Labor Law Outline

Labor Law Outline

Fall 2004

I.History Overview

1. Until the 19th Century, work wasn’t based on freely bargained employment relationships. Rather, English law was based on the domestic relationships of master & servant growing out of the servant’s relationship in the master’s household.
2. In the Federal Period, labor market was mixture of free & paid labor; status based work.
3. The Rise of the Factory System after the Civil War
4. Free Wage Labor
5. Contractually based relationships
6. more specialized division of labor
7. Consequences
8. erosion of the need for craft skills – appropriated by machines
9. growth in the scale of manufacturing enterprises – loss of the intimacy of the antebellum shop
10. change in the composition of the working force
11. supervisory positions were white males, but workers were children, immigrants
12. employers had unilateral power to make and enforce rules – carte blanche.
13. Rise of the Labor Movement after the Civil War
14. Less powerful unions formed and died with economic rises & depression until AFL formed under leadership of Samuel Gompers in 1886.
15. AFL Philosophy
16. “pure wage consciousness”
17. relied on economic power
18. not so radical, accepted idea that labor was commodity to be sold on a market, but that best way for the market to work was for the collective to organize.
19. Business union – want to maximize the return from the perspective of the workers.
20. CIO rival develops in the 30s
21. Also, IWW (Wobblies)
22. Radical Movement
23. Wanted to completely change capitalist system, have system of worker control
24. Knights of Labor fighting for 60 hour work week
25. At high mark 4 million belonged
26. Also, the company union
    
27. Judicial Intervention
28. Hostility to union activities
29. unions regarded as criminal conspiracies – illegal deprivation of employer’s property or interference with contracts.
30. Narrowed use when courts required employer show union was guilty of either an illegal purpose or the use of an illegal means (violence).
    
31. Courts accepted that employees would be permitted to strike for their wages. Needed another justification.
    
32. Vegelahn v. Gunter
33. Famous common law case – Mass. (1896)
34. TRO (injunction pendente lite) issued restraining union members from interfering with P’s business by patrolling sidewalk or street in front or around business premises to prevent scabs from entering.
35. Ds conspired to prevent Ps from getting workmen, from carrying on business until adopted schedule of business agreeable to the union.
36. Opinion:
37. Allen: patrol was unlawful interference with the rights of employer and employed;

-Employer has right to engage all persons who are willing to work for him at such prices as may be mutually agreed upon.

-Employed or seeking employment have corresponding right to enter into or remain in the employment of any person willing to employ them.

-Intimidation not limited to threats of violence or physical injury to persons or property; includes persuasion.

1. Holmes’s Dissent: Picket line isn’t automatically threatening; workers publicizing their dispute with management. Shouldn’t be unlawful to do in a group what’s lawful for one man to do alone.

1. Analysis: look at the OBJECTIVE then MEANS.
   

1. Yellow Dog Contracts: employee agrees not to join a union.
2. Courts would issue injunctions to prevent breaking these contracts.

II.Anti-Trust Legislation

a.Sherman Act (1890)

1. 1890: Congress declared unlawful “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations.”
2. violations punishable as federal crimes, AG authorized to instituted injunction proceedings, and persons injured in the course of business given right to sue civilly for treble damages.
3. objective was elimination of agreements between manufacturers or suppliers to fix prices or regulate the supply of goods, but applied more often to labor unions than to business corporations.
4. Held could apply to labor unions in Loewe v. Lawlor.
5. Loewe v. Lawlor (Danbury Hatters)
6. Organizers unhappy b/c hatters weren’t union shop; other unionized hatters were saying would un-unionize if didn’t organize.
7. Boycott organized with retailers.
8. Loewe came up with idea to sue the workers with homes under Sherman act for treble damages.
9. Boycott said to interfere with P’s production of hats & distribution in interstate commerce.
10. Ds combined to prevent Ps from manufacturing articles intended for transportation in interstate commerce; Ps prevail.

1. Clayton Act (1914)
2. Congress: shouldn’t be using Sherman Act to attack labor unions, but some loose language in there to allow hostile courts to weasel out of it.
3. Had been hailed by labor as a savior, but ended up being an agony.
4. States passed mini-Clayton acts. (?)
5. Sec. 6:
6. Typical objectives of labor organizations are legit
7. Anti-trust laws don’t forbid existence of labor orgs or prevent them from carrying out their objectives.
8. That the labor of a human being is not a commodity or article of commerce.
9. Sec. 20:
10. Imposed limitations power of courts to issue injunctions in labor disputes.
11. “no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees…involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right…for which there is no adequate remedy at law….”
    
12. Duplex Printing v. Deering:
13. SCOTUS, 1921: Court interprets Sec. 20 to apply only to disputes between employer and its own employees. Courts can issue injunctions to prevent secondary boycotts.
14. Union’s actions interfered with interstate commerce – under Sherman Act could have been enjoined. BUT what about Clayton Act? But Court concluded Sec. 6 doesn’t legitimize acts that would be illegal under Sherman Act.
    
15. Norris-LaGuardia Act (1932)
16. Closes the gaps.
17. No court of the US shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute except (in Sec. 1)
18. Policy (in Sec. 2)
19. The individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor…it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers…for the purpose of collective bargaining.”
20. Outlaws the yellow dog K.
21. Sect. 13(c): expands the term of labor disputes to include secondary disputes – gets to the heart of Duplex printing.
    
22. US v. Hutcheson
23. SCOTUS (1941)
24. Two unions fighting over jobs in St. Louis; FDR’s AG goes after union on strike.
25. Court: if can’t enjoin someone for an activity under the law, then surely can’t be prosecuted for the activity (would make the law an ass.)
26. Burlington Northern RR Co. v. Brotherhood of Maintenance of way Employees
27. SCOTUS (1987).
28. Union Brotherhood of RR workers in dispute in Maine. Union pickets in Maine; none of the RR employees will work; union begins to picket everywhere all over the country (this is secondary boycott. )
29. RR wants court to narrowly interpret 13c to employer-employee.
30. Court rejects: Norris-LaGuardia doesn’t distinguish between primary & secondary boycotts with neutrals; “the judge made law of the late 19th & early 20th centuries was based on self-msemerized views of economic and social theory…and on statutory misconstruction.”

III.The NLRA or WAGNER ACT (1935)

1. Enacted in the heart of the Depression; culmination of a long period of development including enactment in 1926 of the Railway Labor Act.
2. Later amendments:
3. Taft-Hartley Act (1947
4. Landrum-Griffin (1959)
5. Structurally a New Deal Solution
6. Administrative Agency
7. 5 member board.
8. Ringing declaration of policy in Section 1.
9. The denial by employers of the right of employees to organize and the refusal by employers to accept the procedures of collective bargaining….the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers…tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.
10. Sec. 7: Beating heart of NLRA: Right to organize.
11. Employees have the right to self-organize, to form, join, or assist labor organizations, ot bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining (strikes, boycotts – even applies to non-union shops) or other mutual aid or protection.
12. Sec. 8: Employer unfair labor practices.
13. 8(a)(1): ER can’t interfere, restrain, or coerce EEs with their exercise of §7 rights.
14. 8(a)(2): ER can’t dominate or interfere with formation or administration of unions (outlawing company unions).
15. 8(a)(3): ER can’t discriminate against union members or discourage membership in the unions.
16. After Taft-Hartley, can’t encourage, either. EE has the right to not be in the union.
17. 8(a)(4): ER can’t discharge or discriminate against EE b/c he filed charges or gave testimony under the act.
18. 8(a)(5): ER can’t refuse to bargain collectively with EE reps.
19. Sec. 9: How union becomes certified.
20. Sec. 10: Remedies
    

IV.The Right to Organize:

a.And under Taft-Hartley, there’s also a right to not organize.

b.ER interference with organization:

1. What ERs can restrict with policies:
2. Republic Aviation:
3. SCOTUS, 1945: ER had general rule against soliciation; EE discharged for passing out union applications during lunch, and three EEs discharged for wearing union steward badges.
4. SCOTUS: Rules that bar union solicitation on EE’s own time (not under working hours) or wearing badges are presumptively invalid.
5. ER can ban activity during working hours UNLESS the rule had a discriminatory purpose.
6. Working hours = from beginning to end of day, including lunches.
7. Beth Israel:
8. Hospital rule barring solicitation or distribution of literature by EEs in patient care and other work areas was violation of 8(a)(1) and (3) in reference to areas like cafeteria and coffee shop. Would have been OK in areas like the patient’s room. Requires showing that disruption to patient care would result if solicitation occurred.
9. Lechmere:
10. SCOTUS, 1992
11. Court holds the ER’s property rights trump the union’s right to organize the EEs. [Thomas points out that the NLRA confers rights on EEs, not on unions or non-EE organizers.]
12. ER can completely prohibit solicitation and distribution by non-EEs, except in rare circumstances. (If no reasonable access to the EEs, then court could engage in balancing analysis.)
13. Applies to parking lots that are open to anyone else in the world.
14. A practical response to Lechmere:
15. Using salts to “salt” the workforce with union people. Then organization is being done by EEs. [Salts were approved by the Clinton board.]
    
16. Excelsior Rule:
17. ER must provide list to NLRB Regional Director w/in 7 days or consent/election agreement or direction of election. Excelsior list contains list of all EEs and addresses. (If not provided, will be set aside and new election ordered.)
    
18. What ERs can say to EEs:
19. On the lookout for things which interfere with the “laboratory conditions” NLRB seeks for elections.
20. Anti-union speeches:
21. ERs assemble EEs for antiunion speeches.
22. Under NLRB v. United Steelworkers, ER’s denial of equal time to the union isn’t a ULP.
23. Denial of equal time is presumed lawful; the burden is on the GC to demonstrate the union is “seriously incapacitated” from communicating with EEs by any other means.
24. The “alternative means” then becomes the big issue.
25. Peerless Plywood Rule:
26. Ban on captive audience speeches on company time within the 24-hour period prior to the election.
27. Has an “unwholesome and unsettling effect.”

-Easily subverted; only addresses oral speeches, only in 24 hours (24.5 hours would be fine).

-Propaganda, pamphlets  those OK, as would be voluntary attendance.

1. ER threats:
2. 8(c): expressing of views, argument, or opinion or dissemination thereof, whether in written, printed, graphic visual form, shall not constitute or be evidence of a ULP under any of the provisions of the Act if such expression contains no threat of reprisal or force or promise of benefits.
3. Conflicting policies: freedom of expression vs. freedom of EEs to form, join, and assist EE unions.
4. Learned Hand: “Words are not pebbles in alien juxtaposition; they have only a communal existence, and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used.” Or: it’s context.
5. Gissel Packing Co.
6. ER can tell only what he reasonably believes will be the likely economic consequences of unionization that are OUTSIDE of his control, and not threats of economic reprisal.
7. Opinions: may freely communicate any opinion about unions so long as ER doesn’t make threat of reprisal or force or promise of benefit.
8. May make predictions about what unions might do to the company BUT MUST BE BASED ON OBJECTIVE FACTS to convey belief as to demonstrably probable consequences beyond control, or to convey management decision already arrived at (would close union if organized, etc). p. 151.
9. Gissel caused problems.
10. Imprecise test, gives incentive to unions to argue and incentive to ERs to skirt the edge of Gissel.
11. ER Lies:
12. Dangerous because can’t be remedied – only can seek a new election by declaring the old election invalid. Working with Sec. 9.
13. Midland National Life Insurance Co.
14. ER put literature in the paychecks with substantial misrepresentation of facts – distributed just hours before the election.
15. Board (Reagan Board) won’t probe truth or falsehood. Will not set aside election based on misleading information.
16. Only one way to intervene: there is an exception for forgery.
17. ER inflammatory Appeals:
18. Appeal to racism or hostility to foreigners
19. Sewell Mfg. (1962): ER represented that unions were in favor of racial integration.
20. Board: has the responsibility to ensure voters have opportunity to exercise “reasoned, untrammeled” choice.
21. SOME statements with racial overtones might be OK, if temperate in tone, germane, and factually correct; EEs have right to know.
22. BURDEN: on the party making use of racial message to show it was truthful and germane.

-When there is doubt, it will be resolved against him.

1. For statements meant to inflame electorate for union election that aren’t lies or threats:
2. Statutory answer is that these aren’t ULPs.
3. Use §9 to reglate “fair laboratory conditions of elections.”
   

1. ER Polling EEs:
2. Struksnes Construction Co.
3. 8(a)(1) violation – but no remedy b/c no one had been at that job site for 3 years. Also, poll was valid under old rule.
4. Struksnes manager solicited signatures of the people who wanted him to deal with the bargaining unit – and didn’t get a majority. (One on one confrontation.)
5. Court articulates factors that would make polling legit:

-Purpose of the poll is to determine the truth of a union’s claim of majority

-This purpose is communicated to the EEs

-Assurances against reprisal are given

-EEs are polled by secret ballot

-The ER has not engaged in ULPs or otherwise created coercive atmosphere.

1. ERs awarding benefits:
2. Not per se unlawful, but it’s a violation of the act unless the time of the benefit was determined by something besides the upcoming election.
3. Promise of FUTURE benefit excluded in 8(c). ER must maintain the status quo during election.
4. Exchange Parts:
5. SCOTUS, 1964
6. “Union can’t put these things in your envelope – only the Company can do that.”
7. NLRB: announcement & grant of benefits showed intent to induce vote against the union. Suggsetion of the fist in the velvet glove.
8. SCOTUS affirms: 8(a)(1) also prohibits favors to EEs designed to mess with the EE’s free choice in the upcoming election.

c.Union Misconduct

1. Savair: can’t waive initiation fees for those who sign union slips.
2. SCOTUS: “by permitting union to offer to waive initiation fees for EEs to sign recognition slips before the election, the boar allows the union to buy endorsements and paint a false portrat of EE support.”
3. Also, ominous to those EEs who didn’t sign the slips.
4. After this case, unions started waiving ALL initiation fees for new bargaining units. (Waivers for all EEs are legit, if they can join before AND after the election.)
5. Union can’t restrain or coerce EEs in exercise of their §7 rights.
6. 8(b)(4): outlaws secondary boycotts, etc. (See below).
7. Board generally won’t set aside an election if UNION promised better wages, etc., that are outside its power. But if something is in the union’s power to give, the Board will interfere.
   

1. Company Unions:
2. Outlawed in 8(a)(2).
3. History behind Wagner Act: company unions were considered the main threat to collective bargaining.
4. Prohibition is pretty broad: ER can’t “Dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it…”
5. Need to determine what a labor organization is to find a violation.
6. Look to §2(5): “any organization of any kind, or any agency or EE representation committee or plan, in which EEs participate and which exists for the purpose, in whole or in part, of dealing with the ER concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work…”
7. Consequence of this broad language:
8. Many ER attempts to create EE input devices are illegal.
9. Enshrined in 8(a)(2) in policy of ER neutrality with more than one union. (Midwest Piping Doctrine: when there was a question regarding representation – multiple unions – the MP Doctrine was triggered and ER couldn’t take sides.)
10. Permissible:
11. Committee that shares info, brainstorms, acts as suggestion box, or plans educational programs doesn’t violate the statute IF it’s majority rule and has other functions besides making suggestions to management.
12. Management could participate IF its representatives don’t have veto power.
13. Obviously, can’t act like labor organization.
14. Electromation, Inc.
15. 7th Circuit, 1994
16. no existing union at Electromation, so this case applies to all non-union shops.
17. Problems:
18. Management decided how committees would be formed, how decisions would be made, what the committees would be discussing.
19. ER drafted policy goals, determined number of EEs on the committees, made manager the coordinator of the committees. EEs were paid for time at meetings; ER had final say.
    
20. Legal Analysis to find unlawful domination:
21. First, must find a “labor organization” under 2(5):
22. EEs participate
23. Organization exists, at least in part, for the purpose of dealing with the ER
24. Dealings concern “conditions of work” or other statutory subjects (grievances, labor disputes, wages, rates of pay, or hours of employment)
25. If org. has the purpose of representing the EEs, it’s a labor org.
26. Domination:
27. Formation, structure, membership, financial support (eg, if paid for time)
28. In the case, wouldn’t be a violation if just for quality, efficiency, or communication device.
29. Remedy:
30. Cease & desist.
31. Come up with new plan that doesn’t run afoul of prohibition.
32. Just a slap on the wrist, and besides, NLRB probably wouldn’t prosecute.
33. The client is allowed to know that the law doesn’t have any teeth!
    
34. Claims of Majority Status
35. ER can’t interfere or assist with creation or running of union. The danger is that ER and union could become sweethearts.
36. If union says it has the majority of EEs behind it, ER has three options:
37. Recognize the union
38. File petition for election
39. Wait for union to file petition for election.
40. ER can’t recognize a union that doesn’t have the majority of support!
41. Brukner Nursing Home
42. SCOTUS, 1961: ER violated 8(a)(2) in supporting a labor union; unlawful to support union without majority b/c it gives advantage over other unions.
43. New rule is a bright-line rule.
44. Case by case factual analysis, however.
45. Different for organizing campaign vs. existing union.
46. Good faith belief in union’s majority isn’t enough. Recognition has to be withheld until Board conducts election.
47. ER’s good-faith acceptance/rejection can be challenged in ULP proceeding.
48. Remedy is only “remedial order.”
    

V.NLRB Jurisdiction & Procedure: