Professor Fischl, Spring 2016
University of Connecticut School of Law
A. Bread and Roses
1. The Role of Immigration – immigration seemed like a constant threat with the George Lopez character always threatening the workers (you can’t unionize because if you do, we’ll deport you)
2. unionizing meant losing your jobs – this depends on the culture you come from (in some cultures, there might be a stigma associated with this)
3. one problem: if you unionize, you draw attention to yourself – it’s a lose-lose situation
4. Perez = George Lopez (as nasty as he is, he’s just a contractor) the owners of the building are the ones profiting – Perez is easy to demonize
5. Sam Shapiro = Adrien Brody
6. Maya = main female character
7. 3 dimensions of contemporary employment:
a) immigrant labor
b) precarious or contingent employment
8. Prof’s observations:
a) The language barrier has a lot of different consequences – it makes it difficult to get support from people in the community
b) One of the consequences post 9-11 is that full documented aliens struggle with many of the same fears that illegals do – legals develop a fear of their status – they feel that their status is precarious
B. Employment at Will
1. You can be fired at any time for any reason; a good reason, a bad reason or no reason at all with our without advancement and an employee can depart on the same terms
a) At will is a liberation for both employee and employer
(1) The employment at will rule looks like a default rule, that his rule governs unless the parties want something else, ex: a contract that states employment for a certain amount of time or just cause termination ect.
(2) Permanent is indefinite employment therefore if you are indefinite you are at will because indefinite is not a specific time period.
c) Additional Consideration Doctrine
(1) Employees who manage to collect a guarantee for employment but for the pay you were promised you better work and if you want job security you better give something extra in return like additional consideration
(a) EXAMPLE: not working for a competitor or a hotel manager agreeing to sleep on the property
(2) Once the employees promised they would do that they promised per the employee manage there was disputes as to whether the waiver was clear in the at will process
d) In a world in which there are a lot of statutory protections in place, both the law and the reasoning comes into play and the employee is claiming some sort of discrimination and that is not the reason they were terminated.
(1) There is a HUGE question regarding proof.
e) Collective Action
(1) Why do workers strike, picket, or do things as a group?
(a) When the union is demanding more for the work, at some level it is not legit.
(b) It has an effect on workers and prices.
2. Monge v. Beebe Rubber Co. (1:2)- π had an oral agreement with ∆, terminable at will. ∆’s forman asked π out on a date and she refused. P was then transferred to lower paying positions, and was eventually fired. P sued for breach of K.
a) Rule: the termination of a contract for employment at will is a breach of contract WHEN the termination is motivated by bad faith, malice, or retaliation, because such termination is not in the best interest of the economic system or public good.
b) The employer’s interest in running his business as he sees fit must be balanced against the employee's interest in maintaining employment, and the public’s interest in maintaining a proper balance between the two.
(1) The rationale is that in an “at will employment” there is an implied promise in every contract that the parties will act in good faith.
(2) A termination by the employer in an at will employment is a breach of K if it is motivated by bad faith, malice, or retaliation. In this case- P’s firing was capricious since she was fired at 2 AM and this was an example of malice.
3. The People v. Fisher (1:7)- journeyman shoemakers were charged with conspiracy because they refused to work with any other shoe maker that produced coarse men’s boots for less than $1. They attempted to fine Lum because he was selling his shoes for as low as 75 cents a pair. Lum refused to pay the fine.
a) ISSUE: Is a conspiracy to raise the wages of journeymen an act injurious to trade or commerce?
b) HOLDING: The interference of the ∆ was unlawful; its tendency is not only to individual oppression, but to public inconvenience and embarrassment.
(1) Coarse boots and shoes are made in many parts of our country; not for particular person, but as an article of trade and commerce. If journeymen bootmakers, enhance the price of boots made in Geneva is injurious to trade in Geneva when compared to the prices of surrounding towns.
(2) It is important to the best interests of society that the price of labor be left to regulate itself, or rather be limited by the demand for it.
4. Vegelahn v. Guntner (1:10)- P a furniture manufacturer was trying to get an injunction to stop his picketing EEs lead by ∆ (representative of EEs). The EEs wanted a price list (for wages) and nine hour work day. ∆ said no, and EEs walked off the job. P employed replacement workers and EEs picketed in front of the plant, and at times were large enough to obstruct people from entering.
a) All picketing is unlawful.
(1) Employment at will: ERs have right to hire labor at whatever wage is mutually agreed upon and EEs have the right to work at that wage. In MA it is a criminal offense to intimidate, force, prevent, or seek to prevent someone from working.
(2) Non-peaceful picketing is intimidation indirectly to the ER but directly to his EEs
(3) Patrolling and picketing is illegal.
(4) Injunction granted to all those involved.
(1) There was no proof of any threat or danger that comes from peaceful picketing
(2) An injunction is only legal if it prevents threatening or physical harm.
(3) First injunction assumes peaceful picketing is always threatening or harmful and that’s not true
(4) Peaceful picketing may cause temporal damages through persuasion
(a) Temporal damages is justified in free-market competition
(5) ∆ are entitled to compete with their former employer just as a small business would
(6) The fact that this is a collective action changes nothing, unions are legit.
C. Overview of the NLRB; the Unfair Labor Practice case
1. NLRA § 1- Findings and Policies
a) The Policy of the United States is to be carried out “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment and other mutual aid or protection”
2. NLRA § 3(a)- The National Labor Relations Board
a) Agency of the US, shall have five members, appointed by the President with consent of the Senate.
b) Of the two extra members one shall be appointed for a term of five years, and the other for a term of two years.
c) The successors, and successors of all other members shall be appointed for terms of five years each.
d) Any individual chosen to fill a vacancy shall be appointed only for the remainder of the term in which they are filling in for.
e) The President shall designate one member to serve as Chairman of the Board.
f) Any member of the Board may be removed by the President upon notice and hearing for:
(1) Neglect of duty or
(2) Malfeasance in office
(3) But for no other cause
3. NLRA § 3(b)- National Labor Relations Board
a) The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.
b) A vacancy in the Board will not impair the right of the remaining members to exercise all of the powers of the board
(1) Three members of the Board shall, at all times, constitute a quorum of the board.
(2) EXCEPT that two member shall constitute a quorum of any group designated pursuant to the first sentence thereof.
4. NLRA § 6- Rules and Regulations
a) The Board shall have authority to make, amend, and rescind, such rules and regs as may be necessary to carry out the provisions of this Act
(1) This is allowed in the manner prescribed by subchapter II of chapter 5 of title 5
5. NLRA § 7- Rights of Employees
a) Employees have the right to self organize, to form, join or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection
b) They shall have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in § 8(a)(3)
(1) Forming or attempting to form a union among the employees of a company.
(2) Joining a union whether the union is recognized by the employer or not.
(3) Assisting a union to organize the employees of an employer.
(4) Going out on strike to secure better working conditions.
(5) Refraining from activity on behalf of a union.
6. NLRA § 8(a)(1)-(5)- Unfair Labor Practices
a) It shall be an unfair labor practice for an employer
(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in § 7
(a) Examples of violations: Employer conduct may independently violate § 8(a)(1)
(i) Threatening employees with loss of jobs or benefits if they should join or vote for a union.
(ii) Threatening to close down the plant if a union should be organized in it.
(iii) Questioning employees about their union activities or membership in such circumstances as will tend to restrain or coerce the employees
(iv) Granting wage increases deliberately timed to discourage employees from forming or joining a union.
(2) To dominate or interfere with the formation or administration of any labor organization OR contribute financial or other support to it:
(a) Provided: an employer shall not be prohibited from permitting employees to confer with im during working hours without loss of time or pay
(i) Domination: A labor organization is consider dominated within the meaning of this section if the employer has interfered with its formation and has assisted and supported its operation and activities to such an extent that it must be looked at as the employer’s creation instead of the true bargaining representative of the employees.
(ii) Illegal assistance and support: Certain lesser kinds of employer assistance to a union may constitute unlawful “interference” even if the union is not “dominated” by the employer”
(a) Example: an employer may not provide financial support to a union
(i) Insisting on meeting only with a company's owners and refusing to meet with the attorney the company has engaged to represent the company in contract negotiations, and threatening to strike to force the company to accept its demands.
(ii) Striking members of an employer association that bargains with the union as the representative of the employers to compel the struck employers to sign individual contracts with the union.
(iii) Insisting during contract negotiations that the employers agree to accept working conditions that will be established by a bargaining group to which it does not belong.
(iv) Fining or expelling supervisors for the way the apply the bargaining contract while carrying out their supervisory functions or for crossing a picket line during a strike to perform their supervisory duties.
c) § 8(b)(2)- Causing or attempting to Cause Discrimination
(1) It is an unfair labor practice for a labor organization to cause an employer to discriminate against an employee in violation of § 8(a)(3)
(a) § 8(a)(3) prohibits an employer from discriminating against an employee in regard to wages, hours, and other conditions of employment for the purpose of encouraging or discouraging membership in a labor organization.
(2) Examples of Violations are:
(a) Causing an employer to discharge employees because they circulated a petition urging a change in the union’s method of selecting shop stewards.
(b) Causing an employer to discharge employees because they made speeches against a contract proposed by the union
(c) Making a contract that requires an employer to hire only members of the union or employees “satisfactory” to the union
(d) Causing an employer to reduce employee's’ seniority because they engage in anti union acts
(e) Refusing referral or giving preference on the basis of race or union activities in making job referral to units represented by the union
(f) Seeking the discharge of an employee under an union-security agreement for failure to pay a fine levied by the union.
d) § 8(b)(3)- Refusal to bargain in good faith
(1) This section makes it illegal for a labor organization to refuse to bargain in good faith with an employer about wages, hours, and other conditions of employment if it is the representative of that employer’s employees.
(2) This section imposes on labor organizations the same duty to bargain in good faith that is imposed on employers by § 8(a)(5)
(3) Examples of violations
(a) Insisting on the inclusion of illegal provision in a contract, such as a closed shop or a discriminatory hiring hall.
(b) Refusing to negotiate on a proposal for a written contract.
(c) Striking against an employer who has bargained, and continues to bargain, on a multiemployer basis to compel it to bargain separately.
(d) Refusing to negotiate on a proposal for a written contract.
(e) Refusing to meet with the attorney designated by the employer as it representative in negotiations.
(f) Terminating an existing contract and striking for a new one without notifying the employer, the Federal Mediation and Conciliation Service, and the state mediation service, if any.
(g) Conditioning the execution of an agreement on inclusion of a non mandatory provision such as a performance bond.
(h) Refusing to process a grievance because of the race, sex, or union activities of an employee for whom the union is the statutory bargaining representative.
8. NLRA § 9(a)- The Employee Representative
a) Provides that the employee representative that have been “designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.
9. NLRA § 9(c)(1)- Existence of question of representation
a) Authorizes the NLRB to direct an election and certify the results thereof, provided the record shows that a question of representation exists.
b) The Employee representative for collective bargaining can be “any individual or labor organization.” A supervisor or any other management representative may not be an employee rep. (§ 2(4))