Section 7 of the National Labor relations Act provides that, workers who work in self-organizations have the right to engage in any form of collective bargaining, and may involve themselves in concerted activities. According to Merton (2006) the aim of participating in these activities is to attain collective bargaining, and for protection and mutual aid. This provision however does not cover workers in the union, or those who are planning to form a union. An employer is prohibited from restraining, interfering with, or from coercing the employees while they exercise any right which is provided for under section 7 of the NLRA. The provisions of section 7 exceed to some extent to the employee blogs. Blogs present the situation where courts strike a balance between the rights of the employers and those of the employees. Under blogs, the freedom of the employee to recognized, and the unfair treatment by the employer is recognized.
The NLRA Act provides that, the employer can make policies to the effect that, the employee is prohibited in solicitation when a worker is supposed to be engaged in his or her duty at the work place. The policy made by the employer cannot however restrict the employee from solicitation during non working hours. The NLRA Act explain the meaning of non working hours to include rest breaks, lunch hours and periods before or after the working time.
The Act provides that, the employer has the right to prohibit any of his employees from distributing literature within the area of work, and it does not matter whether it is during the hours of work or not, as long as the employee consistently applies the policy. Distribution of cards from the union is however considered by the board as oral solicitation, as opposed to spreading of literature, and is not restricted.
The general rule under section 8(a)(5) of the NLRA provides that, there should be collective bargaining between the employer and the employees, and this should be done in good faith. The Act provides that, the employer may opt to implement the “ take it or leave it” proposal in a situation where parties have gone impasse. If the employer offers such a proposal to the union and the members of the union decide to go to impasse, the employer is allowed by the NLRA to implement the proposal. Merton (2006) posited that, the word impasse implies to a situation where the parties solidify their position such that, the process of bargaining becomes impossible. Where both parties refuse to compromise, an impasse is said to have occurred. Where a process of finding facts is taking place in court, the employer may be prohibited from imposing the “take it or leave it “ proposal.
The scope of section 8 (a) (1) is similar to the scope as section 8 (a) (a) (3). The two sections have been viewed as having the motive of expanding the authority of the National Labor Relations Board, by giving it control to prevent employers from exercising any form of racial discrimination, or to practice any other invidious or arbitrary discrimination against the workers in the cause of work. Section 8 (1) (a) provides that, it amounts to unfair Labor practice, for the employer to restrict an employee from practicing their rights as provided under section 7 of the NLRA. Section 8 (1) (3) also states that, the employer should observe and respect the rights of employees to solicitation in Labor unions failure to which it amounts to unfair Labor practices.
The union security provisions are the clauses found in a labor contract, and give protection to the status of a union, under the agreement. According to Merton (2006), the clauses found in the Labor law contracts are subject to negotiation between the union and the employer, but they are not compelled by the law. An employee is bound by the agreement when their employers reach an agreement with a union in which the employee is a member.
The closed shop arrangement presents a situation where an organization undertakes to employ workers who are strong members of a certain Labor union. Where a person does not belong to a Labor union, they cannot be employed in such an organization. This is a rigid way of ensuring protection for Labor unions. The Taft-Hartley Congress looked into the effects of the closed shops agreements and outlawed them because they did not favor the terms of an employee in the work place. Where a union expelled a worker, it meant that the worker lost his or her rights at the place of work and could even be dismissed from work. The U.S. also declared the closed shop agreements illegal.
According to the congress, the National Labor Relations Act made room for workers to be allowed to talk with their employers about issues of production, or the conditions of working, issues of mutual interest and any grievances from the workers. The Labor management and the Relations Act, of the year 1947 created room for the employer to organize employee committees, for purposes of discussing issues of employees welfare without violating section 8 (a) (2). The court must look into the the reasons for the formation of such committees, how they operate and how they were formed, after the analysis by the court, then it can be determined whether the employers formed the employee management committee without a violation of section 8 (a) (2). This would also allow to consider whether the Act allows such groups of comities to exist alongside with the legal Labor unions.
Featherbedding refers to a situation where employers hire more workers than they are needed in the organization. Or the adoption of policies which do not make good meaning, for the sake of creating room for employment of more workers. This practice has been on the increase due to the fact that, many employees are loosing jobs as a result of adoption of technology equipments at places of work. Trade unions have adopted the practice of featherbedding as a way of securing job opportunities for the employees, who may otherwise be retrenched as a result of the changing technology. Question. 9
A lockout presents a situation where an employee decides to close down the business in order to push the employees to accept certain stated conditions. Lockouts are the apposite of strikes where we have workers refusing to work during strike and employers stopping the operation of the business in lockouts. Lockouts have for along time been confused with strikes due to the fact that, most strikes are accompanied by lockouts. Lockouts have been very common until the period of 1960's. Employers have been encouraged not to employ the technique of strikebreakers as a tool of solving disputes in the place of work. In situations where employers have applied the strikebreakers technique, violence from the employees become the result, with many of them losing jobs. This situation was worse during the 19th and 20th century. The Labor codes require that, even in strikes the status of employees must be retained, and the Act gives priority to strike by employees as opposed to lockout by employers.
According to the United States National Labor Relations Board (2005), a Labor strike is a protected activity when any of the actions conducted during the strike are within the scope of section 7 of the NLRA. This section grants employees the right to involve themselves in concerted activities, with the main purpose of enhancing their protection and mutual aid. The employees while conducting the strikes must ensure that, their rights are exercised in the right manner. The employer on the other hand is not allowed to interfere with this right, failure to which it will amount to unfair labor practice.
Generally, a worker who is a member of a trade union is supposed to present his or her grievances through that trade union. However, where the contract of employment has a writing in material that, the employer and employee intend that a bargain be conducted between the two parties, then such an agreement is binding. Where the employer decides to enforce a bargaini agreement with the individual worker, such a bargain must not contravene the principles and motives of the trade union in which the worker is a member, otherwise the bargain will be termed as illegal (Merton, 2006).
In the mandatory subjects of bargaining, section 8 (d) of the NLRA requires that, the parties who take part in the process of collective bargaining, must do so in good faith. Section8 (d) requires that, parties who decide to use arbitration as a way of solving disputes as per the contract, when they decide to solve disputes that are post expired can make consent by use of explicit agreement. The section provides for the drafting of a collective agreement to avoid controversial disputes upon the expiration of the previous agreement, and the execution of the new one. Where the requirement is not complied with, the old agreement should prevail till parties get to impasse. The arbitration of various disputes which are post expired arise under a contract. Where there are no binding methods for resolving disputes which are post-expired, a party is allowed to fill charges for unfair Labor practice with the board. The board may ask parties to consent to the explicit agreement and the parties may use this agreement to solve the dispute.
Section 8 (a) (5) and also section 8 (d) require parties to a collective bargaining agreement to conduct the process of bargaining in good faith. The NLRA refers to a take it or leave it bargaining as illegal due to the fact that, the aspect of good faith is not observed. The NLRA however recognizes a situation where the employer fails to agree with the employees and the he issues a take it or leave it proposal. If the parties then make a decision to go to impasse, the employer is legally allowed to implement the proposal.
The constitution of United States has a provision on the right of speech which extends not only to the right to talk, but also communication and expression of all kind. This includes leafleting, marching to the city hall, picketing, gathering signatures, or armband wearing. picketing involves holding protests outside the area of work by employees. The U.S. government recognizes this as a freedom of speech through which workers present their grievances.
Though the United State recognizes the right of picketing, it is stated that, the right is not absolute but is subject to restrictions. The right is restricted in the manner of time, place, or in any other way. A large rally for instance cannot be held at midnight, or outside a hospital set up, or in a violent manner. The government in some circumstances retain the right to control which route the rally should follow, at what time or even regulate the speech if need be. The right of picketing is also limited where there is threat of public safety or physical combat.
The right to freedom of expression is not an absolute right to express oneself at any time, in any place, in any manner. There is for example no right hold a large rally at midnight, or outside a hospital. While we may have the right to match in a parade or on a city street, we may not have the right to decide the exact time or route. The government has the authority to make reasonable restrictions on the time, place, and the manner in which a certain speech or activity is done if there is need to.
According to Merton (2006) recognitional picketing is holding of a rally or a parade outside a business premise with the aim of compelling the employer to acknowledge that, a certain union is exclusive and a significant agent for the workers bargaining agreements. Section 10 (j) of the NLRA states that, an injunction may be issued by the board to prohibit recognitional picketing, where a matter has already been presented to the board, and is waiting for a decision to be made. Temporary injunctions are also issued by the board where it is alleged that a recognitionl picketing is about to take place and is likely to be harmful.
According to the United States National Labor Relations Board (2005), primary picketing presents a situation where workers form a rally outside the business premise, with the aim of airing out grievances touching on working conditions. Secondary picketing on the other hand, presents the situation where workers can form a rally at any site apart from the normal place of business. At the secondary level, the target of the aggrieved employees is to influence a significant number of party members, to refuse delivering services to the primary employer. The NLRA board stated that, where a picketing act is done to protect the work of an employee, then a primary picketing takes place, but where the picketing is representing the interests of other trade unions, a secondary picketing is said to be taking place.
United States National Labor Relations Board (2005). Labor Relations Reference Manual: The Law of Labor Relations Including Statutes, Opinions of the Courts, and Decisions of the National Labor Relations Board. Published by Bureau of National. Origin from the University of California
Merton, C. (2006). Private Dispute Settlement; Cases and Materials on Arbitration: Cases and Materials on Arbitration. Michigan: Michigan Press.