Ch6. Labor Unions — Formation, Collective Bargaining, and the NLRA

Overview of Labor Unions in the US

Labor Union (Trade Union):
An organization formed by employees to advance their
collective interests regarding wages, hours, and working conditions.

Governing law: National Labor Relations Act (NLRA), 1935
Administered by: National Labor Relations Board (NLRB)

Key rights guaranteed (NLRA §7):
① Right to organize and join a union
② Right to bargain collectively through representatives
③ Right to engage in concerted activities (strikes, picketing)
④ Right to refrain from any or all of the above

Formation — Union Certification:
Option A: Election — NLRB-conducted secret ballot election
  (requires 30% showing of interest to get on ballot)
Option B: Card check — voluntary employer recognition
  (requires majority of employees to sign authorization cards)

Collective Bargaining

Collective Bargaining:
The process through which the union and employer negotiate
a Collective Bargaining Agreement (CBA).

Parties:
Union representative (certified bargaining agent) ↔ Employer

Duty to bargain in good faith (NLRA §8(a)(5)):
Employer must bargain in good faith over mandatory subjects.
Refusal to bargain = Unfair Labor Practice (ULP).

Bargaining subjects:
① Mandatory: wages, hours, terms and conditions of employment
   (employer cannot refuse to bargain over these)
② Permissive: management rights, corporate structure, product decisions
   (either side may refuse to bargain)
③ Illegal: yellow-dog contracts, closed shops (post-Taft-Hartley)

Bargaining structures:
Single-employer bargaining · multi-employer bargaining ·
pattern bargaining · coordinated bargaining

Collective Bargaining Agreements (CBA)

Collective Bargaining Agreement (CBA):
The written contract resulting from collective bargaining.

Duration:
Typically 1–5 years; no statutory maximum under federal law.
"Contract bar" doctrine: NLRB will not process a new election
during the life of a valid CBA (up to 3 years).

Legal force:
① Normative effect: CBA terms become implied terms of each
   individual employment contract — individual deals cannot go below CBA floor.
② Enforcement: Section 301 of LMRA allows suits in federal court
   to enforce CBA provisions.

Favorability principle:
CBA sets the floor; individual contracts may exceed CBA terms.
(e.g., individual agreement for more vacation than CBA minimum = permitted)

Union security clauses:
Under NLRA: closed shops are illegal.
Union shop (must join after hire): permitted in non-right-to-work states.
Agency fee / "fair share" (must pay dues equivalent): varies by state law.
Right-to-work states (27 states): employees cannot be required to join
or pay fees as a condition of employment.

Unfair Labor Practices (ULPs)

Employer ULPs (NLRA §8(a)):
① Interference, restraint, or coercion of §7 rights
   (e.g., threatening to close if employees unionize)
② Domination or support of a labor organization
   (employer-controlled "company unions")
③ Discrimination to discourage union membership
   (firing or demoting for union activity)
④ Retaliation for filing NLRB charges or testifying
⑤ Refusal to bargain in good faith

Union ULPs (NLRA §8(b)):
① Coercion of employees or employers
② Causing employer to discriminate against non-members
③ Refusal to bargain in good faith
④ Secondary boycotts and hot cargo agreements (Taft-Hartley)
⑤ Excessive or discriminatory dues

Remedies:
NLRB may order: cease and desist, reinstatement, back pay,
bargaining orders. Criminal penalties are rare; NLRA is primarily remedial.

Filing deadline:
ULP charge must be filed within 6 months of the alleged violation.

Union Structure in the US

Enterprise/workplace union: organized at a single employer (common in US)
Industrial union: covers all workers in an industry (UAW, USW)
Craft union: based on skilled trade (IBEW, Carpenters)
General union: industry-neutral (common in public sector)

AFL-CIO and Change to Win Federation:
Major US labor federations; affiliate unions retain autonomy.

Public sector unions:
Not covered by NLRA; governed by state laws and
the Federal Service Labor-Management Relations Statute (FSLMRS).
Public employees in many states have collective bargaining rights.
Strike rights vary; some states prohibit public employee strikes.

Good Faith Bargaining Duty ★★★★★ : Employer must bargain in good faith over mandatory subjects (wages, hours, conditions). Surface bargaining, take-it-or-leave-it tactics, or bypassing the union = ULP. Memory tip: mandatory subjects = must bargain; permissive = optional

Employer ULP — 5 Types ★★★★★ : Interference with §7 rights · domination of union · discrimination · retaliation for NLRB activity · refusal to bargain in good faith. Memory tip: I-D-D-R-R (Interfere-Dominate-Discriminate-Retaliate-Refuse)

CBA Hierarchy ★★★★☆ : Federal/state law > CBA > individual employment contract. CBA sets the floor; individual contracts may be more favorable but not less. Memory tip: Law > CBA > individual deal

Practice Quiz

Q. An employer tells employees “If you vote for the union, we will have to shut down this plant.” Is this lawful?

No. This is an employer ULP under NLRA §8(a)(1) — interference with employees’ §7 rights through threats. The NLRB may issue a cease-and-desist order, and the threat may taint an election, potentially resulting in the union winning via a bargaining order (Joy Silk/Linden Lumber doctrine).

Q. A CBA specifies 10 vacation days per year. An individual employment contract with a supervisor specifies 15 days. Which applies?

15 days. The favorability principle allows individual contracts to exceed the CBA floor. The CBA provides the minimum; more favorable individual arrangements are permitted.