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Legal Framework

Legal Framework. Historical Overview. 1806 - 1842: Conspiracy Doctrine 1842 - 1932: Decline of Conspiracy Doctrine - Legal Focus on Union Tactics Through 1870’s: Damage Suits 1880’s - early 1930s: Injunction 1932 - 4755: Legal Environment Favorable to Unions and CB

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Legal Framework

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  1. Legal Framework Legal Framework

  2. Historical Overview • 1806 - 1842: Conspiracy Doctrine • 1842 - 1932: Decline of Conspiracy Doctrine - Legal Focus on Union Tactics • Through 1870’s: Damage Suits • 1880’s - early 1930s: Injunction • 1932 - 47\55: Legal Environment Favorable to Unions and CB • 1947\55 - Present: Legal Environment Neutral to Pro-Employer Legal Framework

  3. Basic Legal Framework • National Law in U.S. for Private Sector • Mixed Federal\Provincial in Canada • Employee Choice • Some Exclusions • Some Employers • Railway Labor Act • Some Employees • Broad Definition of “Labor Organization” • Representation by “Bargaining Unit” • Majority Rule • Exclusive Representation

  4. Labor Law • Private Sector • National Labor Laws • Public Sector • State Labor Laws • Different in Canada • Provincial labor laws govern labor relations except for certain industries

  5. Private Sector • National Labor Laws in United States • National Labor Relations Act • In general, covers most of private sector except railroads and airlines • Will discuss coverage of law later • Railway Labor Act • Covers railroad and airline industry

  6. Basic Principles of Private Sector Labor Law in United States • Creates Basic Structure of U.S. Industrial Relations System • Basic Principles • Decentralization • Employee Choice • Majority Rule • Exclusive Representation • Parties determine terms and conditions of employment • Industrial conflict part of system of NLRA System • Lengthy dispute resolution procedures under RLA • Written, Legally Enforceable Contracts • Similar principles govern Canadian labor law

  7. Decentralized System • System is organized by bargaining units – may be • Firm • Plant/Facility • Craft • Department • Multi-Firm • if all parties agree

  8. Employee Choice • Employee Choice • Employees in a unit choose whether they wish a union (labor organization) to represent them • Which union will represent? • No “enterprise unions” • No union registration with government • No presumption that employees should be represented by a union

  9. Majority Rule • Choice of union or or no union is by a majority of employees in unit • If majority select representation, employees in unit are represented by a union • If majority do not select representation, employees in unit are not represented by a union

  10. Exclusive Representation • If a union is chosen by a majority of employees, it represents all employees in the unit, whether they voted for union or not • Employer must negotiate with that union • No other union may represent those employees

  11. Parties Determine Terms and Conditions of Employment • Parties create contracts • No government involvement • Use of economic weapons • Strikes • Striker replacements generally permitted (“scabs”) • lockouts

  12. Collective Agreements • Almost always written • Legally enforceable in court • Usually enforced by final and binding arbitration

  13. Basic Legal Institutions • Administration by an administrative agency • National Labor Relations Board (NLRB) in U.S. • Comparable bodies in Canada • NLRB Structure • Five members appointed by President with advice and consent of U.S. Senate • Serve five-year terms, with a new vacancy occurring each year • Results in • An agency that changes composition, and to some extent, views of labor issues, with changes in political views of the country • An agency that can reverse itself on issues

  14. Legalism in U.S. • System creates potential for legalism • If one party wishes to use law, other party forced to it.

  15. Labor Law Statutes Amended Infrequently • Enacted – 1935 • Amendments • 1947 • 1958 • 1974 • Result – NLRB and judges are primary decision-makers with respect to employer and employee rights

  16. Implications of Legal Doctrine • Union Organizing • Evolution • Employer noninvolvement, 1935-41 • Employer involvement but required to permit union on premises to present views, 1941-53 • Union exclusion • From presenting views, 1953 • From coming on premises (generally) • 1956 • 1992 • Development of employer union resistance tools by mid-1950’s Legal Framework

  17. Implications of Legal Doctrine (cont.) • Bargaining • Board not involved in determining terms and conditions of employment • Mandatory and nonmandatory subjects • Corporate restructuring • Defaults to an adversarial system • System does not encourage cooperation • Bargaining power • Implementation at impasse • Strikers and replacements • Flexibility in paying strike replacements • No subsystem to prevent employer pyramiding legal rights to deunionize Legal Framework

  18. Implications of Legal Doctrine (cont.) • Remedies • Little disincentive • Delay • Minimal government involvement • Favors economically stronger party Legal Framework

  19. Organizing in Perspective • Mean number of employees in all units selecting representation, 1992-2008 =77,366 • Seating capacity, Michigan State University (MSU) Spartan Stadium = 75,005 • Average attendance at MSU football games, 1957-2007 = 70,540 • A very small number of employees are involved in representation elections • If the union win rate were 100%, would make little difference in union representation rate SOURCE FOR SPARTAN STADIUM DATA: http://www.msuspartans.com/facilities/spartan-stadium.html

  20. Bargaining • Basic Legal Doctrine • No obligation to agree • Implementation at impasse • Industrial Conflict • Strikes • Permanent Replacements • Assertion of “good faith doubt” • Lockouts • Temporary Replacements • First Contract • 62% of certifications did not obtain a first contract within 1 year of certification (Ferguson, 2008) • Probability of first contract reduced by • Delay (Objections) • UFLP charge after cert.

  21. Organizing in Perspective • Mean number of employees in all units selecting representation, 1992-2008 =77,366 • Seating capacity, Michigan State University (MSU) Spartan Stadium = 75,005 • Average attendance at MSU football games, 1957-2007 = 70,540 • A very small number of employees are involved in representation elections • If the union win rate were 100%, would make little difference in union representation rate SOURCE FOR SPARTAN STADIUM DATA: http://www.msuspartans.com/facilities/spartan-stadium.html

  22. Bargaining • Basic Legal Doctrine • No obligation to agree • Implementation at impasse • Industrial Conflict • Strikes • Permanent Replacements • Assertion of “good faith doubt” • Lockouts • Temporary Replacements • First Contract • 62% of certifications did not obtain a first contract within 1 year of certification (Ferguson, 2008) • Probability of first contract reduced by • Delay (Objections) • UFLP charge after cert.

  23. Other Legal Issues • Individual Rights • EEO • ADA • Age Discrim. • FMLA • Workplace-Based • OSHA • WARN Legal Framework

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