Government Regulation of Labor Relations

1. Government Regulation of Labor Relations • Criminal Conspiracy Trials: 1806-42 • U.S. constitution doesn’t mention unions, Ee relations. No federal statutes, state statutes, state court decisions to guide early judicial decision-making • Philadelphia Cordwainers (1806) • First court case for which there are written records • Grew out of labor dispute involving Er and skilled shoemakers (cordwainers) • Workers struck in response to cut by Ers in price paid per pair of boots produced • Cordwainers indicted and charged w/crime of criminal conspiracy to raise their wages • Found guilty. First labor law case ever decided in U.S. found that unions organized w/objective of raising wages were illegal per se

2. Government Regulation of Labor Relations • Criminal Conspiracy Trials: 1806-42 • Commonwealth v. Hunt (1842) • Mass. Supreme Court decision, disagreed with Cordwainers decision and served as basis for new judicial theory of labor unions and their actions • Case involved bootmakers union in Boston • Officers indicted for criminal conspiracy, had expelled and fined bootmaker for violating union work rules • Court found that mere fact that society agreed not to work for Er who employed nonmember of society was not in itself unlawful • In addition, court found means used by U. were not illegal • Case articulated what is today called “means-ends doctrine” • If U. uses legal means to attain lawful objective, action protected by law • Unions not illegal in and of themselves

3. Government Regulation of Labor Relations • Labor Injunctions • Unions faced, beginning in 1870s, new legal device not previously used in labor cases • Injunction is order issued by court to protect property • Sherman Anti-trust Act of 1890 gave federal courts power to restrain “combinations in restraint of trade” through use of injunctions • Injunctions proved source of aggravation for labor leaders until 1932, when their use sharply limited by Norris-LaGuardia

4. Government Regulation of Labor Relations • Railway Labor Act (1926) • First federal statute whose sole purpose was regulation of labor relations • Major principles • To prevent interruption of service • To ensure rights to Ees to organize • To provide for independent organizations to represent Ees • To provide for settlement of disputes • To provide for resolution of grievances • Constitutionality determined by Supreme Court in 1930 • For first time Court upheld power of Congress to regulate labor-mngt relations in a major industry through federal statute • Act covers railway Ees and now airline Ees as well

5. Government Regulation of Labor Relations • National Labor Relations (Wagner) Act (1935) • Cornerstone of private sector labor law in U.S. • Influenced by RLA, Norris-LaGuardia Act of 1932, National Industrial Recovery Act of 1933 • Norris-LaGuardia did not provide unions w/any new legal rights – rather, it gave unions freedom to operate wo/court intervention through injunctions • Also made unenforceable “yellow-dog contracts” • NIRA Section 7(a) specifically recognized right of Ees to join unions, to bargain collectively, and to refrain from joining “company unions” • National Labor Board had no enforcement powers • NIRA declared unconstitutional in 1935, Wagner Act passed just 11 days later – many felt it would meet similar fate

6. Government Regulation of Labor Relations • National Labor Relations (Wagner) Act (1935) • Section 1: Findings and Policy • Commerce promoted when causes of conflict removed, labor and mngt sit down and negotiate differences as equals • Section 2: Definitions • Specifically excludes government Ees, agricultural Ees, workers covered by RLA • Section 7: Rights of Ees • To join labor organizations • To bargain collectively • To engage in other concerted activities • To refrain from such activities (added by Taft-Hartley)

7. Government Regulation of Labor Relations • National Labor Relations (Wagner) Act (1935) • Section 8: Er Unfair Labor Practices • 8a1: to interfere with, restrain, or coerce Ees in the exercise of Section 7 rights • 8a3: discrimination for the purpose of discouraging union membership • 8a5: refusal to bargain in good faith • Section 9: Elections • Requires that U selected as bargaining representative serve as exclusive representative of Ees in particular work group • NLRB determines composition of work group which votes in election – unit determination • NLRB conducts secret ballot elections for purpose of certifying labor organizations and collective bargaining representatives • Act found to be Constitutional in 1937, by 5-4 decision

8. Government Regulation of Labor Relations • Taft-Hartley Act (1947) (Labor-Mngt Relations Act, LMRA) • Republicans took control of both House and Senate in 1946 elections, Truman vetoed bill in nationwide radio broadcast, Congress overrode veto • Amended Wagner Act • Section 1: Findings and Policy • States that public policy of U.S. is eliminating obstruction of commerce by both Ers and unions • Section 2: Definitions • Excluded supervisors and foremen from coverage of NLRA, as amended • Section 7: Rights of Ees • Added right to refrain from U activity (although not from U membership if there is U shop provision)

9. Government Regulation of Labor Relations • Taft-Hartley Act (1947) (Labor-Mngt Relations Act, LMRA) • Section 8: Union ULPs • 8b1: Interference • 8b2: Discrimination • 8b3: Refusal to Bargain in Good Faith • 8b4: Secondary Boycotts • 8b6: Featherbedding • Payment for work not done (as distinguished from work done but arguably not necessary) • Section 8c: “Free Speech” Amendment • Speech alone is not ULP, provided speech does not threaten, coerce, or promise benefit

10. Government Regulation of Labor Relations • Taft-Hartley Act (1947) (Labor-Mngt Relations Act, LMRA) • Section 8d: Defines bargaining requirements • Requires that parties meet and confer in good faith • Section 9: Elections • Provides for decertification elections, creates “election bar” (an election blocks any subsequent election in same unit for 12 months) • Section 14: Limitations • Section 14b allows passage of “right-to-work” laws • Currently, 22 RTW states

11. Government Regulation of Labor Relations • Taft-Hartley Act (1947) (Labor-Mngt Relations Act, LMRA) • New provisions • FMCS • National Emergency Disputes • Allows President to appoint special board of inquiry to investigate dispute, 80-day injunction for “cooling-off” period • Political Contributions • Unions prohibited from direct campaign contributions to candidates for national office • Unions, like Ers, form political action committees (PACs), establish funds separate from dues for political contributions • Federal Ee strikes prohibited

13. Government Regulation of Labor Relations • Landrum-Griffin Act (1959) (Labor-Mngt Reporting and Disclosure Act, LMRDA) • Created mechanism for federal gov’t to regulate internal U affairs • “Bill of Rights” • To participate equally in all official affairs • To assemble and express views • To vote on dues increases • To sue union • To copy of collective bargaining agreement • Safeguards established on discipline • Detailed financial reporting required • Unions have right to impose membership qualifications and (under specific procedures) discipline members for various offenses • However, right to members to resign from U and escape U authority reduces ability of U discipline to maintain solidarity • E.g., crossing picket line

14. Government Regulation of Labor Relations • National Labor Relations Board • Administers NLRA • Conducts representation elections, investigates and prosecutes ULPs • Acts in response to petitions and charges • Consists of five NLRB members, General Counsel, Regional Offices (e.g., Indy) • Board members appointed by President, w/consent of Senate, for 5-year terms • NLRA is remedial statute, not criminal • Board may issue cease and desist orders, direct reinstatement w/back pay

15. National Labor Relations Board • Chair, Wilma Liebman (D) • U atty, term expires 8/11 • Clinton appointee, twice reappointed by Bush, appt Chair by Obama • Three positions had been vacant since 12/07 • Two U attys nominated for the D seats (Craig Becker and Mark Pearce), mngtatty and Senate staffer nominated for R seat (Brian Hayes) • Senate committee voted in October 2009 to send nominations to full Senate; McCain placed hold on Becker • Becker and Pearce recess appointments in April 2010; Hayes and Pearce confirmed June 2010 • One vacant position as of August 2010 • Regional Offices • Region 25, Indianapolis (also covers Henderson and Owensboro)

16. LABOR LAW IN PRACTICE: NLRB DECISIONS AND REFORM • Current NLRB framework for adjudicating U.S. labor law is not without critics: • Major political influences on NLRB decisions. • See “Labor Board’s Detractors See a Bias Against Workers,” New York Times, 1/2/05 • Several recent NLRB decisions reversed Clinton-era rulings that overturned precedents set by Republican Boards • E.g., decision as to whether nonU ee has right to have colleague accompany them to investigative or disciplinary meeting w/ mngt • NLRB lacks sufficient remedial power (punitive damages). • The NLRA has also been called into question. Unions favor: • Expanding coverage to supervisors. • Streamlining the certification process. • Board to review use of ‘card checks’ • Banning use of permanent strike replacements. • Some favor replacing the NLRA • Others argue that assumptions of NLRA, especially the sharp divide between labor and management, no longer matches the 21st century workplace.

17. Employee Free Choice Act • Stalled in Congress, due to lack of support from moderate Senate Democrats • Prospects for card-check dimming, in favor of shortening U election process to 5-10 days after petition filed (current median is 38 days) • Also under consideration is providing U organizers w/ access to Co property, barring ‘captive audience’ meetings • Clinton NLRB Chair and Stanford Law prof William Gould supports time limits for elections and increased penalties for ULPs • Business opposes mandated arbitration (if first contract negotiation not completed within 120 days) • Note that mandatory arbitration common in public sector in states banning strikes by uniformed ees but providing impasse-resolution mechanism (e.g., Michigan, New York, Pennsylvania) • Note also that mandated arbitration increasingly used by business to resolve rights disputes in nonU employment, as well as consumer disputes.

18. Employee Free Choice Act • WSJ editorialized (7/20/09) that “[o]rganizers want the rush because they know the more time workers have to learn about a union, the less they usually want one. Once supporters hear the other side of the story, support dwindles.” • Empirical evidence does suggest that the longer the delay between petition filing and the election, the lower the likelihood of union victory – delay works to management’s advantage. But why? True question is what amount of time is required so as to lead to an informed decision by employee. • “[Captive audience] meetings are one of management’s few opportunities to address workers, since companies are barred from the sort of outreach allowed to union organizers – such as visiting employees at home.” • Note that Co is perfectly free to mail literature to Ee’s home, and that Co not required to provide names and addresses of Ees in bargaining unit until after U files election petition with NLRB – so how exactly does this outreach give unions an advantage? If business wants Ees to be able to hear both sides of the story, then how exactly does mngt’s ability to limit Ee solicitation to nonwork time and to bar nonEe organizers from Co property altogether facilitate an informed decision? • “[M]ost workers show time and again that they don’t want a union.” • The evidence suggests exactly the opposite…

19. The Demise of the National Labor Policy: A Question of Social Justice • Conflicting Statutory Purposes • National labor policy has been at cross-purposes with itself since passage of Taft-Hartley • Wagner Act stated purpose was to promote collective bargaining • Right of workers to participate in decisions affecting working lives essential part of social justice • Taft-Hartley concept is neutral guarantor of Ee free choice between individual and collective bargaining • NLRB can choose between these contradictory purposes and claim they are conforming to congressional intent while reaching very different outcomes • Result is not merely revisions in case law but radical changes that swing labor policy from one purpose to the other

20. The Demise of the National Labor Policy: A Question of Social Justice • NLRB’s Role in Making Labor Policy • Lawmaking by Board inevitable, for they must apply broad statutory language to specific fact situations • Given conflicting statutory purposes, Board is in position of choosing between competing visions of national labor policy • President can change labor policy without legislative changes through appointments to NLRB • Previous example of union discipline of those who cross picket line

21. The Demise of the National Labor Policy: A Question of Social Justice • Employer Resistance • Gross asserts that considerable management opposition is motivated by belief that industrial democracy and free enterprise are fundamentally incompatible • Growing conviction among Ers that successful competition in markets requires evading or resisting unions • Unions and National Labor Policy • Meanwhile, union image has shifted from that of force for economic and social justice to instrument of oppression and exploitation

22. The Demise of the National Labor Policy: A Question of Social Justice • Thoughts on a National Labor Policy • Gross argues that primary objective of policy should not be promotion of productivity and competitiveness, but promotion of social justice • And social justice flows from industrial democracy • Ultimate objective of Wagner Act was establishment, through collective bargaining, of system of labor-management cooperation based on mutual interest in success of enterprise • Argued that Taft-Hartley undermined this objective by enabling and encouraging Ers to contest and resist organization and collective bargaining

23. POSTCRIPT: THE RISE OF EMPLOYMENT LAW • Labor law focuses on workers’ collective actions • After 1960s, private sector law received little attention by lawmakers, while employment law exploded • Board has upheld Co’s decision to fire Ee who had asked colleague to testify before state agency to support her claim of sexual harassement – NLRA prohibits Ers from retaliating against workers who engage in concerted activity for mutual protection, but Board found fired Ee was acting only in self-interest • Employment law focuses on individual employment rights. • First, social insurance (workers’ comp, unemployment insurance, social security) and protective employment standards (minimum wage, maximum hours and child labor restraints) in the 1930s • Second, restrictions on employment-at-will starting in the 1960s (Equal Pay Act, Civil Rights Act, Age Discrimination Act, Pregnancy Discrimination Act, Americans with Disabilities Act) • Third, other employment laws impacted employment conditions beyond FLSA (OSHA, ERISA, WARN, FMLA)

24. Public Sector Labor Relations • Legal Regulation • Public ees excluded from coverage under NLRA • Separate legal regulations in each state • Federal Ees • Received rights to unionize and bargain over working conditions other than wages and fringes via Kennedy E.O. • In 1970 postal ees provided right to bargain over wages (strike still illegal) • E.O. replaced w/ Civil Service Reform Act in 1978 • Regulated by Federal Labor Relations Authority • Impasse resolution responsibility of Federal Services Impasse Panel

25. Public Sector Labor Relations • Legal Regulation • State and local gov’t ees • Some 41 states have legislation that provides at least some public ees w/ right to organize and bargain • Those wo/ laws primarily in South • Most politically powerful groups tend to have most comprehensive laws (police, fire, teachers); state gov’t ees tend to have least • First-term Republican governors in Missouri and Indiana (Daniels) have rescinded bargaining rights of state ees; Maryland’s governor suspended pay increase negotiated by predecessor • Governors argue public ee unions waste resources and block restructuring efforts • Some states provide limited right to strike • PA, e.g., permits strikes by nonuniformed ees if public health, safety, welfare not endangered • NY, on other hand, provide “2 for 1” penalty (Er gets to keep money) • Strikes do occur even in states making them illegal; less likely where compulsory interest arbitration provided and where penalties are consistently enforced