Abstract
Since 1935, private sector collective bargaining in the United States under the auspices of the National Labor Relations Act has had a major impact on the U.S. economy and helped lead to rising standards of living. Employees covered by collective bargaining agreements have achieved higher wages and improved quality of life through expansion of benefits such as health insurance, vacations and pensions, as well as protections from unjust discharge. Major features of the U.S. labor law system include the concept of exclusive representation which requires and permits an employer to bargain with a union only if it represents a majority of employees in an appropriate unit. This status enables the union to bind all employees in that unit, whether union members or not, to the terms of any resultant bargaining agreement. Employers with a duty to bargain are required to bargain in good faith, a requirement that precludes changes in terms and conditions of employment without first bargaining to impasse and one that requires the parties to meet with a sincere desire to reach agreement and provide relevant information on request. Within the bargaining framework, parties may resort to use of economic weapons to encourage settlement. Unions may strike and picket to encourage the public to support their strike. Employers which have bargained in good faith may hire strike replacement workers or lock out employees. Once agreement is reached, the terms are commemorated in a written collective bargaining agreement during the term of which the union agrees not to strike and the employer agrees to participate in binding labor arbitration to resolve any disputes over the meaning of the agreement. Collective bargaining agreements, including the union’s promise not to strike and the employer’s promise to arbitrate and abide by the decisions of labor arbitrators, are enforceable in federal court.
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Notes
- 1.
29 U.S.C. 151–169.
- 2.
29 U.S.C. 152.
- 3.
Bronfenbrenner (2016), p. 10.
- 4.
U.S. Department of Labor, Bureau of Labor Statistics, News Release, US DL-17-0107, January 26, 2017, www.bls.gov/news.release/pdf/union2.pdf (BLS News Release.) The Bureau of Labor Statistics reports annually on union membership and the number of employees covered by collective bargaining agreements.
- 5.
7.3 percent of private sector workers were represented by unions but only 6.4% of such employees were union members. BLS News Release (2016). The disparity is explained in part because some states are “right to work states” in which represented employees cannot be compelled by contract to join the union representing them.
- 6.
The impact of globalization goes beyond the impact of outsourcing jobs to lower wage economies. In addition, globalization and international trade affect the degree to which U.S. manufacturers can pass on costs to consumers. When the U.S. was more of a closed economy dominated by domestic manufacturers in industries such as automotive, the manufacturers could match each other with regard to negotiated wage rates and pass any increased cost on to consumers. International competition makes it much more difficult to improve wages and working conditions without becoming uncompetitive. In general, U.S. unions can be expected to fare better in industries not exposed to as much international competition such as the construction industry, the entertainment and hospitality industry, the hotel industry, health care industries including hospitals, large grocery chains, package delivery, mining, and telecommunications. For example, in 2016 unions represented 14.6% of construction employees, 20% of transportation employees, 23% of utilities industry employees, and 15.8% of telecommunications industry employees. See BLS News Release (2016).
- 7.
Fields such as information technology, for example, are part of a different job market with heavy use of independent contractors and freelance workers. Changes in the demographics of the job market do not provide the entire explanation for declining union density, however, because unions have lost ground in traditionally organized sectors as well.
- 8.
Many U.S. employers oppose unions and mount pre-election campaigns to persuade employees to vote against representation. In part, they are motivated by a desire to keep wage costs down. In general, unionized workers do tend to make higher wages. See BLS News Release (2016). More important than wages, however, are benefits. Unions usually negotiate for better health, pension, vacation and benefit packages, all costly to the employer. Finally, employers opposing unionization resist the limits on managerial discretion which a collective bargaining agreement and binding grievance arbitration can impose.
- 9.
More than 30% of state government workers and more than 40% of local government workers in the U.S. are represented by unions. See BLS News Release (2016), Table 3.
- 10.
29 U.S.C. 151–169.
- 11.
In interpreting the statute, the courts, especially the U.S. Supreme Court, have had a dramatic impact on development of the law. Although the U.S. system is statute-based, the decisions of the Court interpreting the statute are the final authority.
- 12.
29 U.S.C. 157.
- 13.
29 U.S.C. 158(a)(1).
- 14.
29 U.S.C. 158(a)(3).
- 15.
29 U.S.C. 158(b)(4).
- 16.
29 U.S.C. 158(a)(5).
- 17.
29 U.S.C. 158(b)(3).
- 18.
29 U.S.C. 158(d).
- 19.
29 U.S.C. 185.
- 20.
45 U.S.C. 151–188.
- 21.
5 U.S.C. Sec. 7101 et seq. 1,144,000 of the federal government’s 3,674,000 employees are represented by unions. See BLS News Release (2016), Table 3.
- 22.
29 U.S.C. 401–531.
- 23.
29 U.S.C. Sec. 203 et seq.
- 24.
29 U.S.C. Sec. 206(d).
- 25.
42 U.S.C. 2000d.
- 26.
29 U.S.C. Sec. 621–633.
- 27.
42 U.S.C. Sec. 12101 et seq.
- 28.
29 U.S.C. 660(c).
- 29.
29 U.S.C. 1001 et seq.
- 30.
29 U.S.C. 2001–2009.
- 31.
29 U.S.C. 2101–2109.
- 32.
29 U.S.C. 2601 et seq.
- 33.
Public Law 111–148, 111th Congress (March 23, 2010).
- 34.
29 U.S.C. 151–169. For a more extensive description of U.S. private sector labor law, see Ray et al. (2014).
- 35.
Under Section 8(a)(2), 29 U.S.C. 158(a)(2), it is unlawful for the employer to recognize the union as exclusive representative if it does not have majority support. This provision was originally put in the statute to prevent employers from setting up minority “company unions” and thereby blocking employees from selecting a freely chosen representative labor organization as their majority representative.
- 36.
In most cases, the parties are represented by bargaining teams. The employer is often represented by an attorney, who serves as chief spokesperson, and one or more company officials. The union may be represented by an attorney but most often is represented by an international union representative who serves as chief spokesperson. The union team will also usually include the elected local union president, the shop steward who is an employee chosen to represent fellow workers at the employer, and union bargaining committee members, a group of employees chosen to participate with the union. These employees provide a vital link of communication between members of the bargaining unit and the bargaining table. Their recommendations can have an important impact on whether union members vote to accept the contract proposed at the end of negotiations.
- 37.
29 U.S.C. 159(a).
- 38.
See J.I. Case Co. v NLRB, 321 U.S. 332 (1944).
- 39.
Several leading U.S. labor law scholars have argued that, in cases where there is no majority representative, the employer ought to have a legal duty to negotiate with unions representing groups smaller than a majority. See, e.g., Summers (1990), Morris (2005). Although their position is supported by extensive historical and legislative research, this view has not been adopted.
- 40.
Steele v. Louisville and Nashville R.R. Co., 323 U.S. 192, 199–202 (1944) (case involving alleged union discrimination on basis of race in negotiating seniority provisions).
- 41.
- 42.
Vaca v. Sipes, 386 U.S. 171 (1967).
- 43.
29 U.S.C. 158(d).
- 44.
356 U.S. 342 (1958).
- 45.
See Borg-Warner, 356 U.S. 342 (employer insistence on “ballot clause” requiring a pre-strike vote of the union membership held unlawful because it involved union-employee relations, not a mandatory subject); NLRB v. Detroit Resilient Floor Decorators Local Union No. 2265, 317 F.2d 269 (6th Cir. 1963) (employer’s contributions to an industry promotion fund not a mandatory subject of bargaining).
- 46.
379 U.S. 203 (1964).
- 47.
452 U.S. 666 (1981).
- 48.
This, of course, assumes that there is not a collective bargaining agreement in effect which bars or limits subcontracting. Such promises are binding for the term of the contract.
- 49.
Even if there is no duty to bargain over the decision, the employer still has a duty to bargain over the effects of that decision and, if requested, discuss issues such as order of layoff, severance pay, etc.
- 50.
See Dubuque Packing, 303 NLRB 390 (1991), enforced, United Food and Commercial Workers Int’l Union, Local No. 150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993), cert. denied, 511 U.S. 1138 (1994).
- 51.
29 U.S.C. 158(d).
- 52.
29 U.S.C. 158(d).
- 53.
343 U.S. 395 (1952).
- 54.
See NLRB v. A-1 King Size Sandwiches, Inc., 732 F. 2d 872 (11th Cir. 1984) Nor may a party merely present a “take it or leave it” position. It must bargain over every mandatory topic. See NLRB v. General Electric, 418 F.2d 736 (2d Cir. 1969).
- 55.
351 U.S. 149 (1956).
- 56.
369 U.S. 736 (1962).
- 57.
For a more thorough discussion of U.S. law concerning use of strikes, lockouts, and boycotts as part of the collective bargaining process, see Ray et al. (2017–2018).
- 58.
In some cases, however, a union will end a strike before agreement is reached and employees will return to work without a contract as bargaining continues.
- 59.
29 U.S.C. 157.
- 60.
29 U.S.C. Sections 8(a)(1) and 8(a)(3).
- 61.
29 U.S.C. 158(b)(4).
- 62.
29 U.S.C. 187 provides a right to sue in federal court for economic injuries suffered as a consequence of 8(b)(4) violations.
- 63.
See C and K Coal Co. v. United Mineworkers, 704 F.2d 690 (3d Cir. 1983) (over one million dollars assessed against union for lost profits and security costs attributable to unlawful picketing).
- 64.
See NLRB v. Fruit and Vegetable Packers and Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58 (1964) (consumer picketing in front of grocery stores asking customers not to purchase Washington State apples produced by struck employers deemed not coercive and therefore not violative of Section 8(b)(4)) If the retailer sells only products of the struck employer or if such products constitute a significant part of its business or identity, then the picketing may be coercive and deemed unlawful. NLRB v. Retail Store Employees, Local 1001 (Safeco Title Insurance Co.,) 447 U.S. 607 (1980).
- 65.
See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988) (peaceful handbilling calling for total boycott of all retail mall tenants, including those who had no business relationship with the parties to the protested labor dispute, held lawful on the grounds that it was not coercive to customers or affected retailers).
- 66.
See Capitol-Hustings Co., 252 NLRB 43,45 (1980) enforced 671 F.2d 237 (7th Cir. 1982).
- 67.
304 U.S. 333 (1938).
- 68.
See Richmond Recording Corp. v. NLRB, 836 F.2d 289, 293 (7th Cir. 1987).
- 69.
See Ray et al. (2014), Section 9.05.
- 70.
See Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); Belknap v. Hale, 463 U.S. 491 (1983).
- 71.
See Ray et al. (2014), Section 9.06.
- 72.
An employer wishing to lock out its employees must file appropriate notices with state and federal mediation agencies as required by 29 U.S.C. 158(d) and observe statutory waiting periods.
- 73.
See Ray and Cameron (2016).
- 74.
380 U.S. 300 (1965).
- 75.
171 NLRB 801,803 (1968).
- 76.
280 NLRB 597 (1986) enforced sub nom. Local 825 IUOE v. NLRB, 829 F.2d 458 (3d Cir. 1987) It was this decision, required by neither the statute nor by Supreme Court precedent, that made the offensive lockout into such a powerful employer weapon. Even though employees express a willingness to continue to work without a contract while negotiations continue, the Harter Equipment ruling permits an employer to send them out, creating great hardships for employees and their families, while continuing to run its own operations and suffering little disruption. See Ray and Cameron (2016).
- 77.
29 U.S.C. 185.
- 78.
The parties may or may not be represented by attorneys. Attorney representation is not legally required, but management is often represented by an attorney. The union is often represented by a union official but sometimes unions use attorneys as well. At the hearing, the advocate will be accompanied by a management or union official and any needed witnesses. Sometimes, the union team will also include members of the union grievance committee, bargaining unit employees who help the union determine which grievances to take to arbitration. Their presence provides a link between arbitration and the work floor.
- 79.
Although the arbitrator may allow the parties to present evidence a court would not, concepts of relevance, credibility, reliability and first-hand knowledge will be used in filtering and evaluating submitted evidence and reaching a decision. Arbitrators will often err on the side of admitting weak evidence at hearing to ensure that each party feels it has had a fair hearing, an important consideration because arbitration can affect the union-employer relationship and workplace morale.
- 80.
363 U.S. 564 (1960).
- 81.
363 U.S. 574 (1960).
- 82.
363 U.S. 593 (1960).
- 83.
484 U.S. 29 (1987).
- 84.
532 U.S. 504 (2001).
- 85.
Of course, the employer must establish that there has been a violation of the no-strike pledge. See Engelhard Corp. v. NLRB, 437 F.3d 374 (3d Cir. 2006) (no strike clause not violated by employees’ off-duty picketing demonstration outside shareholders meeting because there was no suspension of work).
- 86.
NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939) There are exceptions to this unprotected status. If employees strike to protest serious unfair labor practices by the employer, even during the term of the agreement, they can be protected. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956) In addition, a work stoppage due to abnormally dangerous work conditions is also protected. Section 502 of the NLRA, 29 U.S.C. 143, provides that “the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work … . (shall not) be deemed a strike.”
- 87.
See Complete Auto Transit v. Reis, 451 U.S. 401 (1981).
- 88.
913 F.2d 544 (8th Cir. 1990) Damages were based on evidence of lost profits. The employer had operated with replacements during the strike but suffered lower production. If the collective bargaining agreement gives the employer the right to file grievances, the damages issue may be resolved through arbitration before a neutral arbitrator rather than by a court.
- 89.
398 U.S. 235 (1970).
- 90.
Courts will apply a presumption of arbitrability.
- 91.
The cause of the strike must be an issue that could have been arbitrated. If it is not, the injunction will be denied. See Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (1976) (Union honoring the picket line of another union may, depending on the language of the no-strike clause, violate the agreement but any violation is not caused by an underlying arbitrable dispute and no injunction can issue.).
- 92.
In 2016, the public sector employed approximately 20 million persons. The private sector, by contrast, employed more than 115 million persons. See BLS News Release (2016), Table 3.
- 93.
See BLS News Release (2016).
- 94.
In New York, for example, unions represented 25.2% of workers in 2016 and Connecticut, New Jersey, and Rhode Island had rates above 15%. In the Midwest, Illinois, Michigan, and Minnesota had rates above 15%. In the West, Alaska, California, Nevada, Oregon, and Washington had representation rates between 15 and 20%. See BLS News Release (2016), Table 5.
- 95.
As a labor arbitrator and mediator, I have had the privilege to be involved, in one way or another, in hundreds of negotiations, mediations, and arbitrations. I have observed experienced negotiators and advocates create solutions that benefit both sides by showing respect for the process and for those on the other side. Experienced parties realize they are part of a continuing relationship and that future relations and morale can be harmed by overly aggressive adversarial conduct. They know that they can learn through good listening and, although firm in their resolve, can often achieve their goals through well designed compromises that preserve employee morale and, through it, increase productivity. Most disputes arising under a grievance and arbitration procedure, for example, are settled by union and management short of arbitration aided by the positive atmosphere created in negotiations.
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Ray, D.E. (2019). The United States. In: Liukkunen, U. (eds) Collective Bargaining in Labour Law Regimes. Ius Comparatum - Global Studies in Comparative Law, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-030-16977-0_23
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