labor law

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labor law
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2014-05-12 23:19:05
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labor law
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  1. Major issues in Labor Law
    • History, political economy, and administration of labor law
    • - political economy: see casebook
    • - legal construction from 19th century to 1932- from suppression to tolerance of labor unions
    • - rise of mass production
    • - politics of de-unionization and growing inequality
    • - New Deal legal and administrative framework
    • Law of Union organizing
    • - Statutory regulation of Employees' Freedom of Association
    • - Constitutional regulation of employees' freedom of association
    • - constitutional and statutory regulation of employer speech

    • Structure of Collective Bargaining
    • - decentralized bargaining: definition of bargaining units and negotiating partners
    • -majority rule and exclusive representation
    • -discouragement of collaborative unionism: doctrine of managerial exclusion, ban on collaborative labor relations, historical fluke of exclusive representation by non-collaborative unions

    • Regulation of Bargaining Subjects and Process
    • - legal duty to bargain: safeguarding managerial prerogative
    • -bargaining during the term of the contract
    • -remedies for bargaining violations

    • Bargaining power: economic weapons, the social wage, and capital mobility
    • -"concerted activity"
    • -unprotected activity and the law of "inside action"
    • -employer responses to full strikes
    • - lockouts
    • -regulation of secondary strikes, picketing and boycotts
    • -regulation of capital mobility: 8(a)(3); successorship; labor and bankruptcy
    • - the social wage and bargaining power

    • Enforcement of the Collective Agreement
    • -substituting arbitration for strikes and courts
    • -substituting arbitration for NLRB determinations
    • -historical origins of arbitral legalism
    • - does labor arbitration pacify or empower employees?
    • -penalties against union officers and members
    • - the duty of fair representation
    • -adversarial labor relations form the 1950s to 2010s

    Can federal labor law be revived in a flexible economy?

    Employer Neutrality agreements


    Organizing through corporate campaigns

    Organizing without collective bargaining: worker centers, self-regulation, mass protests

    Local strategies and federal preemption

    • Public sector Unionization
    • -Quid Pro Quo- no strikes and interest arbitration
    • -scope of bargaining and the problem of democracy
    • -the case of teachers: collective bargaining under pressure from policy and politcs
    • -public sector collective agreements during financial crises
    • - creating public sector "employers" to facilitate unionization
  2. Administration of Labor law
    • National Labor Relations Act
    • 7: right of free association
    • 8: Outlines unfair labor practices
    • - 8(a)(1): prohibits interference by employer with eee's sec.7 rights
    • -8(a)(3): discrimination against employee by employer
    • 9(a) ee's bargainig rep shall be selected by majority of ees in bargaining

    Through National Labor Relations Board, file Unfair Labor Practice complaint that can lead to a hearing and remedies


    • representation cases:
    • - petition for election --> board determines if covered by NLRA, scope of bargaining unit + which particular workers are in that unit and have the right to vote --> if objections, Board has trial type hearings to decide
  3. statutory regulation of employee's freedom of association
    • NLRA §7: right of free association-
    • employees have, "the right to self-organization, to form, join, or assist labor organizations," (§7) and that it is an unfair labor practice for an employer, "to interfere with, restrain, or coerce employees" in exercising their §7 rights. 
    • General rule: union's access to employees on company property is quite limited

    can communicate only during nonworking time; paid union organizers have access ONLY in the rarest circumstances (typically when the employees live on company property)

    limit: no §7 rights during work time; can be fired and unprotected by the Act
  4. who is limited/has right to free association?
    Only a right for employees, not on unions or their nonemployee organizers, (Lechemere) UNLESS nonemployee access to employees is infeasible.

    The NLRA, while guaranteeing that employees would be free to organize if they so chose, the employer is not obligated to allow nonemployee union representatives access to their private property.
  5. Magnavox
    Magnavox had a policy against distribution of literature to employees before sign collective bargaining agreement. After agreement, provided that union could have a bulletin board with notices. Union says it's a ULP that limits freedom of association.

    S. Court upholds since board doesn't leave room for union adversaries; §7 right of free association, to solicitation and distribution in non-working areas during non-working time is a right that cannot be waived by the union representative
  6. Absent evidence of a discriminatory purpose, presumption of validity when employer:
    • -has a no solicitation policy (Republic Aviation)
    • - fires, threatens, or otherwise penalizes workers on off work time (Republic Aviation)

    Presumption overcome if worker can show other solicitors were NOT fired but union solicitors were (Republic Aviation)
  7. Regulation of where unions can solicit (case law)
    - Employees can solicit in "public spaces" as long as worker communicatin is not "distruptive" (Beth Israel)

    • -non-employees solicitation/distribution rights on employer property: very restricted to a very narrow Babcock exception:
    • --access to eees "impossible or unreasonbaly difficult" entirely off eer's prorerty so that it becomes necessary and proper to take the accommodation inquiry to a second level -->balance eee's and eer's rights:
    • 1) degree of impairment of sec. 7 right if access should be denied
    • 2) degree of impairment of private property right if access should be granted
    • 3) availability of reasonably effective alternative means is significant in the balancing (Lechmere)
  8. Employer rights in free association (case law)
    Can have captive audience meetings as longs as they contain NO threat of reprisal or force or promise of benefit (§8(c) + not required to give union same access under NuTone and Avodale (1958))

    - denial of equal time presumed lawful and not ULP --> burden on GC to demonstrate union was seriously incapactitated from communicating with eees by other means --> RARE granting of "right to reply" (NuTone and Avondale)

    • LIMITS:
    • - IF aggravated ULPs under sec. 8a(1) or (3), Board CAN order that charging union be given access by eer to company property.
    • - Peerless Plywood Rule: firm rule against captive audience meetings on company time w/in 24-hour period prior to elections
    • -Union CAN get list of ees contact info but only AFTER petition for election
  9. state action doctrine and freedom of speech
    1st amendment right of free speech or state constitutional rights of free speech raises issue of state action doctrine-- courts draw the line between certain types of company property at which freedom of speech may or may not be protected:

    -Speech at shopping centers: not protected by 1st amndmt

    -Companies where workers live on company property (i.e. resorts): might be protected.

    - If company considered a state actor (i.e. company town/Marsh): might be protected

    - picketing= statutory sec 7 right, NOT 1st amnd constitutional right when it's on "private" property --> NO 1st amndment right to picket inside a shopping mall (Hudgens, 1976)--> deference to board in weighing competing sec 7/property interests

    -private actor/shopping mall NOT a state actor for purposes of 1st amndt protections --> CAN silence you (Hudgens, 1976) vs Prune Yard mall is a state actor

    • - nonees 1st amndment rights NOT violated when denied access to migrant workers' camp b/c NOT open to the public; didn't show  wasn't reasonbale substitute for communication (Green Giant),
    • --BUT: look to STATE law for broader 1st Amdt protection and protections for migrant/agricultural workers.
    • ---State constitutional protections established under state police power and sovereign right EXPAND individual liberties and so Lloyd doesn't govern (PruneYard, 1980)

    - protecting political speech in shopping mall NOT 1st amdnt violtn of owner's rights b/c govt NOT imposing prescribed speech on them (Prune Yard, 1980)
  10. critiques of court's state action doctrine
    - Should stick with Lloyd protecting 1st amendment activity if: 1) connection w/ location 2) monopolizes/ no alternative location for speech (Marshall's dissent, Hudgens)

    • -doctrine of functional equivalency/public function docrine: exception to state action doctrine if private agent is acting as a govt or municipality, it will be treated that way (Marsh)--> shopping mall//municipality
    • -BBerg- conception of "state action" is too narrow (Shelley v. Kraemer)--> state enforcing property law (vs. K law) so is state action! new rule could balance speech/associational rights of workers w/ privacy/property/associational interest of eers.
    • --see PruneYard where court does assume state action when speech silenced in mall
  11. Republic Aviation (1945)
    amend sec 8(a)(1) to allow interference or coercion of sec 7 rights if it happens during worktime- no right to interfere except where necessary or reasonable to ensure discipline or secure property

    idealied view of workplace taken from mgmt perspective but through concrete vision of social ordering in context
  12. Beth Israel
    even  during off-work time, employee speech may be unprotected if it is in the wrong PLACE

    if there is an alternative place of communication in dept store, no-solicitation policy= valid

    functions of the organization matter in determining space-specific validity of no-solicitation policy
  13. Lechmere
    sec 7 rights of ees under NLRA do NOT trump eer property rights

    • counterarg:
    • - white's dissent: actual communication w/ non eee organizers necessary to vindicate sec 7 rights, not mere notice of organizing campaign existing + solidarity through face to face dialogue.
  14. Incentives by eers to eees during collective organizing
    • eers cannot provide ees with any benefits during election
    • --8(a)(1) prohibits conduct immediately favorable to ees which is undertaken 1) with the express purpose of impinging on their freedom of choice for or against unionization' and 2) is reasonably calculated to have that effect (Exchange Parts)

    • --employer IS free to increase benefits BEFORE election campaign, just not during
    • --unions can give relatively minor benefits during election campaign
  15. summary of law of election speech
    • -coercive threats regulated but misrepresentations not regulated
    • -Regulation of racist speech, at least racial supremacist speech purportedly based on laboratory conditions (but really based on substantive conceptions of racial domination)

    • Gissel:
    • 'Critiques: From workers' perspective, test DOESN'T make a difference in terms of how threatening the speech is-> it's CHILLING!! Very easy to get around by having anti-union policy declared early on by the BOD based on economic calculations

    • Midland National:
    • - asymmetrical information vs asymmetrical power
    • - nor real balance between eee rights in a fair campaign and eeer's rights

    • sewell
    • -anti-domination principle makes racial appeals for solidarity among minority OK
  16. retaliation by eer against eee
    1) pretext cases: if a discriminatory motive and discouragement of union support can be shown --> violation of sec 8(a)(1) and (a)(3)

    • 2) mixed motive cases: gc has burden of showing that eee's conduct protected by sec 7 was substantial or a motivating factor in discharge at the time of the firing --> burden shifts to eer to show "sufficient, independent movtive" by a preponderance of the evidence (Wright Line and Transportation Mgmt)
    • - 100 points test: if legitimate motives reaches 100 points, read away the illegitimate motive, (even if illegitimate motive has 100 points)
  17. 100 points test hypo
  18. content regulation- election propaganda
    8(c)- no expression of views that contain threat of reprisal, force or promise of benefit. otherwise, expression is not a ULP.

    - laboratory conditions: If Board finds a side won through ULP communications, can order new elections. Can also overturn even when speech doesn't rise to ULP-level or isn't a coercive threat. 

    - Threats of reprisal vs. predictions of demonstrable economic consequences test (see card 18)

    - Proof is required of widespread dissemination in order to set aside an election
  19. Election propaganda test: Threat of reprisal vs. prediction of "demonstrable economic consequences"
    Gissel Packing

    1) evaluate scope of eer expression in context of labor rltns setting: "all circumstances test"

    • 2) test: prediction is fine, but must carefully phrased on the basis of:
    •   a) objective fact, to convey an eer belief as to
    • b) demonstrably probable consequences +
    • c) beyond eer's control, involuntary (// econ. necessity)- NOT unilateral
  20. NLRB remedies for campaign violations and the legal sources of union decline
    If board finds ULP by a preponderance, shall state its findings of fact and issue an order requiring such person to cease and desist from ULP

    • -EErs may not refuse to hire or decide to fire workers based on union membership. remedy: workers entitled to reinstatement with back pay
    • --worker has duty to mitigate
  21. traditional remedies for 8(a)(1)/ 8(a)(3) violations
    • cease and desist orders
    • reinstatement back pay
    • notice and access remedies: right of reply to unions + notices/ads around work
    •  
  22. Remedy if employer commits serious ULP, there is a card majority, and minimal chance traditional remedies would work
    -issue a bargaining order (Gissel)


    - serious means something outrageous and pervasive that may not be cured by traditional remedies
  23. Remedy if serious ULP and NO card majority and no chance other remedies could work
    - no bargaining order (Conair)
  24. Remedy if eer committed no/minor ULP and there's a card majority
    - no bargaining order as traditional remedies are sufficient

    --UNLESS eer has engaged in a ULP that impairs the electoral process. Then union with authorization cards showing it represents majority has burden to take next step to invoke Board's election procedure
  25. agency shop- general rule and limits
    General Rule: Agency shops ARE a lawful "security arrangement" under the NLRA

    - Eees may be required to pay union dues as a condition of employment as long as they are NOT forced to join as members--> concept of exclusive representation: workers will get benefit of collective agreement and allows avoidance of "free rider" problem (GM)

    • limits:
    • 14(b) Taft Hartley- authorizes States to enact legislation banning union/agency shops and requiring "open shop" ("right to work")
  26. Taft Hartley
    authorizes states to enact legislation banning union/ agency shops and requiring open shops ("right to work" laws)
  27. political organizing in unions
    - distributing political literature in non working areas during non working time OK for "mutual aid and protection" of union member outside immediate eee-eer relationshiop (Eastex)

    -individuals under RLA can proactively opt out of union's use of union dues for political causes (Street)

    - under NLRA, agency shops cannot compel objecting non-member ees to pay for union activities other than those related to collective bargaining (Beck)
  28. Definition of bargaining unit
    9(b): decided by NLRB in each case what's appropriate, but limited by Taft Hartley:

    1. protects right of craft ees to be represented separately in spite of an earlier certification w/n a more all-encompassing bargaining unit2. forbids Board from grouping professional and nonprofessional ees w/in a single bargaining unit "unless a majority of professional ees vote for inclusion in such unit3. forbids board to include w/n a single unit both guards and non-guards, regardless of preferences of the guards
  29. exclusive representation in a bargaining unit
    9(a): designated by majority of ees in a unit, and rep shall be exclusive of ALL ees in unit

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