Labor Guide to Labor Law

Bruce S. Feldacker, Michael J. Hayes

• Publisher: ILR Press
• Year: 2014
• ISBN:
  9780801454585
• Edition: 5
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Labor Guide to Labor Law is a comprehensive survey of labor law in the private sector, written from the labor perspective for labor relations students and for unions and their members. This thoroughly revised and updated fifth edition covers new statutes, current issues, and the latest developments in labor and employment law.The text emphasizes issues of greatest importance to unions and employees. Where the law permits a union to make certain tactical choices, those choices are pointed out. Material is included on internal union matters that tend to be ignored in management texts. Bruce S. Feldacker and Michael J. Hayes cover applicable labor law principles from a union's initial organizing campaign to the mature bargaining relationship, including such subjects as the employee right to engage in protected concerted activity, the duty to bargain, labor arbitration, the use of strikes, picketing and other economic weapons in resolving a labor dispute, the duty of fair representation, internal union regulation, and employment discrimination.This book is also a useful reference and review for full-time union officers and representatives who have a working knowledge of labor law but wish to brush up on certain points as needed in their work. Both authors have extensive experience in the construction field, and they have been careful to include material on those aspects of labor law that are unique to that field. Labor Guide to Labor Law is structured to present an unbiased and comprehensive explanation of labor law principles for anyone interested in the field. Thus, labor relations educators, as well as practitioners in the field representing labor, management, or individual employees, should also find the text suitable for their use. Each chapter includes a summary, review questions and answers, a restatement of "Basic Legal principles" with citations to key cases, and a bibliography for additional research.

1 FEDERAL REGULATION OF LABOR-MANAGEMENT RELATIONS

A Statutory and Structural Overview

THIS BOOK IS A PRACTICAL GUIDE to labor law in the private sector. The first 8 chapters present a discussion of legal principles primarily based on the Labor Management Relations Act (LMRA), 1947, as amended, commonly referred to as the “Act.” The remaining chapters discuss principles based on the Labor Management Reporting and Disclosure Act and the Civil Rights Act of 1964, as amended, as well as on the LMRA.¹

This chapter begins with a brief historical survey of federal labor legislation leading to the passage of the LMRA in the current form studied in this book. This survey is followed by an introductory overview of the major provisions of the LMRA, which are considered in detail in subsequent chapters, and by an explanation of the structure and procedures of the National Labor Relations Board, the agency administering the Act.

PART I: The Historical Development of the Labor Management Relations Act

A. Collective Bargaining before the Statutory Era

Before the passage of the federal labor legislation discussed in this book, regulation of labor relations was left largely to the states. The law governing labor relations was primarily developed by state courts on a case-by-case basis. This process of judicial development is known as the “common law,” in contrast to statutory law (laws made by the legislature) or administrative law (laws made by administrative agencies).

Workers began to organize into workers’ associations, the historical forerunner of today’s unions, in America in the late 1700s. The concept of workers uniting together to improve their working conditions was initially greeted by hostility in the courts. Thus, in the historically important Philadelphia Cordwainers’ case, decided in 1806, the court ruled that it was an unlawful conspiracy for workers to form an organization in which the membership agreed that none of them would work as shoemakers except at certain specified prices higher than the price that had previously been paid. The doctrine that an organization of workers formed to better their working conditions constituted an unlawful conspiracy was frequently followed in the United States until the mid-1850s. However, in 1842, the Massachusetts Supreme Court issued an important decision upholding the right of workers to form associations, and this viewpoint gradually was adopted in other states.

Although the state courts began to recognize the rights of workers to form labor organizations, the courts continued to restrict the methods that unions could use to accomplish their goals as the labor movement grew in the second half of the nineteenth century. Some courts distinguished between the right to strike and the right to picket. These courts upheld the right of workers to withhold their own services in order to force a change in their working conditions. But such courts, reasoning that an employer had the right to continue operations during a strike and that employees (those who chose to) had the right to continue working, frequently issued injunctions prohibiting unions from picketing in support of their strike on the theory that even peaceful picketing coerced and interfered with the rights of the employer to continue operation and of employees to continue working. Obviously, this approach seriously undermined the effectiveness of strike activity. Even those state courts that upheld the right of workers to strike and to picket under some circumstances frequently issued injunctions limiting the scope of union conduct if the judge did not approve of the conduct or the purpose of the strike. This was known as the ends/means test. Thus, in some states, picketing in support of a union’s claim to certain work in a jurisdictional dispute was held to be for an unlawful purpose (end), and the state court would enjoin the picketing. Product boycotts in support of a strike were sometimes enjoined as being an unlawful method.

The American economy in the second half of the nineteenth century and early in the twentieth century was philosophically based on the concept of open competition, unfettered by governmental restrictions, commonly referred to as laissez-faire (French words meaning “to do as one pleases”) government. The conservative pro-business courts of the period applied this philosophy in determining the lawfulness of union conduct. For example, strikes protesting an employer’s unilateral change in production methods, resulting in a loss of jobs for the affected employees, were enjoined by the courts on the grounds that such strikes were for the unlawful purpose of interfering with the employer’s right to determine the manner of production. In many states, collective bargaining agreements, once entered into, were valid and binding. However, an employer was under no obligation to engage in collective bargaining or to sign a collective bargaining agreement. Thus, in such states, a court would enjoin a strike to compel an employer to sign a collective bargaining agreement, on the grounds that such a strike was for the unlawful purpose of interfering with the employer’s right to enter or not enter into such an agreement on a voluntary basis.

Of course, the rights of employees and labor unions during this prestatutory era varied according to the social and political climate of the state. Labor unions engaged in a broader range of permissible conduct in those states where judges were more progressive, or where the labor movement had greater political strength. In every state, however, the probusiness legal doctrines applied in determining the legality of union conduct and the broad discretion that individual judges had under the common law in applying these doctrines placed unions under restraints varying from court to court and from case to case, with many resultant inconsistencies between decisions and principles that they applied.

The federal courts also interfered in the organization and conduct of labor unions. With the passage of the federal Sherman Antitrust Act in 1890 (see chapter 8, part IV), the federal courts frequently issued injunctions against union strike activity or boycotts of employers involved in a labor dispute on the grounds that such union conduct interfered with the free flow of goods in commerce and was thus a combination or conspiracy in restraint of trade violating the antitrust laws. As discussed below and in chapter 8, the passage of the Norris-LaGuardia Act in 1932 restricted the federal courts’ right to enjoin union conduct on the grounds that it violated the antitrust laws.

This, then, was the generally unfavorable legal climate in which labor functioned through the 1920s until the beginning of the modern statutory era.

B. The Railway Labor Act

The Railway Labor Act, passed by Congress in 1926, was the first comprehensive federal statutory regulation of labor-management relations. It originally covered only railroad employees but was amended in 1936 to cover airlines as well. The Railway Labor Act is important to all employees because it was the first comprehensive federal legislation specifically recognizing the right of employees to form unions and engage in collective bargaining.

C. The Norris-LaGuardia Act

In 1932, Congress passed the Norris-LaGuardia Act, a fundamental turning point in federal statutory regulation. The Act prohibited federal courts from issuing injunctions in any labor dispute, regardless of the strike’s purpose. The law prevented federal judges from engaging in the previously common practice of enjoining a strike because the judge did not approve of the strike’s goals or methods. However, the law did not guarantee the employees any collective bargaining rights. Bargaining rights, except in the railroads, were still won in a test of economic strength between an employer and a union. But with the Norris-­LaGuardia Act, the federal courts’ injunctive power was removed as a weapon against labor.

D. The National Labor Relations Act

In 1935, Congress passed the National Labor Relations Act (NLRA), frequently referred to as the Wagner Act after the New York senator who sponsored the legislation. The Supreme Court upheld the NLRA’s constitutionality in 1937. The NLRA was enacted as part of President Franklin Roosevelt’s New Deal legislation during the depression and was, in effect, a peaceful revolution in labor relations.

The NLRA established employee rights to organize, join unions, and engage in collective bargaining. The NLRA established employer unfair labor practices, making it unlawful for an employer to interfere with an employee’s right to join a union and engage in concerted (union) activities. Employers were required to bargain in good faith with the union and were prohibited from discharging or otherwise discriminating against employees because they engaged in union activities.

The NLRA also established procedures by which employees may elect their bargaining agent. Before passage of the NLRA, employees could secure bargaining rights only if their employer voluntarily agreed to recognize the union or if the employees struck and forced recognition. The NLRA thus dramatically paved the way for peaceful unionization, especially of industrial workers whose employers had consistently opposed organizing efforts until then. The provisions first enacted in the NLRA remain the basic franchise of American workers in their places of employment.

Beyond establishing employee rights and employer unfair labor practices, the NLRA established the National Labor Relations Board (NLRB, or the Board) to enforce its provisions. Today it is common for federal laws to be enforced by administrative agencies, as the NLRB was established to enforce the NLRA. But until the 1930s, it was far more common for the courts to enforce all laws. Congress established the NLRB because it mistrusted the manner in which the courts, which were historically associated with employer interests, might enforce the law. Congress also felt the need for a specialized agency to develop and apply expertise in the unique field of labor relations.

E. The Taft-Hartley Act (The Labor Management Relations Act)

In 1947, Congress passed the Taft-Hartley Act, named after Senator Taft and Congressman Hartley, who cosponsored the legislation. The Taft-Hartley Act extensively revised the NLRA and renamed it the Labor Management Relations Act (LMRA), 1947. The LMRA, incorporating the original NLRA as amended by the Taft-Hartley Act in 1947, is the basic statute studied in this book. The term NLRA is still used sometimes to refer to the provisions of the original NLRA that were continued as part of the LMRA.

The original NLRA was prolabor, establishing employee rights and restricting employer acts. Congress intended for the Taft-Hartley Act to embody what it regarded as a better balance between labor and management. For example, the NLRA established the right of employees to engage in collective bargaining and other mutual aid and protection; the Taft-Hartley Act added a provision that employees also have the right to refrain from any or all such activities. The NLRA established employer unfair labor practices now contained in LMRA Section 8(a); the Taft-­Hartley Act added Section 8(b), union unfair labor practices, which prohibits unions from interfering with employee rights, prohibits unions from coercing or discriminating against employees because of their union activities, and requires unions to bargain in good faith—provisions that place the same restrictions on unions as the NLRA placed on employers. The restrictions on secondary boycotts and on picketing (see chapter 7) are all an outgrowth of the Taft-Hartley Act.

F. The Landrum-Griffin Act

In 1959, Congress passed the Landrum-Griffin Act, named after the congressional cosponsors, formally entitled the Labor Management Reporting and Disclosure Act (LMRDA). The LMRDA primarily regulates internal union matters. It established the so-called Bill of Rights for union members; internal union election procedures; and reporting and disclosure requirements for unions, union officers, employers, and labor relations consultants. (see chapter 11).

The LMRDA also amended the LMRA by adding additional restrictions on picketing, closing certain “loopholes” in Taft-Hartley, and by adding Section 8(e) of the LMRA, prohibiting “hot cargo” clauses prohibiting one employer from dealing with other employers who are nonunion or who are on strike (see chapter 8). After 1959, the formal name of the LMRA was changed to the “Labor Management Relations Act, 1947, as amended,” the present formal title.

G. The Postal Reorganization Act

Chapter 12 of the Postal Reorganization Act of 1970 established the collective bargaining rights of postal workers. The Reorganization Act placed the United States Postal Service under the jurisdiction of the National Labor Relations Board for determining employee representation issues and also provided that labor relations in the Postal Service would be governed by the Labor Management Relations Act to the extent not inconsistent with the Reorganization Act itself. Two major differences between the rights of postal workers and private sector employees covered by the LMRA are that the postal workers, as federal employees, do not have the right to strike; and the Reorganization Act forbids required union membership (a “union shop”) as a condition of employment (see chapter 10). The Reorganization Act also provides for final and binding arbitration if the parties are unable to agree on the terms of their collective bargaining agreement (called interest arbitration), which is not required under the LMRA (see chapter 9).

H. The Health Care Amendments

In 1974, the LMRA was amended to delete the provision previously included in Section 2(2) of the Act excluding nonprofit hospitals from the Act’s coverage. This means that both profit and nonprofit hospitals are now covered. In addition to extending coverage to nonprofit hospitals, the 1974 amendments also enacted special provisions for the health care industry, both profit and nonprofit, as to bargaining notice requirements (Section 8(d)) and the right to picket or strike (Section 8(g)).

I. The Religious Belief Exemption

The 1974 Health Care Amendments added Section 19 to the Act that as initially enacted provided that a health care industry employee who has religious objections to joining a labor union cannot be required to join or financially support a union as a condition of employment. Effective December 24, 1980, Section 19 was extensively revised, and the religious objection exemption was extended to all employees, not just to those in the health care industry. To qualify for the exemption, an employee must be a member of a bona fide religious organization that historically holds conscientious objection to joining or financially supporting a labor union (see chapter 10).

PART II: An Overview of the Labor Management Relations Act in Current Form

A word of caution and encouragement is in order before reviewing the LMRA in its present form. This is an introductory overview providing a general understanding of the structure and coverage of the Act. Do not expect to understand all of the statute at first reading. The statute is complex. Some of it is of interest only to lawyers, and other parts are understandable only in ...