Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P21 pdf

In the mid-1950s Kunstler successfully represented a local leader of the National Association for the Advancement of Colored People ( NAACP) who had been denied housing because he was black. In 1956 a black journalist had his passport confiscat ed for violating a national ban on travel to China; he was later arrested on return from Cuba for entering the United States without a passport—in violation of an old federal statute. Kunstler per suaded an appellate court to find the statute unconstitu- tional. The case had been referred to him by the AMERICAN CIVIL LIBERTIES UNION (ACLU), and a bigger assignment would soon be on the way. Meanwhile, he wrote Beyond a Reasonable Doubt? (1961) about the 1960 conviction and execution of CARYL CHESSMAN, a case that had provoked international outrage. In 1961 the ACLU sent Kunstler to Jackson, Mississippi, where CIVIL RIGHTS workers were being abused by southern police officers and the courts. Known as the Freedom Riders, these young white and black people tried to force integration by riding interstate buses, flouting segregation laws. Beatings awaited them, fol- lowed by arrests and quick convictions for disturbing the peace. Kunstler found only hostility in courtrooms throughout the state. He lost case after case. He asked Mississippi governor Ross Barnett for help, but Barnett only lectured him on the need for segregation. Then Kunstler and a fellow attorney, William Higgs, devised an ingenious strategy: discovering an 1866 law designed to protect ex-slaves, they used it to have the cases of civil rights workers removed from state courts and heard by federal judges. The law also mandated that federal courts grant the defendants bail, something Mississippi refused to do. The civil rights movement lived, prospered, and changed Kunstler’s life. He helped found the Center for Constitutional Rights in Nash- ville, and with its resources, he was so ubiquitous in representing the new leadership that his motto became Have Brief , Will Travel. He defended STOKELY CARMICHAEL, president of the Student Non-violent Coordinating Com- mittee, against sedition charge s. He represented leaders of the Black Panthers. But it was his involvement with another prominent black radical, Hubert Geroid Brown—better known as H. Rap Brown—that led him to a new crossroads. Brown’s heated speeches around the country struck fear into Congress, which passed in 1968 the so-called Rap Brown statute (18 U.S.C.A. § 2101). The law made it illegal to cross state lines with the intention of inciting a riot. Kun stler saw it as an attempt to crush free speech. The Rap Brown law created Kunstler’s breakthrough case, making him a hero to young people and a virtual outlaw to the legal establishment. In this case, he defended the Chicago Eight, a group of antiwar leaders charged with conspiracy after the Chicago police cracked down on protesters outside the 1968 Demo cratic National Convention. Among the Eight were Abbie Hoffman and Jerry Rubin, Students for a Democratic Society leader Tom Hayden, and BLACK PANTHER PARTY cofounder Bobbie Seale. The trial drew national attention, divided public opinion, and often thrilled with its circus atmosphere. Kunstler argued fero- ciously in court with Judge Julius J. Hoffman, especially after the judge ordered Seale to be gagged and bound to a chair. After the jury’s near-total acquittal of the defendants, Judge Hoffman slapped each defen- dant with a contempt-of-court sentence. He reserved the most serious punishment for Kunstler, giving the attorney four years and thirteen days in prison for twenty-four counts of contempt. However, this sentence and the sentences of the defendants were all overturned by an appellate court. Kunstler also managed to escape the wrath of the New York BAR ASSOCIA- TION , which ultimately dropped its bid to discipline him. The era of protest that helped create Kunstler’s politics came to a close in the early 1970s, but not without a last great upheaval. In 1972 and 1973, leaders of the AMERICAN INDIAN MOVEMENT (AIM) occupied the historic town of Wounded Knee, South Dakota, in protest of the U.S. government’s long practice of ignoring treaties and its hostility toward Native Amer- icans. Kunstler was at the barricades during the 71-day sieg e, and later he was in court to defend AIM leader Russell Means. He also represented Native American activist Leonard Peltier through 15 years of litigation. In the 1980s and 1990s he represented reputed Mafia bosses, an accused murderer of police officers, one of the so-called Central Park rapists, a youth shot by vigilante Bernhard Goetz, a convicted Atlanta child murderer, and more. He became involved in the case s of GOVERNMENT- CREATED CRIME HAS BECOME AN ALL TOO FAMILIAR PHENOMENON OF THE PAST DECADE OR SO . —WILLIAM KUNSTLER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 188 KUNSTLER, WILLIAM MOSES defendants accused of plotting to blow up the World Trade Center in New York, as well as the case of Colin Ferguson, a Jamaican immigrant accused of killing six white commuters and wounding nineteen on the Long Island Railroad in 1993. Kunstler’sproposed“black rage” defense of Ferguson—in short, that racism could drive a person to murder—provoked a fierce backlash from many critics, including Kunstler’sfrequent nemesis, the attorney ALAN M. DERSHOWITZ. At the age of 76, Kunstler still reportedly worked 14-hour days in his home. Assisted by his partner, attorney Ron Kuby, he took most of his cases for free. He also did a bit of acting, appearing as a fire-breathing judge in director Spike Lee’s 1992 film Malcolm X. In 1994 he completed his 12th book, My Life as a Radical Lawyer, in which he held to his belief that a revolution is still inevitable. Kunstler died on September 4, 1995, at the age of 76, of heart failure. Ron Kuby, his longtime law partner, vowed to continue doing free legal work in their firm, Kunstler & Kuby. Similarly, friends and family established the William Moses Kunstler Fund for Racial Justice as a memorial. FURTHER READINGS Kunstler, William M. 1996. My Life as a Radical Lawyer. New York: Carol Publishing Group. ———. 1962. The Case for Courage. New York: Morrow. Langum, David J. 1999. William M. Kunstler: The Most Hated Lawyer in America. New York: New York Univ. Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION KUNSTLER, WILLIAM MOSES 189 v LA FOLLETTE, ROBERT MARION Robert Marion La Follette was an important U.S. political leader during the first part of the twentieth century. He served as governor of and senator from Wisconsin, and was at the forefront of the political reform movement that has been labeled Progressivism. La Follette was born in Primrose, Wiscon- sin, on June 14, 1855. He graduated from the University of Wisconsin at Madison in 1879 and then studied law without going to law school. He was admitted to the Wisconsin bar in 1880 and began a legal practice in Madison. He was district attorney for Dane County, Wisconsin, from 1880 to 1884. In 1885 he was elected as a Republican representative to the U.S. Congress. He served three terms and then was defeated in 1890. Following his loss La Follette resumed his law practice in Madison. During the 1890s he became a vocal opponent of state leadership of the REPUBLICAN PARTY. He rejected its conservatism and its reluctance to allow government a role in correcting social, politi- cal, and economic p roblems that had grown larger during the last two decades of the nineteenth century. La Follette’s reform desires were part of the national Progressive movem ent. Though not a unified political philosophy, Progressivism was built on the assumption that all levels of government must play an active role in reform. Progressives like La Follette argued that corpo- rate capitalism had given too much power to large economic elites and had created inequities in the social and economic order. In addition, Progressives argued, the political parties, especially at the state and local level, had too much control and were stifling democratic change. La Follette’s ideas proved popular in Wisconsin. He was elected governor in 1900 and immediately began implementing his Progressive agenda. The Wisconsin Legislature passed many of his measures, in cluding those mandating the nomination of candidates by direct vote in primary elections, the equalization of taxes, and the regulation of railroad rates. He returned to the national political arena, serving as U.S. senator from 1906 to 1925. He became a leader of the Progressive wing of the Republican party and frequently voiced opposi- tion to the conservative party leadership. As a senator he advocated tougher regulation of railroads, going so far as to call for public ownership of the rail industry. He believed in progressive income taxes, government control of ban king, and conservation of natural resources. La Follette was an isolationist, holding that the United States should not become entangled in foreign alliances and foreign wars. He voted against the U.S. entry into WORLD WAR I and later L NEITHER THE CLAMOR OF THE MOB NOR THE VOICE OF POWER WILL EVER TURN ME BY THE BREADTH OF A HAIR FROM THE COURSE I MAKE OUT FOR MYSELF . —ROBERT MARION LA FOLLETTE 191 opposed President Woodrow Wilson’s plan to have the United States join the LEAGUE OF NATIONS and the World Court. The conservative Republican administra- tions of WARREN G. HARDING and CALVIN COOLIDGE proved too much for La Follette. In 1924, after the Republican National Convention rejected his platform proposals, La Follette left the party. He formed the League for Progressive Political Action, commonly known as the PROGRESSIVE PARTY , and accepted its presidential nomination. Drawing support from farm groups, labor unions, and the SOCIALIST PARTY, La Follette waged a spirited third-party campaign. He earned almost 5 million popular votes. But La Follette was not a serious threat to the election of Coolidge; he received only thirte en electoral votes, carrying only his home state of Wisconsin. Following his defeat La Follette continued as U.S. senator. He died in Washington, D.C., on June 18, 1925. His son, ROBERT M. LA FOLLETTE,Jr., succeeded him as senator. The younger La Follette kept the Progressive party alive for another 20 years. FURTHER READINGS Kann, Bob. 2008. Belle and Bob La Follette: Partners in Politics. Wisconsin Historical Society. Tichi, Cecelia. 2009. Civic Passions: Seven Who Launched Progressive America (and What They Teach Us). Chapel Hill: Univ. of North Carolina Press. Unger, Nancy C. 2000. Fighting Bob La Follette: The Righteous Reformer. Chapel Hill: Univ. of North Carolina Press. LABOR-MANAGEMENT RELATIONS ACT Federal legislation (29 U.S.C.A. § 141 et seq. [1947]), popularly known as the TAFT-HARTLEY ACT , which governs the conduct of designated union activities, such as by proscribing strikes and boycotts, and establishes the framework for the resolution of labor disputes in times of national emergencies. CROSS REFERENCES Labor Law; Labor Union. Robert Marion La Follette 1855–1925 ▼▼ ▼▼ 18501850 19251925 19001900 18751875 1855 Born, Primrose, Wis. 1861–65 U.S. Civil War 1880 Admitted to Wis. bar 1879 Graduated from University of Wis. 1880–84 Served as district attorney for Dane County, Wis. 1885–90 Served in U.S. House 1900–06 Served as governor of Wis. 1906–25 Served in U.S. Senate 1914–18 World War I 1920 Senate refused to ratify League of Nations Covenant 1924 Ran for president on the Progressive Party ticket 1925 Died, Washington, D.C. ◆❖ ◆◆❖◆ Robert M. La Follette. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 192 LABOR-MANAGEMENT RELATIONS ACT LABOR DEPARTMENT The DEPARTMENT OF LABOR (DOL) administers federal labor laws for the EXECUTIVE BRANCH of the federal government. Its mission is “to foster, promote, and develop the WELFARE of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment” (29 U.S.C.A. § 551 [1985]). The DOL was created in 1913 out of four bureaus from the DEPARTMENT OF COMMERCE and Labor: the Bureau of Labor Statistics, Bureau of IMMIGRATION, Bureau of Naturalization, and Children’s Bureau. The DOL is headed by the secretary of labor, who serves in the president’s CABINET. The department’s numerous responsibilities include administering and enforcing federal labor laws guaranteeing workers’ rights to safe and healthful working conditions, a minimum hourly wage and overtime pay, freedom from employment discrimination, unemployment insurance, and workers’ compensation. The department protects workers’ pension rights, provides for job training programs, helps workers find jobs, and works to strengthen the COLLECTIVE BARGAINING process. It keeps track of changes in emplo yment, prices, and other economic measurements. The DOL also makes special efforts to address the unique job market problems of minorities, women, children, the elderly, disabled persons, among other classes of workers. The major bureaus and agencies within the DOL are the Employment and Training Admin- istration, Employee Benefits Security Adminis- tration, Employment Standards Administration, Occupational Safety and Health Administra- tion, Mine Safety and Health Administration, Bureau of Labor Statistics, and Veterans’ Em- ployment and Training Service. Other organiza- tions, including the Women’s Bureau, Office of the American Workplace, Bureau of Interna- tional Labor Affairs, Office of the Assistant Secretary for Policy, and the Office of Disability Employment Policy, also function within the department. Employment and Training Administration The Employment and Training Administratio n (ETA) administers major programs relating to employment services, job training, and unem- ployment insurance. The ETA also administers a federal-state employment security system, funds and oversees programs to provide work experience and training for groups having difficulty entering or returning to the work- force, and formulates and promotes apprentice- ship standards and programs. The Employee Benefits Security Administra- tion (EBSA) helps protect the economic future and retirement security of workers, as required under the EMPLOYEE RETIREMENT INCOME SECURITY ACT of 1974 (ERISA) (29 U.S.C.A. § 1001). EBSA assists over 200 million participants and bene- ficiaries in pension, health, and other employee benefit plans. It also assists more than three million plan sponsors and members of the employee benefit community. EBSA promotes voluntary compliance and facilitates self- regulation to provide assistance to pension and benefit plan participants and beneficiaries. ERISA requires administrators of private pension and welfare plans to provide plan participants with easily understandable summaries of their plans. These summaries are filed with the EBSA, along with annual reports on the financial operations of the plans and on the bonding of persons charged with handling plan funds and assets. Plan administrators must also meet strict FIDUCIARY responsibility standards, which are enforced by the EBSA. Employment Standards Administration The Employment Standards Administration administers minimum wage and overtime standards through its Wage and Hour Division. This division seeks to protect low-wage incomes as provided by the minimum wage provisions of the FAIR LABOR STANDARDS ACT (29 U.S.C.A. § 201), and to discourage excessively long hours of work through the enforcement of the overtime provisions of the act. The division also determines the prevailing wage rates for federal construction contracts and federally assisted programs for construction, alteration, and repair of public works subject to the DAVIS-BACON ACT (40 U.S.C.A. § 276a) and related acts. Occupational Safety and Health Administration The Occupational Safety and Health Administra- tion (OSHA) has responsibility for occupational safety and health activities. OSHA was estab- lished by the OCCUPATIONAL SAFETY AND HEALTH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LABOR DEPARTMENT 193 ACT OF 1970 (29 U.S.C.A. § 651 et seq.). It develops and issues occupational safety and health standards for various industries and occupations. OSHA also formulates and pub- lishes regulations that employers are to follow in maintaining health and safety. It conducts investigations and inspections to determine compliance with these standards and regula- tions, and if it finds noncompliance, it may issue citations and propose penalties. Mine Safety and Health Administration The Mine Safety and Health Administration (MSHA) is responsible for safety and health in coal and other mines in the United States. The Federal Coal Mine Health and Safety Act of 1969 (30 U.S.C.A. § 801 et seq.) gave the MSHA strong enforcement provisi ons to protect coal miners, and in 1977 the act was amended to protect persons working in the non-coal areas of the mining indu stry, such as silver mining. The MSHA develops and promulgates mandatory safety and health standards for the mining industry, inspects mines to ensure compliance, investigates minin g accidents, and assesses fines for violations of its regulations. It helps the states develop effective state mine safety and health programs. The MSHA also conducts research on mine safety, in the hope of preventing and reducing mine accidents and occupational diseases. Bureau of Labor Statistics The Bureau of Labor Statistics is the principal data ga thering agency of the federal government in the broad field of labor economics. It has no enforcement or regulatory functions. The bureau collects, processes, analyzes, and dis- seminates data relating to employment, unem- ployment, and other characteristics of the labor force. It also analyzes prices and consumer expenditures, economic growth and employ- ment projections, and occupational health and safety. Most of the data are collected by the bureau, the Bureau of the Census, or state agencies. Department of Labor Office of the Secretary of Labor Office of the Deputy Secretary Office of the Assistant Secretary for Administration & Management Office of the Chief Financial Officer Office of the Solicitor Office of Public Affairs Employment & Training Administration Women’s Bureau Veterans’ Employment & Training Service Office of Disability Employment Policy Occupational Safety & Health Administration Mine Safety & Health Administration Bureau of International Labor Affairs Pension Benefit Guaranty Corporation Employment Standards Administration Office of the 21 st Century Workforce Office of Public Liaison Center for Faith Based & Community Initiatives Adjudicatory Boards Office of Small Business Programs Chief of Staff Executive Secretariat Scheduling & Advance Office of Congressional & Intergovernmental Affairs Office of the Assistant Secretary for Policy Employee Benefits Security Administration Bureau of Labor Statistics ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 194 LABOR DEPARTMENT The basic data are issued in monthly, quarterly, and annual news releases, bulletins, reports, and special publications. Data are also provided electronically, including on the INTERNET. Veterans’ Employment and Training Service The Veterans’ Employment and Training Ser- vice directs the DOL veterans’ employment and training programs through a nationwide net- work of support staff. The service’s field staff work closely with state employment security agencies to ensure that veterans are provided the priority service required by law. The service provides public information and designs out- reach activities that seek to encourage employers to hire veterans. It also administers programs designed to meet the employment and training needs of veterans with service-connected dis- abilities, Vietnam-era veterans, and veterans recently separated from military service. Other Agencies The Women’s Bureau formulates standards and policies that promote the welfare of wage earning women, improve their working condi- tions, increase their efficiency, and advance their opportunities for profitable employment. The Office of the American Workplace was created in 1993 to enhance employer-employee relations and collective bargaining, as well as to ensure that labor unions are run democratically. It works to establish labor-management net- works that disseminate information concer ning cooperative labor-management relations and high-performance workplace practices. It con- ducts investigative audits to uncover and remedy criminal and civil violations of federal law. Its Office of Labor-Management Standards conducts criminal and civil investigations to safeguard the financial integrity of unions and to ensure union democracy. The Bureau of International Labor Affairs carries out DOL international responsibilities. It works with other government agencies to formulate international economic, trade, and immigration policies affecting U.S. workers. The bureau represents the United States on delegations to multilateral and bilateral trade negotiations and in international bodies such as the GENERAL AGREEMENT ON TARIFFS AND TRADE, International Labor Organization, Organization for Economic Cooperation and Development, and other U.N. organizations. It also helps administer the U.S. labor attaché program at embassies abroad and carries out technical assistance projects in other countries. The Office of the Assistant Secretary for Policy (OASP) advises and assists the secretary of labor in, and coordinates and provides leadership to, the department’s activities in addressing economic policy issues, conducting economic research, and formulating regulations and procedures bearing on the welfare of Ameri- can workers. OASP also provides leadership and oversight for coordinating and managing the department’s public Web site, ensuring its information and services are cohesive, accessi- ble, timely, accurate, and authoritative. In 2001 Congress approved an Office of Disability Employment Policy (ODEP). Part of the Department of Labor, ODEP is headed by an assistant secretary. ODEP provides leader- ship to increase employment opportu nities for adults and youth with disabilities. ODEP serves individuals with disabilities and their families; private employers and their employees; federal, state, and local government agencies; educa- tional and training institutions; disability advo- cates; and providers of services and government employers. The secretary and all of the separate offices, bureaus, and agencies in the Department of Labor receive support from seven administra- tive bodies: the Office of Congressional and Intergovernmental Affairs, OFFICE OF ADMINISTRA- TION and Management and Chief Information Office, Office of the Chief Financial Officer, Office of the Solicitor, Office of the Inspector General, Office of Publi c Affairs, and Office of Small Business Programs. These seven administrative bodies assist the secretary and the Department of Labor to function smoothly, to maintain its vast records, to publicize its initiatives, and to represent the department in Congress regarding issues, legislation, and programs and initiatives that fall within the broad scope of the Labor Department’s responsibility. On March 6, 2001, the labor secretary announced the creation of a new Office of the 21st Century Workforce. The 21st Century Workforce mission is to help ensure that all American workers have the opportunity to equip GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LABOR DEPARTMENT 195 themselves with the necessary tools to succeed in their careers in the environment of rapid change and technological innovation that marks this period in the history of the American workforce. The changes in national and global economies include a fundamental transformation for all industries and increasingly require higher skill sets and higher education. FURTHER READINGS Labor Department Web site. Available online at http://www. dol.gov/ (accessed August 5, 2009). The Federal Register. Available at http://www.thefederal register.com/b.p/department/DEPARTMENT_OF_ LABOR/; website home page: http://www.thefederal register.com (accessed September 5, 2009). U.S. Government Manual Website. Available online at http:// www.gpoaccess.gov/gmanual/index (accessed July 21, 2009). CROSS REFERENCES Collective Bargaining; Employment Law; Labor Law; Labor Union; Mine and Mineral Law; Workers’ Compensation. LABOR LAW An area of the law that addresses the rights of employers, employees, and labor organizations. U.S. labor law covers all facets of the legal relationships among employers, employees, and employee labor unions. Employers’ oppo- sition to recognizing employees’ rights to organize and bargain collectively with manage- ment has resulted in a system of primarily federal laws and regulations that is adversarial in nature. Modern labor law dates from the passage of the WAGNER ACT of 1935, also known as the National Labor Relations Act (NLRA) (29 U.S.C.A. §§ 151 et seq.). Congress has passed two major revisions of this act: the TAFT- HARTLEY ACT of 1947, also known as the Labor Management Relations Act (29 U.S.C.A. §§ 141 et seq.), and the LANDRUM-GRIFFIN ACT of 1959, also known as the Labor Management Report- ing and Disclosure Act (29 U.S.C.A. §§ 401 et seq.). The railroad and airline industries are governed by the Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.), originally passed in 1926 and substantially amended in 1934. Federal employees are covered by the separate Federal Service Labor Management and Employee Relation Act (5 U.S.C.A. §§ 7101 et seq.). Labor law is also made by the NATIONAL LABOR RELATIONS BOARD (NLRB), an ADMINISTRATIVE AGENCY that enforces federal labor statutes, and by federal courts when they interpret labor legislation and NLRB decisions. In addition, state and munici- pal employees are covered by state law. A basic principle of U.S. labor law is that the SUPREMACY CLAUSE of the CONSTITUTION authorizes Congress to prohibit states from using their powers to regulate labor relations. The ability of Congress to pre-empt state labor laws has been defined largely by the U.S. Supreme Court because the NLRA is imprecise about what states can and cannot do. The Court has set out two basic principles concerning pre-emption: Not all state labor laws are pre-empted by federal statute, and conduct actually protected by the federal statutes is immune from state regulation. For example, vandalism committed by a union organizing campaign may be subject to state criminal and civil sanctions. A strike in an industry subject to the NLRA that is aimed at improving wages cannot be prohibited by the state. Historical Background Labor law traces its roots to the early 1800s, when employees who banded together to strike for improved working conditions were branded as criminals. By the mid-nineteenth century, the law changed to recognize the right of workers to organize and conduct COLLECTIVE BARGAINING with their employers. Employers, however, were not receptive to unions. Between 1842 and 1932, they routinely used injunctions to stop strikes and to frustrate union organizing. The NORRIS-LAGUARDIA ACT (29 U.S.C.A. §§ 101 et seq.) was passed by Congress in 1932 to curb the use of labor injunctions, preventing employ- ers from going through the federal courts to quash unions. The passage of the Wagner Act three years later signaled the beginning of a new era in labor relations and labor law. The legacy of employer-union conflict shaped the new system of government regulation of labor- management relations. Modern Labor Law The NLRA is the most important and widely applicable U.S. labor law. Its section 7 (29 U.S. C.A. § 157) guarantees employees “the right to self-organization; to form, join, or assist labor organizations; to bargain collectively, through representatives of their own choosing; and to engage in other concerted activities for … mutual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 196 LABOR LAW aid or protection.” Employees are also entitled to “refrain from any or all such activities.” The act prohibits employers and unions from commit- ting “unfair labor practices” that would violate these rights or certain other specified interests of employers and the general public in various circumstances. Labor law generally addresses one of three different situations: (1) a union attempts to organize the employees of an employer and to get the employer to recognize it as the employees’ bargaining representative; (2) a union seeks to negotiate a COLLECTIVE BARGAINING AGREEMENT with an employer; or (3) a union and employer disagree on the interpretation and application of an existing contract between the two. Within these three situations, specific rules have been created to address rights of employees and em ployers. Organization and Representation of Employees Under the NLRA, neither employers nor unions may physically coerce employees or discriminate against them on the job because they do or do not wish to join a union, engag e in a peaceful strike or work stoppage, or exercise other organizational rights. Although an employer is forbidden to discharge peaceful strikers, it may hire replacement workers to carry on business. When the employees of a particular com- pany decide to be represented by a union, they usually contact the union’s parent association or local division for aid and guidance. The union may solicit membership by holding meetings to discuss how working conditions can be im- proved, and by distributing leaflets. The employees, union, or employer may file with the NLRB a petition to conduct an election to decide whether the union should be the collective bargaining representative. This peti- tion must meet with the support of at least 30 percent of the employees in the bargaining unit named in the petition. Once the petition has been filed, the NLRB must determine whether any obstacles exist to holding the election. If not, the NLRB will attempt to get the union and employer to agree to an election. If the union and employer agree to an election, the NLRB conducts a secret ballot election to determine whether the majority of the employees in the bargaining unit desire to be represented by the union. During the election campaign, both employer and union may freely express their views about unioniza- tion of employees, but neither may resort to threats or bribes. If the union wins the election, the NLRB will certify it as the exclusive bargaining representative of the employees. The union may then be designated an appro- priate bargaining unit of a particular category of workers. A union is generally entitled to picket or patrol with signs reading “Unfair” for up to 30 days at the place of business of an employer it is trying to organize. To picket longer for organizing purposes, the union must file for an NLRB election. If the union then loses the election, it is forbidden to resume such picket- ing for a year. The U.S. Supreme Court upheld the right to pea ceful union picketing in Thorn- hill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). Negotiation of a Collective Bargaining Agreemen t Collective bargaining is the pro- cess by which an employer and an accredited employee representative negotiate an agreement concerning wages, hours, and other terms and conditions of employment. An employer and a union representing its employees have a mutual obligation under the NLRA to bargain with each other in GOOD FAITH. The primary goal of collective bargaining is to promote industrial peace between employers and employees. The parties have a duty to try reasonably to accommo- date differences and reach common ground, but ultimately they have no obligation to enter into a contract. The FEDERAL MEDIATION AND CONCILIATION SERVICE or state labor agencies may provide parties with mediators to help them negotiate. Mediators act as neutral facilitators. It is a fundamental tenet of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government. If a labor dispute becomes serious enough to affect national health or safety significantly, the president has the statutory authority to obtain an 80-day injunction from the federal courts against any strike or lockout. This procedure has been used over three dozen times since 1947, but rarely since the 1970s. Pressure to Resolve a Contract Dispute When an employer and a union are unable to resolve GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LABOR LAW 197 . Bureau of the Census, or state agencies. Department of Labor Office of the Secretary of Labor Office of the Deputy Secretary Office of the Assistant Secretary for Administration & Management Office. Office of Congressional and Intergovernmental Affairs, OFFICE OF ADMINISTRA- TION and Management and Chief Information Office, Office of the Chief Financial Officer, Office of the Solicitor, Office. Security Administration Bureau of Labor Statistics ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 194