Paul; Labor Law; Fall 2016
I. History and Structure of American Labor Law
a. Sources of Labor Law
Contract Law
1936 National Labor Relations Act
Discrimination Act of 1964
OSHA in 1970
Whistleblower/Falls Claims Act in 1986
Americans with Disabilities Act in 1989
FMLA in 1993
b. History of Labor Law (From Artisans to Industrialists)
Free Labor
Slavery has ancient origins
Outlawed in America in 1864
Master and Servitude
Feudal origins, but still exists in the United States within a standard employment relationship
Our common law understanding of this relationship is rooted in Master-Servitude
Changed by the black death, when labor became scarce and, therefore, people could bargain for their work
Artisan Period
Merchants, artisans, and professionals sold their product or services for a fee
They did not work for wages, and were a precursor to craft unions
Judicial response to artisan guilds was to criminalize them
Members of a society of shoemakers called a strike for higher piecework rates; they were charged with conspiracy
Judge instructed jury that men cannot act in concert and refuse to work if they just want higher pay
Eventually, juries refused to listen to these instructions and nullified these cases
Commonwealth v. Hunt
Seven members of a bookmaker’s society were charged with criminal conspiracy for striking for higher wages.
On appeal, their conviction was rejected; illegality would now depend on the means used within the strike.
Vegelahn v. Guntner
F: Workers patrol the front of a business to induce employees join them on their strike; the object was to hurt the business and interfere with the contract so, per Hunt, this was ruled illegal
However, Holmes’ dissent represent a major turning point in this discussion
Patrolling itself is not inherently illegal
Depends on the tactics used, like threats or intimidation
Damage done to businesses for legitimate reasons is legal
Persuasion in the form of these activities is legal
You cannot threaten, but there are speech rights inherent in picketing
People may come together to do in combination what they may do individually
Why can one employee withhold labor, but a group cannot?
Finally, business associations are allowed to conspire to control working conditions and wages
Labor deserves the same bargaining power.
People unable to qualify as artisans and, instead, sold their labor were wage workers
As factories popped up, more people became wage workers, and fewer dedicated themselves to a craft
Unions sought to further worker interests within the capitalist system of wage and hours, but employers resisted organization
Freedom of Contract became the rallying cry for employers, with employees having to agree not to join unions, and employers able to control the terms and conditions of employment
States interested in protected employees were thus held to have violated this freedom of contract whenever they tried to restrict working hours, or set a minimum wage
Lochner v. New York
NY Statute limited number of hours bakers could work in a week to sixty.
Supreme Court struck this down as unconstitutional, as it infringed on an employer’s freedom to contract for longer hours under the 14th amendment
Lochnerian Theory – A very limited role for intervention of the state in personal affairs
However, a “freedom of contract” is not mentioned in the due process clause, or suggested as a liberty interest.
c. The Rise of Unionism, and the Fall of Contracts
World War I
Large labor conflicts begin to break out throughout World War I, and Congress establishes a board to mediate wage disputes
First time this idea of having a federal, regulatory body to prevent unrest is put forward
Necessity, it seems, is the mother of all invention
Railways Labor Act
Passed in 1926 under the idea that railroads, which were the exclusive method of transferring people and goods at this time, should have a similar method to avoid disruption
Legitimized transportation unions, facilitated collective bargaining, and created a mandatory mediation or arbitration process for settling disputes.
Planted the seed for congressional power to regulate labor
Railways effected commerce, allowing a nexus to the Commerce clause
An intellectual showdown between the Commerce Clause and Contract Theory took place between 1926 and 1935
President can impose new terms after a National Mediation Board engages in interest arbitration
The Great Depression (1929)
America slammed with massive unemployment, strikes, unrest, and workers demand that federal action be taken.
Laws are passed throughout the thirties to regulate the economy
Norris La-Guardia Act of 1932
First time there was some federal regulation of labor
Barred yellow-dog contracts
Previously recognized in Hitchman Coal (1917), which held employer is entitled to goodwill of employees
Agreements that employees would never unionize
And stopped courts from issuing injunctions against nonviolent strikers
Normally employers could just run to their judge of choice, get an injunction, and force people back to work
This stopped that, but now labor disputes were primarily solved through judicial discretion
By the time it got to the appellate level, the dispute was over, and no jurisprudence was created
d. Wagner Act/National Labor Relations Act of 1935
After the congressional midterm elections stuffed Congress with Democrats, Roosevelt felt he had a popular mandate to do whatever the hell he felt necessary to solve the labor crisis
As a result, he pushed the Wagner Act, which was built on the war boards from World War I, as well as other labor regulations.
NLRB v. Jones
union context
Sometimes people just join together to protest something related to employment
It’s too hot, cold, toxic, etc.
Sometimes covers political lobbying, but only for issues closer to employee’s actual activities
Taft-Hartley Amendment
Added a “Right to Refrain from all Organizational Activities”
§8 – Unfair Labor Practices
Omnibus Violation
Threaten, restrain, or coerce employees
Includes a broad spectrum of behavior, including threats to terminate, surveillance, spying, and coercion
Dominating or interfering with union or collective bargaining
Employers would often form company unions to forestall outside unionism
Thus, Wagner pushed to make it illegal for employers to create their own union, or destroy an employee’s ability to choose their own union
Discriminating or retaliating against employees for engaged in “protected, concerted activity”
Cannot fire people for engaging in protected, concerted activity
Turns on the motive behind the termination
Protects the right to unionize
But tries not to interfere with other factors in an employment contract
Not an automatic pass, but is an inquiry into all facts from which motivation is known
Though determining motivation can be tough, so context matters
Retaliating against people who file charges, engage in board hearing, or are a part of the unionization process
Ex. Cannot be fired for testifying against a company in a grievance hearing
Refusing to bargain collectively, and in good faith
Employer cannot ignore a request to unionize, or propose unreasonable terms.
Not required to AGREE to anything, but the employer does have to bargain, rather than offering take it or leave it options.
4. §9 – Selection of Representatives/Holding Elections
Union gets the right to be an exclusive representative of a shop by…
Winning an election
Show interest with 30% showing through initial cards, then win with 50% approval
Being voluntarily recognized by the employer
Can omit the entire election process by getting invited to represent he workers
Getting inherited through the purchase of a company
Taft-Hartley Amendment
Changed representation proceedings so professional employees and others non-aligned with the primary employees can have their own, separate employees
