Simple Labor Laws And Labor Relations Discussion 2

Table of Contents

Labor Laws

  Please read chapters three and four of the textbook. Upon completion, respond to the questions below:Are current labor laws capable of dealing with labor-management problems, or should they be abolished? If abolished, what should their replacements (if any) address?Submission Instructions: (

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Labor Laws

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Chapter Four

Union Structure and Government Employers and labor unions are governed differently. Employees are hired to perform tasks to accomplish employer-defined objectives. Most have little voice in choosing the objectives. These are determined by high- level managers who are monitored by owners or by boards of directors elected by shareholders or, in the case of public agencies, by their elected or appointed boards. Managers are responsible to their constituencies: a corporation’s owners or shareholders or a city’s voters. Union goals reflect member interests. Union leaders must be generally responsive to member desires in order to remain in office.

This chapter examines the organizational components, functions, and governance of unions and how these relate to and involve the member- ship. This chapter addresses the following major questions:

1. How is the union movement organized and governed? 2. What roles do local unions, nationals, and the AFL-CIO play? 3. How do national union organizational structures and internal politics

differ? 4. How has the union movement changed in response to declining


The U.S. labor structure has three distinct levels: the local union, the national union, and the labor federations. These are described in the fol- lowing sections.


Labor Laws

The local union represents employees in day-to-day dealings with the employer. Local union jurisdictions are defined along four major dimen- sions: (1) the type of work performed or the industry in which it is accomplished (craft and industrial jurisdictions), (2) a specified geo- graphic area, (3) the type of activity involved (organizing, bargaining, and

Chapter 4 Union Structure and Government 91

so on), and (4) the level of union government applying the jurisdiction. 1 A local’s constituency varies within these parameters. Many local unions operate in a specific municipality, represent workers in a single industry or trade, and frequently bargain with a single employer.

Examples include a relatively small unit (less than 100) of close-knit employees who work for a single employer, a large unit of employees from a mix of semi- or unskilled jobs who work for a single employer in one or more plants located in a single city, a skilled trade unit whose members work for many employers and whose employment changes frequently, and a unit whose members work for many different employers in different types of jobs. Units in these examples might typify a professional local, a manufac- turing company local, a building trades local, and a general local. 2

Local unions are most often chartered by and affiliated with a national union (e.g., a local union representing auto parts industry workers affili- ated with the United Auto Workers). Occasionally, local unions will directly affiliate with the AFL-CIO or remain independent. Independent locals form where employees of a particular employer (often within a single plant) organize without external assistance. Some independent unions predate the Wagner Act and are adaptations of company unions originally created with employer assistance, often to avoid representation by a local established by a national union.

A local union’s jurisdiction affects its size, constitution, officers, and organizational structure. A president, vice president, recording secretary, financial secretary, treasurer, and sergeant at arms, as well as trustees, are usually elected. Unless the local is large, these posts are part-time and usu- ally unpaid. Locals with over 1,000 members are likely to have full-time paid officers. Higher-level local union officers in larger units are generally granted leaves of absence by their employers to serve in the position. As local officers, they are responsible to their national unions and the local’s members, and they also remain attached to their employer. Only about one-third of current top-level officers got their positions by defeating an incumbent. Most were elected following a retirement or were appointed. Most presidents are able to successfully endorse a successor. About half of all local presidents who are full-time officers return to bargaining-unit jobs after they leave office. 3

Locals dealing with several employers often hire a business agent. Business agents ensure that contracts are being followed and refer members to available employment. They are most necessary where local members

1 J. Barbash, American Unions: Structure, Government, and Politics (New York: Random House, 1967). 2 G. Strauss, “Union Democracy,” in G. Strauss, D. G. Gallagher, and J. Fiorito, eds., The State of the Unions (Madison, WI: Industrial Relations Research Association, 1991), pp. 201–236. 3 M. J. Goldberg, “Top Officers of Local Unions,” Labor Studies Journal, 19, no. 4 (1995), pp. 3–23.

92 Labor Relations

work on a project basis and move between employers as work is finished on one project and becomes available on another. 4

Two major committees operate within most locals: the executive committee, which is made up of the local’s officers, and the grievance or negotiation committee. The executive committee establishes local policy; the negotiation committee reviews members’ grievances and negotiates with management over grievances and contract changes. Other committees deal with organizing and membership, welfare, recreation, and political action.

At the work-unit level, stewards are elected or appointed. Stewards police first-line supervisors’ compliance with the contract. Stewards rep- resent grievants to the employer. They collect dues and solicit participa- tion in union activities. Many collective bargaining contracts recognize the vulnerability of the steward’s advocative position by according it superseniority. Stewards are, by definition, the most senior members of the unit. Stewards often do not have experience representing employees before they assume their positions. Union training helps them learn their responsibilities, particularly understanding the goals of the union move- ment, understanding the contract, and communicating with members. 5 Stewards are activists. Most are involved in other organizations outside their jobs. They average about 12 years of job experience and about 5.5 years of steward experience. About half are appointed, and only about 25 percent are opposed in elections. 6 While stewards are union activists, union leaders are identified most closely with being grievance handlers or representatives who recognize their functional roles in the bargaining unit and operate using a rational perspective. 7 In order to be effective, stewards need to be well versed with regard to their legal rights and protections. 8

Labor Laws

Local Union Democracy Local union governance is like municipal politics in smaller cities. Elections usually generate only moderate interest. Incumbents are usually reelected unless the rank and file believes a critical issue has been mishandled. A local typically holds regular open business meetings. These meetings tend to be fairly mundane unless contract negotiations are approaching, and they deal mostly with reporting disbursements, communications, and pending grievances.

4 L. R. Sayles and G. Strauss, The Local Union, rev. ed. (New York: Harcourt Brace Jovanovich, 1967), pp. 2–5. 5 B. Broadbent, “Identifying the Education Needs of Union Stewards,” Labor Studies Journal, 14 (1989), pp. 28–45. 6 P. A. Roby, “Becoming Shop Stewards: Perspectives on Gender and Race in Ten Trade Unions,” Labor Studies Journal, 20, no. 3 (1995), pp. 65–82. 7 T. F. H. Chang, “Local Union Leaders’ Conception and Ideology of Stewards’ Roles,” Labor Studies Journal, 30, no. 3 (2005), pp. 49–71. 8 See also R. M. Schwartz, The Legal Rights of Union Stewards, 3rd ed. (Cambridge, MA: Work Rights Press, 1999).

Chapter 4 Union Structure and Government 93

Only a minority of members generally attend meetings. Smaller locals and those whose members are higher-skilled have higher attendance. Typical attendance rates vary between 1 and 33 percent. 9 Meetings to ratify contracts, discuss contract demands, and elect officers usually have the highest attendance rates.

Low attendance raises questions about the breadth of support and democracy of unions. Local member involvement seems low given that the union represents the members’ collective bargaining interests. Local union democracy is manifested in the way factions combine into coalitions around certain issues. It is also demonstrated by contested and occasion- ally close elections for major offices. Local union democracy is highest in newer, small locals. Elections tend to be closer in larger units with more specialized jurisdictions, where management is not viewed as hostile and the election does not involve an incumbent. 10

Local unions are generally relatively democratic. Pressures by members to handle grievances and improve conditions require responses by union officers. But if management is intransigent, the pressure to maintain a united front may lead to suppression of dissent. 11

Functional Democracy Are local unions run democratically? If democracy requires two or more relatively permanent opposition factions, the answer is generally no . But if democracy demands only that leaders respond to individuals and groups, the answer is generally yes . Local constitutions require elections of officers and limited terms. Further, the Landrum-Griffin Act requires local elec- tions at least once every three years. Finally, under exclusive representa- tion requirements, the union must apply the terms of the contract equally to all bargaining-unit employees.

Labor Laws

Democratic operation requires individual commitment to union activity. While most members believe their union works to their benefit, many were not involved in its founding and may view the union primarily as their agent in employment matters. In return for dues, many members expect the union to relieve them of the effort and details involved in regulating the employment relationship. What members may want is representation in return for their dues, not participation and involvement in the union.

In unionized employment, an individual is simultaneously an employee and a union member. In the functional democracy of employment, the parties are the employer and the union. 12 Union members are entitled to

9 Sayles and Strauss, Local Union, p. 97. 10 J. C. Anderson, “A Comparative Analysis of Local Union Democracy,” Industrial Relations, 17 (1978), pp. 278–295. 11 Sayles and Strauss, Local Union, pp. 135–147. 12 N. W. Chamberlain and D. E. Cullen, The Labor Sector, rev. ed. (New York: McGraw-Hill, 1971), pp. 194–196.

94 Labor Relations

due process under two sets of rules: (1) the local’s constitution and (2) the labor contract. Each is administered by separate sets of officials—the local constitution by the executive board and the contract(s) by the negotiation committee(s). An internal check-and-balance system ensures that the con- tract meets union standards and is administered fairly for all bargaining- unit members. 13

Figure 4.1 depicts the idea of dual governance. Assume a local includes three bargaining units in an open-shop industry. Three separate con- tracts are administered by three negotiation committees. All local union members vote for the local’s officers. Each bargaining unit’s union mem- bers vote on their contracts. The shaded area represents workers who are both union and bargaining-unit members, while nonunion employees outside the local circle belong only to the bargaining unit, are represented, but have no vote for officers or on contracts.

13 A. H. Cook, “Dual Governance in Unions: A Tool for Analysis,” Industrial and Labor Relations Review, 15 (1962), pp. 323–349.

BU 3 BU 1

BU 2

Local 777

Bargaining-unit boundaries

Local union boundary

FIGURE 4.1 Dual Governance in Unions

Chapter 4 Union Structure and Government 95

Local unions are probably less electorally democratic than govern- mental units. This may not be a problem because union members gener- ally are interested in similar types of outcomes, view the union as their agent, and evaluate it on the outcomes produced rather than the ideo- logical stand of a faction. 14 Members generally do not feel a need to be “protected” from their union; on the contrary, they worry about manage- ment. Depending on the issue, if members are concerned about a lack of democracy, they can oust the leadership, turn down contracts, or vote to decertify. Legal safeguards are usually sufficient to require responsive- ness, if not two-party democracy, and that appears to be enough for most members.

Unfortunately, there are cases in which corrupt local officers entrench themselves in power, buttressed by support or inattention from their par- ent national. A study of Teamsters Local 705 in Chicago, which was placed under trusteeship while the federal government was overseeing the Team- sters, revealed a variety of methods that effectively eliminated democracy in the local. These included a requirement that all questions to be raised during union meetings be submitted in writing in advance, the president’s ability to shut off a speaker’s microphone, and inconvenient meeting times for member attendance. After these problems were remedied, the union became more militant in representing members’ grievances and negotiating contracts with employers. 15 On the other hand, the executive leadership of another union in a declining labor market was paralyzed by excessive rank-and-file exercise of democratic initiatives. 16

The local union is not usually an autonomous, freestanding organiza- tion. It most often owes its existence to, and almost certainly must comply with, the directives of a parent national, unless it is directly affiliated with the AFL-CIO or an independent.

Independent Local Unions Independent local unions (ILUs) represent employees of a single employer and are not affiliated with a national or the AFL-CIO. Most ILUs were started in the 1920s under welfare capitalism or in the early 1930s follow- ing passage of the National Industrial Recovery Act (NIRA). Following the National Labor Relations Act (NLRA), many ILUs affiliated with the AFL or the CIO and some were disestablished by the National Labor Relations Board (NLRB).

14 Sayles and Strauss, Local Union, p. 141. 15 R. Bruno, “Democratic Goods: Teamster Reform and Collective Bargaining Outcomes,” Journal of Labor Research, 21 (2000), pp. 83–102. 16 R. W. Hurd, “Professional Employees and Union Democracy: From Control to Chaos,” Journal of Labor Research, 21 (2000), pp. 103–116.

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ILUs might be started in the face of an organizing drive and are gener- ally more conservative than a national affiliate. “Strong” ILUs pressure management short of striking and often threaten to affiliate with a national to put pressure on the employer. During the 1940s, ILUs often were far less racially discriminatory than nationally chartered locals. 17

Wages of ILU members are about the same as those of employees belonging to affiliated locals. 18 ILUs may be more effective in represent- ing local interests, but they have less bargaining power than affiliated locals that can act together during contract negotiations in multifacility operations.


National unions originally established jurisdictions over workers in specific crafts, industries, or other job territories. Many have members in Canada as well as in the United States. As noted in Chapter 2, the (inter)national union is the unit in which primary authority is vested within the union movement. Most local unions are chartered by a parent national, and many local activities are constrained or must be approved by the national body.

In 2005, there were 61 national unions with more than 10,000 members, of which 42 were affiliated with the AFL-CIO. A little over 7 million mem- bers are in nationals affiliated with the AFL-CIO. About 5.6 million belong to unions that formed the Change to Win (CTW) federation. The 33 largest unions each have more than 100,000 members. Over half of all members belong to the 5 largest national unions. Large differences exist in represen- tation rates between the states, with 26.1 percent unionized in New York and only 2.3 percent organized in South Carolina. 19 Table 4.1 lists national unions with 100,000 or more members in 2005.

Most national unions are full-time operations. Officers are full-time unionists. Departments are established and staffed with appointed and hired specialists. Most elect officers at their conventions, which are legally required to meet at least every five years. Delegates are chosen by each local and sent on a per capita basis, or they are national union officials and field representatives. The union convention is similar to a political con- vention. If the national leadership can appoint many delegates, its chances of staying in office are greatly enhanced.

17 S. M. Jacoby, “Unnatural Extinction: The Rise and Fall of the Independent Local Union,” Industrial Relations, 40 (2001), pp. 377–404. 18 S. M. Jacoby and A. Verma, “Enterprise Unions in the United States,” Industrial Relations, 31 (1992), pp. 137–158. 19 C. D. Gifford, Directory of U.S. Labor Organizations (Washington, DC: Bureau of National Affairs, 2006), pp. 1–3.

Chapter 4 Union Structure and Government 97

National Education Association 2,731,000

Service Employees 1,703,000

State, County, and Municipal Employees 1,350,000

Teamsters 1,350,000

Food and Commercial Workers 1,339,000

Teachers 829,000

Electrical Workers 705,000

Laborers 693,000

Auto Workers 655,000

Machinists 610,000

Communications Workers 546,000

Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers


Carpenters 524,000

UNITE HERE 441,000

Operating Engineers 339,000

National Postal Mail Handlers 357,000

Plumbers and Pipe Fitters 324,000

Letter Carriers 292,000

Fire Fighters 271,000

Postal Workers 227,000

Government Employees 227,000

Amalgamated Transit 181,000

United American Nurses 149,000

Sheet Metal Workers 144,000

Painters 129,000

Iron Workers 125,000

Transport Workers 125,000

Classified School Employees 109,000

Screen Actors 108,000

Bakery, Confectionery, Tobacco Workers and Grain Millers 107,000

Rural Letter Carriers 105,000

Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts


Mine Workers 101,000

TABLE 4.1 National Unions with More than 100,000 Members, 2005

Source: Adapted from C. Gifford, Directory of U.S. Labor Organizations: 2006 Edition (Washington, DC: Bureau of National Affairs, 2006), p 4.

98 Labor Relations

National Union Goals National unions have two major goals: (1) to organize an increasing num- ber and share of the labor force and (2) to provide representation services to enhance member well-being. These goals are obviously interrelated. Organizing success depends to an extent on the visible success the union has had in representing employees, because successful representation depends on organizing a group of employees that can exert bargaining power on the employer.

National unions formed for economic reasons. U.S. industry became more national as transportation facilities developed, and local bargaining power declined as a result. Nationals exert greater pressure on employers and assist locals during difficult periods in which they might not survive on their own. Especially during the formation of industrial unions, the power of a national to negotiate similar economic bargains across employ- ers in an industry enhanced gains over what could be negotiated at the local level. Support and control are thus lodged in nationals.

National unions have their own goals. But what common elements help predict what each might do? Unions consist of members who expect services and permanent employees who supply them. Members decide whether they want continued representation by comparing contract out- comes and services received from their union with those available from alternative sources (other unions or nonunion human resource depart- ments). Union leaders want unions to grow to enhance their power and stability and to promote bargaining power within an industry. Elected leaders and appointed full-time unionists need membership approval to retain their posts. Thus, leaders might be expected to focus on organizing, while members probably prefer a focus on services for present members first. Unions in highly organized industries spend a smaller proportion of their resources on organizing than do unions where lower union penetra- tion exists. 20

The economic environment in which organized labor participates has changed markedly over the past 25 years. Sometimes it is more difficult for nationals than for locals to recognize the magnitude of change and the need to respond and adapt to it. Nationals often have less knowl- edge about actual workplace experiences than do locals, are buffered from pressures to change given their overall financial stability, and have difficulty implementing organizationwide change due to their decen- tralized and political nature. 21 As established manufacturing industries with excess production capacity have pursued cost cutting through

20 R. N. Block, “Union Organizing and the Allocation of Union Resources,” Industrial and Labor Relations Review, 34 (1980), pp. 101–113. 21 T. Fitzpatrick and W. Waldstein, “Challenges to Strategic Planning in International Unions,” Proceedings of the Industrial Relations Research Association, 46 (1994), pp. 73–84.

Chapter 4 Union Structure and Government 99

globalization and work design changes to enhance productivity, there is increasing competition both between and within companies, leading to the possibility of locals competing with each other to retain work. This is a major problem for national unions in promoting solidarity and pattern bargaining. 22

National Union Strategies and Planning National unions vary in their interests and capabilities to adapt and inno- vate. A study of national unions found that planning for change was posi- tively related to the use of environmental scanning techniques, effective structuring of management and administrative activities, and larger size, while it was negatively related to democratic structures. 23

Some nationals develop strategic plans. 24 Figure 4.2 displays a union strategic planning model. Nationals that put more effort into planning devote more resources to organizing, participate in corporate campaigns, and form political action committees. 25 Education, budget- ing, and political action are the most frequent topics of long-range plan- ning. Support from the national’s president, the use of consultants, and representing employees in the service or utility industries are related to plan implementation. 26

Within the workplace, there is essentially no market for employment representation since, if there is no union, the employer must unilater- ally determine employment outcomes without negotiating with employee subgroups (otherwise, an unlawful employer-dominated labor organiza- tion would be created) and, if a union is present, the negotiated labor agreement determines the rules that will cover all employees. One critic has argued that eliminating the exclusive representation and majority- rule requirements for unionization would create a competitive market for employee relations services. If antitrust regulations were relaxed, even for-profit organizations might decide to offer employee relations services to groups of employees across several employers. 27

22 D. Wells, “Labour Markets, Flexible Specialization and the New Microcorporatism,” Relations Industrielles, 56 (2001), pp. 279–304. 23 J. T. Delaney, P. Jarley, and J. Fiorito, “Planning for Change: Determinants of Innovation in U.S. National Unions,” Industrial and Labor Relations Review, 49 (1996), pp. 597–614. 24 C. L. Scheck and G. W. Bohlander, “The Planning Practices of Labor Organizations: A National Study,” Labor Studies Journal, 15, no. 4 (1990), pp. 69–84. 25 K. Stratton and R. B. Brown, “Strategic Planning in U.S. Labor Unions,” Proceedings of the Industrial Relations Research Association, 41 (1988), pp. 523–531. 26 Y. Reshef and K. Stratton-Devine, “Long-Range Planning in North American Unions: Preliminary Findings,” Relations Industrielles, 48 (1993), pp. 250–265. 27 S. Estreicher, “Deregulating Union Democracy,” Journal of Labor Research, 21 (2000), pp. 247–264.



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Chapter 4 Union Structure and Government 101

National Union Jurisdictions National unions have traditionally operated as either craft or industrial unions. Craft unions formed the AFL, and industrial unions formed the CIO. Craft and industrial jurisdictional boundaries blurred as AFL and CIO unions competed for members before their merger and as craft and industrial employment patterns changed.

Most of the largest U.S. nationals organize broadly. The Teamsters originally organized transportation and warehouse employees outside railroads. Now, more than half of Teamster members work in occupa- tions and industries with no primary relationship to transportation. The National Education Association (NEA) represents both public and private schoolteachers at primary, secondary, and postsecondary educa- tional institutions. The United Auto Workers has expanded its organizing to nonteaching employees in colleges and universities, freelance writers, and legal service workers. The American Federation of State, County, and Municipal Employees organizes in many occupations across a broad spectrum of nonfederal public and private nonprofit employers. The International Brotherhood of Electrical Workers began as a craft union but has successfully organized in electrical equipment manufacturing. Where employment in traditional jurisdictions declines, union leaders push for expanding jurisdictions.

National Structure National unions grow and survive through organizing and maintaining their locals. Their ability to obtain and maintain membership depends on their effectiveness in dealing with environmental characteristics such as employers’ resistance to unionization, changing industrial and occu- pational employment levels, and existing laws and regulations and their enforcement. Employment patterns result from the ultimate demand for goods and services and the quantity and quality of the labor supply. Unions have virtually no control over the former, and they have only lim- ited control over the latter unless they provide employee training, as in the building trades. 28

In turn, these environmental factors influence the goals of the union movement. Some of these goals can be realized internally (workplace goals) through collective bargaining, while others require public policy changes (external goals). The goals and services important to union members influence the strategies chosen and the organizational structures created to deliver them. Among the strategies, collective bargaining, legislative

28 J. Fiorito, C. L. Gramm, and W. Hendricks, “Union Structural Choices,” in G. Strauss, D. G. Gallagher, and J. Fiorito, eds., The State of the Unions (Madison, WI: Industrial Relations Research Association, 1991), pp. 103–138.

102 Labor Relations

enactment, mutual insurance (the availability of aid to local unions dur- ing confrontations with employers), and confrontation (strikes, etc.) are blended to react to employer initiatives and to advance union agendas. 29 Figure 4.3 displays a model of the determinants of union organizational structures.

National union organizational structure is influenced by two factors: the service demands of members and the bargaining structures that have evolved with employers where the union represents employees. As the bargaining structures change, union organizations change with them. To demonstrate these relationships and differences between national unions, profiles of the UAW, Machinists, Operating Engineers, Teamsters, and AFSCME unions are presented next.

29 Ibid.

FIGURE 4.3 A Model of the Key Determinants of Union Organizational Structure

Source: J. Fiorito, C. L. Gramm, and W.E. Hendricks, “Union Structural Choices,” in G. Strauss, D. G. Gallagher, and J. Fiorito, eds., The State of the Unions (Madison, WI: Industrial Relations Research Association, 1991), p. 106.

External Characteristics of bargaining partners Legal environment Product market characteristics Political environment History

Goals/Service Workplace goals External goals

Union Performance

Strategies Collective bargaining Legislative enactment Mutual insurance Confrontation

Structure Vertical structure Horizontal structure Bargaining structure

Chapter 4 Union Structure and Government 103

The United Auto Workers The United Auto Workers (UAW) originally organized workers in the fabrication and assembly of autos and trucks, airplanes, construction and agricultural equipment, and associated parts suppliers. Besides its original jurisdiction, it now organizes nonprofessional workers in higher education. As of 2007, it had 640,000 employed members in 800 locals, along with 500,000 retired members. Prior to 1980, the domestic industry was highly concentrated (i.e., few manufacturers accounted for most of the production); however, both manufacturing and brand con- centration has decreased markedly, with less than half of U.S. car sales belonging to U.S.-based companies. In 1980, virtually all U.S.-made automobiles were assembled by four companies: American Motors, Chrysler, Ford, and General Motors. Since then, BMW, Honda, Hyundai, Mazda, Mercedes, Mitsubishi, Nissan, and Toyota have opened U.S. assembly plants; Chrysler acquired American Motors, merged with Daimler-Benz in 1998 to form DaimlerChrysler, and was sold by Daim- lerChrysler to Cerburus Capital Management in 2007. Through 2007, the only foreign-owned U.S. auto plants that are unionized are those that were started as joint ventures with a domestic partner. As the U.S.-based companies’ share of the domestic market has declined, the proportion of auto workers represented by the UAW has also shrunk substantially. Additionally, with the passage of the North American Free Trade Agree- ment, U.S. companies opened new assembly plants in Mexico while closing older U.S. plants.

To best serve members in a consistent manner across the major man- ufacturers, the UAW established national departments. Because U.S.- based domestic automaker production facilities were virtually 100 percent unionized, these departments concentrated on representation rather than organizing activities. Figure 4.4 shows the UAW’s organization at the national level.

National departments are the line portion of the organization. This is where national-local interfaces occur. Each national department has a council consisting of delegates from that department’s locals. In turn, the councils form subcommittees based on common interests of the members, such as seniority and work rules. Subcommittees designate members to take part in the national negotiation council from that department.

Staff departments provide information for the national departments and assist locals through the UAW’s international representatives. Besides having a “product-line” approach in its national departments, the UAW is also broken into geographic regions based on the concentration of UAW members in a given area. Regional staffs conduct organizing drives and assist remote locals or those not closely affiliated with national departments in negotiation, administration, and grievance handling. Regional staffs may also have experts in such areas as health and safety or industrial engineering.

104 Labor Relations

National Collective Bargaining Departments

Departments Reporting to the President

Departments Reporting to the


Other Departments

General Motors Arbitration Accounting Conservation and Resource Development

Ford Community Action Auditing Consumer Affairs

DaimlerChrysler National CAP (Political Action) Circulation Organizing

Aerospace Civil Rights Purchasing and Supply Recreation and Leisure-Time Activities

Agricultural Equipment Community Services Strike Insurance Time Study and Engineering

Competitive Shop/ Independents, Parts and Suppliers

Education Technical, Office and Professional


Heavy Trucks Government and International Affairs


Transnationals and Joint Ventures

Health and Safety

Technical, Office and Professional

Information Systems

Skilled Trades Legal


Public Relations and Publications


Research Library

Retired Workers

Social Security

FIGURE 4.4 Organizational Structure of the UAW

Source: Adapted from information on, August 7, 2007.

National Departments

Regional Staffs

Regional Directors



Vice Presidents

Executive Board

Staff Departments

Chapter 4 Union Structure and Government 105

The centralized organizational makeup of the UAW is largely a function of employer concentration of its active membership and the level at which economic bargaining occurs. However, as automakers close older, less efficient plants, local economic concessions may be traded for job security, necessitating more concern by the UAW for local bargaining issues.

The International Association of Machinists and Aerospace Workers The International Association of Machinists and Aerospace Workers was founded in a railroad locomotive pit in Atlanta in 1888 and affiliated with the AFL in 1895. Over time it expanded its jurisdiction by establish- ing metal trades and railway employees departments, admitting auto mechanics, organizing some occupations in the airline industry, and cre- ating an electronics department. Many aerospace industry workers are represented by the Machinists.

The international has several conferences and departments (related to industries in which the Machinists represent or are attempting to organize workers). There are also several staff departments that provide services to the national, locals, and members. Figure 4.5 depicts the union’s current departmental structure. The union’s membership peaked in 1968 at over 1 million members. About 730,000 currently belong.

The International Union of Operating Engineers The International Union of Operating Engineers represents primarily heavy-equipment operators, mechanics, and surveyors in the construc- tion industry and stationary engineers who operate equipment in building and industrial complexes. It also represents a broad group of health care workers and public employees. There are about 170 locals, most of which cover a relatively large geographic territory, particularly in construction. It has about 400,000 members and is the 12th-largest union in the AFL-CIO. 30 Many of the union’s services are provided at the local level, particularly through joint union-employer apprenticeship programs.

The International Brotherhood of Teamsters The Teamsters’ Union is the closest to a general union of any in the United States. After its expulsion from the AFL-CIO in 1960, it broadened its jurisdiction from trucking and warehousing to cover all workers. The mergers of several smaller nationals, such as the Brewery Workers, into the Teamsters made it the dominant union within several industries. The Teamsters reaffiliated with the AFL-CIO in 1987, but it left again in 2005 to take part in forming the Change to Win coalition. In 2007, it had 1.4 million members. 31

30, August 7, 2007. 31, August 7, 2007.

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Given the Teamsters’ early background and the local or regional nature of the trucking industry in general, bargaining and organizing are decen- tralized. The executive board includes the general president, the general secretary-treasurer, and 22 vice presidents. Some of the vice presidents are also international directors of Teamster area conferences. There are 16 trade divisions and departments: airline; carhaul; brewery and soft-drink workers; building material and construction trade; dairy; freight; indus- trial trades; motion picture and theatrical trade; newspaper, magazine and electronic media workers; parcel and small package; port; public services trade; rail; tankhaul; trade and convention centers; and warehouse. The national also has a number of staff departments to deliver services to members and to promote the formation of new bargaining units. Figure 4.6 depicts its organizational structure.

The Teamsters’ Union has about 500 local unions and 38 local joint councils. The joint councils are semiautonomous bodies that administer activities among affiliated locals. In areas where there are three or more

Industries Union Networks Aerospace Automotive Government Employees Transportation Woodworkers

High Performance Work Organization Partnerships Organizing Trade and Globalization

Collective Bargaining Resources Safety Collective Bargaining Corporation for Re-employment and Safety Training Communications Safety and Health Legal Politics and Legislation Strategic Resources Winpisinger Education and Technology Center

People Finances Apprenticeship Community Services/Retirees Employment Services Department Human Rights Scholarships Women

Accounting General Secretary Treasurer’s Office Grand Lodge Auditors Information Systems

Support Staff Bylaws and Internal Disputes Engineering and Housekeeping Human Resources Membership Records Purchasing/Stock Room/Duplicating/Mailing

FIGURE 4.5 Departmental Structure of the Machinists

Source: Adapted from, August 7, 2007.

Chapter 4 Union Structure and Government 107

FIGURE 4.6 Organizational Structure of the International Brotherhood of Teamsters


Building Support Services

& Security

Legal Department

Government Affairs

Communications Department


Field Action

Economics & Contracts

Strategic Research & Campaigns

Retiree Affairs

Safety & Health

Trade Divisions

Affiliates & Automated Records

Accounting & Budgeting

International Audits & Affiliates Financial Reports

Information Systems

Investments & Pension Administration (TAPP, RFPP)*

* Teamster Affiliate and International Employee Pension Plans

Member Benefits

Out-of-Work Benefits


General President Executive Assistant

General Secretary- Treasurer Executive Assistant

Human Resources

Teamster Travel

IBT Members

IBT Convention

General Executive Board

Training & Development

Human Rights Commission

Affiliate Bookkeeping System

Capital Strategies


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locals, a joint council is established to coordinate activities among the locals. Each local is required to belong to a joint council and must get council permission to sign a contract or to strike. Each joint council is indirectly controlled by the executive branch. Thus, much of the grassroots organizing and representation activity is initiated or controlled at the joint council level.

The Teamsters have had a long history of difficulty with the federal government. Presidents in the 1950s and 1960s such as Dave Beck and James R. Hoffa were forced to resign for a variety of federal offenses related to using their leadership positions for personal advantage. In the 1980s, the federal government imposed an external trustee following the conviction of Roy Lee Williams, then general president, for gang- related activities. Ron Carey, an insurgent leader, was elected president following the end of federal control. However, in late 1997, he was ruled ineligible to succeed himself as a result of money-laundering activities surrounding his election campaign. James P. Hoffa, the son of a former president, succeeded him.

The American Federation of State, County, and Municipal Employees The American Federation of State, County, and Municipal Employees (AFSCME) is an industrial-type union organizing public employees outside the federal government and employees in private, nonprofit public service organizations. The union is led by its president and sec- retary- treasurer, who are elected by its biennial convention. They are joined by 31 international vice presidents. At the regional level, there are 61 councils that are responsible for coordinating bargaining and political activities among locals in their regions.

AFSCME’s structure reflects the fact that its members are employed in a variety of governmental jurisdictions and bargain under many different laws. Unlike most industrial unions, AFSCME does not require the nation- al’s approval of local contract settlements. The decision to strike is also handled at the local level. All locals are expected to affiliate with one of the regional AFSCME councils, which are operated within jurisdictions relat- ing to the bargaining laws associated with the occupations represented.

Services provided by the national include research, legislative, legal, organizational, educational, public relations, and other activities. 32 AFSC- ME’s federal nature results from the fact that its affiliated locals bargain with public employers operating under a myriad of collective bargaining laws that may apply differently to various occupations within the same jurisdiction.

32, August 7, 2007.

Chapter 4 Union Structure and Government 109

AFSCME expends between 10 and 33 percent of its total budget on lob- bying and other political activities. 33 Job security issues are particularly important to the union. Since most of its members are employed in the public sector, the ability to influence legislators and elected county and municipal officials is particularly important to its survival and growth.

National-Local Union Relationship National unions charter locals, provide services, and usually require that locals obtain permission to ratify contracts or strike, thereby reducing the possibility of competition between locals and increasing the discipline of locals when necessary to pressure a large national employer.

Service to locals, especially from industrial unions, is provided by interna- tional representatives, who are usually individuals recruited and appointed by national union officers from local officer positions or activists interested in a union career. National unions may hire staff from other unions, 34 creat- ing career mobility opportunities for staff experts. Large differences exist among unions in the intensity of services their professional staff members provide. 35 More intensive staff services would be expected in situations where the union is attempting to gain or protect consistent standards among employers in a given industry. The ratio of staff to members in most national unions has increased recently. Some of this has occurred naturally, as union membership has fallen faster than reductions in national staff positions. Administrative efficiency is reduced as a result, but greater staff intensity may allow the national to better serve member interests. However, increases in staff may also tend to perpetuate oligarchical practices. 36

During the past 20 years major restructuring has taken place in many manufacturing establishments in which national unions and their affili- ated locals represent employees. National unions that are more effective in helping locals deal with ongoing workplace restructuring generally are those with broad representational coverage that educate and train leaders on new workplace issues, devote resources to research on new workplace practices, use multiple communication channels, and restructure local union representation. 37

33 M. F. Masters, “AFSCME as a Political Union,” Journal of Labor Research, 19 (1998), pp. 313–349. 34 P. F. Clark and L. S. Gray, “The Management of Human Resources in National Unions,” Proceedings of the Industrial Relations Research Association, 44 (1992), pp. 414–423. 35 P. F. Clark, “Organizing the Organizers: Professional Staff Unionism in the American Labor Movement,” Industrial and Labor Relations Review, 42 (1989), pp. 584–599. 36 P. F. Clark, “Professional Staff in American Unions: Changes, Trends, Implications,” Journal of Labor Research, 13 (1992), pp. 381–392. 37 A. C. Frost, “Creating and Sustaining Local Union Capabilities: The Role of the National Union,” Relations Industrielles, 56 (2001), pp. 307–333; see also a symposium on technological effects on unions and employment in a variety of industries, Journal of Labor Research, 23, no. 4 (2002).

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National Union Headquarters Operations International representatives, unlike many local union officers, are full- time union employees. Their major responsibilities involve organizing nonunion employers in industries or occupations in which the national union has an interest, providing assistance to employees interested in organizing, and assisting local unions in negotiating contracts and pro- cessing grievances. International representatives are typically assigned to regional staffs and may be responsible for a number of locals. Inter- national representatives implement consistent policies across employers and provide expertise and presence where locals are relatively small, where local officers lack sophistication, and where the area is thinly organized.

Union clerical and professional employees frequently organize to col- lectively bargain with the leaders of the unions for which they work. Organized staff units are most common in larger industrial unions. Some unions have strongly opposed the organization of their staff members, while others have welcomed organizing attempts. Few unions have writ- ten human resource policies. 38 Staff unions generally bargain for the same types of employment issues that unions in general seek, but they seldom strike in support of their demands. 39

Newly elected national union officers may discharge permanent staff employees as long as doing so doesn’t interfere with the employees’ roles as union members, 40 but elected union officers are protected by Title I of the Labor-Management Reporting and Disclosure Act (LMRDA) and can- not be removed for expressing dissenting opinions. 41

Union administration has become more sophisticated as employers have increasingly opposed unionization and concession bargaining has increased. Unions rely on consultants more than they did in the past, and internal management is operated on a more businesslike basis. 42 Increas- ingly, national unions are adopting formal human resource and financial management practices, are less likely to require union membership as a prerequisite for hiring into staff positions, and are more likely to search for college graduates and persons with computer skills. 43

38 Clark and Gray, “Management of Human Resources in National Unions.” 39 Clark, “Organizing the Organizers.” 40 Finnegan v. Leu, 456 U.S. 451 (1982). 41 Sheet Metal Workers International Association v. Lynn, 488 U.S. 347 (1989). 42 For more details on union administration, see P. F. Clark and L. S. Gray, “Union Administration,” in G. Strauss, D. G. Gallagher, and J. Fiorito, eds., The State of the Unions (Madison, WI: Industrial Relations Research Association, 1991), pp. 175–200; and J. T. Dunlop, The Management of Labor Unions (Lexington, MA: Lexington, 1990). 43 P. F. Clark and L. S. Gray, “Changing Administrative Practices in American Unions: A Research Note,” Industrial Relations, 44 (2005), pp. 654–658.

Chapter 4 Union Structure and Government 111

National unions are extensive users of information technology (IT) and use it most frequently for internal administration and communications to members (such as through Web sites). Unions are also increasingly using financial analysis to craft contract demands and to track organizing tar- gets. 44 National and local unions are increasingly using IT to help develop virtual minority unions in nonunion firms, enhance democracy through online communications, provide services, and strengthen international cooperation. 45

National Union Governance and Politics National union governance can be grouped into four categories: (1) gov- ernance by rule (strong adherence to constitutions in determining rights and processes), (2) governance by meetings (frequent use of meetings to determine organizational direction), (3) governance by member opposi- tion (majority opposition controls leader direction), and (4) governance by countervailing power (limits on discretion resulting from significant ongoing organized potential opposition). Unions of the governance-by- rule type (e.g., the UAW) tend to be larger, operate in industries with a national product market, and have lower diversity in the types of workers they organize. 46

National unions are ultimately governed by their conventions, which establish broad policies, may amend their constitutions, and frequently elect officers. Member participation in national activities depends on how convention delegates are chosen and union officers are elected. Although national unions are required by law to hold conventions and elect offi- cers at least every five years, they differ greatly in the extent to which member involvement is sought and democratic ideals are applied to their operation.

National union democracy can be measured by the degree of control members have in the major decision-making areas unions face: contract negotiations, contract administration, service to members, union adminis- tration, and political and community activities. Members’ control in each area could range from complete autocracy to consultation, veto power, or full decisional control and participation. 47 Union members’ desire for

44 J. Fiorito, P. Jarley, J. T. Delaney, and R. W. Kolodinsky, “Unions and Information Technology: From Luddites to Cyberunions?” Labor Studies Journal, 24, no. 4 (2000), pp. 3–34; see also “Symposium: E-Voice: Information Technology and Unions,” Journal of Labor Research, 23 (2002), pp. 171–259. 45 W. J. Diamond and R. B. Freeman, “Will Unionism Prosper in Cyberspace? The Promise of the Internet for Employee Organization,” British Journal of Industrial Relations, 40 (2002), pp. 569–596. 46 P. Jarley, J. Fiorito, and J. T. Delaney, “National Union Governance: An Empirically-Grounded Systems Approach,” Journal of Labor Research, 21 (2000), pp. 227–246. 47 A. Hochner, K. Koziara, and S. Schmidt, “Thinking about Democracy and Participation in Unions,” Proceedings of the Industrial Relations Research Association, 32 (1979), pp. 16–17.

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democracy may be inferred through their level of participation in and their satisfaction with opportunities for involvement in union decision making. The Canadian Auto Workers have created a Public Review Board consisting of public figures who are not members of the union to hear and make binding rulings on the grievances of members regarding union governance issues. 48

Most national unions do not have two-party systems, but a union’s constitution affects the degree to which dissent may lead to a change in the union’s direction. Unions electing officers on an at-large basis among all the eligible voters (either as delegates or through a general referen- dum) are much less likely to be responsive to factional viewpoints than are unions that elect executive board members on a geographic basis. 49 In the Mineworkers and the Steelworkers (both of which have changed national general presidents because of internal dissent), regionally elected executive boards have served as springboards to national campaigns. If officers are elected by convention and if the delegates to the international convention include not only those selected at a local level but also officials appointed by the incumbent, then the chance of ousting the incumbent is virtually nonexistent. 50

Leaders of national unions generally come from union backgrounds. Their net worths are usually modest. Most have some post-high school education, but few are college graduates. Most joined unions because their employers had a union shop. Their union careers usually began in a local union position. Many had mentors, and most are very satisfied with union careers. 51

National Unions and Public Policy Representation aims at enhancing union members’ employment out- comes through collective bargaining. Unions also serve member needs by attempting to influence public policy. Some attempts are aimed at membership interests in particular industries, while others focus on improving outcomes for all members or an identifiable subgroup across industries. Union political activity will be examined in more detail in Chapter 5.

48 J. Eaton, “Union Democracy and Union Renewal: The CAW Public Review Board,” Relations Industrielles, 61 (2006), pp. 201–222. 49 S. Gamm, “The Election Base of National Union Executive Boards,” Industrial and Labor Relations Review, 32 (1979), pp. 295–311. 50 A. L. Fox II and J. C. Sikorski, Teamster Democracy and Financial Responsibility (Washington, DC: Professional Drivers Council for Safety and Health, 1976). 51 P. L. Quaglieri, “The New People of Power: The Backgrounds and Careers of Top Labor Leaders,” Journal of Labor Research, 9 (1988), pp. 271–284.

Chapter 4 Union Structure and Government 113


From the merger of the AFL and CIO in 1955 until the disaffiliation of several major national unions to form the Change to Win coalition in 2005, the AFL-CIO was the umbrella under which the large majority of the U.S. union movement gathered. While the number of union members who are in unions that affiliate with the AFL-CIO is now only about one-half of the total membership, a large majority of national unions continue to be affiliated. Since 2005, for the first time in 50 years, there is substantial com- petition within the union movement to determine its overall direction and mobilize working-class energies for organizing and political action.

The AFL-CIO provides an overall direction to its affiliated nationals and technical assistance to individual nationals. It also has a number of directly affiliated independent local unions. To be a member of the AFL-CIO, a national union must comply with the federation’s Ethical Practices Code, avoid dominance by nondemocratic ideologies, and agree to resolve interunion disputes using prescribed federation procedures. Article 20 of the AFL-CIO constitution provides for internal arbitration of disputes between unions. These disputes most often involve charges of one union’s attempting to organize a bargaining unit already repre- sented by another union (raiding). Historically, there have been about 30 cases of raiding a year, and arbitrators have found violations of Article 20 in about half of these cases. 52 With the formation of Change to Win, raids from them may increase in the future and will not be subject to internal adjudication.

The AFL-CIO simultaneously coordinates national union interests and directs state and city central-body activities. The quadrennial national convention consists of delegates who are apportioned to the conven- tion on the basis of national union size and are elected or appointed according to their national’s policy. Other delegates are sent by directly affiliated locals, state and city central bodies, and national industrial and trade departments. The convention amends the constitution, elects officers, and expresses official positions. The general board consists of the executive council, presidents of each affiliated national, and a repre- sentative from each constitutional department.

The ongoing business of the AFL-CIO is handled by the top executives, their staffs, and the constitutional departments. One set of constitutional departments—the eight trade and industrial departments—relates to jurisdictional interests of the national members: building and construc- tion trades, food and allied service trades, maritime trades, metal trades, professional employees, transportation trades, and union label and service

52 G. W. Bohlander, “Keeping the Peace: AFL-CIO’s Internal Dispute Plan, “Dispute Resolution Journal, 57, no. 1 (2002), pp. 21–27.

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trades. The staff portion of the organization consists of the standing committees and their equivalent departments, which include account- ing; civil, human rights and women’s rights; corporate affairs; facility management; field mobilization; general counsel; human resources; infor- mation technology; international affairs; legislation; meetings and travel; organizing; politics; public affairs; public policy; safety and health; and support services. Political activity and lobbying are major activities of the AFL-CIO. Many issues before Congress have potential direct and indirect effects on the labor movement.


In 2005, seven national unions left the AFL-CIO to form Change to Win (CTW). The impetus for the withdrawal and formation was a belief that the AFL-CIO had an insufficient commitment to organizing unrepresented workers, particularly those in low-paying jobs, and had been unsuccess- ful in implementing a revitalization strategy. 53 The exodus, ironically, was led by Andy Stern, the president of the Service Employees International Union—the same union from which had come Joseph Sweeney, who was the current AFL-CIO president and who had run on a platform emphasiz- ing organizing.

The seven unions took 6 million members from the AFL-CIO (more than half its membership) and instantly created an energized and more militant collective. The affiliated unions include the Teamsters (IBT), the Laborers (LIUNA), the Service Employees (SEIU), the Carpenters (UBC), the Farm Workers (UFW), the Food and Commercial Workers (UFCW), and UNITE HERE (the merged needletrades, textile workers, and hotel and restaurant workers).

The AFL-CIO has been financially and organizationally weakened by the defection of the CTW. The CTW strategic direction is strongly ori- ented toward organizing among workers who have not previously had effective representation, for example, janitors and maintenance work- ers, immigrant workers in industries that have been deunionized (e.g., meatpacking), nurses, and child care workers. CTW maintains that many potentially organizable employees will find its less adversarial approach with employers more appealing. 54

53 A. W. Martin, “Why Does the New Labor Movement Look So Much Like the Old One? Putting the 1990s Revitalization Project in Historical Context,” Journal of Labor Research, 27 (2006), pp. 163–185. 54 M. F. Masters and R. Gibney, “The AFL-CIO v. CTW: The Competing Visions, Strategies, and Structures,” Journal of Labor Research, 27 (2006), pp. 473–504; and for a pessimistic assessment, see S. Estreicher, “Disunity within the House of Labor,” Journal of Labor Research, 27 (2006), pp. 505–511.

Chapter 4 Union Structure and Government 115


In addition to its departments, the AFL-CIO has a direct relationship with almost 800 state and local central bodies. These bodies reflect the com- position of the parent AFL-CIO and the particular industrial mix of their geographic areas. The state and local centrals are directly responsible to the AFL-CIO, not to the nationals.

State and local central bodies are primarily involved in politics and lob- bying. Their positions in national elections must be consistent with those of the AFL-CIO. 55 Central bodies endorse state and local candidates and testify and lobby on local and state legislative proposals. The AFL-CIO consists predominantly of affiliated nationals, while state and local cen- trals involve local unions. Figure 4.7 shows the relationship of state and local central bodies to the AFL-CIO.

Overview of the Union Hierarchy Power in the labor movement clearly resides in the nationals, with locals and the federation deriving their authority from the nationals. Local unions are structured to handle the day-to-day activities of the member- ship. Much of their effort involves policing the contract and handling grievances.

A national union could be compared with the corporate staff division of a large company where policies are developed, actions are audited to ensure conformity to policy, new businesses are launched, and advice is given to generalists in plants (or locals) on specific issues. Although the

Affiliation Chartering

Local Union

International Unions

Local Central

State Central


FIGURE 4.7 The Relationship of State and Local Central Bodies to the AFL-CIO

Source: Adapted from J. G. Kilpatrick and M. C. Stanley, Handbook on Central Labor Bodies: Functions and Activities, West Virginia University Bulletin, series 64, nos. 4–6 (October 1963), p. 5.

55, August 7, 2007.

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convention ultimately governs the national, many presidents have broad powers to take interim actions and to influence the delegate composition of future conventions.

The AFL-CIO is similar to a trade association, a chamber of commerce, or a national association of manufacturers. It coordinates activities among the nationals and amplifies their voices. The federation’s prime functions are information, integration, and advocacy. Its greatest areas of autonomy relate to legislative and political processes.


A large number of corporate mergers and acquisitions have occurred in the recent past. Organizational change in the labor movement has mir- rored these activities, although hostile takeovers are not possible in the labor movement. Union mergers appear to take two forms: (1) absorption, in which a small or rapidly declining union becomes a part of a larger national 56 (e.g., the 450-member Window Glass Cutters League’s 1975 merger into the 80,000-member Glass Bottle Blowers); and (2) amalgama- tion, in which two unions of roughly equal size merge to form a new union (e.g., the 1979 merger of the 500,000-member Amalgamated Meat Cutters and Butcher Workers with the 700,000-member Retail Clerks to form the United Food and Commercial Workers). 57

Mergers are of three types: (1) symbiotic, in which two unions represent workers whose outputs are interdependent; (2) commensalistic, in which two unions competed to organize the same employees; and (3) scale, wherein a large union seeks to increase its efficiency or power. Symbiotic mergers prevail when unions are expanding membership, and commen- salistic mergers are more common during contraction. Merger activity increases during recessions. 58

Mergers duplicate national union officers and services unless staffs are consolidated. Symbiotic mergers are probably the easiest because the needs of the merged membership may have little overlap. Commensalis- tic mergers require agreements on the role of present union officers and the fate of local unions following the merger. Mergers are eased when few integration issues exist, such as where craft identities are preserved; the regional penetration of one union is great; important historical traditions

56 C. J. Janus, “Union Mergers in the 1970s: A Look at the Reasons and Results,” Monthly Labor Review, 102, no. 10 (1978), pp. 13–23. 57 G. N. Chaison, “Union Growth and Union Mergers,” Industrial Relations, 20 (1981), pp. 98–108. 58 J. Freeman and J. Brittain, “Union Merger Process and the Industrial Environment,” Industrial Relations, 16 (1977), pp. 173–185.

Chapter 4 Union Structure and Government 117


United Food and Commercial Workers (AFL-CIO) International Union of Life Insurance Agents (Ind.) United Food and Commercial Workers (AFL-CIO) Retail, Wholesale, and Department Store Union (AFL-CIO) United Paperworkers International Union (AFL-CIO) Allied Industrial Workers of America (AFL-CIO) Communications Workers of America (AFL-CIO) Union of Professional and Technical Employees (Ind.) United Electrical Workers (Ind.) National Industrial Workers Union (Ind.) Service Employees International Union (AFL-CIO) United Service Workers of America (Ind.)


International Brotherhood of Boilermakers (AFL-CIO) Stove, Furnace, and Allied Appliance Workers (AFL-CIO) Service Employees International Union (AFL-CIO) International Brotherhood of Firemen and Oilers (AFL-CIO) International Brotherhood of Electrical Workers (AFL-CIO) United Association of Office, Sales, and Technical Employees (Ind.) Communications Workers of America (AFL-CIO) National Association of Broadcast Employees and Technicians (AFL-CIO)


Amalgamated Clothing and Textile Workers Union (AFL-CIO) International Ladies’ Garment Workers Union (AFL-CIO) [formed Union of Needletrades, Industrial, and Textile Employees (AFL-CIO)] United Food and Commercial Workers (AFL-CIO) Distillery, Wine, and Allied Workers (AFL-CIO) Communications Workers of America (AFL-CIO) Newspaper Guild (AFL-CIO) United Steelworkers of America (AFL-CIO) United Rubber, Cork, Linoleum, and Plastic Workers (AFL-CIO) United Food and Commercial Workers (AFL-CIO) United Textile Workers of America (AFL-CIO)


United Food and Commercial Workers (AFL-CIO) International Chemical Workers Union (Ind.) International Brotherhood of Boilermakers (AFL-CIO) Metal Polishers (AFL-CIO)


International Association of Machinists (AFL-CIO) International Woodworkers of America (AFL-CIO) [formed International Association of Machinists and Woodworkers (AFL-CIO)] Aluminum, Brick & Glass Workers (AFL-CIO) United Steelworkers of America (AFL-CIO)


TABLE 4.2 Significant Union Mergers, 1993–2005

Note: Italicized union is the survivor.

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are preserved; leadership duplication problems are accommodated; and merged structures are based on strong individual union identities. 59 Union leaders see several benefits from merger, including increased power of the merged unions, greater strategic capability, greater pos- sibilities for growth, staff job security, and greater success possibilities for the leaders. 60 Union members favor mergers in situations where they


Bakery, Confectionery, and Tobacco Workers (AFL-CIO) Grain Millers (AFL-CIO) [formed Bakery, Confectionery, Tobacco Workers, and Grain Millers Union (AFL-CIO)] Oil, Chemical, and Atomic Workers (AFL-CIO) United Paperworkers International Union (AFL-CIO) [formed Paper, Allied Industrial, Chemical Workers (AFL-CIO)] Graphic Artists Guild United Auto Workers (AFL-CIO) International Association of Machinists and Woodworkers (AFL-CIO) National Federation of Federal Employees


Flint Glass Workers (AFL-CIO) United Steelworkers of America (AFL-CIO) International Brotherhood of Teamsters (AFL-CIO) Brotherhood of Locomotive Engineers and Trainmen (AFL-CIO)


Flight Attendants (AFL-CIO) Communications Workers of America (AFL-CIO) Union of Needletrades, Industrial, and Textile Employees (AFL-CIO) Hotel Employees and Restaurant Employees (AFL-CIO) [formed UNITE-HERE! (AFL-CIO)]


Graphic Communications International Union (AFL-CIO) International Brotherhood of Teamsters (then AFL-CIO, now CTW)

Brotherhood of Maintenance of Way Employees (AFL-CIO) International Brotherhood of Teamsters (then AFL-CIO, now CTW)

Paper, Allied-Industrial, Chemical and Energy Workers International Union (AFL-CIO) Steel Workers (AFL-CIO) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (AFL-CIO)

TABLE 4.2 Significant Union Mergers, 1993–2005 (continued)

59 G. N. Chaison, “Union Mergers and the Integration of Union Governing Structures,” Journal of Labor Research, 3 (1982), pp. 139–151. 60 K. Stratton-Devine, “Union Merger Benefits: An Empirical Analysis,” Journal of Labor Research, 13 (1992), pp. 133–143.

Chapter 4 Union Structure and Government 119

believe a merged union will improve their employment conditions and/ or the image of the union. 61 Table 4.2 shows major union mergers that occurred between 1993 and 2005.

A study of demographic characteristics and attitudes of a local union’s members who were voting on merging their independent union into a national found that votes for the merger were predicted by the per- ceived effectiveness of the merger, support for the merger by influential co-workers, and the importance of the independent union’s leadership’s recommendation for the merger. Negative votes were predicted by beliefs that dues would increase, the likelihood that strikes would increase, and the importance of the employer’s campaign against the merger. 62


Union finances are generally related to two different functions. The first involves the day-to-day operations of the union, and the second is asso- ciated with the fiduciary obligation of officers in some unions to the collection, trusteeship, and disbursement of pension and welfare benefits to members. The latter is usually found in craft unions or unions in which employers are too small or marginal to administer their own pension programs.

Three major sources of revenue are available to unions: dues from members; fees, fines, and assessments from members; and investment income. Dues and fees are collected at the local level. The nationals and the AFL-CIO levy a per capita tax on the locals. The current AFL-CIO per capita tax is 65 cents monthly; many nationals require locals to remit about 50 percent of dues for their operations. Dues vary widely among unions; some require a flat fee, while others scale fees to earning levels. For full- time workers, typical dues would be equal to about two to two and a half times the member’s hourly pay rate per month. The parent national usually sets minimum and maximum levels, and the local can adjust within those limits. Occasionally, an assessment is added to replenish or maintain strike funds. Most unions require an initiation fee, which is often waived for workers who become members following a successful organiz- ing drive. Initiation fees tend to be high in unions representing employees who frequently change employers, such as in construction, the performing arts, the maritime industry, and the like. In other situations, initiation fees

61 K. Devine and Y. Reshef, “Union Merger Support: A Tale of Two Theories,” Relations Industrielles, 53 (1998), pp. 517–534. 62 J. A. McClendon, J. Kriesky, and A. Eaton, “Member Support for Union Mergers: An Analysis of an Affiliation Referendum,” Journal of Labor Research, 16 (1995), pp. 9–24.

120 Labor Relations

tend to vary between about $30 and $100. Members in good standing who change unionized employers normally are not required to pay another initiation fee to their new local.

A union’s ability to service the workers it represents depends, to an extent, on the dues paid by members. As noted earlier in the discussion of functional democracy, all employees who are represented are not neces- sarily members. In federal government employment, union shop clauses cannot be negotiated. Further, unions cannot strike. Free riding by non- member federal employees approaches almost two-thirds of the number of employees represented by the American Federation of Government Employees and other federal sector unions. This has led to low solvency and the need to borrow money to cover operating expenses during certain periods. It has also probably reduced the effectiveness of the unions in bargaining and contract administration. 63

Financial Malfeasance The Landrum-Griffin Act, as well as state criminal codes, specifies a vari- ety of illegal financial transactions for labor unions. In 1998, Teamsters General President Ron Carey was barred from ever holding union office again as a result of money laundering that funneled funds to his reelection campaign in 1997. In general, national unions have been free of financial transgressions by their officers. And, given the large number of local and intermediate bodies that exist, there are relatively few instances of embezzlement in these organizations. One study found that during a two- year period between 1993 and 1995, 104 persons were convicted under the federal statute prohibiting embezzlement from unions. In general, losses tended to be under $25,000; the victimized unions were small in both membership and financial resources; and the perpetrators were most often male part-time officers who acted alone. 64

A broader study of incidents of union corruption collected by the U.S. Department of Labor enumerated 1,236 incidents with costs exceeding $1.42 billion. About half of the incidents and $117 million of the losses were associated with embezzlement and other financial malfeasance. Nonfinancial corrupt practices involved denial of due process and union democracy; campaign finance; and bribery, extortion, kickbacks, and the like. The magnitude of general corruption including mob ties,

63 M. F. Masters and R. S. Atkin, “Financial and Bargaining Implications of Free Riding in the Federal Sector,” Journal of Collective Negotiations in the Public Sector, 22 (1993), pp. 327–340. 64 A. L. Bowker, “Trust Violators in the Labor Movement: A Study of Union Embezzlements,” Journal of Labor Research, 19 (1998), pp. 571–579.

Chapter 4 Union Structure and Government 121

racketeering, and improper political contributions totaled almost $350 million. Pension malfeasance involved 65 instances, with a cost of $945 million. 65

Pension Administration Pension plans are frequently administered by craft and other unions when the size of employers is small or employment is transient. Craft union dues are greater than those in industrial unions, with a portion set aside for benefits. Other unions require that employers make a per capita payment, as in the National Master Freight Agreement with the Teamsters, which required a contribution of $9.29 per hour in 2003, ris- ing to $12.39 at the end of the contract in 2008, for health, pension, and welfare payments.

Administering pension programs has become an increasingly important issue for both union administrators and members. Union involvement has recently expanded with the voluntary employee ben- efits association (VEBA) established to handle UAW retiree health care benefits during the 2007 auto industry negotiations. More details on VEBAs will be covered in Chapter 9. The Employee Retirement Income Security Act of 1974 requires that pension administrators safeguard and prudently invest contributions made toward retirement. Certain invest- ment practices, such as risky or low-interest loans, are illegal. Invest- ments in an individual’s own organization are also largely precluded. Given equivalent expected returns, however, unions may channel financ- ing toward projects that will enhance employment of their members. For example, building trades unions may provide financing for housing projects and other activities that will require increased employment of building trades workers.

Summary Organized labor essentially has a three-tiered structure (local, national, and federation), with power concentrated at the second level. At the local level, the most typical structure is the single-employer bargaining unit. Multiemployer units are perhaps most common in the construction industry. National unions are of two major types—craft, representing workers in a specific occupation; and industrial, representing occupations in a specific industry. Recently, several large unions left the AFL-CIO to form Change to Win, roughly dividing the U.S. labor movement into two groups of about equal size.

Although the local is the workers’ direct representative, members’ inter- ests in internal affairs are generally low. They appear to view the union

65 A. J. Thieblot, “Perspectives on Union Corruption: Lessons from the Databases,” Journal of Labor Research, 27 (2006), pp. 513–536.

122 Labor Relations

Discussion Questions

as their employment agent and allow a cadre of activists to control its internal politics.

National union structures, particularly the industrials, adapt to both the breadth of their constituencies and the concentration within their indus- tries. For example, the UAW has a General Motors Department, while AFSCME has various state- or local-based councils.

Whether unions operate democratically depends on the definition of the term. Most do not have two-party systems, and many equate dissent with attempts to undermine union goals. On the other hand, local officers are elected directly, and international officials are chosen in a manner simi- lar to a presidential nominating convention. Unions introduce democracy into the work setting by requiring a bargaining contract. Within unions, the checks and balances initiated through their constitutions and contracts increase democracy and safeguards for members.

1. If you were recommending an organizational structure for a national union, what factors would you advise that it consider (industrial concentration, occu- pations it represents, etc.)?

2. Defend or attack the usual method of electing an international president (through local delegates and international staff members at the convention).

3. Should local unions have more control over the scope and terms of negotiated agreements, or should national unions still retain approval and veto power?

4. How should the union movement respond structurally to the increasing global- ization of business?

5. What would happen to the structure of the union movement if representation were deregulated and for-profit organizations could also represent workers?

6. Are the goals of the AFL-CIO and CTW basically identical, or is the new federa- tion a viable strategic alternative for revitalizing the labor movement?

Chapter 4 Union Structure and Government 123

Business agent, 91 Executive committee, 92 Negotiation committee, 92 Stewards, 92 Superseniority, 92 Functional democracy, 93 Dual governance, 94

Bargaining units, 94 Open shop, 94 National union, 96 International union, 96 Conventions, 96 Field representatives, 96 Corporate campaigns, 99 Political action committees, 99

National Education Association (NEA), 101 National departments, 103 American Federation of State, County, and Municipal Employees (AFSCME), 108 Central bodies, 115 Free riding, 120

Key Terms

Selected Union Web Sites

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Chapter Three

Employment Law and Federal Agencies This chapter covers federal law and federal agencies that regulate employ- ment, with particular emphasis on labor relations. The primary labor rela- tions laws include the Railway Labor Act, Norris-LaGuardia Act, Wagner Act (as amended by Taft-Hartley and later legislation), Landrum-Griffin Act, and Civil Service Reform Act. The chapter gives an overview of the statutes and major government agencies, as well as examples of the agen- cies’ organizational structures. This chapter also examines some of the effects of how laws are enforced by federal government agencies and how employees use protections granted by some employment laws.

In studying this chapter, keep the following questions in mind:

1. What specific types of activities are regulated? 2. In what areas have regulations been extended or retracted? 3. What employee groups are excluded or exempted from various

regulations? 4. How do administrative agencies interact with employers and unions in

implementing laws and regulations?


Statutory employment laws result from the interaction of the positions of a variety of interest groups in society. When a pluralistic coalition of interest groups emerges, the climate necessary for passage is created. 1 New laws or the amendment of existing laws requires the bonding of interest groups

1 For an extended and insightful treatment of the interaction between labor organizations and the state, see R. J. Adams,”The Role of the State in Industrial Relations,” in D. Lewin, O. S. Mitchell, and P. D. Sherer, eds., Research Frontiers in Industrial Relations and Human Resources (Madison, WI: Industrial Relations Research Association, 1992), pp. 489–523. See also W. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).

Chapter 3 Employment Law and Federal Agencies 61

around issues or agendas. As Chapter 5 will note, organized labor in the United States has been politically active in advocating laws that support unions and progressive social positions.

Current laws governing organizing and collective bargaining date back to 1926 when the Railway Labor Act was enacted. Since then, five other significant pieces of legislation have followed: Norris-LaGuardia (1932), Wagner (1935), Taft-Hartley (1947), Landrum-Griffin (1959), and the Civil Service Reform Act, Title VII (1978). Each was enacted to clarify and/or constrain the roles of management and labor. Table 3.1 lists each piece of major legislation and the areas of labor relations to which it applies.

Law Coverage Major Provisions Federal Agencies

Railway Labor Act Private sector nonmanagerial rail and airline employees and employers

Employees may choose bargaining representatives for collective bargaining; no yellow-dog contracts; dispute settlement procedures include mediation, arbitration, and emergency boards.

National Mediation Board, National Railroad Adjustment Board

Norris-LaGuardia Act All private sector employers and labor organizations

Outlaws injunctions for nonviolent labor union activities. Makes yellow-dog contracts unenforceable.

Labor Management Relations Act (originally passed as Wagner Act, amended by Taft-Hartley and Landrum-Griffin Acts)

Private sector nonmanagerial and nonagricultural employees not covered by Railway Labor Act; postal workers

Employees may choose bargaining representatives for collective bargaining; both labor and management must bargain in good faith; unfair labor practices include discrimination for union activities, secondary boycotts, and refusal to bargain; national emergency dispute procedures established.

National Labor Relations Board, Federal Mediation and Conciliation Service

Landrum-Griffin Act All private sector employers and labor organizations

Specification and guarantee of individual rights of union members. Prohibits certain management and union conduct. Requires union financial disclosures.

U.S. Department of Labor

Civil Service Reform Act, Title VII

All nonuniformed, nonmanagerial federal service employees and agencies

Employees may choose representatives for collective bargaining; bargaining rights established for noneconomic and nonstaffing issues. Requires arbitration of unresolved grievances.

Federal Labor Relations Authority

TABLE 3.1 Federal Labor Relations Laws

62 Labor Relations


The Railway Labor Act (RLA) applies to rail and air carriers and their nonmanagerial employees. The act has five general purposes:

1. Avoiding service interruptions. 2. Eliminating any restrictions on joining a union. 3. Guaranteeing the freedom of employees in any matter of self-

organization. 4. Providing for prompt dispute settlement. 5. Enabling prompt grievance settlement.

In railroads, train drivers, maintenance-of-way employees, conductors, ticket agents, shop workers, and others are covered, regardless of whether they are personally involved in moving passengers or freight. Similarly, airline pilots, cabin attendants, mechanics, reservation agents, baggage handlers, and others are covered. In 1996, the Federal Aviation Authoriza- tion Act brought air express companies, including their ground employees, under the RLA. FedEx was brought within RLA jurisdiction, but United Parcel Service (UPS) remained outside since FedEx is considered primarily an air express company while UPS is seen as primarily a ground carrier.

The RLA enables employees to choose, by majority vote, an organiza- tion to exclusively represent them for collective bargaining purposes. Under the RLA, employees within a given craft (or occupation) are entitled to be represented separately within their employers, and initial representation elections are held within a single defined occupational group. Unions or associations seeking to represent employees must be free of employer domination or assistance.

Majority representatives become the exclusive bargaining agent for the employees within the bargaining unit and are entitled to negotiate with the carrier over wages, terms, and conditions of employment. Negotiated contracts must contain a grievance procedure consistent with the require- ments of the RLA.

Contract negotiations under the RLA are substantially different than under other private sector and many public sector labor laws. Under the RLA, a contract remains in effect, even after its stated amendment date, until a new agreement is reached. Before a contract can be amended, written notice must be given 30 days before the intended changes would go into effect. At this point the parties begin negotiation activities. They may request assistance from the National Mediation Board (NMB) to help reach an agreement. The board may also offer its services without the request of the parties. No unilaterally imposed changes or strikes can occur (if a settlement is not reached) unless an impasse has been declared by the NMB. Only if the parties reject arbitration of their differences does the NMB release them to engage in “self-help.” Finally, if the president

Chapter 3 Employment Law and Federal Agencies 63

believes a work stoppage would substantially disrupt interstate com- merce, an emergency board can be convened to investigate the dispute and render a report. No changes or strikes can take place until at least 30 days after the completion of an emergency board’s report. Thus, relatively long periods often elapse between when negotiations start and when an agreement is reached. Presidential boards are not infrequent. President George W. Bush convened an emergency board in 2001 to deal with threat- ened strikes at both Northwest and United Airlines. Exhibit 3.1 covers his appointment of a board in the Northwest Airlines–Aircraft Mechanics Fraternal Association contract dispute in early 2001. (An agreement was reached before the board had completed its work.)

The National Railroad Adjustment Board (NRAB) and the NMB were created by the RLA. The NRAB consists of an equal number of union and management members and is empowered to settle grievances of both


Executive Order Establishing an Emergency Board to Investigate a Dispute Between Northwest Airlines, Inc., and Its Employees Represented by the Aircraft Mechanics Fraternal Association.

A dispute exists between Northwest Airlines, Inc. and its employees represented by the Air- craft Mechanics Fraternal Association.

The dispute has not heretofore been adjusted under the provisions of the Railway Labor Act, as amended (45 U.S.C. 151-188) (the “Act”).

In the judgment of the National Mediation Board, this dispute threatens substantially to interrupt interstate commerce to a degree that would deprive sections of the country of essen- tial transportation service.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, including sections 10 and 201 of the Act (45 U.S.C. 160 and 181), it is hereby ordered as follows:

Section 1. Establishment of Emergency Board (“Board”). There is established, effective

March 12, 2001, a Board of three members to be appointed by the President to investigate this dispute. No member shall be pecuniarily or otherwise interested in any organization of airline employees or any air carrier. The Board shall perform its functions subject to the avail- ability of funds.

Sec. 2. Report. The Board shall report to the President with respect to this dispute within 30 days of its creation.

Sec. 3. Maintaining Conditions. As provided by section 10 of the Act, from the date of the creation of the Board and for 30 days after the Board has submitted its report to the President, no change in the conditions out of which the dispute arose shall be made by the parties to the controversy, except by agreement of the parties.

Sec. 4. Record Maintenance. The records and files of the Board are records of the Office of the President and upon the Board’s termination shall be maintained in the physical custody of the National Mediation Board.

Sec. 5. Expiration. The Board shall terminate upon the submission of the report provided for in sections 2 and 3 of this order.


Exhibit 3.1

64 Labor Relations

parties. If the board deadlocks on a grievance, it obtains a referee to hear the case and make an award. Awards are binding, and prevailing parties may sue in federal district courts to enforce the awards. In reality, most disputes are handled by Public Law Boards and Special Boards of Adjust- ment, which involve ad hoc arbitrators or rotating boards of neutrals who hear and rule on deadlocked dispute cases.

The NMB is composed of three members appointed by the president. It handles representation elections, mediates bargaining disputes on request, urges parties to arbitrate when mediation is unsuccessful, interprets medi- ated contract agreements, and appoints arbitrators if disputing parties cannot agree on one.

Compared with later acts, dispute handling under the RLA is highly detailed. Subsequent laws generally leave this up to the parties. The RLA also requires that employees be organized by craft (or occupational area), thus forcing employers to bargain with several unions, often having conflicting goals. Over time, bargaining by craft has changed somewhat as mergers have formed new unions such as the United Transporta- tion Union (UTU) and the Transportation Communications International Union (TCIU). The TCIU constitutes a merger among employees in blue- and white-collar railroad and airline occupations.

There have been differences in the way the law has been implemented in the rail and airline industries. Intracontract disputes in the airline industry are arbitrated as they are in industries covered by the NLRA. In addition, contrary to the technical wording of the law, some railway supervisors, such as yardmasters, are represented by unions.


The Norris-LaGuardia Act was the first law to protect the rights of unions and workers to engage in union activity. The act forbids federal courts to issue injunctions (orders prohibiting certain activities) against specifically described union activities and outlaws yellow-dog contracts (in which employees agree that continued employment depends on abstention from union membership or activities). These contracts had been upheld previ- ously by the Supreme Court. 2 Since enactment, federal courts have strictly construed Norris-LaGuardia provisions.

The act recognizes that freedom to associate for collective bargaining purposes is the corollary of the collectivization of capital through incor- poration. Injunctions and yellow-dog contracts interfere with freedom of association. Besides the absolute prohibition of yellow-dog contracts,

2 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917).

Chapter 3 Employment Law and Federal Agencies 65

injunctions against specific activities are prohibited regardless of whether the act is done by an individual, a group, or a union. The following cannot be enjoined:

1. Stopping or refusing to work. 2. Participating in union membership. 3. Paying or withholding strike benefits, unemployment benefits, and the

like to people participating in labor disputes. 4. Providing aid or assistance for persons suing or being sued. 5. Publicizing a labor dispute in a nonviolent, nonfraudulent manner. 6. Assembling to organize. 7. Notifying anyone that any of these acts are to be performed. 8. Agreeing to engage or not engage in any of these acts. 9. Advising others to do any of these acts.

The Norris-LaGuardia Act also finally and completely laid to rest the 18th-century conspiracy doctrine. Section 5 prohibits injunctions against any of the above activities if pursued in a nonviolent manner. The effects of the Danbury Hatters decision 3 (which required that union members pay boycott damages) were substantially diminished by Section 6. That sec- tion mandates that an individual or labor organization may not be held accountable for unlawful acts of its leadership unless those acts were directed or ratified by the membership.

Section 7 ensures the act may not be used as a cover for violent and destructive actions. An injunction may be issued if:

1. Substantial or irreparable injury to property will occur. 2. Greater injury will be inflicted on the party requesting the injunction

than the injunction would cause on the adversary. 3. No adequate legal remedy exists. 4. Authorities are either unable or unwilling to give protection.

Before an action can be enjoined, the union must have the opportunity for rebuttal. If immediate restraint is sought and there is insufficient time for an adversary hearing, the employer must deposit a bond to compen- sate for possible damages done to the union by the injunction. Injunctions cover only those persons or associations actually causing problems.

Section 8 restricts injunction-granting powers by requiring that request- ers try to settle disputes before asking for injunctions. Section 9 forbids injunctions against all union activities in a case except those likely to lead to an injury. For example, mass picketing might be enjoined if it is violent; but the strike, payments of strike benefits, and so on could not be enjoined.

3 Loewe v. Lawlor, 208 U.S. 274 (1908).

66 Labor Relations

While the Norris-LaGuardia Act did not require that an employer rec- ognize a union or bargain with it, it provided labor some leverage in organizing and bargaining. Labor could, henceforth, bring pressure on the employer through strikes, boycotts, and the like without worrying about federal court injunctions.


The Wagner (1935) and Taft-Hartley (1947) acts were enacted 12 years apart, with Taft-Hartley amending and extending the Wagner Act. In 1959, the Landrum-Griffin Act added amendments. In 1974, jurisdiction was extended to and special rules were enacted for private nonprofit health care organizations. The acts establish a statutory preference for using collective bargaining to resolve conflicts in the employment relationship and for roughly balancing the power of management and labor. The Wagner Act, passed during a period of relative weakness for organized labor, only spoke to employer practices. As the pendulum swung in the other direction, Taft-Hartley added union practices to the proscribed list. Finally, Landrum-Griffin aimed to fine-tune the law to match day-to-day realities.

The heart of the Wagner Act (Section 7, as amended) embodies public policy toward the individual worker and collective bargaining. It reads:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3).

Defi nitions The act defines the terms employer, employee, supervisor, and professional employee.

Employer An employer is an organization or a manager or supervisor acting on its behalf. However, federal, state, and local governments or any organi- zation wholly owned by these agencies (except the U.S. Postal Service), persons subject to the RLA, and union representatives when acting as bargaining agents are excluded. Casinos owned and operated by Native American tribes that primarily employ and cater to non-Native Amer- icans are considered employers, while other Native American–governed

Chapter 3 Employment Law and Federal Agencies 67

ventures on reservation property are not. 4 Where a person is employed by a labor supplier who provides workers for an employer, that person cannot be included in a unit of permanent employees unless the supplied employer consents. 5

Employee An employee need not be an employee of an organization in which a labor dispute occurs. For example, if firm A is struck and employees of firm B refuse to cross picket lines, even though no dispute exists with B, the workers at firm B are considered employees under the act. A person remains an employee under interpretations of the act if he or she is on strike for a contract or on strike about or fired as a result of an unfair labor practice—even if the employer does not consider the person as such— until the person is rehired or reemployed at or above a level equivalent to his or her previous job. The following groups in the private sector are not considered to be employees for organizing purposes: domestic workers, agricultural workers, independent contractors, 6 individuals employed by a spouse or parent, 7 graduate research or teaching assistants employed by private universities 8 (but not research assistants employed by private research foundations of either public or private universities), 9 or persons covered by the RLA.

Supervisor A supervisor is an employee with independent authority to make person- nel decisions and to administer a labor agreement. Examples of personnel decisions include hiring, firing, adjusting grievances, making work assign- ments, and deciding pay increases. A supervisor may belong to a union (although this is unlikely outside the construction or maritime industries), but groups of supervisors may not organize and bargain collectively. The supervisory definition has been narrowed recently by two Supreme Court decisions to exclude professional employees who give work direction to nonprofessionals but do not have any of the other supervisory powers

4 San Manuel Indian Bingo and Casino, 341 NLRB 1055; enforced by U.S. Circuit Court of Appeals, D. C. Circuit, in San Manuel Indian Bingo and Casino v. NLRB, No. 05-1392 (2007); see also A. Wermuth, “Union’s Gamble Pays Off: In San Manuel Indian Bingo and Casino, the NLRB Breaks the Nation’s Promise and Reverses Decades-Old Precedent to Assert Jurisdiction over Tribal Enterprises on Indian Reservations,” The Labor Lawyer, 21 (2005), pp. 81–108. 5 H.S. Care L.L.C., d/b/a Oakwood Care Center and N&W Agency, Inc., 343 NLRB No. 76 (2004). 6 P.Q. Beef Processors, Inc., 231 NLRB 179 (1977). 7 Viele & Sons, Inc., 227 NLRB 284 (1977). 8 Brown University, 342 NLRB 42 (2004); S. D. Pollack and D. V. Johns, “Graduate Students, Unions, and Brown University,” The Labor Lawyer, 20 (2004), pp. 243–256. 9 The Research Foundation of the State University of New York Office of Sponsored Programs, 350 NLRB 18 (2007).

68 Labor Relations

listed above. 10 These decisions were viewed very positively by investors in health care facilities as share prices of companies in this industry rose abnormally in the days following the decision. 11

Professional Employee A professional employee is one whose work is intellectual in character, requiring independent judgment or discretion; whose performance cannot readily be measured in a standardized fashion; and whose skills are learned through prolonged, specialized instruction. 12 Professional employees may organize, but they may not be included in a nonprofessional unit without a majority vote of the professionals.

National Labor Relations Board The National Labor Relations Board (NLRB) consists of five members appointed by the president and confirmed by the Senate. Members serve five-year terms and may be reappointed. One member, designated by the president, chairs the board. The NLRB is responsible for conducting repre- sentation elections and resolving or ruling on unfair labor practice charges.

The board may delegate its duties to a subgroup of three or more mem- bers. It can also delegate authority to determine representation and election questions to its regional directors. The board has a general counsel respon- sible for investigating charges and issuing complaints. More details on the board’s organization, function, and performance follow later in this chapter.

Unfair Labor Practices The amended labor acts specify a variety of employer tactics presumed to interfere with employees’ freedom of choice in being represented by their chosen advocates. They also specify union tactics that might coerce employees of a nonunion organization to join a union or that would interfere with a nonunion employer’s ability to operate. The specified unfair labor practices (ULPs) are contained in Section 8; part (a) applies to employers, part (b) to unions.

Employer Unfair Labor Practices An employer may not interfere with an employee engaging in any activity protected by Section 7. The employer may not assist or dominate a labor organization. If two unions are vying to organize a group of workers, an employer may neither recognize one to avoid dealing with the other nor

10 NLRB v. Health Care and Retirement Corp., 511 U.S. 571 (1994); and NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). 11 S. E. Abraham and P. B. Voos, “The Market’s Reaction to Two Supreme Court Rulings on American Labor Law,” Journal of Labor Research, 26 (2005), pp. 677–687. 12 See N. A. Beadles II and C. Scott,”Professionals under the Labor Management Relations Act: Lessons from the Health Care Industry,” Journal of Collective Negotiations in the Public Sector, 24 (1995), pp. 285–300.

Chapter 3 Employment Law and Federal Agencies 69

express a preference for one over the other. The employer may not create a company-sponsored union and bargain with it. Employers may not create employee groups within the organization and ask them to participate in setting wages, hours, and terms and conditions of employment.

An employer may not discriminate in hiring, assignment, or other terms of employment on the basis of union membership. However, employers and unions may negotiate contract clauses requiring union membership as a condition of continued employment (a union shop agreement). But if such a clause is negotiated, the employer cannot discriminate against non- membership if the union discriminatorily refuses to admit an employee to membership.

Employees may not be penalized or discriminated against for charging an employer with unfair labor practices.

Finally, employers may not refuse to bargain with a union over issues of pay, hours, or other terms and conditions of employment.

Union Unfair Labor Practices Unions may not coerce employees in the exercise of Section 7 rights, but this does not limit union internal rule making, discipline, fines, and so on. Unions cannot demand or require that an employer take action against an employee for any reason except failure to pay union dues.

Unions may not engage in—or encourage individuals to engage in— strikes or refusals to handle some type of product or work if the object is to accomplish any of the following ends:

1. Forcing an employer or self-employed person to join an employer or labor organization or to cease handling nonunion products (except in certain cases, detailed later).

2. Forcing an employer to bargain with an uncertified labor organization, that is, one whose majority status has not been established.

3. Forcing an employer to cease bargaining with a certified representative. 4. Forcing an employer to assign work to employees in a particular labor

organization unless ordered to do so or previously bargained to do so. 5. Requiring excessive initiation fees for union membership. 6. Forcing an employer to pay for services not rendered. 7. Picketing an employer to force recognition of the picketing union if:

a. The picketing group has not been certified as the employees’ representative;

b. Either no union election has taken place within the past 12 months or the picketing union requests a representation election within 30 days after picketing begins; but

c. Nothing can prohibit a union’s picketing to advise the public that an employer’s employees are not unionized, provided the picketing does not interfere with pickups and deliveries.

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Protected Concerted Activity Where no evidence of threat, reprisal, or promise of benefit exists, the parties involved in collective bargaining activities are free to express views in any form.

Duty to Bargain Unions and employers have a mutual duty to bargain in good faith about wages, hours, and terms and conditions of employment. Each must meet with the other when requested to negotiate an agreement, reduce it to writ- ing, and interpret its meaning if disagreements arise. Neither is required to concede any issue to demonstrate good faith. Notifying the Federal Mediation and Conciliation Service (FMCS) is required as a condition to modify a contract. Specific and more stringent requirements are laid out for health care organizations.

Prohibited Contract Clauses Except in the construction and apparel industries, employees and unions cannot negotiate contracts providing that particular products of certain employers will not be used. This is the so-called hot cargo issue. For example, a trucking union could not negotiate a contract prohibiting hauling goods manufactured by a nonunion employer. But a construction union could refuse to install nonunion goods if a contract clause had been negotiated.

Construction Employment Contractors can make collective bargaining agreements with construction unions, even without a demonstration of majority status. The agreements may require union membership within seven days of employment and give the union an opportunity to refer members for existing job open- ings. These exceptions recognize the short-run nature of many construc- tion jobs. Labor agreements may also provide for apprenticeship training requirements and may give preference in job openings to workers with greater past experience.

Health Care Picketing A union anticipating a strike or picketing at a health care facility must notify the Federal Mediation and Conciliation Service (FMCS) 10 days in advance.

Representation Elections The act provides that when a majority of employees in a particular unit desire representation, all employees (regardless of union membership) will be represented by the union regarding wages, hours, and terms and conditions of employment. Individuals can present their own grievances and have them adjusted if the resolution is consistent with the contract.

Chapter 3 Employment Law and Federal Agencies 71

The NLRB determines what group of employees would constitute an appropriate unit for a representation election and subsequent bargain- ing. Its discretion is limited, however. First, it cannot include professional and nonprofessional employees in the same unit unless a majority of the professionals agree. Second, it cannot deny separate representation to a craft solely on the basis that it was part of a larger unit determined appro- priate by the board. Third, it cannot include plant guards and other types of employees in the same unit. Also, supervisors are not employees as defined by the act; so, for example, a unit of production supervisors would be an inappropriate group for representation.

In cases of questionable union majority status, the board is authorized to hold elections (subject to certain constraints, detailed in Chapter 6). The board may also conduct elections to determine whether an existing union maintains a continuing majority status.

Unfair Labor Practice Charges and NLRB Procedures If the board finds that an unfair labor practice (ULP) occurred, it can issue cease-and-desist orders, require back pay to make wronged persons whole, and petition a court of appeals to enforce its orders. Board activities with regard to ULPs are detailed later in this chapter.

Right-to-Work Laws Section 14(b), one of the most controversial in the act, permits states to pass right-to-work laws. In states with these laws, employees represented by unions cannot be compelled to join a union or pay dues as a condition of continued employment. Union and agency shop clauses are unenforce- able in these states.

Religious Objections to Union Membership in Health Care Organizations Health care organization employees whose religious beliefs preclude membership in a union may donate a sum equal to union dues to a nonre- ligious charity in lieu of the dues.

Federal Mediation and Conciliation Service The act holds that the public has an interest in maintaining stable labor relations. If conflicts between the parties interfere with stability, the gov- ernment should be able and willing to offer assistance. Thus, the Federal Mediation and Conciliation Service (FMCS) was created to offer mediation services whenever disputes threaten to interrupt commerce or where they involve a health care organization. The FMCS is directed to emphasize services in contract negotiations, not grievance settlements.

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National Emergency Disputes If the president believes a labor dispute imperils the nation, a board of inquiry studies the issues surrounding the dispute. After the board submits its report, the attorney general may ask a district court to enjoin a strike or lockout. If the court agrees that the dispute threatens national security, an injunction may be issued. If an injunction is ordered, the board is reconvened and monitors the settlement process. If an agreement is not reached after 60 days, the board reports the positions of labor and management and includes management’s last offer. Over the next 15 days, the NLRB holds an election among the employees to determine whether a majority favors accepting management’s last offer. Five more days are taken to certify the results. At this time (or earlier, if a settlement was reached), the injunction will be discharged. If a settlement was not reached, the president forwards the report of the board, the election results, and the president’s recommendations to Congress for action. Until President George W. Bush invoked the national emergency provisions in the 2002 West Coast Dock Workers strike, they had been unused since President Carter invoked them in a 1978 United Mine Workers strike.

Suits, Political Action, and Financial Relationships Unions may sue on behalf of their members and can be sued and found liable for damages against organizational assets but not those of members. Financial dealings between an employer and a union representing its employees are forbidden. Union agents are forbidden from demanding payment for performing contractual duties. Certain regulations relating to the establishment of trust funds are also included.

Unions and corporations are forbidden to make political contributions in any elections involving the choice of federal officeholders.

Summary and Overview The important aspects of Taft-Hartley relate to the establishment, function, and powers of the NLRB; the delineation of employer and union unfair labor practices; the promulgation of rules governing representation and certification; the creation and functions of the FMCS; and the national emergency injunction procedures. These aim at balancing the power of labor and management and stabilizing industrial relations.

Taft-Hartley was enacted the year following the largest incidence of strikes and the most time lost from work due to strikes of any year in U.S. history. Besides identifying and adding a number of union unfair labor practices, the law also specifically aimed to reduce the level of strike activity by requiring that employers and unions planning to renegotiate contracts must inform the FMCS at least 30 days before contract expiration, making FMCS services available, and creating national emergency procedures to protect the public from highly disruptive strikes in essential industries. The legislation created an environment supportive of a corporatist approach to labor-management relations that would reign until the late 1970s.

Chapter 3 Employment Law and Federal Agencies 73


The Landrum-Griffin Act, formally the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959, resulted from congressional hearings into corrupt practices in labor-management relations. It regulates internal activities of employers and unions covered by both Taft-Hartley and the Railway Labor Act.

Bill of Rights for Union Members Unions must provide equal rights and privileges to members in nominat- ing, voting, participating in referenda, meetings, and so on. Each member has a right to be heard and to oppose policies of the union’s leaders insofar as this does not interfere with its legal obligations. Dues, initiation fees, and assessments cannot be increased without a majority vote of approval. Members’ rights to sue their unions are guaranteed as long as they have exhausted internal union procedures and are not aided by an employer or an employer association. Members of unions cannot be expelled unless due process consistent with the Bill of Rights section of the act is followed. Copies of the labor agreement between the employer and the union must be provided to every member.

Reports Required of Unions and Employers All unions are required to file constitutions and bylaws with the secretary of labor. Unions must file annual reports detailing assets and liabilities, receipts, salaries and allowances of officers, loans made to officers or busi- nesses, and other expenditures as prescribed by the secretary of labor. The report must also be made available to the membership. Employees covered by union contracts have little access to information on union expenditures to influence political outcomes, litigation, and the like before it is filed with the Department of Labor. 13

Every officer and employee (except clerical and custodial employees) must submit annual reports to the secretary of labor detailing any fam- ily income or transaction in stocks, securities, or other payments (except wages) made by a firm where the union represents employees; income or other payments from a business with substantial dealings with these firms; or any payments made by a labor consultant to such a firm.

Employers must report payments made to union officials (even if only to reimburse expenses); payments to employees to convince other employ- ees to exercise or not exercise their rights to organize and bargain collec- tively; and payments to obtain information about unions or individuals

13M. F. Masters, R. S. Atkin, and G. W. Florkowski,”An Analysis of Union Reporting Requirements under Title II of the Landrum-Griffin Act,” Labor Law Journal, 40 (1989), pp. 713–722.

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involved in disputes with the employer. Employers must also report agree- ments with or payments to labor relations consultants to oppose union organizing campaigns.

Trusteeships A national union may act against a local for breaching the union’s constitution or bylaws. To reduce the possibility of stifling dissent, an administrative takeover or trusteeship of a local can be imposed only to restore democratic procedures, correct financial malfeasance or corrup- tion, ensure performance of collective bargaining agreements, or facilitate other legitimate union functions. If a trusteeship is imposed, the national union must report the reasons for the takeover to the secretary of labor and disclose the subsidiary’s financial situation. A union exercising a trusteeship cannot move assets from the subsidiary or appoint delegates to conventions from it (unless elected by secret ballot of the membership). Trustreeships are rarely imposed, but when they are it is most often to deal with corruption or financial malfeasance.


Byrnes Act (1936) Under the Byrnes Act of 1936 it is illegal to recruit and/or transport indi- viduals across state lines for the purpose of interfering forcefully or threat- eningly with peaceful picketing or the right of self-organization.

Copeland Anti-Kickback Act (1934) The Copeland Anti-Kickback Act prohibits anyone from requiring or coerc- ing employees on a public works construction project (or project financed by loans or grants from the federal government) to kick back part of their compensation as a condition of continued employment.

Racketeer Infl uenced and Corrupt Organizations Act (1970) The Racketeer Influenced and Corrupt Organizations (RICO) Act was passed to deter corruption by requiring the forfeiture of illegal gains. Penalties treble the forfeiture amount. States have also enacted laws to reduce or eliminate corruption. In the New Jersey casino industry, the laws police employers well, but unions are more difficult to control because locals often represent workers both inside and outside casinos. 14 An analysis of corruption in New York City construction found that the

14 B. A. Lee and J. Chelius,”Government Regulation of Union-Management Corruption: The Casino Industry Experience in New Jersey,” Industrial and Labor Relations Review, 42 (1989), pp. 536–548.

Chapter 3 Employment Law and Federal Agencies 75

work coordination necessary in construction, coupled with the unions’ monopoly power to supply skilled labor, could lead to organized-crime involvement in monitoring or facilitating activities. The effect of possible corruption on union construction worker wages does not appear to be significant, however. 15


Under common law in the United States, an employer could hire or fire an employee for a good reason, a bad reason, or no reason at all. 16 Thus, at its very basis, employment is “at-will” unless a contract to the contrary has been negotiated. However, a large set of federal and state laws and their accompanying administrative regulations limit the unfettered dis- cretion of the employer in designing and implementing the employment relationship.

Civil rights laws and regulations broadly prohibit employers from taking race, sex, color, religion, national origin, or age (being age 40 or over) into account when making employment decisions. Employers are expected to make reasonable accommodations for persons with disabili- ties. When men and women are employed in jobs requiring similar skill, effort, responsibility, and working conditions, differences in pay based on gender are not permitted.

Minimum wages are established by both federal and state laws and cover most employees. Employees who are not in certain defined job categories are entitled to a 50 percent pay premium for each hour beyond 40 worked in a given week. Prevailing wages for similar employment in the labor market must be paid to employees working on federal contracts. These laws are of particular interest to organized labor since they essen- tially take wages out of competition. To successfully bid on government contracts, a nonunion employer is required to pay wages equal to a union- ized employer and therefore needs to be able to save costs on other factors or accept a lower profit. Many states also have versions of these laws that apply to contracts for construction, goods, or services with the respective state governments. A study of the extension of prevailing wage legislation to the construction of low-income public housing in California found that costs increased by between 9 and 37 percent, leading to a reduction of 3,100 units built per year with a given appropriation level. 17

15 C. Ichniowski and A. Preston,”The Persistence of Organized Crime in New York City Construction: An Economic Perspective,” Industrial and Labor Relations Review, 42 (1989), pp. 549–565. 16 Payne v. Western Atlantic Railroad, 81 Tenn. 507 (1884). 17 S. Dunn, J. M. Quigley, and L. A. Rosenthal, “The Effects of Prevailing Wage Requirements in the Cost of Low-Income Housing,” Industrial and Labor Relations Review, 59 (2005), pp. 141–157.

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Law Coverage Major Provisions Federal Agencies

Title VII, 1964 Civil Rights Act (as amended)

Public and private sector employers with 15 or more employees; unions.

Discrimination in employment decisions is prohibited on the basis or race, sex, religion, color, and national origin.

Equal Employment Opportunity Commission (EEOC)

Age Discrimination in Employment Act (ADEA)

Persons age 40 or over (except between 40 and 65 for bona fide executives)

The act prohibits discrimination in employment decisions or mandatory retirement based on age.


Equal Pay Act (EPA)

Most employers Differences in pay between men and women in jobs requiring substantially equal skill, effort, responsibility, and working conditions must be based on factors other than gender.


Americans with Disabilities Act (ADA)

Employees or applicants with a mental or physical disability as defined by the ADA

Employer may not discriminate on the basis of a mental or physical disability. Employee or applicant must be able to perform the job in question with reasonable accommodations for the disability.


Fair Labor Standards Act (FLSA)

Private sector and nonfederal public sector employers; all employees except managers, supervisors, and executives; outside salespersons and professional workers

The act mandates a minimum wage of $6.55 (2008) and $7.25 (2009) per hour; requires time- and-one-half pay for over 40 hours per week for covered (nonexempt) employees; and places restrictions on employment by occupation and industry for persons under age 18.

Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor

Walsh-Healy (W-H), Davis-Bacon (D-B), and Service Contracts Acts (SC)

Contractors with the federal government manufacturing or supplying goods (W-H), contract construction, or services

Employers must pay wages not less than those prevailing in the area for the type of employment used.

Same as FLSA

Social Security Act Retirees, dependent survivors, and disabled persons who are insured by payroll taxes on their past earnings or earnings of heads of households (Railroad workers are covered by the similar Railroad Retirement Act.)

Employer and employee each pay 6.2% for retirement, survivors, and disability insurance on income up to an annually established limit and pay 1.45% each on all income for Medicare insurance. Retirees are eligible for benefits based on contribution levels beginning at age 62 and for benefits to survivors or disabled insureds and medical care benefits beginning at age 65.

Social Security Administration

TABLE 3.2 General Federal Employment Laws

Source: Adapted from H. G. Heneman, III, D. P. Schwab, J. A. Fossum, and L. D. Dyer, Personnel/Human Resource Management, 4th ed. (Homewood, IL: Irwin, 1989), pp. 83–88; U.S. Department of Labor Web site; U.S. Department of Justice Web site.

Chapter 3 Employment Law and Federal Agencies 77

Federal Unemployment Tax Act

All employers and employees except some state and local government, domestics, farm workers, railroad workers, some non-for-profit employers

Payroll tax is paid by employer (except in a few states) on defined levels of income. Levels vary across states, and rates vary across employers within states, depending on the rate and duration of layoffs from each employer. There are legislated levels of income replacement for workers who are involuntary unemployed through no fault of their own. Replacement is generally at 50% or less of regular income for a duration of 26 weeks or until new employment is secured, whichever is less.

U.S. Bureau of Employment Security, U.S. Training and Employment Service, each of the state and territorial employment security commissions

Workers’ Compensation

In most states, employees of nonagricultural private sector firms except railroads

Employees are entitled to compensating benefits of up to about two-thirds of weekly wage (to a maximum limit) for work-related accidents and illnesses leading to temporary or permanent disabilities. Depending on the state law, employers make payroll-based payments to a state insurance system, purchase insurance through a private carrier, or self-insure. Insurance rates depend on the riskiness of the occupations covered and the experience rating of the insured.

Various state commissions

Employee Retirement Income Security Act (ERISA)

Private sector employers that provide pensions or insurance benefits to employees

Employers must make current payments to fund future expected liabilities. The act provides for vesting (ownership) for employees of accrued benefits after 5 years of service (generally), allows tax-free portability of pension benefits for a terminating employee, regulates fiduciaries, and requires insurance of benefits for underfunded plans.

Department of Labor, Internal Revenue Service, Pension Benefit Guaranty Corporation

Occupational Safety and Health Act (OSHA)

Private sector employers except domestic service employers; excludes employers covered by Federal Mine Safety Act

Employers have a general duty to provide working conditions that will not harm their employees and to meet specific standards of care as published in regulations and guidelines. Agents inspect workplaces with appropriate authorization and may issue citations calling for correction and penalties. If an employer disputes a citation, a review commission determines its appropriateness. Enforcement authority may be given to states after they have passed laws consistent with OSHA.

Occupational Safety and Health Administration, U.S. Department of Labor; National Institute for Occupational Safety and Health; Occupational Safety and Health Review Commission


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Social security taxes employers and employees and provides benefits for retirees, persons with disabilities, and surviving spouses and children of covered employees. The federal and state unemployment insurance program provides benefits and job-seeking services for persons who become involuntarily unemployed. The Employee Retirement Income Security Act regulates pension and benefit programs and requires that employers adequately fund established plans. Worker compensation reg- ulations require partial income replacement and health and rehabilitation services for workers who were injured on the job.

Health and safety requirements are spelled out in the Occupational Safety and Health Act and the Mine Safety Act. Facilities are inspected by the Occupational Safety and Health Administration or corresponding state agencies. Evidence indicates that inspections with penalties for viola- tions are more effective for reducing injuries than those without. The effect is greater in smaller and nonunion facilities—possibly because union facilities are more likely to have joint labor-management safety commit- tees. The Family and Medical Leave Act establishes rights for employees to take unpaid leaves to deal with family medical emergencies. Advance notification of significant layoffs is required by the Worker Adjustment and Retraining Notification Act. Table 3.2 summarizes the provisions of major federal employment laws.

Law Coverage Major Provisions Federal Agencies

Federal Mine Safety Act

Employees in underground and surface mining operations

The act establishes procedures for identifying and eliminating exposure to toxic and other harmful materials and for inspecting mines; mandates health and safety training; and provides benefits for pneumoconiosis (black lung disease).

Mine Safety and Health Administration, U.S. Department of Labor; Federal Mine Safety and Health Review Committee

Worker Adjustment and Retraining Notification Act

Private sector employers with 100 or more employees

Employer must provide 60 days’ notice of a plant closing involving 50 or more employees and 30 days’ notice for mass layoffs of more than 500 employees or more than one-third of the workforce. Back-pay penalties are incurred if the notice period is inadequate.

Employment and Training Administration, U.S. Department of Labor

Family and Medical Leave Act

Employers with 50 or more employees and employees with one or more years of service (generally)

Employees may take up to 12 weeks of unpaid leave each 12-month period for care of a newborn or newly adopted baby, personal illness, or care of family member who is ill.

Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor

TABLE 3.2 General Federal Employment Laws (continued)

Chapter 3 Employment Law and Federal Agencies 79


An intriguing analysis of labor law and labor history suggests courts have consistently interpreted new statutory law to reinforce market-oriented practices. For example, the Supreme Court, while finding the Wagner Act constitutional, reiterated management’s exclusive right to make certain decisions unless it voluntarily agreed to bargain about them. Further, courts have generally permitted employer-sponsored participation plans, not finding them to be employer-dominated labor organizations. 18 Legal interpretation appears to be based on a pluralist assumption that man- agement, labor, and government operate together, with market activities facilitated through the operation of statutory labor-management conflict resolution mechanisms. 19

Employers are more likely to engage in actions that are later found to be unfair labor practices when there are greater differences between union and nonunion wages. The NLRB has difficulty coping with these problems because complaints cannot be processed quickly without increased staff, which must be appropriated by Congress, and the board can levy no pen- alties above the requirement that workers be made whole for the effects of violations. 20


All three branches of government—legislative, executive, and judicial— are involved in labor relations. Congress writes and amends the law; the executive agencies implement and regulate within the law; and the judi- ciary examines the actions of the other two in light of the Constitution, the statutes, and common law. This section examines the departments and agencies concerned with labor relations functions.

18 G. Grenier and R. L. Hogler,”Labor Law and Managerial Ideology: Employee Participation as a Social Control System,” Work and Occupations, 18 (1991), pp. 313–333. 19 R. L. Hogler,”Critical Labor Law, Working-Class History, and the New Industrial Relations,” Industrial Relations Law Journal, 10 (1988), pp. 116–143; and R. L. Hogler,”Labor History and Critical Labor Law: An Interdisciplinary Approach to Workers’ Control,” Labor History, 30 (1989), pp. 185–192. For a comprehensive review and commentary on labor law and regulation, see B. E. Kaufman, ed., Government Regulation of the Employment Relationship (Madison, WI: Industrial Relations Research Association, 1997). 20 R. J. Flanagan,”Compliance and Enforcement Decisions under the National Labor Relations Act,” Journal of Labor Economics, 7 (1989), pp. 257–280.

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Department of Labor The Department of Labor, created in 1913, has a broad charter:

The Department of Labor fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. In carrying out this mission, the Department administers a variety of Federal labor laws including those that guarantee workers’ rights to safe and healthful working conditions; a minimum hourly wage and overtime pay; freedom from employment discrimination; unemployment insurance; and other income support. 21

The organization of the Department of Labor is shown in Figure 3.1 . Several agencies that are directly involved with employers and unions are described below.

21 U.S. Department of Labor,, July 26, 2007.

FIGURE 3.1 Organizational Chart of the Department of Labor

Source:, November 12, 2007.

Executive Secretariat

Center for Faith Based & Community Initiatives

Office of the 21st Century Workforce

Office of Small Business Programs

Office of the Chief Financial


Office of the Assistant Secretary for Administration &


Office of the Solicitor

Office of Congressional &

Intergovernmental Affairs

Office of Public Affairs

Office of the Assistant

Secretary for Policy

Employment Standards


Occupational Safety & Health Administration

Bureau of International Labor Affairs

Office of Administrative Law Judges

Office of the Secretary of Labor

Office of Deputy Secretary of Labor

Benefits Review Board

Employees’ Compensation Appeals Board

Administrative Review Board

Office of Job Corps

Veterans’ Employment &

Training Service

Employee Benefits Security


Employment & Training


Mine Safety & Health Administration

Bureau of Labor Statistics Women’s Bureau

Office of Disability Employment Policy

Office of the Inspector General

Chapter 3 Employment Law and Federal Agencies 81

Employment Standards Administration The Employment Standards Administration (ESA) contains several agencies responsible for collecting information, promulgating regula- tions, and enforcing laws and regulations. There are four offices within the ESA: Labor-Management Standards, Federal Contract Compliance Programs, the Wage and Hour Division, and Workers’ Compensation Programs.

Labor-Management Standards The Office of Labor-Management Stan- dards administers and enforces provisions of the Landrum-Griffin and Civil Service Reform acts.

Federal Contract Compliance Programs The Office of Federal Contract Compliance Programs administers laws and regulations banning employ- ment discrimination based on race, sex, color, religion, national origin, dis- ability, and veterans’ status for employers with federal contracts. It also administers affirmative action provisions of Executive Order 11246 and the Vietnam Era Veterans’ Readjustment Act.

Wage and Hour Division The Wage and Hour Division enforces various wage and hour laws requiring minimum-wage and overtime-premium payments for covered workers. It also enforces several other laws such as the Family Medical Leave Act.

Workers’ Compensation Programs This office administers worker com- pensation programs for federal employees and maritime and coal mining worker compensation laws.

Occupational Safety and Health Administration The Occupational Safety and Health Administration (OSHA) is respon- sible for the interpretation and enforcement of the Occupational Safety and Health Act of 1970. It investigates violations and assesses penalties through hearings held by Department of Labor administrative law judges. Workers who are better educated or unionized appear to be more knowl- edgeable about hazards, and workers who are better protected in the exer- cise of their rights are more likely to refuse unsafe work. 22

Employment and Training Administration The Bureau of Apprenticeship and Training in the Employment and Training Administration (ETA) assists employers and unions in estab- lishing high-quality skilled-trades training programs with consistent standards.

22 V. Walters and M. Denton,”Workers’ Knowledge of Their Legal Rights and Resistance to Hazardous Work,” Relations Industrielles, 45 (1990), pp. 531–545.

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Bureau of Labor Statistics The Bureau of Labor Statistics (BLS) collects, maintains, and publishes data that interested persons use to assess the current state of the economy— nationally, regionally, or locally. It publishes the consumer price index, conducts area wage surveys, and provides unemployment data.

Bureau of International Labor Affairs The Bureau of International Labor Affairs represents the United States on multilateral trade bodies such as the General Agreement on Tariffs and Trade (GATT), the International Labor Organization (ILO), and the Organization for Economic Cooperation and Development (OECD). It also manages the labor attaché program in U.S. embassies abroad and monitors conformance with internationally recognized worker rights.

Women’s Bureau The Women’s Bureau focuses on the priorities of working women. Its objectives include alerting women about their rights in the workplace, proposing legislation that benefits working women, researching work aspects of concern to women, and reporting its findings to the president and Congress.

Employee Benefits Security Administration The Employee Benefits Security Administration (EBSA) is primarily respon- sible for protecting the integrity of employer-sponsored pension and ben- efit plans. It assists workers in obtaining benefits to which they are entitled, monitors plan performance, and enforces benefit protection statutes.

Veterans Employment and Training Service The Veterans Employment and Training Service (VETS) facilitates transi- tions from military service to civilian employment through training and employment search assistance. It also helps protect veterans’ job-return rights following military service.

Mine Safety and Health Administration The Mine Safety and Health Administration (MSHA) enforces health and safety requirements of the Federal Mine Safety and Health Act of 1997.

Office of Disability Employment Policy The Office of Disability Employment Policy (ODEP) develops and influ- ences the implementation of policies to enhance the employability of disabled persons.

Federal Mediation and Conciliation Service The Federal Mediation and Conciliation Service (FMCS) was established by the Taft-Hartley Act to help parties resolve labor disputes. In contract negotiation, it may mediate either through invitation or on its own motion.

Chapter 3 Employment Law and Federal Agencies 83

Mediators assist the parties in bargaining but have no power to impose settlements or regulate bargaining activity.

The FMCS offers preventive mediation and alternative dispute resolu- tion programs, including problem resolution services for federal agen- cies as mandated by the Alternative Dispute Resolution and Negotiated Rulemaking acts of 1990. It aids local labor-management cooperation programs through grants and technical assistance enabled by the Labor- Management Cooperation Act of 1978. To foster peaceful conflict reso- lution of employment issues internationally, the FMCS has provided mediator training in a number of developing economies. 23

It provides to requesting parties panels of arbitrators, who are qualified under FMCS rules, from which the parties may choose one to hear and rule on a contract dispute.

National Mediation Board A 1934 amendment to the Railway Labor Act established the National Mediation Board (NMB). It mediates contract disputes between carriers and their unions and certifies bargaining representatives for employees. Under the RLA, unions may not strike and employers may not lock out employees unless and until the NMB has declared an impasse in negotia- tions and has released the parties to engage in “ self-help .” The self-help cannot begin until 30 days after the declaration of an impasse. The NMB refers grievances to the National Railroad Adjustment Board (NRAB). The NMB may appoint a referee to assist in making NRAB awards when the panel is deadlocked. The NMB also designs and offers alternative dispute resolution training programs for employers and unions.

The NMB is also responsible for notifying the president if an unsettled, mediated dispute threatens to cripple transport in some section of the country. The president may then appoint an emergency board to study the situation and make recommendations.

Most of the NMB’s activities involve mediation and arbitration. There are many fewer union certification elections since the airline and rail indus- tries are substantially more concentrated and mature than many others. 24

National Labor Relations Board The NLRB was established by the Wagner Act and has jurisdiction over most for-profit employers, private for-profit and nonprofit hospitals, and the U.S. Postal Service. It determines whether employees desire union representation and whether, under federal law, unions or companies have committed unfair labor practices.

23 J. C. Wells,”FMCS: Past, Present, and Future,” Proceedings of the Industrial Relations Research Association, 48 (1996), pp. 396–406. 24 National Mediation Board, Annual Performance and Accountability Report, FY06, available at

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The NLRB responds to complaints or requests from unions, employ- ees, or employers. 25 In 2005, the board received 24,720 unfair labor prac- tice complaints (C cases) and 5,138 election petitions (R cases) at its 51 regional, subregional, and field offices. 26 When a C case is filed, the regional office investigates. If the charge appears not to be meritorious (about two-thirds of all C cases), the charging party is asked to withdraw it or charges are dismissed. Such decisions can be appealed to the general counsel, but only about 4 percent are reversed. If the case has merit, the regional director works with the parties to try to fashion a remedy and settle the case. This succeeds in over 90 percent of cases. If the parties agree, an unresolved case may be assigned to a “settlement judge” who works with them to reach an agreement without resorting to litigation. Evidence indicates that this process is generally positively viewed by the parties if a settlement is reached. 27 Failing that, the case is heard within one to three months by an administrative law judge . After the judge issues a ruling, exceptions can be filed, and the case is assigned to a board member. The board must then study the case, and a three-member panel issues a ruling. 28

If a party does not comply with an NLRB decision, the board may petition a U.S. court of appeals for enforcement. Board orders must be publicized to employees and/or union members. The board may issue cease-and-desist orders, bargaining orders, and decisions making employees whole for ille- gal personnel actions, such as termination for union activity.

Very few initial unfair labor practice charges are ever heard by adminis- trative law judges and passed on to the NLRB for its review. Cases that are not settled before board review are of two general types: (1) those involv- ing a complex or unsettled issue for which there is no clear precedent, and (2) those that one party (usually management) expects to lose but in which delay of a final determination is to that party’s advantage.

As noted above, the five members of the NLRB are appointed for fixed terms by the president (with the consent of the Senate). Board members are individuals with expertise in labor-management relations, almost invari- ably attorneys, and usually members of the president’s political party. To be confirmed, nominees must be knowledgeable about the law and appear

25 For complete details, see B. Garren, E. S. Fox, J. C. Truesdale, and J. A. Norris, How to Take a Case before the National Labor Relations Board, 7th ed. (Washington, DC: Bureau of National Affairs, 2000). 26 Seventieth Annual Report of the National Labor Relations Board (Washington, DC: U.S. Government Printing Office, 2005) p. 9. 27 L. Stallworth, A. Varma, and J. T. Delaney, “The NLRB’s Unfair Labor Practice Settlement Program: An Empirical Analysis of Participant Satisfaction,” Dispute Resolution Journal, 59, no. 4 (2004), pp. 22–29. 28 D. L. Dotson,”Processing Cases at the NLRB,” Labor Law Journal, 35 (1984), pp. 3–9; updated data from Seventieth Annual Report of the National Labor Relations Board (Washington. DC: U.S. Government Printing Office, 2005).

Chapter 3 Employment Law and Federal Agencies 85

fair, regardless of their political orientation. Thus, board members may be Democrats appointed by a Democratic president (Dem-Dem), Republicans appointed by a Democratic president (Rep-Dem), Democrats appointed by a Republican president (Dem-Rep), or Republicans appointed by a Republican president (Rep-Rep). Democrats may be presumed to favor labor more often when precedents are not clear, while Republicans may be expected to favor management. Board members may also be expected to pay attention to the position of the president who appointed them and, to some extent, to the makeup of Congress.

A careful study of board decisions found that in complex cases, relative to Dem-Dem members, Rep-Rep and Rep-Dem members were more likely to decide for management, while labor was favored more often during periods when Congress was more likely to favor labor’s political agenda, when unemployment was high, and when unemployment was chang- ing rapidly. In simpler cases, decisions favoring employers were more likely from Dem-Rep members, during high unemployment, and where the regional officer and administrative law judge ruled for the employer. Negative factors were influential when the regional officer and admin- istrative law judge ruled for the union and where the case occurred in a southern right-to-work state. Dem-Dems decided against the employer in almost all cases. 29 This is contrary to the conventional wisdom that Rep- Rep members are the most doctrinaire in their decisions and the most likely to disregard precedent. The general counsel’s political orientation may also strongly influence outcomes because that office decides which cases should be referred to the board for decisions.

Regional staff decisions also affect how charges are handled. One study of regional staff decisions during the Reagan years—a period in which a substantial number of NLRB precedents were reversed—indicated that regional directors dismissed many fewer cases and sent more on to Wash- ington. Evidence also indicated that unions withdrew many more charges, probably fearing adverse decisions and the establishment of new prec- edents by the board once it hears a case. 30 A review of regional board actions on unfair labor practice complaints found that refusals to issue charges were more likely when the charge was brought by an employer and where several complaints were alleged and that refusals were less likely when the charge was related to right-to-work law violations. Issuance of formal complaints was less likely when they were related to right-to-work law charges, when charges were brought by the employer, when the bargain- ing unit was larger, and where several violations were alleged. Voluntary settlements before issuance of a complaint were related to right-to-work

29 W. N. Cooke, A. K. Mishra, G. M. Spreitzer, and M. Tschirhart,”The Determinants of NLRB Decision-Making Revisited,” Industrial and Labor Relations Review, 48 (1995), pp. 237–257. 30 D. E. Schmidt,”Partisanship in the NLRB and Decision Making in Regional Offices,” Labor Law Journal, 42 (1991), pp. 484–490.

86 Labor Relations

laws, the number of charges by the employer, and negatively to the number of charges by the union. Voluntary settlements after issuance of a complaint were related to the number of charges by the union and negatively to the number of employer charges and the size of the bargaining unit. 31

These findings indicate that employers are less likely than unions to have the regional board issue charges or complaints and are more likely than unions to voluntarily settle before a complaint. But if a complaint is issued, the larger the number of charges and the bigger the bargaining unit (greater potential gain from winning), the less likely the employer is to settle voluntarily.

It is unquestionably the case that the NLRB is politicized. Whenever a new president is elected from the party that was previously out of power, it is quite likely that precedents established by the outgoing administration will be modified or swept aside as new cases are brought forward to test precedents that either labor or management hopes will be overturned. 32

NLRB decisions may alter the bargaining power between labor and management if a previously used practice is prohibited. Filing rates are influenced by the level of economic activity, and they increase for both unions and managements when it appears that board composition will lead to more favorable decisions for management. Employers may increase their filings because they believe pro-management decisions may deter union tactics. 33


Depending on which side—management or labor—is interested, calls for labor law reform are frequent. As noted in the discussion of the NLRB (above), the interpretation of the law has some degree of fluidity depend- ing on the political orientation of the executive branch of the federal government. In general, labor favors reforms that would improve oppor- tunities to organize and speed the process by which employees decide whether to be represented. Management favors reforms that would allow companies to implement more employee participation programs dealing

31 J. F. O’Connell, “The NLRB at the Grassroots,” Journal of Labor Research, 22 (2001), pp. 761–775. 32 For commentary on whether recent decisions have set new directions or restored established precedents, see K. R. Dolin, “Analyzing Recent Developments at the National Labor Relations Board,” Labor Law Journal, 56 (2005), pp. 120–138; “Bush Labor Board Decisions: Pendulum Shift or Permanent Changes?” Labor Law Journal, 56 (2005), pp. 212–223; and W. B. Gould IV (an NLRB chair during portions of the Clinton administration), “The NLRB at Age 70: Some Reflections on the Clinton Board and the Bush II Aftermath,” Berkeley Journal of Employment and Labor Law, 26 (2005), pp. 309–320. 33 M. Roomkin,”A Quantitative Study of Unfair Labor Practice Cases,” Industrial and Labor Relations Review, 34 (1981), pp. 245–256.

Chapter 3 Employment Law and Federal Agencies 87

with subjects that might involve wages, hours, and terms and conditions of employment—issues that are prohibited under the law in employer- sponsored programs.

In the 1990s, bills were introduced to allow the establishment of employee work teams and communications programs without violating Section 8(a)(2) of the labor acts. The pro-management so-called Team Act was passed by Congress in 1996 but vetoed by President Clinton. Ironi- cally, there has been no attempt to resurrect it during President George W. Bush’s administration.

In both 2005 and 2007, an amendment to the Taft-Hartley Act was introduced that would allow the NLRB to determine majority status and certify union representation on the basis of a check of signed union autho- rization cards. The so-called Employee Free Choice Act would eliminate the need for elections and prevent managements from mounting an anti- union campaign if a majority of bargaining unit members had signed cards. Opponents of the bill stress the role of secret elections in democra- cies, while those in favor argue that it eliminates coercive campaigns and unnecessary delays. In 2007, the House of Representatives passed the bill, but it failed in the Senate and would most certainly have faced a presiden- tial veto. The free-choice act would introduce recognition mechanisms closer to what exists in much of Canada, where there is substantially higher private sector union coverage. Two Canadian researchers suggest that while this type of reform may enhance organizing efforts, they will not be sufficient to revitalize unionization in the United States. 34

Some argue that economic globalization has made increasing employ- ment regulation a liability and that responsiveness by employers is required to survive in an economic era the labor acts never contem- plated. 35 Others argue that relatively minor changes need to be made to the labor acts to enhance competition and worker outcomes. 36 In the absence of major events like the Great Depression, World War II, or some other major economic or geopolitical crisis, it’s unlikely that a significant statutory change can be mobilized. 37

34 J. Godard, “Do Labor Laws Matter? The Density Decline and Convergence Thesis Revisited,” Industrial Relations, 42 (2003), pp. 458–492; R. J. Adams, “The Employee Free Choice Act: A Reality Check,” Proceedings of the Labor and Employment Relations Association, 58 (2006), pp. 184–189; and R. J. Adams, “The Employee Free Choice Act: A Skeptical View and Alternative,” Labor Studies Journal, 31, no. 4 (2007), pp. 1–14. 35 M. L. Wachter,”Labor Law Reform: One Step Forward and Two Steps Back,” Industrial Relations, 34 (1995), pp. 382–401. See also L. Galloway and R. Vedder, “Labor Laws: Then and Now,” Journal of Labor Research, 17 (1996), pp. 253–276. 36 R. N. Block,”Labor Law, Economics, and Industrial Democracy: A Reconciliation,” Industrial Relations, 34 (1995), pp. 402–416. 37 D. J. B. Mitchell, “Discussion,” Proceedings of the Labor and Employment Relations Association, 58 (2006), pp. 160–163.

88 Labor Relations

Relative to the European Union (EU), workers in the United States have fewer rights to be represented in the workplace. Requirements for exclusive representation and winner-take-all elections mean that fewer workers have representation than would prefer it. Additionally, in some EU countries democratically elected works councils meet with manage- ment to discuss and/or approve or disapprove various initiatives, often involving issues that U.S. employers are not legally required to discuss. Proponents of labor law reform and industrial democracy argue that U.S. employers should be required to permit more employer representation and participation in decision making. 38


Trade treaties often include provisions for minimum labor standards. These are usually included to protect jobs in high-wage countries. Devel- oping countries seldom can afford to duplicate conditions experienced in first-world countries. Prohibitions on child labor and forced (prison) labor may be somewhat easier to enforce. 39 Area trade treaties, such as the North American Free Trade Agreement (NAFTA), offer opportunities for inter- national cooperation by unions. To this point, however, evidence suggests they have had a greater effect on nurturing national identities rather than international development. 40

Summary and Preview

U.S. labor law consists primarily of the Railway Labor, Norris-LaGuardia, Wagner, Taft-Hartley, and Landrum-Griffin acts. These enable collective bargaining, regulate labor and management activities, and limit interven- tion by the federal courts in lawful union activities.

The legislative branch of government enacts the laws, the executive branch carries them out, and the court system tests their validity and rules on conduct within their purview.

As a cabinet department, the Department of Labor is primarily respon- sible for implementing human resource programs and monitoring activi- ties. It has little direct influence on collective bargaining.

Rule-making, interpretive, and assistance agencies have major influ- ences on employers, through either direct intervention or regulation. The

38 See, for example, S. Friedman and S. Wood, eds., “Employers’ Unfair Advantage in the United States of America: Symposium on the Human Rights Watch Report on the State of Workers’ Freedom of Association in the United States,” British Journal of Industrial Relations, 39 (2001), pp. 585–605, and 40 (2002), pp. 113–149. 39 C. L. Erickson & D. J. B. Mitchell, “Labor Standards in International Trade Agreements: The Current Debate,” Labor Law Journal, 47 (1996), pp. 763–775. 40 J. Cowie, “National Struggles in a Transnational Economy: A Critical Analysis of U.S. Labor’s Campaign against NAFTA,” Labor Studies Journal, 21, no. 4 (1997), pp. 3–32.

Chapter 3 Employment Law and Federal Agencies 89

FMCS and NLRB have the greatest impact on collective bargaining. The NLRB has been troubled by politicization throughout its history and by delay in ruling on unfair labor practices during the past 30 years.

Selected Web Sites of Federal Agencies

1. In the absence of federal labor laws, what do you think the scope and nature of labor relations would be in the United States?

2. Are current laws strong enough to preserve individual rights in collec- tive bargaining?

3. To what extent should the federal government have power to intervene in collective bargaining activities?

4. Should such administrative agencies as the NLRB be allowed to render administrative law decisions that can be enforced by the courts, or should an agency be required to go directly to court?

5. Are current labor laws capable of dealing with labor-management p roblems, or should they be abolished? If abolished, what should their replacements (if any) address?

Discussion Questions

Key Terms Railway Labor Act, 62 Representation election, 62 National Mediation Board, 62 National Railroad Adjustment Board, 63 Injunction, 64 Employer, 66 Employee, 67

Supervisor, 67 Professional employee, 68 National Labor Relations Board, 68 Unfair labor practice, 68 Union shop, 69 Duty to Bargain, 70 Hot cargo, 70 Cease-and-desist orders, 71

Agency shop, 71 Certification, 72 Trusteeship, 74 Mediator, 83 Self-help, 83 C cases, 84 R cases, 84 Administrative law judge, 84

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