Florida Law
Florida Labor Law
- Labor Law
Labor Law
The term "labor law" encompasses various aspects of an employer-union relationship. This chapter examines the principal federal laws governing this relationship, employee and employer rights and responsibilities during collective bargaining, and the use of labor arbitration to resolve disputes. The Employment Law Chapter covers the rights and obligations of employers toward individuals, and discusses such issues as unemployment compensation insurance, sexual harassment, and employment discrimination. The Employee Benefits Law Chapter discusses employee benefits programs commonly offered by employers. It is important to note that while labor law, employment law, and employee benefits law are treated separately in this Guide, the issues raised in these three areas of law often overlap. Labor law is, however, a legal specialty that many lawyers practice exclusively. A group of employees seeking to organize, or a business concerned about its rights and responsibilities regarding union or non-union labor, should contact a labor attorney.
Federal Legislation Regarding Unions
The struggle between labor and management has been played out
in the United States over a long and unique history. Relations
between labor and management in this country frequently have been
tense, with power ebbing and flowing between workers and employers.
In time, many aspects of the relationship between management and
labor came to be governed by federal laws enacted in response
to the social and political strife and economic disruption caused
by long strikes in the early part of this century. The history
of federal labor legislation is a story of Congress responding
to the perceived imbalance of power between organized labor and
management in this country, and stepping in to bolster or curtail
the power of the labor movement. Modern labor law is a result
of decades of legislation and regulation. These laws have resulted
in a relative balance of power and have created a specific system
to handle virtually all aspects of labor-management relations.
Labor law is almost exclusively a matter of federal concern, so
there is no state law in this area.
The principal federal laws setting ground rules for how management
and labor deal with each other are the Norris-LaGuardia Act, the
National Labor Relations Act, the Labor-Management Relations Act
and the Landrum-Griffin Act.
Norris-LaGuardia Act
The Norris-LaGuardia Act was one of the first attempts to limit
the power of federal courts in labor disputes. Prior to the adoption
of the Norris-LaGuardia Act in 1932, many courts looked upon concerted
actions by groups of employees–such as strikes, boycotts and picketing–as
criminal conspiracies that were punishable by law. Industrial
representatives frequently turned to courts in order to get temporary
or permanent injunctions against labor unions to prevent them
from organizing workers, calling strikes, picketing or boycotting.
The primary accomplishment of the Norris-LaGuardia Act was to
do away with the power of the federal judiciary to use injunctions
to stifle the nascent labor movement. The Act so severely limited
the use of injunctions (courts are permitted to enjoin union activity
in rare instances to prevent violence) that today court-ordered
injunctions are no longer a viable tool for management to use
in labor disputes. The Norris-LaGuardia Act also made illegal
the common practice of requiring new employees to sign pledges
not to join a union as a pre-condition of employment. So-called
“yellow dog” contracts had been a common tool used by management
to hinder the growth of labor unions.
Even more significant than its literal impact was the policy implication
of the Norris-LaGuardia Act. Federal courts no longer were the
proper forum for resolving labor-management disputes. Henceforth,
the government would be more neutral in letting economic and social
forces determine the proper balance of power between workers and
their employers.
National Labor Relations Act
The National Labor Relations Act of 1935 (NLRA), was the first
substantial effort by the federal government to reshape the balance
of power between labor and management in this country. The NLRA
explicitly guarantees employees the right to form labor organizations
and to bargain collectively through representatives of their own
choosing. The NLRA made illegal a number of management practices
that had been used to interfere with employee efforts to self-organize.
It provides stiff penalties for employers who interfere with its
provisions.
The NLRA also established an administrative agency, the National
Labor Relations Board (NLRB), and endowed it with the power to
administer and enforce its provisions. The NLRB’s five board members
are appointed by the United States President, with the advice
and consent of the Senate, for five-year terms. Although the Board’s
headquarters is in Washington, D.C., most employer and employee
interactions with the NLRB are with one of the more than 30 regional
offices throughout the country. Each regional office is headed
by a regional director who reports to the general counsel in Washington.
Under the NLRA, the term “employee” includes a very broad range
of workers who earn wages, salaries or commissions. Specifically
exempted from its coverage are agricultural workers, domestic
servants, persons employed by their own parent or spouse, railroad
employees and independent contractors. Courts generally have interpreted
“independent contractor” quite narrowly for purposes of deciding
whether someone is protected by the NLRA. Thus, although an individual
may be considered an independent contractor under other federal
laws and regulations, he or she might be considered an employee
under the NLRA.
The NLRA remains the primary law regulating relations between
labor and management in this country. Most post-NLRA legislation
refined and improved the provisions of the NLRA; it has not been
replaced with another scheme. For instance, the NLRA contained
no restrictions on the activities of unions. Later laws would
impose rules on how unions operate internally and require labor
organizations to submit periodic financial information to the
government.
Labor-Management Relations Act
The Labor-Management Relations Act (also called the Taft-Hartley
Act) was an attempt by Congress to limit increasing abuses of
organized labor’s power after the Second World War and to reign
in the growing power of the NLRB. The Labor-Management Relations
Act is a complex piece of legislation. The Act established the
general counsel position of the NLRB, and gave the general counsel
authority to issue complaints. It banned “closed shop” agreements
that allow an employer to hire only union members. However, “union
shop” agreements, in which employees are required to join the
union after a set period of time, were not prohibited by the Act.
The Act’s other provisions are:
• Prohibition of unfair labor practices used by management to
discourage union membership, such as discrimination in hiring
and tenure
• Prohibition of unfair labor practices by labor, such as refusing
to bargain or carrying out illegal strikes or boycotts
• Institution of a 60-day “cooling off” period before a work
stoppage at the end of a collective bargaining agreement
• Creation of special powers to limit strikes that could threaten
the security of the nation
• Requirement that unions file financial reports with the NLRB
Landrum-Griffin Act
The Landrum-Griffin Act (officially the Labor-Management Reporting and Disclosure Act) was enacted to control the actions of union leaders in response to perceived abuses of power by allegedly corrupt labor leaders. It gave union members a “bill of rights” they could assert against union leadership and established procedures to help union members uncover unscrupulous practices. The Landrum-Griffin Act requires certain financial disclosures by unions, establishes procedures that unions must follow to elect officers, provides penalties for financial abuses committed by union officials, and strictly limits secondary boycotts and picketing.
Forming a Union
As contemplated in the labor context, a union is simply an organization of workers in the same trade, formed in order to negotiate and deal with businesses in a collective manner, known as collective bargaining.
Employee Procedures
Employees who are considering organizing should be aware of what
the law requires of all parties. A group of employees forms a
union by filing a petition at the regional office of the NLRB.
The petition must show, by signed and dated authorization cards,
that at least 30 percent of the employees of the prospective bargaining
unit support the petition to organize. Prior to filing the petition,
an established union typically will campaign for employees’ support.
Upon receipt of the petition, an NLRB official determines whether
the petition is valid. Usually, the regional director conducts
this initial investigation. He or she determines whether the union
is the proper union to represent the group of employees, and whether
there are any other legal or jurisdictional bars to the arrangement.
An important issue at this stage is what constitutes an appropriate
bargaining unit. Different employees have different interests
and goals for collective bargaining. If the bargaining unit is
too broad, some members of the unit may not be effectively represented,
but if the unit is too small, it may lack clout to bargain with
management. The following factors typically are considered when
deciding upon the appropriate bargaining unit:
• Similarity of employees’ amount of pay, method of calculating
pay, benefits offered, hours, type of work performed and qualifications
required
• Physical proximity of workers and integration of tasks
• Employer’s supervisory or organization structure
• Employee preferences
Employers' Rights and Obligations during Organizational Drives
The Labor-Management Relations Act gives employers substantial
freedom to present their views during union organization drives,
as long as the dissemination of such views contains no threats
or promises. This right to express one’s views about unions generally,
to criticize a particular union, or to express a preference for
one union over another, may lead to problems for employers who
are unfamiliar with how courts have interpreted the requirement
that there be no threat of reprisal. An employer should not make
unusual wage adjustments, threaten economic reprisals, try to
convince employees to sign individual employment agreements, question
employees about their union status or activities, or do anything
else that could be construed as illegal anti-union activity.
When a union is soliciting employees to join a union, the employer
is prohibited from pressuring employees against joining or discriminating
against those who organize or join the union. The NLRB has heard
thousands of complaints in which employers were accused of discriminating
against organizing efforts. Although the complaints necessarily
are heard on a case-by-case basis, the following actions most
often are found to constitute illegal discrimination against efforts
to organize:
• Refusing to hire anyone involved in a union
• Failing to recall seasonal workers who join a union
• Discharging or laying off of an employee
• Demoting or transferring an employee to a less desirable job
or location
• Mistreating employees following organizing efforts
Under some circumstances, employers can file election petitions.
If union activity has surpassed the campaign stage, and a union
claims to represent a majority of the business’ employees or otherwise
seeks to represent employees, the employer may file an election
petition.
The Election
Once the regional director has completed the investigation, he or she seeks the consent of the employer and the union to hold an election. The election is held by secret ballot. Unless the losing party protests the results–by claiming error or misconduct–the election is considered valid and the union, if it is authorized by the election, becomes the official representative of the employees.
Employer-Union Relations
The Exclusivity Principle
The NLRA contains an exclusivity principle that declares that
if the NLRB has recognized a union as the representative of a
group of employees, or if the employer has privately agreed to
recognize the union, the union has the exclusive right to represent
those employees and management is required to deal with that union.
This exclusivity provision is critical for the employees and employers,
who must be careful to avoid bargaining outside the authority
of a recognized union. A problem may develop if an employer is
approached with a specific problem by a group of employees acting
on their own. If management attempts to respond to employee-initiated
contact without going through the union first, the employer can
run afoul of the NLRA’s exclusivity principle. Similarly, employees
may not bargain directly with employers if a union has been recognized;
even if a particular employee dissented during the union formation
stage, he or she is bound by the union’s representative authority.
The Duty to Engage in Collective Bargaining
The law imposes upon labor and management the obligation to engage
in collective bargaining. While neither side is obligated to agree
to any particular proposal made by the other side, both labor
and management have an obligation to confer “in good faith” with
respect to wages, hours, and other terms and conditions of employment,
and sincerely attempt to reach agreement on these issues.
If the NLRB has certified a union to represent the employees,
the employer must meet at all reasonable times to discuss wages
and employment conditions with that union. Negotiations usually
begin with the union submitting a proposed contract to management,
which then submits a counterproposal to the union representatives.
Employers and employees usually are represented by counsel when
entering a collective bargaining agreement. Any agreement reached
in oral negotiations must be incorporated into a written contract.
Strikes
Strikes generally are protected as “concerted activity” by the
NLRA. That is, employees may join with other members of their
union to protest their employer’s actions and to pressure the
employer to change. For example, employees may act in concert
by striking to persuade the employer to improve working conditions.
If an employer engages in unfair labor practices, it may become
the catalyst for an unfair labor practice strike. The NLRA also
protects workers against unfair labor practices during and after
a strike. The NLRA guarantees that employees retain their employment
status during a strike, and that when a strike ends they are returned
to their jobs. It is illegal for an employer to refuse to re-hire
employees who have been striking, or to retaliate against them
in any other way.
A wildcat strike is a strike initiated by a group of employees
without sanction of their union. Wildcat strikers are not protected
by the provisions of the NLRA and may be fired by their employers.
A number of categories of strikes specifically are made illegal
by the Labor Management Relations Act, including:
• Strikes attempting to force an employer or a self-employed
person to join a union
• Strikes attempting to pressure an employer to stop doing business
with another person
• Strikes to force an employer to bargain with a minority union
after the NLRB has certified a majority union to represent the
employees
• Strikes that begin within 60 days preceding the expiration
of a labor agreement
Employees who participate in an illegal strike lose their status
as employees.
It is illegal for a union to go on strike, refuse to work or otherwise
to threaten an employer if the purpose of is actions is to:
• Force the employer not to handle the goods of another employer
• Stop any person from using, handling, selling or transporting
the products of another employer
• Make another employer recognize or bargain with a union, other
than a union certified by the NLRB
• Force the employer to bargain with a union when a different
union already has been certified by the NLRB
Prohibited Employer Actions
In addition to retaliation against employees engaged in protected concerted activity, other actions against employees specifically are prohibited by the labor laws.
Discharge or Refusal to Hire
The NLRA made it illegal to refuse to hire someone, or to terminate
an employee, because of his or her presumed connection with a
union or organizing activities. In its simplest form, an employer
may not “black list” someone–tell managers not to hire the person–because
the person has a history of organizing the work force where he
or she works. An employer who discharges an employee on this ground
will be subject to a cease-and-desist order, and may be required
to pay back pay (plus interest) to the employee. The NLRB is authorized
to investigate to determine the actual reason for the discharge
or the refusal to hire. Employers in these cases often argue that
the firing or failure to hire was for an unrelated, lawful reason.
If the general counsel is able to show that the adverse action
was even partly motivated by retaliation, the employer will be
found liable for violating the Act.
Closing the Business
Some employers are so opposed to dealing with a union that they will go to the extreme of closing down their business. Obviously, labor laws do not require companies to stay in business; however, if certain conditions are met, an employer who shuts down a plant or relocates the company to another location may violate the NLRA. If the purpose of the shutdown is to avoid or discourage union activity, the actions are unlawful if (1) the employer’s business justification is outweighed by interference with the employees’ rights under the Act, and (2) the closing will yield a business benefit.
Other Employer Actions
The United States Supreme Court has heard numerous labor cases that have defined the limitations on an employer’s actions under the labor laws. Generally, unless an employer acts in an “inherently destructive” manner with regard to employee labor rights, an employer acts unlawfully only if anti-union motivation is shown. Employers counter charges of labor law violations by arguing that particular actions were motivated by legitimate business reasons, not anti-union ones. Thus, for example, an employer may legitimately engage in a “defensive lockout” (shutting the employees out of the building and replacing them with temporary workers) to prevent spoilage of materials that would be caused by a work stoppage. On the other hand, refusing to pay accrued vacation pay to former employees who had been on strike and whose employment ended under an agreement, while paying vacation benefits to replacement workers and returned employees, is not justifiable by an employer as a legitimate business activity. This action would be considered an anti-union violation of the NLRA.
Resolution of Disputes
Labor, perhaps more than any other area of the law, has had dispute resolution procedures built into the employer-union relationship. Mediation often is used during the union formation process. Once a union has been elected, any disputes that arise under the collective bargaining agreement are subject to a formalized procedure that involves the judicial system as a last resort. (Alternative Dispute Resolution procedures are discussed generally in the Alternative Dispute Resolution Chapter.) The vast majority of collective bargaining agreements contain an "arbitration clause," that states under what conditions a grievance will be arbitrated and how the arbitration will be orchestrated. Although every arbitration clause may be tailored to the parties' own circumstances, typically an agreement to arbitrate contains common elements. These elements address:
- What kind of disputes will be arbitrated
- Who initiates and administers the arbitration
- How the arbitrator will be chosen and how the arbitration will proceed (costs? open to non-parties?)
- The scope of the arbitrator's authority
Usually, an arbitration is conducted in a quasi-judicial manner. Arbitrators are experts in the field of labor relations, chosen from a list of people who are available to arbitrate grievances. Sometimes, arbitrators work in a panel of three. The arbitrator or panel will be familiar with the collective bargaining agreement and the parties' dispute as it has progressed through internal grievance procedures. Usually, both labor and management are represented by attorneys who file the grievance and respond to the grievance in writing, prepare and submit evidence, make statements, and even write briefs arguing their positions in the grievance.
Either in the arbitration clause or at the onset of arbitration, the parties agree on the exact extent of the arbitrator's authority. Generally, an arbitrator weighs evidence and renders an award that is binding on the parties. An employer, union, or employee who disputes an award must seek recourse in the courts. Most disagreements that arise in the labor context, however, are resolved informally by arbitration.
Resources
A Survey of Labor Relations,Lee Balliet, Bureau of National Affairs, BNA Books, Washington, D.C., 3d ed., 1987.
How to Defend and Win Labor and Employment Law Cases, Gordon E. Jackson and Stephen L. Shields, Prentice Hall, Englewood Cliffs, NJ, 1992.
Labor Relations Arthur A. Sloane and Fred Whitney, Prentice-Hall, Englewood Cliffs, NJ, 5th ed., 1985.
National Labor Relations Board, 1099 14th Street NW, Washington, D.C. 20570, (202) 273-1991; Region XII, 201 East Kennedy Boulevard, #530, Tampa, FL 33602-5824, (813) 228-2641.