Labor Law in a Nutshell
Authors:
Green, Michael Z. / Leslie, Douglas L.
Edition:
6th
Copyright Date:
2022
18 chapters
have results for labor
Chapter 8. Labor and the Antitrust Laws 35 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.
- 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.
- 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.”
- Justice Powell reasoned that although there is a labor policy favoring collective bargaining and bargaining agreements, no such interest could be shown by the union in this case because it represented none of Connell’s employees, nor did it seek to represent them, and so the bargaining agreement was not one protected by national labor policy.
- In nonlabor antitrust cases, the rule of reason analysis consists of a full scale examination of the defendant’s conduct, focusing on its anticompetitive effects and on its efficiency justifications. When lower courts have purported to apply a rule of reason in labor cases, however, they have focused on labor policy and the union’s general interests rather than on efficiency justifications.
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Chapter 2. NLRB Structure and Procedure 11 results (showing 5 best matches)
- 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.
- 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.
- If the regional director issues the unfair labor practice complaint, an attorney from the regional office will prosecute the case for the charging party. Most complaints (over 90 percent) are settled by the regional office prior to any hearing and typically within three months of the date the charge was filed. Information is often exchanged during settlement discussions but the Board neither requires nor has any mechanisms allowing pre-hearing discovery in unfair labor practice cases.
- The General Counsel is responsible for overseeing the investigation and prosecution of unfair labor practice charges. The General Counsel also represents the NLRB in the courts. Most unfair labor practice case work is done in the field, through regional offices supervised by the General Counsel. In a December 2012 restructuring by the General Counsel, the number of regional offices scattered throughout the country was reduced from thirty-two to twenty-eight. Further restructuring by the General Counsel occurred in July 2013 and led to the current listing of twenty-six regional offices, nine
- 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 3. Selecting a Bargaining Representative 25 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...
- . 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. authorization cards in bad faith and existence of substantial unfair labor practices to issue bargaining orders). At oral argument before the Supreme Court in ...substantial unfair labor practices interfering with...
- 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.
- 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 ...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 solicitation is invalid as to union solicitation on the employer’s premises during the employees’ own time, a discharge because of violation of that rule discriminates within the meaning of § 8(a)(3) in that it discourages membership in a labor...
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Chapter 10. Federal Preemption of State Legislation 25 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.
- 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.
- Several other titles of the Labor-Management Reporting and Disclosure Act also preempt state law, especially where enforcement responsibilities are given to the Secretary of Labor. This is the case with respect to most of the provisions of Title IV, covering union elections of officers.
- , 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 preemption is...
- New York Telephone Co. v. New York State Department of Labor, 440 U.S. 519 (1979)
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Chapter 12. LMRDA Regulation of Internal Union Affairs 15 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.
- 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 requirements set out in § 402(a).
- The Labor Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act) was passed in 1959 to establish rights of union members with respect to their union. Title I of the LMRDA sets out a bill of rights for union members. This Title was hastily drafted and was not debated in congressional committee.
- 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
- If the Secretary of Labor decides not to bring suit, the results of the election appear to be immune from challenge. However, in the Court held that a complaining member was entitled to a statement of reasons from the Secretary of Labor supporting a decision not to file a Title IV suit. A district court then has jurisdiction to determine whether the Secretary’s decision “is so irrational as to constitute the decision arbitrary and capricious.” Where the statement is inadequate, the Court suggested that the Secretary should be given leave to supplement the statement. The Court expressly left open the question of whether a district court would have the power to order the Secretary to bring suit in an appropriate case.
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Chapter 5. Employer Economic Responses to Concerted Employee Activity 22 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.
- 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.
- 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.”
- While this rationale was broad, the Court emphasized the compelling facts of this particular case—that the handbills asked for no public support for the union and failed to disclose that there was a labor dispute. The Court approved the Board’s analogy of the employees’ conduct to acts of physical sabotage.
- . Employees struck in protest of an employer’s unlawful assistance to a union which was attempting to oust the incumbent union; when the strikers sought reinstatement to their jobs, the employer refused. The Supreme Court affirmed a Board order that the employees be reinstated. The Court assumed that the employees could have waived their § 7 right to strike against employer unfair labor practices, but refused to give that interpretation to the unqualified no-strike clause in this bargaining agreement. The typical no-strike clause, in the Court’s view, assumes the continued existence of a lawfully designated bargaining representative and is meant to deal solely with the economic relationship between the employees and the employer during the term of agreement. Since the unfair labor practices sought to undermine that bargaining relationship, the no-strike clause was deemed not to apply.
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Chapter 9. Enforcement of Collective Bargaining Agreements 26 results (showing 5 best matches)
- , 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
- 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. 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 301 n.8. Also, the Court has cited to labor arbitration decisions made under the LMRA in resolving enforcement questions presented solely by the FAA. See (citing three labor arbitration cases).
- “if the debtor can show that the collective agreement burdens the estate, and that after careful scrutiny, the equities balance in favor of rejecting the labor contract.” The Court then held that a collective bargaining agreement is not an “enforceable contract” under § 8(d) of the NLRA from the time that the firm files a bankruptcy petition, and so a unilateral termination or modification cannot be prevented by the Labor Board.
- 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.
- A few lower courts addressing labor arbitration enforcement have cited to the FAA without explaining how federal common law under Section 301 of the LMRA is the guidepost for resolving enforcement questions. 994 F.Supp.3d 205, 210 n.3 (D. Puerto Rico) (referring to cases discussing whether the FAA applies to labor arbitration agreements).
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Chapter 1. Early Regulation by Law and a Statutory Overview 7 results (showing 5 best matches)
- 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.
- 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...
- 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.
- In the 1950s, congressional committee hearings uncovered evidence of looting of some union treasuries and denials of fundamental rights to members in a few unions. In 1959 the Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act) was passed. It contains a bill of rights for union members, requires certain financial disclosures by unions, prescribes procedures for the election of union officers, and provides civil and criminal remedies for financial abuses by union officers. At the same time, employer interest groups were able to secure passage of amendments to the National Labor Relations Act broadening the coverage of the secondary boycott provisions and
- 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 gave a narrow reading to Clayton Act provisions protecting labor activity.
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Chapter 6. Secondary Activity and Other Union Economic Coercions 17 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 ...labor relations purposes. But assuming each corporation has a separate identity,...
- was “whether, under all the surrounding circumstances, the union’s objective was preservation of work for [the contractor’s] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.” As cases arise, the Board and the courts are to determine factually whether the union’s interest is in the labor relations of the factory or other supplier, or in the labor relations of the employer with whom it has an agreement or for whom it is refusing to handle goods. Four members of the Court dissented.
- 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 ) 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 in the § 303 action.
- , a celebrated labor antitrust case involving an extensive network of product boycotts designed to monopolize electrical contracting and manufacturing for unionized New York City employers. This antitrust case was decided before the NLRA’s secondary boycott provisions were enacted and it played a major role in the 1947 debates leading up to the passage of § 8(b)(4). The was carried on, not as a shield to preserve the jobs of [the union’s] members, traditionally a primary labor activity, but as a sword, to reach out and monopolize
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Chapter 7. The Duty to Bargain 20 results (showing 5 best matches)
- 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.”
- 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.
- But even if a bargaining order issues as a result of the employer’s unfair labor practices or a union election victory, the unscrupulous employer is likely to challenge either, on frivolous grounds if necessary. This forces the NLRB to initiate its § 8(a)(5) processes. An unfair labor practice hearing must be held, a Board decision must issue and, since the employer will not comply with that decision, court of appeals enforcement must be sought. This process can take years, during which time the employer does not have to bargain with the union.
- . At least when the decision is not motivated by labor costs, most Board members treat the subject as permissive only, but rationales vary. Some observers contend that carefully counseled employers can mischaracterize whether a decision to discontinue a department, for instance, turns on labor costs.
- 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.
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Preface 4 results
- 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 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).
- 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.
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Chapter 4. Organizational Picketing 10 results (showing 5 best matches)
- 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
- 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(
- . 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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Table of Cases 3 results
Title Page 1 result
Outline 2 results
Center Title 1 result
Index 18 results (showing 5 best matches)
Chapter 11. NLRA Regulation of Internal Union Affairs 7 results (showing 5 best matches)
- , 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).
- 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 discharge), and the rule itself had been 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 admitted that the rule was “intended to have an impact beyond the confines of the union organization,” but it refused to find any “impairment of a statutory labor policy.”
- , 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.
- Union hiring halls and other union referral mechanisms surely encourage membership in labor organizations in that they enhance the reputation and apparent power of unions, but in
- Open Chapter
- 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.
