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

Labor Law – Outline

I.                   The Origins and Structure of a National Labor Law
a.       NLRA places reliance on an administrative agency, the NLRB. This is because courts usually have a bad track record on this topic.
b.      Philadelphia Cordwainers (Commonwealth v. Pullis) (1906) – p. 19
i.      Crt. held that defendants were guilty of criminal conspiracy when they tried to prevent other workers from working for lower wages. The benefit was to the defendants and it injured the other workers and society.
ii.      Issue continues: Is it wrong for unions to regulate the wages of others? To what extent should the law restrict the majority to prevent the freedom of individual workers? Who speaks for the individual workers who are not part of the union? What if the individual workers don’t want collective bargaining? Who speaks for the public?
c.       Commonwealth v. Hunt – p. 22
i.      Moves the law away from the view that unions are per se illegal. Although criminal law was no longer used as much to punish unions, civil injections became the norm. 
d.      Unlawful Activity
i.      Certain actions that are unrelated to collective bargaining remain illegal today. 
e.       Vegelahn v. Gunter (1896) – p. 23
i.      Crt. upheld injunction against picketing. Crt. held that picketing is inherently intimidating and is therefore illegal. 
f.       Summary of Legislation
i.      Railway Labor Act of 1926 – p. 31
1.      Yellow dog contract – employee agrees not to join a union; upheld by USSC in 1908 and 1915. 
ii.      Norris-LaGuardia Act of 1932
1.      Response to the use of injunctions against unions. Congress limited the ability of federal crts. to enjoin unions. Designed to create neutrality.
iii.      National Industrial Recovery Act
iv.      Wagner Act of 1935
1.      This is the fundamental law of labor today. 
2.      Protects right to collective bargaining.
3.      Creates NLRB. 
4.      Dramatic growth of unions.
5.      ** Reduce inequalities in bargaining power and there will be less need for state intervention. Encourage industrial peace. This remains the goal of collective bargaining.**
v.      Taft- Hartley Act of 1947
1.      Addressed claim that unions were too strong.
2.      Held that unions can be liable for Unfair Labor Practices (ULP).
vi.      Labor-Management Reporting and Disclosure Act of 1959
1.      Regulates internal affairs of unions.
g.      NLRB Jurisdiction
i.      Applies to all things affecting commerce; very broad grant. 
ii.      14(c) of NLRA allows NLRB the discretionary authority to decide which cases to hear. It cannot grant power to states to hear cases it declines. 
iii.      Jurisdiction is critical, e.g., comp. has no protection if NLRB declines to hear a case regarding secondary boycotts. 
iv.      Only applies to persons defined as employees. NLRA expressly names 2.5 m agricultural workers who are not included under the act. 
v.      Boston Med. Ctr. (1999) – p. 60 – Crt. found that students are employees and covered under the act; but this may have been overruled. 
vi.      Control test – p. 61 – excludes supervisors from being defined as employees/covered under the act b/c of inherent conflict with employees. 
vii.      NLRB v. Yeshiva University – p. 64 – full time faculty members of a private university who are shown to have substantial, independent decision-making authority on policy and operations issues are excluded from protection. This case demonstrates how difficult it is to apply the managerial exception. 
Summary of Employees under NLRA
Covered
Not Covered
-Workers on strike
– Hospital house staff
– Job applicants (including union organizers)
– Illegal aliens

– Supervisors/managerial workers
– Workers in confidential positions (e.g., secretaries)
– Retirees
-Domestics
– Independent contractors


h.      NLRB Procedure – p. 66-70 (see notes for greater detail).
i.      Not sua sponte.
ii.      NLRB – 2 functions
1.      Determine employee representatives.
2.      Decide whether a particular challenged activity constitutes an ULP.
iii.      NLRB – composed of 5 members appointed by the President for 5 year terms. 
iv.      In representation cases, the NLRB has final authority; usually delegated to field officials.
v.      ULP cases
1.      Determines whether to act on claim; look to see if prosecution will effectuate the policies of the Act.
2.      Administrative law judge (ALJ) holds a hearing and issues a report; rules of evidence apply; other party can intervene.
3.      Effect of report – receives same weight as Bd. decision if neither party files exception. If accepted, the Bd. has complete authority over the action (but usually gives credibility issue deference to ALJ).
4.      Party may appeal Bd. decision to Fed. Crt. of Appeals
5.      Appellate Review and Degree of Proof
a.       Universal Camera – p. 72 – Reviewing courts should consider all the evidence, supporting and rejecting the decision. Look at all the facts, including those that the NLRB doesn’t cite. Crt. should uphold decision by the Bd. if the decision is supported by “substantial evidence contained in the record as a whole.” USSC cites § 10(e). 
b.      Chevron v. Natural Resources Defense Council – Statutory interpretation test – p. 73
i.      Has Congress spoken precisely to the issue in question? If yes, then must give affect to the unambiguous intent of Congress.
ii.      If statute is silent or ambiguous, ask whether agency’s action is based on a permissible interpretation of the statute. If yes, then crt. must accept the agency’s interpretation, if the agency governs. If it is an act outside the scope of the agency, then no deference is owed. 
II.                The Collective Struc

sition, strongly held, NLRB cannot interfere, even if comp. has overwhelming bargaining power. 
vi.      NLRB v. Katz (1962) – p. 110
1.      Comp. NOT allowed to offer something substantially better to employees b/c it undermines the union. Substantially better is something like better wages.
2.      5 Principles of Katz
a.       Employers cannot make changes in wages and working conditions without first reaching an impasse in negotiations w/ union. Cannot not make improvements or decreases.
b.      Cannot prematurely declare an impasse b/c bargaining may still be fruitful. Most reach impasse w/o some other violation.
c.       Once impasse is reached, employer can make changes that are reasonably comprehended in the final negotiation offer.
d.      Employer can lock out union members.
e.       Impasse connotes temporary suspension of duty to bargain until there is a change in circumstances. 
3.      The NLRB can be in a tough place here b/c they may find bad faith but don’t want to strip the employees of new rights. NLRB has power to force comp. to return things to status quo. 
vii.      Three Areas of Bargaining
1.      Mandatory Subject of Bargaining – § 8(d) requires parties to bargain over: wages, hours, and terms and conditions of employment. Union and comp. are required to discuss them. Refusal is a violation of 8(a) for comp. or 8(b) for union. However, concession is not required.
2.      Permissive Subjects of Bargaining – all other things that can be bargained about. Comp. or union can refuse to bargain over these issues. You can propose bargaining over the issue but insistence is an ULP. 
a.       A party cannot refuse to enter into a k only b/c it doesn’t include a permissive subject. 
3.      Illegal Subjects of Bargaining
4.      5 Consequences of Mandatory Subject of Bargaining
a.       Party must bargain over subject in good faith.
b.      Non-controlling party may use economic leverage to get compromise.
c.       If employees strike when comp. fails to bargain on mandatory area, strikers are guaranteed job back. They are ULP strikers.
d.      Midterm modifications that deal w/ mandatory provisions are unlawful unless consent by other party. Unilateral change of mandatory area is NOT allowed.
e.       Controlling party must bargain to impasses before it can take unilateral action on mandatory subjects. This applies before/after (not during) k. 
viii.      NLRB v. Wooster Div. of Borg-Warner Corp. (1958) – p. 117
1.      Bargaining over permissive subjects of bargaining is only allowed if both sides agree to it. Pressuring bargaining on permissive area is an ULP. The creation of an impasse on those subjects doesn’t allow bargaining over mandatory areas.
2.      Ballot recognition clause is an area of permissive bargaining.