Labor Law Outline
Gregory – Fall 2012
1. Work and Unions Before the Civil War
a. Commonwealth v. Pullis, 1806)
i. (often called the “Philadelphia Cordewainers’ Case”
ii. First reported labor case in U.S.
iii. Issue in the case was whether workers could legally act in concert for this purpose.
iv. The case held they could not: “an act innocent in an individual is rendered criminal by a confederacy to effect it.
b. VEGELAHN v. GUNTNER : Facts: Following upon a strike of P’s workmen, Ds conspired to prevent P from getting workmen, and thereby prevent him from carrying on his business unless and until he will adopt a schedule of prices which has been exhibited to him, and for the purpose of compelling him to accede to that schedule, but for no other purpose. Ds are using persuasion and social pressure and threats of injury. Previous Holding: Patrol is not unlawful. Persuasion to break existing contracts is unlawful. Unlawful to interfere with P’s business by obstructing or physically interfering with any persons in entering or leaving P’s premises. Rule: An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. A conspiracy to interfere with P’s business by means of threats and intimidation is unlawful even though such persons are not bound by contract to enter into or to continue in his employment; and the injunction should not be so limited as to relate only to persons who are bound by existing contracts.
i. Dissent: Former holding goes further and forbids D to interfere with P’s business by any scheme organized for the purpose of preventing any person or persons who now are or may be hereafter be desirous of entering into employment with P. Most objectionable is the refusal of social intercourse, and even organized persuasion or argument, although free form any threat of violence, either express or implied. Depends on how you threaten and how you compel.
Plant v. Woods : Facts: Contest for supremacy between two labor unions of the same craft, having substantially the same constitution and by-laws. Difference is that P’s union is affiliated with a national organization HQ in Lafayette, IN while D’s union is affiliated with a national organization HQ in Baltimore, MD. P union was composed of workmen who in 1897 withdrew from D’s union. Members of D’s union declared all painters not affiliated with D would be considered non-union and voted to notify bosses of this. D’s union members have gone to P union members’ places of work and asked their employers to induce them to sign papers showing they agree to be a part of D’s union. No threat of violence; courteous but they should fear trouble in their business if they continue to employ such men [i.e. strike]. Holding: The purpose of Ds was to force Ps to join D’s association and to that end they injured Ps in their business, and molested and disturbed them in their efforts to work at their trade. It is true they committed no acts of personal violence, although they threatened to do something which might reasonably be expected to lead to such results. In their threat, however, there was plainly that which was coercive in its effect upon the will. Such conduct is intolerable and against the spirit of the law.
i. Dissent: Conduct is actionable unless justified. Justification is based upon their motive. I agree if a boycott or strike is intended then it’s illegal. Purpose was not related to wages, it was to strengthen D’s society to make it stronger in order to better fight on questions of wage, etc. Unity of organization is necessary to make the contest of labor effectual. It is lawful for a body of workmen to try by combination to get more than they are now getting, and to that end to strengthen their union by the boycott and the strike.
d. Early Rules on Secondary Activity
i. Secondary activity: activities in which the union tries to pressure or persuade parties beyond the primary parties (the union and employer it has a direct dispute with).
ii. Before the NLRA, courts generally found secondary activities to be illegal
e. LOEWE v. LAWLOR –Facts: The goal of the operation was for UHU to gain union recognition as the bargaining agent for employees at Loewe & Co. Loewe & Co. sued the union for violating the Sherman Antitrust Act, alleging that UHU’s boycott interfered with Loewe’s ability to engage in the interstate commerce of selling hats. Holding: The Court’s decision had the effect of outlawing secondary boycotts as violative of the Sherman Antitrust Act, in the face of labor union protests that their actions affected only intrastate commerce. It was also decided that individual unionists could be held personally liable for damages incurred by the activities of their union
f. Norris-LaGuardia Act of 1932 –
i. § 3 of the Act made yellow-dog contracts unenforceable.
1. an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union
ii. Barred courts from using injunctions in most nonviolent labor disputes
g. Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940). Involved a violent strike for the end of a closed shop. The Supreme Court held that primary activities, for the end of improving wages, hours, health or safety, or union recognition, did not violate anti-trust laws.
h. United States v. Hutcheson, 312 U.S. 219 (1941). Hutcheson involved a criminal anti-trust prosecution against a union engaged in a jurisdictional dispute (two unions disagreeing about whose members had the right to do certain work for the employer, Anheuser-Busch). Defendant (the Carpenters’ union), used various tactics, including strikes and pickets at the primary employer (Anheuser-Busch) and at secondary employers (e.g., a separate construction company doing work for the primary employer), pickets at another employer, and a campaign urging that union members not buy Anheuser-Busch beer. Holding: The court stressed that, “[s]o long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under § 20 are not to be distinguished by any judgment regarding the wisdom or unwisdom . . . the selfishness or unselfishness of the end of which the particular union activities are the means. Effect: exempted secondary activity from federal prosecution
2. Creation of NLRA
a. Four main goals
i. Stability and labor peace
ii. Congress wanted to encourage unionization, collective bargaining, and even industrial democracy
iii. To provide a fair but neutral playing field, allowing unions and employers to settle their own disputes, without the government setting terms
iv. To bring the law into conformity with the reality of union organization.
3. The Labor Management Relations Act of 1947 (Taft-Hartley)
a. The most significant changes Taft-Hartley made:
i. Added union ULPs, contained in the new § 8(b).
ii. Made the closed shop illegal in amendments to § 8(a)(3)
iii. Added the “right to work” provision in § 14(b)
1. (only provision in the NLRA that permits states to choose among options for NLRA rules) – allows states to make any form of union security agreement illegal.
iv. § 7 was amended to make it explicit that workers had a right to “refrain from” certain § 7 activities
v. Added § 301, which provided federal court jurisdiction over suits alleging a violation of a collective bargaining agreement.
4. The Labor Management Reporting and Disclosure Act (Landrum-Griffin)
a. tightened even further the restrictions on secondary boycotts
i. limited the right to picket employers for recognition. § 8(b)(7)
ii. added significant provisions regulating the internal conduct of unions and rights of individual union members vis-a-vis their unions
a. EMPLOYEES” UNDER THE NLRA AND PUBLIC-SECTOR LABOR LAWS
a. The Wagner Act’s Definition and Exemptions
i. 2(3) – The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise.
ii. Expressly excluded two categories of “employees:
1. “any individual employed as an agricultural laborer,” and
a. to workers who are either (1) directly engaged in farming: cultivating, tilling, growing, harvesting, “dairying,” raising animals or insects; or (2) other practices performed by a farmer or on a farm incident to these farming operations.
2. “any individual employed in the domestic service of any family or person at his home.”
b. NLRB v. Hearst Publications, 322 U.S. 111 (1944
a. Issue: whether newsboys selling newspapers on the streets of Los Angeles were “employees” of those newspapers and, therefore, covered by the NLRA
b. Test: Restatement of the Law of Agency which held that a worker is a “servant” in any situation “in which the [worker’s] physical activities and his time are surrendered to the control of the master
i. must be answered primarily from the history, terms and purposes of the legislation
ii. Rutledge interpreted the NLRA as evidencing congressional intent to subject the Board’s assessments only to deferential judicial review
c. NATIONAL LABOR RELATIONS BOARD v. UNITED INSURANCE CO. (SCOTUS 1968) Facts: United Insurance Company used “debit agents” to perform various insurance business functions. The Insurance Workers International Union won a certification election and sought to represent the debit agents. United Insurance refused to recognize the union claiming that the agents were “independent contractors” rather than “employees.” Issue: Whether these agents are “employees” who are protected by the National Labor Relations Act or “independent contractors” who are expressly exempted from the Act Holding: They are EMPLOYEES Rationale: In such a situation as this there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.
d. Roadway Package System Inc., 326 N.L.R.B. 842 (1998)
a. The Board rejected the employer’s argument that the common-law test amounted to a “right to control” test and that factors relating to “control” were most important. The Board reaffirmed that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive
i. the drivers here do not operate independent businesses, but perform functions that are an essential part of one company’s normal operations;
ii. they need not have any prior training or experience, but receive training from the company;
iii. they do business in the company’s name with assistance and guidance from it;
iv. they do not ordinarily engage in outside business;
v. they constitute an integral part of the company’s business under its substantial control;
vi. they have no substantial proprietary interest beyond their investment in their trucks; and
vii. they have no significant entrepreneurial opportunity for gain or loss.
e. Dial-A-Mattress, 326 N.L.R.B. 884 (1998)
a. Different result than Roadway ^ – , their separateness from Dial is manifested in many ways, including significant entrepreneurial opportunity for gain or loss
f. Public Sector
a. New Jersey State Judiciary and Communications Workers of America, 29 NJPER & 76 (NJ PERC 2002), rejected a claim that free-lance interpreters (AFLIs”) working for courts should be excluded from a bargaining unit as independent contractors.
i. New Jersey Legislature expanded the definition of “employee” in N.J. Stat. Ann. ‘ 34:13A-3(d) to encompass any “public employee.” The Legislature . . . did not copy the NLRA’s exclusion of “independent contractors.”
ii. Legislature decided that “employment” is but one of three ways to hold a position in the service of a public empl
tion over relationships that are “primarily educational” is consistent with these principles. [T]he student-teacher relationship is based on the “mutual interest in the advancement of the student’s education,” while the employer-employee relationship is “largely predicated on the often conflicting interests” over economic issues.
a. Because the collective-bargaining process is fundamentally an economic process, subjecting educational decisions to such a process would be of “dubious value” because educational concerns are largely irrelevant to wages, hours, and working conditions.
o. In the public sector, however, the rule is often more inclusive.
p. Undocumented Workers
a. The Board has held consistently that undocumented workers – non-citizens working in the United States who do not have immigration documents authorizing their presence and/or their work – can be “employees” under NLRA ‘ 2(3)
b. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984), the Supreme Court upheld the Board’s interpretation. “[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions
c. Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002) undercut some aspects of Sure-Tan. The majority in Hoffman Plastic stated in a footnote that “[o]ur first holding in Sure-Tan is not at issue here and does not bear at all on the scope of Board remedies with respect to undocumented workers.” CT HELD – held that awarding back pay to an undocumented worker as a remedy for his employer’s ULPs would be inconsistent with the “comprehensive scheme prohibiting the employment of illegal aliens in the United States” enacted in the Immigration Reform and Control Act of 1986 (IRCA).
d. Rule that these cases provide – while undocumented workers are “covered” by the Act, they cannot secure back pay, reinstatement, and some other remedies if their rights under the Act are violated by an employer who “innocently” employed them
q. The Special Case of Public-Sector Attorneys
a. Attorneys fairly high up in an agency may be excluded as managers or as supervisors (if the state public-sector statute excludes supervisors).
b. City of Newark v. Ass’n of Government Attorneys,788 A.2d 776 (N.J. App. 2002) rejected claims that covering lawyers created an “appearance of impropriety” under ethical rules or otherwise violated the duty of loyalty that lawyers owe their clients
c. Minority of jurisdicitons EXCLUDE most or all public sector lawyers.
i. Ex. N.Y. Civ. Serv. Law ‘ 201(7)(b) (excluding as managers, “assistant attorneys general, assistant district attorneys, and law school graduates employed in titles which promote to assistant district attorneys upon admission to the bar.
r. “Employers” in the Private and Public Sectors
a. The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly.
b. § 2(2) does expressly exclude certain categories of employers from coverage
c. Public sector labor laws tend to define who is a covered employer together with who is a covered employee by listing the occupations or category of employees covered
d. In the private sector, despite the broad scope of the language in ‘ 2(2), three limitations have been imposed for reasons external to that provision’s text.
i. (1) The Board has never had sufficient resources to regulate every employer in the United States. As a result, the Board has traditionally declined to assert jurisdiction over certain employers based on the annual dollar volume of business they conduct.
ii. (2) Constitutional – First Amendment limits the scope of the Act’s coverage of religious institutions
1. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), however, the Supreme Court applied a longstanding principle of statutory interpretation to hold that Congress did not intend the Act to cover religious schools: “an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available.”
2. The Board subsequently extended Catholic Bishop to refuse jurisdiction over religious schools run by lay directors rather than a church
iii. (3) Comity with foreign governments and sovereign Indian tribes within the United States. While Congress can enact laws that apply beyond the territorial boundaries of the United States, the Supreme Court has adopted a general presumption against application of American laws in foreign territory in the absence of express congressional intent favoring it.
1. The Board has adopted an “effects” test to determine whether conduct is truly extraterritorial: the conduct must occur outside the United States and cause no effects within the United States.