CHAPTER 17

1717Legal Environment 4Legal Environment 4thth Ed. Ed.

COPYRIGHT © 2011 South-Western/Cengage Learning. 1

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Quotes of the DayQuotes of the Day“Without the power of the industrial union

behind it, democracy can only enter the state as a victim enters the gullet of a serpent.”

James Connolly,Irish labor leader

“Unionism seldom, if ever, uses such power as it has to insure better work; almost always it

devotes a large part of that power to safeguarding bad work.”

H.L MenckenAmerican journalist



Unions Develop...and the Law Responds

Unions Develop...and the Law Responds

Before 1932, employees were considered expendable, and even the act of joining together was considered criminal.

Norris-LaGuardia Act (passed in 1932) prohibits federal court injunctions in nonviolent labor disputes.• Permits workers to form unions and use

collective bargaining power.



National Labor Relations ActNational Labor Relations Act Section 7 guarantees employees the

right to organize and join unions, bargain collectively through representatives of their own choosing, and engage in other concerted activities.

Section 8(a) makes it an unfair labor practice (ULP) for an employer:• To interfere with union organizing efforts• To dominate or interfere with any union• To discriminate against a union member, or• To refuse to bargain with a union



National Labor Relations Board (NLRB)

National Labor Relations Board (NLRB)

Established by the NLRA

Has two primary tasks:• Decides if a union has the right to represent

a group of employees.• Adjudicates claims by either the employer

or workers that the other has committed an unfair labor practice.



Labor-Management Relations Act

Labor-Management Relations Act

Section 8(b) makes it an unfair labor practice for a union:• To interfere with employees who are

exercising their labor rights under §7.• To encourage an employer to discriminate

against a particular employee because of a union dispute.

• To refuse to bargain collectively, or• To engage in an illegal strike or boycott,

particularly secondary boycotts.



State Labor LawState Labor Law All states have labor statutes. Some

are comprehensive, some have a narrow focus.

Preemption means that states have no jurisdiction to regulate any labor issue that is governed by federal law.



Organizing a UnionOrganizing a Union Exclusivity--Under §9 of the NLRA, a

validly recognized union is the exclusive representative of the employees.

A collective bargaining unit is the precisely defined group of employees who will be represented by a particular union.



Organizing a UnionOrganizing a Union Procedures

• Organizers talk to employees and ask them to sign authorization cards.

• If organizers get enough cards, they seek recognition as the official representative for the bargaining unit.

• They petition the NLRB for election as a valid union; requires 30% of the workers’ approval.



RightsRights What Workers May Do

• They may talk among themselves about forming a union, to hand out literature, and ultimately to join a union.

What Employers May Do• They may vigorously present anti-union

views to its employees, but may not use either threats or promises of benefits to defeat a union drive.– When an employer outrageously interferes, the

NLRB may forgo the normal election, certify the union, and order the company to bargain.



Appropriate Bargaining UnitAppropriate Bargaining Unit

The Board generally certifies a proposed bargaining unit if and only if the employees share a community of interest.• Managerial employees must be excluded

from the bargaining unit.• Confidential employees are generally

excluding from the bargaining unit.



Collective BargainingCollective Bargaining The goal is a contract, called a collective

bargaining agreement (CBA).

Subjects of Bargaining• Mandatory subjects: wages, hours, and

other terms and conditions of employment.• A company that subcontracts in order to

maintain its economic viability is probably not required to bargain; bargaining is mandatory if the subcontracting is to replace union workers with cheaper labor.

• An employer is not required to bargain over closing a plant, only effects of the closing.



Employer & Union SecurityEmployer & Union Security No-strike and no-lockout clauses are legal.

A closed shop (requirement to hire only union members) is illegal.

A union shop (requiring union membership) is legal unless “right to work” laws prohibit.

An agency shop (new hire pays union fees, but does not have to join) – also legal.

Hot cargo clauses (prohibit employers from doing business with a specific other company) are illegal.



Duty to BargainDuty to Bargain Both the union and the employer must

bargain in good faith and with an open mind. However, they are not obligated to reach an agreement.

If an employer states that it is financially unable to meet the union’s demands, the union is entitled to see records that support the claim.

Management may not unilaterally change wages, hours, or terms and conditions of employment without bargaining the issues to impasse.



EnforcementEnforcement CBAs provide for enforcement, usually

through grievance-arbitration.• Grievance – complaint by the union, on

behalf of an employee.• Arbitration – mediation process if grievance

is not settled.• Courts generally do not examine the merits

of an arbitrator’s decision.• A court may refuse to enforce an

arbitrator’s award that is contrary to public policy.



Concerted ActionConcerted Action The NLRA guarantees the right to

strike, but with some limitations:• No-strike clause in CBA makes strike illegal.• The union must give a 60-day “cooling off

period” notice of its intent to strike.• Some states have statutory prohibition

against strikes by some public employees, like teachers or firefighters.

• Violent strikes are prohibited.• Sit-down strikes (workers quit working, but

remain at posts) and partial strikes (stop work, then resume, then stop) are prohibited because they prevent hiring of replacements.



Replacement WorkersReplacement Workers Management has the right to hire

replacement workers during a strike.

After an economic strike, an employer may not discriminate against a striker, but the employer is not obligated to lay off a replacement worker to give a striker his job back.

After a ULP strike, a union member is entitled to her job back, even if that means the employer must lay off a replacement worker.



PicketingPicketing Picketing the employer’s workplace in

support of a strike is generally lawful.

Secondary boycotts (against suppliers, etc.) are generally illegal.

Lockouts (refusing to let workers in) • A defensive lockout is almost always legal.• An offensive lockout is legal if the parties

have reached a bargaining impasse.



Regulating Union AffairsRegulating Union Affairs

The duty of fair representation requires that a union represent all members fairly, impartially, and in good faith.

A union’s decision not to file a grievance is illegal only if it was arbitrary, discriminatory, or in bad faith.



“Many decades after Congress guaranteed important labor rights,

management and workers in many industries still clash over the old issues of union organization,

collective bargaining, and concerted action.”

“Many decades after Congress guaranteed important labor rights,

management and workers in many industries still clash over the old issues of union organization,

collective bargaining, and concerted action.”

CHAPTER 17

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