Professor Slater, Fall 2009
Current rules how U get recognized
· Elections run by Board if U has 30% or more cards, 2nd U can get on ballot with 10% or more
§ Why elections? – Section 8a2 expressly prohibits ER from dealing with a U with less than majority support
· ER have option of voluntarily recognizing U because of 50% or more cards
· Then per Gissel even if U has lost election, the Board can order ER to recognize and bargain with U
· Some U use a neutrality agreement where ER says it will not run an anti-union campaign.
§ Some argue this is an 8a2 violation
§ RICO and SEC suits have been brought too under these agreements
§ So far the Board has said these are not illegal
· Or a card check agreement where an ER agrees it will be bound if a majority of cards are signed.
PART I The Evolution of Labor Relations Laws
1. LABOR LAW BEFORE THE WAGNER ACT cb 1-30; Supp. iii-iv
The Labor Problem and the Law cb 4
Payne v. Western & Atl. Rr. Co., 81 Tenn. 507, 518 (1884) – Tenn Sup Ct says an ER can give same orders to an EE that a master of house can give servant in upholding ER’s prerogative to forbid EE’s from shopping at a particular store.
The Rise of Labor Movement cb 11
1834-1837 National Trades Union first federation of city central trade unions.
1850s first national craft unions
1866-1872 The National labor Union loose federation of national, city central and local unions to fight for 8 hour day
1869 Knights of Labor-committed to racial, sexual equality via political means, declined due to poor leadership
1886 American Federation of Labor, founded and presided over by Samuel Gompers through 1924-a union accepting capitalism and goal of enlarging bargaining power
Judicial Intervention cb 16
The Labor Injunction in Private Disputes
Vegelahn v. Guntner(official in upholsters union) 44 N.E. 1077 (1896) lower ct injunction against picketing; at this time, CL applying to picketing had to have lawful means and end. Holmes says social pressure OK as competition; court rejects Holmes and reinstates injunction. Court found picketing to be intimidating and thus illegal.
Objectives Test – legal means and legal ends necessary pg29 resulted in ER’s often achieving injunctions during the 1920s
Plant v. Woodscb 23
Bowen v. Mathesoncb 27
Mogul Steamship Company v. McGregor, Gow & Co. cb 27
United Shoe Machinery Corp. v. Fitzgerald cb 29
2. CREATING THE MODERN LABOR STATUTES cb31-48; 73-86; Freeman & Medoff HO
The Antitrust Laws
The Sherman Act (1890) 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…” used more often to prosecute unions than businesses
Loewe v. Lawlor208 U.S. 274 (1908) cb 32 famously Danbury Hatters case – issue: does Sherman Act apply to union of workers?
§ Pl.= non-U hat mfg’s, Def. = union using strikes, boycotts of wholesalers selling to them non-U mfg’s.
§ Sup Ct. found facts “in restraint of trade or commerce among the several states”.
Coronado Coal Co. v. United Mine Workers268 U.S. 295 (1925) Pl = # of coal companies within common control against Def = Mine Workers Dist No. 21 for damage to business and property stemming from violent strike.
§ Sup Ct. said E failed to support claim under Sherman Act because only “local motive” found. On remand, new E introduced showing U wanted to affect commerce in other states and the Court found this to violate the Sherman Act.
The Clayton Act 1914 and the Development of the Unions 1890-1930 thought by U’s to override their problems under the Sherman Act; this proved false. During 1st half of period, unions strengthen due to war production requirements & President Woodrow Wilson’s National War Labor Board with pro-union mission.
Duplex Printing Press Co. v. Deering25
§ Chief Constitutional argument: violated 10th Amend. reserving powers not expressly delegated to the federal gov’t to the states.
· Court upholds constitutionality of NLRA in NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937) intrastate activities that have “a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”
§ Section 7’s [3 rights] “Employees shall have the right to self-organization [organize], to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” [peaceful strikes and picketing] Taft-Hartley Act 1947 (pg 80) The original Wagner Act did not contain any union ULP’s but were added in the THA (aka Nat. Management Relations Act, spurred by prevalence of strikes in 1946).
§ THA banned most secondary activities and banned the closed shop (only hire people that are already members of the union). THA leaves open that the union shop (U & ER agree that after EE hired must join U)is still legal.
§ THA allowed individual states to make any form of union security agreement. This is the right to work option, making it illegal for unions and companies to agree to require employees to pay dues (21 states) mostly in south and southwest. It also excluded supervisors.