History of Employment Law

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History of Employment Law Powered By Docstoc
 Industrial revolution that dawned in England
  in the mid-18th century created a new class of
  employee. Neither a domestic servant nor an
  apprentice craftsman, the new industrial
  employee worked a specified # of hrs. in
  exchange for an agreed-on wage & returned

Collective Bargaining - History
 Employment law gradually changed to
  reflect the altered character of the
  employment relationship. Under the new
  contract-based law, & in stark contrast to the
  earlier master-servant law, the employer
  retained full sovereignty in the workplace
  while owing no obligation to the worker
  beyond the payment of wages for labor.

Collective Bargaining - History
 English common law traditions greatly
  influenced American employment law.
  With the legal system legitimating the
  employer’s right to unilaterally determine
  wages, terms, and conditions of
  employment., employees faced a long,
  uphill struggle to establish their right to
  organize & bargain collectively.

Collective Bargaining - History
 Courts in the early 1800s viewed unions as
  “criminal conspiracies in restraint of trade.”

 A Massachusetts court invalidated the
  restraint of trade doctrine in 1842, unions
  continued to be suppressed thru the use of
  “union-busting” tactics as lockouts,
  blacklisting of union organizers, harassment
  of union sympathizers, injunctions &
Collective Bargaining - History
 As management became more
  “professionalized” after the Civil War,
  counter organization seemed the only
  available option for employees hoping to
  promote their common interests.

 American Federal of Labor (AFL)
  succeeded in organizing skilled workers &
  combining local unions into a powerful
  nat’l org. in 1886.
 Collective Bargaining - History
 The Knights of Labor and the Congress of
  Industrial Organizations (CIO), succeeded in
  doing the same for unskilled & semiskilled
  industrial workers.

 With the power of organized labor, strikes
  became common occurrences in the early
  1900s. Recognizing that industrial peace was in
  the nation’s best interest, Congress intervened...
Collective Bargaining - History
 passed the 1935 National Labor Relations
  Act (Wagner Act) This act established the
  right of employees in the PRIVATE sector to
  organize & collectively bargain with their
 NLRA succeeded in establishing a
  framework for bringing the 2 sides together
  for purposes of bilateral negotiations.

 Collective Bargaining - History
 Labor org. were formed among skilled workers
  in the federal naval shipyards in the 1820s.
 Among postal workers in the 1860s.

 Unable to collectively bargain the more
  aggressive unions lobbied congress for shorter
  work weeks, higher wages, & better working

  Collective Bargaining - History
 Displeased with the aggressiveness with which
  postal workers pressed their demands, President
  Theodore Roosevelt issued a gag order in 1902
  forbidding federal employees from lobbying on
  their own behalf. The postal unions kept the
  pressure on.

 Congress responded by passing the Lloyd-
  LaFollette Act, guaranteeing to federal employees
  the right to organize & lobby on matters of
  Collective Bargaining - History
 In the years following the passage of the Lloyd-
  LaFollette Act, national labor org. emerged to
  unite the various local unions.
     National Federation of Federal Employees (1917)
     American Federation of Government Employees (1930)
     National Association of Government Employees (1930)
     American Federation of State, County and Municipal
      Employees (AFSCME) 1936.

 Collective Bargaining - History
 At the state & local level, teachers, police &
  firefighters began organizing during the late
  1800s, primarily as mutual benefit societies
  to provide insurance and pension benefits to
  their members.

Collective Bargaining - History
 During the 1950s a few gov’t began
  bargaining with their employees voluntarily.
  In 1950 Wisconsin became the 1st state to
  enact a statute authorizing collective
  bargaining for municipal employees.

 Philadelphia & New York City routinely
  negotiated labor agreements beginning by
  the mid 1950s.
Collective Bargaining - History
 Breakthrough for public sector unions came
  in 1962 when President Kennedy issued
  executive order 10988 establishing the right
  of federal employees to collectively
  bargain. Very limited scope of bargaining &
  prohibiting strikes- it nonetheless caused a
  rapid increase in union memberships &
  triggered the extension of similar rights to
  state & municipal employees.
Collective Bargaining - History
 Growth of union membership grew at an
  unprecedented rate .

 Today 37+ % of the federal civilian
  workforce & 45.3+% of state & local
  government employees belong to labor

Collective Bargaining - History

 Since employees are not required to belong
  to a union to be covered by a MOU, the %
  of employees actually represented by labor
  organizations is much higher.

Legal Context of Labor Relations
 C.B. in the public sector takes place within a
  legal framework that restricts which employee
  groups may participate in bargaining, the
  scope of bargaining, & the means by which
  disputes are settled.

Legal Context of Labor Relations
 Before the 60s few people believed that the
  NLRA model was applicable to the public

 In the 1st place, the employer was the
  government itself. Critics argued that the
  equality of bargaining power on which the
  NLRA model was premised could not be
  realized in the public sector.
  Legal Context of Labor Relations

 2ndly, critics said collective bargaining violates
  the sovereignty doctrine that states that the
  sovereignty entrusted by the people to their
  elected officials cannot be lawfully delegated to

Legal Context of Labor Relations

 To allow policy decisions regarding wages
  & terms & conditions of employment to be
  made by labor representatives & appointed
  officials, according to this argument,
  constitutes an illegal delegation of the
  people’s sovereign power.

 Legal Context of Labor Relations

 Truthfully, government agencies frequently
  enter into contracts of all kinds without
  legislative approval, and the courts, with few
  exceptions, have not found collective
  bargaining to constitute an illegal delegation
  of power.

Legal Context of Labor Relations

 3rdly, the NLRA model is not applicable to
  the public sector, because it is not reasonable
  to allow public employees the right to strike.

Legal Context of Labor Relations

 The Wellington-Winter thesis states that
  strikes in the strikes in the public sector
  cause serious disruptions in the delivery of
  critical services, place intense pressure on
  public officials to settle disputes, & thus
  give public unions too much power relative
  to other groups wanting a share of available
Legal Context of Labor Relations
 In addition, because many government
  services are difficult or impossible to secure
  thru private means - such as police, fire, &
  educational services - the public interest is
  easily held hostage to union demands.

 Boston police strike of 1919 is often cited as

 Legal Context of Labor Relations
 Subject to poor working conditions & desiring
  the right to organize & affiliate with the AFL, the
  Boston police walked off the job on 9-9-1919.
  Boston was quickly gripped by lawlessness &
  mob rule.

 Governor Coolidge called out the state guard,
  discharged the striking police, & restored order.
  This incident would be used as a reminder of
  public employees given the right to strike. 24
  Legal Context of Labor Relations
 Most policy makers agreed that before laws
  could be enacted authorizing collective
  bargaining in the public sector, modifications
  would have to be made to the NLRA model.
 1st. The right to strike is denied either by law or
  in practice to federal employees & to employees
  in all but 12 states.

  Legal Context of Labor Relations
 2nd, in the absence of the right to strike,
  alternative dispute resolution procedures are
  mandated by many labor relations laws. To
  discourage illegal strikes, for example, binding
  arbitration is specified as a mandatory or
  optional means of settling contract disputes in
  nearly all states with labor relations legislation.

 Legal Context of Labor Relations
 3rdly in deference to the sovereignty doctrine,
  labor laws often restrict the scope of bargaining
  & require legislative approval of the financial
  aspects of labor agreements.

 Labor Relations Statues
 The NLRA defines national labor relations
  policy for private & nonprofit org.

 Congress has not, enacted comparable
  legislation for public employees. As a result,
  labor relations policies & practices vary
  considerably from state to state.

 Labor Relations Statues
 In Atkins v City of Charlotte, a U.S. District
  Court invalidated a North Carolina state law that
  prohibited government employees from joining
  labor org. on the grounds that it violated their
  First & 14th Amendment rights.

Labor Relations Statues
 The federal labor relations system developed
  incrementally during the 1960s & 1970s as the
  result of a series of executive orders. Collective
  bargaining rights were not guaranteed by law
  until Congress enacted the Civil Service
  Reform Act, 1978.

 Labor Relations Statues
 Title VII (CSRA,’78) applies to all non-
  supervisory employees except members of the
  armed services & foreign service & employees
  of the GAO,FBI,CIA, NSA, TVA, & U.S.
  Postal Service.

 Employees of the Postal Service & TVA are
  authorized to bargain under separate pieces of
 CB - Private/Public Sector
 In the private sector, there are only 2
  dominant values competing in the context of
  collective bargaining - Administrative
  efficiency & Employee rights.
 Management’s only legitimate interest is the
  “bottom line” - protecting profits by keeping
  production costs (including wages & benefits)

 CB - Private/Public Sector
 In the absence of CB or employment
  contracts, most employees are hired & fired “at

 Pay & benefits are often negotiated on an
  individual basis, without general awareness by
  other employees in the company. Employees
  are more mobile, often moving from co. to co.
  in a quest for higher salaries/benefits.
CB - Private/Public Sector
 Companies seek to lower production costs by
  eliminating jobs, moving jobs to regions (or
  countries) where labor costs are lower (or
  where environmental health & workplace
  safety laws are less onerous for employees).

 Private sector CB is considered BI-
  LATERAL. - Labor union & management.

 CB - Private/Public Sector
 Public sector agencies are required to protect
  the individual rights of employees.
  Particularly from partisan political pressure
  & to promote efficiency rather than
  favoritism in public service delivery.

 Cumbersome nature of civil service laws
  regulating disciplinary action, & the need of
  public managers to maintain efficiency along
  with other values has meant that elected…. 35
 CB - Private/Public Sector
 Officials & public managers continue to exert
  pressures challenging the individual rights of
  employees. These include contracting out,
  privatization, political appointments, &
  affirmative action (where the rigidities of civil
  service or collective bargaining systems based
  on seniority have had an adverse impact on

  CB - Private/Public Sector
 Public sector unions have 3 advantages over
  their private counterparts:
 1st. Public agencies are required to provide
  services to residents of a particular geographic
  area. (usually fixed)

  CB - Private/Public Sector

 2ndly, union members are not just employees,
  they are voters as well. The strength of union
  members as political action arms & voting
  blocks is important in understanding their
  political strength.

 CB - Private/Public Sector
 3rdly, unions in the public sector have been
  able to obtain court opinions enforcing the
  value of individual rights as it is defined &
  protected by seniority systems. Generally,
  this means individual rights of union
  members (which frequently conflict with the
  rights of protected groups under affirmative
  action, or of applicants for employment.)

CB - Private/Public Sector

 Thus, understanding the unique role of
  collective bargaining in public agencies
  means understanding the relationship
  among union power & individual rights,
  constitutional protection, and political

 CB - Scope of Bargaining
 If the laws specify which issues are included
  or excluded, the scope of bargaining is
  considered closed.

 If no restrictions are placed upon bargainable
  issues, the scope of bargaining is termed

CB - Scope of Bargaining
 Certain issues are usually excluded from
  the scope of bargaining because they are
  management prerogatives. For example:
     agency structure
     agency mission,
     work methods or processes

CB - Scope of Bargaining

 Title VII of the CSRA,’78 prohibits covered
  federal employees from bargaining over
  wages, and other economic issues such as
  retirement & health benefits, which are
  established by Congress.

  CB - Scope of Bargaining
 Most state collective bargaining laws allow or
  require bargaining over wages, benefits, &
  working conditions. Sometimes the
  distinctions between what is or is not
  bargainable is not clear.

 CB - Scope of Bargaining
 Issues that management considers excluded,
  such as adding drug testing to selection or
  promotion criteria, are frequently considered
  bargainable by unions because they affect
  member rights or important public policy

 In such cases, their bargainability must be
  clarified by the state labor relations agency.
  Impasse Resolutions

 2 types of CB impasses. First are
  disagreements over the substance of
  negotiations (pay or benefits). 2ndly, are
  disagreements over the interpretation of
  contract provisions that have previously been
  negotiated & approves.


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