Spring 2006
PAD II – LABOR LAW
PROFESSOR CLANCY
I. Labor as a Commodity: The Rise and Decline of the Double Standard
A. Introduction
1. National Labor Relations Act (NLRA)
· Every president appoints 4 members, and is able to appoint a General Counsel w/ unlimited discretion as to whether or not to issue a complaint
2. National Labor Relations Board
a. No court can review a decision of the General Counsel; it is a very political agency
b. Two Primary Functions
i. Decides who will be Represented and How so
o The courts do not
o Done by a Regional Board; Does not have to be an attorney present, could be an ee of the Regional Office
o Party that loses can appeal to the Regional director?
o there is no appeal from this process
o If the Board oversteps its statutory authority, can go to Federal District Court, but otherwise, no remedy
ii. Complaint Proceedings
o GC issues a complaint; appear before an Administrative Law Judge (now, a Hearing Examiner)
o There are no limits on what is admissible; Rules of Evidence do not apply
o Direct appeal to the NLRB available
o 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.
o After court of appeals, can apply for cert to the S. ct.
c. In either proceeding, there is NO JURY; no use of the Federal District Courts
B. The Common Law
1. At common law, it was unlawful for ee’s to combine for the sake of raising their wages even though er’s could agree to raise prices under the aegis of competition
2. Doub
prohibit yellow dog K’s w/ RR ee’s.
c. Closed Shop: A shop in which the ee, by agreement w/ a union, hires and retains in employments only union members in good standing. Made illegal under the Labor Management Relations Act in 1947.
d. Union Shop: A shop in which the er may hire nonunion ee’s on the condition that they join a union w/in a specified time (usu. 30 days)
e. The dicta of this case said that unions have an inherent right to deny membership to whomever they want. In 1947, the Taft-Hartley Act allowed for union shops. This meant that unions could deny membership to minorities and prevent them from obtaining work with a particular er.
e. Coppage has never been explicitly overruled, but it is generally ignored.
C. Early Statutes
1. Sherman Anti-Trust Act
