A Primer on American Labor Law, 3rd Edition
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The third edition incorporates a number of significant developments that have taken place since These include new precedent under the Railway Labor Act covering both railroads and airlines , the expansion of wrongful discharge litigation which has become increasingly important as the unorganized sector of the work force continues to expand , new forms of protection against discrimination afforded by the Americans with Disabilities Act of and the Civil Rights Act of , the consent decree between the U.
Department of justice and the International Brotherhood of Teamsters, and the continued success of unions representing professional athletes. William B. Gould IV is Charles A. An impartial arbitrator of labor disputes since , he is a member of the Clinton Administration's Committee on the Future of Worker-Management Relations.
Additional Product Features Dewey Edition. His rather frequent use of comparative law materials is much more than a display of his erudition: It is a potential guide to the solution of vexing problems. Show More Show Less. Pre-owned Pre-owned. And it would have been impossible to produce this work without the ex- tremely valuable and skillful typing and organizational work of Clarie Kuball and Mary Enright.
The research for this book was supported by the Stanford Legal Research Fund, which was made possible by a bequest from the estate of Ira S. Lillick and by gifts from Roderick E. Hills and other friends of the Stanford Law School. American labor law and the American industrial relations system have a symbiotic relationship, and neither can be understood without reference to the other. This should come as no surprise; after all law, lawyers, and litigation play a major role in our society.
Our collective bargaining system has been devised predominantly by labor and management, however, not by the government and the courts. In fact we often forget—and foreign observers fail to grasp—that our most important tool in the resolution of labor disputes is our private arbitration system, which operates outside the formal legal system of courts and administrative agencies.
Before examining the history and substance of American labor law, then, let us begin with their impetus in the American industrial relations system: organized labor. As a result of the evolution of the industrial relations system in the United States, the unions have a remarkably different attitude toward law than, for instance, those in Britain.
This is not to say that American trade unions do not have a healthy and often well-founded distrust of lawyers; one can see this attitude manifested in countless ways. But the unions are not against the law here. And this is because the American unions—especially the industrial unions that emerged during the Great Depression of the s— obtained political power before industrial power. Trade unionism came late to the United States. The second major effort was by the American Federation of Labor AFL , initially led by Samuel Gompers, who espoused an approach to trade unionism that focused on what labor could achieve at the bargaining table.
At the turn of the century, the power and prestige of Gompers and of the AFL were being used on the behalf of skilled craftsmen organized on an occupational basis. They sought to organize and rep- resent production workers and skilled tradesmen under the umbrella of a new federation, the Congress of Industrial Organizations CIO , and they grew with the law. In Britain the unions had industrial power before political power, and so they used their position and strength to fend the law off and to keep it out of their affairs.
The Trades Disputes Act of was designed to create immunity in the courts for trade-union activities. For better or for worse, to this day the American trade unions continue to look to the law, and to the National Labor Relations Board in particular, for sustenance. Another important feature of the American industrial relations system is that it is again, by European standards a decentralized bargaining structure.
In Europe, particu- larly on the continent, the pattern is multiemployer or industry-wide bargaining. In Germany the primary function of the unions since World War II has been to bargain re- gional tariffs or agreements establishing a minimum rate for a geographical area of the country. In Sweden wage bar- gaining takes place on a centralized basis—initially between the Central Labor Federation LO and the Swedish Em- ployers Federation—and along industrywide lines with the involvement of the major industrial unions. In all of these countries there is a local organization to represent employees, but the local entity usually does not possess nearly as strong a presence or as much contact with the national trade union as in the United States.
In Britain, shop stewards bargain for pay rates and sometimes for other. In Sweden there are local clubs roughly equivalent to American local unions that operate on a plant basis, but many plants are too small to have one. In the United States the percentage of eligible workers who are organized into trade unions is lower than the per- centages in Europe and Japan.
Most collective bargaining agreements in the United States are negotiated at the plant level, with the involvement of the local union. The agreements are relatively detailed and comprehensive. However, because most disputes are resolved at the lower steps of the process, the local is quite dependent on members of grievance committees, which are composed of full-time employees. Similarly the local depends for griev- ance processing on the shop stewards, who are also full-time employees involved in a vital function on behalf of the union.
So far we have only considered locals that are organized on a single-plant basis. General unions are somewhat exceptional in the United States; the best example is the International Brotherhood of Teamsters, the largest American union which does, however, have a base in one industry: trans- portation. The craft unions play a dominant role in its leadership and policy.
On the other hand, the United Brotherhood of Carpenters has with- drawn from the AFL-CIO and, contrary to the rest of or- ganized labor except the Teamsters, has been supportive of the policies of the second Bush Administration of Another important aspect of the American system is the wage consciousness of the trade unions.
In part this is thought to be attributable to the lack of class solidarity among many American workers. Traditionally, protection against dismissal without cause, and compensation of workers laid off or dismissed because of plant closure or the contracting out of work, have been addressed by collective bargaining in the United States. But recently a number of state courts, following the lead of the Supreme Court of California,9 have held that employers cannot dismiss employees without just cause, arbitrarily, or in bad faith. Some states have enacted legislation regulating plant closures and layoffs at- tributable to them.
Thus the number of subjects to be discussed and resolved through collective bargaining is considerably greater in the United States than in Europe and Japan. Without a welfare state system like those in Europe, and without paternalism like that in Japan, American unions must or should be active in their negotiations with management.
The appeals that the unions make to recruit workers cover many items. The American system encourages unions to push for more at the bargaining table. It encourages management to in- stall laborsaving devices to increase productivity a phe-. The decentralized system of bargaining and the wage-conscious behavior of unions also encourage American employers to resist union organizational activities.
Accordingly there are many more organizational and recognition disputes than in other industrialized countries. Anticipated labor costs and potential competition problems promote such resistance, which is in part responsible for the heavy caseload of the National Labor Relations Board NLRB.
A Primer on American Labor Law
Most of the more than 25, unfair labor practice charges per year13 that have been processed by the NLRB involve allegations of discriminatory discipline and discharge of workers, fre- quently during organizational campaigns. The NLRB is en- gaged in more litigation than any other federal agency. In Germany or Scandinavia a dispute can be resolved on an industrywide basis, and the parties are bound to the so- lution.
But in the United States essentially the same kind of dispute can come before the NLRB again and again be- cause different employers and workers see their situation as slightly different from that considered in an earlier deci- sion, and they are not bound by any adjudication or deci- sion on an association or industrywide basis. Moreover because most of the cases involve discipline or dismissal, they are essentially questions of fact, and no general rule can dispose of most of them.
The American industrial relations system has myriad characteristics. How has that come to be? In the United States and in Europe the Industrial Revolu- tion brought competition between employers for distant markets. This created an environment in which labor was increasingly treated as a raw material or a commodity, and it is therefore hardly surprising that a profound sense of dis- cord was generated between workers and their employers.
This historical development cannot be divorced from any consideration of industrial relations and labor law in the United States today. American and European workers sought to band together and to protect themselves against the attempts of business combinations, trusts, and monopolies to reduce labor costs. In the United States the law of conspiracy was criminal law, and indictments were obtained against combinations of workers trying to raise wages. The leading case in which the criminal conspiracy doctrine was applied was the Philadelphia Cordwainers case of What is to be the proper and appropriate sphere of interest for workers?
What could be regarded as a management preroga- tive with which employees could not interfere? How could prices of products be set safely if the workers were to wait until order books were swelled to capacity—when the time would be propitious—to put pressure on employers for higher wages?
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How could commercial contracts be negotiated in distant markets under such circumstances? These were but some of the issues raised in Cordwainers. Numerous judicial decisions in the nineteenth century made efforts by workers to improve their wages and working conditions through combinations an unlawful criminal con- spiracy. In a landmark decision heralded a new judi- cial approach to the control of union activity.
It rested upon an assessment of tactics, motive, and. In Hunt the court approved the closed shop, which requires a worker to join the union prior to employment, as a lawful objective. Said the Court: The manifest intent of the association is to induce all those en- gaged in the same occupation to become members of it. Such a purpose is not unlawful. It would give them a power which might be exerted for useful and honorable purposes, or for dangerous and pernicious ones.
If the latter were the real and actual object, and susceptible of proof, it should have been specially charged. Such an association might be used to afford each other assistance in times of poverty, sickness, and distress; or to raise their intellec- tual, moral, and social conditions; or to make improvement in their art; or for other proper purposes.
Labor Studies Journal
Or the association might be designed for purposes of oppression and injustice. An asso- ciation may be formed, the declared objects of which are innocent and laudable, and yet they may have secret articles, or an agree- ment communicated only to the members, by which they are banded together for purposes injurious to the peace of society or to the rights of its members.
Such would undoubtedly be a crimi- nal conspiracy, on proof of the fact, however meritorious and praiseworthy the declared objects might be. The criminal-conspiracy doctrine began to fall into disuse. But other legal theories were wed against the unions. This meant that a labor union was liable on the face of it in damages for losses sustained by virtue of a private wrong done to an- other party economic pressure through strikes and picket- ing by the union aimed at an employer.
But was the self-interest of the workers a legitimate pur- pose, or was a judicial balancing of competing economic interests workers, employers, and the public required? All too often the courts opted for the latter standard.
With no. Justice Oliver Wendell Holmes, dissenting from the decision, argued that patrolling did not necessarily carry with it the threat of un- lawful activity or bodily harm: There was no proof of any threat or danger of a patrol exceeding two men, and as of course an injunction is not granted except with reference to what there is reason to expect in its absence, the question on that point is whether a patrol of two men should be enjoined.
In order to test the correctness of the refusal to go further, it must be assumed that the defendants obey the express prohibition of the decree. Meanwhile, as the American Federation of Labor emerged beyond embryonic form, a new judicial weapon against the growth of trade unions was developed.
Its statu- tory basis was to be found in the Sherman Antitrust Act of Soon after its enactment, some employers argued that unions and their economic pressure achieved the same objectives and therefore vio- lated the statute. Restraint of trade had been attacked by the courts before the Sherman Act, but the approach taken was a judicial refusal to enforce contracts that, for instance, provided for the boycott of an employer departing from an industry practice or agreement on allocation of markets or prices.
The statutory scheme of the Sherman Act pro- vided that unlawful conspiracies could be attacked in the courts. At common law, proving restraint of trade required evidence of motivation to harm or re- strain others in the pursuit of their occupations. Lawlor,11 or Danbury Hatters as it became more pop- ularly known.
This case involved a secondary boycott en- gaged in by the United Hatters of North America, which had called a strike against the D. Loewe Company for the purpose of unionizing the company. The Supreme Court concluded that the antitrust laws applied to labor. The unions, and many others, felt that the statute had been interpreted improperly, inasmuch as organized labor was not the focal point of congressional debate that took place prior to the enactment of antitrust legislation.
What was particularly troublesome about the judgment was that the members of the union were individually and personally liable. The two key provisions of the Clayton Act were found in sections 6 and Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor. Section 20 stated that no restraining order or injunction should be granted by any U. A restraining order or an injunction is designed to force a person or entity to do something. Injunctions often had been—and still are—designed to force a union to stop striking, picketing, or engaging in other forms of economic pressure against the employer.
Because the statute did not limit restraining orders to disputes be- tween an employer and its employees, one might assume that secondary boycotts were not to be regarded as unlaw- ful. Deering,16 organized labor and Samuel Gompers received a rude surprise indeed. The union, which had as its goals a closed shop in which only union members could be employed, the eight-hour day, and the union scale of wages, called a strike at the factory. The Duplex company brought an antitrust action against the union for unlawful restraint of trade.
The Court stated that a distinction between a primary and a secondary boycott was material to the question of whether union conduct was immunized by virtue of the Clayton Act. But there is nothing in the section to exempt such an organization or its members from accountability where it or they depart from its normal and legitimate objects and engage in an actual combina- tion of conspiracy in restraint of trade.
Part and parcel of this view was that workers had suffered as a result of judicial involvement and that considerable confusion about the demarcation line be- tween lawful and unlawful union conduct had ensued. Indeed, the implications of Duplex were even more devastating than those of Danbury. This posed a considerable problem toward the end of the s. And the result of Duplex clearly was that the language of section 20 of Clayton was mere surplusage at best. United Mine Workers.
Particularly ominous in this regard was the above-noted availability of injunctive relief to employers as well as the government by virtue of the Clayton statute. Employers used this tool with increasing frequency in the s, encouraged by the sym-. Frankfurter and Greene have chronicled the many abuses that came to be associated with this aspect of the judicial process in their classic book The Labor Injunction.
What follows here is a brief summary of their study and the comments of other scholars. Generally the economic pressure was for the purpose of securing organization or some collective bargaining rela- tionship. Generalized orders fashioned by the courts prohibited any individual from striking and picketing on the grounds that irreparable harm harm that could not be compen- sated through a damage award would be caused to his or her employer. The injunction would be in the form of a temporary restraining order. A temporary restraining order, which can be dissolved after a period of time or converted into a permanent injunction restraining the strike, was rarely if ever reversed at the time that the permanent injunction was sought.
As Felix Frankfurter and Nathan Greene said:. The suspension of activities affects only the strikers; the employer resumes his efforts to defeat the strike, and resumes them free from the interdicted interferences. Moreover, the sus- pension of strike activities, even temporarily, may defeat the strike for practical purposes and foredoom its resumption, even if the injunction is later lifted. Choice is not between irreparable damage to one side and compensable damage to the other.
Improvident denial of the injunction may be irreparable to the complainant; improvident issue of the injunc- tion may be irreparable to the defendant. For this situation the ordinary mechanics of the provisional injunction proceedings are plainly inadequate. Beyond these problems was the fact that judges, without the presence of juries, often imposed contempt penalties in the same cases in which they had issued the injunction ini- tially.
All of this created an environment in which respect for the law and the judiciary, a critical prerequisite for a func- tioning modern democracy, was increasingly undermined. The concerns expressed by Justices Brandeis and Holmes in previous opinions became increasingly vexatious after the Duplex decision and the increased popularity of the labor injunction. Again, partly because of the efforts of Frank- furter and Greene, Congress was lobbied to reform the law.
Again, the proponents of reform were successful in ob-. But this time the legislative package was different. In the Norris-LaGuardia Act of , Congress attempted to learn from the past and to speak more unambiguously, and to protect the statute against a Duplex-type interpreta- tion. This objective was to be accomplished in a number of ways, foremost among them the broad declaration that ju- risdiction was to be denied to the federal courts in certain kinds of labor disputes.
Additionally the Norris-LaGuardia Act addressed an issue that had been a matter of controversy for some time in the. Though the law promoted the doctrine of freedom of association for all workers as a matter of public policy, it contained no machinery for implementing this freedom. Norris-LaGuardia was a laissez-faire approach to industrial relations, a strongly worded series of instructions to the federal courts to keep their hands off labor disputes be- cause they had made a mess of things by intervening in the past.
Their handling of labor disputes had been inexpert and insensitive to the concerns and expectations of workers in an industrialized society. The act represented a strong warning to the courts not to engage in dubious statutory in- terpretation so as to avoid what appeared to be the intent of Congress—a tactic in which many thought the Court had engaged in Duplex.
The theme of this statutory ap- proach, denial of jurisdiction to the courts, was consistent with laissez-faire. One major problem was left unresolved by Norris- LaGuardia, and another was soon to appear. The remedies, as well as injunctions, were available under the antitrust statues, but Norris-LaGuardia explicitly addressed the issue of injunctive relief alone. The second question related to the basic inequality between capital and labor in the United States in the early s.
Was it enough to simply reverse Duplex and deny the federal courts jurisdiction in labor disputes? Would it not be neces- sary to provide protection for organized labor, which had been confronted with company-dominated and company- assisted unions, company spies, the blacklisting of union members, surveillance, and other forms of harassment.
Hutcheson, which dealt with a government criminal prosecution against a union that had been engaged in a jurisdictional dispute over work assign- ments with another union. Justice Frankfurter, speaking for the Court, concluded that the Norris-LaGuardia prohibi- tions had broader scope than the denial of jurisdiction to federal courts in connection with injunctions. Said the Court: The Norris-LaGuardia Act removed the fetters upon trade union activities, which according to judicial construction [section] 20 of the Clayton Act had left untouched, by still further narrowing the circumstances under which the federal courts could grant injunc- tions in labor disputes.
There- fore, whether trade union conduct constitutes a violation of the Sherman Law is to be determined only by reading the Sherman Law and [section] 20 of the Clayton Act and the Norris-LaGuardia act as a harmonizing text of outlawry of labor conduct. Therefore, where the courts were denied jurisdiction in labor disputes for the purpose of injunctive relief, they were also restricted in connection with criminal prosecutions and damage actions designed to suppress the kinds of union activity at which Norris- LaGuardia was aimed.
What then was the range of activity that would be im- mune from antitrust law? The test, said the Court, was one of self-interest. The second major break with the past took place three years after the passage of Norris-LaGuardia. The National Labor Relations Act of forms the basis of legal regulation of collective bargaining in the private sec- tor. The past few years have seen a substan- tial rise in litigation claiming violation of maximum hour standards. Only one of these efforts has been successful. During the s other federal legislation referred to in chapter 11 was enacted.
State legislatures have enacted their own laws in this area, and sometimes their minimum wage is in excess of federal requirements. Thirty-two of the 50 states have no statutory vacation law whatsoever,12 and there is none at the federal level. This lack of mandatory vacation varies greatly from Europe, where countries such as Germany 24 days per year and France up to 30 days per year require employers to provide extensive paid vacation leave. Prior to the National Labor Relations Act, Congress had already provided for collective bargaining in the railroad industry through the Railway Labor Act of Constitution: article I, section 8.
This provision allows Congress to enact legisla- tion when it regulates commerce between the various states of the union. The constitutional theory upon which the statute is predicated is that statutory regulation of labor and management is necessary to diminish industrial strife that could disrupt interstate commerce. But by a 5—4 vote, in NLRB v. This came at a time when the Roosevelt administration was at- tempting to expand the Court in order to change the drift of. Congress had departed from the laissez-faire philosophy of Norris- LaGuardia, but it could not be said to be reviving traditional outside involvement and the potential for abuses associated with antitrust laws and the labor injunction—although the courts now had appellate jurisdiction over the Board.
The NLRB was one of a number of administrative agencies established under New Deal legislation promoted by the Roosevelt administration. The Wagner Act provided that employees were to be protected in their free choice to protest working conditions they deemed unfair, to organize into unions and select representatives, and to oblige man- agement to bargain in good faith with the union that rep- resented a majority of the workers in an appropriate group or unit.
As noted earlier, these rights were to be enforced through representational elections in which the majority would vote on which if any labor organization would rep- resent them and through unfair labor practice machinery through which the NLRB interprets the statute to deter- mine whether management or labor has engaged in unfair. In contrast with the administrative agencies that preceded it, the focus of the new board was on the development of a body of case law that would govern large portions of the re- lationship between labor and management. There are twelve such tribunals in the United States, and they are just below the Supreme Court in the judicial pyramid.
In the event that labor or management does not comply with an order enforced in the court, contempt proceedings which can result in civil and criminal penalties, although the latter are rarely in- voked take place before the circuit court and not the Board. Just as the Great Depression promoted the idea of self- organization among workers, both as a balance against big business18 and as a form of industrial democracy, so also the outbreak of strikes at the end of World War II—when the pent-up demands of labor manifested themselves in indus- trial warfare that disrupted a number of key industries— helped create an environment conducive to limitations on the rights of unions.
In addition to the rules relating to appropriate units, the organization of the National Labor Relations Board and the unfair labor practice provisions were altered. It cannot be regarded as prose- cutorial in the strict sense of the word because it cannot. Quite obviously, when one party has already completed its investigation and made a decision to proceed with an unfair labor practice proceeding, that party may be less than completely objective in subsequent adjudication of the case.
The members of the Board and the General Counsel are appointed by the president with the advice and consent of the Senate. The Taft-Hartley amendments, which imposed a variety of legal obligations upon unions, created a split between the General Counsel and the Board for unfair labor prac- tice cases because the authors felt that employers had been denied due process by a pro-union Board acting as prose- cutor, judge, and jury. If the hearing is held before the prosecutor who investigated and who has a stake in obtain- ing the conviction, fairness has been denied the accused.
This sense that the pendulum had swung too far toward labor in the period between and pervades other amendments that were made to the statute in and The amendments make it clear that collective bargaining agreements are contracts enforceable in court but that most allegations of unfair labor practices may be heard only by the Board and ulti- mately by the federal courts.
Unions and employers can pursue allegations of breach of contract in state or federal courts. Where Congress has the constitutional authority to legis- late, the federal law may be supreme—and state jurisdiction may be ousted completely—where Congress chooses. The supremacy of federal law springs from article VI of the U. The courts have fashioned a doctrine of pre- emption that is based on the Supremacy Clause and the Commerce Clause.
That is, even if the state courts interpret the very same National Labor Relations Act that Congress enacted, they may interpret it in a different way than the Board would. To be sure, there are exceptions to the preemption doc- trine. For instance, where a suit is brought for breach of collective bargaining agreements, the state retains jurisdic- tion even where the subject matter also involves an unfair labor practice. Cases involving the duty of fair representa- tion are another exception to the rule. The Court has also inferred congressional intent to confer regulatory authority upon the states when.
In part, the dis- inclination of a substantial number of Americans to protest this state of affairs is attributable to the preference by labor and management representatives especially the former for the supposed expertise of the Board and the unease many Americans have about judicial competence in labor matters, given the historical experience. Thus statutory provisions aimed at restricting labor have deprived what was in many instances a more hostile state judiciary of jurisdiction over labor—jurisdiction that could be devoted to restraining strikes, picketing, and other actions through damages and criminal prosecution.
The coverage provided by the National Labor Relations Act is narrow. Indeed collec- tive bargaining for public employees and legislation at the federal, state, and local levels protecting the right of the workers to join unions has become part of the American labor landscape. For example, although most states do not protect the right of farm workers to engage in collective bargaining, California has a comprehensive statute that is in many respects superior to the NLRA in the protection it affords to workers.
Amer- ican labor law has traditionally excluded large groups of workers from its coverage. Fuel Buyers Group, Inc. However, in Hoffman Plastic Compounds the Court has held that such workers are not entitled to back pay because it would operate as a magnet to undercut immigration laws. Nonetheless, some em- ployer conduct involving union or secondary activity is pro- tected under the Act. Bell Aerospace Company,61 has held that managerial employees who formulate and imple- ment company policy are also excluded from the bargain- ing unit.www.cantinesanpancrazio.it/components/wypahuse/38-controllare-il-cellulare.php
A Primer on American Labor Law, Fourth Edition
Such employees of course are not eligible to vote in NLRB-conducted elections. The decision, like Bell Aerospace, was by a vote of 5—4. This inability of the Court to perceive the need of a union or any society to have a collective bargain- ing model that promotes cooperation is disturbing indeed. Such an election is conducted by secret vote, and ballots are generally cast at the plant where the workers are employed. More than half of the workers who vote in the Board-conducted election must vote for the union if the employer is to be required to bargain with it.
There is no requirement of involvement in any particular industry or company, and the collective bargaining experience of an- other perhaps larger labor organization does not freeze out an organization that may seek to represent workers in the same industry. That is, once an organization re- ceives majority support in an appropriate unit, the em- ployer is under a statutory obligation to bargain with no other organization for the workers in that unit.
All workers covered by or included in the unit, whether they are mem-. In professional sports, where contracts allow for bargaining between employers and individual players, there are good examples of such special contracts between labor and man- agement. In , the Major League Baseball Players Association and Major League Baseball negotiated a new collective bargaining agreement that could restrain a further escalation of player salaries through the imposition of a tax on clubs with high payrolls.
A Primer on American Labor Law, 6th Ed. - Book, Whole - Stanford Law School
And even in sports it is the collective agreement that sets minimum salaries and addresses the question of when players become free agents so that they may bargain with other teams. Indeed the union representing soccer players in North America has had authority under its collective agreement to veto individual contracts.
The National Basketball Association was successful in imposing a more restrictive cap upon its players as a result of a lengthy lockout, which eliminated a substantial portion of the — season. Appropriate Unit What is an appropriate unit of workers? The principal forum for collective bargaining in the United States is an appropriate unit of workers established at the plant. But the statute and numerous decisions of the Board and the courts make it clear that an appropriate unit can be established at the company level and sometimes—where there is consent on both sides—on a multiemployer or industrywide basis.
The principal considerations that the Board and the courts use in determining what constitutes an appropriate unit are the following:. Very often the union will want a small unit. In such circumstances the employer generally wants the broader unit because of his or her interest in uniformity of practices and conditions of employment in all the facilities.
Under the administra- tive rules of the NLRB, for an election to take place, 30 percent of the employees within the appropriate unit must indicate that they want an election held to determine whether collective bargaining will exist. If the unit is a larger one, it will be unlikely that an election will be held at all because less than 30 percent of the workers will support an election. Today the NLRA precludes the Board from fashioning an appropriate unit on the grounds that the union has organized the employees in that particular area.
In the early days of the Act, such disputes arose out of the fact that manage- ment often favored craft unions because they were regarded as more conservative. The problem is particularly trouble- some in the United States because there are large numbers of both craft and industrial unions. In contrast, Britain and Australia are plagued with jurisdictional stoppages caused by proliferation of craft unions, and in Germany and Scan- dinavia industrial unions are dominant. In the United States craft unions are able to survive where the appropriate unit is fashioned on an occupational basis.
Conversely, a broader unit is more to the liking of the big industrial unions. Prior to in most such cases the NLRB did not permit workers to separate themselves from the broad group. The Taft-Hartley amendments reversed. Today the Board determines whether craftsmen will be granted a separate unit on the basis of the following factors:. The criteria above provide some notion of the kinds of problems that are involved in determining what constitutes an appropriate unit. They should also provide a bit of an appreciation of the changes that took place through the Taft-Hartley amendments, which were designed to protect employees against unions that sometimes run afoul of these interests.
Gen- eralized rule making allows for avoidance of detailed ad hoc appropriate unit determination which produces delays. Yet attempts by the Board in the s to utilize rule making in election cases that badly needed expedition and streamlining encountered enormous and successful politi- cal resistance. At a prehearing con- ference the regional director attempts to resolve the unit issue and the question of who is eligible to vote without a full hearing.
If he or she is successful, a consent agreement is signed by all parties. There are two kinds of consent agreements. Under the Wig. William Clegg. The Rule of Law. Tom Bingham. Trials of the State. Jonathan Sumption. Work Like a Woman. Mary Portas. Your review has been submitted successfully. Not registered? Forgotten password Please enter your email address below and we'll send you a link to reset your password. Not you? Forgotten password? Forgotten password Use the form below to recover your username and password.
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