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3. The Basic Labor Laws

Started by Staughton Lynd, December 08, 2007, 04:55:48 pm

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Staughton Lynd

3.  The Basic Labor Laws

   The basic labor laws will be found in the volumes of the United States Code.  The Code is cited in the same way that cases are cited:  29 USC 101, the citation for the Norris-LaGuardia Act, means, Title 29 of the United States Code at Section 101.

The Norris-LaGuardia Act (1932)

   The fundamental purpose of the Norris-LaGuardia Act was to put a stop to anti-labor injunctions.  In the early 1900s, when workers tried to organize the law was wholly on the side of the employer.  Courts routinely issued court orders, called "injunctions," forbidding workers to strike and picket.  The injunctions were usually issued on the basis of affidavits provided by the employer, without even giving the worker a chance to be heard.  If the workers disobeyed they were fined and jailed for contempt of court, without jury trials or other forms of traditional due process.

   The key sections of the Act are Sections 2, 4, and 7 (29 USC  102, 104, 107).  Section 2 is a declaration of public policy.  It declares that under modern economic conditions, "the individual unorganized worker is commonly helpless to exercise actual liberty . . . ."  To be genuinely free, the individual worker must be able to organize collectively.

   Accordingly, Section 4 of the Act lists a series of actions which Federal courts are flatly forbidden to enjoin (to "enjoin" something is to issue an injunction against it).  No Federal court may enjoin any person or persons involved in a labor dispute "from doing, whether singly or in concert ["in concert" means, together or collectively], any of the following acts":

   1.  Striking;

   2.  Becoming or remaining a member of a labor organization;

   3.  Paying strike or unemployment benefits;

   4.  Assisting a person involved in a labor dispute in a court case;

   5.  "Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence" -- in other words, picketing;

   6.  Peaceably assembling.

Section 7 of the Wagner Act, enacted three years later, protects these same kinds of "concerted activity."

   Section 7 of the Norris-LaGuardia Act sets forth certain procedures which Federal courts must follow whenever they issue an injunction in a labor dispute.  Essentially, Section 7 requires a court to hold a hearing and give each side a chance to present evidence before issuing an injunction.

   Unfortunately, the courts have misinterpreted the plain language of the Norris-LaGuardia Act to permit Federal courts to issue injunctions against strikes if the collective bargaining agreement contains a no-strike or binding arbitration clause.  More about this later.

The National Labor Relations Act (1935)

   Another name for the National Labor Relations Act, or NLRA, is the Wagner Act.  In the United States Code, the Act begins at 29 USC  141.
   The NLRA is the statute which, more than any other, regulates labor relations in the private sector.  The NLRA created the National Labor Relations Board, which administers the Act.

   The philosophy of the Norris-LaGuardia Act was that if the courts could be kept from interfering, labor could fight its own battles.  A few years' experience led many people to question this assumption.  In 1933 and 1934, thousands of workers struck for union recognition, but often the result was bloody defeat.  The drafters of the NLRA believed that labor would never be able to deal with capital as an equal without help from the government.  The philosophy of the Act is that government must help workers to organize into unions, after which labor will be strong enough to bargain collectively.  (However, some organizations like the American Civil Liberties Union opposed the NLRA when it was first proposed in the belief that it would give the government too much power over labor.)

   The heart of the NLRA, and the cornerstone of modern American labor law, is Section 7 (29 USC  157).  It states:

          157.  Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .

What this has come to mean in practice will be discussed in Chapter 4.

   Section 8 lists a number of ways in which employers are prohibited from interfering with the exercise of Section 7 rights.  The most important sub-sections are:

   Section 8(a)(3).  It shall be an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment or any term or condition of employment for the purpose of discouraging membership in a labor organization.

   Section 8(a)(5).  It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees.

   Any person who believes Section 7 rights have been violated can file a charge with the NLRB within six months of the violation.  Discharges, and similar problems affecting individuals, are usually filed under Section 8(a)(3).  Problems connected with refusal to bargain, and unfair bargaining, are usually filed under Section 8(a)(5).

   Section 9 creates a procedure whereby workers can select a bargaining representative.  Because of Section 9, NLRB elections have largely replaced strikes for union recognition.

The Fair Labor Standards Act (1938)

   This law, also known as the Wages and Hours Act, made labor's long struggle for an eight-hour day, and for the abolition of child labor, the law of the land.  The text will be found at 29 USC  201.

   The Act prohibits the employment of children under the age of 16; requires employers to pay a minimum wage, which is readjusted from time to time; and obliges employers to pay overtime at one and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.  The Act covers private and public employers that engage in interstate commerce, but there are many exemptions (among them farm labor and domestic service).

   The Act is administered by the Department of Labor.  Either the Department of Labor, or individual employees, can enforce the Act.  An employee may bring suit to enforce the Act in either state or Federal court.  An employee may sue on behalf of others as well as on his or her own behalf, but each person on whose behalf suit is brought must file a written consent with the court.  An employee who is successful in court receives any back wages due under either the minimum wage or overtime provisions of the law; plus an additional amount of wages as a penalty; plus a reasonable attorney's fee.

   Suits under the FLSA must be brought within two years of the employer's violation.  If a group of employees join together in pursuing a back pay claim under the Act, their action may be considered concerted activity protected by Section 7 of the NLRA.  127 Rest Corp., 331 NLRB 269, 170 LRRM 2447 (2000) (employees joining to file civil action against employer regarding payment of wages were engaged in concerted activity).  Similary, an employer was found to have violated  8(a)(1) by terminating employees who acted collectively in filing for unemployment benefits.  Tri-County Transp., Inc., 331 NLRB 1153, 171 LRRM 1031 (2000).

The Taft-Hartley Act (1947)

   From the day the NLRA was passed, employers tried to amend it.  These efforts were finally successful in the generally reactionary climate that prevailed after World War II.  The Taft-Hartley Act is not a separate statute, but a series of amendments to the NLRA.

   Three provisions have been especially burdensome to workers' self-organization.

   Section 14(b) gives state legislatures the authority to outlaw the "union shop," that is, the provision in many collective bargaining agreements that any new employee at a workplace where there is an existing union must join that union within a certain period of time.  Many state legislatures in the South and West have exercised this authority.

   Section 8(b)(4) outlaws "secondary" strikes and boycotts.  Just as Section 8(a) of the original Wagner Act forbade various unfair labor practices by employers, so the Taft-Hartley Act added a new Section 8(b) which lists unfair labor practices by unions.  When the workers of a "primary" employer go on strike, this provision is intended to prevent them from soliciting support from the employees of other companies.

   Section 8(b)(4) is written in particularly foggy language.    We will discuss in more than one chapter below various kinds of solidarity with striking workers of another employer that are still permitted.

   Finally, Section 301 of the Taft-Hartley Act, 29 USC  185, gives an employer the right to sue a union in court for violation of its contract.  There was nothing inevitable about this amendment.  In England contracts were not legally enforcible until the passage of the Industrial Relations Act of 1971, and when unions refused to cooperate with the law it was repealed in 1974.  In the United States, however, thanks to Section 301 it has now become routine that when a union strikes in violation of the no-strike clause in its contract, the employer will rush into court and:

   1.  Obtain an injunction, notwithstanding Section 4 of the Norris-LaGuardia Act, requiring the union to stop striking and to arbitrate its grievances;

   2.  Sue the union for alleged damages caused by the strike.

   One feature of the Taft-Hartley Act protects rank-and-file groups that organize in opposition to an established union.  Section 8(b)(2) of the Act prohibits a union from causing a union member to be discharged from employment so long as the employee does not fail to pay union dues.

The Labor Management Reporting and Disclosure Act (1959)

   This law, also known as the LMRDA or Landrum-Griffin Act, will be found at 29 USC  402.

   The LMRDA concerns itself with the internal government of unions.  It was enacted at a time when Senator McClellan and other politicians were making a much-publicized investigation into union corruption and racketeering.  The American Civil Liberties Union for years had pushed for Congressional protection of the rights of individual union membersa.  And after Section 301 of the Taft-Hartley Act made collective bargaining agreements enforceable in court, it became critical for rank and filers to control the contents of their contracts.

   The important parts of the LMRDA are Titles I, IV, and V.

   Title I contains the so-called workers's Bill of Rights.  These rights include:

   Every member of a labor organization is guaranteed an equal right with every other member to nominate candidates, to vote in union elections anmd referenda, to attend membership meetings, and to take part in discussion and voting upon the business of such meetings "subject to reasonable rules and regulations in such organization's constitution and bylaws."  Section 101(a)(1).  A Federal court has held that unless a union constitution provides for ratification of collective bargaining agreements, members do not have the right to ratify their contracts.

   Every member of a labor organization has the right to meet and assemble freely with other members, and to express any views, arguments, or opinions.  (Section 101(a)(2).

   Certain procedures ae required before dues may be increased.
Section 101(a)(3).

   No labor organization may discipline a member for bringing suit against the union or its officers, provided the member first exhausts internal union appeal procedures, and provided also that no employer finances or otherwise backs the suit.  Section 101(a)(4).

   Finally, no member of a labor organization may be disciplined (except for nonpayment of union dues) without notice of specific charges, a reasonable time to prepare a defense,, and a hearing.  Section 101(a)(5).

   Any union member whose Title I rights have been violated may bring a civil rights action in Federal district court.  As with all other provisions of labor law, what the Act provides on paper and actual results may differ.

   Title IV regulates elections.  Before elections, insurgent candidates have the right to inspect a union membership list and, under court decisions during the Miners for Democracy campaign, a right to equal exposure in the union newspaper.  After an election, a candidate alleging improper election practices by a victorious opponent must first exhaust internal union appeal procedures for four months, and then may appeal to the Department of Labor.  The Department of Labor can bring suit to set aside the contested election if it concludes that improper practices affected the outcome.  But the defeated candidate cannot bring suit himself or herself.

   Title V requires union officers to conduct themselves toward their members as trustees, that is, to avoid self-interested transactions and to report fully to the membership.  This provision was intended especially to prevent financial misconduct but courts have also held union officers to be trustees in their other activities as officers.

The Civil Rights Act (1964) and Other Laws Against Discrimination

   Civil rights are protected by a series of statutes, some passed after the Civil War and others enacted in the 1960s and 1970s.  They are collected in Title 42 of the United States Code.  42 USC  2000(e), or Title VII of the Civil Rights Act of 1964, is the most important.

   According to Title VII, it is an unlawful practice for an employer

      to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .

   A charge must be filed with the Equal Employment Opportunity Commission (EEOC) within six months of a Title VII violation.  (Note that this so-called statute of limitations is the same as for claimed violations of the NLRA.)  There is an exception to the six month limitation when the violation is "continuing," that is, when it is not a one-time event like a discharge but a recurring pattern like a seniority system.  However, in Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), the Supreme Court held that a woman who alleged continuing underpayment when compared with her male colleagues should have filed an EEOC charge within six months of the first act of discrimination.

   You cannot go to court under Title VII until you first file a charge with the EEOC or with a state civil rights agency.  After the charge is filed, the EEOC has another six months within which to act.  Because of its enormous backlog of cases it usually does nothing.  At the end of this second six-month period the EEOC must issue a "right to sue" letter to a charging party who requests it, after which the injured person has another 90 days to bring suit in Federal court.  A plaintiff who is successful in court may be awarded reinstatement and/or back wages, plus a reasonable attorney's fee.

   An important thing to remember about Title VII is that you do not have to file a grievance before you go to court, and if you do file a grievance and lose in arbitration, you can still go to court.  The reason for these provisions is that Congress considers the right not to be discriminated against as more important than other rights.  (How to prove a Title VII case is discussed in Chapter 4 under the caption "The Right to Equal Treatment.")

   There are other important labor laws, such as the Occupational Safety and Health Act (OSHA), 29 USC  651, and the Employment Retirement Income Security Act (ERISA), 29 USC  10001.
   However, if you develop a working familiarity with the six laws sketched above -- Norris-LaGuardia; NLRA; Fair Labor Standards; Taft-Hartley; LMRDA; and Title VII -- you will have the basic knowledge you need.  They are like the basic contract.  Other laws are like supplements, or memoranda of agreement, which add something to the contract but do not essentially change it.