Reading for Discussion 2.1 Topic: Read and Comment Labor Law Is Broken, Economist Says By Steven Greenhouse In a new paper, Richard B. Freeman, a labor economist at Harvard, said he had some \"harsh and impolitic\" news for the National Labor Relations Act on its 75th anniversary. He declared that the law \"has become an anachronism irrelevant for most workers and firms.\" Mr. Freeman released his paper in Washington on Thursday at a symposium that marked the anniversary of the New Deal law - often known as the Wagner Act - that gave American workers a federally protected right to form unions. He called his paper \"What Can We Learn from N.L.R.A. to Create Labor Law for the 21st Century?\" Mr. Freeman, one of the nation's foremost labor economists, wrote that the act was passed to replace the costly unionization fights of yesteryear - often involving strikes, lockouts, violent confrontations with \"a 'laboratory conditions' elections process for ascertaining workers' attitudes toward union representation that would be free from employer pressures or dishonest statements by employers or unions.\" He said unionization elections in the private-sector \"have turned into massive employer campaigns against unions.\" That, he wrote, is a major reason the percentage of private-sector workers in unions has fallen to 7 percent, down from nearly 40 percent in the 1950s. He argued that the penalties in the National Labor Relations Act were weak and \"have failed to deter firms from illegal actions to prevent unionization.\" He wrote that in the early 1950s firms fired about 0.5 workers for every 100 workers who voted in N.L.R.B. elections, but in the 1980s and early 1990s, firms \"fired 4.5 workers for every 100 union voters,\" with that percentage dropping slightly in recent years. \"Far from a laboratory conditions experiment in democracy,\" he wrote, \"the N.L.R.B. process turned into the same costly fight between unions and firms that union organizing was before the act, albeit in a different venue with different weapons.\" He wrote that the N.L.R.B. process has \"failed to make it easy or natural for workers who want union representation to achieve this goal.\" He noted that there was a 20 to 30 percent gap between the percentage of workers who said they wanted union representation and those who had unions - the largest gap among advanced English-speaking countries. Professor Freeman pointed to one study that found that unions found it so hard to organize workers under the N.L.R.B. process that around 80 percent of new organizing in the late 1980s and 1990s occurred outside that process. This usually happened among government employees who were not covered by the National Labor Relations Act, or by private-sector unions that mounted pressure campaigns to persuade employers to accept unions through the card check process - under which unions are recognized when a majority of workers sign cards favoring a union. Professor Freeman said it was hardly surprising that the percentage of public-sector workers in unions was five times as high as the percentage of private-sector workers. One big reason for this, he wrote, is that private-sector employers \"have sizable monetary incentives to oppose unionism,\" and the penalties that N.L.R.B. \"has at its disposal are too limited to offset these incentives.\" He noted that government officials, unlike corporate officials, have generally not fought unionization because \"they have little to gain and much to lose from fighting unions.\" \"Unions,\" he added \"are an important ally in helping politicians and public-sector management convince voters to increase taxes or borrow money through bonds for schools, police or other public goods.\" For instance, if a company illegally fires the three employee leaders of a unionization drive, the law requires the company to pay back pay, minus whatever earnings the workers had after being fired. The law does not call for fines or punitive damages for such firings. Mr. Freeman pointed to a case involving a unionization effort at Yale-New Haven Hospital, where an independent arbitrator ruled in 2007 that the hospital had violated an agreement calling for both sides to respect principles aimed at guaranteeing a fair election. The arbitrator wrote that the workers \" were threatened with more onerous working conditions and even loss of their jobs if the union were selected.\" She said the workers were victimized and ordered the hospital to pay the 1,700 workers a total $2.2 million - the amount the hospital had paid to antiunion consultants. She also ordered the hospital to repay the union its $2.3 million in organizing expenses. Professor Freeman noted that this $4.5 million penalty, which was ordered outside the National Labor Relations Act, was 20 percent more than the $3.6 million that the labor board awards on average each year to all workers nationwide for all back pay for being retaliated against for supporting a union. He cited a paper by Morris M. Kleiner and David Weil stating that \"the Act for decades has been ineffective in curbing behaviors that are antithetical to its fundamental aims.\" Professor Freeman wrote that \"the failure of the N.L.R.A. process to meet the needs of workers and firms moved the U.S. close to the union-free world that many opponents of trade unions have long desired.\" He suggested that if unions were stronger, the United States might not have the highest income inequality in the developed world or stagnant real earnings for all but the highest paid. He also said that if unions were stronger, a liberal coalition \"would presumably have greater countervailing power\" to Wall Street and have helped push through stronger financial reforms. In conclusion, Professor Freeman had four recommendations. He called for strengthening the penalties against illegal actions by management and unions, recommending penalties against individual managers or union leaders who break the law. Second, he said labor laws should be amended to protect supervisors from being fired or punished if they want to remain neutral or silent and not have to express their firm's anti-union views during an organizing drive. Third, he called for early voting at neutral venues instead of having unionization elections held at the work site on a single day. Borrowing from an idea of Benjamin Sachs, a professor at Harvard Law School, he wrote that the idea resembled early voting in regular elections. The labor board could set up a polling place where workers could vote at any time during the organizing drive or could set up a confidential mail-in procedure. He said this \"should reduce intimidation or pressure from management or union activists on workers to vote for against union representation by allowing employees to vote outside the confines of the workplace at a time of their own choosing.\" Many corporations oppose a more rapid electoral process, arguing that it would not give them adequate time to communicate their case against unions. Lastly, Professor Freeman recommends an idea that union leaders hate allowing employers to set up employee committees that address not just productivity, but also issues that deal with workers' well-being, like hours or pace of work. \"Throughout the advanced world works councils perform this function, usually with members elected by employees, independent of collective bargaining,\" he wrote. He added that \"American employers who want their workers to have some representation at their workplace that falls short of collective bargaining\" should be able to do so without having to break the law. He said that a similar system in Canada works well. He noted that many American employers were already doing this even though the law bans it. Moreover, it would help give unionless workers more of a voice on the job. But unions oppose this idea, asserting that it could lead to management-dominated committees and could convince many workers that they do not need a union. The symposium was cosponsored by the National Labor Relations Board and George Washington University. Unit 2 Lecture Employment at-Will and Just Cause According to our text (page 77), "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. Thus, at its very basis, employment 'at-will' unless a (expressed) contract to the contrary has been negotiated." The following FAQ and answer is lifted verbatim from the New York State Department of Labor website: Q: Can an employee be fired without due cause? A: Yes. New York State is an "employment-at-will," state. Without a contract restricting termination (such as a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason. This also protects the employee's right to resign. An employer may fire an employee for "no reason" - or even for a reason that might seem arbitrary and unfair -- and the employee is equally free to quit at any time without being required to explain or defend that decision. There are a few exceptions to "employment-at-will." The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based upon race, creed, national origin, age, handicap, gender, sexual orientation or marital status. For additional information about how the New York State Division of Human Rights proceeds against unlawful forms of discrimination, go to: www.nysdhr.com. While there are notable exceptions to hiring, firing and promoting employees on an "employment at-will" basis, such as Federal and state laws prohibiting discrimination against certain protected classes - e.g. race, sex, color, religion, national origin, age over 40, disability, etc., most non-union employees have little protection from an arbitrary discharge. Typically, union represented employees -- by virtue of an expressed written labor contract -- cannot be discharged or disciplined without the establishment of a "just cause." There are other exceptions to an employer's employment at-will powers noted in your text, but the basic concept that both an employer and an employee may terminate their employment arrangement at any time for any reason or no reason at all is well established in the U.S.. According to Clyde W. Summers in his 1976 Virginia Law Review article entitled Individual Protection Against Unjust Dismissal: Time For A Statute, "the USA is alone among the industrialized nations of the world in providing no protection against wrongful termination of employment." Why is this so? The prospect for any legal statutory change in the Employment-at-Will principle in the U.S. is doubtful without a strong lobbying effort that unorganized employees are probably unable to mount. Strong union support is not likely either because this kind of statutory reform would take away one of the unions' principal arguments "that protection from unjust dismissal is available only under a collective bargaining agreement administered by a union-controlled grievance mechanism. " U.S. employers, as you would expect, are well organized and at all times stand ready to lobby against any infringement upon their absolute right of discharge. Most business people and many business experts believe that the principle of employment-at-will is a basic freedom and has, in part, contributed to the extraordinary work ethic and success of American workers and businesses compared to the rest of the world. "Just Cause" for Employer Actions One of the most important employee rights that Unions have historically used to justify and sell workers on the wisdom of organizing collectively with their employer is the right to workplace due process or "Just Cause" for discipline, demotion or termination. Just cause (or "due process" as we often use in a legal context) provides important protections against arbitrary or unfair termination or inappropriate workplace discipline. It has become a common standard in labor relations and is included in virtually all labor contracts as a form of job security. With a just cause requirement an employer must stand ready to prove that their employment actions are fair and reasonable before an impartial arbitrator to sustain an employee's termination, suspension, or other discipline. Just cause usually refers to a violation of a company policy or rule. In some cases, an employee may commit an act that is not specifically addressed within the employers policies but one of which the employer believes warrants discipline or discharge. In such instances, the employer must be confident that they can defend their decision. In 1966, an arbitrator, Professor Carroll Daugherty, established a well used set of practices into seven tests for just cause that are still used today. Daugherty's seven tests are as follows: Was the employee forewarned of the consequences of his or her actions? Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? Was an effort made before discharge to determine whether the employee was guilty as charged? Was the investigation conducted fairly and objectively? Did the employer obtain substantial evidence of the employee's guilt? Were the rules applied fairly and without discrimination? Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record? Avoiding Unionization with Non-Union "Just Cause" Policy In Unit 1 it was proposed that the best strategy for avoiding the 25 to 35 percent increase in cost of Unionization is to create a work environment for your employees where they do not believe a Union is needed to advance and protect their interests. And, one of the steps a Non-Union company could take is to establish, by company policy, a Non-Union Complaint Procedure ("grievance procedure" sounds too union) and employ principle of due process or "just cause." According to Delaney, Lewin & Ichniowski, more than one-half of all non-union medium and large organizations in the U.S. have formal complaint processes. For your reading pleasure, here are two examples of a Non-Union Grievance Procedures: http://www.hr.msu.edu/complaints/supportstaff/GrievanceProcedu res.htm http://hrservices.uchicago.edu/fpg/policies/700/p704.shtml On page 210, our text author John Fossum cites studies that suggest that Non-Union Grievance Procedures with either peer review or third-party arbitration tend to be considered more credible and are used more by employees. Where Management is included in the final stage (the final word) of the process, not surprisingly grievance rates are lower. And finally, according to A.J.S. Colvin, in Team-based and High-performance Work organizations complaints are less frequent. This suggests that the best way to avoid unionization is to create a highperformance, highly-aligned team-base working culture!! Employee Rights Protected by the National Labor Relations Act According to the National Labor Relations Board website (http://www.nlrb.gov/rights-we-protect/employee-rights) "Employees covered by the National Labor Relations Act are protected from certain types of employer and union misconduct and have the right to attempt to form a union where none currently exists. Examples of employee rights include: Forming, or attempting to form, a union in your workplace; Joining a union whether the union is recognized by your employer or not; Assisting a union in organizing your fellow employees; Refusing to do any or all of these things. The law also protects employees' rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities. Some concerted activities examples include: Two or more employees addressing their employer about improving their working conditions and pay; An employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; Two or more employees discussing pay or other work-related issues with each other; Refusing to do any or all of these things." Unfair Labor Practices According to the National Labor Relations Board website: ( http://www.nlrb.gov/rights-we-protect/employerunion-rightsobligations "the National Labor Relations Act (section 7 of the Wagner Act) forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights. Examples of employer conduct that violates the law: Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity. Threatening to close the plant if employees select a union to represent them. Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act. Promising benefits to employees to discourage their union support. Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity. Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB. Examples of labor organization conduct that violates the law: Threats to employees that they will lose their jobs unless they support the union. Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter. Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted. Fining employees who have validly resigned from the union for engaging in protected concerted activities following their resignation or for crossing an unlawful picket line. Engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer's premises. Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute. National Labor Relations Board Representative Election Processes Please read and study the following link for information regarding the NLRB representative election processes for Union Certification and De-certification. http://www.nlrb.gov/what-we-do/conductelections Union Mission, Structure and Governance The mission of the AFL-CIO is as follows, per their website (http://www.aflcio.org/aboutus/thisistheaflcio/mission/ ): What We Stand for: Mission and Goals of the AFL-CIO The mission of the AFL-CIO is to improve the lives of working familiesto bring economic justice to the workplace and social justice to our nation. To accomplish this mission we will build and change the American labor movement. We will build a broad movement of American workers by organizing workers into unions. We will recruit and train the next generation of organizers, mass the resources needed to organize and create the strategies to win organizing campaigns and union contracts. We will create a broad understanding of the need to organize among our members, our leadership and among unorganized workers. We will lead the labor movement in these efforts. We will build a strong political voice for workers in our nation. We will fight for an agenda for working families at all levels of government. We will empower state federations. We will build a broad progressive coalition that speaks out for social and economic justice. We will create a political force within the labor movement that will empower workers and speak forcefully on the public issues that affect our lives. We will change our unions to provide a new voice to workers in a changing economy. We will speak for working people in the global economy, in the industries in which we are employed, in the firms where we work, and on the job every day. We will transform the role of the union from an organization that focuses on a member's contract to one that gives workers a say in all the decisions that affect our working livesfrom capital investments, to the quality of our products and services, to how we organize our work. We will change our labor movement by creating a new voice for workers in our communities. We will make the voices of working families heard across our nation and in our neighborhoods. We will create vibrant community labor councils that reach out to workers at the local level. We will strengthen the ties of labor to our allies. We will speak out in effective and creative ways on behalf of all working Americans. In the U.S., unions typically have a pyramidal structure much like that of large corporations. At the bottom are locals that serve represented workers in a particular geographical area. Certain members are elected as local officers and executive committee members and shop stewards are designated to serve as gobetweens in disputes between workers and supervisors. Locals are usually organized into national unions that assist with local contract negotiations, organize new locals, negotiate contracts for entire industries, and lobby government bodies on issues of importance to organized labor. In turn, national unions may be linked by a labor federation, such as the American Federation of Labor/Congress of Industrial Organizations (AFL/CIO), which provides assistance to member unions and serves as the principal political organ for organized labor