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Labor Law
Stetson University School of Law
Brudney, James J.

Labor Law
Prof. Brudney
Fall 2009

I. Intro
§ Labor law relationship btwn mgmt and workers.
§ Formed out of the use of capital
§ Rights of workers to work collectively through a labor union, instead of on an indiv. basis
§ Collective Bargining: To give workers a voice through a labor union if they so choose to join it.
§ Labor law is NOT: Employment discrimination (sex, race, etc.), state and fed law about indiv. Workers disputes with employers (OSHA) and also public employees, agricultural topics,
§ Unions are fading fast. 35% in 1960, now down for 8% today.
Ø Why study this:
o Key players
o Clout on the national scqale when it comes to politics
§ Unions are developing in diff fields (Ivy League Admin positions)
§ Only one union can represent a group of people, unlike in Europe where say 4 unions rep 1 factory of the same people.
§ Union has to protect all members and not leave out members they do not like.
§ What can employers do to protect themselves
§ NLRB has 2 halfs:
1.Investigate and Prosecutes violation of the NLR Act
2. Adjudicated the violation by the board which is made up of administrative law judges

II. National Labor Relations Act
A. Section 1:
· The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by
a) Impairing the efficiency, safety, or operation of the instrumentalities of commerence;
b) occurring in the current of commerce
c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods

NLRB v. Washington Aluminum
§ Focus on “concerted activity” language found in s 7.
§ Language on section 7 is at issue (page 28 of the supp.)
o Rights of employees section 7
§ Laborers were freezing their asses off in Baltimore in this factory, walk off the job and are subsequently are fired.
§ Issues:
1. Was the spontaneous walk out, was this concerted activity? According to the employers b/c they did not make a specific demand and did not give them a chance to fix it, thus was not a concerted activity.
a. Supreme Court states we cannot agree that employees necessarily lose their right to engage in concerted activites under 7 merely b/c they don’t present a specific demand upon their employer to remedy a condition they find objectionable.
o They do not have to put anything in writing or make it very formal because they did not have representation (no union) and the workers held a common concern (either made indiv or as a group at one time), you can engage in a spontaneous walk out. Certain limits are placed on this though, but are not addressed in this case (ex: unlawful, violent or breach of K) nor (disloyalty to employer-more on this later).
§ Language in section 10(c) is also at issue: Prevention Unfair Labor Practices
§ Language in section 8(a)(1) is also at issue: Unfair Labor Practices
§ Court stated rule: Even if the employer is in the process of fixing the issue, the reasonableness and wisdom of the protestors will not be questioned

NLRB v. Odyssey Capital Group
§ Exposure to asbestos and refuse to work on ceilings with this in it from now on.
§ The board cited Washington Aluminum case: Do not need to show was reasonable nor proportionally related.
§ Issue below surface: if reasonableness is not relevant, is it relevant employer was unaware that workers complaint.
o Must prove concerted activity AND employer must be aware or should have been aware of the complaint. (thus the person filing the complaint must prove that employer was aware).
Labor Law History:
· 19th century employers used courts to prevent:
§ Judges said strikes were civil conspiracy
§ Or tortious inference with employers business
§ Always freceived an injunction as a remedy
o Sucked for labor movement:
o Would mess up the flow and momentum of moment
o Had a chilling effect on free speech
· Judges Role in issues
§ Granted judgments “ex parta” enforceable by a contempt, thus workers would go to jail if did not follow injunction.
§ Perception that these injunctions were unfair. Unless take price out of competition workers had no way of competeing with trusts and monopoly
§ Went to legislation for help and S.C.:
o Yellow Dog K: K that said: I promise to to join a union
Ø Were illegal until case which said violated substitive due process of employer
Eventuially congress saw problem with these injunctions:N. Longurda Act: congress attempt to prevent judges frfom granting these judgments. Protected labors rights to picket and boycott so they had an effective strategy to show upset with employer.

· Wagner Act (Section 7) Rights of Employers:
§ The heart of the Act was section 7
§ No Strike Time: Section 7 rights are not protected during no strike times.
§ The Wagner Act estasblished on a permanent foundation the “legally protected right of employees to organize and bargain collectively through representatives of their choosing”
§ 3 Major rights
1. Organize
2. Bargain
3. Strike
§ Problem is this Act only focused on the formation of the union but not the practice or many potential issues which could arise after 1935.
§ Right to self-organize, form, join, or assist labor organization, to bargain collectively though respresentatives of their own choosing and to engage in other concerted activities for the puyrpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activites
§ Reduced the number of strikes. 4 reasons why:
1. Collective bargaining
2. Responsibility on behalf of union
3. weakness of individual eliminated
4. Substitutes industrial democracy
§ Limitations of the Act:
1. Focused only on growth stage
2. Focused on activites of employer which violated
3. Left terms and conditions of employment open to provate negotiation and nothing to fix problems
§ Wagner Act and the Constitution: Wagner Act was challenged for its constitutional validity (steps on toes of other govt branches). Court said was within the constitutional limits and with the powers of Congress under its power to regulate interstate commerce issues and this is because it would have a most serious effect upon interstate commerce.

§ Created under sections 3,4, and 10.
§ Has the role of both prosecutor and judge by issuing complaints of violation, having its staff prosecute the complaints and then passing upon the merits of the case.
§ They balance between the rights of employers and employees:
Ex: You cannot talk about unions when on break ever.
o NLRB does balance test and decides that it tips on the side of the employees b/c they should be able to talk about this on breaks as long as does not interfere with work
§ The organization deals with, among other sections, sections 8(a)1- not 4-5 (page 29)

ii. Do not want to the rep anymore, get rid of it. It’s called workers decertification (also need 30%)
o Petition form on page 121
o Do not get to have the board decision on these issues reviewed by the court, unless can get a “technical 8(a)(5) violation”

· Taft Hartley Act: meant to recalibrate the govt role of collective bargaining.
§ The Taft-Hartley bill was bitterly opposed by organization labor and most so-called liberals.
· 301: if either union or employers decides K has been violated can sue in district court of the US. This is done so can get a jury trial and like this because they think people like them, the unions,
· NLRA (National Labor Relations Act):
§ Does not include certain people, excludes: supervisor or indep contractor
§ Indep. contractor: Employers like this because do not have to deal with workman’s comp.
§ NLRA defin of an indep. contractor:
o If you decide the method and manner as to how the work should be done and generally
o do you hire some people to do the work
o do you invest money in equipment
o Most important: do you get paid for price of job instead of hourly wage.
o Can you negotiate the amount you are paid for the job?
o Section 9 issue: is the unit an appropriate unit, not sups and ind but employees. NLRB must hold pre election hearing, union files petition for drivers and NLRB speaks to both side and then hold pre election hearing the office and it is an informal hearing. Decide if the unit is proper and this can take a long time. If declared indep contractos then they are out of luck.
o To determine if someone is an employee, or employer, listed in section 2 (3) and (11)
o Section2 (11) Test (3 steps):
1. Do they have any of the enumerated authorizes (his rights in the section) only need one of the rights to meet this requirement.
2. If they have 1 or more rights then move to part 2 of test, is this done in the interest of the employer (does he have the authority and exercise it in interest of employer)?
3. Then go to 3 do the exercise require independant judgement in doing so?
– Workers are directiong other workers they are supervisors and do not have the right to bargain.

· Managerial worker is not an employee: you formulated of effectuate managerial processes. Faculty of college can be seen as managerial worker
· Supervisor : Section 2 (11: burden of proof to est he is supervision, the burden is whomever is trying to prove that that person is a supervisor.
· Criticisim of the board
§ Process of appointing 5 members has become too political (who is in power chooses 3 of the members and choose based on partisanship)
§ The board works through adjudication process
§ Board does not do any of it own empirical work, does not research what conduct does intimindate workers