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

Slater-Labor Law- Fall 2012
1)      OVERVIEW
a)      National Labor Relations Act (NLRA) passed in 1935 is main statute
i)        NLRA can change by:
(1)   Amendment (very rare, only minor amendment in 1971)
(2)   Interpretation by NLRB (used to be stagnant, but NLRB is becoming more politicized)
ii)      Employers argue the NLRA represents adversarial relationships (labor v. management) and is not representative of the modern economy
iii)    Unions argue that the NLRA is too weak and does not offer adequate protections for workers.  Also, NLRA should be expanded to cover more workers.
b)      Three big issues in this course:
i)        What are the lawful ends of union activities
ii)      What should the lawful means be that unions can employ
iii)    What should employers be allowed to do in response
a)      Early 1900’s
i)        Labor relations were very dramatic and violent
(1)   U.S. had bloodiest and most violent history during late 1800’s and early 1900’s
ii)      Law at the time was on the side of the employer
(1)   In order to get injunction, an employer only had to show that a strike was a threat against future good will of the company
(2)   End of 1800’s Boycotts, strikes, etc. were held to be criminal conspiracies
(3)   Early 1900’s employers stopped using criminal law, but used civil law (injunctions, etc.)
iii)    Theoretical approach to the law
(1)   Free labor – employees and employers had freedom to contract for whatever conditions they wanted
(a)    Union wanted freedom to enter into union and then negotiate for better rights
(2)   At-will employment rule – still the default rule – free to quit work at any time and employer is free to fire at any time
(a)    A reaction in part to slavery
(3)   All employment is presumed to be for one year
iv)    Ends that the union sought:
(1)   Union wanted power to set wages
(a)    pushed for minimum wage laws (held to be unconstitutional)
(b)   Therefore, unions tried to organize to get better wages (strikes, boycotts)
(2)   Unions wanted to limit hours of work
(a)    Pushed for laws to limit hours (held to be unconstitutional)
(b)   Therefore, union went to strikes and boycotts
(3)   Unions wanted control of the work process
(4)   Unions wanted agreements with employer that required workers to be union (union security agreements)
(a)    closed shop – employer would only hire workers who are already union members
(b)   union shop – after employee is hired, employee is required to join the union
v)      Means that the union employed:
(1)   Strikes, boycotts (appeals to the public), picket lines
(a)    Used against own employer (primary activity) and other related employers (secondary activity)
b)      1920’s
i)        Unions organized under American Federation of Labor – Samuel Gombers
ii)      Meanwhile, employers were organizing and using tactics against unions:
(1)   National Association of Managers
(2)   Company unions – set up and run by employer and subservient to employer’s interests
(3)   Employers sought “yellow dog contracts” (contractual agreement not to join a union) so they could get injunctions against union organizers (“government by injunction”)
iii)    Courts held that it was legal for a union to strike against its own employer for higher wages
(1)   Most everything else was held to be either illegal ends or means, such as:
(a)    Sympathy strikes (most of the time illegal) – more than one union at same employer, one union goes on strike and the other then strikes as well
(b)   Secondary activities (always illegal) – union appeals to any other group (people, workers, other employers) to take action against the employer
a)      The Antitrust Laws
i)        The Sherman Act (1890)
(1)   Declared unlawful “every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations.”
(2)   Loewe v. Lawlor – found unions to be covered under the Sherman Antitrust Laws
ii)      The Clayton Act (1914)
(1)   “No such restraining order or injunction” shall prohibit a case between an employer and employees . . . involving or growing out of a dispute concerning the terms and conditions of employment
(2)   Duplex Printing Press v. Deering – Supreme Court held that the Clayton Act only barred injunctions between the concerned (primary employers) parties in an employment dispute.  Secondary employers can still get injunctions.
b)      Norris-Laguardia Act of 1932
i)        Made “yellow dog” contracts unenforceable
ii)      Barred courts from using injunctions in almost all non-violent labor actions
(1)   Secondary activities could no longer be enjoined
(2)   Primary activities for wages, health, hours, etc. did not violate anti-trust laws
c)      Railway Labor Act (1926)
i)        First major congressional legislation that prevented employers from interfering with the rights of employees to have representatives of their own choosing
ii)      Covers some private sector employees that are not covered by the NLRA (such as the airline industry)
d)     The Wagner Act (1937) (NLRA)
i)        Gave workers the right:
(1)   To organize
(2)   To bargain
(3)   To engage in peaceful strikes and picketing
ii)      Three main limitations
(1)   Aim limited to the organization phase of labor relations
(a)    Does not mandate that unions be formed or recognized in any particular industry
(2)   Concerned exclusively with the activities of employers which were thought to violate the rights guaranteed by Section 7 (contained only employer ULPs, no union ULPs)
(3)   Left substantive terms and conditions of employment entirely to private negotiation
(a)    Does not allow the state to set the terms of labor contracts
iii)    Goals of the Wagner Act
(1)   Stability and labor peace
(2)   Legitimizing and encouraging unionization
(3)   To allow employers and employees settle their own disputes on an even playing field but without the government setting terms
(4)   To bring the law into conformity with the realization of unions
iv)    Main Provisions of the NLRA
(1)   Section 7 (workers rights)
(a)    Right to self-organization; to form, join, or assist labor organizations
(b)   Right of employees to bargain collectively through representative of their own choice
(c)    Right of employees to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection
(i)     Strikes
(ii)   Picketing
(2)   Section 8(a) (unfair labor practices – ULPs)
(a)    Prohibits certain conduct by employers which restrains/interferes/coerces employees in their exercise of § 7 rights
(b)   Prohibits the domination or interference with the formation or administration of any labor organization
(c)    Employer cannot discriminate in the hiring or tenure in a way which encourages or discourages union membership
(d)   Employer cannot discharge or discriminate against employee because he has filed charges or given testimony under this act
(3)   NLRA authorizes the creation of the NLRB to enforce
(a)    NLRB can adjudicate and prosecute employer violations
(i)     Hear cases, decide cases, issue orders to provide remedies
(ii)   Courts are given power to enforce (or not enforce) NLRB’s remedies
e)      Cases creating labor exemption from anti-trust laws
i)        Apex Hosiery (1940) – Primary activities
ii)      Hutcheson (1941) – Secondary activities
f)       Taft-Hartley Act (1959) (Labor Management Relations Act – LMRA)
i)        Excluded supervisors from coverage under the NLRA
ii)      Created Union ULPs (§ 8(b))
(1)   Banned most secondary activities
iii)    Prohibited the “closed shop”
iv)    Permitted the “open shop,” but created option for states to ban the open shop (Right to Work states)
g)      Landrum-Griffin Act (1959)
i)        Added more restrictions on secondary activities
ii)      Gave rights to individual members vis-à-vis their unions (e.g. right to participate in elections)
iii)    Tried to root out corruption
a)      Jurisdiction
i)        NLRA extends to the limits of the Commerce Clause, realistically it is limited only by its own provisions
ii)      Excluded Employers (§ 2(2)):
(1)   U.S. Government
(2)   Federal Reserve Banks
(3)   Federal, state, county, and municipal governments
(a)    Most public employees are accorded rights through state and local laws to organize with the exception of no right to strike
(4)   Railroads and airlines (covered by the Railway Labor Act)
iii)    Excluded Employees (§ 2(3)) (if not covered, employee has no § 7 rights):
(1)   Agricultural laborers
(a)    Narrowly defined – employee must be an integral part of farming operations
(i)     Employee is not excluded from NLRA if his work is only related to farming
(ii)   Example – Migrant workers are excluded, slaughterhouse workers are not
(2)   Independent contractors
(a)    Right to control test
(i)     The more control the individual worker has, the more likely that he is an independent contractor
(ii)   Entrepreneurial opportunity for gain or loss
(3)   Supervisors (defined by § 2(11))
(a)    “Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, OR responsibility to direct them, OR to adjust their grievances, OR effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment

anti-solicitation rule before union activity, they cannot enact one solely for anti-union purposes
(b)   Rules banning oral solicitation
(i)     Banning oral solicitation during work hours is presumptively legal
(ii)   Banning oral solicitation during non-working hours is presumptively illegal (lunch break, after work, before work)
(c)    Rules banning Literature
(i)     Employer can restrict/prohibit employees from distributing literature in any work area regardless of working or non-working time (it prevents clutter).
(ii)   Employers cannot prohibit the distribution of literature in non-work areas during non-work time (lunch room, break room, etc.)
(d)   Rules banning solicitation on Bulletin Boards
(i)     Employer can limit union’s use of bulletin boards to the same extent that they limit similar organizations use of the boards (what are similar organizations / uses?)
(ii)   Employer cannot discriminate against the union by letting other organizations use the boards and not the union
(e)    Rules banning buttons or clothing
(i)     Employers cannot bar pro-union shirts, buttons, etc., except where necessary to maintain production, safety, or discipline
1.      General dress code is not a good enough justification to ban pro-union clothing unless it is a legitimate dress code (e.g., not enacted in response to union organization activity) and the employees have contact with the public
(f)    Rules banning solicitation through email
(i)     Will be a ULP if general no solicitation policy is enforced disproportionally against unions, OR if the employee spends the majority of his day in front of a computer (are emails like oral solicitation or literature?)
(g)   Confidentiality Agreements
(i)     Employers cannot prohibit discussing wages, salaries, and discipline amongst employees unless the restriction only applies to situations where the employees are in the presence of customers
(3)   Hospital Exceptions – Board is permitted to carve out exceptions in federal labor policy for hospitals
(a)    Hospital employer can ban all solicitation in work areas “devoted strictly to patient care” (including oral solicitation during non-working time)
(b)   But, solicitation (oral and literature) must be permitted in other non-work areas (lounges and cafeterias) even if they are accessible to patients and the public “absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas”
(c)    Are supervisors (acting as the employers) being coercive?
(i)     Supervisors can participate in anti-union activity for the employer, but not in a pro-union activity
1.      Exception, supervisors can be pro-union in one-on-one setting
(4)   Waiver of Solicitation Rights – employees (through the union) cannot waive (allow employer to prohibit) the employees’ right to solicit because it could prevent other unions from forming or coming in
b)      Non-Employee Solicitation (Lechmere line of cases)
i)        General Rule:
(1)   An employer can prohibit distribution of union literature by non-employee organizers on his property, EXCEPT where the location of a plant and the living quarters of the employee place the employees beyond the reach of reasonable union efforts to communicate with them (very narrow exception, such as a mining or logging camp)
(a)    Balances employees § 7 rights versus the employers property rights
ii)      Ways around the rule:
(1)   Employers can impose rules that prevent solicitation, but they cannot apply them discriminatorily
(a)    This applies to property open to the public such as parking lots – if an employer allows other groups (salvation army, girl scouts) on the property, it may be discriminatory and a ULP to not allow union organizers
(b)   Employers’ general trespass rules must be facially neutral in that it prohibits all non-employees from coming onto the property as opposed to only prohibiting union organizers