LABOR LAW OUTLINE
APEX Paper Casefile (The Exclusivity of federal regulation over labor relations)
· Issue >>> Preemption
· “Garmon Preemption”
o stems from San Diego Building Trade Council v. Garmon
o §7 >>> purpose of statute is to protect concerted activity
o §8 >>> describes unfair labor practices
o preempts actions protected by §7 or prohibited by §8
§ federal jurisdiction
o exceptions
§ 1) peripheral to NLRA
· if law targets labor-relation, unlikely to have peripheral effect
§ 2) deeply-rooted in state/local gov’t
· “Machinist Preemption”
o stems from International Association of Machinists v. WI Employment Association
o looks @ activities that are neither protected nor prohibited
§ in such cases, there is preemption
§ this area is intended to be left unregulated
§ use of economic weapons such as “self-help”
Casefile 1.0 – Re: A Lawyer’s Role (Remedies for violations of the NLRA)
· issue >>> employer wants to fire employees attempting or organize union
· can’t fire someone for wanting to unionize
· no legal prohibition against terminating or disciplining employee
o so long as action isn’t tainted by anti-union animus
· possible remedies for fired employee?
o Injunction
o Typically, an order to reinstate and/or an order to pay back wages
§ Back wages >>> when they got fired to when they got a new job
· Mitigation of damages is in effect
o Total damages will be small, and potentially smaller if employee mitigates damage
· Ethical implications
o Not allowed to assist client in breaking the law
Casefile 3.0 – Re: Let It Snow, Let It Snow, Let It Snow (Protections Afforded Workers Under the NLRA Absent a Union)
· Issues >>> was this a group/concerted activity?
o Is it protected by NLRA b/c it is under working conditions?
· §7 of NLRA
o “…and to engage in other concerted activities for the purpose of mutual aid or protection”
§ applies to employees covered by act
· to be covered by act has to be concerted and protected
· Concerted Activity
o Need to have a labor dispute
§ Any controversy concerning terms or conditions of employment
§ This requirement goes more towards whether the act was protected
o Individual Act
§ If you act individually and you assert a statutory right it isn’t a concerted activity
§ If you act alone and assert a right under a collective bargaining agreement, it is a concerted activity
§ In order for an individual’s action to be deemed concerted, there needs to be some nexus between an individual action and the collective action
o If it is more than one worker, do not need to establish the nexus
o Others don’t have to join in your activity, the effort to solicit their support is sufficient to make the activity concerted
o Method of Protest Issue
§ Not all methods are protected
· Such as violence or destruction of property
§ “arbitrary unannounced interruptions of work”
Casefile 4.0 – Re: Don’t Throw It To Him (The Exclusive Representation Principle)
· if the negotiations are not completed by the time an old contract expires
o 1) parties will agree to continue old contract until new one is negotiated
o 2) labor law prohibits employer from changing terms and conditions of employment until it satisfies its duty to bargain
§ can’t implement changes until impasse is reached
· §9(a) exclusive right of representation
o once a union has been designated as a representative of a group of employees by a majority of the employees, the majority decision determines that the union will be the representative of all the employees in the unit
o gives rise to the possibility that individuals who either don’t want to be represented by the union or who do want to be represented by the union but disagree with a position the union has taken may engage in activities at odds with the goals or strategies being pursued by the union
§ how does the statute and the courts deal with that
o rule/test
§ empl
ard, it has to commit an unfair labor practice, have the union file a charge against it, and then in defending itself against that charge, it can contest the election
o Judicial review availability more limited for union
· Leedom exception
· “a district court has jurisdiction under Leedom to review NLRB decisions relating to representation proceedings only ‘where the Board exceeds its delegated powers or ignores a statutory mandate, and the absence of judicial review would sacrifice or obliterate a right created by Congress’”
· if Board violates act and there is no effective way to obtain judicial review for employer, district count can intervene
· what is the standard for election conditions
o from General Shoe Case (page 8 of Casefile)
· “laboratory conditions”
· “When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again”
· takes little to disrupt these conditions
· general rule is that any prolonged conversation, irrespective of content will be deemed improper enough to require a new election to be held
· Handbill issue
o Different rules for union/agents and 3rd parties
§ Unions/agents >>> “if the conduct interfered with the employees’ exercise of free choice to such an extent that it materially affected the results of the election.
§ 3rd parties >>> if the conduct “created such an atmosphere of fear and reprisal that the rational, uncoerced selection of a bargaining representative was rendered impossible.”
