Chapter
3
The Legal Regulation of
Unions and Collective
Bargaining
McGrawHill/Irwin
An Introduction to Collective Bargaining & Industrial Relations, 4e
Copyright © 2008 The McGrawHill Companies, Inc. All rights reserved.
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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
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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
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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
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Legislation Granting Rights to Collective
Bargaining
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• Legal and public policy opposition to the formation of
unions began to erode in the early 20th century
LloydLaFollette 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
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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
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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
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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, selforganization, and representatives to
negotiate contractual terms
Also known as the “Federal AntiInjunction Act” as it
imposed restraints (but state courts continued to issue
injunctions)
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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 19331935, union members grew from 2.9 to
3.9 million
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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 TaftHartley (1947) and Landrum
Griffin (1959)
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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
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Administration of the NLRA
• A fivemember 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
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The TaftHartley Act
• After WWII, labor unions had grown in strength and a
strike wave stimulated hostility toward unions
• Congress passed the TaftHartley 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
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The LandrumGriffin Act
• Known also as the LaborManagement 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
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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
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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
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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, nonunion employees may have no recourse if
discharged
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The Scope of the Doctrine
• State courts have decided for the employmentatwill
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
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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
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Employment Standards Law
• Society has regulated certain employment conditions
more directly than it does collective bargaining
In the U.S., such regulations include workers
compensation, social security, fair labor standards,
safety, pensions, and other issues
Compared to other countries, the U.S. has
relatively little direct regulation of employment
conditions
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Employment Discrimination Law
• The key statute is Title VII of the Civil Rights Act
It prohibits discrimination in employment on the grounds of
"race, color, religion, sex, or national origin"
• Two types of employment discrimination prohibited by Title
VII
Disparate Treatment
Disparate Impact
• Age Discrimination in Employment Act (ADEA)
Prohibits discrimination against workers over the age of 40
• Pregnancy Discrimination Act
Amended Title VII to define pregnancy discrimination as sex
discrimination
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Filing Employment Discrimination
Complaints
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• To begin a federal complaint, the employee must file
a complaint with the EEOC
The EEOC will investigate and, if merited, seed a
resolution
EEOC will then issue a "right to sue" letter, indicating
that the required administrative process has been
completed
• In a small number of important cases, the EEOC will
file suit in court against the employer on behalf of the
employee
This occurs in 12 percent of all cases
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Growth of Employment Litigation
• Employment litigation has increased in recent years
Sometimes resulting in large and unpredictable
damage awards
Litigation increased since the 1960s with the passage
of employment discrimination and employment
standards statues
Federal court lawsuits rose from 8,937 cases in 1987
to 22,553 cases in 2000.
From 1994 – 2000, the median (typical) award was
$110,000 and the mean (average) was $301,000.
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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
• Policy goals of courts are to:
Ensure practices do not discriminate
Avoid perpetuating past discrimination
Protect the interests of nonminorities who are
not responsible for past discrimination
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