V. Collective Bargaining Laws

• Jurisdiction: New York

V. Collective Bargaining Laws

A central body of law that substantially modified the at-will doctrine is collective bargaining statutes. This Part provides an overview of those laws because they transformed the employer-employee relationship by granting employees a statutory right to unionize and engage in other protected associational activities. While union representation has declined nationally over the past three decades in the private sector, the general practitioner may anticipate encountering issues involving a unionized workplace, an organizing campaign involving low wage workers, or other protected concerted activities in an unorganized workplace. A general practitioner who comes upon such a case, however, is well advised to confer with a specialist because the necessary time to prepare such a case, including researching the substantive and procedural issues, might not justify the general practitioner's efforts.

PRACTICE GUIDE

Litigation, collective bargaining, and grievance arbitration are a large part of labor relations law. In most cases, nevertheless, unions and management must work together after differences are resolved. In order to promote cooperation and more productive relationships, good practice emphasizes negotiations and the search for acceptable compromises.

The primary federal private sector collective bargaining statute is the National Labor Relations Act (NLRA).²³⁹ It declares that it is the policy of the United States to encourage the practice and procedure of collective bargaining and to protect the right of private sector employees to the "full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."²⁴⁰ Many provisions of the NLRA were substantially amended in 1947²⁴¹ and, as amended, it is the focus of most of the attention given to labor relations law in this chapter because it covers most private sector employees.

New York has its own private sector collective bargaining law, originally enacted in 1937 that is now known as the New York State Employment Relations Act (SERA).²⁴² SERA covers private-sector employment that does not meet the jurisdictional standards for coverage under the NLRA.²⁴³

Following the enactment of the NLRA and SERA, public employees at an increasing rate began to seek negotiation rights and opportunities similar to those enjoyed by private-sector employees. The federal government, several states and a few municipalities began to provide such opportunities through the promulgation of executive orders or the enactment of local statutes and ordinances.²⁴⁴ Both New York Civil Service Law, Article 14,²⁴⁵ known as the Taylor Law, and a local law in New York City were enacted in 1967.²⁴⁶ The Taylor Law and SERA will be discussed only to the extent that they differ significantly from the NLRA. ²⁴⁷

By its terms, the NLRA excludes from its coverage employment that is subject to the federal Railway Labor Act, agricultural laborers, domestic workers, and those employed by "any State or political subdivision thereof."²⁴⁸ Where the NLRA is applicable, however, that jurisdiction is exclusive and preempts state private sector labor relations laws²⁴⁹ as well as the jurisdiction of state²⁵⁰ and federal courts.²⁵¹ The NLRA also covers private-sector...