👔Employment Law Unit 8 – Unionization & Collective Bargaining

Key Concepts and Definitions

• Collective bargaining involves negotiations between an employer and a group of employees to determine conditions of employment, such as wages, hours, and benefits
• A labor union is an organization that represents the collective interests of workers in negotiations with employers
• Exclusive representation means a union that wins the support of the majority of workers in a bargaining unit is the sole representative for all workers in that unit
• A bargaining unit is a group of employees with similar interests who are represented by a union in collective bargaining
• Unfair labor practices are actions taken by employers or unions that violate the National Labor Relations Act (NLRA)
• A strike is a work stoppage by employees to put pressure on an employer during a labor dispute
• Picketing involves union members patrolling outside a workplace to publicize a labor dispute or persuade others to support the union's cause
• Lockouts occur when an employer temporarily closes a workplace during a labor dispute to put pressure on the union

Historical Context of Labor Unions

• Labor unions emerged in the late 19th century as a response to poor working conditions and low wages during the Industrial Revolution
• The American Federation of Labor (AFL) was founded in 1886 and focused on organizing skilled workers in craft unions
• The Congress of Industrial Organizations (CIO) was formed in 1935 and organized workers in mass production industries like steel and automobiles
• The AFL and CIO merged in 1955 to form the AFL-CIO, which remains the largest federation of unions in the United States
• Landmark legislation such as the National Labor Relations Act (1935) and the Fair Labor Standards Act (1938) established legal protections for workers and unions
• Union membership peaked in the 1950s, representing about 35% of the workforce, but has declined steadily since then
• The rise of globalization, automation, and the service economy has posed challenges for traditional union organizing in recent decades

Legal Framework for Unionization

• The National Labor Relations Act (NLRA) of 1935 is the primary federal law governing labor relations in the private sector
• The NLRA guarantees employees the right to organize, join unions, and engage in collective bargaining with their employers
• It also prohibits certain unfair labor practices by employers, such as interfering with union activities or discriminating against employees for union membership
• The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the NLRA and overseeing union elections and unfair labor practice charges
• The Taft-Hartley Act of 1947 amended the NLRA to prohibit certain union practices, such as secondary boycotts and closed shops
• The Landrum-Griffin Act of 1959 regulated internal union affairs and required unions to hold secret ballot elections and file financial reports
• State laws may also regulate labor relations, particularly in the public sector or in industries not covered by the NLRA (agriculture, domestic service)

Union Formation Process

• Employees who wish to form a union typically begin by contacting a union organizer or signing union authorization cards
• If at least 30% of employees in a proposed bargaining unit sign cards, the union can petition the NLRB to hold a secret ballot election
• The NLRB determines the appropriate bargaining unit based on factors such as shared job duties, supervision, and working conditions
• The employer and the union may agree on the bargaining unit, or the NLRB may hold a hearing to resolve any disputes
• If a majority of employees in the bargaining unit vote in favor of the union, the NLRB certifies the union as the exclusive representative for collective bargaining
• The employer is then required to bargain in good faith with the union over terms and conditions of employment
• If the union loses the election, it must wait at least one year before seeking another election in the same bargaining unit

Collective Bargaining Basics

• Collective bargaining is the process by which unions and employers negotiate the terms of a contract governing employment conditions
• The resulting agreement, known as a collective bargaining agreement (CBA), is legally binding on both parties for a specified period (usually 1-5 years)
• Mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment
• Permissive subjects, such as union security clauses or management rights, may be bargained but are not required
• Illegal subjects, such as closed shops or discriminatory provisions, cannot be included in a CBA
• The bargaining process typically begins with each side presenting its initial proposals and then negotiating to reach a compromise
• If the parties reach an impasse, they may use economic weapons such as strikes or lockouts to pressure the other side
• Once a CBA is ratified by the union membership and signed by both parties, it becomes a legally enforceable contract

Negotiation Strategies and Tactics

• Distributive bargaining involves negotiating over fixed resources, with each side seeking to maximize its share at the expense of the other
• Integrative bargaining seeks to find mutually beneficial solutions that expand the available resources or create value for both sides
• Unions may use tactics such as pattern bargaining (negotiating similar contracts with multiple employers) or whipsawing (playing employers against each other) to gain leverage
• Employers may use tactics such as surface bargaining (going through the motions without intending to reach an agreement) or hard bargaining (making aggressive demands and concessions) to pressure the union
• Both sides may use economic weapons such as strikes, lockouts, or slowdowns to put pressure on the other side during negotiations
• Mediation involves a neutral third party who facilitates communication and helps the parties reach a voluntary agreement
• Arbitration involves a neutral third party who hears evidence and arguments from both sides and issues a binding decision to resolve the dispute

Rights and Responsibilities of Employers and Unions

• Employers have the right to manage their business operations, hire and fire employees, and set workplace policies
• However, they must bargain in good faith with the union over mandatory subjects of bargaining and cannot make unilateral changes to employment conditions
• Employers cannot discriminate against employees for union activity, threaten or coerce them to discourage union support, or promise benefits to encourage them to reject the union
• Unions have the right to organize employees, bargain collectively on their behalf, and engage in concerted activities such as strikes or picketing
• However, they must fairly represent all employees in the bargaining unit, regardless of union membership or support
• Unions cannot engage in secondary boycotts (pressuring neutral employers to stop doing business with the primary employer) or jurisdictional disputes (competing with other unions over work assignments)
• Both employers and unions have a duty to provide relevant information to the other side during bargaining and to administer the CBA fairly and consistently

Impact on Employment Relationships

• Collective bargaining can lead to higher wages, better benefits, and improved working conditions for unionized employees compared to non-union workers
• Union contracts often include grievance procedures that provide due process protections for employees facing discipline or termination
• Seniority provisions in union contracts may limit management flexibility in hiring, promotions, and layoffs
• Union work rules and job classifications may restrict the ability of employers to assign work or introduce new technologies
• The adversarial nature of labor-management relations can sometimes lead to increased conflict, reduced productivity, or resistance to change
• However, some studies have found that unionized workplaces have lower turnover, higher morale, and better communication between workers and management
• The overall impact of unions on employment relationships depends on factors such as the industry, the bargaining power of each side, and the quality of the labor-management relationship

Current Trends and Challenges

• Union membership has declined from a peak of 35% in the 1950s to about 10% of the workforce today, with only 6% of private sector workers unionized
• Factors contributing to this decline include globalization, automation, the shift to a service economy, and increased employer resistance to unions
• Public sector unions have higher membership rates (around 35%) but face challenges from budget pressures and efforts to limit collective bargaining rights
• Some unions have sought to organize workers in emerging industries such as technology, healthcare, and the gig economy, but face resistance from employers and legal obstacles
• Alternative forms of worker organization, such as worker centers and advocacy groups, have emerged to address issues facing non-union workers, particularly low-wage and immigrant workers
• Recent legal developments, such as the Supreme Court's Janus decision (prohibiting mandatory union fees for public sector workers) have posed challenges for union finances and membership
• Unions have also faced political challenges, with some states passing "right-to-work" laws that prohibit mandatory union membership or fees as a condition of employment
• The COVID-19 pandemic has highlighted the importance of worker safety and the role of unions in advocating for protective equipment, paid leave, and other measures