Contemporary Labor Relations Law

1. Contemporary Labor Relations Law Note: Main concern for us is with laws governing relations between unions, management, and employees; secondary concern with “substantive” legislation on wages, hours, safety, pensions, discrimination

2. Various Forms of Law • Constitutional (e.g., freedom of association) • Statutory (e.g., NLRA) • Administrative (e.g., NRLB) • Regulations (NRLB rules on hospital units) • Regulatory common law implied by case-by-case rulings (the main NLRB approach, e.g., Gissel Doctrine) • Common law: Judge-made law as courts interpret statutes and constitution and set precedents through rulings (e.g., early conspiracy doctrines)

3. Anti-Trust Law and Labor Relations • Sherman Act (1890) • Passed to deal with huge “trusts” emergent then in industry (e.g., Standard Oil) • Declares “Every contract, combination, or conspiracy in restraint of trade” is illegal • Courts applied to unions: Basis for Pullman Strike injunction; triple damages in Danbury Hatters (Lowe vs. Lawler, 1902), other cases • Clayton Act (1914) • Plugs “loopholes” in Sherman Act • Also includes clause seemingly exempting labor. Hailed as “Labor’s Magna Carta” by Gompers; he was later disappointed • By 1940, Courts mostly exempted unions from anti-trust • As long as they do what unions “normally” do (?) • Problem: Judges decide what’s “normal” union activity

4. ULPs Under the Amended NLRA (Wagner by T-H, Etc.) • General nature: Activities by unions, ERs, or their “agents” which are contrary to Sec. 7 • Sec. 7: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection (Taft-Hartley added and shall also have the right to refrain from any or all of such activities ...) • Not a general protection against “unfair” actions at work • ULPs can be thought of at various levels, e.g., statute, “generic,” or examples. Strive for “generic” for our class

5. Generic ULPs for Employers (Sec. 8(a) ) • 1. Interference with Sec. 7 rights, incl. coercion intimidation, threats, bribes, promises of benefits, etc. • 2. Domination of a union (company unions, “sweetheart agreements”) • 3. Discrimination on the basis of union activity (except for a valid union shop clause) • 4. Discrimination on the basis of NLRB-related activity • 5. Refusal to bargain in good faith with a certified rep. • 8(e). “Hot Cargo” agreements

6. Generic ULPs for Unions Sec. 8(b)(1)-(4) • 1. Interference with EE Sec. 7 rights, incl. coercion, intimidation, threats, etc.; or interference with ER rep. • 2. Causing an ER to discriminate on the basis of union activity (other than a valid union shop) • 3. Refusal to bargain in good faith • 4. Strikes, boycotts, or inducing same for certain purposes • A. Force ER or self-employed to join union or make “Hot Cargo” agmt. • B. Secondary boycott activities (as distinct from primary activities) • C. Force recognition where another union is a certified representative • D. Jurisdictional disputes unless ER violates prior NLRB order re same

7. Generic ULPs for Unions Sec. 8(b)(5)-(7) • 5. Excessive or discriminatory dues or fees • 6. Forcing or inducing payment for work not done or not to be done • 7. Picketing or inducing picketing for certain purposes • A. Another union is a certified representative • B. Within 12 months of a previous certification election • C. For purposes of recognition for more than 30 days without filing an election petition • 8(e). “Hot Cargo” agreements

8. The NLRB and Its Role in ULP Cases • NLRB structure and functions • Separate adjudication and investigation/prosecution divisions • Two key functions: ULPs and representation elections • Jurisdiction: Activity affecting interstate commerce (monetary standards for sales or shipments) • NLRA rights are not “self-enforcing” • Procedure in ULP cases • Must investigate complaints (from charge forms) • Must prosecute or provide written explanation; plaintiff may appeal to Ct. • ALJ may find a violation, recommend remedy to the Board • Board may be asked for order to enforce or to hear an appeal of ALJ dec. • Fed. Ct. enforcement of Board orders may be sought • Board is required to seek injunctions in certain types of cases, authorized to seek them in others

9. The NLRB and Its Role, cont’d • Nature of Board orders: Remedial, not punitive • Cease and desist orders (stop and don’t do it again) • Other appropriate affirmative actions • Posting notices of violations and Board orders, compliance actions • Reinstatement of illegally fired workers with back pay and interest • Refunding excessive dues • Meet and bargain in good faith at partner’s convenience • Bargaining order (rare): Similar to preceding, but usually means an order to recognize and bargain with a union even if the union has not won an election (when ER misdeeds prevent a fair election) • Court roles in relation to Board • Enforce Board orders with injunctions if sought and needed • Review Board decisions on appeal

10. Some Other Laws and Doctrines Affecting Labor and IR Matters • Byrnes Act (bans interstate transportation of strikebreakers) • Copeland Act (bans “kickbacks” on public or public-financed projects) • Fair Labor Standards Act (FLSA) -- min. wage and overtime pay • Equal Employment Opportunity (Civil Rights Act) • Family Medical Leave Act (FMLA) -- leave for health emergencies • Americans with Disabilities Act (ADA) -- reasonable accomodation • Occupational Safety and Health (OSHA) • Employee Retirement Income Security Act (ERISA) • Racketeer Influence and Corrupt Organizations (RICO) • At-Will Doctrine and Its Exceptions (beyond explicit contracts) • At-Will Doctrine is not statutory, but has common law basis • Exceptions growing by statute and new common law decisions • Three main types of exceptions (statutory, public policy, implied contract)