Labor Law in a Nutshell
Authors:
Green, Michael Z. / Leslie, Douglas L.
Edition:
6th
Copyright Date:
2022
21 chapters
have results for Labor Law in a Nutshell
Preface 9 results (showing 5 best matches)
- It has been more than a decade since the last edition of this Nutshell in 2008. In many ways, key judicial opinions previously decided, especially at the Supreme Court level, continue to provide consistency as to established labor law principles. As a result, many aspects of the book have not changed in more than a decade. The Supreme Court has rarely issued decisions specifically addressing labor law issues since the last edition.
- Prior editions of this Nutshell were authored by Professor Douglas S. Leslie. There is no doubt that much of his work has stood the test of time. I am extremely thankful to have such an established platform to contribute to in this Sixth edition. With all due respect, I am extremely appreciative of the tremendous work developed by Professor Leslie and exceptionally honored to take on the mantle in continuing from the legacy he created. I have been inspired by several excellent labor law professors who mentored, taught and guided me in understanding the complexities of this important area of law. As I continue to be a fellow labor law student, I hope this book supplements the important aspects that you will learn from your labor law teachers, the required textbooks and materials they assign, and any treatises or other supplements covering the subject. You should review the materials herein for what they are intended to provide: a simple, concise, and comprehensive overview of private...
- The most significant changes since the last edition, however, have mostly arisen in key decisions by the NLRB. Board decisions have become increasingly cyclical by reversing precedents decided by a prior Board until being changed again by a subsequent Board. Many who follow labor law may believe the only reason for the differing decisions is the political majority of the Board at the time of the decision. Whether that represents a correct assessment, staying up to date on many of the issues covered in this Nutshell from transitions to one Board versus another Board when the political party of the President appointing those Board members has also changed will continue to create many challenges.
- The Court also decided a couple of issues related to appointments by the President to positions at the National Labor Relations Board (Board or NLRB). This includes deciding the minimum number of NLRB member appointments necessary to constitute an operational quorum, New Process Steel, L.P. v. NLRB (2010), when the President can make NLRB member recess appointments, NLRB v. Noel Canning (2014), and how an acting NLRB General Counsel’s actions may no longer be valid when the President appoints the person to also serve as the permanent NLRB General Counsel. NLRB v. SW General, Inc. (2017).
- A few exceptions include some decisions driven most recently by constitutional analysis related to applying First Amendment limits on collecting union dues from public sector employees culminating with Janus v. AFSCME Council (2017). Most recently, the Court decided another public sector case asking whether a California law requiring union access to migrant workers involved an illegal constitutional taking of the employer’s property. Cedar Point Nursery et al. v. Hassid et al. (2021).
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Chapter 8. Labor and the Antitrust Laws 65 results (showing 5 best matches)
- As of 1930, federal courts regulated national labor policy through application of the antitrust laws. The opinions were reminiscent of the “ends-means” test used in state tort law. The procedural device used to control union conduct was the labor injunction. All of this led to the passage in 1932 of the Norris-LaGuardia Act, which limited the federal courts’ injunctive power in labor disputes and signaled to the courts a congressional belief that the antitrust laws were a poor vehicle for the formulation of national labor policy.
- Union activity does not violate the antitrust laws unless it was intended “to restrain commercial competition” or to control the product market. The opinion delivered a famous dictum: “Since, in order to render a labor combination effective it must eliminate the competition from union-made goods . . . an elimination of price competition based on differences in labor standards is the objective of any national labor organization. But this effect on competition has not been considered to be the kind of curtailment of price competition prohibited by the Sherman Act.”
- Other kinds of union activity provide a direct benefit in the labor market but also constitute a direct product market restraint. Limitations on subcontracting or on the introduction of labor-saving materials, especially when agreed to by a multiemployer group, directly benefit employees in the labor market by increasing hours of work, for example. Such restraints also have a direct impact on the product market.
- One burgeoning area where concerns about labor law and antitrust law may intersect could be the expansion of work in the gig economy pursuant to various technology platforms. With these workers being considered independent contractors and not employees, efforts to regulate and provide labor and wage protections for these workers may raise antitrust challenges. See (finding Seattle ordinance regulating for-hire transportation independent contractors such as Uber and Lyft drivers by establishing collective bargaining was not preempted by the NLRA but it did require more specificity to circumvent antitrust violation). Because the petitioners withdrew their suit after remand on appeal, the question of whether collective bargaining with a city on terms typically concerning labor matters would not be an antitrust violation if the workers are independent contractors is something to explore for the future especially for low wage workers. See
- For Justice White, the test for the exemption is “very much a matter of accommodating the coverage of the Sherman Act to the policy of labor laws.” That wages, hours and working conditions are mandatory subjects of bargaining weigh heavily in favor of an exemption for agreements respecting those subjects, a weight not warranted when the bargaining is over nonmandatory subjects. Under the labor laws the unions could not have insisted that Jewel Tea bargain over the prices to be charged for its products, Justice White wrote; and if Jewel Tea had reached an agreement with the union over product prices and had been sued by an injured party, it is unlikely that the agreement would be entitled to an antitrust immunity. The issue in this case, then, was “whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the union’s successful attempt to obtain that provision through bona fide, arm’s length bargaining in
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Chapter 2. NLRB Structure and Procedure 35 results (showing 5 best matches)
- An abundance of information describing the National Labor Relations Board (NLRB or Board) may be found on its website, . In between new editions of this Nutshell, readers are counseled to review the NLRB website for key changes in how the NLRB conducts business. Such reviews are especially warranted after changes in the political party of the President occur as that change also tends to lead to key changes in NLRB policy, structure, and procedure.
- If an unfair labor practice hearing is necessary, a regional staff attorney representing the General Counsel will control the case, but the charging party may intervene and present evidence. An unfair labor practice case is tried before an administrative law judge (ALJ). ALJs are selected by the Office of Personnel Management and are housed in either Washington, New York, or San Francisco. They travel throughout the country to take evidence in unfair labor practice cases. After taking evidence and receiving briefs, an ALJ issues a recommended decision and order. These recommended decisions routinely recite the evidence in considerable detail, make credibility resolutions when necessary, and discuss applicable Board precedent. The recommended order will either set out the appropriate remedy or dismiss the complaint.
- Each NLRB case, whether it involves an unfair labor practice or a matter of representation, must be initiated by a private party. In recent fiscal years (2018–2020), the number of such cases of all types filed each year has been a little more than 20,000. Of these, between 18,000 and 19,000 were unfair labor practice charges. An unfair labor practice case is initiated when a private party (called the “charging party”) files a “charge” that an unfair labor practice has been committed.
- Delay is a major problem in prosecuting unfair labor practice cases. The General Counsel implemented procedures in 2019 as part of the NLRB’s Strategic Plan for fiscal year 2019 to 2022 with a goal of reducing the delay time by 5 percent each year to a total 20 percent reduction by 2022. Starting with the 2018 average of 90 days from filing to disposition of an unfair labor practice charge by withdrawal, settlement, adjusted dismissal, settlement or issuance of a complaint, the NLRB reduced the time by 18 percent to 73.8 days in fiscal year 2020. This Strategic Plan also seeks to reduce the time between issuance of a complaint and settlement by an ALJ or issuance of a complaint and an ALJ decision as well as the time between issuance of an ALJ decision to the issuance of a final Board order. In 2020, it has taken on the average 283 days from the issuance of a complaint and the settlement or decision by an ALJ. Also, in 2020 after receipt of the ALJ’s decision, it took on the average...
- The regional directors, in addition to their responsibility for prosecuting unfair labor practice cases, have been delegated considerable authority to act for the Board in representation cases—cases involving a decision of whether to designate a particular union as the exclusive bargaining representative for a group of employees.
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Chapter 10. Federal Preemption of State Legislation 40 results (showing 5 best matches)
- It is a familiar principle of labor law preemption that the supremacy clause of the Constitution authorizes Congress to oust the states of their power to regulate labor relations. Yet the NLRA nowhere states the extent to which state regulation is preempted. It has been for the Supreme Court to declare when the states may and may not act respecting labor relations. Two principles are clear: not all state laws affecting labor relations are preempted by the federal statutes, and conduct actually protected by the federal statutes is immune from state regulation. For example, arson in a union organizing campaign may be subjected to state criminal and civil sanctions, and a strike (in an industry subject to the NLRA) to gain better wages cannot be prohibited by the state. Aside from these principles, much is in doubt.
- case. In , the state court entertained a suit for damages brought by an employer against a union for picketing directed at its customers and suppliers. The picketing had the purpose of pressuring the employer into establishing a union shop. The Court rejected the proposition that preemption could be decided on a case by case basis. General rules are necessary and the NLRB and Congress, not the Supreme Court, are the ones to decide the impact of labor activity on the scheme of federal policy and administration. Central to federal preemption is a concern with the labor activities being regulated, not a concern with whether state regulation is accomplished through state legislative policy or judge-made law, nor with whether the mode of state regulation is by general law or by laws specifically directed at labor relations. While federal law does not preempt matters of mere peripheral concern to the federal scheme or matters deeply rooted in local feelings, the extent of federal... ...a...
- Other cases have adopted what might be seen as a partial exemption doctrine; the states’ power to regulate is not completely ousted but is reshaped by the Supreme Court’s declaration of federal law. In , a representative of an employer brought suit contending that the union and two of its officers had issued a statement defaming him in violation of state law. The Court conceded that the NLRB might have found the circulation of these statements to have been an unfair labor practice under § 8, or to have been campaign propaganda that warranted setting aside the pending representation election. But the Court found that the intentional circulation of defamatory materials was not protected by the NLRA, and recognized an overriding state interest in protecting residents from malicious libels. Consequently, the Court held that a state is not preempted from applying its libel laws to statements made in the context of labor-management relations so long as the state applies a standard no more...
- The majority opinion in did not decide an issue that will regularly face state courts in similar situations. Suppose between the time of the employer’s required “threat” and the seeking of a state court injunction by the employer, the union files an unfair labor practice charge. One concurring Justice expressly read the majority opinion as declaring that the state court action will be preempted if the union files an unfair labor practice charge and that the action will remain preempted until either the General Counsel declines to issue a complaint, or the Board declares the conduct to be actually protected. Another concurring Justice expressly read the majority opinion as declaring that there is no preemption even if the union files an unfair labor practice charge, and that preemption will attach only when the Board declares the union’s picketing to be protected. One might expect the Board’s regional directors to act promptly on the unfair labor charges in these kinds of cases.
- Two Justices, necessary to make up a majority, concurred, stating that “neutral” state statutes or judge-made law—those “not directed toward altering the bargaining position of employers or unions but [only having] an incidental effect on relative bargaining strengths”—were not to be preempted. State laws would not be regarded as neutral “if they reflect an accommodation of the special interest of employers, unions, or the public in areas such as employee self-organization, labor disputes, or collective bargaining.”
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Chapter 9. Enforcement of Collective Bargaining Agreements 91 results (showing 5 best matches)
- Occasionally a party who contends that an arbitrator’s award will or does compel a violation of law is, in effect, attempting to avoid a procedural prerequisite to enforcing that law. For example, certain conduct can be prosecuted as an unfair labor practice only if the NLRB’s General Counsel challenges that conduct (e.g., § 8(a)(3) and § 8(b)(2)), while other conduct may be adjudged a violation without regard to the General Counsel’s agreement to prosecute (e.g., § 8(e)). Sometimes a violation of law will not be remediable because of a procedural default; examples are an unfair labor practice barred by the six-month statute of limitations, and an asserted civil rights violation barred for lack of exhaustion with the Equal Employment Opportunity Commission. Arguably, in these situations at least, the arbitrator should not scrutinize a potential award by the standards of external law.
- The Supreme Court has attempted to clarify the FAA’s application in a labor arbitration enforcement action. With Justice Thomas again writing for the majority, the Court explained the relationship between § 301 and FAA precedents. . There, in deciding a question of arbitrability under a collective bargaining agreement, the Court again cited both § 301 and FAA cases. This time, however, the Court emphasized that these are two distinct enforcement regimes with cases pertaining to separate laws. Because involved the enforcement of an arbitration clause in a labor agreement, the Court explained that it was merely discussing FAA precedents because “they employ the same rules of arbitrability that govern labor cases.” . at 298 n.6. The Court also made it clear that it planned to continue to recognize the distinct identity of the two lines of precedent “even in LMRA cases.” . at 301 n.8. Also, the Court has cited to labor arbitration decisions made under the LMRA in resolving enforcement...
- In , a labor arbitration case, the Court had referred to the FAA without saying it applied to enforce a labor arbitration agreement albeit while accepting that “federal courts have often looked to the [FAA] for guidance in labor arbitration cases.” However, Justice Thomas continued the uncertainty about how the FAA applies in labor arbitration enforcement actions when he stated in dicta from that an arbitrator’s decision with regard to the age discrimination claim of a “unionized employee” would be “subject to judicial review under the FAA,
- The Supreme Court held that the question of whether the arbitration provisions of the predecessor’s bargaining agreement survived the merger is for the courts to decide. The union relied on state corporation law making the successor liable for the debts of the predecessor and on national labor policy favoring arbitration. The Court held that the change in ownership would not automatically eliminate the duty to arbitrate since such a result would frustrate national labor policy. Rather, a court in a suit to compel arbitration needs to balance the management prerogative to rearrange the nature of the business against the need of employees for continued protection. Noting that collective bargaining agreements are not completely the product of consensual undertakings, the Court held that Wiley could be bound to arbitrate even though it had not in fact consented to the agreement. But the duty to arbitrate does not survive in every case of change in ownership. The test is whether there is
- The Court was unanimous in rejecting a duty of Burns to honor the collective bargaining agreement. The Court relied on the congressional policy of noninterference with collective bargaining agreements as evidenced by § 8(d) of the NLRA, and found this case to be a departure from prior Board precedent, distinguishing Wiley on several grounds. was brought as a § 301 suit in which there is no § 8(d) limitation. Second, it rested on a preference for arbitration and left the ultimate decision of which contract provisions survived to a labor arbitrator. Third, involved a merger with a state law background that the surviving corporation is liable for the debt of its predecessor; whereas in there was no buy-sale arrangement, nor any contact between the two employers. The policy of avoiding strife and securing industrial stability is not the only labor policy worth protecting, especially where, as in Burns, there was no voluntary assumption of the bargaining agreement. Forcing the... ...in...
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Chapter 3. Selecting a Bargaining Representative 107 results (showing 5 best matches)
- In some cases, pre-election conduct is alleged to amount to an unfair labor practice and also to warrant setting aside an election victory. If the regional director decides to issue a complaint on the unfair labor practice charge, the complaint and the election objections will be consolidated in one proceeding before an ALJ. On review of the ALJ’s recommended decision, the Board will decide both whether an unfair labor practice has been committed and whether the election is to be set aside. The unfair labor practice order is reviewable by the court of appeals but the representation issue is not. Therefore, even if the court of appeals reverses the Board on the unfair labor practice issue, involving the same facts as the election objection and consolidated in the same proceeding, it will not interfere with the Board’s determination of whether to order a rerun election.
- Having found that the Board was not precluded from considering card strength in issuing a bargaining order, the Court turned to the question of whether a bargaining order can be used to remedy employer unfair labor practices in the context of a representation campaign. The Court posited three categories of cases in which this issue might arise. The first consists of those cases where the employer’s unfair labor practices have been “outrageous” and “pervasive,” and where the union cannot show past majority status on the basis of cards or other circumstances. The Court noted, without explicitly approving, a Board policy of issuing bargaining orders in such cases to remedy substantial employer unfair labor practices. The second category of cases are marked by less pervasive employer unfair labor practices, a showing by the union of prior majority strength (usually through authorization cards), and a Board finding that on balance “the possibility of erasing the effects of past practices...
- The Board had previously ruled that an employer can refuse union recognition on the basis of authorization cards only if it has a good faith doubt as to the union’s majority status. See . Board cases found the lack of a good faith doubt, and ordered the employer to bargain, on a showing that the employer had engaged in independent unfair labor practices during the election campaign (the unfair labor practices were deemed to show that the employer’s motive was only to gain time and was not the product of a doubt of majority status), or that the employer had come forward with no reasons for doubting the union’s majority status. Subsequent Board opinions qualified this: the employer need not come forward with a reason for its good faith doubt other than a mistrust of authorization cards, and some unfair labor practices were not significant enough to justify the conclusion that the employer had refused to bargain in order to gain time to engage in misconduct. ...in bad faith and...
- Section 8(a)(3) states “it shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization. . . .” The word “discrimination” presumably means to treat people or things differently, but what does “to encourage or discourage membership” mean? It could mean that only those acts of discrimination that actually result in an encouragement or discouragement violate § 8(a)(3), or it could mean that an intent by the employer to encourage or discourage will make out a violation, or the section could be construed to require both effect and intent. No showing was made in that the employer’s rule actually precluded the union from organizing, but the Court upheld the Board’s conclusion that enforcement of the rule violated § 8(a)(3) when it resulted in an employee discharge. The Court’s discussion of the meaning of § 8(a)(3) was cryptic: “It seems clear . . . that if a rule against...
- Consider at what point in time the Board should determine whether the lasting effects of serious employer unfair labor practices prevent the holding of a fair rerun election. The Board could look at the election environment at the time the unfair labor practices are committed, at the time of the hearing on the refusal to bargain charge, or perhaps when the cease and desist order against the employer is enforced in the court of appeals. As the time of scrutiny moves away from when the unfair labor practices were committed, the chances become greater that employee turnover, changes in the employer’s operations, etc., will make the imposition of a bargaining order without an election appear to be unfair to the employees. Yet to free the employer of the bargaining order for these reasons creates an incentive for it to delay the case in the administrative and enforcement stages.
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Chapter 12. LMRDA Regulation of Internal Union Affairs 73 results (showing 5 best matches)
- In particular, there are four key sections that address the financial disclosure requirements. Section 201(a) mandates the creation of an organizational constitution and by-laws identifying requirements for membership, regular meetings, censure and removal of union officers, and provisions for how the organization’s funds may be spent. This information must be disclosed to the Department of Labor’s Office of Labor Management Standards (OLMS) along with completing certain forms including the Labor Organization Information Report, Labor Form LM-1.
- Title IV fixes the terms during which union officers hold office; requires that elections be by secret ballot; regulates the handling of campaign literature; requires reasonable opportunity to nominate candidates; authorizes reasonable qualifications, uniformly imposed, for candidates; and attempts thereby to guarantee fair elections in unions. Except for § 401(c), which permits a candidate for union office to enforce rights to equal treatment in the distribution of campaign literature and access to membership lists, the exclusive method for enforcing Title IV rights is through the Secretary of Labor after the election. Section 402 permits an individual member to file a complaint with the Secretary of Labor alleging election misconduct that may have affected the outcome of the election. The Secretary of Labor is the only party who may sue to set an election aside, and the Secretary can act only if there is a complaint by a union member who has satisfied certain exhaustion... ...in...
- In addition to reporting requirements, Title III provides that a trusteeship can be established only if it is in accord with the parent union’s constitution and bylaws. Even then, it must be for one of the following specified purposes: correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of a labor organization. The Secretary of Labor is given the power to bring suit to void a trusteeship; but any member of the trusteed union may bring a civil action in district court without requesting the Secretary to do so, even in the event
- Sections 101(a) and (2) provide that every member of a labor organization shall have equal voting rights and the rights of free speech and assembly, and § 609 provides that it is unlawful for a union “to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act.” Also, § 101(a)(5) provides that no member of a labor organization may be fined, suspended, expelled, or “otherwise disciplined” unless certain procedural rights are provided. Does removal from union office fall within the term “otherwise discipline” in § 609, and if so, does it also fall within the same term in § 101(a)(5)? A difficulty with ruling that it falls within the latter section is that it would then seem that union officers could not be removed from office by the membership before a hearing, yet there is evidence that Congress intended that a union could remove an officer summarily.
- A controversial substantive issue under § 401(e) has been the extent of a union’s right to set qualifications for a union office. In , the Secretary of Labor brought suit challenging the attendance rule eligibility requirement of the Steelworkers union. The union’s rule required that eligibility for local union office was limited to members who had attended at least one-half of the regular meetings of the local union for three years prior to the election (unless prevented by union activities or working hours). The union argued that the rule was proper because it encouraged attendance at union meetings and promoted the election of qualified members with a demonstrated interest in union affairs. The Secretary of Labor showed that in this local union, 96.5 percent of the members were ineligible to hold office because of this restriction. The union responded that, regardless of the percentages, every member had it in her own power to comply with the rule.
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Chapter 5. Employer Economic Responses to Concerted Employee Activity 85 results (showing 5 best matches)
- The right of an employer to replace strikers without violating the NLRA does not extend to a strike in protest of an employer unfair labor practice. In that situation, strikers have a right to their jobs upon an unconditional offer to return to work notwithstanding the fact that the employer may have replaced them. A strike that began as an economic strike may be converted to an unfair labor practice strike if the employer commits unfair labor practices during its duration that prolong the strike. Whether there has been such a conversion is a question of fact for the Board.
- In one context, the discharge-replacement distinction has been subjected to an embarrassing Supreme Court precedent. In , the employer discharged an employee for refusing to cross a picket line at another employer’s place of business, although the employer had not secured a replacement for the employee when he was “fired.” The Supreme Court held that the discharge was not an unfair labor practice, apparently relying on the fact that protection against employer discharge for refusal to cross a picket line had been waived by the bargaining agreement’s no-strike clause. Not content with this ground of decision, however, the Court also criticized the Board’s application of the discharge-replacement distinction in this context. The distinction between discharge and replacement was deemed to be “unrealistic and unfounded in law” and not . “It is not based on any difference in effect upon the employee. And there is no finding that he was not replaced either by a new employee or by transfer...
- The Court condemned in no uncertain terms the Board’s assumption of a special competence to weigh the competing interests of employers and unions on an economic continuum. The Board had held that an offensive lockout would so substantially tip the scales in the employer’s favor that it would violate the congressional policy underlying the Act. Said the Court, “We think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.”
- rationale is open to question. A majority of the Board has held that only strikes against serious unfair labor practices are immune from the waiver of general no-strike clauses. A serious unfair labor practice has been defined as “destructive of the foundation on which collective bargaining must rest.” interpretation of the coverage of no-strike clauses apply in unfair labor practice cases (construing bargaining agreements for purposes of § 7 waiver), these interpretations are not necessarily binding in a suit for damages against the striking union, although in such a case the contract interpreter (court or arbitrator) might deem the interpretations persuasive.
- The Supreme Court affirmed the finding of a violation, and in so doing made important comments about employer intent under § 8(a)(3) of the NLRA. Citing the earlier case of , the Court stated that some employer conduct may by its nature imply the required discriminatory intent because the natural foreseeable consequences of the conduct warrant the inference. First, “[w]hen specific evidence of a subjective intent to discriminate or to encourage or discourage union membership is shown, and found, many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices. . . . Conduct which on its face appears to serve legitimate business ends in these cases is wholly impeached by the showing of an intent to encroach upon protected rights. . . .” Second, where specific evidence of intent is not shown, the employer must still be held to have intended the consequences which foreseeably flow from its...a
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Chapter 11. NLRA Regulation of Internal Union Affairs 28 results (showing 5 best matches)
- In the case reaching the Court, the union had sought to enforce several such fines in state court. Members challenged the union’s court enforcement of the fines as a § 8(b)(1)(A) violation, but the Supreme Court disagreed. It described the approach of as “[leaving] a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor law, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Since in the case before it there was no showing that the fines were unreasonable, or “the mere fiat of a union leader, or that the membership of petitioners in the union was involuntary,” the fines escaped NLRA scrutiny. Enforcement of the union rule had not been carried out by unlawful methods (e.g. employment ...bargained for with the company, avoiding the charge of a § 8(b)(3) refusal to bargain. Noting the union’s economic reasons for adopting the rule, the Court...
- Inroads into restrictive union membership policies have been made under the civil rights laws, principally Title VII of the Civil Rights Act of 1964. Section 703(c) of that Title prohibits a union from discriminating on the basis of race, color, religion, sex, or national origin with respect to admission to membership and treatment of members. In addition, the federal government has barred employment discrimination on construction projects paid for in whole or in part with funds obtained from the federal government, or obtained pursuant to a federal guarantee of a grant, contract, or loan. As a part of this program, the Department of Labor has required affirmative hiring of minorities in the construction industry upon the threat of barring contractors from government contracts for noncompliance.
- In , a union member filed unfair labor practice charges against his union without first exhausting all the remedies provided for in his union constitution. This failure to exhaust violated a rule in the union constitution and the member was found guilty of violating the rule and was expelled by the union. He then filed a § 8(b)(1)(A) charge challenging his expulsion and was upheld by the Supreme Court. Describing as a case assuring “a union freedom of self-regulation where its legitimate internal affairs are concerned,” the Court held that “any coercion used to discourage, retard, or defeat [access to the NLRB] is beyond the legitimate interest of a labor organization,” and thus violates § 8(b)(1)(A). Even a direct expulsion not involving a fine may violate § 8(b)(1)(A).
- , then, union discipline of its members may violate the NLRA if the union rule being enforced is inconsistent with declared congressional labor policy. The limitations of such a rule sometimes have not been obvious to the NLRB. In the NLRB set aside on § 8(b)(1)(A) grounds the fining of a union member in circumstances that apparently violated the Labor-Management Reporting and Disclosure Act of 1959, a statute the NLRB has no jurisdiction to enforce. The Board has also held that a union violates § 8(b)(1)(A) by fining a member for refusing to participate in a strike later found to be a secondary boycott, although one court has found no violation where the union expels a member for refusing to honor an illegal secondary picket line. Compare
- The power of the union to regulate by union discipline conduct of union members who are also workplace supervisors has raised interpretative problems under § 8 of the NLRA. Section 8(b)(1)(b) makes it an unfair labor practice for a union to coerce an employer in the selection of its representatives for the purposes of collective bargaining and the adjustment of grievances. The language suggests a limited scope, and the legislative history indicates that it was enacted to prevent unions from forcing an employer into or out of a multiemployer bargaining group.
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Chapter 1. Early Regulation by Law and a Statutory Overview 12 results (showing 5 best matches)
- Public pressure intervened and in 1932 Congress passed the Norris-LaGuardia Act. Norris-LaGuardia specifically withdraws the power of the federal courts to issue either temporary or permanent injunctions in nonviolent labor disputes. Certain activities, such as picketing and refusals to work, are specifically immunized from injunctions. If union conduct falls within the statute’s coverage, federal courts are powerless to enjoin even a clear violation of substantive law. Even where injunctions are permitted to prevent violence, specified procedures must be observed. But Norris-LaGuardia accomplished more than the withdrawal of a remedy; it declared that federal courts were not to be in the business of formulating rules to govern labor policy—the government was to be neutral, and this was expected to permit union growth.
- Passage of the Wagner Act (National Labor Relations Act) in 1935 marked the beginning of affirmative support of unionization and collective bargaining by the federal government. The key provision is § 7, a declaration of employee rights. As originally enacted, it read: “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 concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 is enforced by § 8, which lists employer unfair labor practices. Section 8(a)(1) (originally § 8(1)) prohibits employer interference with the rights guaranteed in § 7. Section 8(a)(2) outlaws employer-formed or dominated “company unions.” Section 8(a)(3) forbids discrimination by employers on account of union activity in hiring, firing and other means of employment. Section 8(a)(4) prohibits discrimination against employees on...
- During this period federal courts were also staking out a role in the judicial regulation of labor-management relations. Jurisdiction was asserted by virtue of diversity of citizenship or by application of the Sherman Antitrust Act. The prima facie tort doctrine was one substantive ground for outlawing union activity, but the antitrust laws proved even more useful. The Sherman Act’s prohibition of “restraint of trade” could be applied to most union tactics involving organizing and economic pressure. In the , the Supreme Court found a Sherman Act violation when a union instigated a boycott of retail stores that sold hats produced by a struck manufacturer. The union was subjected to treble damages. Congress attempted to diminish unions exposure to antitrust liability by passing the Clayton Act in 1914, but the Supreme Court in gave a narrow reading to Clayton Act provisions protecting labor activity.
- , the ends/means test was used most often in state court civil suits for injunctions and damages against concerted worker activity. One arm of the ends/means test was articulated in the prima facie tort doctrine: The intentional infliction of economic harm is a tort unless justified by a legitimate purpose. Assessing the legitimacy of a union’s purpose was left to the lower courts. Some judges were prepared to uphold union economic activity on a showing that it was taken in the union’s self-interest, but many others undertook to weigh the respective interests involved in a labor dispute—those of the workers, the employer and the public. In the absence of identifiable standards or of an established common law tradition, each case tended to be decided in accordance with the judge’s individual notions of what constituted good and bad union conduct. Results were ad hoc and unpredictable.
- The Wagner Act establishes an administrative agency, the National Labor Relations Board (NLRB or Board) to administer and interpret the unfair labor practice and representation provisions of the Act. With respect to unfair labor practice cases, the members of the NLRB were originally designated to serve both prosecutorial and adjudicatory functions. They issued complaints alleging violations, prosecuted them through Board staff, and then ruled on their merits. Judicial review in specified courts of appeals was established by § 10. The Wagner Act contained no restrictions on the activities of unions.
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Chapter 6. Secondary Activity and Other Union Economic Coercions 107 results (showing 5 best matches)
- Another ally doctrine allows picketing that would otherwise seem to be secondary. Recall the hypothetical manufacturer of lead pencils. Suppose that at a time when there is no strike or other labor problems, the manufacturer splits its operations into two separate corporations. The first corporation produces the entire lead pencil except for painting, packaging, and distribution. These operations are done by the second corporation. All the operations continue to be housed at the same location. If the painters go on strike, will they be permitted to appeal to the employees of both corporations for a work stoppage? Had the business remained unitary, the union could have appealed to every employee. One possibility is that the two corporations will be deemed alter egos of one another for labor purposes. That would probably be the result if their separate identities were essentially a fiction, maintained primarily for labor relations purposes. But assuming each corporation has a separate...
- Section 8(b)(4)(D) makes it an unfair labor practice for a union to induce a strike or a concerted refusal to handle goods in order to compel an employer to assign particular work to employees represented by one union rather than to employees represented by another union. (In this, as in the rest of the discussion of jurisdictional disputes, one or both of the disputing groups of employees may be unrepresented.)
- Section 303 suits and § 8(b)(4) proceedings are deemed independent. Thus a § 303 suit may be brought before, during or after Board unfair labor practice proceedings. Where the NLRB rules on a § 8(b)(4) complaint before a § 303 judgment is entered, the majority of cases have held that the Board decision is res judicata in the § 303 action, but a § 303 judgment is not binding on the NLRB. Arguably, if a § 10( ) injunction effectively moots a dispute giving rise to a § 8(b)(4) complaint, the Board should not decide the merits of the § 8(b)(4) complaint unless the dispute is likely to recur. Since the Board, by hypothesis, is not deciding a current dispute between the parties, its only effect will be to bind the later district court. The employer, who will have expended no funds in having the unfair labor practice complaint litigated before the Board, will have no interest in having the case come to an end, but the union will have to litigate it fully for fear of later preclusive effect
- The secondary boycott provisions of the NLRA are perhaps the most complex in labor law. Several NLRA sections bear on secondary boycotts, although the two principal sections are §§ 8(b)(4)(B) and 8(e). Section 8(b)(4) begins by stating two unlawful means used by unions: (i) to engage in, induce or encourage a strike or other refusal to handle goods; and (ii) to threaten, coerce or restrain any person. These two unlawful means are followed by four instances of unlawful objects: (A) a strike to secure a bargaining agreement clause that violates § 8(e), or to force an employer or self-employed person to join a union; (B) in general terms, a secondary boycott—forcing or requiring one person to cease doing business or handling the products of another; (C) a demand that an employer recognize or bargain with one union when another union has been certified by the NLRB as the representative of the employer’s employees; (D) jurisdictional disputes between unions.
- One possibility remains open, however. The union might secure a clause from a subcontractor such as that negotiated in but then attempt to enforce it in a “right to control” situation by a damage action, rather than a refusal to handle goods. Court (or arbitration) enforcement of a valid clause in secondary circumstances points up a difficult technical issue with respect to the relationship of § 8(b)(4)(B) and § 8(e). The Court in said that a collective bargaining agreement clause is to be examined for § 8(e) validity at the time the clause is entered into. This is consistent with the language of § 8(e), which makes it an unfair labor practice “to enter into any contract or agreement” which is prohibited by the section.
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Chapter 4. Organizational Picketing 33 results (showing 5 best matches)
- But in the instant case the regional director had not gone to complaint on the § 8(a)(5) charge, and the Board reached the question of whether § 8(a)(3) and 8(a)(1) complaints warrant dismissing a § 8(b)(7) charge even though no election petition has been filed. The Board held that these unfair labor practice complaints would not free the union from the constraints of § 8(b)(7)(C). However, the Board also noted its practice of holding an election petition in abeyance pending a satisfactory resolution of unfair labor practice charges against the employer. This is called the Board’s “blocking charge” doctrine; in this context it means that if the union can persuade the regional director to go to complaint on § 8(a)(3) or 8(a)(1) charges, the union should also file an election petition and then ask that the election be stayed pending disposition of the unfair labor practice charges. The petition will prevent a § 8(b)(7)(C) complaint, allowing continued picketing, but no immediate...
- The statute nowhere provides a damage remedy for organizational picketing and the effect of § 8(b)(7) is only to make such picketing an unfair labor practice supporting a Board cease and desist order. However, § 10( ) provides for an injunction in federal district court on the regional director’s petition after a complaint is issued.
- Picketing does not fall within § 8(b)(7) unless it is for the purpose of gaining recognition. The Board has held that union picketing to protest an employer unfair labor practice, such as a discriminatory discharge, is not recognitional picketing. It rejected the argument that a strike protesting a discriminatory discharge, having as its purpose to compel reinstatement of the employee, was tantamount to recognition. . Of course, picketing purportedly in protest of an unfair labor practice can mask a recognitional object. For that reason a protest strike coming upon the heels of an injunction against recognitional picketing, or when the General Counsel has refused to go to complaint over the employer’s alleged unfair labor practice or has settled the charge against the employer, may be deemed recognitional picketing by the Board even though the union denies a recognitional purpose.
- A union’s attempt to force an employer to bargain by filing a § 8(a)(5) charge against the employer, rather than seeking a Board election, is now subject to the standards developed by the Supreme Court in . A bargaining order is appropriate only when pervasive unfair labor practices combine with a prior showing of majority status by the union to justify a Board conclusion that the majority showing is a better indication of employee sentiment than is the slim chance of a future fair election. Only on such a showing, then, would employer unfair labor practices support a § 8(a)(5) complaint, freeing the union from the constraints of § 8(b)(7)(C).
- Section 8(b)(7) makes organizational picketing an unfair labor practice in three broad contexts: subsection (A), where the employer has lawfully recognized another union and a question of representation may not appropriately be raised under § 9(c) of the Act; (B), where within the preceding twelve months a valid election has been conducted; and (C), where organizational picketing has been conducted without an election petition being filed within a reasonable time that may not exceed thirty days from the commencement of such picketing. There are two exceptions to (C), and no exceptions to the first two subsections.
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Chapter 7. The Duty to Bargain 106 results (showing 5 best matches)
- Another employer interest is in controlling competition between employers. Establishment of common wages, hours and working conditions means that employers with a common bargaining agreement will not compete in the labor market. And to the extent that the agreement is not subject to successful antitrust attack, various restrictions in a multiemployer bargaining agreement on the introduction of labor-saving machinery, for example, may control competition in the product market.
- The goal of the statute in this regard is to bring problems of vital concern to labor and management to the bargaining table, the Court reasoned. But such a goal is appropriate “only if the subject proposed for discussion is amenable to resolution through the bargaining process. Management must be free from the constraints of the bargaining process to the extent necessary for the running of a profitable business. It must also have some degree of certainty beforehand as to when it may proceed to reach decisions without fear of later evaluations labeling its conduct an unfair labor practice. . . . [B]argaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective bargaining process, outweighs the burden placed on the conduct of the business.”
- In , the collective bargaining agreement set wage scales and provided that the employer had the right to pay a premium rate above an established wage scale to an employee for some special skill. During the term of the agreement the employer unilaterally instituted a premium-incentive pay plan for employees in one job classification. The union filed § 8(a)(5) and (1) charges. The union argued, and the Board agreed, that the contract had not given the employer the power to institute the new wage plan, although the Board did not deny that an interpretation of the agreement was at the heart of the unfair labor practice charge. The Court of Appeals refused to enforce the Board’s order because the unfair labor practice turned upon the correct meaning of the bargaining agreement.
- The NLRA does not speak to multiemployer bargaining except that § 8(b)(1)(B) makes it an unfair labor practice for a union to interfere with the employer’s selection of its bargaining representative. The legislative history of this section suggests that it was intended to prohibit a union from coercing an employer into or out of multiemployer bargaining. The NLRB and reviewing courts have taken the position that multiemployer bargaining is consensual on both sides: it is an unfair labor practice for an employer or a union to coerce its trading party to engage in multiemployer bargaining. However, once consent has been given and negotiations have begun, neither an employer nor the union may withdraw without the consent of the other side absent “unusual circumstances.” This prevents withdrawal from ongoing negotiations simply because those negotiations have taken an unfortunate turn.
- Following a change in NLRB personnel, National Radio was overruled in in its broadest applications. Two other Board members contended that the NLRB lacks the statutory power to “Collyerize” cases. Another Board member, casting the swing vote, held that deferral was proper in § 8(a)(5) and 8(b)(3) cases but not in cases alleging violations of § 8(a)(3), 8(b)(2) and 8(b)(1)(A), nor in cases where an unfair labor practice complaint alleges both a refusal to bargain and a violation of one of the other sections. In another chapter of this sorry story of vacillation, the Board reversed in
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Title Page 4 results
Center Title 2 results
Outline 21 results (showing 5 best matches)
Index 57 results (showing 5 best matches)
Table of Cases 7 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 15 results (showing 5 best matches)
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in Law Emerita Michael E. Moritz College of Law, The Ohio State University
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Robert A. Sullivan Emeritus Professor of Law
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
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Dedication 1 result
- Publication Date: July 8th, 2022
- ISBN: 9781647087555
- Subject: Labor Law
- Series: Nutshells
- Type: Overviews
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Description:
An updated Table of Cases is available for this Nutshell here.
This comprehensive guide reviews labor relations law in the United States from its origins to the creation of key statutory protections and the up to date developments of the modern-day National Labor Relations Board (NLRB). Expert commentary offers insight into primary legal issues such as union organizing, picketing, employer responses, the duty to bargain, and enforcement of collective bargaining agreements and their arbitration provisions.
