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Labor Law
St. Johns University School of Law
Fernbach, Karen P.

 
Labor Law
Fernbach
Fall 2013
 
 
History of Labor Law
1.      1800s
a.       In 1800s workers had very few rights.
b.      Most important reason to join a union was job security. Most employees are at-will. If join union, only can get fired for “just cause”
c.       First unions were isolated groups of craft workers.
                                                              i.      They advocated unilateral negotiations b/t employee and employer.
1.      This was dictated by the refusal of employers to deal with unions
2.      Early 1900s
a.       American Federation of Labor (AFL) was formed in 1886.
                                                              i.      Consisted of 250,000 members
                                                            ii.      Basic Philosophy  
1.      Economic unionism
a.       Focused on collective bargaining for achieving economic gain. (reliance placed on negotiation to settle disputes)
2.      Exclusive Union Jurisdiction
a.       Each national union had its own sphere of jurisdiction into which no other union could trespass
                                                                                                                                      i.      Aim was to have all workers in a single occupation united and have jobs curtailed
b.      AFL grew to 2 million members in 1914
                                                              i.      Did this through organization campaigns, strikes and boycotts
c.       Employer Response
                                                              i.      Many resorted to self-help remedies – threats, labor spies, blacklists, and judicial relief.
3.      Early Policies toward to Unions
a.       Criminal Sanctions – employers (were afraid of unionization) used criminal sanctions against unions
                                                              i.      By 1880, this stopped and employers started using civil action (specifically injunctions)
b.       Civil Actions
                                                              i.      Employers tried to enjoin certain union activities
                                                            ii.      Courts recognized a general right to advance interest of workers, but viewed that right very narrowly
1.      Union activity could not be “inimical to the public welfare” and could not involve force to compel union membership or prevent “scabs” from taking jobs of striking members
a.       Legality of union activity depended on how broad/narrow a court chose to construe union objectives (see Gunter and Plant)
c.       Vegelahn v Gunter
                                                              i.      Facts – workers formed a patrol in front of V’s business. The patrol prevented him from carrying on his business. In process, workers uses persuasion and threats against ppl trying enter V’s premises
                                                            ii.      Issue – may a permanent injunction be issues against peaceful picketing
                                                          iii.      Holding – yes. (court enjoined picketing or other “interference” with persons on the employer’s premises)
1.      No one can lawfully prevent (peacefully or threatening) employers or persons wishing to be employed from the exercise of their rights
                                                          iv.      Dissent – Justice Holmes argued that the needs of workers to organize could justify even intentional infliction of temporary damage to an employer’s business – that short of force or threat of force, organized action such as picketing would be permitted
d.      Plant v Woods (one union threatened to strike to get rid of 2nd union)
                                                              i.      Court enjoined strikes and picketing to enforce a union demand that the employers hire only its members, rather than members of a rival union.
1.      The need for protection of the organization was not sufficient to justify interference w/the employer’s right to be “free of molestation”
                                                            ii.      Dissent – Holmes argued that the members’ purpose of strengthening union power b/f bargaining over wages and working conditions justified the strike.
4.      Antitrust Laws
a.       The Sherman Act
                                                              i.      Declared unlawful every k, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations.
                                                            ii.      Originally intended to guard against restraint of trade, it was also used as a basis for federal judicial intervention in labor disputes.
                                                          iii.      Loewe v. Lawlor (Danbury Hatters Case)
1.      Facts – Unorganized hat manufacturers brought suit against union that represented EEs at 70/82 hat manufacturers in the country and wanted all remaining hat manufacturers to join as well.  U was using threats, strikes, and secondary boycotts to allegedly interfere with Loewe’s interstate trade. 
2.      Holding – provisions of the Sherman Act are applicable to union activities, and to the degree that unions combine to conspire to restrain interstate trade, they will be liable for treble damages
a.       The Sherman Act prohibited any combination whatever to secure action which essentially obstructs the free flow of commerce b/t the states.
b.      The Clayton Act
                                                              i.      Passed to try to alleviate some of the problems with the Sherman Act.
                                                            ii.      §6  – Nothing contained in anti-trust laws shall be construed to forbid the existence and operation of labor organizations or to forbid/restrain unions from lawfully carrying out legitimate objects thereof
                                                          iii.      §20 – banned the issuance of injunctions in any case b/w ERs and EEs growing out of dispute concerning terms or conditions of employment
                                                          iv.      Duplex Printing Press v. Deering (emasculated the Clayton act)
1.      Facts – Machinist union members conducted secondary boycott and refused to work on printing presses manufactured by Duplex b/c Duplex had refused to recognize the union
2.      Holding – court held injunctions against secondary boycotts still allowed under the Clayton Act. 
a.       §6 of Clayton act (exempting unions from the Sherman Act) doesn’t apply because it only allows protects the lawful carrying out of legitimate objectives, not restraint of trade.
b.      §20 (barring injunctions in labor disputes) only applies those workers involved in actual dispute; and not to union members boycotting activities in the plants of other employers.
c.       Aside from the objective test courts used, “yellow dog contracts” were permitted at this time
                                                              i.      Yellow-dog K – agreements that ERs required EEs to sign, and in which the EEs promised not to join a labor unions on penalty of losing their jobs
Statutory Foundations of Present Labor Law
1.      Norris-LaGuardia Act
a.       EE Rights – EEs are granted the freedom of association, organization, and designation of representatives.
b.      Agreements contrary to NLRA – Any undertaking between an EE and ER contrary to the policy of the Act is not enforceable in federal court, specifically including any promise not to join a U (i.e. yellow dog K’s)
c.       Limitation on injunctions – No federal court can issue an injunction in a case arising out of a labor dispute, the effect of which is to prohibit persons interested in the dispute from:
                                                              i.      ceasing to perform work or quitting employment
                                                            ii.      becoming a member of a U
                                                          iii.      paying or withholding from persons participating in labor disputes, strikes, or unemployment any benefits, insurance, or monies due
                                                          iv.      assembling peacefully to promote their interests in the dispute
                                                            v.      Violent/destructive labor disputes can be enjoined by a federal court.
                                                          vi.      Effect of the Act
d.      No affirmative obligations on employers to negotiate w/unions. Rather, the act sought to aid union organizing and collective bargaining by changing common law precedents on the union’s role in society.
2.      The Railway Labor Act (RLA)
a.       Emphasis was on the peaceful settlement of labor disputes

ncial or other support to it; provided, that subject to rules and regulation made and published by the Board pursuant to § 6, an ER shall not be prohibited from permitting EEs to confer with him during working hours without loss of time or pay.
                                                          iii.      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization; provided,…
                                                          iv.      (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)
1.      8(a)(5) see below for cases (Linden, Brooks, Allentown, Levitz) – look them up if need be
(b) It shall be an unfair labor practice for a labor organization or its agents—
                                                              i.      (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7
                                                            ii.      (3) to refuse to bargain w/an ER, provided it is the representative of his employees subject to the provisions of §9(a)
(c) the mere expression of views, argument, or opinion shall not constitute an ULP if it contains no threat of reprisal or force, or promise of benefit.
(d) requires ER and the U to meet and confer at reasonable times, and to bargain in good faith. Requires ERs and Us to bargain collectively on “wages, hours, and other terms and conditions of employment, or in the negotiation of employment.”
Sec. 9 Exclusive representatives; employees' adjustment of grievances directly with employer
 
Jurisdiction, Organization, and Procedure of the NLRB
Jurisdiction – In General
Three factors determine whether EE or ER is covered by NLRA
                                                              i.      (1) Is there is a labor dispute within meaning of § 2(9)
1.      § 2(9) The term “labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
                                                            ii.      (2) Does the employer’s business fall within the meaning of commerce in § 2(6)
1.      This requirement is met if the ER engages in trade, transportation, or communication among the several states.
                                                          iii.      (3) Or, does the ER’s business activity fall within the meaning of “affecting commerce” in § 2(7)
1.      Affecting commerce – in commerce, or burdening or obstructing commerce or the free flow of commerce, or leading or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce
                                                          iv.      If interstate activities are minimal, the NLRB has discretion to decline jurisdiction
Jurisdiction over ERs
                                                              i.      See § 2(2) for who is covered
                                                            ii.      ERs not covered by NLRA
1.      Government or union employers
2.      Companies w/municipal functions (private firefighting comp)
3.      Religious schools
4.      Originally health care institutions were excluded; 1974 health care amendments to NLRA included