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Labor Law
University of Toledo School of Law
Slater, Joseph E.


Professor Slater

Book: Labor Law Cases and Materials; 15th Ed. – Cox, Bok, Gorman, and Finkin

Fall, 2012

Class 1: 8/20

Labor Law- Law governing between Employers and unions…mostly.

– Private sector labor law/relations…that’s what this is. Private sector unions that have no relation to the government.

Main Statute: NATIONAL LABOR RELATIONS ACT (NLRA) and the National Labor Relations Board oversees the implementation of the Act

We will focus on the language of this Act and cases involving the act, and the resulting interpretations of the Act.


– Basically hasn’t been amended since the 1950’s. However, the area of law, itself, is always changing based on differing political styles and pro vs. anti-union administrations. The NLRB is appointed by the president. Big deal. Therefore, IN THIS CLASS… we are responsible for not only the wording of the statute, but also the PUBLIC POLICY. Will be on exam.

Three questions to outline the class:

– What are the lawful goals of Unions? What goals should unions be able to legally pursue?

– Once we decide which goals are legal, what lawful means/tactics should unions be allowed to use?

– What should employers be allowed to do in response to union tactics? What economic weapons should employers be able to use against unions/union member employees.

o Before the passage of the NLRA(1930), the courts made these decisions.

_ _ _ _ _

Historical Background of NLRA’s formation and Labor relations in the US in general

Hunt case: Forming a union (or attempting to organize one) was no longer a criminal act. Union tactics (picketing) are still, however, treated as conspiracy (criminal act).

First case in book,

– PH: Judge issues an injunction forcing protestor/picketing union members to stop their tactics.

– Supreme Court: Stated that the injunction stands because the employer has a constitutional right to hire and fire whoever they want. The “intimidation” presented by the protestors is illegal even if it is solely “moral intimidation”. Therefore, they are not allowed picket so long as it can be determined that they are morally intimidating…aka picketing is not allowed in any scenario after this early decision.

Following case: Plant

– Basically, it is unclear what unions are allowed to do when protesting. Their means are uncertain but the courts are still in the habit of granting injunctions to stop union members from basically doing anything on their employers’ property.

END OF CLASS 27-35, 40-53

Class Two, 8-22


“The Clayton Act”

– General idea: The Clayton Act of 1914 finally provided for some workers’ rights to protest on employer property.

o ARTICLE 6 OF CLAYTON ACT: “The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, organizations, or to forbid or restrain the existence and operation of such organizations from lawfully carrying out the legitimate objects thereof, nor shall organizations be held or construed to be illegal combinations or conspiracies in restraint of trade, under antitrust laws.” – However, the Supreme Court didn’t interpret this statute to give the workers any new rights in terms of protesting.

“The Norris-LaGuardia Act”

– Basically an “anti-injunction statute, in attempting to allow workers to protest without having the court approve an injunction.

– Why did the legislature want to curtail the power of the courts?

o Substantive considerations:

§ Because the granting or denying of an injunction bore no relation to the merits of the underlying social and economic dispute, and further that the courts had no power in making decisions that would make a meaningful impact in the new industrial world.

§ The “objectives test” used in determining to grant an injunction seemed fatally flawed. Labor unions complained that the courts sought to deal with violence by injunctions and citations as opposed to using the criminal laws set in place. Further, the doctrine under which misconduct of a few individuals was attributed to the labor organizations which sponsored a strike or picket line.

· Unions were held liable for every act by every person at a strike, regardless of whether or not they were union members – conspiracy law at the time.

· Further, these issues revolved around social and economic considerations. Decisions concerning such subject matter are reserved for the legislature, not the judiciary.

o Procedural Considerations:

§ The traditional means of obtaining an injunction were not used. The injunctions were based upon an ex parte system.


§ Section 2: Makes a broad declaration of the need to protect workers in joining unions, pursuing collective bargaining, and resorting to concerted activities.

§ Section 4: broadly mandated that that employee and union activities were sheltered from injunctions by the Federal Court.

§ Section 20 of Sherman Act and Clayton Act: For the first time, the court in Hutchinson declared that this section applied in attempting to receive an injunction against employees and union protesters. “Nor shall any of the acts herein defined be considered a violation of any US law.”

· The court in Hutchinson went on to say that the legislative intent is clear that the courts no longer have the power to issue an injunction concerning a labor related activity.

– “The Wagner Act” 1935,

o Section 7: “Employees have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

§ Three limitations to this powerful Act

· 1. Dealt only with the organizational phase of unionization. Once they were on their feet it provided little guidance.

· 2. Dealt exclusively with the actions of the employers.

· 3. It left substantive terms and regulations and conditions of employment entirely to private negotiation.

o Challenged by major industries:

§ NLRB v. Jones and Laughlin Steel;

· Congress has the right to regulate commerce if the commerce is such a close and substantial relation to interstate commerce then their control is essential or appropriate to protect that commerce from burdens and obstructions. (commerce clause).


o Was the product of diverse forces in a changing climate. At this point in history, the unions had a tremendous amount of pull and power within the American community and some began to fear unions due to recent strikes that had the potential to cripple our wartime ec

– Clayton Act

o Section 6:

§ ” the labor of a human being is not an article or commodity of commerce.” Aka unions pe rse don’t violate antitrust laws.

§ “Antitrust laws do not bar unions from lawfully carrying out the legitimate objects thereof.”

o Section 20: “No injunction shall issue in any case between employers and employees or between employers and employees unless there is going to be irreparable harm in property.

o Case: Duplex printing press vs. Deering

§ Don’t buy, install or haul Duplex printing press’ or every worker involved in any of these processes (secondary) will strike.

· Union says this is allowed because of the Clayton Act

· Court says no, the act (6) allows for the” legitimate pursuits of union objects thereof”. This isn’t legit.

· More importantly, court states that the Clayton act only applies when the parties are “proximately and substantially related”. Essentially saying no secondary boycotting is allowed under the Clayton act. Can still be enjoined for a secondary boycott because it’s not “peaceful and lawful” and is NOT a “legitimate object” (Section 6) of a union.

o Why? Would give too much power and economic leverage. Which makes sense.

_ _ _ _ _ _ _ _ _ _ _ _ _

Next Era: Modern Law

The Norris LaGuardia Act (1932)

– Made “yellow-dog” contracts unenforceable. However, you could still be fired for being in a union but it takes away the ability to receive an injunction.

– Courts can’t use injunctions in the vast majority of nonviolent labor actions. Even if a strike is illegal, unless it was violent, it can no longer be enjoined.

– The ban on injunctions is applicable whether or not the disputants stand in proximate relations (you can’t get injunctions even if it’s a secondary activity) so long as it is not violent. BE CAREFUL, this meant that one cannot get an “injunction” to stop the secondary action, but it was still criminally illegal to do so.

o General idea: There is a clear congressional intent to restrict labor relations from getting injunctions against lawful union actions.

The Railway Labor Act

– Similar to the NLRA. Who does it cover? Railroad workers and it also covers people in the airline industry. (That’s all he wanted us to know)

THE NATIONAL LABORS REALTIONS ACT (Most important statute for this class)

– A PRODUCT OF THE NEW DEAL, getting us out of the great depression.

o History info: the NIRA lead to the NLRA. NIRA gave union members the right to collective bargaining and engage in peaceful strikes and picketing. Got shot down as being unconstitutional.

– 1935, NLRA was created (often referred to as the” Wagner Act”= before any amendments were made)