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Labor Law
John Marshall Law School, Chicago
Berendt, Gerald E.

G. Berendt Fall 2011
Labor Law Outline
I.                 The NLRA and NLRB (Assignments 1 & 2)
A.    Evolution of Labor Law
1.      Generally
                                                                                i.      Labor Law = the regulatory scheme of “collective bargaining” established under the NLRA (Wagner Act of 1935 and as amended by the Taft-Hartley Act of 1947)
                                                                              ii.      Relationship b/t employees and employers in the presence of a union
                                                                            iii.      Motivation to join a union: strength in numbers in negotiations, protection, economics (to be treated fairly), union will negotiate on basis of seniority, not performance
a.       Changes employment at will
b.      Montana is unique because employment is for cause there, not at will
                                                                            iv.      Administered by the NLRB instead of by the courts
a.       Primary forum for adjudication is an administrative tribunal
                                                                              v.      Largely federal law – states cannot prescribe or affect it
                                                                            vi.      Defining and central theme = unionization and collective bargaining
                                                                          vii.      Once organized, the union is the single, collective voice for the employees, whether they support the union or not, and they are forbidden to bargain individually with the employer
a.       Employer must negotiate in good faith for the terms and conditions of employment
2.      Pre-NLRA
                                                                                i.      1850s – Formation of the first “national” unions, representing one craft or occupation in different localities
                                                                              ii.      1869 – Noble Order of the Knights of Labor
a.       Merged trade union and political endeavors
b.      Only admitted the skilled and unskilled workers and farmers but excluded professionals
c.       Chicago “Haymarket Riot” ended its popularity
                                                                            iii.      1880s – American Federation of Labor
a.       Did away with the radicalism of the Knights and focused on a narrower trade-union philosophy that lessened emphasis on social reform through politics and more on building disciplined unions, which thru collective bargaining, would be “business-like” in improving wages and working conditions
b.      Began the political philosophy that lasted through 1920s of “voluntarism” = a commitment to the private ordering of labor relations thru collective bargaining
c.       1890s – leading labor organization but remained a “craft” union
                                                                            iv.      1890 – United Mine Workers organized the first permanent “industrial union”
3.      At Common Law
                                                                                i.      Originally, union activity was held as criminal conspiracy (Philadelphia Cordwainers)
                                                                              ii.      Commonwealth v. Hunt ended criminal conspiracy indictments – shifted labor cases from criminal to civil courts
                                                                            iii.      Holmes Dissent in Vegelahn v. Guntner
a.       Policy of allowing free competition justifies intentional inflicting of temporal damage, including interference with business, when it is done as an instrumentality in reaching victory in labor dispute
b.      To exclude the relationship b/t employers and employees from this competition would be to narrow it too far – capitalism is good for the employer is business, it should be allowed and good for employees too (supply and demand in labor relations)
c.       Conduct done by a group is not unlawful if an individual could do it by himself
                                                                            iv.      Anti-trust laws – Courts used anti-trust reasoning to attack organized labor – amendment to the Clayton Act attempted to free labor from anti-trust arguments but was struck down by the SC
4.      20t h Century Legislation
                                                                                i.      Railway Labor Act
a.       Prohibited interference, influence, or coercion by either party over the self-organization of employees
b.      Duties imposed: to make/maintain agreements about rates of pay and working conditions, abide by the agreement until settlement procedures are exhausted (negotiation, mediation, voluntary arbitration, and conciliation) before resorting to self-help
c.       Formed the National Railroad Adjustment Board and the National Mediation Board
                                                                              ii.      Norris-LaGuardia Act (1932)
a.       Congress took away courts’ jurisdiction over labor – exercised authority under Art III to limit jurisdiction
                                                                                                                                      i.      Taft-Hartley gave it back a little bit in context of K “no strike clauses” – courts can enforce the K violation if union strikes
b.      Promoted unionization (in response to court’s growing hostility toward organized labor), collective bargaining, and concerted activities
c.       Set limitations on the jurisdiction of federal courts to issue injunctions in labor disputes
                                                                            iii.      National Industrial Recovery Act (1933)
a.       Struck down as violating the delegation doctrine and separation of powers
                                                                            iv.      Wagner Act (1935) – written by Leon Keyserling from SC
a.       Original NLRA
b.      Almost vetoed by FDR – Frances Perkins convinced Eleanor R to get FDR not to veto it
c.       Supplied shield against exercise of employer power to frustrate the organization of employees for collective bargaining
d.      Declared “unfair labor practices” of employers that violated basic rights of employees
e.       Imposed a duty on employee to bargain with the union
f.       Heavily favored labor organizations
g.      Formed the NLRB
h.      Constitutional under NLRB v. Jones & Laughlin Steel – effect is that it legitimized the new “branch” of government in administrative agencies like the NLRB
i.        §7 gave employees the right to unionize and collectively organize and provided remedies for violations – union was the exclusive bargaining rep to determine wages/hours/benefits
j.        The War years b/t Wagner and Taft-Hartley introduced arbitration/mediation as primary dispute resolution so that strikes would not interrupt the war effort
                                                                                                                                      i.      Unions struck anyway leading to a negative reaction to organized labor and a power shift in Congress to become Republican
                                                                              v.      Taft-Hartley Act (Labor Management Relations Act) – 1947
a.       Vetoed by Truman but Congress overruled veto
b.      Retained the unfair labor practices for employers in Wagner Act and reaffirmed the endorsement of collective bargaining
c.       Gave president authority to declare a national emergency dispute to force the union and employer back to bargaining table and stop utilizing self-help tactics
                                                                                                                                      i.      Truman invoked it in Youngstown Steel to take over steel industry after a strike and SC struck it down
d.      Added provisions defining unfair labor practices by labor organizations and gave workers the right to refrain
                                                                                                                                      i.      Appeared to take away the “secondary boycott” (picketing customers of the employer until the customer no longer is a customer of the employer)
e.       Increased NLRB members from 3 to 5 and separated its prosecutorial and judicial functions
f.       Suits in federal courts allowed to enforce collective-bargaining agreements
g.      Right to Work laws = reaction to compulsory unionization in the collective bargaining agreement (“union compulsory clause” forces all employees to join the union w/in 30 days)
                                                                                                                                      i.      §14 left this provision to the states
h.      §301 – exception to the Norris-LaGuardia Act – provides that an employer/employees can file in federal court for breach of K
                                                                            vi.      Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act) – 1959
a.       Curbed abuses and improper union activities – amended the secondary boycott prohibitions and added prohibition against blackmail picketing (used to hurt the business enough to get recognition by the union)
b.      Imposed fiduciary responsibility on unions – sometimes called the Union Members Bill of Rights
                                                                                                                                      i.      Fairness and financial disclosure

                                                                                                  ii.      If employer controls the manor/result = employee
                                                                                                                                  iii.      If employer contracts for result but nothing to do with the manor of execution = Independent Contractor
g.      Agricultural workers
                                                                                                                                      i.      Excluded since 1935 – made sense during that period of time b/c of the recession and farm ownership
h.      Supervisors
                                                                                                                                      i.      §2(11) defines supervisor as an individual who exercises independent judgment in performing their employment function, such as directing others, to hire, transfer, suspend, lay off, recall, promote, adjust grievances, etc. that is not merely of a routine or clerical nature
                                                                                                                                    ii.      Context of nurses:
1.      Nurses act on behalf of the employer, not exclusively on behalf of patients (NLRB v. Health Care)
2.      Nurses generally “assign” tasks to others and often “responsibly direct others” (NLRB v. Kentucky River)
i.        Managers
                                                                                                                                      i.      Non-statutory exclusion of managers – employer should have the loyalty of its managers who have authority to commit management resources to set institutional policy or implement policy at the highest levels
                                                                                                                                    ii.      University faculty: termed “managerial” so they are excluded from the Act (Yeshiva University) but no hard and fast rule is adopted about faculty members
j.        “Confidential” employees
                                                                                                                                      i.      Excluded even if they are statutory employees under §2(3)
                                                                                                                                    ii.      Test = whether an employee assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations (labor-nexus test)
                                                                                                                                  iii.      Individual must have some connection to personnel and collective bargaining and either have access to materials or be present with those decisions are made
                                                                                                                                  iv.      Example: secretary taking notes during meeting, person in charge of personnel files
3.      Organization
                                                                                i.      Function = to prevent and remedy violations of the NLRA (unfair labor practices) and to conduct secret-ballot elections on the question whether employees which to be represented by a union
                                                                              ii.      Members are appointed to 5 year terms by the President, subject to Senate confirmation
                                                                            iii.      5 members that sit in 3 member panels
                                                                            iv.      Adjudicative and prosecuting functions were separated in the Taft-Hartley Act