The Basic Labor Laws (United States of America)
The Norris-LaGuardia Act (1932)
The fundamental purpose of the Norris-LaGuardia Act was to put a stop to anti-labor injunctions. At the turn of the century, when workers tried to organize the law was wholly on the side of the employer. Courts routinely issued court orders, called "injunctions," forbidding workers to strike and picket. If the workers disobeyed they were fmed and jailed for contempt of court, without jury trials or other forms of traditional due process. The injunctions were usually issued on the basis of affidavits (statements under oath) provided by the employer, without even giving the workers a chance to be heard.
The key sections of the Act are Sections 2, 4, and 7 (29 U.S.C. §§102, 104, 107). Section 2 is a declaration of public policy. It asserts that under modern economic conditions, "the individual unorganized worker is commonly helpless to exercise actual liberty. . . ." To be genuinely free, Section 2 declares, the individual worker must be able to organize collectively.
Accordingly, Section 4 of the Act lists a series of actions which Federal courts are flatly forbidden to enjoin (to "enjoin" something is to issue an injunction against it). No Federal court may enjoin any person or persons involved in a labor dispute "from doing, whether singly or in concert, any of the following acts":
- 1. Striking;
- 2. Becoming or remaining a member of a labor organization;
- 3. Paying strike or unemployment benefits;
- 4. Assisting a person involved in a labor dispute in a court case;
- 5. "Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence": in other words, peaceful picketing;
- 6. Peaceably assembling.
Section 7 of the National Labor Relations Act, which was enacted in 1935, protects these same kinds of "concerted activity."
Section 7 of the Norris-LaGuardia Act sets forth certain procedures that Federal courts must follow whenever they issue an injunction in a labor dispute. Essentially, Section 7 permits a court to issue a "temporary restraining order" (TRO) for a certain number of days, but requires the court to hold a hearing and give each side a chance to present evidence before issuing a preliminary or permanent injunction. These requirements have also been incorporated in the "rules of civil procedure" of both Federal and state courts.
In practice: The Norris-LaGuardia Act does not apply to state courts. When a strike begins the employer will ordinarily seek a TRO and then an injunction in state court. If there has been any mass picketing, any blocking of entrances to the workplace, or anything that the employer's lawyer can characterize as "violence," the court will typically issue an order limiting the number of pickets.
Until the 1960s, the union's lawyers could then remove the case to Federal court and seek to have the state court injunction declared void under the Norris La-Guardia Act. Unfortunately, in a case called Boys Markets the Supreme Court ignored the plain language of the Norris-LaGuardia Act and allowed Federal courts to issue injunctions against strikes when the collective bargaining agreement contains a grievance-arbitration procedure. (More about this later.)
The National Labor Relations Act (1935)
The National Labor Relations Act (NLRA) is sometimes called the Wagner Act, after its principal sponsor, Senator Robert Wagner of New York. The NLRA was amended in 1947 by the Taft-Hartley Act. The NLRA as amended is known as the Labor Management Relations Act (LMRA). In the United States Code, the Act begins at 29 U.S.C. §141.
The NLRA as amended is the law that, more than any other, regulates labor relations in the private sector. The Act is administered by the National Labor Relations Board (NLRB).
The philosophy of the Norris-LaGuardia Act was that if the courts could be kept from interfering, labor could fight its own battles. A few years' experience led many people to question this assumption. Labor won dramatic victories in 1932-1935, as in the 1934 general strikes in Minneapolis, Toledo, and San Francisco. But it also suffered bloody defeats, such as the 1934 textile strike.
The drafters of the NLRA believed that labor would never be able to deal with capital as an equal without help from the government. The philosophy of the NLRA is that government must help labor to organize into unions, after which labor will be strong enough to bargain collectively. Some organizations like the American Civil Liberties Union opposed the NLRA when it was first proposed, in the belief that it would give the government too much power over labor. John L. Lewis in the 1950s, and Lane Kirkland (president of the AFL-CIO) in the 1980s, stated that labor would be better off if the NLRA were repealed.
The heart of the NLRA is Section 7 (29 U.S.C. § 157). It states:
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.Section 8(a) lists a number of ways in which employers are prohibited from interfering with the exercise of Section 7 rights. Section 8(a)(2) prohibits the formation of company unions. Section 8(a)(3) states that it shall be an unfair labor practice for an employer to discriminate against a worker because of the worker's protected concerted activity. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain in good faith with the representatives of his employees.
In practice: Any person who believes Section 7 rights have been violated can file an unfair labor practice charge with a regional office of the NLRB. The charge must be filed and served on the employer within six months of the employer's misconduct. On the charge form, you need to state in a few sentences what conduct you believe violated the Act. There is also a blank in which the charging party must indicate the kind of unfair labor practice that has been committed. Discharges, and similar problems affecting individuals, are usually filed under Section 8(a)(3). Problems connected with refusal to bargain and unfair bargaining are usually filed under Section 8(a)(5), but only the union can file an 8(a)(5) charge.
An investigator from the NLRB will be assigned to the charge, and take affidavits from you and from your witnesses, as well as from the employer. The NLRB Regional Director then decides whether to issue a complaint. If the NLRB decides not to issue a complaint, you have a choice between withdrawing the charge or appealing the Regional Director's decision to the NLRB General Counsel in Washington, D.C. Only about 5 per cent of such appeals succeed in reversing the initial decision. There is no appeal from the decision of the General Counsel.
If the NLRB decides to issue a complaint, it will also schedule a hearing before an Administrative Law Judge (ALJ). Before the hearing the NLRB will try to settle the claim. This is a troubling time for many workers. Some will be tempted to choose back pay and forego their right to reinstatement. But if success at hearing would give you a right to reinstatement, and you insist on preserving that option, the NLRB is prohibited from settling your claim against your will. In deciding whether to settle you must remember that if the employer loses at hearing, there is the possibility of lengthy appeals.
The Fair Labor Standards Act (1938)
This law, also known as the Wages and Hours Act, made labor's long struggle for an eight-how day, and for the abolition of child labor, the law of the land. The text will be found at 29 U.S.C. §201. The Act prohibits the employment of children under the age of 16; requires employers to pay a minimum wage; and obliges employers to pay overtime pay when employees work more than 40 hours in a week. (Note that overtime is not required for more than 8 hours work in a day.) The Act applies to employers who produce goods sold in other states, or have other inter-state contacts, but there are many exceptions and exemptions.
In practice: The Act is administered by the United States Department of Labor. The Wages and Hours Division of the Department of Labor answers telephone inquiries.
Either the Department of Labor or individual employees can bring suit under the Act. Suit must be filed within two years of the claimed violation. If an employee or group of employees wishes to file suit, they need not (but can if they wish) first complain to the Department of Labor. Suits may be filed in either Federal or state courts, including state courts for small claims. If an employee sues on behalf of others as well as on his or her own behalf, each person on whose behalf suit is brought must file a written consent with the court. An employee who is successful in court receives any back wages due under either the minimum wage or overtime provisions of the law, plus an additional equal amount as a penalty, plus a reasonable attorney's fee.
Small claims court is a good place to go after unpaid wages or overtime. You and each of your buddies can file a claim up to the maximum amount permitted by law in your state. If you file the claims at the same time, they will be heard at the same time. Be prepared to prove both the number of unpaid or underpaid hours you worked, and the wage rate that should have been paid.
The Taft-Hartley Act (1947)
From the day the NLRA was passed, employers tried to amend it. These efforts were finally successful in the reactionary climate that prevailed after World War II. The Taft-Hartley Act is a series of amendments to the NLRA.
Just as Section 8(a) of the original NLRA forbade various unfair labor practices by employers, so the Taft-Hartley Act added a Section 8(b), which is a list of unfair labor practices by unions. The best-known anti-labor provisions of the Taft-Hartley Act are the secondary boycott provision, and the right to work provision.
If you boycott the products of somebody else's employer it is a secondary boycott, prohibited by Section 8(b)(7). Section 8(b)(7) is written in particularly foggy language, some of which has been interpreted to mean the opposite of what it seems to say. The general thrust of the provision is to outlaw working class solidarity: that is, to make it illegal for employees of one company to picket on behalf of employees of another company. You should consult a labor lawyer before embarking on a course of action that involves Section 8(b)(7). Section 14(b) gives state legislatures the authority to outlaw the union shop. (The terms "closed shop" and "union shop" are often confused. A "closed shop" refers to a situation in which the employer is required to hire from a pool of persons who are already union members. A "union shop" is one in which new hires are required to join the union within a certain period of time.)
Another important provision of the Taft-Hartley Act is Section 301 (29 U.S.C. §185). This provision makes a collective bargaining agreement legally enforceable: that is, it gives the employer a right to sue the union in court for violation of the contract. There was nothing inevitable about this amendment. In Great Britain, collective bargaining agreements were not legally enforceable until the passage of the Industrial Relations Act of 1971, and when unions refused to cooperate with the law, it was repealed in 1974. In the United States, however, thanks to Section 301 it has now become routine that when a union strikes in violation of the no-strike or grievance-arbitration clause in its contract, the employer will rush into court and:
1. Obtain an injunction, notwithstanding Section 4 of the Norris LaGuardia Act, requiring the union to stop striking and to arbitrate;
2. Sue the union for money ("damages") allegedly lost by the employer because of the strike.
In practice: A boycott of the products of your own employer is known as a primary boycott. A primary boycott is perfectly legal and protected by Section 7 of the NLRA provided (1) that you and your fellow workers are engaged in a labor dispute with your employer and make this known to the public, and (2) that in asking the public not to purchase your employer's product you do not disparage (criticize, run down) the product itself.
Later on, in the part of this manual called "Communal Rights," we shall consider how to overcome the secondary boycott provision of the Taft-Hartley Act. One feature of the Taft-Hartley Act protects rank and filers who organize in opposition to an established union. Section 8(b)(2) of the NLRA as amended by the Taft-Hartley Act makes it an unfair labor practice for a union to cause an employee to be discharged because the employee has been expelled from the union for some reason other than the failure to pay union dues. To say the same thing affirmatively: Section 8(b)(2) prohibits the union from causing you to be discharged as long as you keep up your dues payments.
The Labor Management Reporting and Disclosure Act (1959)
The Labor Management Reporting and Disclosure Act (LMRDA) is informally known as the Landrum-Griffin Act after its sponsors in the Senate and House of Representatives. It will be found at 29 U.S.C. §401. There were a number of reasons for the passage of this Act. Senator McClellan and other politicians were making a much-publicized investigation of corruption and racketeering in labor unions. The American Civil Liberties Union for years had urged Congressional protection for the rights of individual union members. Finally, after Section 301 of the Taft-Hartley Act made collective bargaining agreements enforceable in court, it became critical for rank and filers to control the contents of their contracts. As a practical matter this required them to take control of their unions.
The most important parts of the LMRDA are Titles 1, IV, and V. Title I contains the so-called worker's Bill of Rights. Section 101(a)(1) guarantees every member of a labor organization an equal right with every other member to nominate candidates, to vote in union elections or referendums, to attend membership meetings, and to take part in the discussion and voting upon the business of such meetings, "subject to reasonable rules and regulations in such organization's constitution and bylaws."
(Be careful: The courts have strictly defined this provision to mean only that if some members have these rights, then all members must have them equally. If a union constitution does not require rank-and-file ratification of contracts, for example, the Act does not require it.) Section 101(a)(2) provides that every member of a labor organization has the right to meet and assemble freely with other members, and to express any views, arguments, or opinions. Section 101(a)(3) requires certain procedures to be followed before dues can be increased. Under Section 101(a)(4), no labor organization may discipline a member for bringing suit against the union or its officers, provided the member first exhausts internal union appeal procedures, and provided also that no employer finances or otherwise backs the suit. Finally, Section 101(a)(5) states that no member of a labor organization may be disciplined except for nonpayment of dues without notice of specific charges, a reasonable time to prepare a defense, and a hearing.
Title IV regulates elections. It provides certain rights for insurgent candidates before elections, notably the right to inspect a union membership list, and (under court decisions in the Miners for Democracy campaign) a right to equal exposure in the union newspaper. After an election, a candidate alleging improper election practices can ask the United States Department of Labor to have the election set aside.
Title V requires union officers to conduct themselves toward their members as trustees: that is, to avoid all self interested transactions and to report fully to the membership. This provision was intended especially to prevent financial misconduct, but increasingly the courts have held union officers to be trustees in all their activities as officers.
In practice: Any union member whose Title I rights have been violated may bring a civil action in Federal district court. Officers and local unions, as well as individual rank and filers, are "members" for Title I purposes. However, before bringing suit you will ordinarily be required to use ("exhaust") internal union appeal procedures for a period of four months.
If you wish to appeal an election, you must first exhaust internal union appeal procedures for a period of three months. Then you can appeal to the Department of Labor. The Department of Labor can bring suit to set aside the election if it concludes that improper practices affected the outcome. You may not file your own suit to overturn the election.
Title VII of the Civil Rights Act (1964)
Civil rights are protected by a series of laws, some passed just after the Civil War, and others since the civil rights movement of the 1960s. All the labor laws considered up to this point are contained in Title 29 of the United States Code. Most civil rights laws, on the other hand, will be found in Title 42.
Title VII of the Civil Rights Act of 1964 (beginning at 42 U.S.C. §2000e) is the most important law protecting civil rights. According to Title VII, it is unlawful for an employer:
. . .to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her!] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ....
In practice: Generally, a charge must be filed with the regional office of the United States Equal Employment Opportunity Commission (EEOC) within 180 days of a Title VII violation. In states where EEOC charges are referred to the state civil rights agency for processing, known as "deferral states," the statute of limitations will be longer. When the violation alleged is not a one-time event like a discharge but a continuing violation such as an unfair system of seniority, the date on which the time for filing begins to run may be the last date on which the continuing violation occurred.
You can go to court under Title VII, but only to Federal court, and only after first filing with the EEOC. (You can also file with a state civil rights agency, and request that the charge be "dual filed" with the EEOC at the same time.) After the charge is filed you must wait another six months for the EEOC to act. Because of its enormous backlog of cases, it usually does nothing. At the end of this six months the EEOC must issue a "right to sue" letter if you request it, after receiving which you have another 90 days to bring suit in Federal court. You will need a lawyer to do this effectively: if you can't find a lawyer whom you can afford, file within the 90 days a motion asking the court to appoint one.
An important thing to remember about your Title VII rights is that you do not have to file a grievance before you go to court, and if you do file a grievance and lose in arbitration, you can still go to court for a "second bite at the apple." The reason for these provisions is that Congress considers the right not to be discriminated against to be more important than other workers' rights.
How to go about proving a Title VII case will be discussed more fully under the heading "The Right To Equal Treatment" in section IV.
The Occupational Safety And Health Act (1970)
The Occupational Safety and Health Act (OSHA) is located at 29 U.S.C. §651. The Act covers any private sector business with two or more employees. Employers already regulated by another Federal agency may be excluded. Interstate truckers are not covered by OSHA.
Section 5(a)(1) of OSHA obligates a covered employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The Act provides three kinds of rights: a "right to know" certain kinds of information, such as the chemical composition of toxic substances to which workers are exposed; a right to try to control workplace hazards by filing OSHA complaints; and a right contained in Section I I(c) not to be retaliated against for engaging in activities that OSHA protects.
In practice: Any present employee or representative of present employees can file an OSHA complaint against an employer. A complaint form can be obtained from the regional OSHA office. Your complaint should always state that there exists an "imminent" (immediate) danger, because only complaints alleging imminent danger are likely to result in OSHA inspections. The form permits the employee or employees signing a complaint to keep their names from being revealed to the employer. The form contains a box to be checked for this purpose.
Under Section 8(e) of the Act, a workers' representative has the right to accompany the inspector and point out safety violations as the inspector walks around the plant. If your plant is unionized, the inspector will ask the union to name a representative. If there is no union, but there is a plant safety committee with employee members, they will be asked to name the representative. If no representative is available the inspector is supposed to talk to as many workers as possible.
If you believe you have been discriminated against or disciplined because of safety activities, you must file an OSHA complaint within thirty days of the violation. OSHA will investigate. If OSHA believes there was a violation, it will refer the matter to the United States Department of Labor for possible litigation.
Unfortunately, there is no right to file your own law suit under OSHA. For this reason it is always a good idea in retaliation cases to file both a grievance and an NLRB charge as well as an OSHA complaint.
Employee Retirement Income Security Act (1974)
The Employee Retirement Income Security Act (ERISA) will be found at 29 U.S.C. §1001. Almost alone among industrial nations, the United States provides retirement income to unionized workers primarily through private pension plans. The purpose of ERISA is to ensure that retirees actually receive the pensions they have been promised by private employers.
There are two basic kinds of pension plan. A defined benefit plan tells you how much money you'll get, and the employer is supposed to put aside enough money to pay you when the time comes. A defined contribution plan tells the employer how much money he has to put aside, and you get however much was contributed plus interest minus administrative charges and decreases in value.
ERISA does not require employers to provide pensions (or medical insurance). It sets forth certain rules that apply to plans that the employer chooses to establish. As its name suggests, ERISA exists mainly to protect pensions, and in three very important ways it gives more protection to promised pension benefits than to promised medical benefits.
1. Funding. There are minimum funding requirements for defined benefit pension plans. The law does not require the employer to put aside funds for medical and life insurance benefits.
2. Vesting. Pensions vest (become nonforfeitable) after a certain number of years of service, usually five years. There is no automatic vesting of medical and life insurance benefits.
3. Guarantee. The Federal government backs up defined benefit pension plans through the Pension Benefit Guaranty Corporation (PBGC). Medical and life insurance benefits are not guaranteed.
In practice: How do you know what you've got in the way of pension and medical benefits? You can't count on what the employer tells you, for instance in a retirement exit interview. You can't even count on written summaries distributed by the employer or the union. The only language courts can be expected to enforce is the fine print contained in the actual "plan documents" or in the collective bargaining agreement.
Look for language that says the employer reserves the right to amend, modify, or terminate a plan at any time. It is usually in a section of the plan or benefit booklet under a heading such as "amendment and termination of plan." If your plan has been collectively bargained you should press your union to eliminate such language, and to insert language specifically protecting benefits for the lifetime of the retiree. Obviously this is most important in the case of medical insurance plans, since there are (as this is being written early in 1993) no government guarantees.
Even if you have the best of contract language, it can all be taken away in bankruptcy. In a later section we will discuss some strategies for protecting promised fringe benefits, even in bankruptcy.