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Labor Law
Rutgers University, Newark School of Law
Pope, James Gray

 
Labor Law- Pope Fall 2013
 
1)     Foundation of Industrial Relations and Labor Law
a)     Slavery and Indentured Servitude
i)       Bacons Rebellion
(1)  Factors:
(a)  Growing tobacco not for use but for sale (profit)à want to maximize output (plant yield)
(b)  Separation of owners (what is needed to produce things) and people who have labor
(c)   Shift to Production for Profit (from production for use)à increase in inventions
(d)  A lot of industries that produce capital (produce a means to production)
(i)    If you don’t have growth then this section of economy will go into “tail spin”
(e)  The Market (Simple Commodity Exchange)
(i)    When you buy things that are not produced:
1.      Landà If someone isn’t selling or cost is too high then the market suffers
2.      Laborà how do you guarantee someone does the job you pay him to do?
3.      Indentured Servants
a.       Slavery
(2)  Wants to protect land by fighting Native Americans, BUT has to fight Governor first
(3)  Laws post rebellionà to use racism to separate servants from land owners
(a)  Put into effect by legislature elected by wealthy land owners
(b)  Makes it difficult for working people to cooperate across state lines
(c)   Takeaways:
(i)    First appearance of word “WHITE” in law
(ii)  First penalty for defamation of white
(iii)Crime for whites to marry blacks
1.      Penalizes whites and not backs
a.       “We whites are boycotting potential black marrying counterparts and anyone who violates is a RACE TRAITOR”à labor law is about SOLIDAIRTY vs Lack of SOLIDARITY
(iv)Lawà negro can’t lay a hand on the Christianà takes away self-defense from black people
1.      White indentured servants and non-slaver owners finally have law that puts them above black people (slave or free)
(v)  Previous to Bacon’s Rebellionà if you’re black slave and get baptized not free from servitude
1.      Break from Christianity not allowing Christians to be enslaved
ii)     The Slave Rebellion of NYC of 1712
(1)  Boston Massacreà once elite weakened, more cross race interactionsà working class had more solidarity
(2)  Art IV, sec 2, cl. 3 (Fugitive Slave Clause)à extends basic part of slave law into northern states because
iii)   Prigg v PA ***
(1)  Took a broad view of Fugitive Slave Clause
(a)  Only clause that dealt specifically with labor (erased by 13th amendment)
(b)  Purposive reasoning blowing off the formalist reasoning
(2)  National Power over States rights
(3)  Interests of Free Black Person does not get discussed at all
(a)  Even if person has DP rights, all the balance goes the other way
(4)  Post Priggà blacks weren’t even in the working class, and thus weren’t useful as allies to the white unions
(a)  Even black people in the north were presumptive slaves; first undocumented workers in the US
b)     “Free labor” and the law between the Revolution and the Civil War
i)      Nelles, The First American Labor Case
ii)    Women Work, and Protest in the Early Lowell Mills
iii) Rice v Dwight Mfg. Co.
c)      Industrial Unionism and the Pullman Strike
i)       Tends to be, but isn’t always inclusive
ii)     Debbs Revolution
(1)  Pullman Strike 1899à 5500 men in one town spread to nationwide strike
(a)  Only strike in US History of revolutionary stroke on continental Euro Model
(2)  American Railway Unionà Held 18 day strike against Northern RR, restored 3 wage cuts
(3)  Pullmanà had a huge surplus and still cut wages; workforce cut too
(a)  Pullman’s workers lived in work camps and paid heavy taxes to work there
(i)    Though workers could’ve moved out, Pullman gave jobs to those who lived in his camps
(4)  Revolution started slowà Day 1: 3500à Day 4: 125k
(a)  Covered 25 states/territoriesà relatively peaceful early one; 25 deaths by end
(5)  Government acted with injunctionà citing the violation of Sherman Ant-Trust Act and Interstate Commerce Act (Both Anti-Monopoly)
(a)  Injunction Based on 2 Criteria:
(i)    Damage would be irreparable unless checked prior to action
(ii)  Alleged criminality was part of illegal/misconduct conspiracy
(b)  Courtà irreparableà expectancy of future business; expectancy of experienced workers
(i)    Damaging/deflating “probable expectation’s” of management for future businessà malicious conspiracy
(ii)  **Court never said “expectancy” of future wages was a property right**
(6)  No legality in Grover Cleveland’s actions
(a)  No federal property damage
(b)  No mail cars stopped
(c)   Bypassed state legislature/ governor of Illinois
iii) The Pullman Boycott and Making Modern America
iv)   In re Debbs
(1)  Issueà Can government intervene to forcibly stop obstruction? If so, can court of equity issue injunction to do so?
(2)  Post office protection is in government reachà extended to railroad because railcars used to transport mail
(3)  Government can involve itself when wrongs complained off affect the public at large
(a)  Doesn’t matter that there is no pecuniary interest in the matter
(4)  Just because criminal actions are involved doesn’t mean court of equity can’t involve itself
(a)  Dissent say that it violates right because there is no trial by juryà normally used in a criminal case
(i)    Courtà injunction prevents the irreparable harm of mob riots
v)     Writ of InjunctionàIn re Debbs
vi)  The Debs Revolution
vii)           The Debs Injunction
viii)         Government by Injunction
d)     Reconstruction and the Market in Black Labor
i)      US v Cruikshank
(1)  Even after 13th Amendmentà blacks still excluded from organizations of working class (unions and political parties)
ii)     Connor v Shaw
iii)   Commonwealth v Hunt
(1)  An organization of workers to get higher wages there is nothing per say with that and nothing per say wrong with them refusal to work with others not part of their union
(2)  Government by Injunctionà okay to organize a union as long as your means are lawful and purposes/ objectives are lawful
iv)   What’s Left of Solidarity
(1)  Court Decisionsà fostered racial division, promoted insecurity among workers, placed burdens on class-based organizing
(a)  Hurt labor and protected segregation
(i)    Pushed leaders to volunteerismà rely on self not state for resources
(2)  Classà more than societal position
(a)  Ex. Work people do; lives; economic and social relations between groups
(3)  Hodges v USà 13th Amendment did not

c servants, or employed by parent or spouse
(2)  Sec 7à Right to Organize
(a)  Rights of Employees to self-organize (join, form, or assist labor group)
(b)  Purpose of collective bargaining or mutual aid or protection
(3)  Sec 8à Uniform Labor Practices
(a)  (a) (1)à forbids employers to interfere with Sec 7
(b)  (a) (2)à no interfering or contributing to unions by employer
(c)   (a) (3)à no encouraging/ discouraging unions through hiring
(d)  (a)(4)à can’t fire/discriminate based on this act
(e)  (a)(5)à bargain collectively with employees
(4)  Sec 9à Representation elections (almost makes unions somewhere between a free organization and a government appointed body)
(a)  Elected by majority of employees or selected as a unit to deal directly with the employer
iv)   Aliquippa: The Company Town
(1)  Company has physical control of entire town
(2)   Divided into ethnical enclaves, and no lateral streets, to fully isolate racial groups
(a)  Idea was that they won’t form unions if they don’t associate
(b)  They would punish groups or ban them if they got out of control
v)     NLRB v Jones and Laughlin Steel Corp
(1)  P found D violated NLAà charged with discriminating against members of unions with hiring/tenure and coercing/intimidating with employees regarding unions
(2)  Pà D cease and desistà Court of Appeals denied
(3)  SCà NLA is constitutional and protects rights of employees to engage in unions
(a)  Commerce Clauseà court has power to regulate when intrastate effects interstate commerce
(i)    Even though strikes or stoppages may be focused primarily on intrastate (local) issues, it ultimately could effect interstate commerce
(ii)  Rights of employees to organize is essential to industrial peace
vi)  NLRB v Fansteel
vii)           Sit Down Strikes
viii)         Violence in Little Steel
ix)  Elk Lumber
(1)  Board surrendered to the Court of Appeals
(a)  “However, both the Boards and the courts have recognized that not every form of activity that falls within the letter of this provision is protected. The test is whether the particular activity involved is so indefensible as to warrant the employer in discharging the participating employees. Either an unlawful objective or the adoption of improper means of achieving it may deprive employees engaged in concerted activities of the protection of the Act.”
(2)  Vague notion is defensibility, justice or what injustice of employer’s action is taken off the table in consideration
(a)  Case is decided wrong because the employees reacted to the employer’s unlawful action