Labor Law
Authors:
Estreicher, Samuel / Bodie, Matthew T.
Edition:
2nd
Copyright Date:
2020
20 chapters
have results for labor
Chapter 1. Introduction to U.S. Labor Law 57 results (showing 5 best matches)
- Labor law regulates collective action by workers concerning wages, hours, and working conditions and employer countermeasures in such disputes. It is a legal regime that deals with the economic and legal relationships between sellers of labor, acting as a collectivity, and actual or prospective purchasers of labor. Many times, employees will have chosen a labor organization—a union—to represent them collectively. But all employees have rights under labor law to engage in collective action for mutual gain, whether or not they are represented by—or even have any interest in joining—a union.
- The principal U.S. labor law is the National Labor Relations Act of 1935 (NLRA or Wagner Act). The NLRA applies to all employers in private industries “affecting commerce,” with the exception of the railroad and airlines industries. Labor relations in the latter industries are regulated by the Railway Labor Act of 1926 (RLA). Both the NLRA and RLA broadly preempt all state regulation of labor relations in the industries they cover. The states have enacted “mini Wagner Acts” for private industries not regulated by federal law and public sector labor relations laws for the employees of state and local governments. The federal government has a separate labor relations statute for its employees.
- The principal focus of this book is on the federal labor laws governing private employees. The labor relations of federal, state, and local government employees are subject to the government-sector labor laws of those jurisdictions. One principal exception on the federal level is the Postal Reorganization Act, , which established the U.S. Postal Service and provided for partial application of the provisions of the National Labor Relations Act, which is the basic labor law for the private sector.
- To understand the workings of American labor law, it helps first to understand the basic economic principles regarding both markets in general and labor markets in particular.
- The labor market, at its core, would seem to operate on the same basic principles. All other things being equal, providers of labor will move into a particular labor market as wages for their services increase, while employers will decrease their demand for workers as wages rise. Here, too, an equilibrium wage is reached, where no additional job seeker will work for less and no employer is willing to pay more. Again, changes in supply—say, an influx of immigrant workers—or changes in demand—say, a boost in defense production—can change prices until a new equilibrium wage is reached.
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Chapter 2. Historical Evolution of U.S. Labor Relations System 83 results (showing 5 best matches)
- The Labor Injunction
- In 1914, President Woodrow Wilson issued a call for changes in the antitrust laws and for creation of a federal trade commission. Labor saw this as an opportunity to revive its campaign for a labor exemption from the antitrust laws. Wilson rejected the demand for a wholesale exclusion from antitrust scrutiny, and the Clayton bill that passed the House and became the Clayton Act did not incorporate the AFL’s broad exclusionary language. Nevertheless, labor’s supporters noted that the Act recognized that the labor of a human being was not an article of commerce and restricted labor injunctions, insisting that the measure in effect legalized the secondary boycott. In AFL president Samuel Gompers’s terms, the Clayton Act was “Labor’s Magna Carta.”
- The NLRA established a new independent federal agency, the National Labor Relations Board (NLRB or Board), to enforce the unfair labor practice (ULP) provisions of § 8 and to hold elections pursuant to § 9 to determine whether the majority of workers in an appropriate unit wished to be represented by a labor organization for purposes of collective bargaining. Voluntary recognition by employers of majority unions without elections was also permitted. A labor organization selected by employee vote (and certified by the NLRB) or recognized as the majority representative served as the exclusive bargaining agency with whom the employer was under a duty to bargain in good faith. Employers could play no role in the formation of labor organizations, and any support or domination would violate § 8(2).
- Public concern over labor corruption, fueled by an inquiry of a Senate select committee chaired by Senator McClellan, escalated in the 1950s. The hearings ultimately resulted in the enactment of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Landrum-Griffin Act), a measure that broadly regulates the internal affairs of labor organizations. Title I established a “bill of rights of members of labor organizations.” Title II imposed reporting requirements on labor organizations and their officers and employers. Title III provided for regulation of union trusteeships (the practice whereby a parent union can assume control over a subordinate labor organization). Title IV created safeguards for the conduct of internal union elections, and Title V recognized fiduciary obligations for union officers.
- Section 6 states that “[t]he labor of a human being is not a commodity or article of commerce” and that nothing in the antitrust laws would forbid or restrain labor organizations from “the[ir] legitimate objects.” The
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Chapter 11. Labor and the Antitrust Laws 10 results (showing 5 best matches)
- The statutory exemption extends to certain combinations of unions and “labor groups.” The Supreme Court has recognized two kinds of labor groups who come within the statutory exemption. One category involves independent contractors, such as owner-operators of trucks, that are in direct job or wage competition with labor unions. The explanation for the exemption is that the union acting alone does not contravene the antitrust laws when it seeks to impose the same labor standards as govern its members on contractors functioning as direct competitors of its members.
- The second category of labor groups covers businesses, like theatrical and sports agents, who function as intermediaries in the labor market. These businesses do not compete with represented employees but do compete with labor unions concerning their bargaining and contract-administration functions. If the union has representational authority for the bargaining unit, it could in theory centralize all contractual relations with the employer, as we saw in connection with
- ...and collective bargaining, the courts have recognized two areas of exemption from the federal antitrust laws. There are several reasons for the exemption. One is historical. Whether and to what extent the antitrust laws apply to union organizations, strikes, and boycotts has been, as Chapter 2 illustrates, an area of much-contested terrain resulting in several legislative attempts to develop rules of accommodation. Second, at a general level, union objectives are anticompetitive. A union seeks either to control the supply of labor or to organize all product market competitors who will agree to union standards. Society may benefit from the realization of these objectives—that, too, is contested—but consumer welfare narrowly viewed is not maximized by “taking wages out of competition.” A third reason is that the antitrust laws can be used as a bludgeon as they carry treble damages and criminal penalties. At least since the 1947 Taft-Hartley amendments, which added union ULPs, the...
- Statutory Labor Exemption
- The first labor exemption—the “statutory” exemption—is drawn from Sections 6 and 20 of the Clayton Act with an assist from the Norris-La Guardia Act. As the Supreme Court held in its 1941 ruling in a labor union’s picketing of an employer to compel it to assign particular work to that union rather than another—what would be a ULP under § 8(b)(4)(D) of the NLRA after the 1947 Taft-Hartley amendments—was not criminal activity under the Sherman Act. Because the union was acting alone and not in concert with business groups, it could not be enjoined by a federal court under the Clayton and Norris-LaGuardia Acts. Therefore, the Court insisted, it could not be the subject of an antitrust criminal indictment. This exemption from the antitrust laws is an exemption for labor organizations “acting alone,” who are not acting in combination with “nonlabor groups.” Thus, in
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Chapter 8. Weapons of Economic Conflict 27 results (showing 5 best matches)
- This reasoning is best understood in a period of substantial unionization when background understandings between labor groups (and their supporters) assured a fairly reflexive response to a union picket line. It may be questioned whether in today’s environment a labor picket line still calls for “an automatic response to a signal.” The Supreme Court has made clear, it should be noted, that handbilling by unions that does not generally operate as a “signal” to other labor organizations and should be treated as constitutionally protected expression.
- The statute draws a distinction between labor appeals at the site of the primary dispute (“primary situs” picketing) and labor appeals at other locations where the products of the primary employer are being processed, used, or sold by others (“secondary situs” picketing). As a general matter, primary-situs picketing is lawful even if it causes disruption not only to the primary employer but also to businesses seeking to enter the premises of that employer, whereas labor appeals at locations where the primary employer’s employees are not present are unlawful.
- The NLRA’s restrictions on secondary activity by labor organizations are among the most complicated provisions in the statute. The purpose of the Act’s limitations on boycotts and picketing is to cabin labor disputes to the primary disputants and thus prevent spillover effects to other businesses not involved in the dispute. At the same time, appeals to suppliers, customers, and the
- Strikes are both a critical part of the labor-management relationship and an unfortunate, often self-imposed crisis for both employer and employees. The ability to withdraw the company’s labor force
- Labor Picketing
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Chapter 7. The Collective Bargaining Process 16 results (showing 5 best matches)
- There are often good reasons for both sides to consent. Employers can rest assured that they will not be undercut by competitors with respect to labor costs, and smaller employers can benefit from the negotiation resources of their larger partners. At the same time, unions can save on bargaining costs as well and benefit from the uniformity of labor terms across competitors; the multiemployer structure ensure labor costs are taken out of competition.
- work unaccompanied by a basic change in the nature of the employer’s operation. If the General Counsel successfully carries his burden in this regard, he will have established prima facie that the employer’s relocation decision is a mandatory subject of bargaining. At this juncture, the employer may produce evidence rebutting the prima facie case by establishing that the work performed at the new location varies significantly from the work performed at the former plant, establishing that the work performed at the former plant is to be discontinued entirely and not moved to the new location, or establishing that the employer’s decision involves a change in the scope and direction of the enterprise. Alternatively, the employer may proffer a defense to show by a preponderance of the evidence: (1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost...
- , the Board must provide evidence to show that the relocation decision does not involve a “basic change” in the operation. Then, the employer has two alternative responses: show that the decision does involve a basic change in its business, or show that there was no basis for labor-cost concessionary bargaining with the union. Most courts have accepted this framework. One exception is the Fourth Circuit, which views “[t]he decision of where to locate a business [as] fundamentally a managerial decision.” is a mandatory subject only when the decision is motivated by labor costs or other issues amenable to collective bargaining.
- “[A]t the present statutory stage of our national labor relations policy, the two factors—necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one’s terms—exist side by side.”
- See Art. XVII, § 5, National Agreement between General Electric and IUE-CWA (2011–2015), reprinted in Labor Law: Selected Statutes, Forms, and Agreements 213–16 (Michael C. Harper, Samuel Estreicher & Kati Griffith eds. 2015).
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Chapter 4. NLRB Jurisdiction and Coverage 15 results (showing 5 best matches)
- California and Arizona, among other states, have enacted agricultural labor relations laws. See California Agricultural Labor Relations Act, ; Arizona Farm Labor Law,
- and many states include such small businesses under their state labor laws.
- Railroad, airline, and other transportation workers covered by the Railway Labor Act (RLA)
- the Supreme Court rejected the agency’s attempt to narrow the implied exclusion of managerial employees to those who are involved in the employer’s personnel and labor relations functions (the so-called “labor nexus”). Justice Powell explained for the Court that Congress intended to exclude supervisors, executives, and others who function as policy-makers or policy-implementers for the company whether or not they supervise employees.
- Confidential employees are those who “assist and act in a confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations.”
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Chapter 5. Employee Rights to Engage in Concerted Activity 29 results (showing 5 best matches)
- The Railway Labor Act (RLA) does not provide a similarly broad right to engage in protected concerted activity. Section 2, Fourth bans employer interference with the employee’s decision to engage in union activities: “No carrier . . . shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization.”
- distributed flyers to the public criticizing the television station’s programming choices but without making clear they were engaged in a labor dispute with their employer. The Court held that there was no connection between the labor strike and the product disparagement leveled in the flyers. Members of the general public, the Court reasoned, would have no means of evaluating the motive behind the flyers and might permanently quit their patronage of the station. held such “naked” product disparagement to be unprotected. If the employees make clear the connection to a labor dispute, however, the “disloyalty” rationale generally does not apply.
- Section 8(a)(2) makes it an unfair labor practice to “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” Senator Robert Wagner and other supporters of the NLRA maintained that employer-dominated organizations could not achieve lasting gains for the employees. Moreover, employers would invoke the existence of these organizations as a means of stymieing the holding of fair representation elections and the emergence of legitimate labor organizations.
- There are two elements to a § 8(a)(2) violation: determining (1) whether the group, policy, or practice at issue is a “labor organization” under § 2(5) of the NLRA; and if so, (2) whether the employer has dominated, interfered, or provided financial support to it. In the case of the NIRA-era company unions, step one was fairly easily met. However, the reach of § 8(a)(2) extends significantly beyond unions or bargaining agents in the traditional sense. The Act defines labor organization as “any 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, wages, rates of pay, hours of employment, or conditions of
- The Board held that Electromation’s action committees violated § 8(a)(2). To reach that conclusion, the Board first had to determine that the committees were labor organizations, despite seeming more akin to a set of employer staffing assignments. The Board noted that: “[a]ny group, including an employee representation committee, may meet the statutory definition of ‘labor organization’ even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation ...the purpose of “dealing with” terms and conditions of employment. The “dealing with” element was held satisfied by the design of the committees to elicit employee proposals which would then be responded to by management in a back-and-forth manner. The Board ruled that the “action committees” were employer-supported labor organizations in violation of § 8(a)(2) because they were created by the employer, staffed according to the employer’s...
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Chapter 13. Preemption of State Law 14 results (showing 5 best matches)
- For the argument that states should be able shape labor policy through “tripartite labor lawmaking” whereby the state or local government agrees to provide benefits to a certain business if and only if the business agrees to new organizing and bargaining rules for its workers, see
- allowed an employee to pursue a state wrongful-discharge action after he was allegedly terminated for filing a workers’ compensation claim. The employee arguably would have had a contractual CBA claim for being fired without just cause. However, the wrongful-discharge claim was based on the state workers’ compensation law and operated independently of the labor agreement, and “resolution of the state-law claim does not require construing the collective-bargaining agreement.” to make clear that a CBA could provide the source for determining damages in a work-related dispute. Mere consultation of a CBA would not trigger preemption because virtually any claim authorizing back wages would require consulting the labor agreement for the wages paid. The question is whether an element of the state-law claim required an interpretation of the CBA, which is the exclusive province of the labor arbitrator chosen by the employer and the union.
- Congress can exercise its preemption powers to a greater or lesser extent as to each piece of legislation it enacts. In the employment arena, the Fair Labor Standards Act expressly reserves to the states the power to enact standards that are more protective of employees than those that it imposes. and provides that states may regulate labor disputes over which the Board has declined to exercise jurisdiction.
- Despite this silence—or, perhaps, because of it—the Supreme Court has interpreted the NLRA to provide for a fairly robust set of preemption doctrines. There are three preemption doctrines that may be invoked to block state regulation of labor relations activity.
- ’s facts and result are confusing because many states operate “mini-Wagner Acts” which regulate the labor relations of smaller employers. In this case, the California courts were not proceeding under such a statute but rather were deciding on their own interpretation of the NLRA that the union committed a violation and should be enjoined. Because the state court averred that it was in part interpreting the NLRA in reaching its decision, the Supreme Court overruled that court and held that the Board had sole jurisdiction over enforcement of the NLRA. The Court stated: “When it is clear or fairly may be assumed that the activities which a State purports to regulate are protected by § 7 of the Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.” ...to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor...
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Chapter 3. The National Labor Relations Board: Structure and Process 16 results (showing 5 best matches)
- The NLRB is the agency entrusted by Congress with the task of enforcing the National Labor Relations Act (NLRA or Act). Its two principal functions are conducting representation elections under § 9 and adjudicating and seeking redress from employer and union unfair labor practices (ULPs) under § 8. By contrast, the National Mediation Board has a similar responsibility for conducting elections under Railway Labor Act, and has a mediation role that the NLRB cannot perform (under NLRA § 4), but RLA unfair practices are adjudicated in the federal courts.
- An unfair labor practice (ULP) is a violation of one of the provisions of § 8 of the NLRA. Section 8(a) covers those ULPs committed by employers, while § 8(b) covers ULPs committed by labor organizations. Consider the hypothetical case of Sarah Smith, an employee of Big Bath & Beauty Stores, Inc. (BBBS), who believes she was fired from her position as a sales clerk because of her support for Local 111, Sales Clerks Union (SCU), which is attempting to organize Smith and her coworkers at the store. Smith’s allegations state a violation of § 8(a)(3) of the Act, which makes it an unfair labor practice to discriminate against employees in their employment conditions because they have engaged in union activity. Whether in fact a violation occurred is usually a question of fact to be determined in an administrative adjudication.
- See, e.g., James B. Atleson, Values and Assumptions in American Labor Law (1983), Ellen Dannin, Taking Back the Worker’s Law: How to Fight the Assault on Labor Rights (2006);
- The Board is the delegatee of Congressional authority and is the expositor of national labor policy under the NLRA. The Supreme Court recognized this special role in
- However, it remains an open question whether, other than in routine fact-specific cases, the courts are in fact according to the NLRB the deference that the administrative law doctrine quoted above would indicate. Labor law has been controversial for much of its history. Empirical studies have suggested it remains highly contested. Some commentators blame courts for the conservative turn certain labor law doctrines have taken.
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Chapter 12. Regulation of the Employee-Bargaining Agent Relationship 22 results (showing 5 best matches)
- The requirements of the Labor-Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act) establish certain requirements for labor organizations. Title II provides for extensive disclosure and reporting by labor organizations, officers, and employees.
- Matthew T. Bodie, Mother Jones Meets Gordon Gekko: The Complicated Relationship between Labor and Private Equity, 79 U. Colo. L. Rev. 1317, 1353 (2008)
- The NLRA and the RLA empower the recognized or certified majority labor organization to represent the interests of all the employees in the bargaining unit, whether they are members of the union or not. This resembles a power of government where a political majority has the ability to bind all, including those opposed to the law in question. Exclusive representation provides special powers to unions when they are chosen to act as the collective bargaining representative for a specific bargaining unit of employees. The employer must bargain in good faith with the union over the terms and conditions of employment for those employees. The union represents all members of the bargaining unit, and the terms that the union and employer negotiate apply to everyone in the unit. At the same time, unions are private organizations that are run by their members. Employees who are represented by a union are often members of the union, but they need not be. Thus, a labor union has a dual role, a...
- In this Chapter, we shift our attention from the relationship between employers and employees (and their collective representatives) to the relationship between the labor union and represented employees.
- Labor unions are restricted in their ability to participate in the political process. The 1947 Labor Management Relations Act prohibited unions from contributing to federal election campaigns.
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Chapter 9. Enforcing the Collective Bargaining Agreement 10 results (showing 5 best matches)
- Although common law courts were hostile to arbitration, whether in labor disputes or other contexts, federal judges since the enactment of the NLRA have been quite supportive of the process. An understanding of the jurisprudence surrounding labor arbitration must begin with § 301 of the Labor Management Relations Act (LMRA or Taft-Hartley). The purpose of the provision was to provide federal courts with jurisdiction to hear disputes involving claimed violations of CBAs. In the Supreme Court held that § 301 also empowered the courts to apply a newly-minted federal common law to be “fashion[ed] from the policy of our national labor laws.”
- deference is appropriate only where “an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.”
- Arbitration is private dispute resolution, and in most contexts the arbitration decisions remain private. However, in the labor field there is a history of publication of arbitration awards, although both parties must consent to publication and the practice is by no means universal. Awards have no formal precedential effect, except perhaps if they involve the same CBA. Nevertheless, they provide a source of jurisprudence that helps inform how arbitrators will decide cases.
- The NLRB does not have authority over CBA violations as such but there are occasions in which a potential CBA violation will overlap with an alleged unfair labor practice. Two common instances of such overlap include: (1) a dispute over the meaning of or change to the CBA that may raise contractual as well as § 8(a)(5) unfair bargaining claims, and (2) employee discipline or termination for allegedly discriminatory reasons that may violate the CBA as well as §§ 8(a)(1) and/or (3). But overlap may arise in other cases as well.
- In the United States, employers and labor unions included arbitration clauses in their agreements even before the enactment of the NLRA. The 1925 Federal Arbitration Act
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Chapter 6. Choosing an Exclusive Bargaining Representative 19 results (showing 5 best matches)
- Presumably deferring to the interests of the petitioning labor organizations, the Board tends to accept the petitioner organization’s unit if it is otherwise appropriate. The petitioner labor organization’s wishes are given weight in part because the purpose of the Act is to facilitate collective bargaining, and the union has chosen a unit that it believes will demonstrate its majority support. Section 9(c)(5) of the Act, as amended by Taft-Hartley, specifies that “the extent to which the employees have organized shall not be controlling” in the unit determination process. The Board’s view is that if the petition’s proposed unit is otherwise appropriate, the extent of organization is not in fact “controlling.”
- Even where a unit is otherwise appropriate and the petitioning labor organization has filed authorization cards signed by at least 30% of the employees in the unit, there are number of grounds where the Board will refuse to consider the representation question.
- . See generally William B. Gould IV, Labored Relations 168–75 (2000).
- National Labor Relations Act of 1935, § 9(c),
- , see Andrew M. Kramer & Samuel Estreicher, NLRB Allows Pre-Recognition Framework Agreements Between Employer and Labor Union,
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Summary of Contents 14 results (showing 5 best matches)
Chapter 10. Labor Law and Business Change 9 results (showing 5 best matches)
- Labor Law Obligations
- Labor law is about the relationships between various legally-defined entities: an employer, a union, and a bargaining unit. In this Chapter, we consider how a change in the employer affects a preexisting collective-bargaining relationship.
- (noting that a new company should not be able to evade its labor law obligations if it is “merely a disguised continuance of the old employer”).
- (“The Board and the courts have applied the alter ego doctrine in those situations where one employer entity will be regarded as a continuation of a predecessor, and the two will be treated interchangeably for purposes of applying labor laws.”).
- demonstrated a continuity of the employees’ interests: the new company retained all of the merged company’s employees and operated the enterprise in a substantially identical manner. The union was therefore able to enforce the agreement through a § 301 action and compel arbitration. Although a company’s successor labor obligations are a question of federal law, the
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Center Title 1 result
Table of Cases 4 results
Dedication 1 result
Table of Contents 23 results (showing 5 best matches)
- Publication Date: January 30th, 2020
- ISBN: 9781642426915
- Subject: Labor Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: This one-volume, concise treatise on labor law explains the analytical structure that governs how employees form workplace organizations and bargain over the terms and conditions of employment. It covers new forms of labor organizing, such as the corporate campaign, card check/neutrality agreements, and worker centers. It is designed to complement leading labor law casebooks with analysis of the principal decisions, context, and social justice policy. It reflects decisional and other developments through August 2019.
