Linder – Labor Law
Spring 2011
Evolution of Labor Law
a. Labor Law: Refers only to a part of the law that applies to worker and employers — only to the law that applies to unions and private employers.
i. Over the last 60 years, the law has grown to include topics such as minimum wages, health and safety on the job, unemployment insurance, pension plans, race and sex discrimination, etc. A new term, “employment law,” has been coined for these laws. But “labor law” still means the law of unions and private employers.
b. Historical Background
i. Pre-Civil War Period
1. Before 1800, little effort was made by workers to organize. There were instances of workers temporarily joining together for united action against employers, or artisans combining together to maintain rates and keep competition from becoming too difficult. The early trade organizations were generally referred to as societies. These societies were in an inactive state of trade unity and would come to life for particular occasions. The development of the large-scale factory system widened the distance between management and labor and increased the friction quotient
2. Criminal Conspiracy Doctrine: In 1794, the Philadelphia Cordwainers organized and became the first American labor union. It successfully struck against a cut in wages in 1799, and struck again in 1806, giving rise to the early doctrines of labor law. One of these early doctrines was that of “criminal conspiracy,” which was later replaced with the “labor injunction.”
ii. Civil War to WWI: Growth of the National Unions and Labor Unrest
1. The Growth of Unions: Shortly before the Civil War and the after the war, a number of factors emerged that strongly influenced the development of labor unions:
a. Large industrial empires were built;
b. increase in population and the disappearance of the frontier created large cities, and urban dweller became more dependent on their
c. An increasing number of immigrants formed a growing pool of unskilled labor, stimulating the organization of skilled laborers; and
d. A nucleus of a strong trade union movement already existed in the form of societies of skilled craftsmen.
2. The 1880s: Knights of Labor—Confederations of Local and National Bodies into a Larger Unit
a. Origin: Initially a secret society, the Knights were moralists and reformers. Their chief aim was to attack, through mass organization, what they perceived as the evils resulting from industrialization. Their organization included almost all occupations, including capitalists and farmers, as well as laborers.
b. Growth: From 1880 to 1886, the Knights’ membership grew to 700K, largely because of their advocacy of popular political reforms (such as tax reform) that were directed at equality for all.
c. Decline: The Knights suffered a decline in membership that was as dramatic as their rapid growth, largely because the farmers and laborers in the organization sought conflicting goals. By 1890, the membership had dropped to 100K, and by 1900, it had virtually disappeared.
3. 1880-1914: The American Federation of Labor (AFL) —Growth of a National Craft Union
a. Origin: In 1886, the national craft unions, with a membership of 150K, formed the American Federation of Labor and elected Samuel Gompers as its first president. Gompers’ leadership of the AFL over the next 40 years had a major effect on the course of American unionism.
iii. At Will Doctrine: Employer may terminate an employee for any reason (good or bad or none at all)
1. Exception is Contract
a. Express: may require “good cause” for firing
b. Implied: employee handbook
c. Common Law Public policy notions: dismissal for jury duty or workers comp claim not allowed
2. NLRA: Right of workers to organize, form a union, and to bargain collectively
a. Can’t be fired for organizing
iv. Judicial Intervention (Labor Injunction): Judicial Reaction to the Growth of Unionism
1. During and after the decline of the “criminal conspiracy” doctrine, the courts turned to civil remedies that were mainly based on common law tort actions, and also to equitable relief in the form of injunctions.
2. Permanent Injunction
a. Vegelahn v. Gutner – early case
i. Facts: The union had picketed in front of employer’s business to persuade current employees and job applicants to not enter and to pressure workers to break employment contracts with the company to force higher wages.
ii. Holding: The Company successfully sought an injunction in court, under the doctrine of intentional interference with contract.
iii. Rule: Peaceful picketing may be permanently enjoined; a patrol, whether peaceful or accompanied by threats or acts of violence, interferes with the rights of the employer and the other employees, and employees have right to not be subject to intimidation inherent in a picket line.
iv. Dissent: The injunction issued is overbroad; there is not inherent coercion in a peaceful patrol. The court has allowed free competition between businesses even when it has resulted in an economic loss for one of the businesses, and the court should also extend an analogous right to engage in free competition through peaceful picketing to employees as well (“free competition doctrine”—used later to justify the right of employees to strike).
v. Illegal Purpose Doctrine:
1. Permitted judges to hold unlawful any conduct by unions that may appear to be lawful, but which the courts simply didn’t like
b. Plant v. Woods
i. Facts: People in one union left and formed their own union. Original union urged employers not to hire members of the new union and persuaded members of new union to rejoin.
ii. Holding: Original union cannot persuade individuals to join their union
1. But wage demands may be justifiable – moving closer to Holmes' dissent
iii. Dissent: Organization of workers to obtain power in order to better their economic position is permissible as long as the end or purpose is good and the means used are lawful. The issue then is whether the purposes intended by D justify the means used.
c. Thornhill v. AL: Constitutional Approach
i. Facts: Thornhill joined a picket line that was protesting against his former employer. Alabama state law made it an offense to picket. Pursuant to the law, Thornhill was arrested and fined $100. Thornhill, a union president, was the only picketer to be arrested and tried under the law.
ii. Holding: Labor picketing is a form of speech and afforded first amendment protections
1. No clear and present danger or breach of peace
v. Pre-NLRA Laws
1. Antitrust Laws:
a. Sherman Act: Enacted to restrain monopolies
i. But used against labor organizers: viewed to restrain trade and be in violation of the Act
ii. Injunctions could be issued – Gave businesses tremendous advantage over strikers
b. Clayton Act:
i. Sherman act not to be applied in opposition to labor
ii. Business must post bond when suing under Sherman act for an injunction
iii. No injunctions to be granted in cases between Employees and Employer over conditions of employment
iv. Effectively appealed the labor exemption by the Supreme Court
1. Unions cannot interfere, but individuals and their own concerns are okay
2. Norris-Laguardia Act:
a. Eliminates Yellow Dog contracts: Contractual promise that workers make not to join a Union
i. Yellow Dog contracts allowed employers to
1. Fire employees who violate their Ks
2. Sue Unions for liability in instigating workers to violate contractual agreements
3. Unions held vicariously liable for acts of employees
b. No Union Vicarious Liability unless clear proof of direct participation
c. Looked at as a way to interpret the antitrust acts
i. Violate if unions and business act together to drive out others
ii. Violate if unions act in collusion with non-union entities
1. If yes, then still may not violate antitrust:
a. Balance need for action against policy for antitrust laws
d. Defines labor dispute (to prevent SC from striking down statute)
3. NLRA origins
a. Does not appeal N-L Act
b. Wagner Act: Origins in Railway Labor Act
i. Recognizes employees originally of RRs could organize
ii. Rules for strikes
iii. Provisions to minimize strikes
iv. Purpose (also of NLRA): Bring country out of depression
c. Taft-Hartley Act: Monitored the activities and powers of labor unions
i. Prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary or “common situs” picketing, closed shops, and monetary donations by unions to federal political campaigns
d. Landrum-Griffin Act: Bill of rights for union members
i. Closed-shop: have to be union member to be hired – deemed impermissible under Taft-Hartley
ii. Union-shop: don't have to be union member to be hired, but need to become a member
iii. Agency shop: don't have to be member but have to pay dues and initiation fee (can elect not to have dues go to political purposes)
1. Pay dues as fee for service union provides
iv. Maintenance of membership: no requirement for membership or pay of dues; if become a union member have to stay a union member
e. Right to Work laws:
i. Statutes in 22 states that prohibit agreements between labor unions and employers making membership or payment of union dues or fees a condition of employment, either before or after hiring
II. The National Labor Relation
h the employers right to discipline and the right to use the property how they want
e. Test: Balance Test (Employee rights vs. employer rights)
i. Employees' right to organize vs. employers' rights to maintain discipline
ii. Pay attention to time, place
1. Working time is for work – Employer no solicitation rule if for work time only is presumed valid
2. Beth Israel Hospital v. NLRB
a. Facts: The hospital had a rule that prohibited solicitation and distribution in patient care and all other work areas and areas open to the public, such as lobbies, cafeteria, corridors, elevators, etc. It disciplined employees for distributing the union newsletter in the cafeteria.
b. Holding: The Board held a violation of §8(2)(1) and (3) and ordered the restriction to not include the cafeteria and coffee shop.
c. Reasoning: Although the Board is not experts in heath management, the hospital did not show evidence of a sufficient disruption to warrant the rule.
i. Findings showed that 70% of those in the cafeteria were employees. Solicitation there, in the absence of evidence to the contrary, will probably not interfere with the hospitals business or patients
d. Rule: Employer can prevent distribution of literature while distributing its own anti-union literature in work areas (lunch room would be different)
i. Home court advantage
3. NLRB v. Magnavox
a. Facts: Company had a policy that prohibited employees from distributing literature on company property, even during nonworking hours and in nonworking areas.
b. Procedure: Appellate court found that the union had waived objection to the ban
c. Holding: The union could not waive the employees' right to solicit union support
h. Right of access by non-employee union organizers to employer's property
i. Lechmere v. NLRB – Private property rights are central and dominating
1. Facts: Union tried to unionize workers at a retail store located in a plaza owned by Lechmere by placing things on cars, etc. Lechmere barred union from the property. The union filed an unfair labor practice charge with the NLRB against Lechmere.
2. Holding: No ULP on the party of Lechmere
3. The Court held that the union had no reasonable means short of trespass to make petitioner's employees aware of its organizational efforts was based on a misunderstanding of the limited scope of the exception.
4. The Court held that because the employees did not reside on petitioner's property, they were presumptively not beyond the reach of the union's message.
5. Other alternative means of communication were readily available. The Court held that because the union failed to establish the existence of any unique obstacles, that frustrated access to petitioner's employees, respondent erred in concluding that petitioner committed an unfair labor practice by barring the nonemployee organizers from its property.
6. Rule: Non-employees do not have same rights as employees to distribute propaganda on the employer's premises
a. Must try mailing, home visits, calling, etc.
b. Unless there are “unique obstacles” that frustrates access to employees
ii. Pichler v. UNITE
1. Facts: The employees worked for an employer that was the subject of an organizing campaign by the union. As part of its efforts to contact workers, the union used license plate numbers on cars found in the employer's parking lots to obtain information from state motor vehicle records, including information from plaintiffs' records.
2. Holding: Union violated the DPPA – Union organizing was not one of the permissible purposes for use of the information included.
3. Although the union argued that it used the information in connection with an investigation in anticipation of litigation by filing employment discrimination suits and other legal actions, the DPPA did not permit the union to use protected information to solicit or find claims.
4. Nor was the union acting on behalf of a government agency so as to bring its use of the information within the exception under.
5. The union president could not be held liable for the union's DPPA violations under Pennsylvania's participation theory of tort liability, as plaintiffs alleged only nonfeasance and not misfeasance on his part.
i. Employers' Captive Audience & Equal Access for Unions
i. Issue: Employees’ equal access to hear the union message
ii. Captive Audience Doctrine
1. An employer on occasion will assemble employees during working hours and deliver non-coercive anti-union speeches despite the fact that it is otherwise is enforcing a valid no-solicitation rule.
