Legal Framework 1

Legal Framework

Legal Framework 2

Historical Overview• 1806 - 1842: Conspiracy Doctrine• 1842 - 1932: Decline of Conspiracy Doctrine -

Legal Focus on Union Tactics– Through 1870’s: Damage Suits– 1880’s - early 1930s: Injunction

• 1932 - 47\55: Legal Environment Favorable to Unions and CB

• 1947\55 - Present: Legal Environment Neutral to Pro-Employer

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Basic Legal Framework• National Law in U.S. for Private Sector

– Mixed Federal\Provincial in Canada

• Employee Choice• Some Exclusions

– Some Employers• Railway Labor Act

– Some Employees

• Broad Definition of “Labor Organization”

• Representation by “Bargaining Unit”– Majority Rule– Exclusive Representation

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Labor Law

• Private Sector– National Labor Laws

• Public Sector– State Labor Laws

• Different in Canada– Provincial labor laws govern labor relations

except for certain industries

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Private Sector

• National Labor Laws in United States– National Labor Relations Act

• In general, covers most of private sector except railroads and airlines

– Will discuss coverage of law later

– Railway Labor Act• Covers railroad and airline industry

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Basic Principles of Private Sector Labor Law in United States

• Creates Basic Structure of U.S. Industrial Relations System

• Basic Principles – Decentralization– Employee Choice– Majority Rule– Exclusive Representation– Parties determine terms and conditions of employment

• Industrial conflict part of system of NLRA System• Lengthy dispute resolution procedures under RLA

– Written, Legally Enforceable Contracts

• Similar principles govern Canadian labor law

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Decentralized System

• System is organized by bargaining units – may be – Firm– Plant/Facility– Craft– Department– Multi-Firm

• if all parties agree

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Employee Choice

• Employee Choice– Employees in a unit choose whether they wish

a union (labor organization) to represent them– Which union will represent?– No “enterprise unions”– No union registration with government– No presumption that employees should be

represented by a union

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Majority Rule

• Choice of union or or no union is by a majority of employees in unit

• If majority select representation, employees in unit are represented by a union

• If majority do not select representation, employees in unit are not represented by a union

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Exclusive Representation

• If a union is chosen by a majority of employees, it represents all employees in the unit, whether they voted for union or not

• Employer must negotiate with that union

• No other union may represent those employees

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Parties Determine Terms and Conditions of Employment

• Parties create contracts

• No government involvement

• Use of economic weapons– Strikes– Striker replacements generally permitted

(“scabs”)– lockouts

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Collective Agreements

• Almost always written

• Legally enforceable in court

• Usually enforced by final and binding arbitration

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Basic Legal Institutions • Administration by an administrative agency

– National Labor Relations Board (NLRB) in U.S.– Comparable bodies in Canada

• NLRB Structure– Five members appointed by President with advice and

consent of U.S. Senate– Serve five-year terms, with a new vacancy occurring each

year– Results in

• An agency that changes composition, and to some extent, views of labor issues, with changes in political views of the country

• An agency that can reverse itself on issues

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Legalism in U.S.

• System creates potential for legalism

• If one party wishes to use law, other party forced to it.

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Labor Law Statutes Amended Infrequently

• Enacted – 1935• Amendments

– 1947– 1958– 1974

• Result – NLRB and judges are primary decision-makers with respect to employer and employee rights

Legal Framework 16

Implications of Legal Doctrine• Union Organizing

– Evolution• Employer noninvolvement, 1935-41

• Employer involvement but required to permit union on premises to present views, 1941-53

• Union exclusion– From presenting views, 1953

– From coming on premises (generally)

• 1956

• 1992

– Development of employer union resistance tools by mid-1950’s

Legal Framework 17

Implications of Legal Doctrine (cont.)

• Bargaining– Board not involved in determining terms and conditions of

employment– Mandatory and nonmandatory subjects

• Corporate restructuring

– Defaults to an adversarial system• System does not encourage cooperation

– Bargaining power• Implementation at impasse• Strikers and replacements• Flexibility in paying strike replacements

– No subsystem to prevent employer pyramiding legal rights to deunionize

Legal Framework 18

Implications of Legal Doctrine (cont.)

• Remedies– Little disincentive

• Delay

• Minimal government involvement– Favors economically stronger party

Election Results and Employment in Bargaining Units, NLRB RC Elections, Fiscal 1992 - 2008

Fiscal YearTotal RC Elections

Total RC Elections Won

by Unions

Percent RC Elections Won

by Union

Elections in which no Rep.

Chosen

Total Employees in

All RC Elections

Employees In Elections Won

by Unions

Employees In Elections in Which

no Rep. Chosen

Pct of all Employees in Elections in

Elections Won By Unions

Diff. Pct Elections Won by Unions and

Pct Ees in Units Unions Won

1992 2927 1476 50.4% 1451 183865 66984 116881 36.4% 14.0%

1993 2991 1524 51.0% 1467 203674 85002 118672 41.7% 9.3%

1994 3020 1481 49.0% 1539 186339 73643 112696 39.5% 9.5%

1995 2860 1456 50.9% 1404 191825 76363 115462 39.8% 11.1%

1996 2738 1302 47.6% 1436 191929 69881 122048 36.4% 11.2%

1997 3029 1533 50.6% 1496 215562 92008 123554 42.7% 7.9%

1998 3289 1696 51.6% 1593 227390 90248 137142 39.7% 11.9%

1999 3120 1659 53.2% 1461 221210 102708 118502 46.4% 6.8%

2000 2957 1538 52.0% 1419 234111 106459 127652 45.5% 6.5%

2001 2672 1459 54.6% 1213 205722 79611 126111 38.7% 15.9%

2002 2580 1458 56.5% 1122 173912 78713 95181 45.3% 11.2%

2003 2457 1406 57.2% 1051 165462 74828 90634 45.2% 12.0%

2004 2262 1289 57.0% 973 161073 79132 81941 49.1% 7.9%

2005 2215 1354 61.1% 861 148831 69537 79294 46.7% 14.4%

2006 1583 1045 53.2% 919 126364 59905 66569 47.4% 5.8%

2007 1382 799 57.8% 583 83847 42198 41649 50.3% 7.5%

2008 1610 1024 63.6% 586 111013 68004 43009 61.3% 2.3%

SOURCE: National Labor Relations Board Annual Reports, Fiscal Years, 1992-2008, Table 13

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NLRB RC REPRESENTATION ELECTIONS AND UNION REPRESENTATION,

UNITED STATES, 1992-2008

YearPct Pvt. Sector Nonag

Ees RepresentedTotal Employees in All

RC Elections

Workers in All RC Elections as Percentage

of All Pvt. Nonag Workers, Pctg.

Representation Rate if Unions Won 100% of

Elections

Difference, Hypothetical - Actual Pvt. Sector Nonag

Rep. Rate

2008 8.5% 111013 0.104% 8.6% 0.001

2007 8.2% 83847 0.078% 8.3% 0.001

2006 8.1% 126364 0.118% 8.2% 0.001

2005 8.6% 148831 0.142% 8.7% 0.001

2004 8.7% 161073 0.157% 8.9% 0.002

2003 9.1% 165462 0.163% 9.3% 0.002

2002 9.4% 173912 0.173% 9.6% 0.002

2001 9.9% 205722 0.203% 10.1% 0.002

2000 9.9% 234111 0.234% 10.2% 0.002

1999 10.3% 221210 0.225% 10.6% 0.002

1998 10.4% 227390 0.235% 10.7% 0.002

1997 10.8% 215562 0.228% 11.0% 0.002

1996 11.2% 191929 0.208% 11.4% 0.002

1995 11.4% 191825 0.213% 11.7% 0.002

1994 12.0% 186339 0.211% 12.2% 0.002

1993 12.3% 203674 0.240% 12.5% 0.002

1992 12.7% 183865 0.219% 12.9% 0.002

SOURCES: National Labor Relations Board, U.S. Bureau of Labor Statistics

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Organizing in Perspective

• Mean number of employees in all units selecting representation, 1992-2008 =77,366– Seating capacity, Michigan State University (MSU) Spartan

Stadium = 75,005– Average attendance at MSU football games, 1957-2007 =

70,540 • A very small number of employees are involved in

representation elections– If the union win rate were 100%, would make little

difference in union representation rate

SOURCE FOR SPARTAN STADIUM DATA: http://www.msuspartans.com/facilities/spartan-stadium.html

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Bargaining• Basic Legal Doctrine

– No obligation to agree– Implementation at impasse– Industrial Conflict

• Strikes– Permanent Replacements– Assertion of “good faith doubt”

• Lockouts– Temporary Replacements

• First Contract– 62% of certifications did not obtain a first contract within

1 year of certification (Ferguson, 2008)– Probability of first contract reduced by

• Delay (Objections)• UFLP charge after cert.

Organizing in Perspective

• Mean number of employees in all units selecting representation, 1992-2008 =77,366– Seating capacity, Michigan State University (MSU) Spartan

Stadium = 75,005– Average attendance at MSU football games, 1957-2007 =

70,540 • A very small number of employees are involved in

representation elections– If the union win rate were 100%, would make little

difference in union representation rate

SOURCE FOR SPARTAN STADIUM DATA: http://www.msuspartans.com/facilities/spartan-stadium.html

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Bargaining• Basic Legal Doctrine

– No obligation to agree– Implementation at impasse– Industrial Conflict

• Strikes– Permanent Replacements– Assertion of “good faith doubt”

• Lockouts– Temporary Replacements

• First Contract– 62% of certifications did not obtain a first contract within

1 year of certification (Ferguson, 2008)– Probability of first contract reduced by

• Delay (Objections)• UFLP charge after cert.

Legal Framework 25

Other Legal Issues

• Individual Rights– EEO– ADA– Age Discrim.– FMLA

• Workplace-Based– OSHA– WARN