Labor Management Disputes under the NLRA

1. Labor Management Disputes under the NLRA Professors Mason and Pynchon Spring ’07 Selected Issues in ADR: Employment

2. Some Historical Highlights of the Labor Movement • 1825 – 1st strike for the 10-hour work-day in Boston. • 1835 Children strike for 11 hour day/6 day wk • 1877 general strike halts U.S. rail travel • 1882 30,000march in 1st Labor Day parade in NYC • 1890 NYC garment workers win right to unionize • 1905 Supreme Court strikes max hours law • 1914 Ford raises $2.40/ 9-hr day to $5/8-hr day. • 1915 Supreme Court upholds contracts forbidding membership in labor unions. • 1917 Supreme Court approves the Eight-Hour Act under the threat of a national railway strike. • 1918 Federal child labor law declared unconstitutional. • 1930 100 farm workers arrested for their unionizing activities in Imperial Valley; 8 convicted of `criminal syndicalism.' • 1935 Nat’l Labor Relations Act Enacted • 1938 Wages and Hours Act passed, banning child labor and setting the 40-hour work week. Upheld in 1941. • 1939 Supreme Court rules sit-down strikes are illegal. • 1941 Henry Ford recognizes the UAW. • 1947 Taft-Hartley Labor Act, Curbing strikes, vetoed by Truman, overridden by Congress Strike breakers

3. The National Labor Relations Act gives private sector workers the right to choose whether they wish to be represented by a union & establishes the National Labor Relations Board to hold elections for that purpose. • NLRA illegal for employers to • discriminate against workers because of union membership • retaliate against union members for engaging in organizing campaigns or other "concerted activities", • form "company unions", or • refuse to engage in collective bargaining with the union that represents Ees. Miners Strike 1926

4. NLRA premised on assumption that best way to protect American employees was to give them sufficient bargaining power to permit meaningful negotiation over the terms and conditions of employment. • NLRA’s goal = give employees the legal protection they needed to organize, so that they could bargain collectively for those workplace rights and benefits they valued most.

5. Taft Hartley Act ‘47 • loosened restrictions on employers, • changed NLRB election procedures, and • added new limitations on unions. • prohibits jurisdictional strikes and secondary boycotts • authorizes individual states to pass "right to work laws", • regulates pension and other benefit plans established by unions and • provides that federal courts have jurisdiction to enforce collective bargaining agreements.

6. Collective Bargaining Agreements • Results from negotiations between unions and management re: • Hours, • Working conditions • Grievance procedures • Rights and responsibilities of trade unions • CBA negotiations • Are a method used by trade unions to improve the terms and conditions of employment of their members. • seeks to restore the unequal bargaining position between employer and employee. • Where it leads to an agreement, it modifies, rather than replaces, the individual contract of employment, because it does not create the employer-employee relationship. • The process is bipartite, but in some developing countries the State plays a role in the form of a conciliator where disagreements occur, or where collective bargaining impinges on government policy.

7. Benefits of Collective Bargaining • settlement through dialogue and consensus rather than through conflict and confrontation • Agreement represents choice or compromise of the parties • institutionalizes settlement through dialogue, i.e., CBA’s often provide dispute resolution mechanisms. • parties participate in deciding how to divide “pie,” what rules will govern such matters as transfer, promotion, lay-off’s, discipline, and production norms. • guarantee industrial peace for the duration of the agreement • social contract, i.e., a partnership between organized employer institutions and organized labor institutions • long course of successful and bona fide dealings leads to the generation of trust & contributes towards mutual understanding by establishing a continuing relationship; process creates an attitude of attacking problems together rather than each other. • in societies where there is a multiplicity of unions and shifting union loyalties, collective bargaining and consequent agreements tend to stabilize union membership. • continuing dialogue tends to improve relations at the workplace level between workers and the union on the one hand and the employer on the other.

8. Common Objectives • ensure enterprise is not rendered uncompetitive • keep wage increases below the level of productivity increases and/or within the inflation rate. • industrial peace during the period of operation of the agreement • Preparation • Consult managers to determine objectives & priorities • be aware of the company's views to test vs. managers' views. • Plan • union's demands are generally an ideal setting in which management can achieve some of its objectives through agreement. • management must be clear about its own priorities. • existing collective agreement is useful starting point. • Analyze how it has worked, any unsatisfactory features & acceptable changes • Choose Negotiating Team • identify roles of the members before the negotiations. • Employers should include in the team people from different disciplines. • Research and Study • Assess the economic impact of the demands on the company. • Make a comparative study, e.g. in a wage demand one should ascertain comparative wage rates in the industry and in allied or similar businesses • Identify demands that management considers questions of principle or economic incapacity. • Identify the demands which may be of crucial importance to the union • Both sides should formulate its strategy in relation to possible trade off’s

9. Negotiation Strategy • view negotiations as a walk towards each other. • Keep in mind final objective -- satisfactory agreement. • Search for & identify common ground while also addressing the differences. • Listen, reflect, respond. • Build your case in a logical sequence and try to obtain agreement at each stage of the process. • Counter proposals and conditions attached to concessions should be indicated as early as possible, so that the basis on which a party is prepared to agree or compromise is understood. • invite other party to look at problem from the opposite perspective, e.g. a wage increase as an additional cost which requires management to find ways to absorb it. • more productive to request a party to justify its claim, than point out why that claim is unreasonable. • Skillful questioning is an effective way of compelling the other party to justify its claim on the merits, and even shifting the other party to a different point of view.

10. 87% of the American Workforce is non-union • National Labor Relations Act (NLRA) [4], Section 7, provides • Employees shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. • [4, at §157, emphasis added]. All employees—both union and nonunion—have the right to engage in concerted activities for mutual aid or protection. NLRB v. Washington Aluminum Company, Inc. (1962) 370 U.S. 9 (1962) (extending Section 7 rights to unorganized employees who walked off the job to protest the lack of adequate heat in their plant); Fairmont Hotel Company (1970)230 NLRB 874 (1977) (protecting employees’ inquiries and complaints about tip policy).

11. Weingarten Rights • Ee entitled to presence of co-worker where: (1) Ee is requested to meet individually with a member of management, (2) Ee invited to meeting is being investigated for possible wrongdoing at work, and (3) Ee reasonably believes that discipline or other formal adverse consequences may result from the meeting. • When mtg’s purpose solely to impose discipline, no right to a witness. • If meeting is to impose discipline and develops into discussion of merits of complaint, Ee may ask for presence of co-employee. No notice of Rights required

12. the presence of a representative may help defuse highly emotional confrontations. • Witness provides another set of eyes and ears regarding the nature of the accusations proffered by management. • Weingarten representative brings a detailed understanding of the grievance procedure and pertinent provisions of the labor contract

13. Has the “workplace has become a garden of litigation [to which the NLRB] is adding another cause of action to flower . . . hiding in the weeds” • nonunion employees – no effective check on Er’s ability to act arbitrarily, unjustly, or recklessly. • no effective grievance procedures that would enable the policing of the employment relationship. • employees can rely only on each other for mutual aid and protection from capricious employment practices. • when confronted with the prospect of an investigatory interview which might result in discipline, the only assistance readily available to an unrepresented employee lies in fellow employees

14. Potential Benefits of Collective Bargaining • Higher wages, • Better benefits, • job security; • dignity on the job, • Reduction in discriminatory practices, • creation of a leadership cadre in the workplace and better service for the customers.

15. Hard Not to Be Moved By the Casino Women Activists’ Story • What accounts for decline in union membership • Are there societal benefits to worker participation in management via unions • Are there other alternatives to make workers more like proprietors of their workplaces?

16. When workers lack an effective voice in political debates, important questions are not asked, assumptions are not challenged, and options are not considered that are vital to the interests of workers • decline in worker voice = decline in worker power to improve wages, hours, and working conditions that move working families into the middle class. • 1940s-1970s General Motors largest U.S. employer, setting standards for improving wages and benefits that other companies followed. • Today, Wal-Mart largest U.S. employer, downward spiral to meet lower wage and benefit standards. • Can teamwork, networking, information sharing, commitment, and good customer service be built if workforce is frustrated, tense, and distrustful. • Does a government that lets the raw swings in power dictate the amount and forms of worker voice and representation destined to pay the price in an underperforming economy. EMPLOYEE VOICE IN THE ANGLO-AMERICAN WORLD: CONTOURS & CONSEQUENCES by Thomas A. Kochan M.I.T.

17. "employer-opposition theory" = unions declined because employers have intensified attempts to avoid or eliminate unions. • "broken-NLRB" school = NLRB’s inability to protect union rights--due to weak sanctions rendered unions powerless to protect members from employer abuses. • "union-complacency" school = labor's failure to organize new members. • need for industrial stability forces arbitral system to accord superior rights to management while worker bargaining power is exercised only by disruptive strikes. • monopolizing labor & raising costs above market value, labor prices itself out of competitive markets. • industrial transition -- globalization of labor markets or shift in American economy from manufacturing to services • statutory and judicial creation of individual employment rights signaled and caused the demise of the collective bargaining model.

19. industrial unions like the United Auto Workers have for the most part been fighting for labor protections from international trade • Service Employees International Union and their labor coalition, Change to Win, have focused on organizing growing segments of the workforce, such as immigrants and temporary workers. • To the extent that there is a unified labor agenda in Washington, it includes legislation to expand paid sick leave, child care, healthcare and pension protections. • the ranks of labor are dwindling nationally. • About 12% of workers belong to a union. • That's down from 20% in ‘83 & 40% in ‘55 • faced with globalization, outsourcing and illegal immigration, unions have become ideologically divided.

20. Proposed federal legislation would certify a union as soon as a majority of workers signed cards authorizing it. • Under current law, after cards are signed an employer can call for a separate secret ballot — overseen by the National Labor Relations Board — on whether a union should be recognized. • Republicans say the bill would let employers and union officials intimidate workers during organizing campaigns because it would change the process for union elections from a secret ballot to a card check where votes were recorded. • But it's not necessary for unions to get legislation past Republicans, the Senate or the president's desk to score a victory with workers and middle-class voters, said Lichtenstein of UC Santa Barbara.