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    An Introduction to Labor Law
    An Introduction to Labor Law
    An Introduction to Labor Law
    Ebook127 pages3 hours

    An Introduction to Labor Law

    By Michael Evan Gold

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    In An Introduction to Labor Law, Michael Evan Gold provides useful and timely information on labor law that should complement research in current and future topics in labor relations....This book can be used as a guide for labor law, past and present, for both policy-makers and researchers....The book provides a clear and concise description of labor law concepts and provides answers to many questions in labor relations. Moreover, the book also provokes questions and ideas regarding what should be no doubt new explorations into changes in labor law as it pertains to economic growth industries such as college athletics and health care.— Christopher K. Coombs â•Journal of Labor Research

    An Introduction to Labor Law  is a useful primer that explains the basic principles of the federal law regulating the relationship of employers to labor unions. In this updated third edition, which features a new introduction, Michael Evan Gold discusses the law that applies to union organizing and representation elections, the duty to bargain in good faith, economic weapons such as strikes and lockouts, and the enforcement of collective bargaining agreements.

    Gold describes the structure and functions of the National Labor Relations Board and of the federal courts in regard to labor cases and also presents a number of legal issues presently in contention between labor and management. 

    LanguageEnglish
    PublisherILR Press
    Release dateMar 4, 2014
    ISBN9780801470547
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      Book preview

      An Introduction to Labor Law - Michael Evan Gold

      PREFACE

      The purpose of this book is to introduce the reader to the federal law of unions and employers. This law is composed of two major elements. The first element is the National Labor Relations Act and the amendments to it. The second element is the decisions of the National Labor Relations Board and of the federal courts; these decisions interpret and apply the statutes.

      The statutes are long and complex, and the decisions of the Labor Board and of the courts number in the hundreds of thousands. As a result, this book cannot cover all of the law. Only the most important areas of the law are discussed, and the discussion of these areas is purposefully simplified. Although all of the following statements about the law are accurate, many are incomplete. Much more could be said about every topic addressed in this book.

      Two types of reader are likely to benefit from reading this book. One is the person who knows little or nothing about the law; the other is the person whose knowledge has become rusty with disuse. The former can learn, the latter can relearn, the basic principles and structures of the law.

      One type of reader is unlikely to benefit from this book: the person who needs to know whether specific conduct, arising in a context of many other facts, is legal or illegal. Too many rules have been omitted, too many qualifications have gone unstated, for this book to serve this purpose. The reader who needs to know the law in a specific case should consult a comprehensive treatise on labor law or, better yet, a labor lawyer.

      Samuel Kaynard and Peter Hoffman were kind enough to read and comment on the previous editions of this book, and Kati Griffith reviewed the revisions that are incorporated in this edition. Of course, any errors or misleading statements that may remain are the responsibility of the author.

      INTRODUCTION

      Learning the law is less like studying mathematics, and more like studying the web of a spider. The student of mathematics can learn the most basic operation, and proceed step by step to advanced operations that depend only on the previous ones. The student of law finds that one legal idea does not lead to another so much as that every idea connects to every other idea, and even fundamental principles require knowledge of other principles. In a sense, one needs to know everything in order to understand anything.

      Yet not everything can be explained at the same time. This book attempts to organize topics in a logical order, but the reader is unlikely fully to understand even the first topic unless the reader also understands (at least something about) several of the topics that follow it. One solution to this problem is to suggest that the reader read this book more than once. Even the author cannot advise that step. Another solution is to include cross-references (which are the way a book presents hyperlinks). But no one likes skipping back and forth in a book, and probably no one does it as often as one should. Some cross-references seem necessary, but they are kept to a minimum. Our best solution is to summarize a few basic ideas here at the outset. Some of these ideas are discussed in greater detail in their logical place in the organization of the book. If a better solution to this problem exists, the author would be grateful to learn about it.

      THE MEANING OF THE LAW

      Most Americans believe that legislatures make the law and that courts apply the law to individual cases. As any lawyer well knows, this belief is more false than true. It is somewhat true because legislatures do enact statutes, which the courts interpret and apply. But the belief is false because most law is actually made by the courts and by administrative agencies of the National Labor Relations Board.

      Courts make law in two ways. In the first way, which was more prevalent in the past, judges simply announced the law; we might say (though the judges never admitted it) that they invented the law. Legislatures had passed only a few statutes, and the judges used customs in the community or applied their own ideas of right and wrong to decide cases; those decisions then became precedents that judges followed in later cases. Such lawmaking is known as the common law. The common law continues to affect our lives today, though less powerfully than in the past.

      In the second way that courts make law, the starting point is a statute passed by a legislature. If the case of A v. B falls squarely within the words of the statute, we may say that the legislature has made the law that governs that case. But what if the case of C v. D is just slightly outside the words of the statute? In this event, the judge must decide whether or not the statute applies to the case. In making this decision, the judge is making law for the parties to the case. Because of the doctrine of precedent, this new law will also control future cases that are similar to C v. D. Then the case of E v. F comes along, and it is slightly different from C v. D; once again the judge will make new law in deciding this case. And then the case of G v. H comes up, and so on.

      If a legislature is dissatisfied with a court’s interpretation of a statute, the legislature has the power to amend the statute in order to override the court’s interpretation; however, this power is not exercised often. As a result, most law is made by court decisions.

      EMPLOYMENT AT WILL: THE LEGAL DEFAULT

      For more than a century, American law has conceived of the basic relationship of employer to employee as a contract at will, which means that either party is free to enter or exit the employment relationship at any time and for any reason. Whenever the employer desires, she may hire or fire the worker; whenever the worker desires, she may accept a job or quit it: and neither need say why.

      One consequence of employment at will is that the term permanent, as in a permanent job, is misleading. In most aspects of life, permanent means lasting forever, or at least a long time. In labor relations, however, permanent says little about how long something will last. Instead, permanent means not temporary, but having no specific termination date. A permanent job today could be abolished next week; a permanent employee today could quit or be laid off tomorrow. Another definition of permanent might be as of this moment, there is no plan to change.

      Employment at will is the legal default position in every state. Under employment at will, the employer and each individual employee negotiate the employee’s wages and working conditions. We will call such negotiations individual bargaining. In individual bargaining, the parties may agree on any terms they please. Take wages as an example. An employer might agree to pay, and an employee might agree to accept, compensation of a dollar a day or a million dollars a day. Two employees might be doing identical work, yet one might be paid more than the other because each struck a different bargain with the employer.

      Like other defaults, employment at will can be changed. Individual bargaining can change employment at will. For example, the parties may agree that the job will last one year. If, without good cause, the employer fires the employee, or the employee quits the job, before the year is over, the action is a breach of contract, and a lawsuit may result. Statutes can also change employment at will, and many have done so. For example, one federal statute prohibits an employer from paying less than a minimum wage, and other statutes prohibit discrimination on the basis of race, sex, age, or disability. But these changes to employment at will are minor compared to the changes made by labor law.

      THE MEANING OF LABOR LAW

      The term labor law does not mean what it seems to. It seems to mean all of the law that applies to workers and employers. In fact, labor law refers to only a part of this law, namely, the law that applies to unions and private employers. The reason for the confusion is that, when the term labor law came into use, the major laws that existed regarding workers applied to unions and private employers. In the last seventy-five years, the law has grown to include topics such as minimum wages, health and safety on the job, unemployment insurance, pension plans, race and sex discrimination, and so forth. A new term, employment law, has been coined for these laws. But labor law still means the law of unions and private employers. (Similarly, the term labor relations refers to dealings between employers and unions.)

      Today most labor law is federal law. It comprises several statutes enacted by Congress and interpretations of those statutes by the Labor Board and the courts. We will use the term Labor Act to refer to these statutes.*

      COLLECTIVE BARGAINING AND THE LABOR CONTRACT

      Labor law provides that if the majority of workers want to be represented by a labor union, collective bargaining replaces individual bargaining. Collective bargaining means that wages and working conditions are established by negotiation between the employer, on the one side, and the union, as the representative of the workers, on the other side. When negotiation is successful, it results in a collective bargaining agreement or labor contract. A collective bargaining agreement is usually written, but the written document is only part of the agreement. The agreement also includes established practices in the shop, spoken and unspoken understandings between the parties, and, to some extent, customs of the industry. (In contrast, the written document is the entire agreement between parties to

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