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Labor Law
Rutgers University, Newark School of Law
Clancy, Chris

National Labor Relations Board – NLRB
·         National Labor Relations Act (NLRA) §3(a).
·         Board consists of five members, appointed by the President w/ the consent of the Senate, each member having a term of five years (staggered).
·         Board is quasi-judicial and quasi-legislative.
·         NLRA §3(d) – President shall appoint a General Counsel of the Board who serves a four-year term.
o   Exercise general supervision.
o   Final authority in respect of the investigation of charges and issuance of complaints under §10, and in respect of the prosecution of such complaints before the Board.
No court can review a decision of the General Counsel; it is a very political agency.
Counsel prosecutes the NLRB and NLRB cannot act on its own
New Board does not have to respect prior decisions of an earlier Board…rather, there is a current interpretation of the Board
Two Primary Functions:
Representation Proceeding
Decides who will be Represented and How So (see AFL v. Board)
The courts do NOT decide this.
§ Done by a Regional Board and do not have to have an attorney.
§ Party that loses can appealto regional director.
§ There is no appeal after appealing to the Director…BUT, if the Board oversteps its statutory authority, can go to Federal District Court
o   Complaint Proceedings
§ Someone brings a charge asserting that ER has violated a § of the Act or that the Union has violated a § of the Act
§ Field examiner or atty will decide whether there is probable cause to issue a complaint and make a recommendation to General Counsel.
§ If GC issues a complaint; appear before an Administrative Law Judge in the District Ct (now, a Hearing Examiner)
§ ALJ makes a ruling
§ There are no limits on what is admissible…i.e. rules of evidence, etc do not apply
§ Direct appeal to the NLRB available – §10
·         NLRA, Section 10(f): Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any circuit court of appeals of the United States in the circuit wherein the unfair labor practice in question was alleged to have been engaged in…the findings of the Board w/ respect to questions of fact if supported by SUBSTANTIAL evidence ON THE RECORD CONSIDERED AS A WHOLE shall in like manner be conclusive.
§ After court of appeals, can apply for cert to the S. ct.
The Common Law:
At C/L, it was unlawful for EEs to combine together for the purpose of raising wages even though ERs together could agree to raise prices under the theory of competition.
Double standard exists because employers are protected by free competition whereas the working-man is not protected. 
Collective action was deemed a criminal conspiracy to raise wages
Ends/Means Test
Used to resolve labor disputes
Ends = raising wages…Means = picketing, boycotting, collective bargaining
Even if the means used was peaceful, it would be illegal if the ultimate ends or objective of the means was to raise wages
Coppage v. Kansas: Violation of state labor act regarding coercion of EEs, laborer’s etc. Yellow dog contracts were used by ERs, requiring that EEs sign these agreements to withdraw from unions or be terminated. ERs now had a legal device, the K, to thwart union power it otherwise would not be able to control.
Holding: Court upheld ER’s right to create and enforce yellow dog contracts – Pitney held that the govt s/ not interfere w/ business decisions and that not allowing yellow dogs would deprive the ER’s right to contract. (5th Amendment right to liberty includes the right to contract for acquisition of property and for personal employment).
Today, the Norris-LaGuardia Act outlawed these Ks.
Dicta: Can it be doubted that a labor organization has the constitutional right to deny membership to those who will not agree to work with non-union members.
Case has never been explicitly overruled, but it is generally ignored. 
In Adair, Congress said the court could not prohibit yellow-dog contracts with railroad EEs.
Closed Shop – Union decides who the EEs are
Shop in which the EE, by agreement w/ a union, hires and retains in employment only union members in good standing
Made illegal under the Taft Hartley Act in 1947.
Union Shop – Union has control over the Ees
A shop in which the ER may hire anyone (union or non-union) BUT the EE must join the union w/in 30 days or union can ask ER to fire him.
In 1947, the Taft-Hartley Actallowed for union shops – meaning that union decides who co’s EEs are and that the union could keep out minorities and women. This meant that unions could deny membership to minorities and prevent them from obtaining work with a particular ER.
The Early Statutes:
Sherman Anti-Trust Act – sought competition
Enacted to prevent large corporations from combining to raise prices.
Every contract, comb

Today, this case would fall under §8(b)(4) and 8(b)(7) and would be protected
Great Northern Railway v. Brosseau: Suit was to restrain D from threats and acts of violence w/ connection to strike. 
Holding: Criticizing other federal judges for ignoring Clayton and abusing their injunctive powers against strikes – Clayton expressly allows for strikes and other courts had been unwilling to enforce that provision.
Courts were still issuing very broad injunctions
This case is the only instance of a federal judge avidly criticizing other judges on this issue
The Norris-LaGuardia Act of 1932
Enacted in response to judges ignoring Clayton and issuing injunctions against union activities
Congress wanted legislation to take away federal power to issue injunctive relief for labor disputes/relations – defined broadly under §13
Promoted recognition of unions by ERs and encouraged collective bargaining, while preventing injunctions
The activity must fall w/in the Act’s provisions AND outside of §4 in order for the injunction to be proper
For example: the labor union activity must NOT fall w/in §4, but must satisfy all elements w/in §7 in order for injunction to be allowed
§13(a)-(c): defines labor dispute broadly and includes secondary boycotts
§4(a)-(i): list of specific union activities protected by NL
§7(a)-(e): list of activities for which injunctions can be issued
When determining whether injunction is proper, read the provisions in this order: 
Is there a labor dispute as defined by NL
If there is a labor dispute, is the activity for which injunction is sought protected by NL?
If activity isn’t protected by NL, does that mean an injunction CAN be issued?
Hutcheson exception (see Hutcheson below)
Organized labor is exempted from anti-trust laws as long as the activity is in the union’s own self-interest and the union does not combine w/ non-labor groups (and t/f outside protection of NL Act)