 |
Prof. Marco Biagi
REPORT ON SIX NATIONAL CASE STUDIES
IN THE FIELD OF FREEDOM OF ASSOCIATION
*****************
1.- Freedom of association and trade union freedom. Trade union freedom has been solemnly proclaimed as a fundamental principle of Italian industrial relations by art. 39 of the Constitution (1947), declaring that "labour union organisation is free". This norm is, first of all, a confirmation of the more general principle of freedom of association sactioned by art. 18 of the same Constitution; the confirmation being necessary to mark beyond any doubt the distinction between present practice and that of the fascist regime.
2.- The notion of trade union freedom. Trade union freedom has traditionally been held to imply the right of individuals to organise, to join a union without any condition required by law, to resign from it, to choose among different unions and to refuse to belong to any union (negative freedom). But it implies moreover a constitutional prohibition on the state to interfere in internal union affairs: e.g. predetermining by law their aims and models of organisation, defining areas of union jurisdiction (which on the contrary can be and is done by the legislature for other associations).
3.- Recognition/registration of trade unions. The only condition explicitly required by art. 39 of unions asking for recognition — but considered applicable to all unions, even the non-recognised — is that union constitutions and by-laws be inspired by the principle of internal democracy. Nonetheless other conditions, such as a minimum number or percentage of members, have been, more or less legitimately, derived from the second part of art. 39 as presupposals of recognition and are required to acquire the status of ‘most representative union’.
4.- Trade union freedom and the two sides of industry. The constitutional guarantee applies not only to the workers, who are the direct beneficiaries of trade union freedom, but also to labour organisations themselves: meaning any association, coalition or organisation (even different from associations) of employees, whether temporary or permanent, connected or not with the established trade unions, for the purpose of promoting the collective interests of the members pertaining to their working and, more broadly, social conditions. The guarantee applies as well, although indirectly, to the employers (who — differently from the workers — can as individuals be parties to collective agreements and industrial conflict) and to their organisations operating for the purpose of promoting common interests related to industrial relations. The recognition of this employers’ freedom does not imply that their activity — collective bargaining and lock-out — is protected and qualified by law in the same way as similar labour union activity.
5.- Legitimate aims of trade unions. Legitimate aims of labour organisations, and of strike actions, can be not only of an ‘economic’ but also of a social and, broadly speaking, political nature. To identify those workers’ organisations to whcih the constitutional guarantee — and of the connected freedoms sanctioned by ordinary legislation — apply, it is decisive to look not at their goals, but at the type of action used to promote them, particularly collective bargaining and strike action, which are the qualifying signs of labour unions.
6.- Strike action and the public sector. A major problem is posed for some categories of public employees for which strike action is considered illegal or is denied the interested parties, because of the particular nature of their functions: especially magistrates and police employees. For the latter, freedom to organise for collective purposes was explicitly denied by Decree N. 205, 24 April 1945, and in the opinion of some people it should be so by virtue of Decree N. 687, 31 July 1943, defining the police as a military force. This opinion has been rightly questioned, however, as it has been pointed out that nothing in the law authorises denial of the freedom to organise merely because of the military character of the corp.
7.- Trade union freedom and ILO conventions. On the contrary, art. 9 of ILO Convention N. 87, ratified by Italy (Act N. 367, 23 March 1958), combined with the general principle of art. 2 of the same Convention, and together with art. 39 of the Italian Constitution, implies that armed forces and police are guaranteed this freedom until the legislator specifically limits it. After much discussion and pressure, a reform of the entire police system was approved by Act N. 121 of 1981. The Act explicitly recognises for all police guards the right to organise for collective purposes. It also profoundly changed the traditional military organisation, hierarchy and status of the corps, closely aligning the basic principles pertaining to police employees — working conditions, recruitment, promotion — with those pertaining to most civil servants. A system of collective bargaining has also been recognised that is partly similar to that of other public employees although with some restrictions (in particular, curtailment of the right to strike).
8.- Restriction of trade union freedom for special categories of employees. There is wide consensus that police employees should not have the right to strike, and decision N. 31 of 1969 of the Italian Constitutional Court has to be seen as deriving from this consensus. The lack and/or the non-exercise of the right to strike does not take the character of trade union — or the rights and freedom connected with this character — away from the organisations of these workers, even if it makes them somewhat atypical. These organisations, like those of magistrates, exist and strive to improve the working conditions of their members, through bargaining, although often informal, and in fact, in applying the rules governing their employment relation, they influence public powers. Moreover they can exert pressure other than by the strike to attain their goals, due to their particular position, e.g. resorting to public opinion and profiting by the solidarity of the rest of the labour movement.
9.- Trade unions vs. professional associations. Organisations instituted by law for some professional workers (lawyers, physicians, etc.) should not be recognised as trade unions. Not only because these are not subordinate workers, but because the law grants these organisations (solely) the power to control the admittance to the profession and its code of ethics, giving them a monopoly in this respect. Such a position of monopoly would be unconstitutional, according to art. 39, if referred to a trade union. In practice these organisations often operate as unions, organising their members particularly to put pressure on public powers to receive higher rates for services rendered (e.g. for medical services rendered under the social and public health system).
10. - Protection of individuals within labour organizations. Trade union freedom, being a constitutional principle, operates basically as a guarantee of the individual’s and of the organisation’s rights vis-à-vis the State. But again, like many constitutional principles, it also applies to the relationship between individuals and private organisations. This aspect is particularly important for trade union freedom, because any major restriction of it can now occur not by initiative of the state, at least of the democratic state, but only in the course of employer-employee relations. In spite of that, the private and personal effects of the rights defined in art. 39 were not in fact recognised by the courts or by many legal authors until the principle of trade union freedom was confirmed and specified by the so-called Statute of Workers’ Rights (Act N. 300 of 30 May 1970).
11.- Ratification of ILO conventions. The Italian legislature ratified the basic international legislation concerning trade union freedom long before 1970. Act N. 367, 23 March 1958, ratified both Convention N. 87 (1948) of the ILO, concerning freedom of association and protection of the right to organise vis-à-vis the State, and Convention N. 98 (1949) of the ILO, concerning the application of the principles of the right to organise and to bargain collectively with respect to the individual employment relationship. Italy also ratified (Act N. 848, 4 August 1955) the European Convention of Human Rights (1950), art. 11 of which directs states to guarantee individuals the right to organise collectively, and the European Social Charter of 1961 (Act N. 929, 3 July 1965), which not only confirms the principle of trade union freedom (art. 5), but also recognises the right to bargain collectively and, although with limits, the right to strike (art. 6), which is not considered in the above- mentioned international legislation. The Community Charter of Fundamental Social Rights, solemnly proclaimed by the EEC Council of Ministers in December 1989, has no direct legal value.
12.-International law and trade union freedom. Two further sources must be mentioned: the International Agreement on Economic, Social and Cultural Rights prepared within the United Nations in 1966, which directs the states, among other things, to guarantee both trade union freedom and the right to strike (art. 8); the EEC regulation of 15 October 1968, enacted in accordance with arts. 48 & 49 of the Treaty of Rome, which deals with the equality of rights as regards trade union membership and activities: ‘A worker who is a national of a member state shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote; but he may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law (e.g. having a seat in the labour court). Furthermore, he shall be eligible for workers’ representative bodies in the undertaking (art. 8, title 2)’.
13.- Lack of effectiveness of international legislation. This international legislation has traditionally not been very effective in Italy because of the limited attention paid to it by the interested parties (public authorities, lawyers and the social partners themselves) and, most important, because it lacks sufficient sanctions and an adequate control apparatus to enforce its application.
14.- Implementing trade union freedom through the ‘Statute of Workers’ Rights’. The limited or the lack of effectiveness on employer-employee relations of both art. 39, para. 1 of the Italian Constitution and of international specifications and integrations helps explain why the Italian legislature felt the need to intervene explicitly in 1970 in this matter and to make trade union freedom title II of the Statute of Workers’ Rights.
15.- Negative trade union freedom. As has already been suggested, trade union freedom includes the right of individuals not to join any union. And this right is regarded as being ‘absolute’, i.e. protected against interference by any entity, be it the employees’ and employers’ associations, or union members and unions themselves. This conclusion can be clearly drawn from art. 15 of Act N. 300, but has always been taken for granted in Italy as deriving from art. 39.1 of the Constitution.
16.- The importance of positive trade union freedom. As a matter of fact, these aspects of trade union freedom have never posed serious problems in Italy, due mainly to the historcial features of Italian industrial relations. The traditional weakness of Italian unions has until recent times given absolute priority to the defence of positive trade union freedom of all workers vis-à-vis employers, making less relevant — or even excluding — the problem of discrimination by the unions themselves.
17.- Non-existence of an individual right to membership. At plant level, moreover, until the late ‘60s, unions were absent as such, and the workers’ committees, as now in the case of the RSU (= rappresentanze sindacali unitarie, unitary union representatives) were elected by all workers, whether union members or not. This corresponds to the basic attitude and philosophy of the Italian trade union movement, i.e. that it should represent the interests of the working class (Marxist) or of the ‘category’ (Catholic) and not merely of the affiliated workers. Such an attitude, combined with the competition existing among the three major confederations, which basically could not afford to refuse new members, has guaranteed the workers a substantial freedom of choice. This is true in practice, because by law a worker who is refused membership by a union has, strictly speaking, no redress: the provision of IlO Convention N. 98 restricting the grounds on which the unions may refuse membership is not considered sufficient to assert an individual right to membership.
18.- Unlawfulness of union security clauses. For similar reasons, both historic and ideological, the various forms of union security clauses and restrictive practices on negative trade union freedom, which have given rise to troublesome debates in other countries, have been virtually unknown in Italian industrial relations. In any case, it is unanimously held that art. 15 of Act N. 300 has confirmed the illegality of union security clauses (such as closed shop, union shop, maintenance of membership and the like), and of restrictive practices not formalised by agreement, such as blacklisting and boycotting of non-union members.
19.- Illegality of benefits granted to union members only. The same conclusion is true, although doubts have been expressed by certain writers, of more indirect practices intended to induce workers to join a union, such as benefits reserved for trade union members, which were agreed upon in a very few cases in the late sixties. No distinction between direct and indirect pressure to join a union, or distinction based on the intensity of pressure (i.e. the amount of benefits) is authorised by the combined provisions of arts. 15 and 16 of Act N. 300. The nullity of any such clause implies that the benefits paid by employers to union members can accordingly be claimed back as being without validity.
20.- Benefits indirectly affecting union members only. More subtle is the case in which these collective benefits are subordinate to the condition that workers pay at least some contributions to the bargaining union for the advantages rendered through bargaining. The answer, although not tested in practice, should be that this condition is also illegal as being against arts. 15 and 16, for the chief reason that it is difficult in practice — as the experience of other countries proves — to distinguish between sheer financial contributions to union bargaining services and a more general support for all union goals and policies, which the non-members may not (want to) share.
21.- The problem of free riderism. The practice of admitting ‘free riders’ comes from the need to guarantee a maximum of pluralism and spontaneity within the labour movement, and to avoid union bureaucratisation. Experience seems to prove that restrictive practices increase union loyalty vis-à-vis the employer, as well as the union’s feeling of security, to the detriment of its loyalty towards the workers. This is the basic argument for protecting negative trade union freedom even in the framework of the law, such as Act. N. 300, which is entirely designed to promote union growth and collective bargaining.
22.- Recognition of negative trade union freedom. Basically, negative freedom is recognised not only for non-union members, but also for members of a union, protecting them from pressure to leave it in order possibly to join or form another union, and to guarantee the same members the right of dissent to the point of leaving the union and organising in a different way. The promotion of union organisation and of collective bargaining cannot be made so absolute as to annul the basic right of self-determination of the workers, who are, after all, the chief beneficiaries of and participants in union freedom. On the other hand, the protection of negative freedom is not directed only towards the unions, because the pressure on the workers inherent in security clauses or similar agreements is always exerted with the interested help of the employer, who becomes the main ‘ally’ in intra-union or inter-union conflict.
23.- Different protection of positive and negative trade union freedom. Negative freedom is not recognised and protected on the same level as positive freedom, because the latter is fostered by Act N. 300/1970 through a series of privileges and limits on employers’ powers in favour of union activities within the enterprise. Negative freedom is not regarded as being violated by those clauses, not infrequent in our collective agreements, which fix a higher price for non-union members than for members for services which are not directly related to their position in the individual employment relation: in particular a special price, for receiving a copy of the collective agreement which is paid through a system similar to check-off. These services can be refused by non-members without any prejudice to their working position.
24.- Equality of treatment of various unions. The principle of trade union freedom does not in fact imply complete equality between the various unions, although it might in theory. Registered unions are recognised special status and powers by art. 39.2 of the Constitution: in the absence of implementation of this provision, a privileged status is now granted to ‘representative unions’.
25.- Equality of treatment and collective bargaining. A controversial issue connected with the equality of treatment and trade union freedom has been posed in Italy by cases in which the employer discriminated between unions in collective bargaining, negotiating separately with some unions or granting to one union certain contractual benefits (paid time off work for union delegates, etc.). As has already been indicated, this practice is not per se in violation of art. 17 of Act N. 300. According to the opinion shared by most scholars, the practice should not be illegal on the grounds that it is against equality of treatment or trade union freedom. In fact the guarantees of art. 39 of the Constitution and of Act N. 300 of 1970 do not imply an obligation on the part of the employer to bargain with any union. The employer can, therefore, legitimately bargain separately or agree with some unions only on certain points (with the single restriction of Art. 17 of Act N. 300 which prohibits the so-called ‘yellow unions’).
26.- An obligation to bargain on equal grounds. This opinion is contradicted by some court decisions, including the Supreme Court’s. While confirming that the employer is not obliged to bargain with each and every union, the courts have held that if he decides to bargain he must do so with all unions on equal grounds, provided they are representative unions.
27.- The practice of bilateral joint committees. An important notion is that bilateral joint committees which have been set up through collective bargaining in some sectors — and having major functions (such as hiring systems, monitoring of promotions, discipline) — must include representatives of all representative unions and cannot discriminate against some. The question arises most frequently in cases where the employer bargains separately with the three major confederations (Cgil, Cisl and Uil) on one hand and with Ugl (formerly Cisnal, traditionally considered as being the neofascist confederation, much less representative) on another, given the fact that the former three for a long time used to refuse to sit at the same bargaining table with the latter.
28.- Intra-union conflicts at the bargaining table. The court decisions mentioned above may force the employers into an almost impossible impasse situation. In fact, inviting Ugl to join the same table may cause the three major confederations to quit. Nevertheless, recevent developments have demostrated that — at least in some sectors/industries where UGL-affiliated organisations are strong — Cgil, Cisl, Uil now seek to involve the unions which were formerly set apart as well. One should not forget, in order to explain these developments, that Ugl, differently from the neo-fascist Cisnal, may be considered a modern right-wing labour union.
29.- Prohibition of bypassing the unions. The Supreme Court has also held that the employer, while being allowed to simply refuse to bargain with the unions, cannot legitimately bypass them and deal directly with the employees. Such behaviour would contradict the basic purpose of Act N. 300/1970, and art. 19 in particular, which is to promote unions as the natural counterpart of the employer within the enterprise.
30.- The notion of ‘representative union’. Special norms define the status of representative or of most representative organisations to which a number of privileges are attached. The most important are:
(a) the right to designate representatives in public organs and institutions, particularly of an administrative nature (boards of directors in social security institutions, tripartite commissions to conciliate labour disputes on rights and to control home work, etc.);
(b) a series of rights granted in order to promote union activity at plant level by title III of Act N. 300 of 1970.
31.- Criteria for qualifying as ‘representative union’. The requirements necessary for recognition as a representative or most representative organisation vary according to the different fields, and are stated partly by law and partly by administrative practice, in any case subject to discretionary interpretation by the courts. Most often the following requirements must be taken into account jointly: the number of members, resulting from common knowledge; balanced presence of the organisation in the various branches of the economy, in case of a confederation; national dimension of the organisation; active participation in collective bargaining and in the handling of labour disputes. The lack of the first and the third requirements has shed doubt on — and sometimes led to the denial of — the status of most representative confederation of the neofascist Cisnal (today: Ugl), which is significantly present only in some public service sectors and generally limits itself to separately signing collective agreements bargained by Cgil, Cisl and Uil.
32.- The first legislative intervention in the field of union representativeness. But the Parliament itself, by Act N. 902 of 1977, which was aimed at dividing the patrimony of old fascist unions among the present ones, has favoured the inclusion of Cisnal in the list of the most representative organisations (at least for that specific purpose).
33.- Legislative arbitration of 1970. A very important provision referring to the notion of most representative union was art. 19 of Act N. 300, 1970 which included in it:
(a) unions affiliated to the most representative national-level confederations (therefore referring the notion to the confederation as such, not to the affiliated union);
(b) unions not affiliated to the aforementioned confederations (independent unions) which have signed national or provincial agreements applied in the work unit (where the rights provided for by Act N. 300/1970 are to be exercised).
34.- Union representativeness after the 1995 popular referendum. A popular referendum held in June 1995 repealed section (a) of the above mentioned art. 19, Act N. 300, 1970, on the assumption that the legal notion of ‘most representative union’ was a source of excessive privileges. Today organisations which fulfill the requirement stated in section (b) of art. 19, i.e. which have signed a collective agreement actually applied in the work unit concerned, are recognised as ‘representative unions’.
35.- The new notion of ‘comparatively representative union’. It must be underlined that in legislation enacted in 1997 a new legal category was been adopted, i.e. "comparatively representative union". This formula was adopted in the context of the new Act N. 146/1997 which, inter alia, regulates temporary work. The new formula emphasizes that recognition of a labour union as ‘representative’ implies a comparison amongst various unions in the same sector/industry and, in any case, consideration of the scope of application of a collective agreement. As a matter of fact, in some sectors, e.g. in the tourist industry, mainly along the northern Adriatic coast, new union organisations have been created which are ready to bargain with equally new employers’ associations for terms and conditions of employment by far lower than those agreed by the traditional social parties. In order to fight this potentially disruptive practice, capable of distorting competition between enterprises and thus creating conditions of social dumping , legislation has introduced the new notion which should prevent the interference, in terms of labour relations, of non-genuine organisations on both sides of industry.
36.- Perspectives of further legislation in the area of union representativeness. A number of bills have been discussed in the Italian Parliament with the aim of specifying — in a restrictive way — the notion of representativeness. But their future is uncertain, particularly because the major confederations disagree on the opportunity and content of legislation in their regard. Cisl (the formerly Catholic union) in particular strongly opposes the proposal advanced by Cgil (the formerly Communist union) which would link the notion of representativeness to non-associative criteria, i.e. not to union membership but to results of elections open to all employees. Cisl has always adopted a conception of unionism as being essentially of associative origin, while Cgil has been traditionally more favourable to a type of organization non-exclusively associative and open to the ‘workers’ movement’ in general.
************
37.- The notion of freedom of association. Freedom of association is guaranteed to all Japanese people, while the right to organise is guaranteed to workers in addition to the general guarantee of freedom of association. The right to organise is interpreted as guaranteeing something more than the simple freedom to organise a union, since it is distinguished from simple freedom from state power as one of the fundamental human rights peculiar to the new type of constitutions which came into being after the Second World War and which were modelled on the 1918 Weimar Constitution in Germany — the so-called constitutions of the ‘social welfare state’.
38.- The right to organize. Firstly, while freedom of association can be restricted or abandoned by agreement between pivate persons, the right to organise is not to be restricted by such an agreement. Thus, all agreements to restrict the right to organise, for example yellow-dog contracts, are null and void as a violation of the right to organise even if the worker has agreed to them. Secondly, while Government interference with personal freedom is unconstitutional, and all legislative and administrative steps in this direction are deemed to be illegal, so also is Government interference with union freedom regarded as being illegal and thus null and void.
39.- Interference of private individuals in the union’s right to organize. Furthermore, intervention by private persons in the union’s right to organise is also regarded as being illegal, and as a tort gives rise to a right to indemnity. In this sense the right to organise is almost fully recognised as a civil law in Japanese legal theory itself. Thirdly, the Government not only has to abstain from violating the unions’ freedom but has also, more positively, to take the steps necessary to promote union organisation. For instance, the unfair labour practice system is seen as one of the necessary steps required by the constitutional guarantee of the right to organise. Finally, while freedom of association should include the freedom not to join an association, the right to organise is interpreted as making union security arrangements legal. The legal effect of union security raises some rather complicated problems and needs detailed examination.
40.- The issue of union security arrangements. Union security arrangements —which most frequently take the form of union shop clauses in Japan, and others such as the closed shops, the agency shop and the maintenance of membership are very rare or almost unknown — are regarded as part of the right to organise and are quite legal. However, in practice many complicated legal problems arise regarding their use. The most commonly held view is that the right to organise means only a positive right to organise and the negative right, that is the freedom to refrain from joining a union, is not guaranteed. On the other hand, since the right to organise is guaranteed to all workers and thus to any bona fide union, if workers who have been expelled or who have seceded from a union with union security organise their own union or join another union, their dismissal in implementation of the union security arrangement will be regarded as illegal for violating the right to organise. Thus, quite often security does not work effectively in the most crucial cases — such as when there is a split in the union organisation.
41.- The negative right to organise. Current legal theory tends to deny the negative right to organise, and so union security is recognised as having full effect with regard to the unorganised. Of course this will mean a conflict between the right of the union to organise and the freedom of individuals who hold strong political or religious beliefs. Union security also causes problems if the union denies equal treatment to all members or the equal right to join regardless of the individual’s creed, race, nationality, sex or social status. The dominant legal theory and legal precedent both regard the expulsion of members, or the refusal to admit them, as violating their fundamental human rights and so as being illegal and null and void; and if the expulsion or refusal of membership is null and void, the dismissal effected under a union security arrangements is also null and void.
42.- Protection of individual employees and the right to organise. The existence of union security arrangements aside, the rights of individual workers and the union’s right to organise could contradict each other if the union has a certain inclination in the political or religious field and forces its members to follow it; or if it treats its members unequally because of differences in creed, race, nationality, sex or social status. Opinion is divided as to whether the rights of the union or of the individual should be better protected. If the union has a union security arrangement and actually dominates or controls job opportunities in a certain field, it will be regarded not as a purely private association but as a semi-public one. Such unions should be required to respect the fundamental human rights of individuals since they enjoy a strong and influential position.
43.- Unions without union security. However, unions without union security could also be powerful enough to influence the fate of workers. Unions, especially the ‘qualified’ ones, send delegates to various committees and commissions, including the Labour Relations Commission. Thus, most unions are regarded as semi-public institutions and are required to respect individual rights and equality.
44.- The issue of unions taking a political side. The most frequent example of a conflict between the union’s right to organise and the individual’s rights is in the case of union support for a particular political party or a certain candidate in a general or local election, when some of the union members do not agree with the union’s policy and do not observe the union’s orders in this connection. The union then expels or otherwise penalises these members. The Supreme Court has laid down that although unions are free to take a certain political stand, they may not force their views on their members beyond the limits of peaceful persuasion. This means that any disciplinary penalty imposed by the union, including expulsion, is regarded as unconstitutional and null and void.
45.- The union right to bargain collectively. Every union has the right to organise and to bargain collectively, and as a result of this the employer must bargain with every union which asks to bargain with him. Thus, in Japan, a system of exclusive bargaining is taken as violating the union’s right to organise and to bargain. However, since every union has legal status, Japanese employers face a very difficult problem: they must bargain faithfully with all the unions and treat them all equally. If the employer bargains with each union in good faith, each bargaining session will have different results for the different unions, and this will go against the principle which prohibits discrimination between workers because of their union affiliation.
46.- The right of the minority union to bargain and the principle of equal treatment of workers. The orders of the Labour Relations Commissions and the decisions of the Courts are very confused. Some say that the employer infringes the right of the minority union to bargain if he insists that it must accept the results of his bargaining with the majority union; while on the contrary, some lay down that members of the minority union should be guaranteed the same working conditions as members of the majority union since otherwise the employer is discriminating against them.
47.- The ILO conventions. Japan has ratified both Convention 87 (1948) and Convention 98 (1949). The problems which the Government experienced during the process of ratification of Convention 87 in 1966 stemmed from provisions in the Public Corporations and National Labour Relations Law and the Local Public Enterprise Labour Relations Law which disqualified those unions which accepted as members, or elected as leaders, workers who were not employed by one of the public corporations or public enterprises. The unions in the public sector suffered from the Government policy of refusing to bargain with unions whose leaders had been dismissed because of prohibited strike action, which was based on these provisions. The unions appealed to various ILO agencies, including the Committee on Freedom of Association and the Committee on the Application of Conventions and Recommendations. Finally, the Japanese Government abolished the provisions which contradicted Convention 87 and ratified it after the ILO Committee on Freedom of Association visited Japan to investigate and conciliate the case in 1965.
*******************
48.- The notion of workers’ concerted activity. Section 7 of the National Labor Relations Act states the basic policy governing the rights of workers with respect to concerted activities. One consequence of this principle is that the Act does not protect purely individual activities of a worker who seeks to improve the terms and conditions of his or her employment. To be protected, the worker’s activity must in some way be in concert with the efforts of at least one other worker. Another consequence of this statement is that concerted employee activity is protected whether or not is is designed to support a labor organization or the demands of such an organization.
49.- Prohibition of employers’ interference. Section 8(a) of the NLRA prohibits employers from engaging in various forms of conduct that interfere with the protected right of workers to act or refrain from acting in concert. Section 8(b) prohibits labor organizations from engaging in various forms of conduct that interfere with the protected right of workers to act or refrain from acting in concert or that interfere with the protected right of employers not to be subjected to coercive pressures concerning labor disputes in which they are not directly involved.
50.- Employee self-determination under majority rule. The essence of the underlying policy of the NLRA is self-determination by majority rule of the workers and recognition of collective bargaining as a legal and beneficial process. Neither employers nor labor organizations are permitted to interfere with that self-determination and both must facilitate established collective bargaining relations.
51.- The employer’s duty of neutrality. As a general rule, an employer must remain neutral in its conduct with respect to the employee’s protected choice as to whether to engage in concerted activities. It must also remain neutral in its conduct as between competing labor organizations. There are four basic exceptions to these principles. First, the employer’s neutrality does not require the employer to cease making decisions designed to maintain a prospering business so long as the means chosen for accomplishing that end are not calculated to interfere with the employees’ freedom to choose or reject union activity.
52.- The employer’s freedom to express opinions. Second, the employer remains free to express its opinion respecting the merits or lack of merits of labor organizations and concerted employee activities. Third, an employer can cooperate with a recognized labor organization so as to facilitate the collective bargaining process. Fourth, if an election petition has not been filed, an employer that has not previously recognized a labor organization is free to recognize a union as its employees’ bargaining representative, even though more than one union seeks recognition, if the recognized union has authorization cards from a majority of the workers.
53.- The emloyer’s support of a union. Just as an employer is free to express its anti-union opinion in an uncoercive manner, an employer is entitled to express its pro-union views even as between two competing unions. Nor is it an unfair labor practice for an employer to cooperate in a union’s efforts to communicate with employees. Thus, it is not a violation of the NLRA for an employer to introduce a union representative to the employees or to allow the representative to make an organizational speech to workers on company time and property unless another union is engaged in organizational activity and is not given equal opportunities. The latter situation is more than mere cooperation with the favored union. It is the grant of a campaign advantage to the favored union as compared with the rival labor organization.
54.- The employer’s recognition of a union. For many years the NLRB considered it to be breach of neutrality for an unorganized employer to recognize a labor organization if another union was also seeking recognition. In 1982 the Board modified its position. It held that so long as an election petition has not been filed, the employer can recognize the union that has authorization cards signed by a majority of workers. If an election petition has been filed, then it provides the method for determining which union, if any, is entitled to recognition.
55.- Prohibition of an employer’s recognition of a minority union. The lines protecting neutral cooperation with a union, which is lawful, and uncoercive expression of support for a union, which is also lawful, have been held to be crossed where the employer creates an impression that it has already recognized a minority union or where supervisors solicit union authorization cards for a union or are present while union organizers solicit and indicate the employer’s approval of that union. In each of these instances the Board is most likely to find a violation of the prohibition against employer assistance to labor organizations whether or not a rival union is present. The known presence of a rival union will prompt the Board to be even less tolerant of an employer’s ‘cooperative’ efforts unless the rival has been afforded equal opportunities for access to the workers.
56.- The employees’ right to organizational activities. In establishing the rules governing the extent to which employees can engage in organizational activities on their employer’s premises, the NLRB has made a distinction between (a) oral solicitation of support, and (b) the distribution of organizational leaflets or pamphlets. One basic principle underlying the NLRB’s rules is that an employer is entitled to direct the conduct of its workers during that time during which they are paid to be engaged in work duties. Thus, an employer is permitted to prohibit the distribution of literature in areas where work is performed. The right to distribute union literature, moreover, applies to materials that address political issues as well as materials urging unionization.
57.- Limits of employees’ organizational activities. The wearing of union buttons or insignia while at work generally is treated as privileged from any employer interference. However, if the workers have contact with the general public, such insignia can be required to be unobtrusive and not mar the appearance of a required uniform. In addition, if the buttons or insignia are provocative and have in fact provoked altercations or present safety hazards, employers have been permitted to prohibit their use.
58.- The issue of union solicitation during working hours. Even though the general rule is that an employer can prohibit union solicitation during work time, that prohibition is an unfair labor practice if it is proved that the employer to a substantial degree tolerates or permits other forms of solicitation for outside causes during work time.
59.- The union’s duty of fair representation. The National Labor Relations Act imposes on collective bargaining agents the duty to give fair representation to all workers represented by the union. The union’s responsibility as exclusive bargaining agent is to fairly represent all bargaining workers, irrespective of their membership or non-membership in the union. This duty was first established in a series of Supreme Court cases decided in 1944. The Court explained that in bestowing upon the majority union the status of exclusive bargaining agent, Congress implicitly intended to require that union to represent all bargaining unit workers fairly, impartially and in good faith. This is the standard of fiduciary responsibility normally expected of persons entrusted by law to represent the interests of others. It was reasonable to assume that in placing the union in a statutorily sanctioned representative role, Congress intended to require the union to live by the standards applicable to other types of legally imposed representatives.
60.- The quasi-governmental role of the union as exclusive bargaining agent. Had the Court not implied a duty of good faith representation, it would have had to face difficult questions of constitutional law. It is questionable whether Congress, without violating the Constitutional prohibition against taking property without due process of law, can give a union the authority to fix the terms of employment for a worker unless that representative, in its quasi-governmental role, is required to adhere to strict standards of good faith and fairness. The Court was mindful of this constitutional issue and admitted to its desire to avoid such questions by finding that Congress had in fact intended to impose the standard of fair representation upon the exclusive bargaining agent.
61.- The union’s responsibility to the collective. The duty of fair representation does not stand by itself. Counterbalancing it is the union’s responsibility to the collective. The Court has explained that the latter responsibility can prevail over the interests of individual workers in the bargaining unit so long as the union makes its choices in good faith and without discriminatory or invidious intent.
62.- Enforcing the duty of fair representation. In 1962, by a 3-2 vote, the NLRB decided that the duty of fair representation is imposed upon a union under sections 7 & 8 of the NLRA and that breach of that duty constitutes an unfair labor practice. The majority reasoned that section 7's right of workers "to bargain collectively through representatives of their own choosing" gives the bargaining unit workers "the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment".
63.- The linkage between the duty of fair representation and the obligation to bargain in good faith. In later cases, the NLRB expanded the statutory basis for remedying a breach of what is generally referred to as the duty of fair representation. The Board added to the above rationale the argument that implicit in the duty to bargain in good faith is the duty to give fair representation to one’s constituents. Accordingly, breach of the duty of fair representation also violates section 8(b)(3) of the NLRA which requires unions to bargain in good faith. The doctrine is well settled that if the NLRB finds that union conduct toward bargaining unit members has been invidious or arbitrary it will provide a remedy through an unfair labor practice proceeding. And the greater weight of court decisions supports that approach.