VOLUME I Chapter 13 Labor-Management Relations

• Jurisdiction: South Carolina

Chapter 13 Labor-Management RelationsJ. Howard DanielJohn T. MerrellOgletree, Deakins, Nash, Smoak & Stewart, P.C.

I. Introduction

The law governing labor-management relations, especially the National Labor Relations Act (NLRA) and long-established cases interpreting the NLRA from the National Labor Relations Board (NLRB or Board), the United States Supreme Court and other federal courts, has provided a somewhat constant and predictable system under which employers and labor organizations can deal with labor relations. Although NLRB decisions regarding the seemingly endless minutia of issues created under the NLRA often sway slightly with changes in presidential administrations, the main pillars of labor law in the United States stand essentially in the same place they did five or six decades ago.

In recent years, however, there have been significant changes to labor law as we know it today. Proponents of labor law reform often cite the drastic decline in union membership, decreased usage of the collective bargaining process, income inequality and the perceived erosion of the original purposes of the NLRA as reasons for change.¹ Recent years have seen drastic changes, many seemingly designed to expand the NLRB's reach to nonunion employers and to make it easier for unions to win representation elections. For example, during the Obama administration, the NLRB issued decisions making it easier for unions to organize small, discrete groups within the workplace (so-called "micro-units");² granting employees the right to use their company-issued e-mail accounts for union organizing and other protected activity;³ granting employees the right to engage in photography and surreptitious recording in the workplace in the course of engaging in protected activity (for example, by memorializing safety hazards);⁴ holding that class waivers contained in arbitration agreements unlawfully impair employees' right to engage in protected concerted activity, even where employees have the opportunity to "opt out" of the agreements;⁵ and relaxing long-standing "joint employer" standards.⁶

Although the exact future of labor law cannot be precisely determined, it is safe to say that some changes will be realized. Accordingly, practitioners are cautioned to consult the current state of the law when researching any of the issues discussed in this chapter.

II. History

A. National Labor Relations Act of 1935 (Wagner Act)

The industrial revolution of the early 1900s changed the country's economic landscape. The number of workers employed by industry increased dramatically. Friction between management and labor necessitated the creation of a legal vehicle by which labor and management could negotiate the terms of their increasingly strained relations. In 1934, therefore, Senator Robert Wagner proposed legislation intended to create a framework for collective bargaining and to lend support to employee organization. As a result of Senator Wagner's personal efforts to rally support for this legislation, the NLRA, also known as the Wagner Act, was passed in 1935.⁷ The NLRA vested employees with certain key rights: (1) the right to organize; (2) the right to bargain collectively; and (3) the right to engage in strikes, picketing, and other concerted activities. In order to protect and enforce these rights, the NLRA also created a three-member administrative body called the National Labor Relations Board (NLRB or Board).

As originally written and before later amendments, the NLRA was distinctly one-sided in the way it sought to address the problems between labor and management. Employees were vested with the right to organize and to bargain collectively, but employers were not given corresponding rights.

B. Labor Management Relations Act, 1947 (Taft-Hartley Act)

The Labor Management Relations Act (LMRA), also known as the Taft-Hartley Act, was passed in 1947 to amend and supplement the NLRA.⁸ The LMRA sought to balance the protections given to employers and employees. In particular, the LMRA required labor organizations to abstain from conduct that was intended to burden or obstruct commerce. Employees were also given the right to refrain from participating in union activities. The NLRB was restructured in order to separate the adjudication function from the prosecution and investigative functions. The latter two functions were delegated to a General Counsel. In addition, the size of the actual Board was increased to five members. The LMRA also prohibited unions from engaging in certain unfair labor practices. Finally, the act guaranteed free speech rights to both employers and employees and required both labor and management to collectively bargain in good faith.

The LMRA also provided that complaints regarding unfair labor practices had to be filed within six months of an occurrence. Further, it created several types of injunctive relief. Finally, the act endorsed state "right-to-work" laws by prohibiting membership in a labor organization from being a condition of employment in any state or territory where such a policy was prohibited.

C. Labor Management Reporting and Disclosure Act of 1959 (The Landrum-Griffin Act)

The Labor Management Reporting and Disclosure Act of 1959 (LMRDA), also known as the Landrum-Griffin Act, was the last major amendment to the NLRA and made several important changes.⁹ First, recognitional and organizational picketing was made unlawful if (1) another union had been recognized and a question of representation could not be raised, (2) a valid election had been held within the preceding 12 months, or (3) the picketing continued, without the filing of an election petition, for more than 30 days. Second, the LMRDA addressed the problem of secondary boycotts. Secondary boycotts occur when a union encourages employees of a different employer to engage in concerted conduct or work stoppage. The act broadened the definition of covered employers and made it an unfair labor practice for a labor organization "to threaten, coerce, or restrain" persons engaged in commerce. Third, the act broadened the definitions of employer and employee in order to give federal labor law broader coverage.

The LMRDA also created a new section in the NLRA to address the problem of "hot cargo." Thus it became an unfair labor practice for a union to contract with an employer to restrict that employer's rights to handle the goods of any other employer. These types of agreements were effectively made unenforceable.

Several other changes were also made, including a slight restructuring of the Board. The Board was also given authority to delegate some of its responsibility to regional directors, specifically giving them the power to determine appropriate bargaining units, to investigate unfair labor practices, to adjudicate matters in regional hearings, and to determine the existence of questions concerning representation.

D. Further Amendments to the National Labor Relations Act

The Wagner Act, as amended by the Taft-Hartley Act and the Landrum-Griffin Act, is referred to as the NLRA. Since the passage of the LMRDA in 1959, the NLRA has undergone little significant change. There have, however, been several minor changes and amendments. Pursuant to the Postal Reorganization Act of 1970 (PRA),¹⁰ postal employees were granted collective bargaining rights. Those rights were essentially the same rights given to other employees by the LMRA. The NLRA was also amended to cope with the advent of different forms of health care institutions in the early 1970s. Finally, amendments were passed that freed from compulsory union membership any employee belonging to a bona fide religion or other group that, based on conscience, objected to joining or supporting a labor organization. Several attempts were made in the late 1970s to make broad and sweeping changes to the NLRA, but none were successful.

III. The National Labor Relations Board

A. Organization

The responsibility for adjudication, investigation, and prosecution is divided between the NLRB and its General Counsel. The Board has retained responsibility for adjudicating unfair labor practice complaints and representation petitions. The General Counsel investigates unfair labor practice charges and prosecutes them before the Board.

1. The Board and Administrative Law Judges

The five-member NLRB accomplishes its adjudicatory function with the assistance of a number of staff counsel and the use of administrative law judges (ALJs) to hear cases at the trial level. Each member of the Board is supported by a staff of attorneys. A chief counsel supervises the staff counsel and serves as the top assistant and adviser to his or her Board member. Staff counsel play a key role in separating cases in which the Board has issued clear precedent from those that might require discussion and policy considerations. The former are generally determined by a three-member panel of the Board. The latter may require the attention of the full Board.

Generally, hearings are held in the region in which the charge originates.¹¹ ALJs are responsible for conducting hearings on unfair labor practice complaints issued by the General Counsel. Accordingly, they make findings of fact, rule on the admissibility of evidence, and hear witness testimony. After a hearing, the ALJ will carefully consider all the evidence and prepare a decision.¹² The decision must contain "findings of fact, conclusions, and the reasons or basis therefore, upon all material issues of fact, law, or discretion presented on the record, and shall contain recommendations as to what disposition of the case should be made . . . ."¹³ Once the ALJ files the decision with the Board, the Board issues an order transferring the case from the ALJ to the Board.¹⁴

Parties may file exceptions to the ALJ's decision or any other part of the record within 28 days from the date the order transferring the case to the Board is served.¹⁵Exceptions should be filed directly with the Board in...