These efforts have been guided by, firstly the development and interpretation of case law, secondly be the use of sophisticated negotiation processes such as mediation and arbitration, and thirdly administrative law practice, involving appeals from decisions of administrative agencies through legislative regulations.
Brief History of Labor Law:
As the industrial revolution changed the way Americans worked and lived, labor law evolved as a specialized area of practice. Before the industrial revolution, the individual worker negotiated the terms of employment, including such issues as production expectations and job skill requirements directly with the employer. With the advent of the industrial revolution and the invention of the production line, however, the work place became more crowded and working conditions were often harsh; the conflict between labor and management intensified, and workers began to organize into unions that would negotiate for better wages and working conditions for their members.
Union membership expanded and contracted as economic conditions changed. Membership was reduced during wartime, as employment and wages increased with the concomitant increase in war-related production. Alternatively, membership escalated during numerous depressions, each causing unemployment.
The years from the late 1800s to the start of World War I were characterized by employers' use of the courts to obtain injunctions against union strike activities and by the institution of yellow-dog contracts, which forced workers to sign an oath that they would not join a union. The World War II years that followed the depression represented a period of cooperation between unions and management, who worked to resolve labor disputes without disrupting the production of goods vital to the war effort.
Over the years, as the courts became increasingly involved in attempting to provide boundaries for employer-employee interactions, the need for lawyers skilled in labor law began to grow. Attorneys advised employers about the interpretation and use of court decisions, how to invoke injunctions, and how to use existing laws to break up union activity. Union attorneys, armed with fewer economic resources, fought for employees seeking greater job security and a voice in the terms of their employment.
Rules for collective bargaining were established through the Railway Labor Relations Act (1926), the National Labor Relations Act (1935), which established the National Labor Relations Board (NLRB), the Taft-Hardey Act (1947), and other legislation.
The NLRB was empowered to administer and enforce the rights of workers to choose the bargaining agents who would serve as their representatives in employment negotiations. The NLRB also provided guide lines for contract negotiations and established standards of conduct for both unions and management, referred to in the act as "unfair labor practices".
Following the NRLB guidelines for certification of a particular union as the recognized bargaining unit for a group of workers can take sophisticated strategic planning, as does the actual bargaining process itself. For this reason, labor lawyers have become an integral part of the history and growth of the organized labor movement and in the development of the management-worker relationship.
In collective bargaining, representatives from the certified union and from management set forth the conditions of the contract under which all parties will be governed for an agreed upon period of time. Mandatory subjects of bargaining include wages, hours, and other conditions of employment, including benefits, promotion procedures, grievance procedures, pension issues, bonuses, group insurance, safety practices, seniority, and discipline for discharge procedures.
Attorneys representing union and management interests come to a bargaining table and present the contract proposals of their clients. Negotiations continue until a compromise agreeable to both employees and management is reached. Sessions can be protracted for days, weeks, and sometimes even months. The longer the negotiations continue, the more argumentative, frustrating, and often hostile they tend to become.
If a contract negotiation reaches an impasse, there are a number of options available to each side. Employees may decide to remain on the job without a contract while further negotiation attempts continue, they may vote to strike until a new contract is established. On the management side, employers can decide to close the place of employment, thus losing income, resources, and most certainly the goodwill of employees, which can drastically affect both quality and quantity of work produced long after a final contract agreement is reached and employees have re turned to work.
When such an impasse does occur, either side can request mediation to negotiate a new contract. A mediator is a neutral, impartial party who has extensive experience, usually a minimum of seven years, on either the union or management side, or within the federal government, as a negotiator familiar with collective bargaining agreements.
Mediators can also be personnel administrators with experience managing personnel policies for an employer with a large number of employees. Although a law degree is not mandatory, a legal education is extremely helpful and, in fact, many mediators are attorneys.
There are a number of state and federal government agencies, as well as private mediation services, that assist in solving labor-management disputes in industries that affect interstate commerce. The Federal Mediation and Conciliation Service, established by the Labor Management Act of 1947, provides free mediation services and has mediators available 24 hours a day.
A mediator usually meets separately with each side in a contested contract negotiation. Because mediators do not have the authority to force either a concession or make a decision concerning any issue being discussed, the mediator brings both sides back to the bargaining table after listening to both union and management positions.
Mediators are peacemakers who attempt to create an atmosphere free of hostility by the use of personal persuasion and an intimate knowledge of the collective bargaining process. They help both parties reach a com promise acceptable to all constituencies, so that a contract agreement may be reached.
Once a contract is signed and the rights, duties, and responsibilities of each side have been established and agreed upon, both the employers and employees must live within the tenets of the agreement. Disputes that arise during the life of the contract that cannot be resolved by union and management representatives are referred either to the NLRB, a state's labor hearing board, or an arbitrator.
Grievances handled by arbitrators frequently involve interpretation of a labor contract. These grievances usually are filed by an individual worker and involve a specific violation of the contract. Disputes involving unilateral changes in the interpretation of the contract are brought to the NLRB because they generally affect all workers represented under the contract. Thus, arbitrators are confined to interpretation and application of the terms of collective bargaining agreements to specific individuals.
Arbitrators, like mediators, are neutral parties who are experienced in hearing procedures and labor contract dispute resolutions; unlike mediators, however, arbitrators are given the authority to make a decision that is binding upon both sides. Although arbitrators are not required to be attorneys, most have legal training and have extensive experience in labor negotiations, a great many arbitrators are retired labor attorneys.
Most lawyer-arbitrators do not have an active labor law practice, in order to avoid the conflicts of interest implicit in employment by either union or management. Many are former government employees or labor law professors.
There are three types of arbitration: interest arbitration, in which an arbitrator decides the final terms of the contract; advisory arbitration, which an arbitrator makes a nonbinding decision, usually applied in a small number of public sector disputes; and, the most commonly called for, grievance arbitration, in which the arbitrator acts as an administrative judge and makes a decision that involves an interpretation of the terms of a specific contract.
The arbitration process is usually initiated when a grievance is filed with management and a negotiation session fails to reach a compromise. Both sides of the dispute may request a panel of arbitrators from either the Federal Mediation and Conciliation Service Office of Arbitration Services, or the American Arbitration Association. Following the process set out in the original contract, the disputants select an arbitrator from a list that includes a biography and an indication of the arbitrator's fee, most arbitrators charge by the hour, although a few have fixed fees. The agencies can usually provide the names of a number of arbitrators who practice in the same general locale.
Arbitrators initially receive a copy of the contract and an explanation by both parties of the particular grievance. After reviewing these, the arbitrator conducts a hearing at which both sides provide evidence in the form of testimony and legal research submitted in briefs. The arbitrator's decision is final, although some recent court decisions have begun to call into question the prohibition against the appeal of an arbitrator's decision.