• Labor Law
  • Federal Legislation Regarding Unions
    • Norris-LaGuardia Act
    • National Labor Relations Act
    • Labor-Management Relations Act
    • Landrum-Griffin Act
  • Forming a Union
    • Employee Procedures
    • Employers' Rights and Obligations during Organizational Drives
    • The Election
  • Employer-Union Relations
    • Exclusivity Principle
    • Duty to Engage in Collective Bargaining
  • Strikes
    • Prohibited Employer Actions
      • Discharge or Refusal to Hire
      • Closing the Business
    • Other Employer Actions
    • Resolution of Disputes
  • Resources

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 : Management 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 law attorney.

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 little 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 courts to use injunctions to stifle the developing 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 theretofore 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.

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 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.

The Exclusivity Principle

The NLRA contains an exclusivity principal 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 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 principal. 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 to 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 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, that may become the catalyst for a strike, called 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 the action 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.

Lee Balliet, A Survey of Labor Relations (Bureau of National Affairs, BNA Books, Washington, DC, 3d ed. 1987).

Gordon E. Jackson & Stephen L. Shields, How to Defend and Win Labor and Employment Law Cases (Prentice Hall, Englewood Cliffs, NJ 1992).

Arthur A. Sloane & Fred Whitney, Labor Relations (Prentice-Hall, Englewood Cliffs, NJ, 5th ed. 1985).

National Labor Relations Board, 1099 14th Street N.W., Washington DC 20570, (202) 273-1991; Region XX, 901 Market Street #400, San Francisco, CA 94103, (415) 356-5140; Region XXI, 888 Figaroa Street South 9th Floor, Los Angeles, CA 90017, (213) 894-5204; Region XXXI, 11000 Wilshire Boulevard #12100, Los Angeles, CA 90024-3682, (310) 235-7352; Region XXXII, 1301 Clay Street Room 300N, P.O. Box 12983, Oakland, CA 94612, (510) 637-3300.