' The petitioner has, through this constitutional petition, called in question his dismissal as an Inspector of Octroi Shehr Sultan Town Committee, District Muzaffargarh.
2. 'The brief facts, as stated in the petition supported by an affidavit, are that the respondent-Town Committee terminated the services of the petitioner by a resolution on 14th April, 1968. This order was set aside by the Controlling Authority on 4th July, 1968 (Annexure `A'). It reads as follows :- "Syed Muhammad Nawaz Shah, Octroi Inspector of the Town Committee, Shehr Sultan has been dismissed from service on political grounds. There is otherwise no charge against him. The orders of the Town Committee are illegal. He is hereby ordered to resume his duty forthwith. The period for which he remained out of service should be treated as period spent on duty and he should be paid full salary for this period after surcharging the members of the Town Committee who voted in favour of such illegal resolution. Dated 2nd July, 1968."
3. In about two months, despite the above order of the Controlling Authority, showing that members of the Town Committee had acted mala fide against the petitioner, he was again suspended and served with a show cause and after some proceedings the same Town Committee dismissed him on 6th June, 1969. He filed an appeal before the Controlling Authority, which was dismissed on 30th September, 1969 ; thereafter he challenged his dismissal through this writ petition.
4. The main grounds urged in this petition are : (a) of mala.Fides : and (b) serious contravention of law with regard to the opportunity of hearing. The petition is supported by an affidavit. None has appeared from the respondent's side to controvert or rebut the assertions made in respect of the above noted two aspects of the case. The appeal of the petitioner was dismissed by the Controlling Authority in the second round with the observation that "in view of the unanimous decision of the Town Committee, I see no justification to retain the appellant in service any longer and dismiss the appeal accordingly". Nothing has been say with regard to the allegations of mala fides against the members of the Town Committee which allegations were accepted as true in the earlier order of the Controlling Authority passed on 4th July, 1968. In the peculiar circumstances of the case when there is a possibility of the p boner's assertion with regard to the main fides being true, and there being no rebuttal from the respondent, as none has appeared to oppose this petition, there is no alternative but to accept the same and set aside the impugned orders. I order accordingly. The case of the petitioner for disciplinary action is remanded for fresh decision in accordance with law. The Controlling Authority might itself decide afresh the questions of mala fides and non-observance of the provisions of law as also the merits or further remanding the case for fresh decision to the authority competent to punish the petitioner.
5. As the case is being remanded for fresh trial/hearing, therefore, this order should not be presumed to have decided the question of so-called entitlement of the petitioner to the emoluments during the Intervening period. This question will have to be considered and decided by the punishing authority in accordance the facts and circumstances of the case and the law including rules and instructions in this behalf, There shall be no order as to costs. Petition accepted.
TH0 END PAKISTAN LABOUR CASES JOURNAL SECTION LABOUR RELATIONS UNDER THE BASIC LABOUR LAWS OF PAKISTAN AND U. S. A.
[A Comparative Study] By AHMAD SALMAN MUNIR, B. A., LL. B., LL. M. (INDIANA)
CHAPTER I INTRODUCTION TO PAKISTAN LABOUR LAWS Labour policy and legislation have two main objectives. One is to afford protection to the workers and guarantee certain minimum benefits which they may not be able to enjoy if left entirely to the free play of market forces. The other is to regulate Industrial Relations by drawing rules and regulations for the formation of organizations of workers and employers, and for the conduct of Collective Bargaining and other forms of joint dealings. In this context, labour legislation can be divided into three broad categories:
(a) Protective Legislation.-Protective Legislation generally affords protection to the workers in respect to tenure of employment, working conditions, health and safety etc. The Mines Act, 1923, the Factories Act, 1934, the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1963 and the West Pakistan Shops and Establishments Ordinance, 1969, embrace this category. The first two Laws regulate the conditions of work,in Factories and Mines, while the other two protect the terms and conditions of employment of workers employed in Industrial and Commercial Establishments.
(b) Welfare Legislation.-Welfare Legislation pertains to the welfare of employees. Laws such as the Employees' Social Security Ordinance, 1965, the Old Age Benefits Act, 1976 and the Workers Welfare Fund Ordinance, 1971, fall in this category.
(e) Legislation relating to Industrial Relations.-At present the Industrial Relations Ordinance, 1969, is the only legislation that deals with the field of Industrial Relations in Pakistan.
HISTORICAL BACKGROUND The history of Labour Legislation in the Indo-Pakistan Sub-Continent started with the enactment of protective laws. The sub-continent was primarily an agricultural area and the first signs of Industrial Revolution emerged under the British Rule in the form of factories. As a result the Indian Factories Act was passed in the year 1881. This was followed by another enactment in 1911, which laid down hours of work for adults, women and children employed in factories. The other enactments passed during this period had more or less the same objectives i,e, to protect rights under the contract of employment. After First World War the then Indian Government assumed a more active role in the field of Labour Legislation. The sphere of Labour Legislation was, for the first time, extended to areas of welfare and labour management relations. As a result, drastic amendments were made in the Factories Act, 1911 and the Mines Act, 1901. The Trade Unions Act was passed in 1926 to provide for representation of workers by their trade unions and to accord certain rights and obligations to trade unions. Trade Disputes Act, 1928 was the first ever law to provide for the investigation and settlement of trade disputes.' In an existing trade dispute the matter could be referred to a Court of Enquiry2 or the Board of Conciliation,3 by the local Government or the GovernorGeneral-in-Council. The Courts and Boards were set up by the Local Government or the Governor-General-in-Council. They could exercise powers under the Code of Civil Procedure, 1908. Any party to the dispute under inquiry/investigation was entitled to be represented by a legal practitioner. Thus there was established an effective process for the ventilation of grievances of labour and management. The Sub-Continent was not ready yet for Collective Bargaining. The report of the Royal Commission on Labour under the Chairmanship of Right Honorable J. R. Whitley, in 1931, provided the basis for the enactment of the Factories Act, 1934 and the Payment of Wages Act, 1936. The report also emphasised that labour and management, in the light of enactments, should try to come to an agreement among themselves over the basic issues. Resort to the Trade Disputes Act should only be made after they failed to reach an agreement and not before that. This clause of the report was to check the frequent use of the Disputes Act.
During the Second World War the Governor-General promulgated the Essential Services (Maintenance) Act of 1941, which was continued in Pakistan when it was re-enacted and enforced on 18th December,1952 in the shape of Pakistan Essential Services (Maintenance) Act of 1952.
After the Second World War, the SubdContinent was confronted with enormous problems in the field of labour-management relations and the Industrial Disputes Act, 1947 was enacted to regulate the Settlement of Industrial Disputes. This Act was aimed at Collective Bargaining between labour and management and the peaceful settlement of disputes. The Trade .11 I. A "Trade Dispute" was defined in the Act as "any dispute or difference between employers and workmen or between workmen or workmen which was connected with the employment, or with the conditions of Labour of any person." However the process to settle a trade dispute did not involve Collective Bargaining.
2. The Court of Inquiry consisted of an independent chairman and other members. The Court could enquire into the matter referred to it either in public or in private and report thereon to the authority by which the Court was appointed. It could also make interim reports.
3. The Board of Conciliation consisted of a chairman and two or for other members. The chairman being the independent person, while the other members were either independent persons or persons appointed me qual unmbers to represent the parties to the dispute. It was the duty of the Board to endeavour to bring about a settlement of the dispute referred to it and persuade the parties to come to a fair and amicable settlement of the dispute. The Board's powers were advisory in nature and it was up to the appointing authority to implement Board's recommendations.
1981 JOURNAL 3 Disputes Act of 1929 was repealed. Thus for the first time, the right to engage in collective bargaining, emerged in labour-management relations in IndoPakistan. Under the new Act the Constitution of the Board of Conciliation and Court of Inquiry remained the same. The provision for setting up Industrial Tribunals was introduced for the first time. A member of the Tribunal was to be an independent person, acting or retired Judge of the High Court or qualified for such appointment.
An industrial dispute could be referred to the Tribunal by the appropriate Government, which was empowered to prohibit a strike or a lock-out. On 14th August, 1947, Pakistan gained independence.
After independence, the Industrial Disputes, Act, 1947 was adopted by Pakistan alongwith the Trade Unions Act, 1926 and other laws. The Industrial Disputes Act. 1947, was amended in 1956 to provide speedy remedy to the employees and officets of trade unions for the redress of grievances arising out of dismissal and punishments during the pendency of industrial disputes. Another enactment in this Act was made in 1957, which placed restrictions on the right to strike and lockdout during the course of conciliation and adjudicating proceedings. In the year 1959, the Industrial Disputes Act, 1947 was repealed and replaced by another piece of legislation known as the Industrial Disputes Ordinance, 1959. The scheme of this Ordinance was designed on the assumption that conflicts inherent in labour-management relations could be resolved through the process of adjudication alone. With this object in view, it was made incumbent upon the parties to get their disputes settled through the process of adjudication. After the failure of canciliation proceedings. There was no other way for the settlement of disputes. Resort to strike and lock-out was completely prohibited.
The Industrial Courts were established for the first time in Pakistan under this Ordinance. The Industrial Court consisted of a chairman and two members to advise the chairman. One of the members represented the employers and the other represented the workmen. These members were appointed by the appropriate government. The chairman was a person who was or had been a Judge of the High Court or a District Judge. The members were appointed for a period of three years in consultation with the employers and workmen. The appropriate Government could refer any industrial dispute to the Court. The Court was empowered to try and punish persons accused of certain offences mentioned in the Ordinance.
For the purposes of adjudicating and determining an industrial dispute, the Industrial Court was deemed to be a civil Court and had the same powers as were vested in such Courts under the Code of Civil Procedure. For the purposes of trying an offence, it was deemed to be a Court of the Magistrate of the First Class under the Code of Criminal Procedure, 1898.1
1. In Pakistan separate systems of Courts exist for Civil and Criminal litigation. Magistrates, who at the same time are administrative officers and judicial officers, preside over the District Courts and take care of criminal offences. On the other hand the Civil Courts presided over by Civil Judges are concerned with civil matters only. On the next level these Courts are combined into one and are called the District and Sessions Courts and thus are headed by the District and Sessions Judges. #TBS 4 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE The decisions and awards of the Court were given in writing, and signed by the chairman. Any decision or award of the Court was final and not questionable in any manner by or before any Judicial or any other authority including the High Court and the Supreme Court. A petition for leave to appeal could however, lie in the Supreme Court under Article 160 of the Constitution of 1956. A right to appeal to the High Court was conferred for the first time by virtue of an amendment in section 12(6) of Industrial Disputes Ordinance, 1959, affected by Industrial Disputes (Amendment) Ordinance of 1962 promulgated by the President of Pakistan on October 26, 1962.
It would not be out of place to mention that in terms of section 34 of Industrial Disputes Ordinance, 1959, a workman who was a party to an Industrial Dispute was entitled to be represented by an officer of a registered trade union and an employer was entitled to be an officer of Employers Association. Legal practitioners were not allowed to represent the parties initially. However in the year 1972 by virtue of an amendment brought about in subsection (2) of section 34 of Industrial Disputes Ordinance, 1959, legal practitioners could appear before the Labour Courts only with the consent of all the parties. The West Pakistan Industrial Disputes Ordinance, 1968, repealed the Industrial Disputes Ordinance, 1959. In July, 1969, the Government announced a new labour policy.
The then Martial Law Government on the basis of that policy promulgated the Industrial Relations Ordinance, 1969.' This Ordinance contains the major part of labour legislation at present in Pakistan.
An important feature of this Ordinance is that it consolidates the entire law relating to trade unions and Industrial Disputes. The Ordinance has been amended several times since coming into force, the most important and far-reaching amendments being made in the years 1972, 1973 and 1975.
The Ordinance now deals with the following main areas:-
(1) Establishments, registration and promotion of Trade Unions at the plant, industry and national level.
(U) Settlement of differences and disputes through recourse to a given procedure, backed by the right of strike and lock-out.
(iii) Procedure for the redress of individual grievances.
(iv) Employees participation in management at various levels and forums. The only two salient features of this Ordinance are that the tripartite complexion of the Industrial Courts has been changed and the Labour Courts now are presided over by officers of the Status of a District Judge.
The right of Appeal to the High Court was taken away under the West Pakistan Industrial Disputes Ordinance, 1968, and was conferred initially on a Single Labour Appellate Tribunal in the entire Province of West Pakistan, and after the dismemberment of one unit, separate Labour Appellate Tribunals were set up in each of the for Provinces of the Country.2
1. Industrial Relations Ordinance, 1969, heretofore shall be abbreviated as I. R. O., for the convenience of the reader.
2. Pakistan came into being on August 14, 1947 and comprised of two Provinces : West Pakistan and East Pakistan. East Pakistan in 1971 gained independence and is now known as Bangladesh. West Pakistan is now called Pakistan and is composed of 4 Provinces, the Punjab, Sind, North-West Frontier Province and Baluchistan.
[contd. To next page 1981 JOURNAL HISTORICAL BACKGROUND OF AMERICAN LABOUR RELATIONS Unlike the Indian Sub- Continent, the colonial era in North America ended in 1776, in the earlier stages of industrialization.
Both the American Continent and the Indian Sub-Continent were chiefly dominated by agriculture which overshadowed whatever little manufacturing took place. Basically manufacturing was comprised of clay utensils, handicrafts and crude hand-made cloth. Business remained between the families, with -The family members being the master and servantat the same time. Thus the tussle between the employer and employee was absent. There, however, the similarity ends. The history of Labour Relations in the United States can only be understood if the early history after its independence is kept in view. After independence, the United States became the homeland of immigrants, pouring in from Europe in great numbers from such countries as the United Kingdom, France, Spain, Germany, Norway, Italy and Sweden-Poland. China contributed with Asian immigrants and Africans were brought forcibly as slaves to this new Land of Promise and Future.1 Throughout the Colonial period free labour remained in short supply, a situation which settlers sought to remedy through particular legal or social relationships. Bound labour for white Europeans and coercive labour for black Africans was devised. The white labour called "redemptioners"2 or "free willers", was comprised of those people who for a free passage to America were willing to work for certain periods of times. When black Africans first came to Virginia, in 1619, they were treated as bound servants and were freed when their terms expired. However as the civilization grew, life for blacks deteriorated. By the 1640's blacks began to be sold as servants for life, a system of de facto slavery which preceded the formal legalized slavery that came in vogue after independence. From 1790 to 1850, all kinds of machinery emerged in the market, projecting the limitations of human hands. New sources of capital became available. Banks and corporations, businessmen and executives, financiers and corporate lawyers all emerged and gained importance. The development of the railroad systems and the utilization of natural resources gave a boost to American Industry. conch!. Of pre-page] The for Labour Appellate Tribunals in for provinces are headed by Judges of the High Court. In the Punjab and Sind the Tribunals are presided by retired Judges of the High Courts and function exclusively on the Labour Side, because it is in these provinces that the major industry of the country is situated. Whereas in the Province of N.-W. F. P. And Baluchistan, one Judge of the High Court of the respective province concerned has been delegated the status of Labour Appellate Tribunal and whilst performing his normal duties as a Judge of the High Court also performs additional duties of the Chairman, Labour Appellate Tribunal.
1. "A Basic History of the United States", by Beard C. A. And Beard M. R., at page 197.
2. "Labour Relations and Social Problems" by James B. Atleson, Robert J. Rabin, George Schalzki, Herbert L. Sherman Jr., Eileen Silverstein, at page 2. #TBS 6 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE The rise of the factory and fortunes served as an inducement to employers to hire journeymen, to lower wages and to subdivide work tasks, thereby giving importance to speed and cheapness rather than skill. This resulted in inequality among the workers. Those who remembered a past, entrenched in household and skill relationships, perceived this inequality with some apprehension. Under those circumstances, the workers did not need any persuasion to look towards a body which could stand up for their rights.
Thus "employees turned to labour organizations as the abandoned hope of occupational mobility and acquired fears for job security. Although geographical and some occupational mobility did occur, the most usual form of advancement was movement within a class."
Thus by the early 19th Century, Organizations of skilled workers began to emerge in north-eastern cities. These organizations belonged to printers, carpenters, shoe-makers and cordwainers. The societies, although, were benevolent in nature raised economic demands like a minimum wage, either a stated daily rate or a wage for the work performed, and they demanded the equivalent of a closed shop. They insisted on hiring society members and the outsiders be made to join if they wanted to work. Early Strikes typically lasted several hours to a few days and were often unorganized, but peaceful. Many of these societies were created in response to specific grievances and they dissolved when the dispute was resolved or when efforts were unsuccessful.2 In 1794 the shoe-makers organized a union under the name of the Federal Society of Journeymen Cordwainers.3 They staged a strike in 1805 which led to what is believed as the first American Labour case and the Criminal Conspiracy doctrine. The strike was aimed at increasing the regular piece work rate and eliminating the rebate for export products. The strikers held out for several weeks, but the arrest of the strike leaders for criminal conspiracy ended the effort in failure. As a result of the strike the journeymen shoe-makers were convicted and find dollars 8 each when they "did combine, conspire and confederate, and unlawfully agreed together, that they would not work, but at certain large prices and rates4."
Thus, concerted employee activities in support of demands for higher wages and better working conditions were met, with harsh criminal prosecution. They were classified as common law conspiracies because of the illegality of the means employed or the ends sought. However the pattern which was developed in this case was followed in eight out of ten similar cases which arose during the next 20 years, in Pennsylvania, Maryland, New York and Massachusetts.
1. Labour Relations and Social Problems", by James B. Atleson and others, at page 3.
2. Kid, page 5.
It is interesting to note that while strikes during the Colonial period were not ndrmally considered illegal, in the past revolutionary period, strikes were looked upon as a criminal act and were dealt with severely.
3. The shoe-makers formed and organized the first union of the United States, sometime in 1791-92, which did not have any name and functioned for less than a year.
"History of Labour in the United States" by Cornmens I R., Saposs D. J., Summer H. L., Hittleman E. B., Andrews J. B. And Perlman S., at page 109.
4. Philadelphia Cordwainer's case of 1806. Commonwealth v. Pull's, Philadelphia Mayor's Court.
198/ JOURNAL In spite of conspiracy cases, the worker's organizational efforts gained momentum and ultimately in 1842, in the famous case of Commonwealth v. Hunt' Chief Justice Shaw's decision reflected his awareness of the growing clamour of the wage earner for the recognition of the legality of the common objectives of the Trade Unions. He refused to find anything illegal in a mere combination not to work if non-Union men were hired and of the discharge of such non-Union men.2 Thereafter the growth of the labour-movement was steady but slow. Over a period of time the single craft Unions, such as those formed by Shoedmakers of Philadelphia and the printers of New York gave way to the establishment of central or city's Trader Union, i,e, a Union of Traders in a city.
Before long Trades Union gave way to national associations representing a single trade. On the other hand during the 40's and 50's and after the Civil War the employer opposition to unionism was intense and deadly. In the latter part of the 19th century and early 20th century the Courts came to the aid of the employers and introduced the civil injunction to combat unionization.
Injunction was normally issued in cases which restrained trade. The Courts treated concerted activities in support of unionization strikes, picketing and boycotts as conspiracies and dealt with accordingly. It was not difficult for the employer to secure a temporary restraining - order. This was often done on the basis of stylized affidavits whose truth was hard to ascertain since the proceedings were ex parte. The injunction decrees were worded broadly and frequently prohibited conduct, such as a peaceful persuasive speech. Those who violated the injunction were held in contempt and faced possible imprisonment. Frequently they were tried by the Judge who had granted the injunction initially.3 The injunction was first used in the Railway Strike of 1877 where strikers of Indiana and Illinois were found guilty of contempt for interfering with the orders of the Court to operate their trains. In 1888 the Federal Courts issued an injunction against engineers of Chicago, Burlington and Quincy Railroad that gained wide publicity. The Supreme Court of the United States in Debbs constitutionality to the injunctive process. The Supreme Court's decision was popularly described as "the gatling gun on paper" by the Pullman strikers, which started the interesting history of labour legislation in the United States.
To understand the history and the impact of labour legislation which followed the Pullman strike, it is important to have some idea of the
1. Commonwealth of Massachusetts v. Hunt, Mass. 4 Metcalf 111 (1842).
2. From 1843 to 1862, there were only 3 conspiracy cases, the main reason being that there were no strikes during that period. After general revival of trade in the closing years of Civil War, the conspiracy cases again increased and from 1863 to 1880 there were at least 7 cases in Pennsylvania, 5 in New York, 3 in New Jersey and one each in Illinois, Massachusetts and Connecticut. This doctrine was repealed, later, under great pressure from the workers.
3. Robert A. Gorman "Basic Text on Labour Law", 1976.
4. Debbs V. Union States 158 U. S. 564 (1895). #TBS 8 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE Sherman Anti-Trust Act, 1890' and other Anti- Trust laws. The monoply of Rockefeller over oil, of Carnegie over steel and of similar tycoons over whiskey, tobacco, railroad, rubber and matches prompted Congress to take action on the simple theory that it is uneconomical to have competitors combine to reduce competition because the consumer will end up paying more and getting less due to the loss of competition. The Sherman Act declared illegal "every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations,"2 and provided in such cases for injunction, criminal prosecution and private treble damages. In 1908 the Supreme Court of the United States in the Danbury Hatters3 case held that Sherman Law applied to labour unions and secondary boycott were outlawed by the Act and sustained a private judgment for treble damages. Although the Act was designed to counter the abuse of power by manufacturers in combining to set price and supply in the product market, the Sherman Act was applied more frequently by lower Federal Courts against the unions.'
The Clayton Acts which became law in 1914 was designed to exempt labour organizations from the scope of the anti-trust laws. Samuel Gompers hailed this piece of legislation as the "industrial magna carta upon which working people will rear their construction of industrial freedom." After the enactment of Clayton Act, the Supreme Court in the Duplex cased ruled that behaviour similar to that of Union in Loewe v. Lawlor still violated anti-trust laws. Thus for the next 20 years the Supreme Court and the tower Federal Courts went on to apply the anti-trust laws to labour activities. The unions on the whole were worse off under Clayton Act than under the Sherman Act. Section 16 of the Clayton Act made it possible for a private party to seek an injunction under the anti-trust laws, a power previously reserved only for the government. The ease with which employers were able to unfairly obtain these injunctions played a major role in the labour-management relations in the 1920s, "the rules for obtaining these injunctions would today, offend anyone's sense of fairness.7 Congress passed the Norris-La Guardia Act in 1932. This Act ended the use of labour injunction by Federal Courts. In 1935 the National Labour Relations Act, also known as the Wagner Act became law. By virtue of this law Labour Union and collective bargaining were made legitimate and important parts of the American Society.
LABOUR LEGISLATION IN UNITED STATES This history of labour legislation in the United States started after the Pullman strike in 1894. President Cleveland appointed the Strike Commission
1. Act of July 2, 1890, 26 Stat. 209, C-647, Sections 1-8.
2. Section 1, Sherman Anti-Trust Act.
3. Loewe v. Lawlor 208 U. S. 274 (1908).
4, Robert A. Gorman; "Basic Text on Labour Law", 1976.
5. Act of October 15, 1914, 38 Stat. 701, 737-739.
6. Duplex Co. v. Deering 254 U. S. 443 (1921).
7. "Labour Relations and Social Problems", Atleson et al, page 50.
1981 JOURNAL to Make recommendations for improvement in national labour relations. The Commission in its report said that the number and severity of strikes would be cut down if employers recognized and bargained with labour unions. Congress responded to this report by passing the Erdman Act' in 1898 imposing criminal penalties for the firing or threatening discharge of railway employees because of their union membership. The Act also provided for means to conciliate disputes between railway union and railroad companies through mediation and the encouragement of arbitration. Ten years later, the Supreme Court of the United States in Adair v. U.
S.,2 declared the Act unconstitutional, stating that it was beyond the Congressional power to prohibit discharge for union membership by the railroads and regulate inter-state commerce. It further said that it was an interference with the constitutional right of free contract. Despite the Supreme Court's opinion it was widely believed that unionization and collective bargaining would help to prevent disruptive labour disputes which interfered with the efforts of the labour. During World War 1, President Wilson's National War Labour Board, protected rights of employees to organize and penalized employers who interfered with these rights. The points mentioned above were kept in view when the Railway Labour Act3 of 1926 was enacted. That Act prohibits employer interference with Union organization by railway employees and provides procedures to aid in the settlement of employment disputes in the industry. The Act has been amended several times and in 1936 its provisions were also extended to the airline industry. The right to use concerted activities unimpeded by Federaf Law was won in 1932 when Congress enacted the Norris-La Guardia Act,4 first of the for statutory cornerstones of the current national labour policy.'
The Norris-La Guardia Act was enacted at the time of the great depression when the employees were down trodden, ill paid and had no bargaining powers. They had forgotten about job security and rights. The sponsors of the Act therefore tried to enhance the earnings and working conditions by concerted action. Since labour injunctions were obstacles, the Courts were deprived of the power to issue them. "The thesis of the Norris-La Guardia Act is the philosophy underlying organized labour's claim to the rights to strike, to boycott and to picket.
All fears that the Norris-Law Guardia Act might suffer the same fate as the Clayton Act were allayed in 1937 in the Tile Layer's ease,7 when the Supreme Courts upheld a judgment denying an injunction against a title layer's union which picketed a non-union contractor, and in U. S. v.
1. Stat.
424. The Erdman Act.
2. Adair v. Union States, 208 U. S. 161 (1908).
3. 44 Stat. 577 (1926), 45 U. S. C. Sections 161-163 (1964). The Act was granted constitutionality by the Supreme Court in Texas and New Orleans Railroad Co. v. Brotherhood of Railway and S. S. Blerks 291 U. S. 548 (1930).
4. Act of March 23, 1932, 47 Stat.
70.
5. Archibald Cox; Law and National Labour Policy, 1960, at page 4.
6. Ibid page 7.
7. Senn v. Tile Layers, 301 U. S. 468 (1937). #TBS 10 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE Hutchison,' the Supreme Court in 1941 held that the Act protected the secondary boycott activities of the Union.
The promulgation of the National Industrial Recovery Act, in 1933 was of historic importance. The Act put forward codes of fair competition on the employer's side, while on the other side wages were raised, hours were shortened and child labour was eliminated. President Roosevelt in 1933 created a National Labour Board, chaired by Senator Wagner of New York. In 1934 the National Labour Board was replaced by National Labour Relations Board. In 1935 the Industrial Recovery Act was declared unconstitutional by the Supreme Court.2 The demise of Industrial Recovery Act led to the enactment of National Labour Relations Act,3 also known as the Wagner Act.
The heart of N. L. R. A. Was section 7 which guaranteed employees three rights: freedom to form, join, and assist labour organizations; freedom to bargain collectively with the employer through representatives of their own choice; and the right to engage in concerted activities. Section 8 prohibited specific anti-union practices and also contained a general prohibition against interference with the rights guaranteed by section 7. The Act also left substantive terms and conditions of employment entirely to private negotiation. Between 1935 and 1947, labour unions grew and collective bargaining spread l4idly with the aid and encouragement of the Federal Government, In 1935 fewer than 4 million workers belonged to labour unions. In 1947 there were 14 million union members.4 During and after the World War II the unions had gained immense powers and organized labour had become the order of the day. On the other hand in 1947, as today, many business entities continued to make way on labour unions despite the National Labour Relations Act.
The Taft-Hartly Act,5 the third of the for basic labour statutes of the United States was enacted in 1947. This Act also known as the Labour Management Relations Act was desigaed primarily with the concept of curbing some of the immense powers of the unions and organized labour. The Taft- Hartley Act not only amended the Wagner Act but also stated that Collective Bargaining contracts were to be enforceable in the Federal Courts and the unions were to be suable entities. The states were authorized to outlaw union shops.
1
1. 61 U. S.463 (1941).
2. Schechter Poultry Corpn. v. United States, 295 U. S. 495 (1935).
3. 49 Stat.
449. Approved July 5, 1935. Hereafter referred to as either National Labour Relations Act or the Wagner Act. Also sometimes abbreviated as N. L. R. A.
4. Archibald Cox: Law and the National Labour Policy, 1960.
5. Act of June 23, 1947, 61 Stat. 136 Fed. Code Annotated Title 29, Sections 141-148, hereafter referred to as either Labour Management Relations Act or Taft Hartley Act. Sometimes abbreviated as L.M.R.A. i981 JOURNAL 11 The fourth cornerstone, the Labour Management Reporting and Disclosure Act or the Landrum Griffin Act' was adopted in 1959, to deal mostly with the internal union problems and matters.
Amendments were also made in the N.L.R.A. Restrictions on secondary boycott were broadened and the so-called hot cargo contracts were prescribed. CHAPTER II COVERAGE OF LABOUR LAWS It is of immense importance in the study of two different laws to determine the extent of their coverage.
The protection and outlet that the law guarantees can only be invoked successfully by a litigant if he is covered by that law. It is obvious that both laws govern industries, employers and employees, but the vast difference in the needs of the two countries, prompted legislatures to draft definitions accordingly. The definitions in Pakistan Law are contained in the Industrial Relations Ordinance, 1969. On the other hand National Labour Relations Act describes the extent of the jurisdiction of National Labour Relations Board.2 INDUSTRY The term "industry" as defined in I. R.
0. Means any business, trade, manufacturing, calling, service, employment or calling, service, employment or occupation.3 An industry needs not be necessarily for profit making. It may be an undertaking like a charitable hospital. The definition is wide enough io include large professional establishments. Like a firm of chartered accountants or architects or lawyers. They fall within the definition of industry and Labour Court has jurisdiction to entertain demands of workers in such establishments.'
The High Court at Lahore has ruled that an enterprise is to be looked at as a who!e and any incidental or ancillary part thereof is not sufficient to determine the character of the whole. Thus, where an educational establishment maintained a workshop and offered vocational education and training programme, the order of the Labour Court treating such workshop as "industry" was not upheld by the High Court.'
PRESENT LAW There are conflicting judgments of the Courts on the question of an hospital being an industry. Fauji Foundation Medical Centre has been declared not an industry,' on the other hand United Christian Hospital has been declared an industry.7 But mainly the point to be taken notice of is that an organisation which does not entirely depend upon the co-operation between
1. 73 Stat. 519 (1959).
2. National Labour Relations Board, hereafter shall be abbreviated as "The Board".
3. Section 2, I. R.
0., 1969.
4. A. F. Ferguson & Co. v. Sind Labour Court 1974 PLC 98.
5. K. C. Old Principal, Christian Technical Training Centre V. Punjab Labour Court, PLD 1976 Lah.
1097.
6. P L 1978 Trib. (Lab.) 31.
7. 1978 PLC 7. #TBS 12 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE Labour and Capital, instead has to employ experts Ve ho are not concerned with the organisation production, distribution and consumption of we ith may not be regarded as an industry.' Similarly a Rice research institute established by the Government whose employees were governed by Civil Service Rules was excluded from the ambit of an industry.2 Thus in order ^ o establish that an enterprise falls under the heading of industry, the whole history of the enterprise is to be taken into account to determine its vaison'd etre. Unlike the I. R.
0., the N.L.R.A. Is concerned only with those industries which have interstate commerce or whose operations affect such commerce. Except in the District of Columbia, where all commerce is covered, the commerce "affected" must L, )ss state lines. The Supreme Court in the Reliance case, stated "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the commerce clause.3 Thus the Board asserts jurisdiction over employer operations outside the United States, like American Somoa" and Puerto Rico.' The Board sometimes brings several small companies together, none of which individually would "affect commerce", in order to assert jurisdiction upon them. The Board classifies them as one because of their common labour relations policies controlled jointly.'
The Board asserts jurisdiction over law firms.7 arcbitectural firms.' health care institutions,9 hotels and apartment housing projects and educational institutions." The Board has extended its jurisdiction to day care centers, where their revenues exceed $250,000.12 In 1974 Congress amended the Act to give N.L.R.B. Jurisdiction over private non-profit hospitals and nursing homes.
The Board also asserts jurisdiction over agencies and instrumentalities of foreign states, in cases affecting employees in the United S fates.
1. 1979 PLC 278.
2. 1979 PLC 112.
3. Reliance Fuel Oil 371 U. S. 224.
4. 86 LRRM 1573 (1974).
5. 494 F 2d 336.
6. South Prairie Construction Co. v. Operating Engrs. Local 627 92 LRRM 2507.
7. Law Firms with revenue of $250,000 are covered by the Board.
8. 78 LRRM 1050 (1971).
9. The Board applies its $250,000 health care standard to assert jurisdiction 99 LRRM 1535 (1978).
10. Hotels and appartments where aggregate $500,000 annually, are covered by the Board. Golden Nugged Hotel 99 LRRM 1115 (1978).
11. Cornell University 183 NLRB 329; 74 L RRM 1269 (1970).
12. 100 LRRMI057 (1978).
13. State Bank of India 229 NLRB 95; L R R. M 1141 (1977).
1981 JOURNAL 13 Thus the Board has the power to set up its own standards to assert jurisdiction. Although the Board has seldom fully exercised the plenary scope of its statutory jurisdiction, nevertheless power and ability is there. EMPLOYERS The definition of the term "employer" in L R.
0. Is quite detailed. It generally embraces those who employ workmen under a contract of employment in establishments.' It includes persons responsible for the Management, supervision and control of establishments. Thus the proprietor, Director, Manager, Secretary, agent or other officer concerned with the Management of the affairs are deemed to be employers. Those establishments which are under the control of any Department of the Federal Government or Provincial Government, the head of the Department is the employer in that establishment. An employer does not have to be in charge or responsible for running the whole establishment. One incharge of a part of the establishment has been held to be an employer by the High Court.' On the other hand a paid servant responsible only to the owner and supervising the entire establishment falls within the definition of employer, as wel1.3 The definition further includes the heirs and successors of the employer. Those officers and employees who belong to superior managerial or supervisory positions, are employers for the purposes of I. R.
0.
In the United States, the original definition of employer under the Wagner Act was amended by the Taft-Hartly Act. The amended definition includes "any person acting as an agent of an employer directly, or indirectly,"4 whereas the original definition included "any person ,acting in the interests of the employer," whether he be an agent or not. The present definition implies the common law of Agency. Thus to hold the principal employer liable for the acts committed by any person, it has to be proved first that such acts were done on behalf of the employer and were within the scope and course of his duties. The N. L. R. A. Excludes certain classes of employers, like Government organizations which are wholly owned by the Federal Government, Federal, State and local Government bodies. Thus the employees of such corporations and the Federal Reserve Bank are excluded from the protective mantle of the Act. However, the Board asserted jurisdiction over an employer who was under a contract to operate cafeterias for 19 New Jersey School districts.' On the other hand the Board did not take cognizance of an
1. "Establishment" in I. R.
0. Is defined as "any officer, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry. . - . . . . Includes a collective bargaining unit if any constituted."
2. Muhammad Aqil v. Pakistan Paper Products Ltd., H. C. (Kar.) 1974 L L C 169; PLD 1978 Kar.
649.
3. Dost Muhammad Cotton Mills v. Muhammad Abdul Ghani (11. C. Kar.) PLD 1974 Kar.
342.
4. Section 2(2), N. L. R. A.
5. Jace Co. 205, N. L. R. B.
578.
14 JOURNAL PAKISTAN LABOUR CASES 1981. employer who provided guard and security services for the City College of New York.'
Private institutions which enjoy the benefits of agency but are not wholly owned by the Federal Government, like the Federal Deposit Insurance Corporation fall under the term "employers".
However any individual employed by such agency is precluded from participating in any strike.
Labour Organizations, with respect to their own employees, are considered employers within the meaning of section 2(2) of the Act.
Normally the Board does not assert jurisdiction over an employer who fulfils the requirements of "carrier" as explained in the Railway Labour Act and defers to the decision of the National Mediation Board.2 The Board, thus, in assetting jurisdiction over an employer, keeps in view, the employers control over its own labour relations policies, its hiring and firing power and the ability to handle its own personal matters. Employees: The words "worker" and "workman" have been substituted for the word "employee" in the I. R.
0. The old and very common definition of a "workman" confined to those doing skilled, unskilled, manual or clerical work has been abolished. The present definition simply provides that any person who does not fall within the definition of employer is a "worker" or a "workman." A "worker" or a "workman" in order to fail under the definition must be employed in an establishment or an industry for hire or reward. He may be employed directly or through a contractor. Honorary employees are not workmen under the definition. The definition also includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment. This removal should be directly related to an industrial dispute. Supervisors performing managerial functions or drawing above Rs, 1,000, per month ($100) have been excluded from the definition of a workman. Those who are employed mainly in mangerial or administrative capacity are excluded from the definition.
Where a cotton inspector was in charge of a cotton branch only and not of an establishment and exercised no powers of employment or removal, it was held that he was a workman and not an employer.3 A workman employed through a labour contractor but subject to the control of the Company is a workman.4 Similarly where the services of the watchmen were provided by the Department of Police, to a private employer, the Court ruled that such "watchmen could not claim the status of an employee of the private employer." The Court placed emphasis of the control and supervision by the Police Department of the work of watchmen.'
The Supreme Court of Pakistan in a recent decision held that a workman includes a chief accountant drawing a salary of Rs, 1,050 1 Wackenhut Corp, 203, N. L. R. B.
86.
2. Pan American World Airways, Inc., 212, N. L. R. B. No, 99, 86 L. R. R. M. 1641 (1974).
3. P. L. A. (Tribunal), 1974 L. L. C.
50.
4. British Ind.a Engineering Wors, H. C. (W. P.), 1960 L. L. C.
7.
5. SC 1963, L. L. C.
239. #TBS 1981 JOURNAL 15 #TBE per month (105) and acting under instructions of incharge of Accounts Section of the Company.'
There is some confusion among the Courts over the question whether a "salesman" is a workman or not. Various Courts have interpreted the duties of a salesman differently. Recently Karachi High Court ruled that a salesman is not a workman because predominant functions and duties of a salesman cannot be called manual or clerical labour.'
The Courts have ruled that those persons who are employed by the state but are not inv,Aved in the administration of the State are covered by this Ordinance. For instance gardners, drivers and caretakers of Lahore Improvement Trust,3 sweepers and watchmen of Agriculture Department,4 operators, fitters, electricians and helpers of Irrigation Department,' employees of transport corporation set up by the Provincial Government6 were all included in the scope of this Ordinance.
Thus the Courts in order to determine the relationship between master and servant, look to the master's right to supervise, and control the work done by the servant. Since the nature of control must vary from business to business, therefore there are no set standards in this respect. But the dominant factors in this area are due control and supervision of the workman. A person who normally does not enjoy the benefits received by other workmen in the same organisation is not considered a workman. Therefore a person designated as Executive Secretary, even though worked as a stenographer, but did not receive bonus or other benefits admissible to workers was excluded from the category of workers.7 On the other hand a stenographer performing clerical duties was held a workman.8 Similarly a person incharge of Bills Department of the Bank, who maintained several registers and had no power to hire and fire was declared a workman.9 On the whole the Courts look towards the nature of the duties performed by the functionary and not his designation in order to classify a person as a workman. Thus data tabulation was held to be a clerical function and the functionary was classified a worker.1 Where a worker was promoted as a Transport Supervisor but no charge occurred in his basic duty of a driver, such worker continued to be a worker."'
Lately the Com ts have held that every employee is a workman and the burden to prove that a certain employee is not a workn- an lies on the
1. SC (Pak.), 1975 L. L. C.
211.
2. H. C. Kar. 1975 L. L. C.
75.
3. 1976 L. L. C.
64.
4. 1976 L. L. C.
166.
5. 1976 L. L. C.
696.
6. 1976 L. L. C.
559.
7. 1978 PLC 485
8. 1978 PLC 540.
9. 1978 PLC 233.
10. P L I 1979 Lab.
363.
11. 1979 P C 140. #TBS 16 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE employer.' Agents are not workmen, thus a person holding a power of attorney for some one is not a workman.2 Similarly an employee of a contractor is not an employee.3 But later the High Court stated that this holding may not be made a rule, and it depends upon circumstances of each case.4 Section 2(3) of the Taft-Hartley Act states that an employee of any employer is an employee. The definition further includes those who have ceased to work because of a current labour dispute or unfair labour practice. These employees must have failed to find regular and substantially equivalent employment, in order to be covered by the Act. Factors which determine whether an employment is substantially equivalent to another are wages, hours, and working conditions.
Sometimes seniority is also a factor where this is of a substantial and practical value.'
Six classes of employees have been specifically excluded from the definition in the Act. Of these six, domestic servants and persons employed by his parent or spouse have been excluded for the simple reason that they should not have any real difficulty in negotiating with the employer. Hence the need for collective bargaining would not arise. However the Board sometimes includes close relations in a bargaining unit, when it notes that they receive no special benefits or favoured treatment, their wages are not disproportionate to their job levels and contact with their parent is minimum.6 Agricultural labourers have been also excluded from the definition of an employee. Although the Act does not define them but Congress has declared that the term shall have the same meaning as defined in section 3(F) of the Fair Labour Standards Act. The Courts have set up certain standards on which they base their criteria. In Bayside Enterprise Inc., the Supreme Court of the United States held that employees whose work is carried out in connection with the employer's operation are not agricultural employees, hence not exempt from the coverage of the Act."' On the other hand where an employee was a general handyman and devoted the majority of his work to the processing, handling and delivery of the employer's milk, the Court overruling the Board, found him to be an agricultural employee.8 The Taft-Hartley Act declared that Foremen were an integral part of the Management and not "employees". Thus foremen and supervisors were excluded from the protection of the Act, the rationale behind this seems to be that there are only "Management" and "rank and file employees" in the Industry. An employer need not have as his agent one who is obligated
1. 1979 PLC 370.
2. 1979 PLC 156.
3. PLD 1979 Kar.
109.
4. 1980 CLC 84.
5. Phelps-Dodge Corpn. v. N. L. R. B. 114 F. 2d 202 (Circuit 1940).
6. Tops Club Inc., 238 N. L. R. B. No, 130, 99 L. R. R. M. 1292 (1978).
7. Bayside Enterprise Inc.
8 . N. L. R. B. v. Karl's Farm Dairy Inc., 570 F. 2d 903. #TBS 1981 JOURNAL 17 #TBE to those on the other side. Powers which the supervisors normally enjoy are hire, transfer, suspeniiiTtrecall, promotion, discharge, assignment, reward and discipline. Such powers clearly embrace executives. However, Congress was considerate enough to include straw bosses, leadmen and other minor supervisors in the same bargaining unit with the rank and file.
The Board regards the supervision of merely one employee as a sufficient basis for exclusion from the bargaining unit "provided that the statutory indicia of supervisory status are satisfied." The Board noted that the supervisor had resporisibility to assign work, to discipline employees and recommend effective wage increases.' Similarly in Holland & Son, the Board excluded a maintenance supervisor even though he supervised only one employee.2 But in Luke's Supermarket the meat department's manager was excluded from the bargaining unit, because his inclusion in the unit would have left no one in the supervisory capacity in the Department.3 The Board and the Courts continue to apply the "right to control" test in determining whether individuals are employees or independent contractors. The dealers who operated separate business enterprises with no ' common ownerships or facilities were ruled as independent contractors.' In the Yellow Cab case the Board majority found lesser cab drivers to be employees.
The majority emphasized that the work performed by the drivers was an essential part of the company's normal operations, the lease term was short and its provisions were set unilaterally by employers.3 Where the cab companies exercised no control over the drivers, the lessee drivers were held independent contractors.8 Two groups of workers which have not been mentioned in the Act, ,k but are nevertheless conceded to be exempted from the operation of the Act are confidential and managerial employees. The Board defines and excludes as confidential employees, those individuals who assist and act in a confidential capacity to persons who formulate, determine and effectuate the employer's policies with respect to labour relations. Where a secretary performed the same work as all secretaries performed and was not told that her work was confidential, the Board did not regard her as a confidential employee.7 The Board excludes managerial employees who formulate and effectuate Management policies by exercising discretion in the performance of their jobs independent of the employer's established policies. The question of retirees was finally decided by the Supreme Court who overruled the Board and agreed with the Sixth Circuit had ruled that the term "employee" means someone who works for another for hire, and therefore excludes retirees.8 After this decision the Board held that a retired
1. Cartwrigt Hardware Co., Inc., 229 N. L. R. B. No, 110 (1971).
2. Holland and Son, 237 N. L. R. B. No, 39, 99 L. R. R. M. 1432 (1978).
3. Luke's Supermarket Inc., 228 N. L. R. B. No, 91.
4. Allied Paper, 234 N. L. R. B. No, 43 (1978).
5. Yellow Cab Co., 229 N. L. R. B. No, 190 (1977).
6. Sea Farers local 777, 99 L. R. R. M.
2903.
7. Ohio State Legal Services Assoc., 239 N. L. R. B. No, 71 (1978).
8. 401 U. S. 907. #TBS 18 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE butcher who had no regular hours and only occasionally was called in to stbstitute for a meat cutter, could not be included in the meat Department unit.' On the other hand an employee who is laid-off and has a reasonable expectancy to return to work is regarded as an employee and could be included in a bargaining it.2 CHAPTER III UNFAIR LABOR PRACTICES The single most important thing which causes industrial strife and enmity between management and labor is an unfair labor practice. If the management on one hand and a labor organization on the other hand recognize each others rights and obligations under the law as well as outside the law, and refrain from high handedness, then the labor policy in Pakistan and in the United States would achieve its purpose. Pakistan being a developing nation needs peace and harmony and good relationship between the employer, employees and labor organizations in order to achieve the status of a developed or economically self-sufficient nation.
The United States being a highly developed nation needs the same harmony and peace to remain developed. The policy of the United States in this regard finds mention in section I (b) of the L. M. R.
A.
In order to achieve this goal of harmony and peace certain acts of employers, employees and labor organizations have been classified as unfair labor practices. The list of unfair labor practices in the American law is quite exhaustive. Therefore only the major unfair labor practices will be mentioned in this chapter. UNFAIR LABOR PRACTICES OF EMPLOYERS Section 15 of the I. R.
0. Details, what constitutes an unfair labor practice on the pat!, of employers in Pakistan. For sound labor-management relations and economic progress, it is considered important that an employer should refrain from certain acts which could jeopardize the harmonious relationship. The employer cannot impose any condition in the employment contract, the purpose of which is to restrain the workman from either joining the trade union or continue his membership therein. Similarly an employer cannot refuse to continue to employ any pers6n on the ground that such person belongs or does not belong to a trade union. A member of a trade union cannot be victimized for his trade union activities. The Lahore High Court has held that such activity amounts "to discrimination and thus an unfair labour practice."3 Furthermore discrimination with regards to promotion, conditions of employment or working conditions is not allowed by the Courts, if carried on by the employer to punish the employee for affiliation with a trade union. A threat to dismiss, discharge, removal from employment or injure a workman is an unfair labor practice. Thus intimidation and coercion of any officer of a collective bargaining agent is unlawful. Similarly disconnection of any facility, like water, power or gas is also regarded as unfair labor practice.
1. El Rancho Market, 235 N. L. R. B. No, 61 (1978).
2. 236 N. L. R. B. No, 20 (1978).
K M. Asqf v. Abdullah Malik PLD 1976 Lab.
158. #TBS any advantage to a workman for joining or not joining a trade union. It is unlawful for an employer to interfere or influence the balloting provided for the determination of a collective bargaining agent. He is also forbidden to recruit new workmen during the period of a notice of a strike or during a legal strike. The employer cannot close down the whole of establishment in contravention of section 11(A) of the West Pakistan Employment (Standing Orders) Ordinance, 1968.3 It is unfair labor practice for an employer to instigate, incit or expend or supply money in support or furtherance of an illegal lockout. However, it has been provided in subsection (2) that an employer may require from an employee at the time of his employment or promotion to a managerial position that he should cease to be a member or officer of a trade union. The most important ingredient for a Court to look at in an unfair Labor Practice complaint is the relationship of an employer and employee between the Parties. Minus this relationship no proceedings may be initiated.4 Normally if the steps taken by employer are not stained with animus for union activities, the Courts refrain from interfering. Where there was no evidence to show that the transfer of employees was due to their union activities, no unfair Labor Practice was established.' Again no unfair Labor Practice was made out where an applicant was transferred from one section to another but posted in the same town, it was held that such transfer does not affect trade union activities.6 On the other hand a clearcut unfair Labor Practice was made out where a factory was made to work during a strike with the help of the persons not shown on register of workers.'
In the United States the N. L. R. A. And L. M. R. A. Outline the various types of unfair labor practices.
Section 8 (a) of N. L. R. A. Deals with the unfair labor practices on the part of employers. Section 7 of N. L. R. A. States the employees, right "to form, join or assist labor organizations" to "bargain collectively and to engage in other concerted activities," or to refrain #TBE #TBS held to be an unfair labor practice.2 The employer is also refrained from inducing or conferring benefits or #TBE #TBS f198i IOURNAL 19 The Courts in determining an unfair labor Practice charge, take into consideration the background and motive of the employer as well. Where all important office bearers of the Union were transfered to distant places, soon after the formation of the union in the bank, the Court held the employer guilty of unfair labor practice. Similarly a transfer of an employee of head office to a subordinate office on account of the Trade Union activities, was #TBE 11114.
1. 1973 PLC 370.
2. P L 3 1975 Tr. C. (Lab.) 304.
3. No employer can terminate the employment of more than 50 per cent. Of the workmen or close down the whole of the establishment without prior permission of the Labour Court.
4. PLD 1979 Kar.
109.
5. 1979 PLC 13.
6. 1973 PLC 29.
7. 1973 PLC 396. #TBS 20 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE from all such activities. Thus violation of any of these rights by an employer constitutes an unfair labor practice activity. Five types of unfair labor practices have been enumerated in sections 8(a) (1), 8(a) (2), 8(a) (3), 8(a) (4) and 8(a) (5). It is interesting to note that violation of either of subsections always constitutes violation of 8(a) (1).
It is the right of the employer to maintain order and to control the conduct of his employees in the plant, but this right has to be balanced against the right of employees to engage in concerted activity. The check on employers conduct is as essential as on employees. Thus the discharge and discipline of employees because of their taking part in protected "concerted activity" falls within the scope of section 8(a) (1).1 The Board has devised certain standards and criteria in order to determine employer interference, restraint or coercion of employees.1 Thus an employee's pro-union speech at the plant with company permission, that did not have a disturbing affect upon plant business was ruled as a protected activity.2 Safety related protests fall under protected activities. Where an employer discharged an employee for complaining about job safety conditions, the Board ruled that the employer violated section 8(a) (l).1 Employer interference may be manifested through actions or words. One of the frequently used employer interference is spying on activities of employees. This spying is condemned by the Board and the Courts because it hinders and serves as a check upon employee involvement with the Union.
The tactics which employers employ to break a strike are widely used under different patterns.
Union bustling techniques, hiring of professional strike breakers and use of violence are prima facie unfair labor practices, Similarly anti union propaganda aimed at interfering v. Ith collective bargaining or the right to organize has been classified as an unfair labor practice. While considering these charges, the Board looks to the overall conduct of the employer, called the "totality of conduct," as announced in Virginia Electric Case by the Supreme Court.4 The Board continues to apply the doctrine of Interborough Contractors' and holds individual employees efforts to enforce the terms of a collective bargaining agreement as a concerted activity.6 An employer cannot discharge or discipline employees for filing grievances.7 The Supreme Court has held that employee solicitation and distribution of literature during non working time in non working areas is legal. The Board regards a no access rule as legal if :
(a) it limits access solely with respect to the interior of the plant and other working areas. I. Section 8(a) (1),NLRA
2. Farah Mfg., Co., 202 NLRB 666 (1973).
3. C and L Air Conditioning Inc., 193 NLRB 911 (1971).
4. NLRB v. Virginia Electric and Power Co., 314 US469.
5. 157NLRB1295.
6. Hitchner Manufacturing Beverage, 236 NLRB No, 85 (1978).
7. 228 NLRB No, 159, 99 LRRM 1626 (1978).
1981 YOURNAL 21
(5) it is clearly diseminated to all employees.
(c) it applies to off duty employees seeking access tO the plant for any reason.'
It is a per se violation of section 8(a) (n if the employer unilaterally grants bonuses to non-striking employees.2 Similarly employer solicitation of employees to revoke their authorization cards and withdraw support from the union is a per se violation of 8(a) (1).3 Employer domination or interference with the formation or administration of labor organizations is also an unfair labor practice.* Thus employer predictions of adverse consequences of unionization have been held unfair labor practices.' However the Board distinguished between an employer's lawful expression of its views and opinions on union activity, and unlawful orders or directions to refrain from such activity. It is very difficult to make a distinction between a threat or a prophecy made by the employer. Therefore the Board generally looks at the past practices of the employer and the context in which such threat or prophecy was made. Withholding of the benefits during union campaign is an unfair labor practice.6 Similarly granting benefits during an election campaign for a union have been held illegal by the Board as well as the Courts?
Discrimination with respect to hire and tenure of employment is also an unfair labor practice. 6 The prohibition against an employers discrimination to encourage or discourage union membership extends to applicants for work as well as present employees.6 As to those already employed.
Protection is accorded to probationary and temporary employees. Employment discrimination alone does not constitute a violation of section 8(a) (3), it must be accompanied by some anti- union animus. Similarly employment discrimination based on employee's race, color, religion, sex or national origin in itself is not a violation of the Act, if the discriminatory conduct does not encourage or discourage union -membership." Typical examples of this type of conduct are ; refusal to hire an employee who previously participated in a strike at another employer's facility;'' discharge of employees because they are interested in union representation ;'2 denial of
1. Tr-Country Medical Centre, 222 NLRB 1089 (1976).
2. 236 NLRBNo, 113 (1978).
3. 236 NLRBNo, 43 (1978).
4. Section 8(a)(2), NLR A.
5. 236 NLRBNo, 223(1978). 6, 237 NLRBNo,25.
7. NL RB v. Arrow Plastic Corp., 537 F. 2d 702.-
8. Section 8(a) (3) NLR A.
9. 197 NLRB 793 (1972).
10. 202 NLRB 272 (1973).
11. 210 NLR B 689 (1974).
12. 207 NLRB 68 (1973).
22 JOURNAL PAKISTAN LABOUR CASKS 1981 employees promotions because of union activity;1 transfer of union adherents to different Jobs or locations and transfering or subcontracting work of union sympathisers.2 Although snpervisors are not given protection under the Act, yet it is an unfair labor practice and violation of section 8(a) (3) to discharge a supervisor because the supervisor refuses to carry out orders instructing him to perform acts in violation of the Act.'
An employer may not temporarily close its plant during negotiations over a new contract, where the shut down is motivated by anti-union rather than economic considerations.4 Similarly the Board applies section 8(a) (3) to prohibit an employer from closing down a plant and then transferring the work to another location for a discriminatory purpose.5 It is interesting to note here that an employer who employs more than 20 employees in his estabishment cannot close down the establishment without prior permission of the Labor Court.
An employer may permanently replace economic strikers, however economic strikers who unconditionally apply for reinstatement are entitled to reinstatement unless their positions are filled by permanent replacements. The burden is on the employer to establish that new employees are bona fide permanent replacements. On the other hand in Pakistan an employer cannot dismiss a worker for mere participation in a strike, even if it is an illegal strike. Action may only be taken against those workers who are guilty of violent or subversive activities. It is unlawful for an employer to discharge or otherwise discriminate against an employee because he has filed charges or has given testimony against an employer.7 An employer violates section 8(a) (4) if he discharges an employee for giving information to the Board.
Although Section 8(a) (4) only talks about employer discrimination against an employee for filing charges or giving testimony against him, the Supreme Court has held in the Scrivener Case that an employee can also refuse to testify for employer before the Board. The Court emphasized that an employee should be free to choose his actions without fear of employer reprisals, thus a discharge in such a situation violates the .Act.
The Board in a subsequent case extended the protection of section E(a) (4) to a supervisor who was discharged for refusing to give false testimony in a Board proceeding.5
1. 207 NLRB 907 (1973).
2. 210 NLRB 370 (1974).
3. Belcher Towing Co., 238 NLRB No, 63 (1978).
4. Bedford Cut Stone Co., 235 NLRB No, 74 (1978).
5. Case Inc., 237 NLRB No, 60.
6. 237 NLRB No, 26 (1978).
7. Section 8(a) (4) NLR A.
8. Eleetriflex Co. v. NLR B, 570 F. 2d 1327.
9. NLRB v. Scrivener, 405 U S 117.
J. C. Penny Co., 237 NLRB No, 101 (1978). 1 #TBS 1981 JOURNAL /3 #TBE Since the main objective of the Act is to promote collective bargaining, it is not surprising that a refusal to bargain collectively with the representative of the employees has been named as an unfair labor practice.'
In finding a violation of section 8(a) (5) the Board and the Courts consider the 'totality of circumstances," whether a particular course of conduct violated the duty to bargain in good faith.'
Under the Taft-Hartley Act the duty to bargain means the performance of mutual obligation of the employer and the representatives of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.' This duty has been held as continuing, such may not be suspended merely by the filing of unfair labor practice charges or by resort of a union to strike for "indeed, the fulfilment of the obligation to bargain becomes doubly important during a strike.4 The major aspects of collective bargaining will be discussed in the next chapter. UNFAIR LABOR PRACTICE ON THE PART OF EMPLOYEES Section 16 of I. R.
0. Sets out the unfair labor practices by workmen. A workman cannot be persuaded or forced by other workmen or a trade union to join or cease to be a member of a labor organization. Similarly inducement, monetary benefit, conferring of an advantage on a person to become or cease to be a member or officer of a trade union is an unfair labor practice. Intimidation or coercion or pressure or assault on an employer is illegal Disconnection of a facility for an employer, to make him sign a memorandum of settlement is an unfair labor practice.'
If the union or a workman instigates or incites others to take part in an illegal strike or support a "go slow," it is guilty of unfair labor practice. "Go slow" means an organized, deliberate and purposeful slowing down of normal quality of work by a body of workmen acting in a concerted manner. A trade union is also guilty of unfair labor practice if it interferes with the ballot held for the determination of collective bargaining agent, by exercising undue influence, bribery, intimidation or impersonation. The list of unfair labor practices on part of workmen is brief, for the simple reason that unions at the time of enactment of this provision were weak and insecure as compared to the employer. Thus emphasis was placed on employer unfair labor practices. On the other hand unions in the United States at the time, when Taft-Hartley Act was enacted, were very powerful and in order to check their immense power. Section 8(b) was added to the N. L. R. A. Designed to meet the demand of the management and to serve as a check on the Union behavior, the Congress embodied provisions relating
1. Section 8(a) (5), NLR A.
2. 527 F. 2d 1343.
3. Section 8(d), NLR A.
4. 91NLRB240.
5. 1973 L C 127.
24 JOURNAL PAKiSTAN LABOUR CASES 1981 to union behavior, as opposed to the unfair labor practices .The Wagner Act had imposed earlier on the employer. Based on the philosophy that a labor organization is an entity distinct from the members themselves, some unfair labor practices were aimed at protecting the individual employee against union high-handedness and the others for bringing the employers at par with the unions. The use of intimidation, coercion, pressure, threat, confinement or use of objective force or such tactics which have physical impact on the other party are prima facie unfair Labor Practices. However a hunger strike on the other hand is an act of self-appliction and self-imposition, therefore it does not amount to unfair Labor Practice. Where a union, although not certified by Registrar to be a Collective Bargaining Agent, but recognised as such by employer, commenced strike, it was held that the strike was valid and not in contravention of the Law.2 Most of the unfair labor practices mentioned in section 8 (6), N. L. R. A. Are synonymous to those applicable to employers under section 8(a). The following have been regarded as major unfair labor practices for a labor organization or its agents ;
(i) Restraint or Coercion :3 A union cannot restrain and coerce employees in the exercise of their section 7 rights. A union threat to discipline members for not supporting or participating in union activity would be unfair labor pracrice.4 It is also unlawful for a union to discipline members who threaten to file or file charges with the Boards or refuse to withdraw charges filed with the Board or a state human rights commission.6 The Board takes a very strict view of a union threatening non strikers and supervisory personnel with physical violence. However if such threats pertain to future strikes, and are made during an election campaign, the Board tends to ignore them.' The United States Supreme Court upheld the Board's finding in American Broadcasting Companies Case, of union violation of section 8 (b) (1)
(B). The union in that case disciplined a member/supervisor who had crossed a lawful picket line.
The Board reasoned that the Union's Act "adversely affects the supervisor's performance of his collective bargaining or grievance-adjustment tasks' .2 Similarly a union demand that employer terminate the employment of a departmental foreman who was employer's grievance adjustment and collective bargaining representative was held to be
(ii) Inducement of employer to discriminate ;
1. 1978 PLC 328.
2.
197.8 PLC 338.
3. Section 8(b) (1) (A), NLR A. Section 8(b) (1) (B).
4. 234 NLRBNo, 107.
5. 235 NLRB 151 (1978).
6. 237 NLRBNo, 38 (1978).
7. 239 NLRBNo, 103.
8. A. B. C. Comp. Inc., v. Writers Guild, 437 U. S. 411.
9. 236 NLRBNo, 127 (1978). #TBS 1981 JOURNAL 25 #TBE Section 8(b) (2) makes it unlawful for a union to cause or attempt to cause an employer to discriminate against an employee in violation of section 8(a) (3).
The_classic example of the violation of this section involves a union's attempts to induce or actual inducement of an employer to discharge or lay off an employee because of his non-membership in the union.1 Another typical example involves a union's attempts to secure the discharg3 or lay off of an employee because he has incurred the disfavor of union officers.2 The Board majority in an unusual case found violation of 8(b) (2) when union asked the employer to pressure its employees to cease work and forfeit one hours pay in order to attend a union meeting held on the employer's premises.'
The discrimination is not necessarily limited to discharge for non-member-ship in the union, but may include any type of discrimination in which an employer is forbidden to engage.
(iii) Refusal to bargain : As opposed to section 8 (a) (5), section 8(b) (3) relates to refusal to bargain with the employer. It is the duty of a union to bargain collectively. On behalf of the employees. A union conduct may depict a per se violation of the provision, if it insists on the. Inclusion of non-mandatory subjects of bargaining during the collective bargaining process. Where a union insisted on the inclusion of interest arbitration and industry promotion funds provision, it was held guilty of refusal to bargain.4
(iv) Prohibition against strikes and secondary boycotts : The Congressional policy of the United States would come to nothing if there was no check labor organization on using traditional economic weapons, like a strike and boycotts. Although protection is accorded in the Act to the right to strike, nevertheless it is not an unqualified right.
Section 8(b) expressly restricts the right of a labor organization or its agents to induce or engage in a strike for secondary purposes, for recognition of a union as bargaining agent under certain conditions or for jurisdictional or work assignment purposes. And section 303 of the Taft-Hartley accords a right to sue in any United States Court for damages for violations of section 8 (b) (4).
(v) "Feather-bedding" ; The term feather-bedding means to exact payment from employer, for services which are not performed by a labor organization or its agents. The Supreme Court of the United States has held that the Act, limits its condemnation to instances where employees or unions exact pay from the employer for services not performed or not to be performed and does not cover instances where work is actually done by an employee.'
(vi) Excessive Fees : A union has the right to prescribe its own rules with respect to acquisition of membership, but it may not charge excessive or discriminatory fees.
238 NLRB No, 6 (1978).
571 F. 2d.
1017.
235 N. L. R. B. No, 134 (1978).
575 F. 2d.
394.
345 U. S. 100 (1953). #TBS 1. For the purposes of this chapter the term collective bargaining agent will be abbreviated as C.B.A.. #TBE #TBS 26 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE Similarly an employee cannot be discriminated against except on the ground of his failure to tender the fees, which again should be reasonable. A union therefore cannot require old employees to pay a larger initiation fee than new employees, based on the prior refusal of the former to join at a time when they were not legally obliged to do so. CHAPTER IV COLLECTIVE BARGAINING Collective bargaining is an agreed upon method of assuring fair dealing between the Management and the union. It is the democratic goal of permitting employees to share with their employers some of the decision-making power that affects employer's work place environment. It basically aims at a peaceful and amicable settlement between the parties infer alia over such questions as wages, working conditions, hours and other related terms of employment. Although it is essentially a power struggle between the Management and the union and the outcome of this struggle depends on who holds more economic weight, in most cases it prevents economic warfare. Collective bargaining in Pakistan is a comparatively recent development. After independence the policy of the Government was to industrialize the country rapidly. In order to achieve that objective, there was no room for employer-employee confrontation. On the other hand the immense power of employers left little or no incentive for the employees or the unions to bargain about wages and other conditions of employment. Gradually, over a period of time, the unions started to gather momentum which ultimately resulted in the recognition of their rights to bargain collectively and independently with the employer over certain subjects. In the United States the system of collective bargaining has been worked out between Management and labor over many decades and is now supported by a legal framework which emphasizes that the best way for labor and Management to solve their problems is to work out themselves. COLLECTIVE BARGAINING IN PAKISTAN An interesting feature about the union which is certified to bargain collectively with the employer is that it is called "collective bargaining agent.' A Trade Union registered with the Registrar of trade unions may apply to be certified as the C.B.A. Of such establishment. The Registrar has the power to certify a union as C.B.A., without election, if-
(a) it is the only registered Trade Union in the establishment,
(b) its membership is not less than one-third of the total number of workmen employed in the establishment. That it is a pre-requisite for a registered union to have at least one-third of the total employees as its members. On the other hand in the United States the union has to show majority support to be certified as a bargaining agent. Where there are two or more registered unions, then upon the application of the union having one-third membership of total workmen, a secret ballot is held within 15 days of making the application. In case of two or more registered unions, the employer is not precluded from making an applica- #TBS 1981 JOURNAL 27 #TBE tion for such determination. If the establishment has its branches in more than one town, then the ballot is held within 30 days of making the application. Iii case the establishment is a seasonal factory, like a sugar factory, or towel factory, then the application to the Registrar is entertained only if it is made during the month when the maximum number of workmen are employed. The Registrar, after the receipt of application, notifies all the registered Trade Unions in that establishment. After receipt of notices the unions who desire to contest the election submit to the Registrar a list of their members with ages, including departments and ticket numbers. However if no union desires to contest the election, then the registrar may certify the union which first made the application. Every employer, if required by the Registrar, has to submit a complete list of all workmen employed in the establishment, not including those whose period of employment is less than 3 months. This serves as a check and verification of the lists provided by the unions. After the authenticity of lists is established, a new list of voters is prepared which includes the names of every workman employed whose period of employment is not less than 3 months. A copy of this list is sent to the contestant unions. A list of voters prepared in violation of this requirement is of no legal consequence.' But a list prepared in accordance with this procedure is not open to challenge in any Court, if an objection was not taken by a party before registrar.2 The employer provides all facilities in his establishment for the conduct of polls, but he cannot interfere or influence voting. Once the date of polls is fixed, each contesting Trade Union and the employer are infoeined about it. During polling the representatives of the contesting unions have the right to be present at the polling stations. Polling boxes are sealed in front of such representatives and unsealed and counted in their presence. The union which receives the largest number of votes is registered as the C.B.A., provided the votes received are not less than one-third of the total number of workers, employed in that establishment. In case no union received such number of votes, then a second poll between the two leading unions is held and the union winning that poll is certified as C.B.A.
A union once certified as C.B.A. Enjoys that status for two years from the date of registration. No other claims to such status by a rival union is entertained. Where a union was dissolved and ceased to exist, the labour tribunal held that the union continued to exist, until its registration was cancelled by registrar under orders of the labour Court.3 The rights of a C.B.A. Are to nominate representatives to certain funds, undertake collective bargaining concerning terms and conditions of employment, represent workmen in any proceedings and to declare a strike. C.B.A. Can request a check off clause and the employer by law is bound to comply with that request. SUBJECTS OF COLLECTIVE BARGAINING For the purposes of worker's participation in the Management of an establishment employing 50 or more workmen, a worker's representative is
1. II C (Kar.) 1973 L L C 158.
2. H C (Kar.) 1976 L L C 311.
3. S L A (Trib.) 1974 L L C 298. #TBS 28 JOURNAL, PAKISTAN LABOUR CASES 1981 #TBE nominated by C.B.A. Section 23(3), I. R.
0., contains the mandatory subjects of collective bargaining. The Management has been strictly prohibited from taking any decision in the following matters without the advice of the workmen's representative, in writing :-
(1) framing of service rules and policy about promotion and discipline of workers ;
(ii) changing physical working conditions in the factory ;
(iii) in-service training of workers;
(iv) recreation and welfare of workers ;
(v) regulation of daily working hours and break;
(vi) preparation of leave schedule; and
(vii) matters relating to the order and conduct of workers within the factory. In case the Management rejects the advice of the worker's representative, bilateral negotiations between C.B.A. And Management are carried on, in order to get to a settlement. These negotiations are carried out for a maximum period of ten days. If parties come to an agreement during that period then a memorandum of settlement is drafted. In case the dispute is not settled within this prescribed period, then either party may serve en the other party a notice of a lock-out or a strike, as the case may be. The period of 10 days has been provided by the Legislature to make the parties realize the urgency of the situation. Negotiations cannot go on forever. It is, therefore, presumed and supported by the Courts that the parties, if they want to, can come to an agreement in ten days.'
The period of a notice of a lock-out or of a strike is 14 days. During those 14 days a conciliator is appointed by the provincial Government if the union is local, and if the union is a federation, the federal Government appoints the conciliator. If the conciliator fails to bring about a settlement, then he tries to persuade the parties to refer the matter to arbitration. If the parties agree to arbitrate, then the award of the arbitrator is final. It is interesting to note here that the arbitration is not compulsory here, it is up to the parties to agree to the proposal or not. It would not be out of place to mention here that in the United States the Taft-Hartley Act set up Federal Mediation and Conciliation Service which provides assistance to Management and labor in settling disputes. The Service seeks to settle a dispute, first by Conciliation, and then mediation. Conciliation is distinguished from mediation in that conciliation is the effort to get parties to agree to offers freely made by either side, while mediation entails suggestions by the third party that had not been put forward by either side. In case the parties do not agree to arbitrate, then the employer may declare a lock-out, or the union may declare a strike. Either party has the right to take the matter to the Labor Court, or the Commission, as the case may be, for adjudication of the dispute. If the parties do not take the matter io the Court, then the Government concerned may prohibit the strike o ock- out, if it exceeds 40 days, and refer the matter to the labor judiciary.
1. SC (Pak.) 1976 L L C 379.
1981 JOURNAL 29 Thus, opportunities are provided to the parties at every step, to negotiate and reach a settlement.
The Government steps in after every means of settlement have been exhausted. Wherever there are two or more registered Trade Unions and two unions or more apply to the Registrar for a declaration as Collective Bargaining Agent, then the only option open to the Registrar is to arrange a secret Ballot for such determination.' After such application, the Registrar, Employer and the interested unions prepare a list af voters. Both Union and Employer are required to supply such lists to the Registrar. However, if the Union fails to supply such list, the Registrar is not competent to strike off the candidature of such Union.2 Once the list of voters is prepared by the Registrar and no party raises an objection as to the validity of that list and elections are held in accordance with that list, then it is not open to challenge in a Court of law.' Registrar is the only competent authority to determine a Collective Bargaining Agent. A Labor Court is not the proper forum for determination of Collective Bargaining Agent.4 An industrial dispute can only be raised by a Union which has a certificate from the Registrar of Trade Unions declaring that Union as Collective Bargaining Agent. A Union which is registered but has no certificate of Collective Bargaining Agent from the Registrar is not competent to raise an industrial dispute.'
A Collective Bargaining Agent may enroll workmen working at distant places as its members.
However the employer may deal with only one Collective Bargaining Agent more than one Collective Bargaining Agents for different categories of workers are prejudicial to the interest and legal right of employer.1 COLLECTIVE BARGAINING IN THE UNITED STATES In contrast to Pakistani Labor Laws, the Taft-Hartley Act places great emphasis on the twin rights of self organization and Collective Bargaining. The Federal policy of the United States as declared by Congress is to eliminate the obstructions to the flow of Commerce by "encouraging the practice and procedure of Collective Bargaining" and to protect certain organizational rights of employees "for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.8 For the implementation of this policy, it has been made an unfair labor practice for the employer and the employees to refuse to bargain collectively. The Congressional record depicts that Congress wanted the parties to sit together, and negotiate about "wages, hours and other terms and conditions of .11,1
1. PLD 1979 Lah.
820.
2. PLD 1979 Lah.
820.
3. PLD 1975 Kar.
225. 4. 1973 PLC 136.
5. 1976 PLC 222.
6. 1979 PLC 370.
7. 1973 PLC 407. S. Section 1, N. L. R. A. #TBS 1. Section 8(8)(d), N. L. R. A. #TBE 30 JOURNAL PAKISTAN LABOUR CASES 1981 employment." The employer is forbidden to bargain on such matters with someone other than the majority representative. Thus no employer cannot bargain with a minority union when a majority union exists. Similarly an employer cannot directly deal with individual employees on matters like wages and other conditions of employment. The Board takes very strong view against by passing or undermining a union by the employer. Since such Conduct on the ,part of the employer would repudiate the principle of collective bargaining.
The rationale behind collective bargaining is that individual bargaining leads to employer domination, interference and inequality of working conditions within the plant. Whereas collective bargaining would lead to the adjustment of the conflicting interests of employees within the bargaining unit, no matter how diverse their skills, age or experience is. The Board in its unit determination considers the community of interests among workers and generally excludes those from the bargaining unit whose jobs are not linked by such community of interests. Professional employees are not included in a unit with non-professionals, unless a majority of the professional employees vote for this inclusion. Thus the Board, does not include those persons in the bargaining unit who are identified with management's interests. The principal factors considered by the Board in this regard are similarity of duties, skills, wages and working conditions; collective bargaining history and lastly employee's own wishes. In Pakistan, the National Industrial Relations Commission determines the collective bargaining unit. In making this determination the Commission takes into consideration various factors like distribution of workers, general convenience, and similarity of economic activity. In a number of cases, the unions produce evidence of majority support and are recognized as bargaining representatives by employer consent. Where this is not the case then a petition for a representation election may be filed by an employee, a group of employees, a union or an employer. A union may petition for an election where it is seeking recognition as an exclusive bargaining agent and the employer refused to recognize it. The petition should be accompanied by proof that at least 30 per cent. Of the employees in the unit are interested in having the union represent them. Any such petition by an individual should also be backed by a 80% showing. An employer may petition for an election only if he is confronted with a demand by the union for exclusive bargaining recognition. Other unions may be permitted to intervene in an election if they show some interest in it, however they need not make a 30% showing of interest. After the Board takes action on a petition for election, it may require the employer to provide a list of the names and addresses of all employees eligible to vote in the election. The Board then gives the list to the union or any other party to the election. In the Wyman-Gordan Case the Supreme Court upheld the Board's authority to require such a list from the employer.'
The regional directot of the Board holds the election. Each party may appoint observers to assist in the counting of ballots and in the identification of voters. After the election results are announced the union, only if it #TBS 1981 JOURNAL 31 #TBE has a majority, is certified as the exclusive representative. Once the union is certified, the employer must bargain with it for at least one year. The Union and the employe: as specified in the Act, must bargain in good faith about wages, hours and other terms and conditions of employment. The Board divides the subjects of bargaining into three categories; illegal subjects, mandatory subjects and permissive subjects. Demands like a closed shop clause require no bargaining, since it is illegal in itself. Mandatory subjects of bargaining fall within the category of "wages, hours and other terms and conditions of employment." Both the employer and the union are required to bargain in good faith with respect to them.' In 1958 the Supreme Court laid down its landmark distinction between mandatory and permissive subjects in N. L. R. B. v. Borg- Warner Corp2. Yet it is a matter which requires constant and continual clarification by the Board and the Courts. The Board considers such subjects mandatory as discharge of employees,3 union security,4 off,6 vacations,6 individual merit raises,' retirement' and pension plans, plant rules on rest or lunch periods," Christmas bonuses," insurance plans,i2 a non discriminatory hiring halli3 safety rules," seniority," grievancesm and working schedules.'"
The employer has to negotiate with the union the price increases for food and soft drinks sold in the plant cafeteria." In N. L. R. B. v. W. R. Grace & Co., the fifth circuit upheld the Board's decision that an employer's unilateral elimination of one of its three shifts changes violated section 8(a)(5).16 The Board continues to apply Fibreboard rule in subcontracting eases and demands bargaining over sub-contracting work.2 Similarly an employer's decision to close a part of its business and to relocate all or part of it is a mandatory subject for bargaining.2" Where the employer decides to discontinue a particular product or line of its business, negotiation is generally not required regarding the decision but is required as to the effects of that decision. Moreover, where the decision to close is based on an anti-union motive or avoidance of bargaining, the employer may be required to bargain even as to the decision itself.'
Permissive subjects are those which may be placed on the bargaining table for voluntary agreement, but no party can insist on their inclusion in the contract. Such matters as internal union affairs, selection of bargaining representatives and industry promotion funds, fall under the heading of permissive subjects.
1. 42 LRRM 2034.
2. 356 U. S. 342 (1958).
3. 6LRRM 674.
4. 24LRRM 2561.
5. 32 LRRM 2225.
6. 31 LRRM 1072.
7. 21 L R R M 2238 8. 22 L R R M 2506
9. 99LRRM 1356.
10. 21 LR RM 1095.
11. 78 LRRM 1091.
12. 80 LRRM1240.
13. 59 L R R M 3013.
14. 100 LRRM 1052.
15. 22 L R R M 2506 16. 98 LRRM 1182.
17. 30 L R R 2602.
18. 77 L R R 1456.
19. 571 F. 2d 279.
20. 98 LRRM 1287.
21. 100 LRRM 1020.
22. 90 LRRM 1075.
32 JOURNAL PAKISTAN LABOUR CASFS 1981 It is important that negotiations should be conducted with a desire to reach an agreement.
Bargaining must be in good faith. Merely going through the motions of bargaining is not sufficient.
The test of good faith is whether the party's attitude on the entire record indicates a good faith desire to reach an agreement with the other party. The Board or any other authority cannot compel an employer or a union to agree to any substantive provision of a collective bargaining contract.
Although it is difficult to draw a line between good faith bargaining and bad faith bargaining, there are certain subjects where lack of good faith becomes evident, such as a refusal to discuss or consider proposals of union, use of delaying tactics, withdrawal of concessions previously granted and negotiating directly with employees. During negotiations, the use of economic weapons is allowed by the Board and supported by the Supreme Court as long as it does not impair the good faith bargaining process. But the law is clear that neither a strike or a lock-out designed to secure economic concessions is in itself a refusal to bargain, nor does a strike or a lock-out excuse the other party from its duty to bargain. Thus during a strike, an employer is not free to refuse to meet with the union or to condition further negotiation upon the cessation of the strike. Thus in the United States collective bargaining is a process where the government does not attempt to control the results of negotiations. CHAPTER ,V JUDICIAL AND ADMINISTRATIVE MACHINERY For the adjudication of labor-management disputes. Pakistan provides Labor Courts, Labor Appellate Tribunals (Court of Appeals) and National Industrial Relations Commission. On the other hand the United States provides the National Labor Relations Board. In both countries labor legislation is considered to have special objectives, therefore its administration has been kept with special agencies. The primary function of these agencies ;s to further the governmental policies of peace and harmony among the labor and management; and to bring about a speedy and fair disposal of labor- management disputes. The Labor Judiciary in the Sub-Continent has its origins in not a very distant past. The method of adjudication in industrial disputes began with the introduction of the Trade Disputes Act, 1929. Since then the labor tribunals have survived, although their pattern has changed constantly. Al present the structure of the Labor Judiciary, keeping in view the massive litigation and unrest among the workers, was drawn on the basis of "Justice delayed is Justice denied." For a speedy remedy an aggrieved party looks up to the following three pillars of labor Judiciary
(I) LABOR COURTS : Section 35 of I. R.
0. Details the set up of Labor Courts. Labor Court, primarily being a provincial Court, is set up by the Provincial government. The government determines the number of Courts. The person who leads the Court is called the "Presiding Officer" and is normally qualified to be appointed as Judge of the High Court, or a District Court.
The major functions of the Court are to adjudicate and determine industrial disputes; adjudicate on matters referred to it by the provincial government concerning implementation or violation of a settlement. The 1981 JOURNAL 3.3 Court has the power to try offences arising under I. R.
0. And other relevant labor laws. No guiding principles have been provided by I. R.
0. Regarding adjudication by the Court. The Court, therefore, exercises its own discretion in deciding cases. It looks closely at the circumstances of each case, the background of the dispute and rules fairly, justly and equitably. Thus in pronouncing a judgment "the Court must take into consideration the material brought on record and law applicable to the matters in dispute, but it must not act like a benevolent despot by applying its own ideas of social justice." The Supreme Court further elaborated the term "Social Justice" as whatever is fair, reasonable and equitable and done with a good conscience.'
Re-instatement of a workman is considered an essential relief in all labor laws and this power is vested in the labor Court. The Court in the case of an unfair discharge of a workman orders re- instatement. If the circumstances warrant, the Court also allows "back benefits".
The labor Court can exercise powers under the Criminal Procedure Code, 1898, when dealing with an offence. But it is a Civil Court while dealing with industrial disputes. An interesting feature of the Court is that no court-fee is payable on filing, exhibiting or recording any documents or in obtaining any order from the Court.
The award or decision of the Court is in writing and delivered in an 41' open Court. - (II) LABOR APPELLATE TRIBUNAL: The second tier in the Labour Judiciary hierarchy is the Labor Appellate Tribunal. This is actually a Court of Appeals and thus hears appeals against awards of the Labor Courts.
A Tribunal comprises of one person, who is called a "member" and is a retired Judge of the High Court. The Tribunal is empowered to confirm, set aside, vary or modify an award given by the Labor Court. The Tribunal has the power to punish or discharge a person for contempt of Court and for such proceedings it is deemed to be a High Court.3 However any person convicted and sentenced for contempt, is allowed to appeal to the High Court against the sentence. The order of the Tribunal is final and can only be challenged in the High Court by invoking the writ jurisdiction. No further appeal lies to any Court.
(III) NATIONAL INDUSTRIAL RELATIONS COMMISSION : The NIRC is a project of the Federal Government. The set up and functions of the Commission have been detailed in section 22-A of the I. R.
0. The Commission has seven members including the chairman. The chairman is appointed from among the Judges of the High Court. One member of the Commission represents the employers and one represents industry-wise Trade Unions, to advise the chairman. I. SC (Pak.) 1957 L L C 666.
2. Ibid.
3. H. C. (Lab.) 1976: L L C 468 #TBS 34 JOURNAL PAKISTAN LABOUR CASES 1981 #TBE The functions of the Commis3ion include the promotion and formation of the federation at the national level. A federation is a union whose membership extends to establishments in more than one provinces. The Commission also adjudicates and determines such industrial disputes where industry-wise Trade Union or a federation is a party. The Commission further performs the functions of the Registrar of Trade Unions, regarding Trade Unions which have membership in more than one province. The Commission in certain instances has the powers to punish and prevent unfair labor practices.
Proceedings before the Commission cannot be initiated by individuals.'
The Commission deals with a lock-out and a strike at the behest of the Federal Government after such lockdout or a strike has been prohibited by the Government. But where the government did not prohibit a strike, and referred the matter to the Commission, and the Commission adjudicated on it, was held illegal and ultra fires by the High Court.2 No appeal lies against the order of the Commission, however writ jurisdiction of the High Court can be invoked by the aggrieved party, against the decision of the Commission.
NATIONAL LABOR RELATIONS BOARD The Wagner Act in 1935 created the N. L. R. B. As a non-partisan and a quasidjudicial agency. The Taft-Hartley Act, in 1947, brought about certain changes in the Board. It was expanded from three members to five members, to be appointed by the President of the States for a 5 year term. Among the functions of the Board is complete control over representation cases under section 9, N. L. R. A. Thus the Board has the authority to determine the size of the appropriate bargaining unit and the validity of the union election. Orders in representation cases are issued in one of the three manners; upon the consent of the parties (only if the parties' agreement is in conformity with the statute); after a hearing before a hearing officer or trial examiner; or after an administrative investigation. These orders vary widely in form and in content and in most of the cases are issued by the regional directors.3 The Board also has the power to adjudicate unfair Labor Practice cases under section 8. However in practice the office of the General Counsel investigates and prosecutes the unfair labor practice cases. The General Counsel is appointed by the President with the approval of the Senate and the Board has nothing to do with his appointment. In turn the General Counsel confers on the regional officer set up in major cities by the Board and the General Counsel, the tasks of investigating and prosecuting unfair Labor Practice cases. At present there are 33 regional offices and each office is headed by a regional director. In an unfair labor practice case, a charge is filed with the regional office within six months of the alleged wrong-doing. The charge is I. H. C. (Kar.) : 1974 L L C 322.
2. H. C. (Lah.) : 1976 L L C 369.
3. On 15th May 1961, the Board under sections 3(b) of Landrum*Griffin Act, delegated some of its authority over representation matters to regional directors.
1981 JOURNAL investigated by the field examiners of the regional office. The report of the field examiners is sent to the regional director who determines whether a complaint be issued or not. If he determines not to issue a complaint, then that decision is only appealable to the General Counsel whose decision in this regard is final.' If the complaint is issued then the case is tried before an administrative law judge. The respondent files an answer and the bearing is conducted in accordance with the rules of evidence. If no exceptions to the decision of the Judge are filed, the Board endorses the decision. If exceptions are filed, the Board acting through a 3 member bench renders its decision. In election cases, election petitions are filed in the regional office, and after an investigation by the regional staff, a hearing is conducted by the hearing officer. However the regional director determines such things as the appropriate bargaining unit, voter eligibility and objections pertaining to the validity of the election. An appeal ties the Board against the decision of the regional director in this regard. The Board generally issues orders like the restoration of status quo,2 several kinds of bargaining orders, retroactive execution of the contract, make whole orders, orders to arbitrate, and hiring hall remedies. These orders are against the employers as well as employees. An order issued by the Board is not self-executing. To enforce a Board order, a petition is filed in the Federal Court of Appeals under section 10(E) of the Act.
A review of the Board Order by an aggrieved party is provided under section 10(d) in the Federal Court of Appeals.
Although the basic role of the Board is quasi-judicial, section 6 of the Act empowers the Board to make rules and regulations. The Supreme Court has upheld the quasi-legislative power of the Board.
CONCLUSION Unlike the United States, Pakistan has no national labor policy. Different labor policies have been adapted by different governments depending upon the ultimate object of the government. Unfortunately inconsistent policies of the government led to frequent changes in labor-management relations laws. These frequent changes confused the Courts and left employers and workers uncertain. As a result in the last ten years the triangle of the labor Judiciary, employers and workers has generated considerable confusion. Pakistan is probably at the stage where the United States was at the time of the enactment of the TaftdHartley Act in 1947. In America, unions commanded immense powers after the Wagner Act, 1935 and in Pakistan unions enjoyed similar powers after 1972. The source of power was of course different, but the results were about the same. The Wagner Act granted certain rights to the unions and limited the freedom of employers by law. On the other hand, the Industrial Relations Ordinance, tried to balance the rights of labor and managements, but the governmental policy of the previous regime used and encouraged labor not to work and demand more wages.
1. Vaca v. Sipes, 386 U. S. 171.
2. 73 LRRM 1017 (1969).
36 JOURNAL l'AlCiSTAN LABOUR CASES 198s Inesitably, the American labor got the Taft-Hartley Act, while Pakistani labor as well as the employers are waiting for the law to change in the light of the report of the First Labor Commission of Pakistan, appointed in 1978. The Labor Commission submitted its report to the government in 1979. The report is based on tons of material provided by the labor-management and independent sources. I sincerely hope that the new law would bring better understanding and respect between the labor and management. The present Government in order to increase productivity and lessen the chaos surrounding the Industrial Relations established a high-powered labour commission in 1978 to formulate the national Labor Policy. The Commission prepared a comprehensive questionnaire and invited comments, suggestions and advices from all walks of life who encircle the tricky area of labour management relations. Labor and management both were ably represented by their respective Spokesmen, and the net result was the report of the first Labor Commission of Pakistan in a surprisingly short time, which had blessings of all concerned. The report was submitted to the then Labor Minister in the first halt' of 1979. The report was to be made a basis for the new Labor Policy and the nation was assured of its announcement without delay.
Inevitably the American Labor got the Taft-Hartley Act, while Pakistani Labor as well as the employers are waiting for the last eighteen months for the law to change in the light of the report of the First Labor Commission. I sincerely hope that the new law would bring better understanding and respect between the labor and the management.1 I. Publisher's note : The author of this article is a practising attorney and a partner in the Law Firm "ATA ULLAH SAJJAD & CO.". He is also a part time Lecturer in Law at the University Law College and an Editor of P. L. C.