There are four main federal laws that form the basis of labor law and unionization:
- the Norris-LaGuardia Act of 1932,
- the Wagner Act of 1935 (also known as the National Labor Relations Act);
- the Wagner Act amendment,
- the Taft-Hartley Act of 1947 (also known as the Labor Management Relations Act); and
- the Landrum-Griffin Act of 1959.
Until these laws were passed, employers held virtually all of the power over the workplace.
The Norris La-Guardia Act
The Norris-LaGuardia Act was the first major law labor statute in the U.S. The opening section of the Act endorsed collective bargaining as a matter of public policy and established that government recognized that the job to a worker is more important than a worker is to a corporation and the only real power workers have is in impacting employers through concerted activity. This law sharply curbed the power of courts to intervene in labor disputes, including the use of injunctions.
This Law gave no new rights, but rather, unions were allowed to operate free from court control and interference, thus greatly facilitating collective bargaining. For example, this law did not directly outlaw yellow dog contracts[1], but declared them inconsistent with public policy and not enforceable in courts. Such agreements were later deemed to be unfair labor practices by NLRB.
Section 4 of the law declared federal courts could not issue injunctive relief in a labor dispute if it would prohibit any one participating in such a dispute from doing certain acts, judges could not restrain strikes, regardless of the objective, and could not restrain picketing activities, labor unions could urge other employees to join the concerted activity and could provide relief funds to strikers and publicize labor disputes.
The Wagner/National Labor Relations Act
The National Labor Relations Act established the right of employees to form unions, bargain collectively and to strike, and is the mainstay of union activity. At one time it had been illegal – in fact, criminal – for employees to join together in an effort to collectively bargain with employers.
The National Labor Relations Act
Congress placed administration of the Act in the hands of the National Labor Relations Board (NLRB) as an independent federal administrative agency, rather than in the hands of an industrial group. It also:
- set up standards to govern the exercise of power delegated to the agency;
- provided for the judicial enforcement of the agency’s orders;
- empowered the Board to issue remedial orders, enforceable in court, to prevent unfair labor practices;
- established that it is an unfair labor practice to:
- interfere with, restrain, or coerce employees in the exercise of their rights;
- interfere with the formation of a labor organization;
- discriminate in the hiring or tenure of employment or discourage membership in a labor organization;
- retaliate for filing charges or testifying under the act; and/or
- refuse to bargain with the representatives of the employees.
Businesses did not like the new law and set up many challenges to it until the U.S. Supreme Court declared the law constitutional and judicially endorsed the law and NLRB’s powers.
The National Labor Relations Board (NLRB)
The NLRB enforces labor laws in the private sector. In doing so, once sufficient interest has been indicated by the employees, the NLRB conducts elections among employees to determine what union is to represent the employees in collective bargaining. The NLRB also decertifies unions which the employees no longer wish to represent them, issues appropriate regulations, hears unfair labor practice cases at the agency level, and otherwise administers the NLRA.
In collective bargaining, employees with a community of interests, that is, similar workplace concerns and conditions come together as a bargaining unit which the union will represent. The community of interest is based on factors such as similarity of the jobs the employees perform, similar training or skills, etc. The general rule is that there must be at least two employees in a bargaining unit, but an employer may agree to a one-person unit such as for an on-site craft worker (e.g., a carpenter who belongs to a carpenter’s union being employed at a work-site as the only carpenter).
Employees may unionize either by signing a sufficient number of authorization cards, voting a union in during a union representation election or, in some cases, the NLRB ordering the employer to bargain with a union. The NLRB supervises the union election and certifies the results. Employers cannot interfere in any way with the employees’ efforts to form a union.
Concerted Activity
Section 7 of the NLRA guarantees employees the right to engage in concerted activities for mutual aid or protection. This usually includes union organizing, union discussions among employees, and attempts by employees to solicit union support from other employees. Concerted activity need not involve a union, as activities by groups of employees not affiliated with a union to improve their lot are deemed protected concerted activities, as are acts by a single employee who is not joined by other employees. Acts of violence or threats are not given protection as concerted activity.
Unions
Unions are composed of non-supervisory or managerial employees, including part-time workers. Specifically excluded from the NLRA are agricultural and domestic workers, independent contractors and those employed by their spouse or parent.
The union’s shop steward is elected by the members and is their intermediary between the employer and the union. The steward may collect dues, recruit new workers, and help to resolve disputes between labor and management.
Many unions are formed with employees of a particular plant who may be part of a larger union network. For instance, the employees who pack meat at a meat processing plant may organize and become the local branch or affiliate of an international meat packer’s labor organization, an industrial union. Unions may also be organized by a particular craft, totally detached from a particular workplace. In such cases, the business agent of the craft union (for instance, carpenters) represent the union craft worker’s interest at a given job site. Employers will often contact the craft union when it needs the type of employees represented by that union.
Good Faith Bargaining
Under the NLRA an employer is required to bargain collectively, in good faith, with union representatives about wages, hours and terms and conditions of employment. These are mandatory subjects of bargaining. Employers may bargain about other matters (permissive subjects), but only a refusal to bargain about mandatory subjects of bargaining may form the basis of an unfair labor practice. If management and labor may differ as to whether or not a particular matter is a mandatory subject of bargaining and the disagreement is legitimate, it can form the basis of an unfair labor practice. For instance, a union may allege that management has committed an unfair labor practice by refusing to bargain over a mandatory subject of bargaining. If the matter proposed for negotiation is illegal, such as a proposal to have a closed shop, it is bad faith bargaining to even bring it up as a proposal and management’s refusal to bargain cannot be the basis of an unfair labor practice.
The law requires only that management bargain in good faith about appropriate matters, not that one party necessarily agrees with the other’s position and include it in the contract. The intent of collective bargaining between labor and management is to prevent management from unilaterally instituting workplace policies that closely affect workers. The fact that one side or the other does not receive what they want in the contract is not just cause for an unfair labor practice. As long as good faith bargaining is conducted, there has been compliance with the statute.
An example of bargaining in bad faith might occur when, for instance, management comes to the bargaining table and denies a raise to employees without offering any evidence whatever as to why and simply continues to say no to the union’s proposal. It could also occur if one side rejects proposals out of hand without making counterproposals to the other side. Failing to show up for negotiations or refusing to sign the written agreement to which the parties orally agreed would also be bad faith bargaining.
Duty of Fair Representation
The statute imposes upon unions a duty of fair representation. This duty, not formally defined in the statute, and often used as a catch-all allegation, requires the union to represent all employees fairly and non-discriminatorily. If employees feel that one group has come out better than another in a contract, they will use the duty of fair representation as a basis for challenging the contract.
Collective Bargaining Agreements
If all goes well, bargaining between labor and management results in a collective bargaining agreement. This is the term for the contract that is reached between the employer and employees about workplace wages, hours and other terms and conditions of employment. There is no set form that this agreement must take, and it may be any length and contain any provisions which the parties decide.
Job and union security is the main issue for employees, while freedom from labor strife such as strikes, slowdowns and work stoppages is paramount for employers. Management will often wish to include a management security clause stating that they have the power to run their business and make business decisions as long as they are not in violation of the collective bargaining agreement or the law. Toward that end, in addition to wages and hours, collective bargaining agreements often also contain provisions regarding strikes, arbitration of labor disputes, seniority, benefits, employment classifications, etc.
The agreement will only be in effect for a certain specified period. Prior to that time, the parties will again have to come to the table and negotiate a new contract which takes place upon the expiration of the existing agreement.
The collective bargaining agreement may include a clause permitting mid-term negotiations. These are negotiations during the life of the contract rather than just prior to its expiration, about matters upon which the parties have agreed they will permit interim negotiations. The parties may not be able to agree on a particular provision, and rather than allow it to hold up the entire contract, will agree to come back together later and negotiate it. Alternatively, the parties may agree to mid-term negotiations because the contract may cover a fairly long period and the provision is one that may change quickly and need to be reviewed before the contract expiration date.
Unfair Labor Practices
Refusal to bargain in good faith is not the only unfair labor practice that an employer can commit. Others include engaging in activities that would tend to attempt to control or influence the union, or interfere with its affairs and discriminating against employees who join or assist unions. Actual interference by the employer need not be proved in order for it to be considered an unfair labor practice. Rather, the question is whether the activity tends to interfere with, restrain or coerce employees who are exercising rights protected under the law.
It is an unfair labor practice for employers to promise or give benefits, or in the alternative, for them to reduce them, in an effort to discourage unionizing efforts.
Strikes and Lockouts
The NLRA permits certain strikes by employees as a legitimate form of protest. When a union strikes, union members do not work, but instead, generally gather outside the employer’s place of business and carry signs about the nature of the strike (picketing) and chant slogans. Engaging in such activity is for purposes of bringing attention to the strikers’ demands, gathering support and discouraging others who may support the employer; for example, encouraging shoppers going into a grocery store not to patronize the store because the clerks are on strike.
Legitimate strikes may be called by the union either for economic reasons or because of unfair labor practices. For instance, the employees may strike when a collective bargaining agreement expires or if the employees are attempting to force economic concessions from the employer. If employees strike for legally recognized reasons, their actions are protected under the NLRA and they retain their status as employees.
Strikes which are not authorized by the union are called wildcat strikes and are illegal if they force the employer to deal with the employees rather than the union or impose the will of the minority rather than the majority.
If the employer replaces the strikers during the strike, once the strike is over, the strikers have a right to reinstatement if they offer an unconditional offer to return to work. If the striker’s job is occupied, then only the unfair labor practice strikers are entitled to be reinstated. If a striker’s job is filled during an economic strike, the striker is not entitled to reinstatement.
Just as the employees may stop working if they feel the need to strike, the employer may close the premises to employees and engage in a lockout. In a lockout, the employer curtails employment by either shutting down the plant or bringing in temporary nonunion employees after laying off striking workers. Under the NLRA the employer may not engage in lockouts as a way of avoiding bargaining or unionizing, but rather, as with strikes, to bring pressure to bear on the other side for legitimate purposes.
Many collective bargaining agreements contain no-strike, no lockout clauses which either prohibit or limit the availability of this action, and instead agree to use the grievance process to handle issues.
The Taft-Hartley Act
With the enactment of the NLRA and the subsequent gains made in unionism, the Taft-Hartley Act in 1947 was enacted as an amendment to the NLRA to curb excesses by unions, which had grown strong and powerful over the years. Unfair labor practices by unions include such activities as
- the union’s refusing to bargain or refusing to do so in good faith as mentioned above
- coercing employees to join unions (or not join, as the case may be);
- charging members discriminatory dues and entrance fees;
- engaging in jurisdictional or secondary boycotts[2];
- causing an employer to pay for goods or services that are not provided; or
- restraining or coercing employees in the exercise of his or her rights or employers in the selection of his or her representatives for collective bargaining.
The NLRA permits states to have right-to-work laws, which about half of them do. In a right-to-work state, employees of a unionized workplace who do not wish to join the union may not be required to do so. Despite their non-participation in the union, the union must still represent these employees as a part of the bargaining unit. If a state is not a right-to-work state, the union and employer may have as a part of their collective bargaining agreement as a union security device, a provision for a union shop. This provision, called a union shop clause, requires the employer to have all members or potential members of the bargaining unit agree that they will join the union within a certain amount of time after becoming employed.
It is also permissible for the collective bargaining agreement to contain an agency shop clause which requires non-union members to pay to the union the usual union dues and fees without joining the union and thereby becoming subjected to union rules. Some right-to-work laws do not allow this, and instead permit non-union employees of the bargaining unit to be free riders, that is, to receive union benefits without having to pay union dues or fees.
Closely related is the concept, now illegal, of closed shops. Closed shop provisions in collective bargaining agreements required employers to only hire union members.
Frequently union members disagree with the use to be made of union dues — particularly in an agency shop where employees who do not wish to belong to a union must still pay the union an amount equal to union dues (often called a service fee).
The Landrum-Griffin Act
This law is also known as the Labor Management Reporting and Disclosure Act. This legislation was enacted in response to congressional investigations into union corruption from 1957-59. After finding evidence of such corruption, the legislation was passed. Based upon the investigative findings, the purpose of the law is to establish basic ways of unions operating in order to ensure a democratic process, provide union members with a minimum bill of rights attached to union membership, and regulate the activities of union officials and use of union funds.
Under the Act, a bill of rights was provided for union members. Looking at some of the provisions of the Bill of Rights, one might think that they are so simplistic as to be taken as givens for an organization. The Landrum-Griffin Act also set forth specific procedures to be followed when unions hold elections, including:
- voting for officers by secret ballot;
- elections at least every three years (other times for different levels of the union, such as international officers), candidates being able to see lists of eligible voters; and
- provisions for members having an election declared improper.
Provisions were also enacted to safeguard union funds. Unions cannot use union funds for anything except benefiting the union or its members. Funds cannot be used to support union office candidates, and union officials, agents, employees, etc. cannot acquire financial interests which conflict with the union’s. Stealing or embezzling union funds was made a federal crime by the law.
Labor Relations in the Public Sector
The NLRA applies only to the private sector. Historically, there has been little legislation affecting labor relations of public employees. The NLRA exempts these employees.
There is no uniform federal policy on public labor-management relations, though over half of the 50 states and the District of Columbia have collective bargaining statutes covering most, if not all, public employees.
Federal employees formed associations, but only postal workers had any power to influence the workplace. In 1962 President Kennedy established the right of federal employees to form and join unions. Federal employees are covered by the Civil Service Reform Act of 1978 which established the Federal Labor Relations Authority to administer federal sector labor law. This agency may be thought of as the federal employment counterpart to the private sector’s National Labor Relations Board.
State, County, and Municipal Public Employees
Most public employee organizations at the state, county and municipal levels can be divided into three major categories — professional associations, craft unions and industrial-type unions. Professional associations are composed of a wide variety of professionals, such as the National Education Association (NEA) composed of over one million members, including school teachers, principals, administrators and other school specialists.
The Fraternal Order of Police does not consider itself a union, but many local lodges engage in traditional union activities such as collective bargaining, grievance handling, and representing the interest of its members to management.
Craft unions include the International Association of Firefighters (IAFF), which is an AFL-CIO affiliate, the United Mine Workers, the International Brotherhood of Electrical Workers, and the American Federation of Teachers (AFT), which limits its membership to classroom teachers only.
The dominant industrial-type union is the American Federation of State, County , and Municipal Employees (AFSCME), an AFL-CIO affiliate. AFSCME can represent an entire city or county or smaller units of government, such as a department or group of employees that cuts across many departments (e.g., agency clericals).
The AFL-CIO assists public worker’ unions affiliated with it through its Public Employees Department formed in 1994, representing 4.5 million federal, state, and local government employees. The most important difference between public and private collective bargaining is the right to strike that is a mainstay of the private sector is prohibited in most government workplaces.
The striking prohibition is grounded in the need to protect public health and safety and prevent service personnel like police officers and firefighters from striking while crime rises and buildings burn, as well as the sovereignty doctrine deeming striking against a governmental employer as inconsistent with the government being the sovereign or highest authority.
State and federal employees have not always honored the prohibition on striking. While many have ignored the prohibition, probably the most famous example was when the federal air traffic controllers, represented by the Professional Air Traffic Controllers Organization (PATCO) went on strike in 1981. One of the reasons the strike was so memorable was undoubtedly because newly-elected President Ronald Reagan terminated 11,000 employees.
[1] A yellow-dog contract or a yellow-dog clause of a contract is an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union.
[2] A secondary boycott is an attempt by labor to convince others to stop doing business with a particular firm because that firm does business with another firm that is the subject of a strike and/or a primary boycott.
