International Encyclopedia of Public Policy and Administration - Vol. 3

By Jay M. Shafritz | Go to book overview

LABOR LAW. The law as set forth in statute, constitutional provision, court decisions, and practice that deals with the protection or improvement of conditions of workers and with the rights of unions, employees, employers, and the public. In the United States, labor law is found in federal and state legislation and local ordinances, as well as in federal and state court decisions and attorney general opinions. It is highly variable by jurisdiction and level of government.Private-sector labor law is coherent and concise as it applies to unionization and collective bargaining. The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act, is the primary piece of legislation, as amended by the Labor Management Relations Act of 1947 (the Taft-Hartley Act) and the Labor Management Reporting and Disclosure Act of 1959 (the Landrum-Griffin Act). These statues apply to all workers in the private and nonprofit sectors throughout the country. Under this legal framework, labor policy is administered by the National Labor Relations Board, which investigates and adjudicates allegations of unfair labor practices and administers questions concerning the composition of the employee bargaining unit and selection of the union representative. National policy, at least in a formal sense, is to encourage private sector workers to form unions and engage in collective bargaining with their employers. Taft-Hartley imposes certain restrictions on union procedures and conduct (e.g., it prohibits compulsory union membership). Landrum-Griffin requires unions to meet various internal operating standards, such as guaranteeing their members' right to free association and speech, maintaining certain financial records, and accounting for expenditures.Public sector labor law in the United States is much more variable in its provisions, and it is found in a plethora of state and local statutory and other actions. It typically addresses the following issues:
1. Establishment of the collective bargaining relationship. This includes qualifications for and certification of the bargaining unit, determining the appropriate bargaining unit, unit status of employees (e.g., supervisors), selecting collective bargaining representatives through elections or other means, and judicial review of representational proceedings.
2. Obligation and duty to bargain. This includes the scope of bargaining, elements of good-faith bargaining, and the public's role and right to know.
3. Union security, including constitutional, statutory, and policy considerations that support establishment of various union security provisions including union shop, agency shop, maintenance of membership, fair share, and dues checkoff.
4. The right to strike, picket, and protest.
5. Impasse resolution, including mediation, factfinding, and arbitration. Strikes are usually, but not always, prohibited in government employment (see strike).
6. Enforcement of the collective bargaining relationship. This entails the legal status of the contract, grievance procedures, individual rights under the collective bargaining agreement, union and employer rights, and unfair labor practices. Unfair labor practices apply to either or to both employee organization and employer and consist of prohibited practices such as interfering with employees attempting to form a union or refusing to meet and bargain in good faith.
7. Political and civil rights of public employees, including due process, regulations of partisan political activities, and employment discrimination issues.
8. Establishment of the administrative agency to administer the labor law and collective negotiations. Whether they are called Public Employee Relations Boards or some other label, they are all dedicated to managing labor relations in state and local government employment.

During the early labor history of the United States, public employees were denied the right to form and join unions and the right to bargain collectively. The sovereignty doctrine, which declared that the sovereign, or state, should not abrogate its authority to set the terms and conditions of employment for government workers, acted as a bar to unionization and collective bargaining in most public jurisdictions. The arguments that public services are "essential" and monopolistic also suppressed unionization. Public employees were not covered by the Wagner Act (NLRA) of 1935 or the Taft-Hartley Act its (amendments), although a provision of the Taft-Hartley Act prohibits federal employee strike activity, and a 1955 law (Public Law 330) makes federal employee strike activity a felony.

For many years, the federal courts resisted recognizing the right of public employees to join unions and to bargain collectively. In the case of McAuliffe v. City of New Bedford ( 1892), for example, Justice Holmes asserted that although a former police officer "may have a constitutional right to talk politics, . . . he has no constitutional right to be a policeman." In 1967, however, the federal courts began to favor the right to form and join unions in the cases of Keyshian v. Board of Regents and McLaughlin v. Tilendis, followed two years later by Atkins v. City of Charlotte and Letter Carriers v. Blount. Thus, today the constitutional right of public employees to organize and join unions is protected by the courts under the First and Four- teenth Amendments. However, in the absence of legislation mandating collective bargaining, the courts have not


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International Encyclopedia of Public Policy and Administration - Vol. 3
Table of contents

Table of contents

  • Editorial Board *
  • Title Page *
  • L 1241
  • M 1323
  • N 1471
  • O 1517
  • P 1597
  • Q 1875


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