Political Climate: The National Labor Relations Board consists of five members, who serve staggered terms and who are appointed by the president of the United States. How do you think the president’s political outlook plays into who is appointed to sit on the board? How might this impact the decisions made by the board from presidential term to term? Your initial post should be at least 250 words in length. Support your claims with examples from required material and properly cite any references. 5 The Rights of Employees Under the National Labor Relations Act Bill Clark/Getty Images Learning Objectives After completing this chapter, you should be able to: • Summarize the three major rights of employees under Section 7. • Evaluate unfair labor practices of employers, including Weingarten rights and domination. • Analyze the unfair labor practices of employers and labor organizations. • Describe the major components of the National Labor Relations Board and its role in resolving unfair labor practices. 97 sea81813_05_c05_097-122.indd 97 12/10/14 3:34 PM Section 7 Rights Section 5.1 Introduction This chapter sets out in detail the rights of employees under Section 7 of the National Labor Relations Act (NLRA). There are four guarantees of that law: the right to self-organization, the right to collectively bargain, the right to strike, and the right to refrain from union activity. With those rights as a foundation, we will explore the unfair labor practices managers tend to commit in violation of Section 7 and how they can avoid these. Then we will see how the National Labor Relations Board (NLRB) addresses unfair labor practices by looking at its structure and investigative processes. The chapter concludes with an overview of alternative dispute resolution, another process that may resolve a labor dispute, if use of that process is included in the collective bargaining agreement. 5.1 Section 7 Rights Section 7 of the National Labor Relations Act gives all employees, whether union members or not, the right to organize and participate in union activity, and Section 8 states the employer’s obligations to provide those rights to employees. In this chapter we will assume that a union exists at the place of business and discuss management’s obligations regarding all employees. Section 7 grants the following to workers: • • • the right to “self-organization, to form, join, or assist labor organizations.” This right includes joining a union (whether the union is recognized by the employer or not) as well as going out on strike to secure better working conditions; the right to “bargain collectively”; and the right to refrain from activity if the employee declines participation in union activity. Each section will be discussed separately, with an emphasis on the rights of employees under the NLRA and the associated duty of the employer once a union is in place. The Right to Self-Organize and to Form, Join, or Assist Labor Organizations Section 7 begins with the pronouncement that “employees shall have the right to selforganization, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (29 U.S.C. §§ 151–16, as amended, 2012). But what are concerted activities? Basically any interaction between two or more employees to achieve a common goal is a concerted activity. The most obvious are those involving the formation of a union, but concerted activities are not limited to union formation. They may be innocuous, such as having lunch with other employees to complain about working conditions, asking coworkers for assistance in raising a sexual harassment complaint against an employer (Fresh and Easy Neighborhood Market, 2014), or writing e-mails to supervisors questioning or criticizing a new policy. Even the actions of one employee have been held to be concerted activity when that employee acts on behalf of others; for example, one worker may complain to management about a working condition that affects multiple employees (KNTV, 1995). sea81813_05_c05_097-122.indd 98 12/10/14 3:34 PM Section 7 Rights Section 5.1 Therefore, concerted activities must be clearly defined, because there are many types of employee activities that are covered by Section 7 but are not union activities and apply even if the employees are not members of a union. Thus, concerted activities can be a minefield for managers. Employers typically run afoul of this section when they punish or fire an employee for the activity. The employee then reports the action to the National Labor Relations Board, which holds a hearing to determine if the employer violated Section 7 (a procedure that will be discussed in detail in the next section). No matter the outcome, hiring an attorney to represent the business at this hearing is expensive and time consuming. Therefore, being aware of and on guard to prevent such violations can save the business valuable time and money. You Be the Judge: The Case of the Employee With the Hat Managers are sometimes surprised to learn that the National Labor Relations Act is relevant to a wide variety of seemingly unrelated situations at work. Take for example the following case. Suppose that your workplace had a dress code that included uniforms and regulation-issued headwear, such as what nurses wear. One day an employee has a bad hair day and wears a hat to cover it up, which violates the company’s uniform policy. The employee’s supervisor takes her aside and tells her that she cannot wear a hat outside of the required uniform. The employee complains that she is being singled out, because other employees are wearing pieces of clothing or have tattoos that also violate the employer’s dress policy. The employer issues the employee a letter of insubordination. The employee next brings a camera to work and starts taking pictures of all employees whom she considers in violation. The employer orders the employee to stop taking pictures. The employee complains to other employees about the employer’s unfairness, and she is ultimately fired. Discussion Questions 1. What is the significance of the employee’s ability to prove that other employees were treated differently than she was? 2. Do you see any concerted activity in this example that is protected by the NLRA? Explain. 3. If the employee complained to the National Labor Relations Board, what do you think was the result and why? (Based on NLRB v. White Oak Manor, 2011.) HOLDING: The National Labor Relations Act states that employees will be protected when they engage in conduct for the purpose of “mutual aid and protection.” This means that employees will be protected when they “seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee–employer relationship.” The issue in this case, “the employer’s dress code, is a condition of employment which employees may seek to improve and such efforts qualify as protected activity under the NLRA” (NLRB v. White Oak Manor, 2011). “Not only must the activity be protected, but it must be the product of concerted action. Concerted activity embraces the activities of employees who have joined together in order to achieve common goals” (NLRB v. White Oak Manor, 2011). As a result, the employee’s complaints about the employer’s disparate enforcement of its dress code are protected under the NLRA. The employee’s activity was protected because she sought to improve terms and conditions of employment; the action was concerted action. The employee’s attempt to document the problem by taking pictures is similarly protected conduct. sea81813_05_c05_097-122.indd 99 12/10/14 3:34 PM Section 7 Rights Section 5.1 Concerted Activity on the Internet The advent of the Internet has introduced a new dimension to the discussion about what constitutes a concerted activity. Suppose, for example, an employee rants about his company on Facebook, whether during or after work. Can his employer demand that he stop complaining about the company on websites or even fire the employee for such conduct? This was at issue in the 2014 case Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone (2014). When employees received their final tax statements for the year, they discovered that they owed taxes to the government because their employer had incorrectly calculated their withholding amounts. The employees were angry that they had to pay more in taxes. First, the employees complained directly to their supervisors. When they were not satisfied by the answers they got, they went on Facebook and posted comments that derided their superiors’ intelligence and management skills. “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” (Three D, 2014). When the supervisors read the posts, they fired the employees, who proceeded to file a complaint with the NLRB. The judge found that the Facebook discussion between four employees was concerted activity and protected because it involved workplace complaints about tax liabilities. Because there were multiple employees involved in the discussion, the activity was concerted; and because the discussion concerned work, it is protected. This is equivalent to four employees standing around the water cooler complaining about their pay. That too is concerted and work related and therefore protected. The only difference here is that the conversations took place on the Internet (Three D, 2014). Since the NLRB determined that the employer was at fault, the board ordered the sports bar owners to reinstate the employees and pay all of their back wages. Not only did this tremendously disrupt the business, but the owners also spent a lot of time and money having to defend their actions to the board. Given this outcome, employers may wonder: Can employees say whatever they want on public websites? The answer is no; there are limitations. If the language is disparaging or defamatory, or if it results in the loss of discipline in the workplace, then it is not protected by the NLRA. Although the employees from Triple Play used one expletive to describe management, this was not serious enough to undermine discipline in the workplace. If, however, the workers had put on Facebook that the “food is rotten” or that the managers were “convicted felons,” these untruths would not be protected employee activity. Businesses routinely have employee handbooks that set out the rules of conduct. At a minimum, every business should have a policy regarding work-time use of the Internet, which should state that employees should have no expectation of online privacy while at work. Employers should be especially careful, however, not to include language that prohibits what would be considered concerted activity in these handbooks. For example, stating that employees may not discuss the business or complain about their jobs on the Internet would be a violation of Section 7 (Baumgartner, 2014). sea81813_05_c05_097-122.indd 100 12/10/14 3:34 PM Section 7 Rights Section 5.1 You Be the Judge: Endicott Interconnect Technologies v. NLRB, 453 F.3d 532 (2006) Karen Lecraft Henderson, Circuit Judge This case involves a technology company, EIT, which purchased a computer circuit board manufacturing facility from IBM. EIT agreed it would continue to produce the circuit boards for IBM. After the sale of the business was complete, EIT laid off 200 employees, or approximately 10% of its overall workforce. The layoffs were big news, and the local newspaper went to the plant to interview employees— including one Mr. White, also a union member, who told the reporter, “There’s gaping holes in this business” (Endicott Interconnect Technologies v. NLRB, 2006). On the same day that White’s comments appeared in the paper, EIT’s president had a phone conversation with an IBM vice president. The IBM vice president was very concerned about Mr. White’s comments and was worried that EIT would not be able to provide the number of computer circuit boards it had promised to IBM. The president of EIT, William Maines, assured the IBM vice president that there was no reason for concern. Maines then met with White and expressed displeasure over his comments, which he claimed “disparaged the Company in violation of the company Handbook.” He “threatened to terminate White if it happened again” (Endicott Interconnect Technologies v. NLRB, 2006). White said he was “on board and it would not happen again.” Two weeks later, White posted a message on a website criticizing the company, stating that Maines lacked “good ability to manage” EIT, was causing the business to be “tanked,” and was going to “put it into the dirt.” White was fired and subsequently brought the case before the NLRB, which was then appealed to court (based on Endicott Interconnect Technologies v. NLRB, 2006). Discussion Questions 1. What is the difference between the statements made in the Triple Play case compared to this case? Do you feel that the statements in this case should be protected concerted activity? Explain. 2. Does it make any difference to the outcome of the case that the company was struggling to get a foothold in the marketplace? HOLDING: “The effect of the disloyal statements, made by an experienced insider at a time when EIT was struggling to get up and running under new management, is obvious from the immediate reaction of IBM’s vice president, who telephoned Maines concerned about EIT’s continuing ability to supply IBM’s circuit board needs. The critical nature and injurious effect of White’s comments alone gave EIT cause to immediately discharge him” (Endicott Interconnect Technologies v. NLRB, 2006). Nonetheless, Maines gave White a second chance, and White agreed not to repeat such behavior. Yet 2 weeks later he did just that when he caustically attacked EIT’s management online. “The communications here constituted ‘a sharp, public, disparaging attack upon the quality of the company’s product and its business policies’ at a ‘critical time’ for the company” (Jefferson Standard, 1953). The disloyal, disparaging, and injurious nature of White’s attacks on the company “ha[s] deprived [him] of the protection of that section, when read in the light and context of the purpose of the Act” (Endicott Interconnect Technologies v. NLRB, 2006). Therefore, it was concluded that EIT did not violate the NLRA when it discharged White. sea81813_05_c05_097-122.indd 101 12/10/14 3:34 PM Section 7 Rights Section 5.1 The Right to Strike, Boycott, and Hot Cargo Agreements Closely aligned with the right to self-organize is the right to strike. Section 7 grants employees the right “to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection,” and Section 13 provides that “nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right” (29 U.S.C. § 157, 1947). This section examines limitations to the right to strike and explains the limitations of boycotts and hot cargo agreements. These limitations include: 1. 2. 3. 4. 5. strikes must have a lawful objective and be carried out in a lawful manner, workers often waive the right to strike in the collective bargaining agreement, employers may hire replacements if their employees strike, secondary boycotts are outlawed, and hot cargo agreements are mostly outlawed. Chapter 2 described strikes such as the Great Railway Strike of 1877 and the Great Southwest Strike, which were effective in convincing management to listen to employee concerns. Strikes are much less useful today, however, for a number of reasons. One is that although the NLRA protects the right to strike, it limits how the strike may take place and mandates that it must have a lawful objective and be carried out in a lawful manner. But what exactly is a lawful objective and manner? There is no easy answer to that question, since the legality of each strike depends on its circumstances. Often, the more complicated cases end up at the NLRB for review, or in court. Acts such as bribery, violence, or blocking public buildings would be deemed unlawful, as would threatening the health or safety of others. A second limitation is that many employees waive their right to strike in the collective bargaining agreement. To waive in law means to give up one’s rights; a waiver is What does a strike look like? The following video depicts an actual strike and highlights a paper a person signs indicating that they forfeit their rights. Recall that the collective bargaining agreement some of the workers who chose to go on is a contract that is negotiated between the union and strike in a New York City McDonald’s over management that sets out the terms and conditions of the wages paid to employees. To view the employment. Such a waiver would typically appear in video, visit https://www.youtube.com this agreement, stating that the union will not go on strike in the event there is a dispute; if it does, it will /watch?v=e8fNkamFX9k be deemed in breach of the collective bargaining agreement. The courts have upheld such waivers because they are part of a negotiated agreement. The thinking behind this is that the “right to strike may be bargained away in exchange for an employer’s promise to bestow certain benefits, such as the promise of arbitration” (Ryder Truck Lines Inc. v. Teamsters Freight Local Union No. 480, 1983). Watch This A third problem with a strike, from labor’s point of view, is that employers have the right to hire replacement workers to take strikers’ place and thus not forfeit profits as a result of the strike, which effectively reduces the strike’s power. If a strike is called, the NLRA designates two different types of strikers. Depending on which classification one fits under, there may be ramifications for reinstatement after the strike is over. The first type is an unfair labor practice striker. sea81813_05_c05_097-122.indd 102 12/10/14 3:34 PM Section 7 Rights Section 5.1 These strikers consist of workers who believe their employer’s actions qualify as an unfair labor practice. In the event that these strikers make an unconditional offer to return to work, they are entitled to immediate reinstatement. This means that if the employer hired replacements while the workers were on strike, the replacements must be dismissed when the strikers return to work. The failure to reinstate these strikers constitutes a prohibited discrimination under the NLRA (Citizens Publishing and Printing Co. v. NLRB, 2001). The second type of striker is an economic striker. These workers go on strike because their employer has not met their bargaining demands. In contrast to unfair labor practice strikers, economic strikers are entitled to be reinstated in their former positions only if no permanent replacements have been hired to replace them and their positions remain open. If the employer has hired replacements, then the strikers essentially lose their jobs (General Inds. Employees Union, Local 42 v. NLRB, 1991). In addition to the diminished impact of strikes, tighter regulations regarding boycotts—or when customers refuse to purchase products from a particular company—have further diminished unions’ powers. We will discuss two types of boycotts: One is a primary boycott because it is directly against the employer. A primary boycott is when workers of Company A go on strike and urge the general public to boycott, or not purchase, Company A’s products. A secondary boycott is one in which “union conduct is designed to force a primary employer (the employer with which the union has a dispute) to force a neutral employer (an employer with which the union has no dispute) to cease doing business with the primary employer” (Teamsters, 2013). For example, a secondary boycott occurs when the employees of Company B engage in activities that result in a boycott of Company A. The employees of Company B may refuse to deliver boxes to Company A; as a result, Company A cannot ship any of its goods. The boycott by employees of Company B impacts Company A, but the workers of B are not employed by A, so it is a secondary boycott. An informative video about secondary boycotts can be found at https://www.youtube.com/watch?v=6_8G5SzWsZY. Section 8(b)(4)(ii) of the NLRA prohibits secondary boycotts, but two elements must be present in order for an action to qualify as a prohibited secondary boycott. The first requirement of this section is the actual boycott. The second is that the boycott must be used as a means to threaten, coerce, or restrain the secondary employer (Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 1991). This area of the law can be complex and perplexing, even to lawyers who practice labor law. For this reason, managers or labor organization officers making decisions regarding secondary boycott issues should seek legal advice and avoid guessing at the law’s meaning. Another way union power has been diminished is through the widespread prohibition of hot cargo agreements, which are contractual provisions that prevent employees from handling products from struck or nonunion firms. However, the right to enter into hot cargo agreements still exists in the construction and garment industries. Although workers have the right to strike, they may not use force or violence as a means to an end. The destruction of property or coercion of workers is prohibited. If the strikers’ activity also involves a boycott, and it seems as though a secondary boycott might also be planned, management should immediately consult a labor lawyer, since this area requires expert assistance. sea81813_05_c05_097-122.indd 103 12/10/14 3:34 PM Section 7 Rights Section 5.1 The Right to Engage in Collective Bargaining Collective bargaining is a topic that we will undertake in more detail in Chapter 7, but it will be partially discussed here because it is an important right of employees also granted by Section 7 of the NLRA. Collective bargaining occurs when the union and management meet to discuss the terms and conditions of employment. As previously discussed, the collective bargaining agreement defines the relationship between management and workers and is a legally binding agreement. Bargaining in good faith means that each party comes to the table with the intent to arrive at an agreement. All employees, whether they support the union or not, are subject to the collective bargaining agreement regarding pay rates, wages, hours of employment, and other conditions of employment. The person or group who will represent the employees at the bargaining table is known as the exclusive bargaining agent, meaning it is the one entity that is allowed to bargain on behalf of the union and its members. Once a union is recognized, the employer must bargain only with this agent. If the employer refuses to bargain with this entity, then the union can report the employer to the NLRB for committing an unfair labor practice. This means that the employer is accused of violating the National Labor Relations Act. The aim of bargaining is to reach an agreement; either party can propose terms and conditions of their work environment, and the other side can accept or reject them. We will discuss the actual bargaining process in much more detail in Chapter 8. How the Right to Refrain From Activity Is Related to Security Agreements and Right-to-Work States This section discusses a number of important and interrelated concepts: the right to refrain from union activity and how it is related to security agreements and right-to-work states. Section 7 guarantees that all employees have the right to refrain from engaging in union activity. This right was first granted in the Taft-Hartley Act in 1947. At that time, there had been a general outcry against closed shops, or workplaces that made union membership a condition of employment. Taft-Hartley explicitly outlawed compulsory union membership. Instead, it allowed union security agreements. These are contracts between a union and an employer in which they both agree that once an employee is hired, that employee must join the union. Union security agreements play an important role in helping unions sustain themselves, because even if an employee does not want to participate in the union, he or she must pay dues, which keeps the union functioning. All employees are required to pay dues because all of them benefit from the union’s presence, which, at a minimum, ensures a collective bargaining agreement. Everyone must therefore contribute to the cost of making this benefit possible. Although all employees are obligated to pay union dues and fees, they are not required to vote or otherwise participate in union activities. sea81813_05_c05_097-122.indd 104 12/10/14 3:34 PM Section 5.1 Section 7 Rights There is an important limitation to this, however. Section 7 also allows states to determine whether they will allow union shops at all. Indeed, 24 states have passed what are called right-to-work laws (see Figure 5.1). In a right-to-work state, employers are not allowed to have union shops or union security agreements. Therefore, in these states employees not only have the right not to join a union, but security agreements are also prohibited, so in almost half the states, employees can opt out of joining the union and are not obligated to pay union dues if they are not a member. In other words, a right-to-work state means employees have the “right” to work without involving themselves in a union; a right over which there is a tremendous amount of debate. Watch This To view a video with additional information on the right-to-work laws, visit http://www .youtube.com/watch?v=dnYvsAEsJwo To view a video that depicts some negative effects of right-to-work laws, visit http:// www.youtube.com/watch?v=dRJOCnZTEiA Figure 5.1: Right-to-work states Employers in a right-to-work state are not allowed to have union shops. WA VT NH MT ME ND OR MN ID WI SD PA IA NE NV IL UT CO CA AZ KS OK NM IN MO OH KY WV VA CT NJ DE RI MD NC TN SC AR MS TX MA NY MI WY AL GA LA FL AK HI Adams, B. As Mich. becomes 24th right-to-work state, is this the beginning of the end of union influence? TheBlaze. Adapted from http://www.theblaze.com/stories/2012/12/12/as-mich-becomes-24th-right-to-work-state-is-this-the-beginning-of-the -end-of-union-influence/# sea81813_05_c05_097-122.indd 105 12/10/14 3:34 PM Employers’ Unfair Labor Practices Section 5.2 In the News: Right to Work Is More Than a Legal Issue Right to work might seem like a purely legal issue, but it is an economic one, too. In considering where to build new plants, companies are keenly aware of which states have right-to-work statutes and which do not. Companies frequently opt for a state that has right-to-work laws to avoid unions. The thinking is that without a union presence, employers can pay lower wages. One such company is Tesla Motors, which builds electric cars. It considered five states in which to house its new plant, or gigafactory, to manufacture its batteries, which will create 6,500 new jobs. Three of those are right-to-work states (Nevada, Arizona, and Texas) and two are not (California and New Mexico). On September 8, 2014, Tesla announced that Nevada had won the contract. It is difficult to know the impact that the right-to-work status played in the decision, since the state offered extraordinary tax incentives to Tesla to locate there. But there is no doubt that the issue of right to work is a factor that will have an economic impact on states that may increase their likelihood of passing legislation to adopt right-to-work status. Discussion Questions 1. If you were a legislator considering passing a right-to-work statute, would the fact that Tesla opened a plant in Nevada impact you in any way? Why or why not? 2. Read the following articles—http://www.hcn.org/articles/nevada-wins-the-tesla -battery-factory-giga-race and http://www.kob.com/article/stories/s3548347.shtml# .VCrdKBbp_iE—which reveal there was more to Tesla’s decision than simply Nevada’s right-to-work legislation. What other factors led Tesla to choose Nevada as the place to house its plant? Do you think that right to work might have had no effect, considering these other issues? 5.2 Employers’ Unfair Labor Practices This section will address two serious mistakes that managers can make when dealing with employees. The first is interfering with, restraining, or coercing employees in the exercise of their Section 7 rights by violating what is known as the Weingarten rule. Whether intentional or not, this violation is an unfair labor practice and can be easily avoided. The second is domination, which is more difficult to define and occurs when an employer takes over, or dominates, union activity so that it is no longer separate from the employer. Interfering With, Restraining, or Coercing Employees In addition to interfering with employees’ ability to form a labor union (as was covered in Chapter 4), another significant judicial interpretation of Section 7 is known as the Weingarten rule, after the case NLRB v. J. Weingarten (1975), in which an employee, represented by a labor union, asked to have his union representative present at an investigatory interview. The employee thought he was being called to his supervisor’s office to be fired. As a result, he asked to have a union member join him for the meeting, but the supervisor would not allow it. Although the NLRA does not specifically address this situation, the NLRB did. They found that denying the presence of a union representative at the meeting amounted to the denial sea81813_05_c05_097-122.indd 106 12/10/14 3:34 PM Employers’ Unfair Labor Practices Section 5.2 of mutual aid or protection, which constitutes an unfair labor practice. Managers should be especially sensitive to this type of situation and when possible allow a representative to participate in the meeting. Domination Domination, on the other hand, is when an employer interferes with the union. When an employer interferes with, or dominates, a union, union members become unable to freely voice their concerns in a way that is separate from their employer. The NLRA states that an employer may not “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” Dominating a labor organization may involve well-meaning actions on the part of an employer. For example, suppose that an employer wishes to have better communication with his employees. To this end, he sets up workplace committees in which employees can voice their grievances and be heard by management. The employer chooses which employees will be on each committee, decides what topics they will discuss, and determines when the meetings will take place. These may appear to be the laudable actions of an employer that is sensitive to employee problems; but in the 1994 case Electromation Inc. v. NLRB, the NLRB characterized them as domination because the company defined the committee structures and committee subject matters, appointed a manager to coordinate and monitor the committee meetings, structured each committee to include one or two management representatives, and permitted those managers to review and reject committee proposals before they could be presented to upper level management. (Electromation Inc. v. NLRB, 1994) Thus, the NLRB found the employer guilty of an unfair labor practice. No matter how well intentioned an employer, the formulation and structure of such committees in a unionized plant are problematic. The employer’s actions were: 1. “the creation of management, 2. whose structure and function are essentially determined by management, 3. and whose continued existence depends on management’s orders” (Electromation Inc. v. NLRB, 1994). However, when employees themselves determine the formulation and structure of the organization, domination is not established, even if the employer could potentially influence the organization’s structure or effectiveness. Recognizing the Wrong Bargaining Representative Another violation of Section 7 involves an employer failing to recognize a particular group as the appropriate representative of the union. Suppose that one group of employees approaches the employer to say that they represent a majority of workers and that they wish to unionize. Then 2 days later a group of different employees approaches the employer and says that sea81813_05_c05_097-122.indd 107 12/10/14 3:34 PM Unfair Labor Practices of Labor Organizations Section 5.3 they too represent a majority and would like to unionize. The employer recognizes the first group of employees as the majority’s representative, when in fact that group does not really represent the majority. Can the employer be charged with a violation if he honestly believed the first group represented the majority? Indeed; in the 1961 case International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, the NLRB held that the employer interfered with the formation of a labor organization. The “employer recognized the exclusive bargaining representative of certain employees on a date when only a minority of those employees had authorized the union to represent their interests” (International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 1961). The court said that although the employer had a good-faith belief that the union it recognized represented the majority, the fact that it did not constituted an unfair labor practice (International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 1961). 5.3 Unfair Labor Practices of Labor Organizations Just as employers have a duty to comply with the NLRA, labor organizations must also abide by the rules set out in the act. Recall that employees are protected by Section 7, which guarantees to them the right to unionize and affords them other protections from the unfair labor practices of employers. Employees also have protection from the unfair practices of labor organizations, which are outlined in Section 8. Restraint and Coercion of Employees It is an unfair labor practice for a labor organization or its agents (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. (29 U.S.C.A. § 158 (b)(1)(A), 1935) The prohibition in the first section of this statute—the part about restraint and coercion—means that a labor organization is not allowed to use violence to induce employees to join the union or to join in a strike (In re National Maritime Union, 1949). Likewise, unions are not allowed to threaten to retaliate against an employee if he or she files a grievance against it (NLRB v. Union of Indus. Marine & Shipbuilding Workers, 1968). Employees have the right to freely decide whether to join a union, and this section attempts to prevent them from being subjected to wrongful, coercive techniques. Sometimes, a behavior is not necessarily a violation on its face. For example, in a case involving members of the Teamsters union, a strike occurred at their place of work, and the employer hired replacements to do the strikers’ jobs. The Teamsters went to the place sea81813_05_c05_097-122.indd 108 12/10/14 3:34 PM Unfair Labor Practices of Labor Organizations Section 5.3 of business and videotaped the replacement employees, their vehicles, and license plates as they arrived for work in the morning. Although the act of videotaping on its own is not violent, coercive, or threatening, the court ruled that in this case, videotaping the replacement workers and their vehicles constituted an unfair labor practice because recording which replacement workers drove which cars—which could conceivably be used to follow or track them—was intimidating and threatening behavior (General Teamsters, Warehousemen and Helpers Union, 2000). In another case a large number of labor union members assembled outside a school at which rival unions were holding a meeting. One group of union members attempted to block the other group of union members, making it difficult for people to come and go. When members of the rival unions did enter or exit, they had to pass a line of strikers alongside the exits who intimidated anyone who passed through. One union leader was physically attacked. There were also incidents following the meeting in which a building was burned, and this destruction was linked to the earlier incidents at the school. These behaviors were found to be coercive and a violation of the National Labor Relations Act (NLRB v. United Mine Workers of America, 1970), as was the destruction of property. The court found that these behaviors kept the employees from carrying out their normal work of the union by making it difficult to hold a meeting and were threatening to the workers; as a result, they violated the act. The Rights of Unions and Employers The next section of the statute protects the right of a labor organization to write its own rules regarding union membership. While the labor organization may not engage in the activities described previously, it may have its own internal rules and sanctions. For instance, a union may fine members who do not attend meetings; it may also impose fines if members do not pay their dues. Many unions impose fines on members who cross a picket line during a strike (Emporium Capwell Co. v. Western Addition Community Organization, 1975). These types of sanctions are allowed under this section as long as the union can show that they relate to the internal governance of their organization. The last section protects the employer’s right to choose its own representatives to engage in collective bargaining or to settle grievances. For example, if the employer chose Chuck Smith to be its representative and the union went on strike because they did not like Chuck Smith, the union would be in violation of this section, because the employer has the right to select its own representative. Similarly, if the union refused to bargain with Chuck Smith, that would also violate this section since its refusal would be an attempt to force the employer to choose a different representative, which is not allowed. Discrimination Is Prohibited The statute continues by prohibiting a labor organization or its agents from discriminating against employees by denying or terminating someone’s union membership on grounds other than failure to pay the dues and initiation fees uniformly required as a condition of acquiring sea81813_05_c05_097-122.indd 109 12/10/14 3:34 PM The National Labor Relations Board Section 5.4 or retaining membership. As the section states, it is an unfair labor practice for a labor organization or its agents (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. (29 U.S.C. § 158, 2012) Similarly, unions are barred from using unfair, irrelevant, or discriminatory considerations when they refer employees for work. Many unions run hiring halls, which are places one goes to get work through the union. If the union uses favoritism in recommending workers—or conversely, discriminates against certain workers during this process—then it has departed from its established procedures, which could result in someone being denied work. For example, if Joe, a union member, goes to the hiring hall and is consistently denied work because he is Catholic or because the workers who run the hiring hall dislike him, he could bring a grievance under this section claiming discriminatory activity by the union. Bargaining in Good Faith Finally, the statute concludes by affirming that just as an employer must bargain in good faith with a union, so too must the union bargain in good faith with the employer. The statute states that it is an unfair labor practice for a labor organization or its agents (3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) of this title. (29 U.S.C. § 158, 2012) The courts or the NLRB have at various times held that certain actions of labor unions have violated this section. In one case the union and the employer negotiated and reached an agreement, but the union ultimately refused to sign the written collective bargaining agreement (Scottsbluff Police Officers Ass’n Inc. v. City of Scottsbluff, 2011). In another the union refused to provide information necessary to make the collective bargaining agreement functional. Both cases represented violations of this section (NLRB v. Local One-L, Amalgamated Lithographers of America, 2009). 5.4 The National Labor Relations Board No organization has a more essential role in dealing with labor disputes, labor policy, and union elections than the National Labor Relations Board. This section will introduce the workings of this critical agency and discuss how it resolves disputes between labor and sea81813_05_c05_097-122.indd 110 12/10/14 3:34 PM The National Labor Relations Board Section 5.4 management. Before discussing the NLRB’s functions, however, it is necessary to first address some foundational concepts that demonstrate the NLRB’s powers. Jurisdiction of the NLRB Jurisdiction refers to the NRLB’s power to hear certain disputes. The NLRB’s jurisdiction is defined in a number of ways, one of which is financial. For example, if a business is a retailer and has gross annual sales of $500,000 or more, the NLRB has jurisdiction over that business’s labor disputes. Retail includes a wide range of businesses, including hotels, cemeteries, and amusement parks. Businesses engaged in interstate commerce have a much lower threshold for determining NLRB jurisdiction: $50,000. This includes businesses involved in transporting goods or even passengers, such as a private bus company. Companies that ship goods and trucking companies that haul goods would also be included under this statute. The reason for the lower threshold is due to the powers granted to Congress by the U.S. Constitution (Article 3, Section 1); businesses engaged in interstate commerce come under the purview of Congress. Although Congress could rely on this fact to invoke jurisdiction over any business engaged in interstate commerce, instead it sets the minimum requirement at $50,000. Businesses that do not meet this threshold come under the purview of state laws. These are but two examples of businesses that are covered by the NLRB based on the amount of money they gross per year. The NLRB will determine if it has jurisdiction before it will proceed with a case. If it does not, state remedies may be available to workers. For a full list of NLRB jurisdictional standards, visit http://www.nlrb.gov/rights-we-protect /jurisdictional-standards. Structure of the NLRB The National Labor Relations Board is housed in its national office in Washington, D.C., with regional offices throughout the United States. The full board consists of five board members, one of whom is the chair. Each member is appointed by the president of the United States for a staggered term, meaning that each member’s term ends at a different time so that the entire board is not replaced all at once. The members serve as judges and hear disputes between management and labor in cases appealed to the board. Because they are political appointees, the decisions by the board tend to represent the current thinking of the administration, be it pro-labor or pro-management. By statute, the board is charged with preventing unfair labor practices by both management and labor. By the time a matter reaches the board, it will have already passed through several layers of hearings, beginning with a regional director, followed by an administrative law judge, and finally the board itself if resolution is not obtained at lower levels. Figure 5.2 illustrates these various levels. sea81813_05_c05_097-122.indd 111 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board Figure 5.2: Organization of the National Labor Relations Board The purpose of the board is to prevent unfair labor practices between management and labor. The Board General Counsel Board Member and Chair of the NLRB Board Member Board Member Board Member Board Member Chief Counsel Chief Counsel Chief Counsel Chief Counsel Chief Counsel Deputy Chief Counsel Deputy Chief Counsel Deputy Chief Counsel Deputy Chief Counsel Deputy Chief Counsel 3 Assistant Chief Counsel 3 Assistant Chief Counsel 3 Assistant Chief Counsel 3 Assistant Chief Counsel 3 Assistant Chief Counsel Senior Counsel Senior Counsel Senior Counsel Senior Counsel Senior Counsel Staff of 12–14 Attorneys Staff of 12–14 Attorneys Staff of 12–14 Attorneys Staff of 12–14 Attorneys Staff of 12–14 Attorneys The solicitor and staff provide legal opinions to the board as a whole Division of Judges The executive secretary Administrative management of the board Regional Director’s Decisions Manages the board’s caseload The five board members are represented across the top row of Figure 5.2, with the chair represented on the far left. Under each of the five board members are their direct reports. The chief counsel is the top legal advisor to each board member. The other counsel listed below the chief are also lawyers, as are the staff attorneys that populate the box at the bottom. Each board member has up to 19 attorneys at his or her disposal. The bottom of the figure includes three other boxes representing the executive secretary, the solicitor, and the division of judges, along with the general counsel to the left of the board chair. A brief explanation of each follows. The General Counsel The general counsel is appointed for a 4-year term by the U.S. president, with the approval of the Senate. The general counsel is independent from the board and is responsible for investigating and prosecuting unfair labor practice cases and for generally supervising the NLRB field offices in processing cases. The general counsel is like a prosecutor who brings cases in court (before the NLRB). The Executive Secretary As “the chief administrative and judicial management officer of the Board, represents the Board in dealing with parties to cases, and communicates on behalf of the Board with labor sea81813_05_c05_097-122.indd 112 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board organizations, employers, employees, Members of Congress, other agencies, and the public. He or she receives, dockets, and acknowledges all formal documents filed with the Board; issues and serves on the parties to cases all Board Decisions and Orders; and certifies copies of all documents that are part of the Board’s files or records” (NLRB, n.d.c.). The Division of Judges “The NLRB’s administrative law judges docket, hear, settle, and decide unfair labor practice cases nationwide, operating through offices in Washington, Atlanta, New York, and San Francisco” (NLRB, n.d.c.). They attempt to settle cases among the various parties and if that fails, hold a hearing and write an opinion. There are 40 administrative law judges nationwide. Regional Offices The NLRB has regional offices located throughout the United States. The map in Figure 5.3 represents the various regions, but to see the location of the offices on an interactive map, visit http://www.nlrb.gov/who-we-are/regional-offices. Figure 5.3: Map showing the regional divisions of the National Labor Relations Board There are a total of 26 regional offices of the National Labor Relations Board, and its headquarters is in Washington, D.C. 19 7 18 20 32 27 25 8 3 2 6 4 5 9 14 1 13 22 29 31 10 28 21 15 16 19 12 20 Region 1 – Boston Region 2 – New York Region 3 – Buffalo Region 4 – Philadelphia Region 5 – Baltimore Region 6 – Pittsburgh Region 7 – Detroit Region 8 – Cleveland Region 9 – Cincinnati Region 10 – Atlanta Region 12 – Tampa Region 13 – Chicago Region 14 – St. Louis Region 15 – New Orleans Region 16 – Fort Worth Region 18 – Minneapolis Region 19 – Seattle Region 20 – San Francisco Region 21 – Los Angeles Region 22 – Newark Region 25 – Indianapolis Region 27 – Denver Region 28 – Phoenix Region 29 – Brooklyn Region 31 – Los Angeles Region 32 – Oakland Missing numbers reflect regional offices that were merged with other regional offices. http://www.nlrb.gov/who-we-are/regional-offices sea81813_05_c05_097-122.indd 113 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board To have a dispute heard by the NLRB, one must first file papers with the regional office. Since the establishment of the NLRB, the regional offices have taken on increasingly more responsibility and are now an invaluable part of the hearing and election process. We will see how this process works in the next section. Resolving Unfair Labor Practices Among the most important of the NLRB’s responsibilities is to resolve unfair labor practice disputes. Unfair labor practices can occur in a variety of forms and against any of the players in a labor dispute, including employees, employers, the labor organization, individuals, or a combination of any of these entities. The process of resolving an unfair labor practice dispute begins at the regional level and progresses upward. The final stop is at the NLRB offices in Washington, D.C., where the matter is heard by the board if it is serious enough to warrant full review. Filing Charges With the Regional Office Charges of unfair labor practices are first filed in one of the regional offices. The regional offices are geographic, meaning that the charge is filed in the geographic area in which the incident occurred. A map is provided to help claimants find their local offices, and claimants are also given addresses and contact information. The regional offices also assist claimants with the paperwork necessary to start the claim process; all paperwork must be filed within 6 months of the incident. Investigation and Dispute Resolution Once filed, the case is assigned to a board agent. The person bringing the charge—called the charging party—is requested to submit a written statement of what happened. The regional office conducts an investigation that includes interviews with all parties concerned. After the investigation is completed, there are a number of options available to resolve the dispute: • Withdraw the charge. If the investigation reveals there is no violation, the charging party is given an opportunity to withdraw the charge, or retract it. If he or she declines, the board will dismiss the case. The statistics in Table 5.1 from the NLRB show how few controversies actually culminate in a board hearing. In 2013, 21,009 cases were filed; of those, 7,450, or 35%, were withdrawn by the complainant; 7,193, or 34%, were dismissed; and of the original 21,009, only 522 resulted in board orders, or 2% of the total originally filed. Table 5.1: Disposition of unfair labor practice charges in FY13 Withdrawal Settlement and adjustments Dismissal Board orders 7,450 7,193 5,844 522 Source: National Labor Relations Board, n.d.b. sea81813_05_c05_097-122.indd 114 12/10/14 3:34 PM The National Labor Relations Board • • • • Section 5.4 Dismiss the case. If the charging party refuses to withdraw a charge that lacks merit, the regional director will issue a letter that states no formal complaint will be issued, thereby resulting in a dismissal of the case. Note that the NLRB advises the parties of their right to appeal this decision and the time frame for doing so. Defer the charges to arbitration. Many collective bargaining agreements contain a clause that mandates arbitration if a grievance occurs. Arbitration is a resolution process in which an arbitrator is hired to enter the dispute and resolve it; an arbitrator can be thought of as a private judge who will hear both sides and then determine who is wrong and right. When a case is deferred to arbitration, the board does not hear the case; instead, an arbitrator is hired to hear the dispute. As a general rule, the arbitration is binding on both parties, meaning that they must comply with the arbitrator’s decision. Settlement. If the investigation reveals a violation, the regional office will meet with the parties to try and reach a voluntary settlement. If a settlement takes place, it is either an informal or a formal settlement. If informal, the agreement is subject to the approval of the regional director; if formal, it must be approved by the board. Issue a complaint. If after meeting it is apparent that the parties will not be able to reach a voluntary settlement, the regional director will determine if formal action should be taken or if the matter should be dismissed. If the regional director determines that action should be taken, he or she will issue a complaint against the respondent, the person alleged to be the wrongdoer, and, at his or her discretion, have it served on (delivered to) the parties involved. The complaint is a formal document containing the allegations of wrongdoing. During this time, the parties may still settle the issue, but once a complaint is filed, only a formal settlement can be reached with the resulting mandated board approval. The respondent has 10 days to respond with a formal piece of writing called an answer. Once the complaint and answer are submitted to the NLRB regional office, the case then proceeds to a hearing at one of the regional offices before one of the regional judges, called an administrative law judge (ALJ). The Hearing The hearing at the regional level takes place much like a trial. It is overseen by the administrative law judge, and a representative from the general counsel’s office acts as the prosecutor. Prior to the complaint being issued, the general counsel acts in an investigatory role to determine if an unfair practice actually took place; once the complaint is filed, however, the office becomes prosecutorial (Fischer, Garren, & Truesdale, 2008). There is usually an attorney for the complainant and one for the respondent, as well as the parties themselves and witnesses. Figure 5.4 illustrates the respective parties. sea81813_05_c05_097-122.indd 115 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board Figure 5.4: Schematic of the parties in a hearing before an administrative law judge An administrative law judge can decide to dismiss the complaint, find no wrongdoing, or decide there is an unfair labor practice. ALJ Judge Presiding Over the Hearing Attorney for Complainant Complainant Person filing the complaint against the respondent Attorney for the Respondent Attorney for the General Counsel (Prosecuting) Respondent Person against whom the charge has been filed At the hearing, witnesses are called to testify and may be subjected to cross-examination. Just as in court, a court reporter takes a record of the proceedings. When the testimony is completed, the parties may submit comprehensive legal arguments to the ALJ in the form of briefs, which are statements of the case and arguments for the respective positions based on law. Once the briefs have been submitted, the ALJ has a number of options: 1. Dismiss the complaint in whole or in part. For those parts not dismissed, the ALJ will issue an order to cease and desist, or immediately stop, the wrongful practices. 2. Dismiss the entire complaint. This means that the ALJ did not find any wrongdoing; in essence, the respondent “wins.” 3. Decide there was an unfair labor practice. This may result in remedies such as a cease-and-desist order, making the wrongful party comply with the law or face further punishment. If the matter is serious enough, it may be appealed to the full board in Washington, D.C. Under the National Labor Relations Act, the NLRB cannot assess penalties against a wrongdoer. Instead, the agency has a number of other types of remedies if it finds an employer guilty of a wrongful act. These include reinstatement of the employee and paying back wages if he or she was discharged, along with informational remedies that include posting a detailed notice to workers telling them what the employer did wrong and stating that the employer will cease the wrongful behavior. An example of such a notice is provided in Figure 5.5. sea81813_05_c05_097-122.indd 116 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board Figure 5.5: Notice by the NLRB of an unfair labor practice In the notice, an employer acknowledges and agrees to cease wrongful behavior. BO R RELA T N S B OA R D IO AT IO NAL L A FORM NLRB-4727 (9-69) NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD N AN AGENCY OF THE UNITED STATES GOVERNMENT The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT discipline or otherwise discriminate against any of you because you engage in protected, concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful written warnings given to Robert Nelson, Dennis Byrnes, Scott Maxwell, Larry D’ Addario, and William Bruce Banerdt, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the written warnings will not be used against them in any way. 1 2 3 CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY (Employer) Dated: _________ By: ___________________________________________________ (Representative) (Title) The National Labor Relations Board is an independent Federal Agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to an agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. Agency Toll Free Number: 1-866-667-6572. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board’s Office, Region 31, National Labor Relations Board,11500 West Olympic Blvd., Suite 600, Los Angeles, CA 90064. Telephone: (310) 235-7351. Hours: 8:30 am–5:00 pm. 4 SpaceRef. (2014). Adapted from http://images.spaceref.com/news/2014/jpl.nlrb.lrg.jpg sea81813_05_c05_097-122.indd 117 12/10/14 3:34 PM Summary & Resources The posting in Figure 5.5 sets out the wrongful acts. Arrows 1 and 2 are the paragraphs stating the employer will not discipline, discriminate, or infringe Section 7 rights to engage in protected, concerted activities; arrow 3 names the employees involved and agrees to retract the warnings given to them in the matter; arrow 4 shows the name and the location of the regional office issuing the notice. Alternative Dispute Resolution Program As noted previously, the parties may refer the matter to alternative dispute resolution. This applies if the employees are already unionized and their collective bargaining agreement includes a clause stating that in the event of an unfair labor practice, they agreed to use dispute resolution. In 2005 the NLRB created its own alternative dispute resolution program. The board provides an experienced mediator who helps the parties arrive at a confidential resolution to their dispute. Mediators do not impose a settlement; instead, they help the parties reach their own satisfactory conclusion to the dispute. Disputes may also be referred to mediators at the Federal Mediation & Conciliation Service. An in-depth discussion of mediation and arbitration takes place in Chapter 8. This chapter began with a discussion of the rights that workers receive under Section 7 of the National Labor Relations Act and concluded with the enforcement arm of that law, the National Labor Relations Board. In 2013 there were more than 20,000 complaints filed with the NLRB (National Labor Relations Board, n.d.b.). That means that employees thought that managers or labor organizations denied their rights more than 20,000 times. Each of those proceedings involved hiring attorneys and spending hours of time in preparation. Businesses could avoid many such costs by becoming familiar with these laws. It is an expensive lesson that might well be circumvented by thoughtful and knowledgeable managers. Summary & Resources Summary of Chapter Concepts • • • • • • sea81813_05_c05_097-122.indd 118 Section 7 grants all workers four major rights: to self-organize, collectively bargain, strike, and refrain from union activity. Employees have the right to engage in concerted activities for their mutual aid or protection, and this applies to all employees, whether unionized or not. This right includes postings on websites that criticize employers. Strikes must have a lawful objective and be carried out in a lawful manner. Workers often waive their right to engage in a strike when they negotiate their collective bargaining agreement. Employees have lost a great deal of the power they once had, because strikes are less effective, given that employers may hire replacement strikers; secondary boycotts are outlawed, and hot cargo agreements are limited to the construction and garment industries. Section 7 gives unionized workers the right to engage in collective bargaining, which is a process whereby union and management meet to negotiate a contract that spells out the terms and conditions of employment (the collective bargaining agreement). 12/10/14 3:34 PM Summary & Resources • • • • • • • • • • A union security agreement is a contract between union and management that states all workers hired will have to join the union, thus making the place of employment a union shop; both security agreements and union shops are outlawed in the 24 states that have passed right-to-work legislation. Employers have numerous duties under Section 8, including providing Weingarten rights, or union representation at a disciplinary hearing. They are also not allowed to engage in domination, which is when the employer controls a labor organization, even if unintentionally. Labor organizations can also violate the NLRA by restraining, coercing, or discriminating against employees in regard to their Section 7 rights and/or by refusing to bargain collectively with the employer. The NLRB is a federal administrative agency located in Washington, D.C., and includes regional offices overseen by regional directors throughout the United States. The NLRB has jurisdiction over unfair labor practices and union elections in private places of business that are engaged in interstate commerce. It also defines matters over which it has jurisdiction by minimal financial amounts. If the NLRB does not have jurisdiction over a dispute, it cannot render or enforce decisions. The board itself consists of five members, with a general counsel reporting to the chair and a chief counsel, deputy chief, and three assistant counsel reporting to each board member. At the national level, the board acts like an appeals court, hearing disputes from its regional offices. At the regional level, the office acts like a court in that it hears disputes and oversees elections at private businesses within its jurisdictional territory. The NLRB has the power to resolve unfair labor practices through hearings at the regional office level overseen by an administrative law judge. Key Terms alternative dispute resolution The process of resolving a dispute outside of court; it includes mediation and arbitration. arbitration The process whereby an arbitrator hears a dispute and makes a decision about who should prevail. bargaining in good faith The obligation to meet and negotiate at reasonable times with adequate information to make informed decisions. bargaining representative The person or persons designated by the employees or union to represent them in collective bargaining with management. sea81813_05_c05_097-122.indd 119 binding Enforceable. board member In the context of the NLRB, one of five members who hear cases at the national level and write decisions on behalf of the NLRB. chief counsel The supervising attorney in the respective NLRB office. complaint A formal paper issued by the NLRB when it finds that there is a basis to continue with a charge of wrongdoing. division of judges The NLRB’s 40 administrative law judges who docket, hear, settle, and decide unfair labor practice cases nationwide. 12/10/14 3:34 PM Summary & Resources domination A type of unfair labor practice that occurs when the actions by management override the concerns of labor. economic striker Workers who are striking because their bargaining demands have not been met by the employer. exclusive bargaining agent The person or persons designated by the workers to negotiate the collective bargaining agreement with management. executive secretary The chief administrative officer of the NLRB. general counsel Appointed by the president to a 4-year term, an attorney who is independent from the NLRB and is responsible for the investigation and prosecution of unfair labor practice cases. hiring halls A place run by a union where members go to secure work. hot cargo agreement An agreement between a union and a neutral company that the neutral company will not deal with an employer because the union has a disagreement with that employer. The neutral company also agrees to cease or refrain from using, selling, transporting, or handling any of the products of an employer that the union has labeled as unfair. mediator A person who is brought in to a controversy to try and help the parties arrive at a mutually acceptable compromise. primary boycott A refusal to do business with a company in order to force the company to give in to union demands. regional offices Localized offices of the NLRB throughout the United States. reinstatement An order by the NLRB to put a wronged worker back in his or her original job. sea81813_05_c05_097-122.indd 120 replacement strikers Workers who take over the jobs of striking employees. respondent The party at fault in the NLRB decision. restrain or coerce To keep employees from being able to exercise their Section 7 rights. right-to-work state A state that allows nonunion workers not to pay dues to a union even if they are part of that union’s bargaining unit. solicitor The chief legal officer who advises the NLRB on questions of law and policy. unfair labor practice An act by an employer or a labor organization that is a violation of the National Labor Relations Act. unfair labor practice striker Employees who go on strike because they believe their employer is committing an unfair labor practice. union activity The right to self-organize, form, join, or assist labor organizations, bargain collectively, and engage in concerted activities for mutual aid or protection. union security agreements An agreement between an employer and a union that all newly hired employees will join the union; a union shop. waiver A legal paper in which a person or persons give up rights, sometimes by signing the paper; other times a waiver might be part of a larger agreement or contract. waive the right to strike To give up the right to strike in a waiver. Weingarten rule The right to union representation during an investigatory interview. withdraw the charge To retract or take back the charge; this occurs when there is no evidence to support a charge before the NLRB. 12/10/14 3:34 PM Summary & Resources Critical Thinking Questions 1. The National Labor Relations Board consists of five members who serve staggered terms and who are appointed by the president of the United States. How do you think the president’s political outlook plays into who is appointed to sit on the board? How might this impact the decisions made by the board from presidential term to term? 2. Unions use strikes as a way to force employers to meet their demands. What are the two types of strikers? How does the type of striker impact whether their demands will be met? Would you go out on strike if you thought you might not have a job at the end of the strike? How does losing one’s job impact the strength of unions to get their demands made? 3. What are right-to-work states? What is the relationship of a right-to-work state and a closed shop? A union shop? A union security agreement? How do you think right-to-work states will impact union membership throughout the United States? 4. European factories have historically used work councils in their plants. These councils are composed of workers and management who meet to discuss problems and seek solutions. Suppose that a U.S. plant wished to create such a council in a unionized plant here. What problems would it face legally with such a concept? Does the law make it possible for a council to exist in a U.S. plant? (See http://democrats.edworkforce .house.gov/press-release/miller-creation-new-works-council-chattanooga-win-vw -employees-and-supporters-workers%E2%80%99 for more information on this topic.) Research Projects 1. Choose five class members to be the board members of your mock National Labor Relations Board and one to be general counsel. Then choose a team to represent the respondent (including attorneys) and a team to represent the NLRB. After you have constituted the teams and the NLRB, pick a case from those discussed in this chapter and present it to your mock NLRB. The board should then write a decision stating its findings of law and fact. 2. Take a large writing pad and divide it into two columns. In the left column write all of the rights of employees that you can think of from this chapter. Then in the right column, see if you can identify a concomitant duty on behalf of management. sea81813_05_c05_097-122.indd 121 12/10/14 3:34 PM sea81813_05_c05_097-122.indd 122 12/10/14 3:34 PM 6 Public Sector Unions Bourdier/Associated Press Learning Objectives After completing this chapter, you should be able to: • Describe the history of public unions. • Differentiate public and private unions in terms of market forces, flexibility, political impact, costs and pensions, and efficiency and responsiveness. • Examine the major laws and agencies that govern federal and state unions. • Analyze the future of public sector unions. 123 sea81813_06_c06_123-142.indd 123 12/9/14 11:26 AM A Brief History of Public Unions Section 6.1 Introduction From the late 1960s to the early 1980s, air traffic controllers were members of a powerful union called the Professional Air Traffic Controllers Organization (PATCO). As federal workers, they were mandated not to go on strike. In 1981 they demanded a pay raise of $10,000 and a reduction in their workweek from 5 days to 4. The government gave them a $40 million counteroffer, which was $770 million short of the package they demanded. As a result, the air traffic controllers went on strike, crippling the air industry and bringing commerce to a halt. President Ronald Reagan ordered the controllers back on the job within 48 hours—or else. When they refused, he fired everyone who did not return to work—all 11,000 controllers. They thought the strike would force the government to agree to their demands, but instead, supervisors, nonstriking controllers, and military personnel staffed the towers and the airports. Soon the nation’s airports returned to about 80% efficiency. In the aftermath, Reagan refused to rehire the controllers that he fired, banning them forever from work as air traffic controllers. The 11,000 who walked off their jobs lost them forever (Glass, 2008). The air traffic controller strike is considered one of the watershed moments in public union labor history. Reagan took a considerable risk with maintaining airline safety while new controllers were trained and the system was understaffed. However, no accidents occurred during the transition. When the dust settled and both commerce and safety were restored, the fact remained that more than 11,000 workers were successfully replaced in a relatively short period of time. The signal this sent to both the public and private sector was clear: Strikes no longer worked; employees could be replaced (Cowie, 2012). How has Reagan’s decision impacted unions today? In 2010 Wisconsin governor Scott Walker successfully ran on a campaign to restrict the power of public employee unions to bargain collectively. With that right lost, many of the union members decided that membership was giving them few, if any, benefits. Since then, membership has fallen 60% and the union’s annual budget dropped from $6 million to $2 million (Greenhouse, 2014). Walker has been the subject of an intense effort by the country’s largest public union, the American Federation of State, County and Municipal Employees (AFSCME) to unseat him as governor. Whether the AFSCME will succeed remains to be seen, but for now, Walker seems firmly and confidently in power (Gold, 2014). What will happen to public sector unions in the future is uncertain, but like their private counterparts, many challenges await. This chapter begins with an overview of the history of public unions, showing how they have had a relatively short existence, and then proceeds to compare public and private unions. 6.1 A Brief History of Public Unions The first five chapters of this textbook were concerned with private sector unions. This chapter introduces the concept of public sector unions and how they differ from the private sector. The phrase public sector refers to an entity that is government related; that is, public sector unions are formed by employees who work for a local, state, or federal government. sea81813_06_c06_123-142.indd 124 12/9/14 11:26 AM A Brief History of Public Unions Section 6.1 Private sector unions, on the other hand, are composed of workers who are employed by nongovernmental owners. Legally, the most notable distinction between public and private unions is that generally neither the National Labor Relations Act (NLRA) nor the National Labor Relations Board (NLRB) applies to public sector unions. Recall that the NLRA specifically excludes government workers from coverage. When state workers do unionize and collectively bargain or strike, those rights derive from state statutes, court decisions, or local rules, not the federal laws. Public sector unions were not widely formed until the mid-1950s. The earliest public union was composed of post office workers in the 1800s, called the Railway Mail Mutual Benefit Association, which ultimately morphed into the current American Postal Workers Union, AFL-CIO. In the early 20th century, another public union consisting of Boston police staged a walkout in a bid to seek recognition. The strike resulted in riots and Moodboard/Thinkstock vandalism, culminating in 1,100 firings. Compared to the private sector, union membership Then Massachusetts governor “Calvin is higher among public sector workers, such as Coolidge became a national hero by firefighters. breaking the strike, issuing the dictum: ‘There is no right to strike against the public safety by anybody, anywhere, any time’” (as cited in Moreno, 2012, para. 2). President Woodrow Wilson called the strike “an intolerable crime against civilization” (as cited in Moreno, 2012, para. 2). The union fizzled out shortly thereafter. The bitter experience of the strike, however, remained in the American consciousness, fueling the collective belief that public workers should not be given the right to unionize. This changed over time, however. In the 1950s Wisconsin and New York City made it legal for government workers to unionize, and other municipalities followed soon thereafter. In 1962 President John F. Kennedy passed legislation allowing federal government workers to collectively bargain, and many states followed suit. Unlike private sector unions, public sector organizations appear to be growing in membership and wielding important economic and political power as a result. Their growth has far outpaced private sector unions in the past 50 years. According to the Bureau of Labor Statistics, in 2013, 35.3% of all workers in the public sector belonged to a union, versus 7.3% in the private sector (Bureau of Labor Statistics, 2014a). In local governments alone, more than 40% of all workers were unionized in occupations such as teachers, police officers, and firefighters. In comparison, in the private sector, industries with high unionization rates included utilities (25.6%), transportation and warehousing (19.6%), telecommunications (14.4%), and construction (14.1%). Low unionization rates occurred in agriculture and related industries (1%), finance (1%), and in food services and drinking places (1.3%) (Bureau of Labor Statistics, 2014a). sea81813_06_c06_123-142.indd 125 12/9/14 11:26 AM Section 6.2 Public Sector Unions Versus Private Sector Unions Table 6.1 shows how many government workers belong to unions. For example, in 2012, 41.7% of all workers at the local level belonged to a union, 31.3% of state workers belonged to a union, 26.9% of federal workers belonged to a union, and an average of 35.9% of all government workers belonged to a union. In 2013 the percentages were 40.8% local, 30.9% state, and 26.5% federal. The “percentage of employed” columns show workers who were not union members but were represented by a union nevertheless. Table 6.1: Union affiliation of employed wage and salary workers by occupation and industry, 2012–2013 annual averages 2012 Members of unions 2013 Represented by unions Percentage of employed Total Members of unions Percentage of Total employed employed Total Represented by unions Percentage of employed Total Percentage of employed Occupation and industry Total employed Total Public sector 20,385 7,328 35.9 8,072 39.6 20,429 7,210 35.3 7,900 38.7 State government 6,279 1,968 31.3 2,190 34.9 6,353 1,966 30.9 2,147 33.8 Local government 10,554 4,404 41.7 4,768 45.2 10,561 4,311 40.8 4,658 44.1 Federal government 3,552 956 26.9 1,114 31.4 3,515 932 26.5 1,096 31.2 Note: Numbers are in thousands. Source: Bureau of Labor Statistics, 2014a. The size of public sector unions, as indicated in Table 6.1, makes them formidable political entities. Assuming that public unions are here to stay, understanding their complexities and impact on various aspects of American culture cannot be underestimated. 6.2 Public Sector Unions Versus Private Sector Unions This section will explore some of the unique features of public sector unions and, where relevant, compare them to the private sector. Specifically, public and private unions will be compared and contrasted in terms of market forces, flexibility, political influence, costs to society, pensions, union security clauses, efficiency and responsiveness, and strikes. Freedom From Market Forces Private industry and some private sector unions are dependent on the concept of supply and demand. Workers in the private sector are acutely aware that the money that pays their wages sea81813_06_c06_123-142.indd 126 12/9/14 11:26 AM Public Sector Unions Versus Private Sector Unions Section 6.2 comes from the profits made by the business. In the event that workers insist on wages that outdistance a business’s profits, they risk their livelihood and job security. Many times, the profit made by a business is a matter of public record. Thus, private sector unions are able to consider and make demands within the confines of the profit model. Although government workers may be aware that their wages are paid by tax dollars, those tax dollars are tied to numerous outside forces, not necessarily the economy or supply and demand. For instance, politicians may promise to bolster education and teachers’ salaries, or a community may demand better police and fire services. Thus, promises of better terms and conditions of employment may not be related to how much money is actually in a budget, but instead, to a community’s politics. These factors can complicate the process of determining the amount of money that public sector unions request at the bargaining table. Flexibility Flexibility refers to how many options management has at its disposal when dealing with worker demands. For example, if workers ask for a pay raise, management might reply that it can offer a 1% raise if the workers take a 0.5% cut in their health benefits. Management in the private sector has the flexibility to respond quickly because it has the authority to make decisions at the bargaining table. Those decisions might include cost cuts, downsizing, moving to a less expensive part of the country, seeking tax breaks from the government, laying off workers, and outsourcing work to other countries. Negotiations with public employees, however, do not enjoy this same flexibility. Managers work within a hierarchy that requires approval at many levels. This delays response time and makes negotiating a lengthy process. Furthermore, a city undergoing an economic crisis does not have the option to outsource jobs the way a private industry can. The positions of firefighters, police, EMTs, nurses, and corrections officers cannot be sent overseas. In terms of removing positions or laying off workers, government employees are tenured into their jobs under a civil service system that has rigid rules. Also, many government personnel provide essential services and cannot be dismissed under any circumstances. All of these factors influence public sector negotiations. Public pressure to resolve disputes can result in a truncated bargaining process with concessions given to unions so that essential services will be back up and running as soon as possible. Political Impact As noted, politics plays a significant role in the life of a public union, and public unions play a significant role in American politics. If you were not aware of the financial power of public unions, consider this: Public unions have millions of members and spend millions of dollars a year electing candidates who support their platform. For example, government unions at the national level spent more than $200 million to defeat Republican candidates in the 2012 national election (State Budget Solutions, 2011). The AFSCME alone spent more than $90 million to win state races (State Budget Solutions, 2011). sea81813_06_c06_123-142.indd 127 12/9/14 11:26 AM Public Sector Unions Versus Private Sector Unions Section 6.2 Candidates for public office are aware of the influence that union support can offer. Those backed by a union, for example, could potentially count on the votes of 7% of employees in the private sector and 35% of all government employees, a sizable voting bloc, or a total of 14.5 million workers in a presidential election (Bureau of Labor Statistics, 2014b). “Such power led Victor Gotbaum, the leader of District Council 37 of the AFSCME in New York City, to brag in 1975: ‘We have the ability, in a sense, to elect our own boss’” (as cited in DiSalvo, 2010, para. 26). “Union members’ nod of approval for one candidate can also significantly influence how the voting public perceives a candidate. In areas of the country with a high union populous, such an endorsement may be the difference between winning and losing an election” (Kapoor, 2003). At the same time, if union members elect candidates who promise them job security and higher wages, this may be at odds with the public’s desire to lower taxes and improve services. In addition to candidates, public unions can also impact local laws. For example, “New York City Public Schools sought to change the process for awarding teachers tenure by factoring in student data. The local teachers’ union, the United Federation of Teachers (UFT), protested the district’s new policy, not through a local grievance (because the union, by state law, had no say on tenure issues), but by lobbying state legislatures to pass a bill that would effectively make the district’s action illegal. Guided by the state teachers’ union and the UFT, the New York state legislature blocked the tenure changes by embedding a provision in the 2008–2009 budget that made it illegal to consider a teacher’s job performance as a factor in the tenure process” (Cohen, Walsh, & Biddle, 2008). Economic Impact Public unions are widely blamed for costing taxpayers more money than a government without unions. Mixed research exists on whether this is true, however, making it difficult to draw any definitive statements about whether public unions do in fact cost the government more money. Some empirical studies show that unionization in the public sector significantly increases the wages and benefits of workers, resulting in tax hikes and fiscal setbacks (Anzia & Moe, 2013). For instance, one study compared the pay rates of employees in municipalities who had collective bargaining agreements against the pay rates of employees in municipalities without agreements. It was found that city police and fire departments with collective bargaining agreements spent significantly more money on salaries than those departments without collective bargaining. Likewise, health benefits in those same cities with collective bargaining agreements were 15% to 25% higher compared to non–collective bargaining cities (Anzia & Moe, 2013). Others argue that public unions have nothing to do with monetary woes. In Wisconsin, Governor Scott Walker ran on a campaign to do away with public unions, which he claimed were the reason for the state’s financial crisis. He oversaw legislation that eliminated collective bargaining with public unions over pensions and health care. Yet, subsequent to being elected, Walker increased the state budget by more than $100 million (Madland, 2011), bringing into question whether there was any connection at all between bargaining with public unions and the budget. Furthermore, firefighters and police officers who supported Walker’s candidacy were not stripped of their collective bargaining rights, giving the appearance that decisions sea81813_06_c06_123-142.indd 128 12/9/14 11:26 AM Public Sector Unions Versus Private Sector Unions Section 6.2 about which groups of public employees could retain their collective bargaining rights were being made for political rather than monetary reasons (Madland, 2011). Whether public unions are to blame for higher expenses to taxpayers is disputed. There are many factors that contribute to each government’s financial struggles, including legal judgments, declining real estate values, high unemployment, bad investments, and poorly thought-out economic development deals. Isolating public unions as the one variable that cause governmental woes seems unwarranted in light of the fact that the average salary of public workers is less than $50,000 and the average pension less than $20,000 a year, according to some sources (Saunders, 2012). Because so little research exists in this area, the impact of public unions on the costs of government is not possible to determine. The only thing that can be said with certainty is that in the current political and economic climate, public unions are blamed for many municipal problems. Pensions Another contentious issue concerns the pensions paid to government employees upon their retirement. A pension is a guaranteed monthly income for the life of the employee upon retiring and is a staple of public service. One of the reasons that people choose to work for the government is the early retirement age and the guaranteed pension for the rest of their lives. People who work in the private sector, on the other hand, do not have pension plans. Instead, they must create retirement accounts in which they place savings for the future, which are sometimes matched or contributed to by their employers. The money in this type of account is not guaranteed for the life of the retiree; when it runs out, it is gone. Pensions, in contrast, do not end until the recipient dies. States are responsible for creating and maintaining a pension fund, which they invest so that the money grows over time and can adequately support the demands of the individual pensioners as they retire. One of the problems with this system, however, is that when the market declines, the worth of the overall pension fund also declines, and there is a shortfall. When this happens, there is not enough money in the pension funds to cover the costs of paying out the pension monies. In such a case, the state borrows from other funds to cover the costs, going further into debt. This has caused a number of states to have underfunded pensions, or pensions that do not have enough money in them to pay what will be needed in the future. Added to these problems is the fact that there are a large number of people who are moving toward retirement. This will only exacerbate the problem. While large numbers are readying for retirement, the exact number of how many will retire each year remains unknown. One may be an eligible age for retirement, but that does not mean the person will necessarily retire. This factor adds to the unpredictability of how much money is needed per year. Some state pensions are especially generous, both in terms of the time required to become eligible and the amount received. “California state workers often retire at age 55 with pensions that exceed what they were paid during most of their working years” (DiSalvo, 2010). “Furthermore, New York City firefighters and police officers may retire after 20 years of service at half pay—which means that, at a time when life expectancy is nearly 80 years, New sea81813_06_c06_123-142.indd 129 12/9/14 11:26 AM Public Sector Unions Versus Private Sector Unions Section 6.2 York City is paying benefits to 10,000 retired police officers who are less than 50 years old. In 2006, the annual pension benefit for a new retiree averaged just under $73,000 (the full amount of which is exempt from state and local taxes)” (DiSalvo, 2010). Of course, neither California or New York can predict when workers will retire or how many workers will retire, making the exact numbers impossible to calculate. The pressure on the pension system has caused 43 states to reduce their pension benefits for new employees (Selway, 2014). Other states have required employees to either make or increase contributions to their pensions, increased the retirement age, and extended how long they must work before they receive a pension in order to reduce the financial burden that paying out pensions poses to the government (Greenblatt, 2013). In the News: The Future of Public Pensions Is Troubling A pension plan is considered to be underfunded “if it is less than 70 percent funded. According to Bloomberg, in 2012 there were 26 states whose pension plans met that standard” (Dorfman, 2014). One of the reasons that pension funds are underfunded is because “state government politicians are continually tempted to underfund pension plans in favor of using that money for something with an immediate payoff. Those same politicians also tend to grant increased pension benefits to state employees because it is a simple vote-buying scheme with no immediate budgetary cost” (Dorfman, 2014). States underfunding the pension plans are counting on current deposited funds to grow in the long term from sound investments made in the stock market, but that is not necessarily happening. If funds are not replaced, then union members may not receive the retirement funds they were expecting. Who will make up the gap in underfunded pension funds remains to be seen. To read more about this topic, view http://www.forbes.com/sites /jeffreydorfman/2014/09/11/public-pensions-are-still-marching-to-their-death. Discussion Questions 1. What are the political reasons why pensions are underfunded? 2. If the pension problem is political, what steps would have to occur to remedy the problem? Do you think such a remedy will ever take place? 3. If you do not see a remedy for the situation, what do you predict will happen to public pensions in the future? Union Security Clauses Union security clauses are implemented when the employer and the union agree that the place of business will be a union shop, a business in which all employees must join the union after they are hired. At the state level, union security clauses are not allowed in 24 states. These are the so-called right-to-work states. This means that unions that represent state or local workers are not allowed to make union membership a condition of employment. A person could have a job with a unionized local government but refuse to join the union and not be required to pay union dues. sea81813_06_c06_123-142.indd 130 12/9/14 11:26 AM Public Sector Unions Versus Private Sector Unions Section 6.2 The fact that union security clauses are outlawed in 24 states greatly diminishes the power of public unions, because employees can choose whether or not they want to join a union and pay dues. In Wisconsin, where right-to-work laws were enacted, the public teachers’ union saw a decline of 60% in its membership (DeFour, 2014). Decreased Efficiency and Responsiveness Do public unions decrease efficiency and responsiveness in the delivery of services? Some researchers argue yes, that unionization has led to decreased efficiency, courtesy, responsiveness, and politeness toward the public, while others maintain the opposite is true. According to the Cato Institute, unions “protect poorly performing workers, they often push for larger staffing levels than required, and they discourage the use of volunteers in government activities. Further, they tend to resist the introduction of new technologies and they create a more rule-laden workplace” (Edwards, 2010). Furthermore, unions that go on strike often decrease efficiency by causing a work stoppage. Others present a contrary view. Joseph Slater, a University of Toledo law professor and expert on labor economics, has found no evidence that unions, whether public or private, decrease efficiency (James, 2011). Strikes The right to strike guaranteed to workers in the private sector under Section 7 does not apply to public sector workers. As a result, there are not consistent laws about going on strike in the public sector. Thirty-nine states have laws prohibiting strikes by public sector unions. The remaining 11 states have a hodgepodge of rules that allow strikes under certain circumstances. For example, California allows strikes by nonessential employees except in cases where the strike poses an “imminent threat” to public health and safety; Hawaii allows strikes 60 days after the issuance of a fact-finding report and exhaustion of impasse resolution procedures (Bass, 2014). Many states have laws prohibiting strikes if the workers are essential workers such as police, firefighters, and teachers (Sanes & Schmitt, 2014). Some data indicate that since public sector unionization began in the 1960s, there has been an increase in the number of strikes by public sector workers (Sanes & Schmitt, 2014), but other researchers find an opposite result, concluding that such strikes are rare (Kerrigan, 2012). Three reasons are cited for this: It is not a good time for public sector workers to go on strike due to animosity toward them by the general public; sensitivity to shutting down essential public services; and the poor economic climate, which may result in no improvement in conditions if a strike occurs (Kerrigan, 2012). Although one can conclude that strikes occur in both the public and private sector for the same reasons (wages, vacation time, health benefits), public sector employees are much more highly regulated in their ability to legally strike, which can decrease their overall bargaining power. sea81813_06_c06_123-142.indd 131 12/9/14 11:26 AM Section 6.3 Legal Issues of Public Sector Unions 6.3 Legal Issues of Public Sector Unions The law governing private unions is found in the National Labor Relations Act and its subsequent amendments. The law governing public unions is not found in one place, however, nor is it easy to categorize or organize. Understanding laws governing public sector unions is best done by dividing them into two categories: federal and state. Federal Law Governing Federal Sector Unions This section will discuss the four major areas of federal law that apply to federal sector unions. They are represented in Figure 6.1: executive orders, court decisions, the Civil Service Reform Act of 1978, and the Postal Reorganization Act of 1970. Figure 6.1: Summary of laws governing federal workers Federal laws are one of the two categories of public sector laws—the other is state laws. Executive ExecutiveOrders Orders Mandates Mandatesfrom fromthe the president presidentthat thatapply apply to toworkers workersin inthe the executive executivebranch branchof of the thegovernment governmentonly. only. Court CourtDecisions Decisions Interpretations Interpretationsof ofthe the law lawthat thatinstruct instructon on how howto toapply applyititto to specific specificsituations. situations. Civil CivilService Service Reform ReformAct Act AAlaw lawthat thatapplies appliesto to federal federalgovernment government workers workersonly. only. The ThePostal Postal Reorganization ReorganizationAct Act Law Lawthat thatapplies appliesto to U.S. U.S.postal postalworkers. workers. ...
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