978-0134004006 Chapter 32 Lecture Note

251

“Strong responsible unions are essential to industrial fair play. Without them the

labor bargain is wholly one-sided.” Louis D. Brandeis

I. Teacher to Teacher Dialogue

Depending on where your school is located, student sentiment is usually decidedly pro-union

or anti-union. It is unfortunate that so many are so greatly polarized on this issue, because

perfect, but failure to give all workers basic dignity and rights is not myopic, it is self-defeating.

A dysfunctional employer-employee relationship is simply bad news for all concerned. As an

instructor, you should stress the roles that the union played in bringing about the passage of

important social and economic laws, pointing out situations in which they still serve a very useful

This chapter is designed to introduce the student to our nation’s sometimes-controversial

history with regard to the development of public policies towards organized labor. Organized

labor has suffered from a long and steady decline in membership, power, and influence over the

past forty years. Much of this slide has been of its own doing, traceable to poor union

legislation, ranging from the minimum wage, to child labor laws, to workplace and

antidiscrimination statutes are traceable not to the largesse of employers but rather to hard-fought

collective bargaining agreements. It is no accident that union representation is low in areas of the

LABOR LAW

32

Chapter 32

252

concessions to both the technological and economic realities of trying to compete in a global

economy. Management, in turn, cannot forever continue to erode our economic consumer base at

home by running overseas at every opportunity for lower wages and less restrictive hospitalities

for doing business. Unions cannot hope to use the threat of strikes to force higher and higher

season.

Our industrial base was built on a working partnership between management and labor. Like

any marriage this partnership was not always easy to live with. But it did thrive on a mutual

respect for the other’s role in the larger scheme of things. Unfortunately, over the last few

ever.

I like to give each student an index card with the name of one of the less famous early unions,

their organizers, or one of the more violent incidents and ask that they write a short paper on the

II. Chapter Objectives

1. Describe how a union is organized.

2. Explain the consequences of an employer’s illegal interference with a union election.

III. Key Question Checklist

 What are the main labor law statutes in effect today?

 How is a union formed?

Labor Law

253

IV. Text Materials

Introduction to Labor Law and Collective Bargaining

Prior to the Industrial Revolution, employees and employers had somewhat equal bargaining

power. Beginning in the 1930s, federal legislation was enacted that gave employees the right to

Labor Law

Today, about 10 percent of American workers in both the private and public sectors are

represented by unions. One of the largest international unions is the AFL-CIO, formed from the

Prior to the Great Depression, labor laws were typically pro-management, but later swung

towards the union before settling somewhere near middle, like a pendulum. For example, the

Sherman Antitrust laws were used to break up fledgling unions in early years. A number of

statutes have been enacted giving workers protection and the right to collectively bargain. These

laws included the Norris-LaGuardia Act (1932), which made it legal for workers to organize, and

the National Labor Relations Act of 1935, which established the right of workers to organize and

bargain collectively. Power again swung when Congress enacted the Taft–Hartley Act (Labor-

National Labor Relations Board – This administrative body oversees union elections and

Organizing a Union

The NLRA gives employees the right to join together as an appropriate bargaining unit and form

Types of Union Elections – If 30 percent of the employees comprising a bargaining unit are

interested in joining a union, the union can petition the NLRB to set an election date. An election

contested by the employer must be supervised by the NLRB. A simple majority vote at the

Chapter 32

254

Case 32.1 Organizing a Labor Union: Lechmere, Inc. v. National Labor Relations Board

502 U.S. 527, 112 S.Ct. 841, 1992 U.S. Lexis 555, Supreme Court of the United States

Facts: The National Labor Relations Act (NLRA) guarantees employees “the right to self–

organization, to form, join, or assist labor organizations,” and makes it an unfair labor practice for

the organizers access to the lot, they distributed handbills and picketed from the grassy strip. In

addition, they were able to contact directly some 20 percent of the employees. The union filed an

unfair labor practice charge with respondent National Labor Relations Board (Board), alleging

that Lechmere had violated the NLRA by barring the organizers from its property. An

enforced the Board’s order.

Issue: May a store owner prohibit nonemployee union organizers from distributing leaflets in a

shopping mall parking lot owned by the store?

Decision: Lechmere did not commit an unfair labor practice.

organizers onto his property.

At least as applied to nonemployee union organizers, Jean Country is inconsistent with past

interpretation of Sec.7. Sec.7 simply does not protect nonemployee union organizers except in the

rare case where “the inaccessibility of employees makes ineffective the reasonable attempts by

The facts in this case do not justify application of the inaccessibility exception. Because

Lechmere’s employees do not reside on its property, they are presumptively not “beyond the

reach” of the union’s message. Nor does the fact that they live in a large metropolitan area render

them “inaccessible.” Because the union failed to establish the existence of any “unique obstacles”

Labor Law

255

imply tacit approval from the company.

Case 32.2 Unfair Labor Practice: NLRB v. Starbucks Corporation

679 F.3d 70, 2012 U.S. App. Lexis 9537 (2012), United States Court of Appeals for the Second

Circuit

Facts: The IWW engaged in a campaign to organize four Starbucks in Manhattan. Certain

Collective Bargaining

Collective bargaining occurs when employees elect a group to negotiate labor contracts on their

behalf. Wages, hours, and employee benefits like health plans, retirement plans, and fringe

subjects.

Union Security Agreements – The two types of security agreements are the closed shop, which

requires an employee to join a union within a certain time period from their hire date, and an

Contemporary Environment: State Right-to-Work Laws

This statute represents a litmus test of a state’s loyalty to or opposition to unionization within its

borders. These types of laws, along with tax breaks and loose incorporation requirements, have

sometimes been called “the competition of laxity” by commentators. That is to say, there is a

Critical Legal Thinking – Right to work laws limit closed shops and a requirement that a worker

Strikes

Cooling-Off Period – Unions must give a 60-day notice of their intent to strike.

Illegal Strikes – Illegal strikes include violent strikes, sit-down strikes because the strikers

Chapter 32

256

No-Strike Clause – It is illegal to strike if the union contract includes a negotiated no-strike

clause.

Crossover and Replacement Workers – Union members that choose not to strike or return to

dismissed if the strike is settled.

Employer Lockout – When an employer reasonably anticipates a strike, he may prevent those

employees from entering the premises.

Picketing

employer’s place of business.

Secondary Boycott Picketing – Secondary boycott picketing is legal only if the picketing is

against the struck employer’s product, and not against a neutral employer.

Critical Legal Thinking Case: Labor Union Picketing

direct target for the union. This seems like an example of unlawful secondary boycotting.

Internal Union Affairs

Ethics: WARN Act Requires Employer’s to Notify Employees of Impending Plant Closures and

Layoffs

In 1988, Congress passed the Worker Adjustment and Retraining Notification Act which covers

employers of 100 or more employees, requires employers to notify workers or their union 60 days

the same.

Labor Law

257

V. Key Terms and Concepts

1886, under the leadership of Samuel Gompers.

 Appropriate bargaining unit—The group that a union seeks to represent.

 Collective bargaining—The act of negotiating contract terms between an employer and the

members of a union.

procedure.

 Compulsory subject of collective bargaining—Wages, hours, and other terms and conditions

of employment.

 Congress of Industrial Organizations—The CIO permitted semiskilled and unskilled workers

to become members.

held without NLRB supervision.

 Contested election—An election for a union that an employer’s management contests.

 Cooling-off period—Requires a union to give an employer at least 60 days’ notice before a

strike can commence.

 Crossover worker—A person who does not honor a strike who either (1) chooses not to strike

decertification election will be held.

 Dues checkoff—Upon proper notification by the union, union and agency shop employers are

required to deduct union dues and agency fees from employees’ wages and forward these

dues to the union. This is called dues checkoff.

 Employer lockout—Act of the employer to prevent employees from entering the work

union solicitation on company property if the employees are beyond reach of reasonable

union efforts to communicate with them.

 Internal union rules—A union may adopt internal union rules to regulate the operation of the

union, acquire and maintain union membership, and the like.

Chapter 32

258

employees during any thirty-day period.

 National Labor Relations Act—A federal statute enacted in 1935 that establishes the right of

employees to form and join labor organizations.

 National Labor Relations Board (NLRB)—A federal administrative agency that oversees

union elections, prevents employers and unions from engaging in illegal and unfair labor

for employees to organize.

 No-strike clause—A clause in a collective bargaining agreement whereby a union agrees it

will not strike during an agreed-upon period of time.

permissive subjects of collective bargaining.

 Picketing—The action of strikers walking in front of the employer’s premises carrying signs

announcing their strike.

 Plant closing—A plant closing is a permanent or temporary shutdown of a single site that

results in a loss of employment for fifty or more employees during any thirty-day period.

 Right-to-work laws—Right–to-work laws are often enacted by states to attract new businesses

to a nonunion and low-wage environment.

union.

 Section 8 (a) of the NLRA—A law that makes it an unfair labor practice for an employer to

interfere with, coerce, or restrain employees from exercising their statutory right to form and

join unions.

 Title 1 of the Landrum-Griffin Act—Referred to as labor’s “bill of rights” that gives each

union member equal rights and privileges to nominate candidates for union office, vote in

elections, and participate in membership meetings.

to form and join unions.

 Union security agreement—To obtain the greatest power possible, elected unions sometimes

try to install a union security agreement.

Labor Law

259

of days after being hired.

 Violent strike—In violent strikes, striking employees cause substantial damage to property of

the employer or a third party.

 Wildcat strike—In wildcat strikes, individual union members go on strike without proper

authorization from the union.