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Labor Law
West Virginia University School of Law
Lofaso, Anne Marie


Fall 2007


A. Common Laws Repressing Unions

Criminal Conspiracy

Philidelphia Cordwainers
n The courts uses language describing coming together for mutual aid and protection as “conspiring.”
o They came together collectively and demanded a certain fixed wage.
o If they had done this individually, this would not have been a crime.
§ But they used their individualized bargaining power and morphing it into a class.
n This case does not represent the law anymore.

Commonwealth v. Hunt
n An employer fired an employee at the union’s request because the employee refused to abide by the union’s rules.
n This was ultimately held lawful. This is a departure from the presumption that employees coming together to bargain is illegal.
n Now, the Court considers the purpose of the union before determining whether or not there is a conspiracy.
o The purpose here was to induce all employees into joining the union. It was not an invalid purpose.

Ø Hunt radically diminished the power of the criminal conspiracy doctrine.
Ø This put us in the direction of tolerating the union.

Labor Injunctions

Ø These were brought against unions for damages, and more typically, for injunctive relief restraining the strike or the boycott.

Vegelahn v. Gunter
n This prevented picketing.
n The patrolling or picketing, under the circumstances here, had an element of intimidation. It also interfered with the employer’s business.

Ø The labor injunction was one of the most important tools in repressing labor.

Judicial Response to Protective Labor Legislation

n Substantive due process protects the freedom of contract.
n “There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker.”

B. Laws Tolerating Unions

Ø Big business is growing. There began to be a fear of monopolies. Thus, the Sherman Anti-Trust Act was passed.
o “Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is declared to be illegal.”
§ This was predominantly passed to deal with monopolies. But what did the courts do? They use this against organized labor because it is a combination.

Loewe v. Lawlor
n This involved a secondary consumer boycott: “do not patronize this business.”
n The Supreme Court held that the Sherman Act applied to the combinations of workers, at least where the union boycotted goods that crossed state lines.
n The damages in a Sherman Anti Trust act are treble – triple.
o Because they wanted a union, these people lost all their property. This seemed just at the time because we had to have laissez-faire.

The Clayton Act

Ø A staff report signed in 1915 by the Commission’s char and labor representatives found that labor was not receiving a fair share of the nation’s wealth. The growth of national corporations has made bargaining by individuals impossible, and the inequality of income had reduced mass purchasing power.
Ø President Taft signed the law creating the present Department of Labor.
Ø Congress enacted the Clayton Act, which exempts the secondary boycott from anti-trust violations. We will tolerate it – you are immune from tort or criminal liability as long as the purpose of the boycott is legal.
o Labor supporters were convinced that this act legalized the secondary boycott.

Duplex Printing
n We have a union that is engaging in a boycott against the products of this factory and the defendants are saying that this is an act that destroys interstate trade.
o This is the machinist union that is trying to get closed shop eight-hour days and decent wages.
n From the employer’s point of view, a strike would be disruptive to this business.
o They argue that this is conspiring to restrain trade.
n The boycott was a secondary boycott: this is a combination not merely to refrain from dealing with complaintant, or to advise or by peaceful means persuade complaintant’s customers to refrain, but to exercise coercive pressure upon such customers, in order to cause them to withdraw patronage.
n The majority says that the Clayton Act only covers disputes between the employer and the employee. This only applies to primary activity by narrowly defining employer and employee.
o “Terms and conditions of employment are the only grounds of dispute recognized as adequate to bring into play the exemptions; and it would do violence to the guarded language employed employed were the exemption extended beyond the parties affected in a proximate and substantial, not merely a sentimental or sympathetic, sense by cause of the dispute.

Ø This was activism that continued to repress labor unions.
Ø Is it likely that Congress intended a narrow definition of “labor dispute” that would also permit injunctions against consumer boycotts of the type involved in that case? No.
Ø Unions engage in secondary consumer and producer boycotts because a primary strike is unable to prevent a cessation of production at the struck employer.

Coronado Coal
n Primary strikes are beyond the reach of anti-trust. This is not an intent to restrain interstate commerce.

The Norris-LaGuardia Act

Ø This was in res

pose of collective bargaining,
n And shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment.

Section 8: Unfair Labor Practices

a. Employer ULPs:
oInterfere with, restrain, or coerce employees in the exercise of the rights guaranteed in §7.
oto dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. PROVIDED …
§ So no company unions.
oby discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. PROVIDED …
oto discharge or otherwise discriminate against an EE because he has filed charges or given testimony under this Act;
o to refuse to bargain collectively with the representatives of its EEs, subject to
b. Labor ULPs:
(1) restrain or coerce
(A) EEs in the exercise of their § 7 rights; Provided that unions can
prescribe own internal rules regarding membership
(B) ERs in the selection of their representatives for purposes of collective
bargaining or grievance adjusting
(2) cause or attempt to cause ER to discriminate against EE in violation of
§ 8(a)(3) or discriminate against an EE on the basis of U-membership having
been denied or terminated
(3) refuse to bargain collectively with ER
(4) to engage in secondary action
(7) limitations on recognitional picketing
c. Free Speech Proviso:
n The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threats of reprisal or force or promise or benefit.
d. Definition of Mandatory Subjects of Bargaining and Notice Requirement:
n The mutual obligation of the employer and the representative to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . .

Section 10(c):