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

Labor Law – Fall 2009

I. History Before the Wagner Act
A. Why is this important?
1. The NLRA has some huge gaps
a) Board has had to fill in gaps with decisions
B. Arguments about the NLRA
1. Employers: it is a model of adversarial ER-EE relations
2. Union: think it is too weak; does not offer adequate protections for workers
C. Vegelahn v. Guntner:
1. Picketing had to be done for a lawful end
2. Picketers can’t intimidate, use a scheme or conspiracy that annoys or prevents anyone from entering the building
D. Plant v. Woods
1. The end of getting employees to unionize is illegal
E. Post-Plant what can unions do?
1. A strike that has the goal of getting EEs to bargain collectively against ER was an illegal end, so union activity was illegal
2. Union public boycott of company is illegal means
3. Striking over work assignments is an illegal end
F. Distinction between Primary and Secondary Activity Today
1. Primary: Acts directly against employer
2. Secondary: Acts against other companies, employers, etc. who have no dispute with employees
II. Creating the Modern Labor Statutes – The Anti-Trust Laws
A. The Sherman Act
1. Basics:
a) Originally intended to guard against restraint of trade, it was also used as a basis for federal judicial intervention in labor disputes. Courts were faced to determine what acts were legal or illegal. Relief under the Sherman Act included criminal conviction, injunctions, and treble damages.
2. Loewe v. Lawlor
a) Congress did not exempt unions from the antitrust laws. The provisions of the Sherman Act are applicable to union activities, and to the degree that unions combine to conspire to restrain interstate trade, they will be liable for treble damages under the antitrust laws.
B. The Clayton Act
1. Basics:
a) Anti-trust laws shall not forbid unions from lawfully carrying out legitimate objectives
b) Courts can’t issue injunctions in any case between an employer and employees or between employers and employees that grows out of disputes over conditions of employment unless its necessary to prevent an irreparable injury.
2. Duplex Printing Press Co. v. Deering
a) Union activity must be proximately related to a controversy between ER & EE – NOT GOOD LAW
b) Can’t enjoin stuff that union does directly against Duplex but can enjoin stuff union does to other people/companies.
C. Norris-LaGuardia Act of 1932
1. Made yellow dog contracts unenforceable
2. Barred courts from using injunctions in almost all nonviolent labor activities
D. Apex Hosiery v. Leader
1. Primary activities for the end of improving wages, hours, health/safety and union recognition does not violate antitrust laws
E. Hutcheson
1. Creates labor exemption from antitrust laws. Now secondary activities are not anti trust violations
F. Railway Labor Act
1. Covers some private sector employees that are not covered by the NLRA
2. Specifically applies to railroad workers. Applies to people in airline industry too.
G. The Wagner Act/NLRA
1. Goals:
a) labor peace and stability – fewer strikes
b) Provide a fair and mutual playing field
(1) equalize bargaining power
2. Section 7 Rights:
a) Right to assist unions, join unions
b) Employees have right to bargain collectively through reps of their own choosing
c) Right to engage in other concerted activities including the right to strike
3. Section 8: ULPs (things employers cannot do)
a) Illegal to interfere with or restrain workers in exercise of Section 7 rights
b) 8a: Employer ULPs
(1) 8a2: bars company unions
c) 8b: Union ULPs
4. NLRA also created a way for employees to enforce the rights – NLRB
5. NLRA does NOT:
a) Mandate or require unions to be form

fired illegally, cannot get reinstatement to job or back pay
3. NLRA does NOT cover:
a) People in railroad and airline industries
b) Public employees (covered by state and sometimes local laws)
(1) Explicitly excluded from statute (sect 2)
c) Agricultural workers
(1) Explicitly excluded but some state laws give them bargaining rights
(2) Who? An integral part of farming operations
(3) Why? Disproportionately minorities and in the South
d) Domestic workers
e) Independent contractors
(1) Courts use the test of “management control over the performance of the work done.”
f) Supervisors
(1) Authority to hire, fire, discipline, reward, etc.
(2) Effects
(a) Supervisors are often in front lines of anti-union organizing
(b) Can be fired for supporting/not opposing the union
(c) Union elections can be reversed if its found that some union supporters during campaign were supervisors
g) Mangers
(1) NLRA does not mention managers at all but common sense says they are excluded
(2) Broad definition: those who formulate and effectuate management policy by making operative the decisions of their employers
h) Confidential Employees
(1) No explicit exclusion but has been created by NLRB in courts
(2) Who? Employees at any level who have access to confidential labor realtions info and act in a confidential capacity
(3) EX: the secretary to the person who is in charge of labor relations
i) NLRB does not have extraterritorial application (overseas workers)