Labor Law Outline PDF

Preview

Summary

Labor law course notes...

Description

Labor Law Outline—Leach I.

The Development of the Regulation of the Labor-Management Relationship A. INTRODUCTION 1. The NLRB governs the NLRA—it is the administrative agency that oversees the application of the statute and is the agency that governs labor-management relationships  The NLRB is “pro-collective bargaining”—it strives to be objective in the dispute  There are 5 members appointed by the President. (There is an informal agreement between the two parties that there will be 3 members from the party in power, 2 from the other).  There is a Republican majority presently on the board since the 1st Bush administration. 2. UNION-MANAGEMENT RELATIONS a. DEVELOPMENT  Things really began in the 1860s. Pre-Civil War, America was largely an agrarian society. There were 3 major factors leading to the creation of a new economy ( & the development of unions): 1) Industrial Revolution— technological and machinery advances (the fall of the skilled craftsman); 2) Increase in the workforce (immigrants migrating from abroad to the urban centers, and migrants from the countryside to urban centers for jobs) 3) Developments in Transportation—the Railroads! 4) Tapping into abundant natural resources (iron, ore ect.)  With a new economy, worker status changed: 1) no relationship to boss personally (the rise of big business); 2) workers became replaceable—thus the relationship between employer and employee changed.  Also, a small % of the population held the wealth—(the “Robber Barrons” Carnegie, Rockefeller, risk capitalism).  Workers began to talk to each other (the NLRA basically enforces this ability—a basic human right) and then formed worker associations (many immigrants came from a union/guild background organizing along craft lines). b. BURGEONING UNION MOVEMENT  Employer reaction: company union, buying off union activists, firing them, thugs (Molly Mcquires) violence, legal action, threats, blacklists, surveillance  Early legal Action: a) a “yellow dog” contract—worker agrees not to join a union when he is hired; b) have workers arrested for criminal conspiracy under a “combination” c) the civil injunction

1

Two major Labor Movements: 1) Knights of Labor (1869) formed by six tailors in Philadelphia—they were idealistic and philosophical—they wanted to end the 10 hr. workday , child labor, women’s rights, everyone could join except lawyers, doctors and gamblers. Big moment—the Gould Boycott; 2) The AFL—formed by Samuel Gompers (a cigar maker), an organizational genius, believed that collective bargaining was the key/tool to change society. One union at a time wouldn’t work, there needed to be collective strength and loyalty. Unionism meant absolute loyalty to the union. That the fight must be equals with equals. In 1914 2 million members. Became more successful than the Knights of Labor.  Labor Movement Today: 35% in 1955 of the workforce unionized, in 1995, only 10%. The private sector unionization has leveled off (no longer is dropping!). The public sector unionization has risen by a small %. c. Early Common Law Cases  Vegelahn v. Gunter (1896): The union was picketing outside for a price schedule. They were using social pressure and threats of personal injury, but there was no actual violence. Patrolmen placed outside the factory. Employer sought a preliminary injunction, which was granted and then sought a permanent injunction. The preliminary injunction was granted b/c court held that the picketing by the union was not peaceful. ISSUE: Is the nature of picketing a coercive activity so that the permanent injunction should be granted? HELD: Yes, the majority says that the very nature of picketing is coercive. Importance of Case: Holmes’ Dissent—Holmes says, let’s assume that picketing is coercive—it should nevertheless be permissible if there is a justification for it. Here there is justification because the workers are picketing for better wages—this is a basic human struggle, an eternal struggle that is necessary for the “battle to be carried on in a fair and equal way.” Holmes points out that employers do this all the time (driving down prices) so why is it wrong for workers to do it?  Note: Although Holmes was fighting for the workers, he made a fatal flaw by assuming that picketing was coercive. This has been assumed ever since and not challenged. Thus, his fight was probably more harmful to the worker struggle. The case is infamous for this.  PLANT v. WOODS (1900): This involved a jurisdictional dispute (under 8(b) & 4(d) of NLRA now) between two unions. A magistrate judge investigates and finds that there 

2

was courteous behavior by the competing union, but that there were implied threats of hurting the business if the company hired from the other union. ISSUE: Should an injunction be issued, if two unions are in dispute, and one is making threats to the employer to stop business? HELD: Yes, injunction issued because there is no justification (unlike Vegelahn above) since it is two unions fighting). IMPORTANT FROM CASE: Holmes’ dissent—he now says that the courts are asking the right question—is the activity justified? But here, they have made the wrong decision—even if it is a jurisdictional dispute, it is justified because this is just like Vegelahn—it is a fight to strengthen their organization.  Today, very few unions picket—it is highly regulated.  Picketing v. Handbilling (Thornhill v. Alabama) EE was convicted of loitering (walking up and down in front of store with signs). Goes up to non-union EE and says we are on strike, don’t go in there, EE walks away. There is an Alabama law prohibiting any type of picketing. Rationale for law is protection of the peace. SC says, 1st amendment concerns, the statute is too broad, thus unconstitutional.  Handbilling (passing out flyers) is protected by 1st Amendment. Making the distinction is difficult, because picketing does not mean physically blocking an entrance— this is illegal. Had Holmes said he disagreed that picketing was coercive, things maybe would have been different. The current issue is the NY Rat. The GC of the NLRB has said that it is not coercive, but there is an investigation about whether or not “hand-billing plus” is coercive.  Bowen v. Matheson: Getting together to destroy business (even workers) is just a part of business.  Mogul Steamship Case: Combinations are just a part of business. d. Sherman Anti-Trust Act and Case Application  The Sherman Act was an effort to stop combinations and conspiracies to restrain interstate trade.  The Act does not refer to workers or unions at all: it says “Every combination or conspiracy...”  Historical Context: The Pullman Strike by Debs—the S.C upheld an injunction but said it was not deciding whether Sherman applied to unions.  Loewe v. Lawlor (Danbury Hatters) (1908): D were members of the United Hatters and wanted to unionize all hat manufacturers. P refused to recognize the union—D instituted a secondary boycott to put pressure on P to recognize the union. ISSUE: Does Sherman Act apply to a

3

secondary boycott by the union? HELD: Yes. The Supreme Court holds that there is an effect on interstate commerce and the statute clearly states that “any” combination which obstructs commerce flow is a violation. The court looks to the acts of the union as a whole. While the immediate impact is negligible, the union boycott narrows the market and thus intrastate activity affects interstate commerce. The Court issued the injunction and triple damages.  Note: The Union itself is not sued because it is not an entity —it is an association, thus each and every individual members were sued. When the union loss, Gompers called for a moment of solidarity and one hour’s pay from every member of the AFL-CIO was donated to cover the civil damages.  Coronado Coal v. United Mine Workers: The company shut down and opened up under another name, so that it is no longer unionized. Violence breaks out. TC says that it is a local conflict and Sherman does not apply. Employer tries to get it under Sherman b/c of the triple damages clause. The case was remanded to determine the union’s intention —held that the union’s intention was to control the coal supply, and thus a violation of Sherman. e. The Clayton Act and Case Application  After the Pullman strike, Congress instituted an investigation, the “Pullman Commission.” The Pullman Commission concludes that Courts have been detrimental to workers’ rights.  In 1902, the Industrial Commission of Congress says that individual freedom is not lost to collective bargaining.  The Clayton Act: 1912. Pres. Wilson. Gompers calls it “labor’s charter of freedom” because the Act aimed to limit Sherman’s application to labor. § 6 of the Act stated that labor is not commerce, and § 20 stated that Courts can not issue injunctions for disputes between employee and employer.  Definitions: a) Primary dispute—between worker and employer. As long as it is peaceful, it is justified and legal; b) Jurisdictional dispute: Different unions fighting. Courts said no—Holmes would say okay; c) Secondary boycott: Court says no, Sherman Anti-Trust applies if there is any effect, considering the aggregate, on interstate commerce.  Definitions: Open Shop: choice to join the union; Closed shop: hire union members only; Union Shop—after 30 days, employee must become a member.  Duplex Printing v. Deering (1921): 3 of the 4 printing presses were unionized. Duplex was Open Shop, the union

4

II.

wanted Closed Shop. The union (IAM) urges customers not to buy from Duplex, and they threatened sympathy strikes, they notified the trucking company, threatened blacklisting those that crossed the picket line. Employer sought injunction under Sherman Act. ISSUE: Does Sherman apply to labor disputes now that Clayton is passed? HELD: Court says the act is coercive—what union is doing is unlawful and the Clayton Act could not have meant to protect unlawful activity. Holmes’ dissent: the Clayton Act was meant to stop judges’ from imputing there own prejudices in deciding what was coercive—the union can have its industrial struggles to the limits. f. The Clayton Act and the Norris-LaGuardia Act  Apex Hosiery v. Leader: P is a hosiery corporation that ships in interstate commerce. The Union wanted closed shop and instituted a violent strike at the plant. ISSUE: Does Sherman proscribe the strike, in light of the Clayton Act and Norris-La Guardia (striking legal)? HELD: No. The Court looks to the purpose of the union (a closed shop) and determines that the conflict is entirely local and that Sherman applies to restrictions on the market, which the union was not intending to do.  United States v. Hutcheson: Supreme Court declares that the parties must be left to fight it out for themselves if it is local—Sherman must be read in light of the Clayton Act. WAGNER ACT: CREATION OF THE NLRB & ITS STRUCTURE AND PROCEDURE B. ORIGINS AND CONSTITUTIONALITY 1. The first attempt was the National Industrial Recovery Act under Roosevelt—held unconstitutional  The Railway Labor Act: Statute aimed at peaceful settlement of labor suites and at the interference with the right of employees to have representatives of their own choosing. Under RLA, if you don’t vote for the union, it assumes you are in favor. Taft-Hartley amended the NLRA and says that you must affirmatively vote for the union. This act still applies to those EE in transportation (trains, airlines, etc.).  The policy behind the NLRA was to: foster industrial peace and to counter the “inequality of bargaining power between ER and EE.” 2. WAGNER ACT OF 1935 (NLRA): Established the legally protected right of EE to organize and bargain collectively through representatives of their own choosing. The heart of the Wagner Act is Section 7: Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall have the right to refrain

5

from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).  Section 7 in Bold was added by the Taft Hartley Act.  Section 7 gives: a) the right to organize; b) to collectively bargain and c) to engage in peaceful strikes and picketing.  Sections 8(1)-(4) covers prohibited anti-union tactics.  Section 9 concerns the NLRB elections and proceedings. a. TAFT HARTLEY AMENDMENTS (1947):  Section 8 (b) outlaws the following concerted activities, among others: 1) violence and intimidation; 2) secondary boycotts (the refusal to work for ER A unless he ceases to do business with employer B, with whom the union has a real dispute; 3)strikes to compel an ER to commit some unfair labor practice, such as discharging an EE for belonging or not belonging to a particular union; 4) jurisdictional strikes over work assignments.  Section 8(a)(3) outlaws the closed shop, and permits only a limited form of union shop. Section 302 prescribes and limits the terms of pension and health and welfare trust funds  Section 301 provides that suits for violation of CBA in industries affecting commerce may be brought by or against a labor organization as an entity in any appropriate federal courts.  Section 14(b) permits individual states to outlaw the union shop. b. Landrum-Griffin Act (1959): Sought to regulate the internal affairs of unions. Union members were assured a right to vote, to run for union office, and t comment upon and nominate candidates. Every member given an equal right to attend and participate in meetings. C. ORGANIZATION, JURISDICTION AND PROCEDURE 1. ORGANIZATION  The NLRB was established by the Wagner Act. The NLRB is both prosecutor and judge.  The Board: 5 members appointed by the Pres. for 5 year terms. The Board is split, by unwritten agreement, 3-2 with the majority party having 3 members. There is a chairman. 6 seats total. The Board is a quasi-judicial administrative agency, and seldomly uses rule-making authority  The General Counsel (Rosenfeld): 1 person appointed—4 year term, (though not set by statute). There are 32 regions in the country of the GC.  An EE files a charge for an unfair labor practice in a regional office. The General Counsel regional offices investigate, and then decide whether to proceed to a hearing before the ALJ. The ALJ then files a decision with the Board. If no exceptions to the decision are filed, the Board typically adopts the position of the ALJ. If there are

6

exceptions, the Board hears the case. To get an order enforced, the Board must secure enforcement by filing a petition in a federal court of appeals. If a person desires to have a Board order reviewed, they may file a petition under Section 10(f) it is a “person aggrieved.” The person has a choice of court of appeals, where the ULP was committed or where the person does business.  The Standard of Review by the courts: if the Board’s finding of fact are “supported by substantial evidence on the record considered as a whole” then the courts must accept the finding. 2. STRUCTURE OF THE NLRA  Section 2 sets forth definitions:  Section 2(2) defines employer: includes any person acting (in the interest of) as an gent of an employer, indirectly or directly…  Section 2 (3) defines employee: [The hottest topic in Labor Law at the moment, i.e. graduate teaching assistants]: Shall include any employee, any individual whose work has ceased as a consequence of, or in connection with any current labor dispute or because of an ULP, and who has not obtained any other regular and substantially equivalent employment. EXCLUDES: independent contractors, supervisors  Section 2(5) defines labor organization: organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wage, rates of pay, hours of employment, or conditions of work.  Section 2(11) defines supervisor: Any individual having authority, in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other EE, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The SC has looked at this issue twice with respect to nurses.  Section 2(12) defines “professional employee”: predominantly intellectual and varied work…involving consistent exercise of discretion and judgment in its performance…  Section 8(a) sets forth UNFAIR LABOR PRACTICES: There are 5 areas of interference by an employer: 1) interfere, restrain or coerce EE in the exercise of section 7 rights; 2) to dominate or interfere with the formation or administration of any labor organization or to contribute financial or other support to it (i.e. to establish a company union); 3)discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization (Unless in the CBA negotiated membership in union as a condition

7

of employment 13 days after employed—see sec. 8); 4) to discharge or otherwise discriminate against an EE because he has filed charges or given testimony under the NLRA; 5) to refuse to collectively bargain with the representative of EE.  Section 8(b) sets forth the Taft-Hartley additions that address ULP of unions: 1) interfere with section 7 rights; 2) discriminate; 3) refuse to bargain collectively; (4) no secondary boycott )Congress’s attempt to rollback Clayton and Norris-LaGuardia Acts for unions to do all kinds of activities (picketing, secondary boycotting, extortion); (5) no excessive union dues; (6) no feather-bedding (keeping a job that is not needed anymore); (7) no picketing to force ER to recognize or bargain with the union  Section 9 governs Representation Rights and Elections  Section 10 governs the authorities of the Board to enforce rulings: a) Board has power to prevent any person from engaging in any ULP; b) filing a charge of ULP; c) testimony, etc.; d) power of Board to modify findings; e) power to petition U.S. court of appeals for enforcement; f) any person aggrieved by a final order of the Board may obtain review of the order in the U.S. Court of Appeals where ULP occurred, or where person resides or engages in business; (j) Board has power to petition U.S. District Court to grant temporary relief (i.e. TRO) once complaint has been issued. 3. JURISDICTION  The NLRA does not cover all EE—city and state (public employees) are not covered, but most states have a similar statute that covers these EE (not Texas). But there is the Taylor law—no strike—lose 2 days pay I fstrike.)  The NLRA does not reach purely intrastate commerce.  2 Types of Jurisdiction: 1) legal: must be job in “interstate commerce”; 2) discretionary: Board, as a practical matter has refused to take cognizance of a great number of employers who though technically within the reach of the Commerce Power, are excluded— because the Board sets dollar minimum in order to be subject to it’s jurisdiction. Retail: over $500K in gross volume of business; NonRetail: annual outflow or inflow o f $50K; etc. ($$ amount set forth on pg. 95 of text).  When filing a claim, must make sure ER is subject to legal jurisdiction of the NLRA. III.

PROPERTY RIGHTS v. RIGHT TO ORGANIZE  Republic Aviation Corp. v. NLRB: “Solicitation of any type cannot be permitted in the factory or office. An EE was soliciting union membership by passing out application cards to EE on his own time during lunch periods. He was discharged, and the NLRB found no animus toward union activity. Three EE were discharged for wearing UAW-CIO union steward buttons in the plant after being asked to remove them. The union at the

8

