Labor Law Johnson Spring 2012
INTRODUCTION
-5 Important Issues:
1.) Courts have shown a continuing hostility to the trade movement.
a. Everybody has a perspective (judges are people too, and they probably spend a lot of time at the country clubs).
2.) Laws outlawing restraints of trade have been around for a long time. But laws that were designed to regulate interactions between businesses have been used to regulate the relationship btw ERs and EEs. (Duplex Printing)
3.) Courts have been particularly suspicious of secondary pressure because secondary pressure appears wrongly to embroil strangers in another’s dispute. (Guntner)
4.) Means/Ends analysis: Courts will strike down a labor union’s unlawful efforts to meet a lawful end and will also strike down a union’s lawful efforts to achieve an unlawful mean.
5.) Injunctive relief which is granted to an ER severely restricts laborer’s weapons (like strikes, etc.).
a. Once you place an injunction in place, even if it is lifted later, will have a damning effect on labor unions.
Timeline of Acts:
-1890: Sherman Act
-Clayton Act: 1912
-Railway Labor Act (RLA): 1926/1934
-Why was the RLA created to only help the laborers employed by the railways (and later amended to apply to airways too)?
-B/c these were very important to the country at the time and thus there was a greater need to keep disputes short and less frequent in these areas.
-Norris-Laguardia (N-L) 1932:
-NLRA: 1935
-FLSA: 1938
-Taft Hartley Act: 1947
Structure of the Statutes and Progression of Labor Movement (Pg. 40-77):
1. Wagner Act: (Everything in plain text in the supplement in the NLRA is from the Wagner Act; the bolded parts are the amendments by the Taft-Hartley Act).
-This broadly covers “EEs” (not just certain EEs of certain businesses like the RLA did).
-Growth of the Labor Movement:
-In early parts of the New Deal the government encouraged collective activities
-They gave union leaders lots of power in government and endorsed unionizing b/c this would allow for less strikes and less disruption; also it would allow for higher wages, which Keynesian economics thought was the best way to turn the country’s economy around).
2. NLRA
a. Important Sections:
i. §2: Definitions
ii. §7: Rights of EEs to collectively bargain; guarantees EEs the right to “self-organization, to form, join, or assist labor organizations, 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.
1. This includes the right of the EE to talk about the terms and conditions of their employment (including wages and hours) with other EEs and with non-EEs (like unions).
iii. §8: prohibits ERs from “interfering with, restraining, or coercing EEs in the exercise of their §7 rights.”
1. (a)
a. §8(a)(1): prohibits an ER from interfering with EEs’ §7 rights.
i. Intention Rule: Intent to interfere is not required. The ER can violate this by his actions, regardless if he meant to interfere or not. (See Republic Aviation)
b. §8(a)(2): Unlawful contribution of support
c. §8(a)(3): Prohibits an ER from discriminating against EEs who try to organize such collective agreements. (such as firing/suspending them for it)
i. Intention Rule: Intent is required here b./c the ER must intend to discriminate.
d. §8(a)(5): creates an obligation for the ER to bargain in good faith with the EEs’ representatives.
2. (d)
iv. §9
1. (a):
v. §10: Allows the NLRB to go to federal court to enforce its decisions.
b. Limits to the NLRA:
i. Some “EEs” are not covered, but still subject to collective bargaining agreements
1. Public EEs
2. Railway and Airline EEs
3. Supervisors are not covered
4. Independent contractors are expressly excluded by Taft Hartley.
3. Taft Hartley Act (1947)
a. Continued growth of labor movement
b. Rentrenchment
i. Government began to go back on their Pro-union stance:
c. Biggest T-H Changes
i. Injunctions are back
ii. Modified government encouragement of unionization
iii. Now there is a right to not join the unions
1. 8(a)(3) outlaws the “closed shops”
a. Does allow “union shops” but only in non-right to work states (GA does not allow union shop agreements).
iv. There is more of an obligation on managers to engage in collective actions as well as unions.
v. It allowed unions to sue as an entity and to be sued as an entity.
How the NLRB is set up:
-There is supposed to be 5 members of the board, but right now, b/c of political deadlock, there are not 5 ppl
-General Counsel: prosecutorial arm of the NLRB; Represents the NLRB in court.
-50+ regions in the U.S.
-Case Process
-When a charge becomes a Complaint, that means that the region has determined that the charge has enough merit to become a complaint and the General Counsel office takes over and prosecutes the case in front of an administrative law judge (ALJ). This is where evidence, witnesses, etc. are brought in. This is the only place where the evidence (witnesses and all) will be heard. When the board looks at the ALJ’s decision, they adopt the factual findings of the ALJ.
-If you lose against the ALJ (and you are representing the ER), then you will file a brief to the NLRB for them to take your appeal.
-If you lose at the NLRB level, then you will take your appeal directly to the Court of Appeals (either the Crt. Of Appeals in the jxn you first brought the case or to the Crt. Of Appeals of D.C.).
-“Unfair Labor Practices” (Aka: C-cases).
-Politics NOTE: The NLRB is a Political animal. Board members are appointed by the president and approved by the senate.
Pre-NLRA Decisions (These are ancient decisions that show that the courts were against union activity):
Holmes’s Stance and Tort Law’s Role:
NOTE: courts tried to use tort law to place injunctions on EEs from engaging in collective activities such as picketing.
-Example: Vegelahn v. Guntner (1896): Workers established a patrol in front of Vegelahn’s (∏) workplace. There was primary picketing where they wanted to prevent ∏ from getting workmen and thereby preventing him from carrying on his business unless and until he agreed to a schedule of prices. The EEs used persuasion and social pressure and, to some extent, threats of physical violence to anyone who entered the business.
-Holding: The majority notes that that even moral intimidation can be tortious (even criminal) if it is directed at EEs and/or prospective EEs => (persuasion and social pressure can be enjoined; this shows the hostility that the courts had to collective action by EEs). So if this action interferes with contractual relations btw ER and EEs and/or prospective EEs then this is illegal and can be enjoined by the courts.
-Dissent!!! (Holmes): believes that this is going too far; he believes that social pressure (moral intimidation) should be allowed but he does agree that physical pressure/intimidation should not be allowed. (This remains a dissent in Plant v. Wood).
-Example: Plant v. Wood (1900) Rule: If the intent of the EEs who are taking some action against an ER have the intent to do harm to the ER and there is such harm to the ER then this can be deemed tortious activity and thus it can be enjoined.
-Holmes’ Dissent: states that this gives more structure to the rule from Vegelahn, but he still dissents to moral pressure being found tortious.
Anti Trust Law’s Role: These cases illustrate that the courts will use the Sherman Act against EEs to stop them from engaging in certain collective activities.
-Sherman Act’s Role w/ Secondary Activity: The Sherman Act prohibits any combination whatever to secure action which essentially obstruct the free flow of commerce btw the states, or restricts the liberty of a trader to engage in business.
-Example: Loewe v. Lawlor: Loewe (∏), a hat manufacturer, sought to enjoin Lawlor (∆) and other members of the United Hatters of North America from combining with other AFL members to compel ∏ to recognize the union under pressure of boycott of his interstate trade. There was a boycott of the sellers of the hats and not just a boycott of the manufacturer’s themselves. This is secondary activity b/c they boycotted the sellers in total (not just the hats at the sellers’ places of business). The ∏ sued under §7 of the Sherman Act which allowed for treble damages to be assessed against a person who caused harm or violated the Sherman Act in any way.
rt with a non-labor party (A non unilateral union activity). This exemption is available to unions and ERs. It seeks to harmonize antitrust goals with the federal labor policy which encourages a collective bargaining process free from unnecessary restraints.
-Ex: a union that has an agreement with all the bars in Athens to pay their EEs $10/hr except one, then the union can boycott this bar to make it agree to this agreement under the non-statutory exemption (see Jewel Tea below).
Example of a Non-Statutory Exemption:
-Mandatory Issues Rule: When determining whether a union agreement with a group of ERs is exempt from anti-trust laws the court will look to whether the agreement deals with mandatory issues which have a direct effect on the union members or whether they deal with non-mandatory issues which will only have an indirect effect on the union members (such as prices that the ERs will charge for products produced by the union members).
-If the agreement deals with mandatory/legitimate union issues then the agreement will be exempt from antitrust laws. If it deals with non-mandatory issues, then it will not be exempt if such issues place an unreasonable restraint on trade. (National Labor Relations Board v. Division of Wooster Borg-Warner Corp.)
-A weighing of interests is done here to determine if the union members interests are so closely/directly tied to the issues negotiated in the agreement to make the agreement exempt from antitrust laws.
-Non Statutory Exemption for ER-Union Industry Agreements Sub-Rule: The National Labor Policy expressed in the NLRA places beyond the reach of the Sherman Act union-ER agreements on when, as well as how long, EEs must work. An agreement on these subjects btw the union and the ERs in a bargaining unit is not illegal under the Sherman Act, nor is the Union’s unilateral demand for the same contract of other ERs in the industry (a non-statutory exemption from antitrust violations).
-NOTE: The crucial determinant is not the form of the agreement (e.g. prices, wages, when an ER can operate, etc.) but its the relative impact on the product market and the interests of union members.
-E.g.: So if working hours of ER affects wages, hours, or other terms and conditions of employment of the union EEs, then this can be put into an industry wide ER/EE agreement (or into just one CBA)). (See Jewel Tea)
-Example: Local Union No. 189, Amalgated Meat Cutters v. Jewel Tea Co. (1965): Chicago butchers made a union. This union then tried to negotiate with meat retailers to reduce the number of hours their members were required to work. The union and many of Chicago meat retailers came to an agreement which stated that the retailers would not sell meat from 6pm-9am. Jewel Tea opposed such an agreement when the Union brought it up, but when the Union threatened a strike against Jewel Tea if they didn’t comply with the terms, Jewel Tea agreed. Jewel Tea subsequently filed suit against the Union and a non-labor union group that supported the union, claiming that the agreement and the act of forcing them to comply with such by use of the threat of strike was a violation of §1 and §2 of the Sherman Anti-Trust Law b/c they argued that the agreement did not allow them to run their operations as they saw fit, b/c they wanted to sell meat on Friday nights through a self-service operation which they claimed would not need to employ butchers past 6pm. Thus, they argued that the limitation on when they could sell meat was a non-mandatory issue and thus this issue could not be negotiated in a union-ER agreement.
