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Chapter 22 – Labor–Management Relationship

22-1

Chapter 22

Labor–Management Relationship

Learning Objectives

The focus shifts to examine the right of workers to unionize and to the law of labor-

management relations. In this chapter, students will examine, from a chronological

perspective, Congress’s various attempts to protect employees and to equalize the bargaining

power of management and labor to enable collective bargaining. The National Labor

Relations Board is the prime regulatory force in this area, and the chapter should familiarize

the students with both its strengths and weaknesses. This chapter will examine conduct that

constitutes unfair labor practices by both employers and labor unions. Students should

recognize that it is easy for either labor or management to commit an unfair labor practice.

They should also be aware of the sanctions that are imposed for unfair labor practices.

References

 Brody, D., Labor Embattled: History, Power, Rights. University of Illinois Press

(2005).

 Dannin, E., Taking Back the Workers’ Law: How to Fight the Assault on Labor

Rights. ILR Press (2006).

 Freeman, R., J. Hersch, and L. Mishel, Emerging Labor Market Institutions for the

Twenty-First Century. University of Chicago Press (2005).

 Gorman, R. and M. Finkin, Gorman and Finkin’s Hornbook on Labor Law –

Unionization and Collective Bargaining, 2nd edition. West Publishing (2004).

 Law, G.T., A Guide to Sources of Information on the National Labor Relations Board.

Routledge (2002).

 Lambert, J., “If the Workers Took a Notion”: The Right to Strike and American

Political Development. ILR Press (2005).

 Leslie, D.L., Labor Law in a Nutshell, 4th ed. West Group (2000).

 Website: http://www.nlrb.gov

Teaching Outline

I. Labor Laws (LO 22-1)

Emphasize:

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in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

 The need to unionize employees and the composition of a union.

 The historical data showing the workforce that is unionized.

 Table 22.1—”Statistics on Union Membership”

 Sidebar 22.1—”2010 Statistics on Union Membership”

 Table 22.2—”Federal Laws Governing Labor-Management Relations”

A. Laws Before 1935 (LO 22-2)

Emphasize:

 Congress’s view on management in a labor–management relationship.

 The repercussions of trying to unionize in the last two centuries.

 The three “prolabor “acts passed by the congress that were meant to curb employer

mistreatment of employees.

The Clayton Act

Emphasize:

 That the first federal statue of any importance to the labor movement is the

Clayton Act of 1914.

 That antitrust laws do not apply to labor unions that are carrying out legitimate

labor activities such as striking and picketing.

Case for Discussion:

1. A union and several employers negotiated a collective-bargaining agreement

which restricted the operating hours of food-store meat departments in Chicago,

Illinois, to 9:00 a.m. through 6:00 p.m. Jewel Tea brought suit, alleging that a

prepackaged, self-service system of marketing meat eliminated the need to have

a butcher on duty at all times; therefore, the limitation on operating hours was an

unreasonable restraint of trade. The defendants claimed that the controversy was

exempt from the antitrust laws.

Issue: Does the antitrust laws apply?

Cutters, and Butcher Workmen of North America, AFL-CIO, et al. v. Jewel Tea

Company, Inc., 85 S.Ct. 1596 (1965).

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The Railway Labor Act

Explain:

 That In 1926, Congress enacted the Railway Labor Act to encourage collective

bargaining in the railroad industry.

 That the National Mediation Board, a three member board, that has a bargaining

representative for any bargaining unit of employees in the railway or air transport

industries.

 That if no agreement is reached, then the process moves onto arbitration.

 Therefore, after a sixty day period, lockouts by management and strikes by

workers become legal under this law.

Cases for Discussion:

1. Norris was terminated by Hawaiian Airlines as an aircraft mechanic. Norris had

refused to sign a maintenance record on a plane he felt was unsafe to fly. He

reported his concerns to the Federal Aviation Administration. After being fired,

Norris filed a wrongful discharge suit in the Hawaiian state courts. Hawaiian

Airlines moved to dismiss Norris’s complaint on the grounds that the Railway

Labor Act preempted this state-based action and required arbitration of this

dispute.

Issue: Does the Railway Act preempt the Hawaiian-based lawsuit and require

that Norris submit his grievance to arbitration?

Hawaiian Airlines, Inc. v. Norris, 114 S.Ct. 2239 (1994).

2. TWA informed its flight attendants before and during a strike that any vacancies

created by the strike would be filled through hiring of permanent replacements,

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work.

Issue: Can striking employees be permanently replaced?

Attendants, 109 S.Ct. 1358 (1989).

3. A collective-bargaining agreement required that all of the airline’s clerical

employees join the union or pay agency fees equal to members’ dues. Plaintiffs

objected to the use of their compelled dues or fees for certain union activities.

The union adopted a rebate program under which objecting employees were

ultimately reimbursed for their shares of political expenditures but collected from

objecting employees for expenses for (1) the national union’s quadrennial Grand

Lodge convention, (2) litigation not involving the negotiation of agreements or

settlements of grievances, (3) union publications, (4) social activities, and (5)

general organizing efforts.

Issue: May the members’ dues be used for these purposes?

S.S. Clerks, 104 S.Ct. 1883 (1984).

The Norris-LaGuardia Act

Emphasize:

 That the Norris-LaGuardia Act attempts to limit the power of the federal courts

to issue injunctions.

 That although the act does greatly restrict state courts from issuing injunctions, it

does not prohibit them altogether.

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in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

Case for Discussion:

1. A Union, which represents railroad employees nationwide, had a dispute over

renewal of a collective-bargaining agreement with a small railroad that is a

subsidiary of a large railroad. After exhausting the settlement procedures mandated

by RLA, the Union instituted a lawful strike against the parent railroads. The Union

extended its picketing to other railroads with which the parent interchanged traffic.

Issue: Can the court enjoin this secondary picketing?

II. The Wagner Act (LO 22-3)

Emphasize:

 The historical time frame in which the Wagner Act was passed.

 Section 7 rights of employees and what it states.

 Sidebar 22.2—“Three Pro-Union Executive Orders”

Case for Discussion:

1. A union refused to work overtime during negotiations for renewal of a contract. The

employer filed a complaint with a state employment relations commission that entered

a cease and desist order. The state courts upheld the order.

Issue: Does the state have jurisdiction over this labor dispute?

A. The National Labor Relations Board

Emphasize:

 That the National Labor Relations Board (NLRB) operates as an independent

agency of the U.S. government.

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 The NLRB’s authority to certify unions as the collective bargaining representative

of employees.

NLRB Organization

Describe:

 The organization and functions of the NLRB and the role of the general counsel

of the board.

 Administrative law judges are responsible for the initial conduct of hearings in

unfair labor practice cases.

Jurisdiction

Explain:

 The category of personnel who are exempted from NLRB.

 That the NLRB cannot exercise its powers over all business because it has a

limited budget and time constraints.

 Sidebar 22.3—”Are College Football Players Employees?”

 Case 22.1—”Hispanics United Of Buffalo, Inc. and Carlos Ortiz”

Quasi-Judicial Authority

Describe:

 The broad scope that an order by the NLRB can have to remedy the effects of an

unfair labor practice after it finds that one has occurred.

 That the NLRB has the power to order whatever action is necessary to correct the

unlawful practice.

Cases for Discussion:

1. The NLRB adopted a general rule that there would be eight and only eight

defined employee units for collective bargaining in acute case hospitals. The

American Hospital Assn. contended that the law requires the NLRB to make a

separate bargaining unit determination in each case and to avoid proliferation of

units.

Issue: Is the NLRB rule valid?

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appropriateness of a bargaining unit, the Board shall resolve the dispute. In doing

so, the Board is entitled to rely on rules that it has developed to resolve certain

issues of general applicability. The rule is not arbitrary and capricious. American

Hospital Assn. v. NLRB, 111 S.Ct. 1539 (1991).

2. An action was instituted by a union for relief against certain prohibitions

contained in the New Jersey Casino Control Act.

Issue: Is the New Jersey act applicable?

v. Hotel & Restaurant Employees & Bartenders, 104 S.Ct. 3179 (1984).

3. An employer was sued for misrepresentation and breach of contract by strike

replacements who were displaced by reinstated strikers. The strike replacements

had been offered and accepted jobs on a permanent basis and had been assured

that they would not be fired to accommodate returning strikers.

Issue: Do the strike replacements have a cause of action?

B. Certification of Unions

Emphasize:

 That an employer may voluntarily recognize that its workers want to have a certain

labor union represent them.

 More common is the NLRB’s certification of a union as the bargaining agent for a

group of employees.

 Sidebar 22.4—“Limitation on NLRB’s Remedies”

Certification Elections

Emphasize:

 Elections are by secret ballot and are supervised by the NLRB.

 The procedures for filing for both certifying and decertifying elections.

 That unequivocal cards may be substituted for an election but ambiguous ones

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may not.

Cases for Discussion:

1. Auciello Iron Works had 23 production and maintenance employees. After a

union election in 1977, the NLRB certified Shopmen’s Local No. 501, a/w

25, 1988. Negotiations for a new one were unsuccessful throughout September

and October 1988. When Auciello and the Union had not made a new contract by

October 1988, the employees went on strike. Negotiations continued and on

November 17, 1988, Auciello presented the Union with a complete contract

proposal. On November 18, 1988, the picketing stopped, and nine days later, on a

Sunday evening, the Union telegraphed its acceptance of the outstanding offer.

The very next day, however, Auciello told the Union that it doubted that a

majority of the bargaining unit’s employees supported the Union, and for that

reason disavowed the collective-bargaining agreement and denied it had any duty

to continue negotiating. Auciello traced its doubt to knowledge acquired before

the Union accepted the contract offer, including the facts that 9 employees had

crossed the picket line, that 13 employees had given it signed forms indicating

their resignation from the Union, and that 16 had expressed dissatisfaction with

the Union. In January 1989, the NLRB’s General Counsel issued an

administrative complaint charging Auciello with violation of §§ 8(a)(1) and (5)

of the NLRA. An administrative law judge found that a contract existed between

the parties and that Auciello’s withdrawal from it violated the Act. The Board

affirmed the administrative law judge’s decision; it treated Auciello’s claim of

good-faith doubt as irrelevant and ordered Auciello to reduce the collective–

bargaining agreement to a formal written instrument. The Court of Appeals

enforced the Board’s order.

Issue: Assuming Auciello has good-faith reasons to question its employees’

support of the union, can Auciello refuse to bargain with the union under the

terms of a collective bargaining agreement?

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in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

recognizes that an employee might also be paid by a union for work done on

behalf of the union. Auciello is obligated to bargain with the union during the

term of a collective-bargaining agreement. Since Auciello refused to bargain, it

committed an unfair labor practice. Auciello Iron Works, Inc. v. Labor Relations

Board, 116 S.Ct. 1754 (1996).

2. Sterlingwale laid off all of its production employees in February 1982, and went

out of business in late summer. Fall River acquired Sterlingwale’s plant, real

property, equipment, and some of its remaining inventory, and began operating

out of Sterlingwale’s former facilities and hiring employees in September 1982.

In October 1982, the union that had represented Sterlingwale’s production and

maintenance employees for almost thirty years requested Fall River to recognize

it as the bargaining agent for its employees and begin collective bargaining. Fall

River refused even though a majority of its employees were ex-Sterlingwale

employees.

Issue: Is Fall River obligated to bargain with the union?

Labor Relations Board, 107 S.Ct. 2225 (1987).

3. The members of an independent local union voted to affiliate with an

international union. The employer refused to bargain with the new entity. The

NLRB decided that because non-union employees were not allowed to vote in

the affiliation election, the election did not meet minimal due process standards

and was therefore invalid.

Issue: Did the NLRB exceed its authority?

Employees, 106 S.Ct. 1007 (1986).

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Additional Resource

 See the NLRB’s homepage—http://www.nlrb.gov

C. Unfair Labor Practices by Management

Emphasize:

 Why Congress perceived the need for unfair labor practices by management.

 What constitutes an unfair labor practices by management.

 Sidebar 22.5—“Unfair Labor Practice? The NLRB v. Boeing”

Interfering with Unionization

Emphasize:

 The disjunctive nature of the first unfair labor practice. The first half refers to

interference with efforts “to form, join or assist labor organizations.” The second

half refers to interference with employees’ concerted activities.

 The various ways employers can use scare tactics or threats to interfere with the

efforts to form, join, or assist a labor organization.

 That a conferral of benefits on employees can be an unfair labor practice.

 The temptation to use work rules to discourage unionization.

Cases for Discussion:

1. Town & Country Electric, Inc., a nonunion electrical contractor, wanted to hire

several licensed Minnesota electricians for construction work. Through an

employment agency, Town & Country advertised for job applicants. It refused to

interview 10 of 11 union applicants who responded to the advertisement. Its

employment agency hired the one union applicant whom Town & Country

interviewed, but he was dismissed after only a few days on the job. The members

of the Union filed a complaint with the National Labor Relations Board claiming

that Town & Country and the employment agency had refused to interview or

retain them because of their union membership. An administrative law judge

ruled in favor of the Union members, and the Board affirmed that ruling.

Issue: Can a worker be a company’s “employee,” within the terms of the

National Labor Relations Act if, at the same time, a union pays that worker to

help the union organize the company?