, the employees may refuse to work in that environment or to perform a particular task. The employee’s refusal must be based on a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available. Under these circumstances, the act protects the employee from retaliation.