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

Lofaso_Labor Law_Fall 2009

Labor Law

Why study labor law? Less than 10% of the private sector is utilized. Unions are responsible for every piece of progressive legislation that has made the workplace safer, more equal and fair, etc.

Unions put a lot of money into lobbying for union rights.

Labor law deals with a free market solution to a free market problem

Collective rights versus individual rights!

Labor law deals with a lot of arbitration rather than litigation. Most of labor law is procedural.

Would federal labor law preempt state property law?
Constitutional law always trumps state and federal statutory law. International standards and supranational law (EU) (NAFTA) are the highest.

13th amendment- involuntary servitude

Regulations, policy, contracts, are all at the bottom of the hierarchy.

NLRA- National Labor Relations Act will be the focus of the course. (Wagner Act)

At the beginning of the 19th century, there was a mixed force of labor. (slaves, free labor and forced labor) Trade unions begin in cities where large number so people reside. Unions began with skilled labor. The more skilled, the more demand those individuals had.

After the civil war, a recession occurred. The formation of unions was coming about again in a surge at this time. AFL founded in 1886 by Samuel Gompers. Gompers pushes voluntarism. The AFL was a very moderate union with moderate demands with challenges from Eugene Debbs (Industrial Workers of the World) whose goal was abolish capitalism all together. (radical view)

3 Stages or Periods – Repression, Tolerance, Recognition

Repression: repressing worker combination through criminal conspiracy, injunction, and tortious interference with business

Tolerance: It was giving an immunity to workers (§ 20 of Clayton Act)
‘The labor of a human being is not a commodity or article of commerce”

A right is when you can demand something from someone else. On the other side of that, a duty would be owed to match that right.

Recognition NLRA

Philadelphia Cordwainers v. Pullis-
-criminal conspiracy case to deter unionization of workers

Commonwealth v. Hunt – The conspiracy must be an agreement by two or more persons to commit a criminal or unlawful act. This was not a criminal conspiracy.

Vegelahn v. Guntner – labor injunction relief

Lochner v. New York- NOT THE LAW TODAY!! The Court overturned the New York State Statute disallowing bakers not to be able to work more than eight hours a day.

Lochner is overturned by the new deal legislation case! It is the current framework of current labor law. (Jones v. Laughlin)

Lowe v. Lawlor- these working class people who went on strike have to pay the damages to the company.
Gompers case-The Court found that the publication was damaging to the company. No 1st amendment protection in this time period historically
Replacement workers (“scabs”)
Consumer boycott – (Lowe v. Lawlor)

The argument is that the boycott restricts the liberty of the trader to do business. At this time, there is no human right to withdraw your labor.

Duplex Printing Press Co. v. Deering (repressionism)- union conduct violates the Sherman Act and is not exempted by the Clayton act. Judicial Activism at its finest here- There are only four presses in the US (this one is the only one without a union)
— The dissent sees the majority as a narrowing of § 20 of the Clayton Act.
The court here has eviscerated the Clayton act and brought back repression-

Apex Hosiery v. Leader – Not a violation of Sherman Anti trust act- Nullifies Norris LaGuardia Act. A primary interference with business activity is okay.

United States v. Hutcheson – We are going to immunize secondary acts to primary acts under Norris LaGuardia. Definitely within legal limits of § 20 Clayton Act

Norris LaGuardia act (1932)is the legislative answer to this case! Still good law today… just can’t cause irreparable harm

1932 Norris-LaGuardia Act: Still a policy of Tolerance—Norris-LaGuardia effectively immunizes labor unions from certain behavior.
§1 Removes federal jurisdiction and authority to grant TROs, restraining orders, or permanent injunctions in any case involving or growing out of a labor dispute
§ 2 Declaration of public policy in labor matters: recognizes for the first time labor’s claim that “the individual unorganized worker is commonly helpless to exercise actual liberty of contract”
§ 3 Outlaws the yellow dog contract as a matter of public policy
§ 4 Bars issuance of injunctions, TROs, PROs, against the following enumerated acts (whether the person acts singly or in concert):
· Ceasing or refusing to perform any work or to remain in an employment relationship;

Becoming or remaining union member;

· Engaging in strikes or helping strikers;
· Engaging in nonviolent/nonfraudulent patrolling or publicizing labor disputes;
· Engaging in peaceful assemblies for organizing labor disputes;

Agreeing to do or not to do any of the above Acts;

· Rendering advice or entering into agreement to do the above.
§ 5 Bars issuance of injunctions, etc., for conspiracy to do above
§ 6 Immunizes union officers and unions for unlawful acts of its members, except on clear proof of actual participation, actual authorization, or actual knowledge
§ 7 procedural limitations on issuing injunctions . . . in other cases involving labor disputes
· only after notice and hearing
· must show “substantial and irreparable injury to complainant’s property is unavoidable” after posting adequate security
· only for 5 days (TRO)
§ 8 Clean-hands doctrine—barring injunctions where complainant failed to comply

substantive standards that unions and employers must meet before they may use employer funds to provide pensions and other employee benefits to unionized employees.
1959: Landrum-Griffin amendments
· Further bans secondary boycotts
· Bans u-agreements not to deal with nonunion shops or handle nonunion goods
· Limits recognitional picketing in the following instances–§ 8(b)(7)
· There is a valid cba in place another union
· Union representation election held within last 12 mos
· After 30 days of recognitional picketing, the Union has not filed for an election to determine representation
1974: Healthcare amendments
· Extended NLRB jurisdiction to nonprofit health care institutions
· (Jurisdiction over for profit health care institutions was already established)
· Special rules for resolving disputes in that industry
NLRA (Wagner) -1935
Railway Labor Act- airlines and railroads -1926
Jones and Laughlin – 1937

A union shop can hire either union member or not, but the non-union persons have to pay for services provided by the union. An NLRA makes the union shop legal

Open shop states – 22 currently allow that- the other states are against
Closed shops- no longer legal

Recognition era: Roosevelt comes into office and the New Deal Legislation arises.

If one has problems with the NLRA, they need to ask Congress to change the legislation regarding the Act. Employers have no rights under the NLRA. It grants rights exclusively to employees and some to unions. It imposes duties on employers and unions. The Taft Hartley Act of 1947 narrowed the power of unions. If you are not an employee, you are not protected under this act. And, the employer must fall under the provisions of the act.


NLRA Outline:
Section 1 (29 U.S.C. § 151): Findings and Policies
Section 2 (29 U.S.C. § 152): Definitions
(1) person
(2) employer
(3) employee—“any employee” but excludes:
· agricultural workers
· domestic servants
· family employees
· independent contractors
· supervisors
· individuals employed by RLA employer
(4) representatives
(5) labor organization
(6) commerce
(7) affecting commerce
(8) unfair labor practice (further defined in § 8)
(9) labor dispute
(10) National Labor Relations Board
(11) supervisor
(12) professional employee
(13) agent
(14) health care institution
Section 3 (29 U.S.C. § 153): National Labor Relations Board
(a) five member Board
· appointed by the President with advice and consent of Senate
· 5-year terms
· a designated Chairman