Acknowledgement I would like to express my special thanks of gratitude to my teacher (Ms. Pallavi gusain) as well as our principal (Dr. S.k pandey) who gave me the golden opportunity to do this wonderful project on the topic (Collective Bargaining & its modes ), which also helped me in doing a lot of Research and I came to know about so many new things I am really thankful to them. Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this project within the limited time frame.
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Abstract Collective bargaining is concerned with the relations between trade unions & management. Bargaining is collective because chosen representatives of labor & management acts as bargaining agents. Collective bargaining has served as a cornerstone institution for democracy, a mechanism for increasing workers, incomes improving working conditions and reducing inequality, a means for ensuring fair employment relations and a source of workplace innovation. However, the number of workers belonging to trade unions has declined in many countries and global economic integration has tipped bargaining power in favor of employers. This paper reviews recent trends and developments in respect of collective bargaining. It examines the evolution of collective bargaining in different regions of the world. It highlights the manner in which collective bargaining structures have adapted to competitive pressures and the increasing coordination of bargaining agendas, the authors note the increasing diversity of issues on the bargaining agenda. The highlight particularly innovative practices in respect of the application of collective agreements to non-standers workers and the role that collective bargaining played in mitigating the effects of the recent economic crisis on workers and enterprises. These developments and the ongoing challenges facing collective bargaining present a number of issues for future research.
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TABLE OF CONTENT 1. Introduction & function………………………………………………..4 2. Objectives & Principles……………………… Principles………………………………………………...5 ………………………...5 3. Levels, types, process of collective bargaining…………………………6 4. Function & essential……………………… essential…………………………………………………… ……………………………7 7 5. Collective bargaining in India………………………………………….8 6. Recent trend in Collective bar gaining…………………………………12 gaining…………………………………12 7. Cases………………… Cases……………………………………………… …………………………………………………16 ……………………16 8. Conclusion……………………………………………………………..27 9. References & bibliography…………………………… bibliography……………………………………………..28 ………………..28
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Collective bargaining and its modes The process through which a Labour Union and an employer negotiate the scope of the employment relationship. Collective bargaining is specifically an industrial relations mechanism or tool, and is an aspect of negotiation, applicable to the employment relationship. As a process, the two are in essence the same, and the principles applicable to negotiations ne gotiations are relevant to collective bargaining as well. Collective bargaining is concerned with the relations between trade unions & management. Bargaining is collective because chosen representatives of labor & management acts as bargaining agents. According to Michael J.Jucius Collective Bargaining refers to a process by which employers on the one hand and representatives of the employees on the other attempt to arrive at agreements covering the conditions under which employees will contribute and be compensated for their services. Features of Collective Bargaining
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Group & Collective Action
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Strength
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Continuous Process
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Flexible
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Voluntary
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Dynamic
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Power Relationship
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Bipartite Process
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Two Party Process
Objectives
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To maintain cordial relations between management & the workers.
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To settle disputes/conflicts relating to working conditions & wages.
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To protect interest of workers through collective action.
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To ensure participation of Trade Unions.
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To resolve the differences between workers and ma nagement.
Principles of Collective Bargaining •
Principles for Trade Unions-: a) they should have open mind on various issues’) issues’) There should not be any room for confusion & misunderstanding’s) Trade Unions should fully support management. D) Strike calls should be the last resort.
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Principles for Management-: a) Management should give proper recognition to trade unions. (b)Rules governing labor should be periodically examined. c) All the clauses of agreements should be accepted in true spirit.
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Principles for both Union & Management-: a) both the parties should have faith on each other. b) Both the parties should have positive view of whole process rather thinking it as formality. C) Both the parties should adhere to all laws applicable to Collective Bargaining.
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Levels of Collective Bargaining…….. Bargaining……..
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At Plant Level
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At Industry Level
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At National Level
Types of Collective Bargaining
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Distributive Bargaining-: Bargaining-: In this one party’s gain is another an other party’s loss.
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Integrative Bargaining-: In this both the parties may gain or at least neither party loses.
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Attitudinal Structuring-: When there is backlog of bitterness between both the parties then attitudinal structuring is required to make smooth industrial relations.
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Intra-Organizational Bargaining-: There can be conflicting groups in both management & unions also so there is need to achieve Conesus in these groups.
Process of Collective Bargaining…… Bargaining……
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Identification of problem.
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Preparation for Negotiation.
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Negotiation Procedure.
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Implementation of Contract.
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Functions of Collective Bargaining
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Long run Social change-: It is a technique of long run social change where inferior class aims to acquire a large measure of economic & political control over crucial decision in the areas of its most immediate interest.
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Peace Treaty-: Conflicts are smoothened by the compromises.
A) Compromise with Combative (Struggling) Aspects.
B) Compromises without Combative aspects.
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Industrial Jurisprudence- it is a method of introducing civil rights into industry that is, of
requiring that management be conducted by rules rather than arbitrary decisions.
Essentials of Successful collective Bargaining
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Favorable Political Climate
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Strong & Stable Unions
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Recognition
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Willingness to give & take
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Negotiator’s Authority
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Fair practices
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Positive Attitude
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Factors Inhibiting Collective Bargaining
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Employer’s Reluctance
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Multiple Unions
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Non-Recognition
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Weak Unions
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Political Interference
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Inadequate Interventions
Role of Collective Bargaining in Human Resource
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From Management Point of View
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From Workers Point of View
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From Trade Union Point of view
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From Govt. Point of View
Collective Bargaining in India……. The collective bargaining in India remained limited in its scope and restricted in its coverage by a well defined legal structure. Actually, the labor laws systematically promoted and perpetuated a duality of labour-formal sector workers enjoying better space for collective bargaining and 8|Page
informal ones with no scope for collective bargaining. To understand this, we can discuss in brief about the labour legislations in India and their scop e and coverage. It is interesting to note that the applicability of different sections of labour laws is limited by number of workers engaged in an establishment. The limitations put in applicability of labor laws is haphazard and there is no logic behind it, but in overall terms it systematically denies any protection and any social security to those employed in smaller factories with less than ten workers. The Factories Act provides for the health, safety, welfare and other aspects aspects of workers while at work in the factories. Under this Act, an establishment with power employing 10 workers and 20 workers in case of no power connection is a factory, but following provisions of the act are not applicable to to all factories: Provision for crèche: applicable only if 30 or more women are employed; Provisions of a rest room: applicable only if there are 150 or more workers; Provisions of canteen: applicable only if there are 250 or more workers; Provisions for ambulance, dispensary, and medical and Para-medical staff: applicable only if there are 500 or more workers. Employees Provident and Miscellaneous provisions Act, Maternity Benefit Act and Payment of Gratuity Act apply to all establishments with 10 or more workers. But Employees State Insurance Act applies to only those establishments with 20 or more workers. Minimum Wages Act applies to all establishments and all workers, but the Payment of Wages Act applies only to those establishments with 10 or more workers, and also only to those workers getting wages less than Rs 1600 per month. On the other hand, the Payment of Bonus Act is applicable to only those enterprises employing 20 or more workers and only to those workers getting wages less than Rs 3500 per month. Industrial Disputes Act, 1947 lays down the procedures for the settlement of industrial disputes. Its procedural aspects are applicable to all enterprises for the settlement of industrial disputes. However, really protective clauses for the workers pertaining to layoffs, retrenchments and closures are contained in Chapter VA and Chapter VB, which have limited applicability. Chapter V B does not apply to any establishment employing less than one hundred workers and Chapter V A does not appl y to any establishment employing less than 50 workers. Industrial Employment (Standing Orders) Act makes it compulsory to have Standing Orders in each enterprise to define 9|Page
misconducts and other service conditions, and also entails that for any misconduct no worker will be punished without due process of law using the principles of natural justice. But this law does not apply to those enterprises employing less than 100 workers (only in few states like Uttar Pradesh, it is made applicable to all factories (i.e. employing 10 or more workers). Trade Union Act applies to all establishments with 7 or more workers, since a minimum of 7 members are necessary in order to register a trade union. To sum up, if we look at the general picture, only a tiny section of workforce is protected by the labour laws and has guaranteed space for collective bargaining in well defined legal le gal boundaries. According to the Fifth Economic Census (1999) more than 97 percent of the enterprises employ less than ten workers, and most of these employ less than five workers. Therefore, protective labour laws apply to only less than three percent of the enterprises; and in rest of the 97 percent enterprises only Industrial Disputes Act (minus its protective sections like section V-A, V-B), Minimum Wages Act, the Workmen’s Compensation Act, Equal remuneration Act, and the Shops and Establishments Act (enacted by each state separately) and some pieces of labor legislation enacted for specific occupations are applicable. Generally these 97 percent enterprises are said to represent industrial informal sector (those not covered under Factories Act) and the three percent as formal sector (those covered under Factories Act). Total workforce employed in different sectors in India (principal plus subsidiary employment) is about 456 million, of which informal sector accounts for about 393.2 million (86 percent).
It is also to be noted that in formalization of the workforce that was accelerated with the advent of liberalization, has transformed the formal sector also in terms of shifting the jobs from formal to informal sector and also by informalisation of jobs within the formal sector units. Now, in the formal sector, number of formal workers is about 33.7 million and informal workers about 28.9 million (2004-05). Increase in the employment (in whatever amount) in the formal sector has largely been of informal in nature. India has neither ratified ILO convention on Freedom of Association and Protection of the Right to Organize 1948 (C. 87), nor the Right to Organize and Collective Bargaining Convention, 1949 10 | P a g e
(C. 98). Trade Union Act of India provides right to association only with a limited scope and limited coverage. The Trade Union Act 1926 was amended in 2001 and after the amendment it became more difficult to form the trade unions. In the Act of 1926, only seven members were required to register a trade union, but after amendment at least 10% or 100, whichever is less, subject to a minimum of 7 workmen engaged or employed in the establishment are required to be the members of the union before its registration. The amendment also introduces a limitation on the number of outsiders among the office bearers. Collective bargaining is limited within the scope provided in Industrial Disputes Act 1947. It is worth mentioning that only when the unions are recognized by the management then only they have the full-fledged rights as bargaining agent on behalf of workers. But there is no legal obligation on employers to recognize a union or engage in collective bargaining. The statutes of only few states of India like Maharashtra, Gujarat, Madhya Pradesh and Rajasthan have made some provisions for recognition of unions with a specific pe rcentage of the workforce. In India, right to protest is a fundamental right under Article 19 of the Constitution of India; but right to strike is not a fundamental right. Right to strike as also the right to lock-out is a legal right governed by Industrial Disputes Act 1947. Under the law, all strikes needed due notices and in this period if management requests for a conciliation, then strike is not legal until the conciliation continues. Even if conciliation fails, the government may refer the dispute for compulsory arbitration or to a labour court for a final decision, and during this period pe riod the strike is considered to be illegal. The State Governments, may also for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace, make provisions for prohibiting strikes or lock-outs. Large number of special economic zones (SEZs) and proposed National Manufacturing Investment Zones are already declared public utility services se rvices and therefore the legal strike becomes almost impossible in the zones. Moreover, in recent decades, a number of judgments came from the Supreme Court setting precedents against the right to strike.
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The trade union movement in India comprises of over 70,000 registered unions (politically affiliated and independent) and an unaccountable number of non-registered organizations engaged on the issue of promoting and protecting workers' interests. Trade unions in India largely represent only formal sector workers. There are now 12 Central Trade Union in India: Union density in India is only 8 percent and in this regard it ranks at 48th position in the world. In the new verification of membership in 2001, the growth in trade union membership is very visible, but largely this growth is from informal sector or most importantly from rural labour. Recent Trends in Collective Bargaining 1.
Decentralized and Individualized Bargaining
The collective bargaining in India remained largely decentralized, i.e. company or unit level bargaining rather than Industry level bargaining. But in some sectors (mostly public sector industries) the industry level bargaining was dominant. However, privatization of public sector transformed the industry level bargaining to company level bargaining. On the other hand, due to drastic infomalisation of workforce and downsizing in the industries, the strength and power of the trade unions is heavily reduced. The trade unions mainly represented the interests of formal workers. Increasing number of informal workers in the companies soon transformed the structure of the workforce in such a way that the formal workers became a minority. Moreover, in some sectors like garment, there is almost complete informalisation of the work force with only a tiny section of formal workers. It happened in almost all sectors. Due to various reasons informal workers are not able to form their own trade unions, and on the other hand they are not represented by the trade unions of the formal workers. These situations resulted in spurt of individualized bargaining. High level of informalisation of workforce combined with the individualized bargaining actually changed the character of the trade unions also. In relevant sectors and industrial regions, it converted many trade unions (particularly in sector dominated by informal workers) in to legal consultants (pursuing individual cases and charging fees for their services) rather than collective bargaining agents.
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2.
Declining Wage Share
Declining strength of collective bargaining is also reflected in sharply increasing share of profit and drastically declining the wage share (since 2001-02), resulting in depressing purchasing power. Approximately 73 million out of 173 million wage earners throughout India do not receive minimum wage. About 30 – 40 40 per cent of these low-paid wage earners belong to poor families. 3.
New Wave of Labour Movement for Unionization
A new wave of workers struggle for unionization is emerging from below by and large independent from the central trade unions. This is mainly emerging in the formal sector. The workers are realizing by their own experiences that they cannot change their fate without organizing themselves in a trade union. In many cases the workers do not get even the legal benefits like minimum wages, premium rate of overtime and holidays and casual leaves. Once the union is formed, at least the minimum benefits guaranteed by law are easily available to all workers. Actually large numbers of informal workers are illegally put in the category of informal, and they can convert their status in to formal workers only by organizing themselves in a trade union. It is in this background that even when the workers are facing unimaginable repression for their attempts to form a union, they are fighting for it and more and more workers in new factories are also choosing the same. In 2009-10, most of the well known workers struggles were on the issue of formation or for recognition of the trade union for collective bargaining, e.g. Hyundai Workers Struggle for Recognition of the Union, Nokia Workers Struggle Struggle for Wage Hike and Against Victimization, MRF Workers Struggle for Recognition of Union, Pricol Workers Struggle for Recognition of Union, Graziano Workers struggle for Unionization, The Case of Trade Union Repression in Nestle, Vive Global Workers Struggle for Minimum Wages and Unionization, Rico Auto Workers Struggle for Unionization and Sunbeam Workers Struggle for Democratization of the union. It is also interesting to note that in almost all the above cases both formal and informal workers came together in these struggles. It explains that the conditions have already entered in a new 13 | P a g e
phase when the numbers of informal workers in factories are either equal to or more than formal workers and generally with same competence levels. Therefore the enmity of formal workers with informal workers has gone. Now rather than trying to oust informal workers, the formals are uniting with informal and demanding regularization of their jobs so that they get the same status and benefits as formal workers. Unionizing all the formal and informal workers under the same union is actually one major step in this direction. On the other hand, the industrialists are not ready to accept trade unions in their factories at any cost. They are unleashing unimaginable repression on workers and trade union leaders when there are efforts to form trade unions in their factories. Even after the trade unions are formed, managements are not ready to recognize them and therefore deny them space for collective bargaining. According the data of Government of India on strikes and lockouts (Indian Labor Statistics 2010), causal factor of 34.8 percent cases of industrial disputes is recorded as indiscipline. 22 percent cases of industrial disputes are around demands for wages and allowances (in many cases demanding only minimum wages fixed by the government). Actually these two categories of industrial disputes largely reflect on the sufferings of informal workers and repression unleashed by factory managements on unionization efforts of the workers. Moreover, after the liberalization, man days lost in the lockouts locko uts are far more than the strikes b y the workers. This is a consistent trend. In the meantime, the central trade unions are also increasingly realizing the importance of unity among trade unions. This is reflected in formation of a Coordination Committee of eight Central Trade Unions on the other. First joint action of this coordination committee was the one day All India General Strike on 7th Nov 2010, which is said to be the biggest strike in India since independence with participation of about 100 1 00 million workers from all over the country. There are also new initiatives to organize informal sector workers particularly the agriculture workers. After the implementation of National Rural Employment Guarantee Act, the new possibilities emerged to unionize unioniz e the rural workers around the NREGA. Many local lo cal level unions of rural workers and also regional platforms of rural workers have started emerging. However,
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the system of collective bargaining in this sector is very different; it is mostly on general issues like proper implementation of the act itself, ensuring minimum wages, employment guarantee and workplace facilities. Since the wages (minimum wages) and facilities are fixed by law, the struggle is actually for implementation of the NREGA. There are also initiatives to organize other informal sector workers also like forest workers, fish workers and other self employed categories. But the movement is still very weak and informal sector workers are by and large not able to realize the right of collective bargaining. ba rgaining.
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Cases 1977 - Abood v. Detroit Board of Education A six-member majority of the Court rejected arguments that requiring public employees to pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such is constitutionally valid, but only "insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes." The Court unanimously agreed that "a union cannot constitutionally spend [objectors'] funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties d uties as collective-bargaining representative." 1984 - Ellis v. Brotherhood of Railway, Airline and S teamship Clerks, et al. The Court held that the Railway Labour Act not only prohibits coerced financial support of union politics and ideological activities, but also coerced support of other activities unrelated to collective bargaining and contract administration, such as organizing, litigation not concerning objecting employees' bargaining unit, and the parts of union publications reporting on nonchargeable activities. The Court also ruled that a "union cannot be allowed to commit dissenters' funds to improper uses even temporarily," prohibiting "rebate" schemes under which unions collect full dues, use part for improper purposes, and only later refund that part to the employees. This Foundation-won case signaled a closing of the Abood loophole, because a phony union "rebate" scheme is equated with an involuntary loan from an employee and is illegal. 1986 - Chicago Teachers Union v. Hudson The Court unanimously held that First Amendment due process requires that certain procedural safeguards be established before compulsory union fees can be collected from public employees: adequate advance notice of the fee's basis (including an independent audit), reasonably prompt impartial review of non-members' challenges, and escrow of "amounts reasonably in dispute" while challenges are pending. Because the Court had earlier ruled in Railway Employs'
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Department v. Hanson that constitutional limitations apply to the Railwa y Labor Act, these procedural safeguards also must be established by railway and airline unions. In setting aside the "pure rebate" concept, the Court required that employees be provided with information supporting the union's financial breakdown of forced dues; that those figures be verified by independent audit; and that employees have an opportunity for a prompt, impartial review of the union's forced-dues calculations. 1988 - Communications Workers of America v. Beck The Court determined that Congress intended the substantially "identical" authorizations of compulsory unionism arrangements in the National Labor Relations and Railway Labor Acts "to have the same meaning." The Court, therefore, held that the former statute, like the latter, "authorizes the exaction of only those fees and dues necessary to 'performing the duties of an exclusive representative of the employees in dealing with the employer on labour-management issues.'" As a result, private sector employees have the same right not to subsidize union non bargaining activities as railway, airline, and public pub lic employees, and are entitled to the procedural protections outlined in Chicago Teachers Union v. Hudson. Beck, Ellis, Abood, and Hudson, taken together, break down the artificial barriers b arriers between private-sector, government, and transportation workers to empower all employees to withhold forced union dues for all activities unrelated to col lective bargaining. 1991 - Lehnert v. Ferris Faculty Association Summarizing its earlier decisions from Hanson through Ellis, the Court concluded that union activities are not lawfully chargeable to objecting non-members unless they both are "'germane' to collective-bargaining activity" and do "not significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop." Applying this test, the Court ruled that objecting public employees may not be charged for litigation not directly concerning their bargaining unit, lobbying (except for ratification or implementation of their collective bargaining agreement), public relations activities, and illegal strikes. However, the Court also held that the
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First Amendment does not limit lawfully chargeable bargaining-related costs to the objecting employees' bargaining unit. 1998 - Air Line Pilots Association v. Miller The U.S. Supreme Court ruled 7-2, in an opinion authored by Justice Ruth Bader Ginsburg, those employees who did not agree to union arbitration procedures cannot be required to exhaust the arbitration process before challenging the amount of their fees for collective bargaining in a federal court action. This is a complete victory in the battle against phony internal union "arbitration" schemes, long used by union chiefs to block the full impact of the Beck decision. 1998 - Marquez v. Screen Actors Guild (SAG) The Court held that a union does not breach its duty of fair representation "merely by negotiating" a compulsory unionism provision that says that employees must be union "members in good standing" as condition of employment without expressly explaining, in the agreement, that the National Labor Relations Act does not permit unions and employers to require that employees become formal union members. However, for the first time, the Court declared that, if a union negotiates a compulsory unionism provision, it must notify workers that they may satisfy its requirement merely by paying fees to support the union's "representational activities" in collective bargaining and contract administration without actually becoming membe rs. 2007 - Davenport v. Washington Education Association The Court unanimously ruled that, because unions have no constitutional right to collect fees from nonmembers, a state may require unions to obtain affirmative consent before spending nonmember public employees' forced fees on political activities. The Court's decision also reiterated that, as the Court had originally decided in 1949, Right to Work laws are constitutional. 2012 - Knox v. Service Employees International Union
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The Court held 5-4, in an opinion by Justice Alito, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas, that "when a public sector union imposes a special assessment or dues increase, the union must provide [a notice of the purpose of the assessment or increase] and may not exact any funds from nonmembers without their affirmative consent." The Court also held that the union could not constitutionally charge nonmembers for its expenses opposing ballot questions even if they "may be said to have an effect on present and future contracts between public-sector workers and their employers." Justice Sotomayor, joined by Ginsburg, concurred in the favorable judgment, but agreed only that "[w]hen a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds. A Brief Outline of U.S. Supreme Court Precedent Concerning Compulsory Unionism: 1937 - Virginian Railway v. System Federation No. 40, 300 U.S. 515 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 The Court held that compulsory collective bargaining is constitutional, but declined to address the constitutionality of exclusive representation because these cases were brought by employers, not employees forced to accept a union as their exclusive bargaining representative. 1944 - J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332 and Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342 The Court interpreted the National Labour Relations and Railway Labor Acts as prohibiting individual employees from negotiating their own terms and conditions of employment where an exclusive bargaining representative has been recognized. Constitutional questions were not raised. 1944 - Steele v. Louisville & Nashville R.R., 323 U.S. 192
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The Court recognized that exclusive representation presents constitutional problems, but again ducked the issue by holding that exclusive representatives have a duty of representing nonmembers "fairly." 1949 - Lincoln Federal Labour Union v. Northwestern Iron & Metal Co., Co. , 335 U.S. 525
The Court ruled that state Right to Work laws is constitutional. 1949 - Algoma Plywood Co. v. Wisconsin Bd., 336 U.S. 301
The Court held that the National Labour Relations ("Wagner") Act permitted state Right to Work laws even before Congress passed the 1947 19 47 Taft-Hartley Act amendments. 1954 - Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17
The Court ruled that compulsory unionism agreements may not be used "for any purpose other than to compel payment of union dues and fees," that is, that employees may not be required to be formal union members and abide by internal union rules to keep their jobs. 1956 - Railway Employs' Department v. Hanson, 351 U.S. 225
The Court held that "union shop" agreements authorized by the Railway Labour Act are constitutional, because the only condition of employment that the Act authorizes is "financial support" of "the work of the union in the realm of collective bargaining." The Court suggested that if compulsory dues are used "for purposes not germane to collective bargaining, a different problem would be presented" under the First Amendment. 1961 - Machinists v. Street, 376 U.S. 740
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Again ducking constitutional questions, the Court ruled that the Railway Labor Act prohibits unions from using objecting nonmembers' compulsory dues for political purposes. The Court did not clearly define political purposes, nor did it address whether unions could lawfully use objectors' monies for nonpolitical activities unrelated to collective bargaining. Justice Black dissented and predicted that the Court's rebate remedy would be ineffective and would have held the statute unconstitutional. 1963 - Railway Clerks v. Allen, 373 U.S. 113
The Court found that, since unions hold all pertinent facts and records, they must prove the proportions of their expenses that are lawfully chargeable to objecting nonmembers. However, the Court reaffirmed Street's rulings that only onl y nonmembers who notify no tify their union that they object are entitled to relief and that the appropriate remedies are refunds and reductions in future exactions. 1963 - National Labour Relations Board v. General Motors, 373 U.S. 734
The Court reiterated that the "union shop" is "is whittled down to its financial core," that is, unions may require payment of initiation fees and dues as a condition of employment, but may not require formal membership. 1963 - Retail Clerks Local 1625 v. Schermerhorn, 373 U.S. 747, 375 U.S. 96 The Court held that state Right to Work laws may prohibit "agency shop" agreements under which employees are required to pay fees to unions to defray the costs of collective bargaining. In a second decision in the same case, the Court ruled that the state courts, not just the National Labour Relations Board, can enforce state Right to Work laws. (The National Right to Work Committee financed this case in the Supreme Court C ourt for the nonmember plaintiffs.) In 1968 the National Right to Work Legal Defense Foundation was established. (Unless otherwise noted, all subsequent cases listed were brought b y Foundation attorneys.) 21 | P a g e
1976 — 1976 — City City of Charlotte v. Firefighters Local 660, 426 U.S. 283 The Court ruled that a public employer is not constitutionally obligated to provide payroll deductions for union dues. The Foundation was not involved in this case. 1976 — 1976 — Oil Oil Workers v. Mobil Oil Corp., 426 U.S. 407 The Court held that the employees’ ―predominant job sites‖ sites‖ determines whether a state Right to Work law applies, and that seamen employed primarily on the high seas are not protected by the Right to Work law of the state in which they were hired. The Foundation filed an amicus brief urging that Texas’ Right to Work law protected the seaman. 1976 - City of Madison Joint School District No. 8 v . Wisconsin Employment Relations Commission, 429 U.S. 167
The Court ruled that a state may not constitutionally require school boards to prohibit nonunion teachers from speaking against agency shop agreements at public meetings. The Foundation filed an amicus (friend of the court) brief supporting the nonu nion teachers' free speech rights. 1977 - Abood v. Detroit Board of Education, 431 U.S. 209 A six-member majority of the Court rejected arguments that requiring public employees to pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such is constitutionally valid, but only "insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes." The Court unanimously agreed that "a union cannot constitutionally spend [objectors'] funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties d uties as collective-bargaining representative." 1979 — 1979 — Smith Smith v. Arkansas State Highway Employees, 441 U.S. 463 (per curiam)
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The Court held that the "First Amendment does not impose any affirmative obligation on the government...to recognize [a labour] association and bargain with it." The Foundation was not involved in this case. 1983 — 1983 — Knight Knight v. Minnesota Community College Faculty Association, 460 U.S. 1048 Without an opinion giving its reasons, the Court affirmed a lower court decision rejecting arguments that exclusive representation of public employees by a union such as the National Education Association is unconstitutional because it forces association with a political action organization. 1984 — 1984 — Minnesota Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 The Court ruled that a state may constitutionally bar non-members from participating in their public employers' "meet and confer" sessions with the employees' exclusive bargaining representative on policy questions relating to employment, but outside the scope of mandatory collective bargaining. 1984 — 1984 — Ellis Ellis v. Railway Clerks, 466 U.S. 435 The Court held that the Railway Labour Act not only prohibits coerced financial support of union politics and ideological activities, but also coerced support of other activities unrelated to collective bargaining and contract administration, such as organizing, litigation not concerning objecting employees' bargaining unit, and the parts of union publications reporting on nonchargeable activities. The Court also ruled that a "union cannot be allowed to commit dissenters' funds to improper uses even temporarily," prohibiting "rebate" schemes under which unions collect full dues, use part for improper purposes, and only later refund that part to the employees. 1985 - Pattern Makers v. National Labor Relations Board The Supreme Court affirmed private-sector workers' unqualified right to resign their union membership immediately. (Not argued by Foundation attorneys, but supported with a friend-ofthe-court brief filed by Foundation attorneys in a greement with the prevailing position.)
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This private-sector case provides a key legal precedent for the Foundation's legal action to establish the right of employees to resign their union membership. 1986 — 1986 — Chicago Chicago Teachers Union v. Hudson, 475 U.S. 292 The Court unanimously held that First Amendment due process requires that certain procedural safeguards be established before compulsory union fees can be collected from public employees: adequate advance notice of the fee's basis (including an independent audit), reasonably prompt impartial review of non-members' challenges, and escrow of "amounts reasonably in dispute" while challenges are pending. Because the Court had earlier ruled in Railway Employs' Department v. Hanson that constitutional limitations apply to the Railway Labour Act, these procedural safeguards also must be established by railway and airline unions. 1988 — 1988 — Communications Communications Workers v. Beck, 487 U.S. 735 The Court determined that Congress intended the substantially "identical" authorizations of compulsory unionism arrangements in the National Labor Relations and Railway Labour Acts "to have the same meaning." The Court, therefore, held that the former statute, like the latter, "authorizes the exaction of only those fees and dues necessary to 'performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'" As a result, private sector employees have the same right not to subsidize union non bargaining activities as railway, airline, and public pub lic employees, and are entitled to the procedural protections outlined in Chicago Teachers Union v. Hudson. 1991 — Lehnert — Lehnert v. Ferris Faculty Association, 500 U.S. 507 Summarizing its earlier decisions from Hanson through Ellis, the Court concluded that union activities are not lawfully chargeable to objecting non-members unless they both are "'germane' to collective-bargaining activity" and do "not significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop." Applying this test, the Court ruled that objecting public employees may not be charged for litigation not directly concerning their bargaining unit, lobbying (except for ratification or implementation of their collective bargain ing agreement), public relations activities, and illegal strikes. However, the Court also held that the 24 | P a g e
First Amendment does not limit lawfully chargeable bargaining-related costs to the objecting employees' bargaining unit. 1998 — 1998 — Air Air Line Pilots Association v.Miller, 523 U.S. 866 The Court ruled that non-members who do not agree to union-established arbitration procedures cannot be required to use those procedures before bringing a federal court action challenging the amount of their compulsory fees for collective bargaining. 1998 — 1998 — Marquez Marquez v. Screen Actors Guild, 523 U.S. 866 The Court held that a union does not breach its duty of fair representation "merely by negotiating" a compulsory unionism provision that says that employees must be union "members in good standing" as condition of employment without expressly explaining, in the agreement, that the National Labor Relations Act does not n ot permit unions and employers to require that employees become formal union members. Importantly, for the first time, the Court declared that, if a union negotiates a compulsory unionism provision, it must notify workers that they may satisfy the provision's requirement merely by paying fees to support the un ion's "representational activities" in collective bargaining and contract ad ministration, without actually becoming members. 2007 — 2007 — Davenport Davenport v. Washington Education Association, 551 U.S. 177 The Court unanimously ruled that, because unions have no constitutional right to collect fees from non-members, a state may require unions to obtain affirmative consent before spending non-member public employees' forced fees on political activities. The Court's decision also reiterated that, as the Court had decided in 1949, Right to Work laws are constitutional. 2008 — 2008 — Chamber Chamber of Commerce v. Brown, 554 U.S. 60 The Court ruled that the National Labour Relations Act preempts a state statute prohibiting companies that receive state grants or program funds from using those monies to deter union organizing. Significantly, the Court emphasized that the 1947 amendment to the Act that guarantees the right to refrain from union activities "calls attention to the right of employees to 25 | P a g e
refuse to join unions, which implies an underlying right to receive information opposing unionization." The Foundation filed an amicus brief that made this very point. 2009 — 2009 — Locke Locke v. Karass, 555 U.S. 207 The Court held that the First Amendment permits a local union to charge non-member public employees for national litigation expenses for other bargaining units if the litigation is related to collective bargaining or contract administration and the charge is reciprocal in nature, i.e., if the national union and other locals would similarly contribute to the cost of litigation for the nonmembers' unit should the need arise. A concurring opinion by three Justices noted that the Court's decision did not decide what "reciprocity" means or what burden a union has to establish true reciprocity, because in this case the parties p arties assumed that reciprocity existed. 2012 — 2012 — Knox Knox v. SEIU Local 1000 The Court held 5-4, in an opinion by Justice Alito, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas, that "when a public sector union imposes a special assessment or dues increase, the union must provide [a notice of the purpose of the assessment or increase] and may not exact any funds from nonmembers without their affirmative consent." The Court also held that the union could not constitutionally charge nonmembers for its expenses opposing ballot questions even if they "may be said to have an effect on present and future contracts between public-sector workers and their employers." Justice Sotomayor, joined by Ginsburg, concurred in the favorable judgment, but agreed only that "[w]hen a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds."
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Conclusion Collective bargaining consists of negotiations between an employer and a group of employees so as to determine the conditions of employment. The result of collective bargaining procedures is a collective agreement. Employees are often represented in bargaining by a union or other labor organization. Collective bargaining is governed by federal and state statutory laws, administrative agency regulations, and judicial decisions. In areas where federal and state law overlap, state laws are preempted
.
Collective bargaining is not just a means of raising wages
"
and improving conditions of employment. Nor is it merle democratic government in industry. It is above all technique••... collective bargaining as a technique of the rise of a new class is quite different from the desire to displace or "abolish" the "old ruling class to gain equal rights as a class to acquire an exclusive jurisdiction in that sphere where the most immediate interests. both material and spiritual, are determined.
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Bibliography & References 1. http://www.nrtw.org/es/foundation-cases.htm 2. http://www.law360.com/articles/450538/unions-to-fight-collective-bargaining-law-atwis-high-court 3. http://www.clb.org.hk/en/content/development-collective-bargaining-china%E2%80%93-two-case-studies 4. http://www.amazon.com/Cases-Collective-Bargaining-IndustrialRelations/dp/0072987367 5. http://en.wikipedia.org/wiki/Collective_bargaining 6. http://www.law.cornell.edu/wex/collective_bargaining 7. http://www.investopedia.com/terms/c/collective-bargaining.asp 8. http://www.aflcio.org/Learn-About-Unions/Collective-Bargaining 9. http://www.wisegeek.org/what-is-collective-bargaining.htm 10. http://www.merriam-webster.com/dictionary/collective%20bargaining 11. http://www.aflcio.org/Learn-About-Unions/Collective-Bargaining 12. http://www.slideshare.net/mahashmi/types-of-collective-bargaining 13. http://learnmba.blogspot.in/2011/06/collective-bargaining.html 14. http://www.ask.com/question/what-is-the-meaning-of-collective-bargaining 15. http://www.scribd.com/doc/53506952/Types-of-Collective-Bargaining 16. http://industrialrelations.naukrihub.com/forms.html 17. http://www.bctf.ca/AboutUs.aspx?id=18880 18. http://dhrd.hawaii.gov/state-hr-professionals/lro/brief-history/ 19. http://www.humanities.mcmaster.ca/~cradle/ 20. http://www.scribd.com/doc/30286230/Collective-Bargaining-in-India 21. http://www.manupatra.com/ 22. http://www.manupatrafast.com/default/onlinemanual.aspx,collectivebargaining 23. http://www.manupatralawreports.in/products/reportsmipr.aspcollectivebargaining 24. Labour law & industrial law- avtar singh 25. Labour law- S N Mishra
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