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Labor Law
SUNY Buffalo Law School
Dimick, Matthew David

Labor Law Fall 2013 Dimick
“Open Shop Policy” – No discrimination against union or non-union members.     
“Featherbedding” – Union practice of hiring redundant labor.
“Hot Cargo” – Workers refusing to handle or install working on a struck product.
“Sit Down Strike” – Disgruntled workers actually occupy the plants they are striking in and are supplied with sympathizers on the outside. Uniformly held to be illegal.
“Secondary Consumer and Producer Boycott” – Unions go after the people down the stream because a strike on the front line will not work.
“Yellow Dog Contract” – Employer made employee agree not to join a union over the course of the employment.
“Agency Relationship” – A union must have some type of connection with an employee in order to have standing to sue. See Hitchman Coal & Coke v. Mitchell, 1917 (Justice Pitney)
            – Note the “pretextual motives” that the court found to violate the rights of the P (employer) in this case.             The union waited until enough non-union men with intentions of creating a union were hired until             instigating a strike in a mine that was a known yellow dog mine.
Introduction and Overviews
Objectives of Labor Law:
1.      Redistribution
a.       Arguments for redistribution:
                                                              i.      Goal is to strengthen the middle class and help the lower class to have middle class earnings
1.      One theory is that as rich people gain money, they save more and spend less; thus, less money overall is being spent, and more of the nation’s wealth is being withheld
a.       Hurts economy, lowers aggregate demand
                                                            ii.      Costs of inequality:
1.      Arg is that it is less costly to pay more people than to have to clean up and deal with the problems associated with poverty à drugs, uneducated, etc
                                                          iii.      It improves work for the worker
1.      Companies will promte good training, etc., because they’re spending more money on their EEs due to redistribution, so they might as well make sure the workers are productive
                                                          iv.      Argument that redistribution and unions, through politics, get more people involved in voting, etc., which promotes democracy
2.      Efficiency
a.       Making the pie bigger
                                                              i.      Argument is that unions increase the earning capacity of the company
3.      Participation
a.       Arg that labor law increases participation in politics for the lower class
NLRA (Wagner Act 1935) & Statute Overview:
1.      Background:
a.       NLRA was written to standardize rules/laws for labor strikes
b.      Before NLRA, strikes were a huge problem, and est. of Labor Law helped to reduce the issues
                                                              i.      Before NLRA, called the Lochner Era, Supreme Court sought to shutdown any laws that threatened the freedom of contract/ laissez-faire economics
c.       So when the NLRA passed, it allowed the Federal Government to be more interventional (over Sup Ct)
d.      Passage of the NLRA marked the beginning of affirmative support of unionization and collective bargaining by the federal government
2.      Important Sections of the NLRA (Statute):
a.       § 7 (the key provision)
                                                              i.      A declaration of EE rights
                                                            ii.      Language:  “EEs shall have the right to
1.       Self-organization, to form, join, or assist labor organizations,
2.      To bargain collectively through representatives of their own choosing, and
3.      To engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection”
                                                          iii.      (Remember: right to refrain from joining union/ concerted activity added by Taft-Hartley Act)
b.      § 8
                                                              i.      § 7 is enforced by § 8, which lists employer unfair labor practices
                                                            ii.      § 8(a)(1) prohibits employer interference with the rights guaranteed in § 7
                                                          iii.      § 8(a)(2) outlaws employer-formed or dominated “company unions”
                                                          iv.      § 8(a)(3) forbids discrimination by ERs on account of union activity in hiring, firing, and other means of employment
                                                            v.      § 8(a)(4) prohibits such discrimination against EEs on account of their testifying or giving charges before the agency charged with implementing the statute
                                                          vi.      § 8(a)(5) requires ERs to bargain collectively with the duly established representatives (unions) of their EEs
c.       § 9
                                                              i.      Describes the procedures, primarily the secret ballot election in an “appropriate bargaining unit,” by which EEs can choose whether they want a particular union to represent them
d.      § 10
                                                              i.      Judicial review in specified courts of appeals was established by § 10
e.       Additional points:
                                                              i.      The Wagner Act established an administrative agency, the NLRB, to administer and interpret unfair labor practice and representation provisions of the Act
                                                            ii.      The original Wagner Act contained no restrictions on the activities of unions
Taft-Hartley Act (1947):
1.      Taft-Hartley marks a shift away from a federal policy encouraging unionization to a more neutral posture, while continuing the right of EEs to be free from ER coercion
2.      Taft-Hartley amended § 8 of the NLRA by prohibiting union activities that are specified in § 8(b)
a.       Forbidden are secondary boycotts, jurisdictional strikes over work assignments, and strikes to force and ER to discharge an EE on account of his union affiliation, or lack of it
3.      § 7 was amended to include the right to refrain from engaging in concerted activities
Landrum-Griffin Act (1959):
1.      Contains a bill of rights for union members, requires certain financial disclosures by unions, prescribes procedures for the election of union officers, and provides civil and criminal remedies for financial abuses by union officers
2.      Also passed amendments to the N

Procedure for an ULP Case:
1.      Each NLRB case, whether it involves an unfair labor practice or a matter of representation, must be initiated by a private party
a.       An ULP case is initiated when a private party files a “charge” that an unfair labor practice has been committed
2.      The regional office where the charge is filed is responsible for investigating it
3.      After investigation, the regional director decides whether to issue a “complaint” in the case
a.       Only if a complaint is issued will the case be prosecuted and heard by the board
b.      If the regional director refuses to issue a complaint, party can issue an appeal to the General Counsel’s office in Washington; however, such appeals are almost always denied
4.      If the regional director issues the ULP complaint, an attorney from the regional office will prosecute the case for the charging party
a.       Most complaints are settled by the regional office prior to any hearing
b.      But keep in mind that the Board doesn’t have any mechanisms allowing pre-hearing discovery in unfair labor practice cases
5.      If an ULP hearing is necessary, a regional staff attorney representing the General Counsel will control the case, but the charging party may intervene and present evidence
6.      An ULP case is tried before an ALJ
a.       After taking evidence and receiving briefs, an ALJ issues a recommended decision and order
b.      The recommended order will either set out the appropriate remedy or dismiss the complaint
7.      What happens After ALJ decision:
a.       If no party (respondent, General Counsel or charging party) files exceptions to this recommended decision and order, it automatically becomes final as an order issued by the Board
b.      If exceptions are filed, the case file is transferred to the Board in Washington, briefs are filed (oral arg is rare), and the Board issues a written decision and order
                                                              i.      The Board has rule-making power, but it has exercised it only once
                                                            ii.      A Board order is not self-enforcing; that is, the Board has no coercive power to compel adherence to its order
1.      § 10(e) of the NLRA provides that the Board may petition specified US Courts of Appeals for enforcement of a Board order
2.      Additionally, § 10(f) provides that any person aggrieved by a final Board order granting or denying relief sought may petition a Court of Appeals for review of the order
8.      Generally, Board cases in ULP proceedings have been affirmed by a Appeals Court in full or in part at a rate of over 80%
9.      A final review possibility is a writ of certiorari from the US Sup Ct.