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Chapter 3
 The Legal Regulation of Unions and
Collective Bargaining
The Conspiracy Doctrine
 From 1800 to 1890 state courts relied on British
common law to regulate the conduct of unions
and employers
 Cordwainers’ case: First landmark case in 1806
 Court ruled efforts to raise wages were a criminal
conspiracy
 Commonwealth v. Hunt: In 1842, court ruled
unions could exist, but were prohibited from
using coercive practices
The Sherman Antitrust Act
 Courts applied Sherman to unions, treating
them as a “commodity”
 Unions were treated like other monopolies
or conspiracies that restricted trade
 Courts used injunctions to discourage
strikes
 Employers could gain injunctions quickly
The Clayton Act
 Unions lobbied hard to end injunctions
 In 1914, Congress passed the Clayton Act
 The act was supposed to end the use of
injunctions, but courts interpreted it narrowly and
state courts continued to use injunctions
Legislation Granting Rights to
Collective Bargaining
 Legal and public policy opposition to the
formation of unions began to erode in the early
20th century
 Lloyd-LaFollette Act of 1912 gave postal
employees the right to organize
 War Labor Board supported rights for the private
sector to organize
 The start of pragmatic adjustments in response to
union power and labor turmoil
The Railway Labor Act
 Passed by Congress in 1926
 Specifies that the employees have the right to
organize unions without employer interference
and to bargain through the representatives of their
own choosing
 The purpose of the law was to establish
procedures to reduce conflict in the railroads
 Airlines were added in 1936
A Test of Constitutionality
 The constitutionality of the RLA was in
question until a Supreme Court Ruling
 In 1930, Court heard Texas and New Orleans
Railroad Company v. Brotherhood of Railway
and Steamship Clerks
 Court ruled that bargaining was in the “highest
public interest” and would prevent the
interruption of commerce
 First time Supreme Court recognized the
authority of the U.S. to protect union activities
The Norris LaGuardia Act
 Passed in 1932, the Act provided an even
stronger endorsement of collective bargaining
than the RLA
 It allows private sector employees full freedom of
association, self-organization, and representatives
to negotiate contractual terms
 Also known as the “Federal Anti-Injunction Act” as
it imposed restraints (but state courts continued to
issue injunctions)
National Industrial Recovery Act
 NIRA passed in 1933 to promote recovery
from the Depression
 Allowed business groups to plan & regulate
prices; workers in the plan had minimum wages
 Meant to stimulate business activity
 Struck down by Supreme Court; Congress had
exceeded its authority
 From 1933-1935, union members grew from
2.9 to 3.9 million
National Labor Relations Act
 Passed in 1935, the NLRA made union activity
and strikes legal in the private sector
 Purpose was to promote orderly and peaceful
recognition of unions and collective bargaining as
a means of establishing terms of employment
 Later amended by Taft-Hartley (1947) and
Landrum-Griffin (1959)
National Emergency Disputes
 Title II of the NLRA includes procedures when
a strike has caused a national emergency
dispute
 The NLRA created the Federal Mediation
and Conciliation Service (FMCS) to mediate
disputes and assist in the free flow of
commerce
 President can ask for a court injunction to
require both sides to work under the expired
contract while holding negotiations
 If that fails, Congress can end the dispute
Administration of the NLRA
 A five-member board with a general counsel, 50
regional boards and staff administers the NLRA
 Key function of the NLRB is to supervise and
conduct representation elections and to adjudicate
charges of unfair labor practices
 The NLRB can award back pay but cannot assess
punitive damages
 Court must enforce orders and the aggrieved can
appeal to court
The Taft-Hartley Act
 After WWII, labor unions had grown in strength
and a strike wave stimulated hostility toward
unions
 Congress passed the Taft-Hartley in 1947 to
balance the power and grant more individual
rights in dealing with unions
 Union unfair practices were added to Section 8
 Excludes supervisors in the private sector from
coverage under the NLRA
 Mandates labor reports to DOL, frequency of
union elections, and allows DOL trusteeship
The Landrum-Griffin Act
 Known also as the Labor-Management
Reporting and Disclosure Act of 1959
 Major purpose was to protect union members from
improper union conduct
 Eliminated arrangements between unions and
employers that deprive members of proper union
representation
 Includes “bill of rights” section for members
The Value of Collective Bargaining
 The Contribution to Political Democracy
 Right to form unions and carry out strikes is an
essential component of political democracy
 The Need for the Right to Strike
 Since the freedom to enter a contract also
requires the freedom to reject a contract offer, the
right to negotiate and strike are closely related
Public Sector Law
 Collective bargaining rights were granted to
federal employees through Executive Order
10988 in 1962
 The Civil Service Reform Act of 1978 established
the FLRA for the federal sector
 Since the passage of the NLRA, 41 states have
passed collective bargaining legislation for state
and local employees
Employment at Will
 Doctrine that stipulates that the employee and
employer are free to end the employment
relationship at any time, for any reason, and
without liability, provided the termination does
not violate any statutory or constitutional
provisions
 Thus, non-union employees may have no
recourse if discharged
The Scope of the Doctrine
 State courts have decided for the employment-at-will
doctrine:
 When there is no written contract, no specified term
of employment, and no employee handbook
 When an employee handbook is insufficient to
establish exceptions to the “at will” doctrine
 An expired union contract leads to employment at will
 Otherwise, the contract would discourage good
faith bargaining and be “inimical” to the collective
bargaining process
Exceptions Imposed by State
Courts
 State courts have awarded back pay and
reinstatement to discharged employees when:
 The employer’s written policies constitute an
implied contract and employment security
 This limits employer discharge to “just cause”
 Promises of employment security in a oral or
written agreement, or through actions that lead
employees to expect employment security
 Firing an employee for refusing to violate statutory
policy
Employment Law
 Society has regulated certain employment
conditions more directly than it does collective
bargaining
 In the U.S., such regulations include overtime,
minimum wages, unemployment insurance,
pensions, and other issues
 The Fair Labor Standards Act of 1938 includes
many of the key regulations
Seniority and Equal Employment
Opportunity Policy Goals
 Seniority provisions regulate which worker will
be laid off and who is eligible for promotion
 In the past, some seniority systems were used
to discriminate against minorities and women
by creating segregated seniority units or
progression ladders
 Key Court Decisions on Seniority Systems
 Supreme Court ruled in 1977 that departmental
seniority units are legal as long as there is no
intent to discriminate
Key Court Decisions on Seniority
Systems
 Supreme Court ruled in 1977 that
departmental seniority units are legal as long
as there is no intent to discriminate
 Consent decrees are separate from judicial
rulings
 Federal agencies negotiate settlements,
such as in the steel industry
 Cannot be binding on persons who are not
parties to the proceedings
 Seniority systems cannot be altered by a court
to benefit workers not victims of discrimination
Key Court Decisions on Affirmative
Action
 The term “affirmative action” was first introduced
by JFK in 1961 by Executive Order 10925
 Title VII does not require affirmative action, but
does require nondiscrimination in hiring, pay, and
promotion
 In the 1960s and 1970s, the Supreme Court
expanded legal avenues for women and
minorities battling discrimination
 A more conservative shift began in the late
1970s
A Timeline Placed on Civil Rights
 Workers cannot be compensated for
discrimination that occurred prior to the Civil
Rights Act
 An individual has 2 years to file a charge
 In 1989, the Supreme Court ruled that affirmative
action settlements can be reopened when a
white male alleges reverse discrimination
Important Administrative Agencies
 National Labor Relations Board (NLRB)
 Administers the NLRA, including Taft-Hartley
and Landrum-Griffin amendments
 Key activities include designating bargaining
units, conducting representation elections, and
investigating and adjudicating unfair labor
practice charges
 U.S. Department of Labor
 Conducts research and collects data
 Also oversees equal opportunity employment,
health and safety, and internal union affairs
Federal Mediation and Conciliation
Service (FMCS)
 Offers mediation service to labor and
management in collective bargaining
 National Mediation Board
 Administers the Railway Labor Act, union
representation, and mediation services
 State and Local Agencies
 A variety of agencies that regulate the conduct of
public sector bargaining, provide mediation, and
administer regulations
Summary
 Labor laws influence the conduct of collective
bargaining
 The NLRA is the key labor law that governs
collective bargaining
 Passed in 1935, it gives unions the right to strike,
exclusive jurisdiction, defines unfair labor
practices, and regulates bargaining
 Before the NLRA, courts had applied the
conspiracy doctrines and injunctions