Transcript No Slide Title

Click your mouse anywhere on the screen to advance the
text in each slide. After the starburst appears, click a
blue triangle to move to the next slide or previous slide.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Quotes 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 Mencken
American journalist
31
Business Law and the Legal Environment for a New Century
Alternate Edition
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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
National 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
31
Business Law and the Legal Environment for a New Century
Alternate Edition
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.
The NLRB describes its mission and methods at this website.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
State 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Organizing 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Rights
 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Appropriate 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Collective 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Employer & Union Security
 No-strike and no-lockout clauses are
both legal.
 A closed shop (requirement to hire only
union members) is illegal.
 A union shop (requiring union
membership after hiring) is generally
legal.
 An agency shop (new hire pays union
fees, but does not have to join) – also
legal.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Duty 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Enforcement
 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Limitations on Strikes
 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Replacement 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Picketing
 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
Multi-Employer Bargaining
and Antitrust Law
 The Supreme Court has consistently
held that multi-employer bargaining
does not violate antitrust laws.
 Regulating 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.
31
Business Law and the Legal Environment for a New Century
Alternate Edition
“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.”
31
Business Law and the Legal Environment for a New Century
Alternate Edition