Labor Law Stories: An In-Depth Look at Leading Labor Law Cases
Authors:
Cooper, Laura J. / Fisk, Catherine L.
Edition:
1st
Copyright Date:
2005
16 chapters
have results for employment law
Contributors 16 results (showing 5 best matches)
- is Professor of Law at the UCLA School of Law where she teaches courses in labor law, employment law, comparative labor law, alternative dispute resolution, and contracts. She was previously the Anne Evan Estabrook Professor of Dispute Resolution at the Cornell University School of Industrial and Labor Relations and Professor of Law at the Cornell Law School. She received her B.A. from Harvard University and her J.D. from Harvard Law School. Prior to entering law teaching she practiced labor and employment law and civil rights law at the firms of Cohen, Weiss & Simon and Rabinowitz, Boudin & Standard in New York City. Professor Stone has taught at the Benjamin N. Cardozo Law School and has visited at the law schools of Yale University, Stanford University, the University of Chicago and New York University. She has also taught comparative labor law at the Sorbonne University—Paris I and was awarded a Davis Fellowship in the History Department of Princeton University. Professor...
- is Concurrent Professor of Law and Philosophy at Boston College. He teaches and writes in the areas of domestic and comparative labor, employment and employment discrimination law. He has published widely on these themes in the United States as well as in French, Japanese and German scholarly journals. Beyond labor and employment law, he teaches and writes on the themes of civil society, personhood, and religion and public life. He serves on the editorial board of the Comparative Labor Law and Policy Journal and is a member of the American Law Institute, the Labor Law Group, the Council on Civil Society, and the Council on Families of the New York-based Institute for American Values. Professor Kohler has held visiting appointments at the University of Texas School of Law and the Graduate School of Business of Columbia University, and served as Fulbright Visiting Professor on the Law Faculty of the University of Frankfurt (Germany). He has lectured widely in the United States,...
- is the Willard and Margaret Carr Professor of Labor and Employment Law at Indiana University—Bloomington. He received both his Ph.D. in Economics and his J.D. from the University of Michigan. During law school, Professor Dau–Schmidt worked as a clerk for the United Auto Workers, and after graduation he worked first as the Counsel for the Labor Committee of the Minnesota House of Representatives and then as an Associate with the firm of Previant, Goldberg & Uelman in Milwaukee, Wisconsin. Professor Dau–Schmidt has co-authored or authored several books and numerous articles on labor and employment law and the economic analysis of law including:
- is Professor of Law at Duke University, where she teaches civil procedure and various labor and employment law courses. She graduated from Princeton University and from the law school of the University of California at Berkeley (Boalt Hall). After clerking on the federal court of appeals, she practiced labor law in Washington, D.C., before joining the appellate staff of the civil division of the U.S. Department of Justice. She has previously taught at the University of Wisconsin, Loyola Law School in Los Angeles, UCLA Law School, and the University of Southern California Law School. She has published frequently on union organizing among immigrant janitors, on the role of union lawyers in providing legal representation to individual employees on wage and hour and other individual rights claims, and on a variety of other labor and employment-related topics. Her writings are included in ...on ownership of knowledge in the context of the nineteenth-century employment relationship....
- is the Webster Professor of Labor Law at the University of South Carolina School of Law. He was educated at Georgetown University and Harvard Law School and received a master’s degree in history from the University of Wisconsin—Milwaukee. Professor Nolan practiced labor law with Foley & Lardner in Milwaukee and was Legal Advisor to the Deputy Under Secretary of the Army, working primarily on treaty negotiations. He joined the University of South Carolina law faculty in 1974, where he now teaches a range of labor and employment law courses. He has taught at the University of Washington and George Washington University. Fulbright grants took him on sabbatical leave to University College Galway (Ireland) in 1981–82 and to the University of Otago (New Zealand) in 1989–90. In 1996, he was a Visiting Professor of Law at the University of Sydney (Australia). Professor Nolan has published eight books and forty major articles and chapters on labor law, labor and employment arbitration, and...
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Chapter 1. The Story of NLRB v. Mackay Radio & Telegraph Co.: The High Cost of Solidarity 50 results (showing 5 best matches)
- Any discussion of basic principles of American labor and employment law must take the employment at-will rule into account. That rule exerts a deep and often unnoticed gravitational pull on every aspect of the structure and operation of our employment regulatory schemes. It also conditions our ideas about the status and rights of strikers and their relationship with their employer.
- The Duration of Indefinite Employment Contracts in the United States and England: An Historical Analysis,
- The formal equality of the law did not require effective equality. The common law did not seek to limit employer exercise of its economic power. The at-will rule, then-regnant concepts of contractual freedom, and formalized ideas of equality permitted employers to use devices such as yellow-dog contracts, by which employees agreed, as a condition of their employment, not to join a union or to attempt to organize fellow employees. Employers also remained free to discriminate against or discharge employees suspected of union activity, to use spies and to maintain blacklists, to establish company unions and representation plans to frustrate attempts at unionization and to employ other tactics designed to undermine strikes and to thwart other self-help efforts undertaken by their employees.
- Every code of fair competition, agreement, and license approved, prescribed, or issued under this title shall contain the following conditions: (1) That employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing; and (3) that employers shall comply with the maximum hours of labor, minimum rates of pay, and other conditions of employment, approved or prescribed by the President.
- cases, like that in other court decisions dealing with the issue, were incidental to appeals testing the granting or the limits of a labor injunction. The question of the employment status of the strikers was crucial to the question of their legally-protected right to picket and to engage in other activities seeking to persuade others not to take jobs with the struck employer. As employees, strikers had the right to make such appeals because the end sought—the betterment of their wages and working conditions—was lawful. In contrast, strangers with no employment-related interests to protect would be presumed to be acting out of malevolent and hence legally actionable motives.
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Chapter 3. The Story of NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents’ International Union: The Duty to Bargain in Good Faith 35 results (showing 5 best matches)
- Employment in the New Age of Trade and Technology: Implications for Labor and Employment Law
- Labor and Employment Law in the United States
- Governing the Workplace: The Future of Labor and Employment Law
- Unless we want to replace our system of private determination of terms and conditions of employment by the parties through collective bargaining with a system in which the parties appeal to a neutral arbitrator to determine employment terms, the parties need at least some reasonable prospect of resort to economic weapons. Moreover, strikes sometimes serve other purposes. They communicate employer resolve or poverty to the union and union resolve and ability to conduct a strike to the employer, and they build (or destroy) political consensus within the union.
- case, his side ultimately won the war. In the 1980’s the demand for employer representation in contests with unions declined so that Douglas adopted a more general practice with an emphasis on employment law. At the age of ninety-two, in 2004, Dick Douglas was still practicing in Greensboro, North Carolina, largely in the area of trusts and estates.
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Chapter 6. The Story of Emporium Capwell: Civil Rights, Collective Action, and the Constraints of Union Power 43 results (showing 5 best matches)
- Additionally, Mary Rogers contacted Kenneth Hecht, an attorney at San Francisco Legal Aid’s Employment Law Center, whom she knew from WACO’s legal battles with the city over redevelopment, to explore Hawkins’ and Hollins’ legal options. Hecht, who had worked at the NLRB’s regional office in San Francisco before joining the Employment Law Center, agreed to take the case. On November 19, he filed charges with the Board’s regional office, accusing the Emporium of violating the National Labor Relations Act when it dismissed Hawkins and Hollins. This was the first step in litigation that would end, over six years later, in the United States Supreme Court.
- The law should facilitate the involvement of unions in the quest for racial equality in employment, but it should not make the individual a prisoner of the union. While employees may reasonably be required to approach the union first, as a kind of “exhaustion” requirement before resorting to economic protest …, they should not be under continued inhibition when it becomes apparent that the union response is inadequate.
- Interview with Kenneth Hecht, attorney at the Employment Law Center in 1968, San Francisco, Cal., Mar. 21, 2001.
- According to the court, “the law does not give the union an option to tolerate racial discrimination in employment is illegal.” 485 F.2d at 928.
- Though Douglas’ opinion might have provided some small solace, the Supreme Court’s opinion marked the end of the line for Hollins and Hawkins. The National Labor Relations Act would not provide a remedy. As it turned out, however, the Emporium won the battle but lost the war. Hecht and his colleagues at the Employment Law Center eventually brought a Title VII suit against the Emporium. The Emporium settled the case in the early 1980’s.
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Chapter 8. The Story of Electromation: Are Employee Participation Programs a Competitive Necessity or a Wolf in Sheep’s Clothing? 48 results (showing 5 best matches)
- Telephone Interview with Kathleen Brickley, August 2, 2004. Ms. Brickley today is a partner at Barnes & Thornburg, specializing in labor and employment law.
- Symposium: Current Critical Issues In Labor and Employment Law: Company Sponsored Employee Involvement: A Union Perspective
- Symposium: Current Critical Issues In Labor and Employment Law: Company Sponsored Employee Involvement: A Union Perspective
- [O]nly representatives who are not subservient to the employer with whom they deal can act freely in the interest of employees…. For these reasons, the very first step toward genuine collective bargaining is the abolition of the employer-dominated union as an agency for dealing with grievances, labor disputes, wages, rules or hours of employment.
- any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
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Chapter 4. The Steelworkers’ Trilogy: The Evolution of Labor Arbitration 47 results (showing 5 best matches)
- Labor and Employment Law at the Millennium: A Historical Review and Critical Assessment
- arbitration, the arbitrator had stated that the grievants were entitled to reinstatement and back pay after the contract expired because “they were protected by the law from … termination of their employment without good cause.” Not only was this an incorrect statement of the law for at-will employees, it also was, standing alone, evidence that the arbitrator based his decision not on the agreement but upon external law. Douglas avoided that difficulty by holding that the award could have been based upon both an interpretation of external law and an interpretation of the collective agreement, and thus the source of the ruling’s “essence” was ambiguous. He said:
- The court invoked a rule, well established in the commercial context, that executory agreements to arbitrate could not be specifically enforced. It further held that a collective bargaining agreement is a contract of employment for purposes of the United States Arbitration Act, 9 U.S.C. § 1 (2000), and was thus excluded from the operation of that statute. It also found that there was no substantive law in § 301 that would change these common law and statutory principles. Having found no right to relief under § 301 or the law of arbitration, the court held that there was no enforceable right to specific performance of the promise to arbitrate.
- Not only was the Agreement effective during and for several months after the grievance arose, but, even after that, the Union continued as the representative and collective bargaining agent for the grievants and all other employees in the unit. Their status as employees continued, during the subsequent period of negotiations for contract renewal. They were protected by the law from improper discrimination or termination of their employment without good cause.
- Six years later, the Supreme Court applied the same reasoning to the nonunion employment setting. Since then, many nonunion workers have been forced to arbitrate their employment law claims, losing their rights to a judicial forum, yet lacking the assistance of a union in designing and administering the alternative tribunal.
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Chapter 7. The Story of First National Maintenance Corp. v. NLRB: Eliminating Bargaining for Low-Wage Service Workers 43 results (showing 5 best matches)
- Telephone Interview with Paul Cane, Jr., May 4, 2004. Cane now practices management-side labor and employment law in San Francisco. Cane’s reference is to Bob Woodward & Scott Armstrong, (1979). Lahne is now a pension law specialist at the U.S. Department of Labor; she declined to be interviewed.
- It is only a matter of time before a union seeking to represent maintenance employees will claim, Canadian-style, that their employer, either individually or jointly, is the owner of the building that they maintain. It is not possible to predict how the Board will deal with this claim. In employment statutes other than the NLRA, for which federal courts are more free to make policy, courts have greatly expanded the concept of “employer” and “joint employment” in the past three years. Courts in the Second Circuit, where and labor standards law.
- We would understand how employment of maintenance workers by independent contractors is related to their poverty. Maintenance workers employed by contractors earn less than maintenance workers employed directly, despite equal educational attainment; are half as likely to be unionized and about a third as likely to have health insurance; and are more heavily female, African–American, Latino and Latina. We would know how bargaining unit rules, secondary boycott law, and other aspects of labor law frustrate collective bargaining for low-wage maintenance workers, particularly those working for contractors.
- employment decisions. I have found nothing, however, to suggest that Congress, in passing these two acts, had in mind a clear list of subjects, even as to management decisions, that were immune from bargaining. Surely, there is nothing in the statute itself to suggest that Congress contemplated a fixed set of “managerial prerogatives” that it intended to immunize, and I have seen nothing to this effect in the legislative history. Congress intended not to require bargaining over what fell outside “wages, hours, and terms and conditions of employment,” but it left further definition of those terms to the parties, the NLRB, and the courts. A conclusion that Congress itself excluded specific subjects, among them these partial closing decisions, also would substantially undermine much precedent in the Board and the lower courts, which have approved, with this Court’s acquiescence, a widening sphere of mandatory subjects of bargaining, whether we like to acknowledge it or not. Thus, I...
- Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964) (invoking the construction of the statutory phrase “terms and conditions of employment”, industrial practice, salience of labor costs in the decision, and the employer’s “freedom to manage the business”).
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Chapter 2. The Story of Steele v. Louisville & Nashville Railroad: White Unions, Black Unions, and the Struggle for Racial Justice on the Rails 54 results (showing 5 best matches)
- is not simply a labor law case, but also an employment discrimination case, is obvious on the surface of the Supreme Court’s opinion. case arose in the infancy of American labor law, at a time when the roles of courts and agencies were not yet well defined. It arose before federal employment discrimination law was even imaginable. And it arose on the eve of America’s entry into World War II, a time when America’s war against racism in Europe drew unfriendly foreign attention to America’s racist practices at home. Against this background of uncertain law, the case illustrates the heroic, and in this case, successful efforts of black workers to use the collective strength of their own unions to seek legal redress. It also illuminates the often-futile efforts of the administration of Franklin D. Roosevelt and his chosen Supreme Court to ensure that the New Deal, which often bypassed minority workers, would at least defend the rights of the small minority among them with contractual...
- Even the labor law context for the consideration of the also raised related issues of conflicts of interest between unions and non-members whose employment was adversely affected by union action.
- It would only be with the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), that the “disparate impact” theory under which such a test could itself be legally challenged as discriminatory would enter the law. The NAACP, in its own approach to employment litigation, stayed clear of any cases that required defining “discrimination” as anything other than failing to treat blacks exactly like whites.
- Fair Employment Practices Committee, Records of the Committee on Fair Employment Practices, 1941–1946 (Microfilm) (hereinafter “FEPC Papers”) roll 12 (on L & N hiring).
- By May 1941, with the support of other civil rights leaders, Randolph announced that he would turn out 100,000 blacks to march down Pennsylvania Avenue on July 1 to protest the federal government’s failure to use black labor in support of the war effort. Randolph’s threat of a march on Washington prompted President Roosevelt to negotiate with Randolph, using New York mayor Fiorello LaGuardia as a go-between. The result of these negotiations was Executive Order 8802, signed on June 25, 1941. Part of the compromise was to create a “Fair Employment Practice Committee” (“FEPC”) to address claims of employment discrimination in defense industries, including the railroads.
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Chapter 10. The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants 68 results (showing 5 best matches)
- The 1986 law defined “unauthorized alien” as a non-citizen who was not, at the time of employment, either a lawful permanent resident or authorized to work—in other words, undocumented immigrants, whether they have overstayed a visa or entered the country without inspection, as well as those persons holding non-immigrant visas that did not allow employment. IRCA did not create penalties for unauthorized workers who accepted employment; instead, Congress chose a scheme of civil and criminal penalties for Finally, when Congress enacted IRCA, it recognized that employers would need time to adjust to the law’s new requirements. Accordingly, it provided for a slow phase-in, in which the Attorney General was to issue no fines to employers in the first six months after IRCA’s enactment nor for a first employer offense committed in a subsequent grace period of twelve months, or up to June 1, 1988.
- the implications of the ruling for remedies under labor and employment laws other than the NLRA. McCortney had argued that a ruling for Hoffman would affect only backpay for work not performed. Thus, he attempted to draw a line between laws like the Fair Labor Standards Act that require payment of wages for work performed—to which undocumented immigrants would be entitled—and laws like the NLRA and Title VII that provide prospective remedies, such as backpay, for work not performed. Wolfson pointed out in his argument that most states have held that undocumented workers are entitled to workers’ compensation benefits even though the benefits compensate in part for wages that were not earned.
- labor laws immigration laws seek to prevent.” Justice Breyer continued: “Without the possibility of the deterrence that backpay provides,” employers might conclude that they could violate the labor laws with impunity. Next, examining the text and history of the INA, Breyer noted that IRCA does not state how violation of its provisions should affect enforcement of other laws, but that the policy underlying IRCA—“to diminish the attractive force of employment, which like a ‘magnet’ pulls illegal immigrants toward the United States”—is undermined by denial of backpay, which reduces the cost of labor law violations for employers and thus “increases the employer’s incentive to find and to hire illegal-alien employees.”
- Are there two sets of rules for the twenty-first century workplace, one for citizens and legal immigrants and the other for the millions of undocumented workers in the United States? Are the employers of those undocumented workers free to ignore the mandates of the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Occupational Safety and Health Act, and other federal and state labor and employment laws, without fear of ordinary liability?
- Wolfson approached the oral argument with different concerns. A skillful and experienced Supreme Court advocate, Wolfson had clerked for Justice Byron White in 1989–90 and spent nearly the entire Clinton Administration in the Solicitor General’s Office, handling a number of ERISA, labor, and employment law matters. But Wolfson was apprehensive that the Court would “tear my head off in this case,” because the justices might conclude that the Board had impermissibly ignored . The key vote of Justice Kennedy seemed to Wolfson “almost impossible” to secure. Wolfson also recognized that a hostile opinion reversing the D.C. Circuit could sweep more broadly than necessary, endangering cases involving knowing employers, state law regimes, and ...that, were Congress to prohibit the employment of undocumented workers, those workers would become ineligible for backpay (Wolfson later did not recall any discussion in the Solicitor General’s Office of the possibility that Kneedler, who had...
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Introduction 20 results (showing 5 best matches)
- The collective model that captured Congress’ vision of workplace governance in 1935 also is the organizational principle for the authors of this book. This book was written by the Labor Law Group, a non-profit organization created from the 1946 observation of W. Willard Wirtz, then a law professor at Northwestern University, that labor law professors, working collectively without individual compensation, could best bring to the law school classroom labor law teaching materials that truly reflected the real lives of employees and employers. The Labor Law Group, composed of approximately fifty professors in the U.S., Canada, Europe and Israel, today have in print six books on labor and employment law. All royalties generated by Group publications are held in trust for educational purposes and none inure to the benefit of any individual. This book, like the statute that gave rise to its subject, is inspired by the belief that people working together can achieve objectives that those...
- As the civil rights movement gained strength and a particularly forceful voice in the Black Power movement of the late 1960’s, the fight over persistent racial inequality in employment continued. In —now condemned the black department store workers for seeking to negotiate with their employer outside the collective bargaining process. Justice Thurgood Marshall, the first African–American to sit on the Supreme Court and a principal architect of the litigation strategy that struck down racial segregation, wrote the Court’s opinion denying these workers the right to protest. In this chapter, Professors Calvin William Sharpe, Marion Crain and Reuel E. Schiller explore the painful dilemma posed by the principles of exclusive representation and majority rule upon which the labor law system rests. They offer diverse perspectives on whether the Supreme Court in
- We hope that reading the stories behind these cases will deepen both your understanding of and your affection for labor law. Labor law is special because, unlike nearly all other legal doctrines, it prioritizes group collective rights above individual rights. It gives us the opportunity to examine law-making in a high-volume administrative agency that struggles to maintain uniform national application of the law while depending for ultimate enforcement on appellate courts that sometimes, despite Supreme Court insistence on deference, cannot resist effectuating their own notions of how the law should be interpreted and applied. While other courses about the law of the workplace sometimes seem an incoherent collection of independent doctrines, labor law offers a comprehensive and consistent vision of workplace organization and decision-making, whose success can be tested against a constantly changing variety of issues.
- Also underlying Congress’ decision to trust labor relations to an expert agency was the Progressive-era conviction that an accurate understanding of the facts of a dispute was absolutely crucial to appropriate application of law. In one respect, labor is no different than any other ...The facts of the case are crucial to the success of the litigants in many cases. Obviously that is true in the trial court or administrative agency where the facts are found, established, developed, or invented, depending on your point of view. Even in the appellate courts, where facts are conventionally thought to take a back seat to the law, facts matter. An eminent federal appellate judge once confessed that the most important part of a brief, the part most likely to persuade the court of appeals—after the names of the lawyers on the cover—was the statement of facts. A well-written statement of facts, in his view, could tell the court what the legal issues were and how they should be decided. Yet...law
- While the chapters describe the doctrinal evolution of law under the NLRA in the seventy years since its enactment, the fundamental purpose of this book is to tell the stories of the cases in which these doctrines emerged. The authors have interviewed dozens of participants in these cases—representatives of unions and management, union organizers, lawyers for unions, companies and the NLRB, members of the NLRB and Supreme Court law clerks. They have pored over archival records of the NLRB and the papers of lawyers and Supreme Court justices. They have read transcripts of agency hearings and Supreme Court arguments. They bring to this volume quite remarkable stories of how law gets made, how this process of law-making by litigation affects the lives of the people involved and their advocates, and how the law they make sometimes has an impact on others, and sometimes does not.
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Chapter 5. The Story of NLRB v. Gissel Packing: The Practical Limits of Paternalism 39 results (showing 5 best matches)
- Each set of negotiations is different, however, keep in mind from a wage and benefit perspective, you guys have one of the best employment situations in the industry. In addition, you did not have to pay anyone weekly dues to get this package. Why would you pay someone for the possibility of losing this arrangement?
- The unfair labor practice charge also alleged that the employer had discharged Raymond C. Shyloski, a “floor boy” in the wire weaving department, the day after the election, in violation of § 8(a)(3) that makes it unlawful for an employer “by discrimination in regard to hire or tenure of employment to … discourage membership in any labor organization.” The NLRB Regional Office later dismissed this charge when it concluded that the employer had fired him after an investigation of vending machine thefts revealed that Shyloski had omitted from his employment application “an extensive criminal record including convictions for breaking and entering.” Final Report and Recommendation, George F. McInerny to Acting Regional Director Ernest Modern, January 13, 1966.
- In June 1952, the AWWPA struck Sinclair. The strike lasted until September when the company reopened the plant, without a union contract, offering employment terms consistent with the company’s final contract offer to the union. Thereafter, until the 1965 organizing campaign by the Teamsters Union, the wire weavers at Sinclair were not represented by any union. In 1962, one of the founder’s sons, David H. Sinclair, who had been in the military during the 1952 strike, became President. In July 1964, The Lindsay Wire Weaving Company of Cleveland, Ohio acquired the stock of The Sinclair Company which then became a division of Lindsay. Following the acquisition by Lindsay, David H. Sinclair remained as President of Sinclair.
- case. Then in his late thirties, Wallace was educated at Syracuse University and Columbia University Law School. As Editor-in-Chief of the Columbia Law Review he edited the student note of Ruth Bader Ginsburg, before whom he later argued cases when she was appointed an Associate Justice of the Supreme Court. Wallace clerked for U.S. Supreme Court Justice Hugo L. Black, engaged briefly in private practice in Washington, and taught public law courses at Duke University before joining the Solicitor General’s Office in January 1968. In a career extending to January 2003, he argued an extraordinary 157 cases before the high court. His oral argument in Wallace represented the federal government through the terms of nine Solicitors General and eight Presidents. Upon his retirement he was described as the “quintessential civil servant, interested more in being true to the Supreme Court and to the law than in mouthing the policy agenda of his politically appointed superiors.”
- The more likely explanation is that Manoli, as a zealous advocate, crafted his own statement of Board law in order to make it possible for the Court to rule in the Board’s favor. Knowing, however, that the General Counsel had no power to change Board law, he tried to persuade the Court that this more acceptable legal doctrine was the Board’s and not his own. Manoli obviously recognized the tension between these two objectives, but in his preparation for oral argument he was unable to devise a better way of handling the dilemma.
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Chapter 9. Kentucky River at the Intersection of Professional and Supervisory Status—Fertile Delta or Bermuda Triangle? 22 results (showing 5 best matches)
- ...not acquiesce in the new approach. Packard itself refused to comply, and the Board successfully petitioned for enforcement in the Court of Appeals. The Supreme Court affirmed, accepting the dual status theory, reasoning that the Board had correctly held that the plain language of § 2(3) dictated treating foremen as “employees” with respect to their own terms and conditions of employment, with full rights, including organizing and bargaining. In dissent, Justice Douglas rejected the dual status concept, noting the employer’s dilemma when “[a]n act of a foreman, if attributed to the management, constitutes an unfair labor practice; the same act may be part of the foreman’s activity as an employee. In that event the employer can only interfere at his peril.” The Wagner Act was intended, he reasoned, to protect “the right of free association—the right to bargain collectively—by the great mass of workers, not by those who were in authority over them and enforcing oppressive...
- The NLRB has avoided rather than resolved the issue, determining supervisory status, insofar as possible, without relying on “responsible direction.” Failing that, it has interpreted “responsible direction” only as modified by “independent judgment,” in a single package, leaning heavily on the “independent judgment” element to avoid interpreting “responsible.” “Responsible direction” has been problematic in industrial cases, and even more so in professional employment.
- The Taft–Hartley Act neither adopted the Smith bill approach of outright prohibition against foremen organizing, nor the two-tier approach of the Case bill, which would have preserved bargaining rights only for foremen in industries with a pre-NLRA history of unionized foremen. Instead, the law eliminated supervisors from At the same time, a new § 14(a) disclaimed any prohibition against “voluntary” collective bargaining for supervisors. Where employers and unions with supervisor members found it in their mutual interest, they could bargain collectively, albeit outside NLRB auspices. This avoided any contention that the law violated the asserted constitutional rights of supervisors to organize.
- Who is a Supervisor: The Law Before Health Care & Retirement Corp.
- The tenor of Sixth Circuit case law also militated against waiting in hopes of a more perfect certiorari vehicle. As NLRB General Counsel Feinstein put it, the Sixth Circuit had invited employers to forum shop. Major nursing home chains always have a location in the Sixth Circuit, and therefore have the right to file their petitions for review of adverse NLRB ULP decisions in that circuit, no matter the location of the nursing home where the case arose. The effect was to give nearly nationwide effect to the case law of that one circuit, contrary to that of the Board. As Judge Jones had opined in his concurring opinion in
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Labor Law Stories 2 results
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- Foundation Press, of Thomson/West, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Foundation Press 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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- Publication Date: May 10th, 2005
- ISBN: 9781587788758
- Subject: Labor Law
- Series: Law Stories
- Type: Overviews
- Description: This book tells the story of the development of labor law over the course of nearly seventy years - beginning with Mackay Radio, one of the earliest cases under the National Labor Relations Act (NLRA), and ending with Hoffman Plastic, one of the most recent. It includes cases from the major topics in a basic or advanced course on Labor Law, describing not only the doctrinal evolution of law under the NLRA, but also the impact of the law on the lives of the people involved. The authors interviewed dozens of participants in the fourteen cases addressed in the book.
