Labor Law Outline - Professor Summers – Spring 2001
1) LAW AND THE LABOR MARKET
a) Law and the Employment Relation
i) A Historical Sketch:
(1) When employment relations changed from status (master and servant) to contract,
three questions arose:
(a) In the absence of express agreement by the parties, what terms should be read
into the employment contract?
(b) Should the law leave the labor market wholly free, with the terms and
conditions of employment determined by the relative bargaining power of the
parties?
(c) If the law is to come to the aid of the weaker party, what form should legal
intervention take?
(2) Currently: 10% wkrs covered by labor agreements (rest fall under
employment law)
(a) Labor Law serves to protect employees from the indiv. labor market;
laws passed to intervene in labor mkt and protect ees in two ways:
(i) Direct regulation of employment (min. wage, hrs, etc)
(ii) To reshape labor mkt. (creation of collective labor mkt)
(iii)Post 1935, this goal predominated to decrease need for govt. regulation
(though never happened in fact so have increased govt reg.)
(3) What values are worth protecting? When should the law intervene?
(a) Wagner Act (NLRA) – 1935:
3 premises of collective bargaining
(i) By collective bargaining, one could better equalize econ. concerns of ers
and unions
(ii) To provide ees a voice in their terms and conditions of employment
(democratic concern)
(iii)Could avoid govt. regulation
ii) Early Labor Cases:
(1) Farwell v. Boston, Mass., 1842 – Fellow Servant Rule
(a) If one servant of a certain employer injures another servant of the same
employer, does the injured servant have an action ag. the employer?
(b) Held:
Injured servant cannot recover from er; why? Ct says a matter
of policy – better to have wkrs bear cost of industrialization then to put the
burden on ers; ee assumed risk
(c) Unholy Trinity: Along w/ defense of contributory neg. and fellow
servant rule, assumpt. of risk served to shield ers from liability and decrease
incentives for increasing wkr safety
(d) No longer good law; to avoid such cases now have wkrs comp – Strict
liability of ers for all ee injuries (except for willful self-injury)
(2) Payne v. Western RR, Tenn., 1884 –Employment at will/ Freedom of K
(a) RR agent threatened to fire any ee who patronized Payne’s store; Payne sued
in tort; RR won
(b) Ct. found no employment contract for a term, only employment at will; issue
of employment bt ee and er, not storekeeper; storekeeper can’t sue on
employment contract for another anyway
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Labor Law Outline - Professor Summers – Spring 2001
(c) Ct. says since would allow agent’s influence if it was a father’s influence over
a family, then would allow here – transfer of patriarchal assumption to
employment relationship
(d) Gives free reign to freedom of contract – says ees and ers are free to
contract w/o ct interference (allows unequal bargaining pwr to exist b/c is
in the nature of propertied vs. un-propertied); 6 yrs. later Congress passed
Sherman Anti-Trust Act which took away some of the maj. of Payne’s
principles
(e) Dissent: Other interests here that need protection; legis. tried to pass laws
to further dissent’s view but cts struck them down – didn’t end til 1938 and
Ct packing scheme
(3) Summary:
 Cts. had refused to read into contracts and obligations on the er other
than those in the contract
 the law did not intervene to aid the ee b/c of being a weaker party
(4) When examining labor law, ask:
 What’s the character of freedom of contract being expressed?
 Is freedom of contract a good rule in this situation?
(5) The Death of Farwell: Appalling # of deaths and injuries in the workplace led to
judges drawing exceptions to these defenses
iii) REGULATION OF THE EMPLOYMENT CONTRACT: Courts v. Legislatures
(1) Legislature’s response to Payne etc. was to enact a statute protecting Ees but Ers
sought refuge in the courts where they were shielded by constitutionalization of
liberty of K. Ultimately the battle between the Court and the legislature was
fought out in the Supreme Court:
(2) Holden v. Hardy (1897) – freedom of K limited by police power of states
(a) statute prohibiting amount of hours that men working in mines could put in
per day to 8 hours was challenged on the theory that it deprived EEs and ERs
of their free and unrestricted right to contract.
(b) Held: statute was upheld on the theory that the right to contract is itself subject
to certain limitations that a state may impose, such as safety, etc. Police
Power of the State.
(3) Lochner v. New York (1905) – freedom of K
(a) Statute that limited the hours that Ees could work in bakery was challenged.
(b) Held Court refuses to uphold statute stating that baker is not a dangerous
position and there would be a slippery slope of regulations. Thought the law
wasn’t a health law (which would be in police power), but an illegal
interference with the rights of individuals to K.
(4) Period from 1900-1930 – the Court was striking down a lot of protective
legislation. The turning point came in 1937 when Roosevelt was frustrated by the
Court’s decisions invalidating New Deal legislation and proposed packing the
Court.
(a) Adkins v. Children’s Hospital (1923) – min wage laws unconstitutional
(i) Denial of freedom of K
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Labor Law Outline - Professor Summers – Spring 2001
(b) West Coast Hotel Co. v. Parrish (1937) – min wage laws held
constitutional
(i) DC min wage statute challenged on grounds that it denied freedom of K in
violation of DP – the court upheld the statute
(ii) Reasoning: Const does not speak of freedom of K, but freedom of liberty.
It prohibits deprivation of liberty without due process of law. Freedom of
K is necessarily subject to the restraints of due process & reasonable
regulation.
(5) Summary
(a) Court sought to leave the labor market wholly free from legal intervention. In
contrast, the legislature judged the labor market inadequate & sought to
protect Ees by regulating terms & conditions of employment. Legislature won
out & whether or not it should, the law does intervene in the labor mkt & aids
indiv Ees who are considered the weaker party.
B) LAW AND THE COLLECTIVE LABOR MARKET
i) Judges, the Common Law and Collective Action
(1) Historical Background:
(a) Early 1800s- Criminal Conspiracy Doctrine, wkrs could receive criminal
penalties for engaging in collective activity to protect injustices under
common law
(b) 1842 – Hunt – Minor Victory for Unions.:
Ct. held collective action
not unlawful unless a breach of contract; case cited as establishing legality
of unions and rt to strike; ct. held union could compel all members to
conform to terms and conditions estab. by the union; permitted use of econ.
strength to bar indiv. bargaining and to bind all ees collectively
(c) But cts continued to be hostile to unions use of econ. force and only stopped
criminal convictions when use of the injunction was seen as more effective
weapon
(2) Vegelahn v. Gunter, 1896 - The Labor Injunction As A Weapon
(a) Maj. chooses to enjoin picketing entirely as interference w/ er’s rts; although
will allow strikes or certain other coll. measures; says is a matter of
precedent (prima facie tort theory) – led to inconsistent holdings
throughout country
(b) Holmes Dissent: recommends Union be allowed to use social pressure and
persuasion to prevent er from hiring strikers replacements but could not
interfere w/ er’s business by obstructing or interfering w/ those entering
er's property; uses policy to back arg. – policy of free competition – but
limited, can’t use predatory competition; conceived of collective labor
relations as being a system of competition
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Labor Law Outline - Professor Summers – Spring 2001
(3) Adair, U.S., 1907 – Ct allows Yellow Dog Contracts – Constitutionalization of
Payne
(a) Yellow Dog Contract Issue – Congress passes statute saying ee can’t be fired
for joining U.; Ct. says er free to discharge ee just as ee is free to quit wrk
(b) USCT says legis forbidding Yellow dog contracts interferes w/ freedom of
contract; held Congress can’t get involved in ee-er relat. b/c purely local not
commerce; gave ers huge pwr over ees
(c) Holmes dissent – says freedom of contract may be limited where there is an
imp. public pol. consideration
(4) Labor injunction:
(a) Increased in frequency b/c criminal convictions hard to obtain b/c jury
sympathetic to wkr; injunction given by judge and enforceable by contempt;
speedy er remedy; civil actions not worth pursuit b/c U. didn’t have much
money
(b) early Legislative efforts to try to limit injunct’s use were struck down by
cts
(c) Until 1930s, cts proceeded from premise that indiv. bargaining was
embedded in inalienable prop. rts and personal liberty; strikes gen upheld
and coll. agreements considered in making legally binding obligations, but
secondary boycotting and most picketing forbidden; ers use of econ force
almost completely unlimited including in preventing organizing; while U.’s
not allowed to use econ. force to compel joining U.
(5) Hitchman Coal v. Mitchell, U.S., 1917 –ER can enjoin U activity
(a) Employer used freedom of contract to get a yellow dog contract from ee –
gave er enforceable contract rt (which is a property rt); thus when U.
comes in to organize, they’re interfering w/ er’s contract rt. which is a tort –
so er can seek to enjoin U. activity
(b) Ct. focuses on freedom of contract and ignores 1st A. rts of freedom of speech
and assoc.
ii) Statutory Protection of Collective Action:
(1) Forerunners:
(a) 1934 Railway Labor Act – gave rt to Us to choose reps for coll bargaining
w/o interference and imposed duty on parties to use reasonable efforts to
maintain agreements
(b) 1933 – Nat’l Industrial Recovery Act - §7(a) gave rt to organize and bargain
collectively free from interference of ers and forbid yellow dog contracts (but
didn’t say who rep was to be); killed by Schecter Poultry
(2) 1932: Norris-La Guardia Act (Anti-Injunction): –
(a) removed from fed. juris. granting injunct. in labor disputes; states passed
sim. measures which essentially outlawed injunctions (passed b/c fed. cts
more sympathetic to ers);
(b) declared yellow dog contracts as contrary to public policy and overruled
Adair – purpose to remove fed cts from interfering in labor disputes except
where there was violence and to free U.s to use econ. pressure in form of
strikes, picketing and boycotting
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Labor Law Outline - Professor Summers – Spring 2001
(3) 1935: NLRA – Wagner Act (Collective Bargaining):
(a) National policy to encourage collective bargaining
(b) Section 7: Rights of Ees to
(i) Freedom to form, join or assist labor organizations
(ii) Freedom to bargain collectively with the employer
(iii)The right to engage in concerted activity for the purpose of coll
bargaining or mutual aid
(c) Section 8: Duty of Er to bargain collectively; affirmative duty on er to
deal in good faith w/ Unions
(d) Limited rts of ers to use their property rts to destroy organizing efforts; killed
er’s free use of econ. pwr; allowed ees to seek aid of NLRB or cts to vindicate
§7 rts.
(4) 1947: Labor Management Relations Act – Taft-Hartley (Combats Union
unfair Practices)
(a) Added to §8 series of unfair U practices which limited Union’s use of econ.
force
(b) Guaranteed freedom of indiv to choose bt indiv bargaining and coll bargaining
(5) 1959: Labor Management Relations and Disclosure Act – Landrum-Griffin
(Union Bill of Rights)
(a) Imposed regulations on internal affairs of Unions to make them more
democratic
Title I:
Bill of rts guaranteed all U members rt to participate in U mtgs and
to speak freely; etc.;
Title II:
Required financial reporting by Us and officers;
Title III:
Restricted rt of parent Us;
Title IV:
Regulated U elections;
Title V:
Imposed fiduciary duties on Us
(6) Where we are today: Collective Bargaining never fully established and began
shrinking in 1950s; labor law midst changing guard to protect ees thru other
means – law needs to prescribe at least certain rts of ees and min terms of
conditions of employment
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Labor Law Outline - Professor Summers – Spring 2001
2) FREEDOM OF CONTRACT AND ITS LIMITS
 Although no longer a fund. Const value, still imp. socially-expression of personal choice
 Ask what limitation does the law place on freedom of contract in the employment
relation? And to what extent should the law interfere w/ the labor market?
a) Individual Contracts of Employment
i) LIMITATIONS ON REMEDIES FOR BREACH
(1) Freedom from Involuntary Servitude
(a) Const rts protect indivs from public action, not private action –
(b) Only protection ag. private action is under 13th A. – limits freedom of
contract
(i) 1867 Anti-Peonage Statute designed to implement 13thA. – went beyond
freeing slaves and giving them freedom of contract; provided shield in
civil or criminal proceedings for breach of contract; Ers sought to use the
law to enforce their contracts
(ii) Late 19th c – Ers signed Ks that allowed for involuntary servitude bc
wanted remedies more effective than money damages for breach of the
employment K. They made Ks that did not rely on courts or laws to
enforce – gave ER right to enforce his own will on EE (self-help)
(c) Baily v. AL, 1911 – Ct says compulsory labor for breach of employment
contract = Peonage
(i) AL made it a crim to accept money for employment then to quit
(ii) Bailey accepted money in advance for 1 yrs wk but quit after 1 mth;
charged w/ fraud, failure to perform and not returning the money were
prima facie evid of fraud; he was unable to pay twice the amount
advanced, so was sent to hard labor for 136 days
(iii)USCT says this is peonage b/c is compulsory labor
(d) Pollack v. Williams – 13th used ag. specific enforcement of employment
contracts
(i) State argued b/c wkr had pleaded guilty to fraud, FL said therefore the
presumption of guilt didn’t play a role
(ii) USCT said the presence of a presumption had a coercive effect on the
guilty plea; Congress has put it beyond debate that no quitting of work can
be a crime
(iii)Thus, 13th became one of the basis for the common law rule ag.
granting of specific performance of contracts of personal service
(e) 1948 – Congress made it a crime to hold one to involuntary servitude
(f) What type of force is enough to create invol. servitude? (e.g. taking away a
passport)
(i) USCT – in gen. it must be actual physical coercion (use of force or
threat of physical force), psychological coercion not enough
(Kominsky)– feeling that you have no choice not enough – ct. says in
U.S. v. Shackney that they do have a choice even if unpleasant
(ii) But in U.S. v. Mussry USCT broadened this, saying in case where er
withheld passport and plane ticket, the ? is whether the ee has been
rendered incapable of making a rational choice, and not the means by
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Labor Law Outline - Professor Summers – Spring 2001
which the servitude was imposed (econ conditions forcing wkrs to work
for less then should not enough b/c er didn’t cause the conditions)
(2) Liquidated Damages: can’t be punitive
(a) Schrimpf v. Tenn., SCtTenn, 1887 – Liquidated Damages invalid if found
unreasonable
(i) If ee doesn’t give 2 wks notice before quitting, all $ forfeited to er clause
(liquidated damages clause)
(ii) Ct says liquidated damage clause unreasonable b/c works the same
whether you’ve wrked 2 days or 1 mth – if scope of breach is not relevant
then clause is unreasonable – because the damages aren’t fixed, can’t
enforce
(iii)Reasonableness a very flexible standard – judicially imposed – ct.
discretion as to the limits of freedom of contract
(iv) Quantum Meruit theory used for ee to recover for services performed
even of contract not completed
ii) Substantive Terms and Judicial Revisionism
(1) Duty of Loyalty
(a) Common law imposes on ee a duty of loyalty; which bars wking for another,
to compete w/ er himself, to prepare to go into competition w/ er by soliciting
er’s customers, from revealing trade secrets or confidential info to another
(b) Many ers seek to expand these obligations thru contract of employment,
including non-compete clauses
(2) Hoppers v. All Pet Animal Clinic (1993) – enforcement of 1 yr covenant not
to compete reasonable/ does not violate public policy
(a) D worked for P as a veterinarian & upon termination, sought to violate a
covenant not to compete by working for another nearby veterinary practice.
(b) Held: as matter of law, geographic & durational restraints are reasonable
(3) Human Capital & Covenants not to compete
(a) Trade Secrets: Given much more protection than customer lists; common law
makes it unlawful to disclose trade secrets whether in contract or not; ? is is it
a valid trade secret? Depends somewhat on the industry; car rentals not
protected but in pest control it is
(b) Specific Training: only the firm can employ the worker after training bc the
EE is worth more to the firm than to anyone else. EE doesn’t need any
assurance that the EE will stay with the firm after the training bc no other ER
needs those skills. ER will pay more for the EE after the training. EE will pay
for part of the training. Thus mkt forces will generate solutions without K.
(c) General Training: trained worker faces a competitive mkt for talent which is
widely used. ER, knowing he has to pay full mkt price for EE won’t pay for
training. EE, knowing he will get full mkt price will pay for the training. EE
has no need to stay with a specific ER bc they can recoup the investment from
any ER.
(d) Special Training: there are some types of training that the EE won’t pay for
bc they are too expensive. Thus, non-competition clauses enter into the picture
as the payment that EE pays for the training. These make the training specific
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Labor Law Outline - Professor Summers – Spring 2001
– but the salary isn’t as high as if training was truly specific bc it is reduced by
the amt the training cost – so EE is motivated to break K. Thus, the task of the
ct is to determine btw Ees who has a K not to compete as a price for training
& those that have K & are underpaid as well.
(e) Trend not to enforce covenants not to compete: if ER wants to enforce the
agrmt based on confidential info – he must distinguish btw confidential info &
info generally available in the trade. Otherwise, if it covers info that is general
in the trade the covenant will be seen as unreasonable & thus unenforceable. If
the EE has learned no special info from ER the ct is unwilling to enforce the
covenant since the ER has not invested anything.
(4) Ingersoll v. Ciavatta, SCtNJ, 1988 – Holdover Agreements subj to
reasonableness test
(a) ? of holdover agreement – requiring ee to assign a post-termination invention
not involving a trade secret is enforceable?
(b) Not in this case; EE may have gotten idea while wrking for er, but nothing
secret in design on old equipment which EE improved (knowledge acquired
during a job becomes part of ee’s person); interest in competition and
encouraging invention; test of reasonableness – look at 1. whether it
extends beyond any apparent protection that the er reasonably requires;
2. prevents the ee from seeking other employment; and 3. adversely
impacts the public
(c) Shop Right rule: where done on ER’s time & material, still EE’s invention
but ER entitled to use that patent/invention in their own business.
(d) Er not entitled to be free from competition; no trade secrets here; unless ee
hired to invent, can’t limit ee – Freedom of contract is limited here
(e) Restatement Test:
(i) Extent to which info is known outside the business
(ii) Extent to which it is known by EE & others in the business
(iii)Measures taken by ER to guard the secrecy
(iv) Value of info to business & competitors
(v) Amount of $ or effort expanded in developing info
(vi) Ease w/which the info could be properly acquired/duplicate by others
III)
INDEFINITE TERMS AND JUDICIAL IMPOSITION:
(1) Employment At Will
(a) Originally different, but now a contract for an indefinite period presumed
to be an employment at will.
(2) Skagerberg v. Blandin Paper Co, SctMinn, 1936 – W/o express contrary
intent, employ. contracts are at will
(a) EE forewent employment opportunity at University with Contract for
‘permanent employment’ with D.
(b) Ct made this employment at will b/c was a contract for an indefinite term
(permanent is thus indeterminate); even though an estoppel situation, most cts
ignore and use judicial thrust to make it at-will unless expressly stated
otherwise
(c) Under K theory, wouldn’t fly under promissory estoppel.
(3) Wolley v. Hoffmann-LaRoche, SCtNJ, 1985 – Employee Manuals Are
Contracts of Employ
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Labor Law Outline - Professor Summers – Spring 2001
(a) Employee manual case; ct looks at manual as a contract and applies it as such;
Handbook rule – if manual created an impression in the mind of a
reasonable ee that he would not be fired w/o just cause, then er bound
(b) What happens when manual is changed while ee wrking there? Second
manual is new offer of employment; by continuing to work you agree to the
new terms – Handbook rule
(c) Ers started trying to disclaim their handbooks – disclaimers must be
conspicuous and in terms that can be understood
(d) Person not bound by terms in a standardized contract that come as a
surprise
(e) If you create a handbook that can be contracted around (e.g. by disclaimers),
you’ve created nothing
(4) Stark v. Circle K Corp, SctMO, 1988 – Some cts allow tort action on good
faith and fair dealing
(a) ee fired for not signing statement saying he was $4000 short
(insubordination); suit in contract for implied good faith and fair dealing
under reasonableness standard – ct found it was so implied by history of
work ee had done and promotions that had been rec’d; Tct. gave ee tort
damages (compensatory and punitive)
(b) Conflict bt using contract principles and tort damages; also conflict w/
employment at will doctrine; tort damages usu only given if breach is an
egregious repudiation of contract principles; some juris don’t allow tort
damages at all; others also don’t allow covenant of good faith and fair dealing
to be read into employment contracts b/c leads to judicial excursions into
amorphous concept of bad faith
(c) Er can wrongly fire ee under good faith and fair dealing doctrine as long
as thought ee did something bad, even if ee didn’t; except for in public pol.
Situations
(5) Sheets v. Teddy’s Frosted Goods, SctConn, 1980 – Firings that Violate Public
Policy not Permitted
(a) ee fired for telling Co. that baby food didn’t measure up to Conn. Statute,
reported deviations in standards & was terminated. He claims retaliation.
(b) Ct says allowing this would discourage people from following the food statute
– ag. public policy – exception to employment at will; suit in tort (exception
drawn for public good not indiv good)
(c) Dissent says too broad rule; ee had other options such as anonymous reporting
to FDA or resigning – but wouldn’t this actually be more damaging to the er?
(d) Must have a public policy stated in the statute (but cts create pol all the
time); er allowed to discharge ee for not divorcing Catholic wife b/c no
contrary statute found; not all juris allow this
(e) Summary of Employment at Will:
In 70s and 80s, cts carved out
exceptions to employment at will; since then cts have been cutting back on the
exceptions
iv) ECONOMIC ANALYSIS OF THE EMPLOYMENT CONTRACT
(1) Epstein, In Defense of the Contract At Will – free market unrestrained will
solve all problems
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Labor Law Outline - Professor Summers – Spring 2001
(a) Worship of free market – freedom of contract considered aspect of indiv
liberty; says fundamentally unjust to abridge econ liberties of indiv.; Criticism
– freedom of speech, etc apply to individuals, while contracting has two
parties;
(b) Believes ers/ees operating on equal bargaining levels; criticism – most ees
don’t realize they can be fired for any reason
(c) Parties only enter contract if they both benefit; criticism – ee usu has no alt.
(d) Says there are natural limits on employment at will such as reputation losses;
risk diversification; administrative costs
(2) Weiler, Governing the Workplace – modern jobs = life career not casual
relationship
(a) Implicit in Epstein’s argument is notion that 1 job is like another.
(b) Believes modern employ consists of career not casual relationships; at will has
become morally untenable
(c) Says ees view job as imp to self-esteem; cost of wrongful discharge falls hard
on ee b/c wages/benefits/job opps linked to longevity not productivity
(d) Defenders of emplymt at will will say wkrs prefer to bear this risk ex ante, bc
the gains to ER from being free of judicial scrutiny outweigh the benefits to
Ees from obtaining more protection. This is not what wkrs want so why
impose it on them?
(e) To make the case for public policy intervention, must look to systemic flaws
in the private labor mkt – workers are not making an informed sacrifice (little
info & less bargaining power)
(3) Gottesman, Wither Goest Labor Law – Epstein & Weiler = yuppie justice
(a) Critical of Epstein & Weiler’s approach bc only applies to skilled, welleducated career ees; says ees don’t expect longevity; bilateral monopoly b/c
ee has skills er needs and ee needs er; but job important to ee’s identity & EE
has more to lose (greater cost)
(b) Epstein Defies Common Sense – why absent a promise of future benefit
would Ees accept employment at less than they could earn elsewhere? Why
Ers pay senior Ees more than they’re worth?
(c) Epstein Defies Economic Theory – young Ees are deferring wages & benefits
are not being underpaid now in anticipation of being compensated later, but
are simply sacrificing wages for general training that is transportable. Their
compensation is not in $$, but in training.
(d) Weiler assumes that career EE becomes locked in – by the time they have the
info to want to deal with ER about job security they do not have the benefit of
a competitive mkt in dealing with their current ER & so they have no
leverage. But this lock in model is 2 way street. The ER can’t afford to lose
the EE without suffering enormous productivity, recruiting & training cost.
Thus seems like EE actually does enjoy greater protection in bilateral
monopoly than Weiler gives credit for.
(e) Final critique of Weiler
(i) Focus on yuppie ees is misplaced
(ii) No concern about low & semi-skilled Ees
(iii)No significant effect on the person who does the firing – people at top do
not feel the pressure at the bottom.
(4) Summers Critique: not a pure economic process.
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Labor Law Outline - Professor Summers – Spring 2001
(a) On one hand, ER is conglomerate of people – but when EE gets fired, gets
fired by his foreman (who doesn’t like him) not the corporation. Foreman
doesn’t think about the cost of the discharge, he doesn’t pay for that. Internal
grievance procedure  foreman will have problems with the rest of Ees. May
destroy foreman’s ability to function. So personnel manager will back up his
foreman. No real calculation of costs. Even the personnel manager may not
think about what it costs to train a person.
(b) Epstein argues that cost of providing protection agst unjust discharge would
be greater than what the Ees were willing to pay. In theory this might be the
case. Every collective group has provision agst unjust discharge. So if you
look at collective bargaining process, conclusion on worker’s part is that it is
cheaper to give protection agst unjust discharge than to pay the extra wages.
b) Collective Contracts & how they infringe on freedom of K
i)
The Employees Representative
(1) The National Labor Relations Act – Wagner Act (1935)
(a) Encroaches on freedom of K in 3 significant respects:
(i) §9(a) specifies with whom the ER must bargain collectively & with whom
it may K
(ii) §9 (a) curtails indiv Ees freedom of K – union is exclusive & must bargain
about pay, wages, hrs, & other conditions.
(iii) §8(a)(5) imposes stds of conduct on the parties in the bargaining process
& thereby leaves them with less than full freedom of bargaining
(b) Ees representatives
(i) §9(a) – representatives designated/selected by majority of the Ees shall be
the exclusive rep of all Ees – can’t be forced to join the U, yet your life
essentially governed by U K of you work there.
1. Unique to U.S. that agrmt covers Ees outside majority unit
(ii) Collective trumps individual – ER can’t bargain w/ indivs bc U is
exclusive rep – indiv K cannot surmount collective one. ER must bargain
with U & when agrmt is reached it controls indiv Ks. Indiv cannot agree
w/ ER to take less or more than collective agrmt offers w/o consent of U
(which is never given
(c) JI Case Co. v. NLRB, USCT, 1944 – Indiv Ks can’t counteract NLRA
(i) Co offered each EE indiv K, not all signed the K. Then Co unionized. Co
refused to bargain w/ U since indiv Ks still in effect. Board held Co
violated NLRA. Ordered injunction to invalidate indiv Ks.
(ii) USCT says collective agreements have priority over indiv. agreements
and control them; indiv speaks thru U. (though not true in some Us like
professional athletes); nothing to prevent indiv Ks which deal w/ matters
not in scope of coll bargaining.
(iii)Implied in statute is principle of Fair Representation – all ees, even if not
in U., have to pay collective bargaining fees of U
(2) The Bargaining Process:
(a) §8(a)(5) – unfair labor practice to refuse to bargain collectively w/ the rep of
Ees.
(i) Focuses on negotiation not the product
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Labor Law Outline - Professor Summers – Spring 2001
1. Bargain in good faith -- Over time Bd has articluted that the act calls
for more than just mtg to negotiate – but also must deal w/ each other
in an open & fair mind & attempt to overcome obstacles.
2. Taft Hartley Act (1947) amended the NLRA
a. §8(b)(3) & §8(d) – duty to bargain collectively = meet at
reasonable times & confer in good faith. No compulsion to
agreement.
b. §8(a)(5) in conjunction w/ §9 barred ER from making any
unilateral changes in the terms or conditions of emplymt until it
has bargained to an impasse with U.
(b) Reed v. NLRB, USCtApp, 1953 – Good Faith Obligation
(i) ER engaged in lengthy series of bargaining conferences which got
nowhere. ER refused all U proposals. Only conceded 10% wage increase
in an inflationary period of rising wages. Unilaterally granted wage
increase while in the midst of negotiations – undermines negotiation
process.
(ii) Issue: did ER go through the motions of negotiations as a pretense to
reaching an agrmt or did ER bargain in good faith & was unable to reach
an agrmt?
(iii)Held: Looked more like a stalling tactic by a party bent upon maintaining
the pretense of bargaining. No evidence that the Co was willing to yield on
even the most minor matters. Thus, bad faith which is unfair labor
practice.
(iv) Duty to bargain in good faith has limited value b/c er can always say no;
in ½ of cases, no agreement ever reached
(c) Three articles about the current state of labor law
(i) Fried – neither collective nor indiv Ks get you what you need. He wants
substantive intervention (govt regulation). Doesn’t like collective
bargaining, argues on behalf of living wage – doesn’t answer question of
how to address problem.
(ii) Gottesman – substantive intervention has psychological effects & this
justifies the collective process. People get more in collective agrmts bc
they get what they could not bargain for indiv. Eliminate OSHA?
Question is whether coll barg will give us socially satisfactory answer.
(iii)Leslie – power is a consumption good. If giving workers a voice serves
wkrs’ interests, then why don’t we do more? Problem is that mgr’s
motivation is not solely econ bc their conduct doesn’t show up in the
functioning of the enterprise.
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Labor Law Outline - Professor Summers – Spring 2001
3) FREEDOM OF SPEECH & ASSEMBLY
A) INDIVIDUAL FREEDOM OF SPEECH & ASSEMBLY
I) PUBLIC EMPLOYMENT SPEECH AND POLITICAL PATRONAGE:
(1) Public emplmt cannot be subject to an unconst condition that an EE forego full
exercise of 1st A rts. Speech is protected if it is related to public, not a personal
interest. So it is more like a protection of the public’s rt to hear.
(A) Public emplymt is at will – so you have to show a violation of const principle
in order to make a claim.
(b) Ee must show that the speech is protected if it’s a matter of public concern &
is not outweighed by the interest of efficiency in the workplace (Balancing
Test)
(2) Connick v. Myers, USCT, 1983 – Public EE Speech only protected if of
public concern
(a) EE in DA’s office who was transferred agst her will despite good
performance. Attempted to question other Ees about job satisfaction & was
terminated for “refusing the transfer” Claimed free speech violation.
(b) USCT says ee’s ?s get some protection, but not enough; only one ? was
considered of public concern; ct. starts from premise of employ. at will
(c) Er asserting authority (though no evid that ?s were disruptive); balance bt
citizen commenting on matters of public concern, and er interest in
promoting its public service
(d) Unless ees can show that their voice has relationship to public, they can be
fired for speaking ag. agency
(e) Dissent (BMB): Unconstrained discussion about govt performance is
essential to informed self-government; maj gives too much deference to er
who is publicly elected official
(3) Waters v. Churchill, USCT, 1994 – public EE speech not protected if of
public concern
(a) Nurse in obstetrics dept of public hospital discharged bc statements made to
another nurse who was considering a transfer to the dept. one version of
conversation was that P bad-mouthed dept & her supervisor. P’s version is
that she was discussing practice of cross-training in already overstaffed dept.
discharged based on 1st version. Dist ct held neither version was protected bc
speech not of public concern. App Ct rvsd holding P’s version was protected
bc had to do w/ quality of nursing care.
(b) Held: vacated app ct & remanded. Govt can’t restrict the speech of the public
at large just in the name of efficiency. If speech was only of personal interest,
not public concern, then viol of free speech.
ii) PRIVATE EMPLOYMENT:
(1) Speech-related dismissal as violation of public policy – there must be clear
legislative mandate (not necessarily a statute) – but when dealing w/ public rt to
know, private ER equated to public ER more so than w/ other rts.
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(2) Novosel, USCtApp, 1983 – Can Violate Public Pol to require ee to lobby if
not part of job
(a) P was EE of D. D circulated memo soliciting participation of Ees in an effort
to lobby the PA House of Reps. P refused to help & was discharged.
(b) Held: discharge abridges public policy – freedom of speech. Need not be
statutorily recognized policy, but determines that there is recognized facet of
public policy in the 1st A rt.
(i) Although P is not public EE case suggests that important public policy is
implicated wherever the power to hire & fire is utilized to dictate the terms
of EE political activities. 1st A used as public policy guide in private
emplymt.
(ii) On remand, ct should apply 4 part test:
1. Whether speech prevents ER from efficiently carrying out its
responsibilities
2. Whether the speech impairs the Ees ability to carry out his own
responsibilities
3. Whether speech interferes with essential & close working relationships
4. Whether the manner, time & place in which the speech occurs
interferes with business operations
(iii)Evaluating those 4 elements – ct should look to:
1. Nature of the conduct
2. Actor’s motive
3. Interest of other w/ which actor interferes
4. Interest sought to be advanced by actor
5. Social interest in protecting the freedom of action of the actor &
contractual interests of others
6. Proximity/remoteness of actor’s conduct to interference
7. Relations btw parties
(iv) Usually EE loses on these cases bc ct’s 1st inquiry is whether the EE
has violated his oath of loyalty to ER by not performing the political
activity.
III) UNDER COLLECTIVE AGREEMENTS:
(1) NLRA §7
(2) In re Zellerbach Paper Co, Arb. decision; - disloyalty did not justify
termination
(a) School Bd recognized Co for its participation in a career education program
for elementary school kids. Ees of Co sent a letter to the Bd & other about
their shock that awd was given to Co bc of pervasive racism at Co. Ees were
fired bc disloyal conduct that could affect relationship w/ valued customer.
Collective agrmt says Co must have just cause to fire.
(b) Held: while sending letter can be seen as disloyal, disloyalty did not support
finding of just & sufficient cause for termination – didn’t intend malice or
damage; little if any negative effect on Co’s business relationships. However
since went public w/ an absence of info, ct suspended them for 4 mos.
(c) 3 sets of interests concerned:
(i) Ers interests in reputation & profits
(ii) Ees interest in their job & self-expression
(iii)Public interest in knowing matters of public concern
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B) COLLECTIVE SPEECH AND ASSEMBLY:
i) THE RIGHT TO ORGANIZE & ENGAGE IN CONCERTED ACTIVITY
(1) NLRA – Wagner Act – applies to private EEs only – core principle = freedom of
assembly and speech is one of the instruments for achieving and exercising right
to organize.
(a) § 7 articulates the basic right to self-organize, participate in concerted
activities, mutual aid and protection, etc.
(b) § 8(a)(1) then states in all-inclusive terms that the ER cannot interfere,
restrain or coerce EEs in the exercise of their §7 rights without being held to
have committed an unfair labor practice.
(i) All of the prohibitions in this § run against the ER, limiting control over
employment and the workplace and its ability to circumscribe EEs
freedom of speech and assembly.
(2) The Right to Organize and Engage in Concerted Activity – protection of EEs
for being in unions.
(a) § 8(a)(3) – unfair labor practice for the ER to discriminate in regards to
hiring, tenure of employment, or any terms of employment to encourage or
discourage membership in any labor organization.
(b) § 8(b)(2) – unfair labor practice for a union to cause or attempt to cause an
ER to discriminate against an EE in violation of § 8(a)(3).
(c) Concerted Activity:
(i) You don’t have to be in a union to be protected under the Act.
(ii) A group of workers can act concertedly – i.e. heat at work and walking
out.
(iii)A single EE can be seen as participating in concerted activity – if he/she is
attempting to organize other EEs or acts on behalf of a group – as long as
action looks to group and not mere individual.
(iv) In some situations, the action of an individual on his own behalf can be
protected – complaints concerning safety matters that are embodied in a
contract it is seen as attempting to enforce the contract provision for all
EEs.
(d) Edward G. Budd Manufacturing Co. v. NLRB - dual motive firing
(i) ER created a union and foisted it on the EEs. One EE was allowed to
remain at work – drunk, the “Duchess”, etc. – as long as he supported the
union. When he switched to the other union, he was fired for his
cumulative offenses.
(ii) Held: If EE would not have been fired but for his union activity, he must
be reinstated. ER can fire for any reason so long as it does not violate the
provisions of the NLRA. While the EE could and should have been fired
for his grievances, he cannot be fire for joining the union.
1. BUT-FOR TEST:
a. Burden of Proof: if EE was fired both b/c of union activity an
misconduct, EE first must show that EE’s protected activities
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Labor Law Outline - Professor Summers – Spring 2001
were a motivating factor and the ER must establish (by a
preponderance of the evidence – so ER carries the burden) that
his decision would have been the same if the protected activity
had not occurred – BUT FOR THE UNION ACTIVITY THE EE
WOULD NOT HAVE BEEN FIRED.
b. ER has the burden of proof but specific proof of intent is
unnecessary where EE conduct inherently encourages or
discourages union membership.
2. Distinction between dual motive and pretext:
a. Pretext – ER asserts a valid reason for its action, but evidence
shows reason to be a sham. ER did not in fact rely on that reason
for discharge.
b. Dual Motive – There’s a demonstrable and legitimate business
reason, but also ER’s hostile reaction to EE’s union activity.
(e) Remedies/Procedure under NLRA – (never get punitive damages)
(i) File with NLRB claiming statute was violated
(ii) Investigation by the office into the allegation
1. 1/3 of cases are washed out at this point
(iii)issue a complaint
(iv) further investigation
1. frequently settled at this point; OR
(v) administrative law judge
1. hear the case in adversarial process
2. makes findings of fact & recommendations
a. if parties agree, settle here; OR
(vi) to NLRB (consists of 5 members appointed by the president)
1. they consider the case on the record and make a decision/render an
order. The order has NO LEGALLY COMPELLING IMPACT (ER
may not comply).
2. If the ER does not comply, one can appeal to the Court of Appeals for
judicial review. The Court has three options:
a. Affirm NLRB
i. Only 1 in 7 is ever really reinstated, so it is mostly back pay –
and the ER may find it more economically advantageous to pay
back pay than to have the union since the award is lessened by
whatever new job the EE got that mitigated the damages.
b. Remand to NLRB
c. Decide on its own if NLRB got it terribly wrong
(f) Standards of Review
(i) (law) CHEVRON DOCTRINE – (Board interpretation of statute given
deference). When Congress specifically delegates to an administrative
agency the authority to make specific policy determinations, courts must
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give the agency’s decision controlling weight unless it is arbitrary,
capricious, or manifestly contrary to the statute.
(ii) (fact) UNIVERSAL CAMERA DOCTRINE – substantial evidence
test. Could reasonable person have come to NLRB’s decision?
(g) Darlington Saga:
(i) partial union closing of one plant violates § 8(a)(3) if it is motivated by
anti-union animus intended to chill unionism in remaining plants and if
ER should reasonably have foreseen that the closing would have that
effect.
(II) A Co. has the right to terminate its entire business for any reason – the Act
does not compel people to remain ERs.
(III)
In this case, after 24 years there was finally a decision for the
people. Obviously, by then the point was virtually moot.
II) EMPLOYEES SPEECH AND PERSUASION:
(1) Employees: have a right during non-working hours to do what they want w/o
unreasonable restraint. Even on ER’s property.
(a) Republic Aviation v. NLRB, USCT, 1945 – ER can’t unnecessarily
interfere w/ Ees U efforts on own time
(i) EE was fired for soliciting U membership in the plant by passing out
application cards on his own time during lunch periods. Other Ees were
discharged for wearing U buttons.
(ii) Held: rule prohibiting solicitation during Ees own time or the wearing
of U insignia at any time, interfere w/ U organization & are
presumptively invalid. EE has rt to distribute literature on ER property
on their own time – it is an effective means to reach Ees. Do not, however,
have rt to distribute literature during wkg time.
(iii)Balancing Test: ER right to maintain production & discipline v. EE rt to
organize
(b) May Dept’ Stores:
(i) department store can enforce broad no-solicitation rules prohibiting all
campaigning even during lunch hours, on selling floor and all other areas
where customers come. Solicitation cannot be prohibited in lunch room or
other non-public areas.
(c) Beth-Israel Hospital:
(i) court held that hospital could ban solicitation and distribution of literature
in immediate patient care cares such as patient rooms and lounges (so as
not to disrupt patient care).
(ii) Case is also known for enumerating the Universal Camera Doctrine
(2) Non-employees & solicitation
(a) Babcock v. NLRB, USCT, 1956 – Usu. non-ees can’t get access to er prop
to solicit ees
(i) ER refused to allow non-EEs to distribute literature on company property
(parking lot). Board found that rights to organize were being restrained by
limited place for distribution. 5th Circuit said ER property rights should
win.
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Labor Law Outline - Professor Summers – Spring 2001
(ii) Held: ER may prevent non-EEs from distributing union literature unless
EEs may not be contacted through reasonable alternative efforts. Here,
the EEs could have been reached through other means.
1. Note – the Court here overlooks the way the term “employee” is
defined in the statute – “not limited to the EEs of a particular ER
unless the act says otherwise.”
2. Court balances right to solicitation against the ERs property rights.
Distinguishes between those EEs invited by ER and those not invited
on property. Thinks that P’s interest in using D’s property is not
compelling enough.
3. Salting – a device developed by the union to overcome the boundaries
set by Babcock. Qualified paid union organizers try out for a job
opening and once hired they distribute literature and solicit
membership. Court has held that the ER can’t refuse to hire or fire a
person for this since there is nothing wrong with having 2 jobs.
(iii)Lechmere Inc. v. NLRB – Non Ees get no protection under §7
1. union was attempting to organize a retail store located in a shopping
plaza. Organizers placed handbills on the windshields of cars in the
parking lot used by EEs. Court held that these non-EEs had no
protection under § 7.
2. HOWEVER – when there is no alternate means to get the info. to the
EEs the Court balances the degree of impairment of the § 7 rights if
access should be denied and the degree of impairment of the private
property right if access should be granted.
3. NOTE – the Court ignores the Chevron doctrine here by rejecting the
Court’s argument that the non-EEs should be allowed to use the
parking lot.
(iv) Eastex v. NLRB - U can distribute work-related material even if not
directly related to particular er – broad protection
1. ER refuses to allow distribution of a union newsletter to EEs. There
were 4 sections to the newsletter: the first and fourth urged the EEs to
support and participate in the union. The second section encouraged
the EEs to write their legislators in opposition to a right to work
statute. The third section focused on minimum wage laws. It was the
2nd and 3rd sections that were at issue – political literature. The Board
said that you can’t prohibit the literature because it relates to the terms
of employment to some degree.
2. Issue – was the newsletter the kind of activity protected by the Act and
whether the fact that the act takes place on the ERs property gives rise
to a countervailing interest that outweighs the exercise of those rights
on that location.
3. Held – Court defers to the Board’s decision and upholds their decision
that the literature is protected under the Act. Advocacy about
minimum wage law is permissible because it is concerted activity for
mutual aid and protection. ER cannot refuse to allow literature to be
distributed on plant premises because the EEs were already on the
premises so it wasn’t about a property interest.
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Labor Law Outline - Professor Summers – Spring 2001
4. UNDERLYING PREMISE OF COURT AND BOARD IS THAT
THE WORKPLACE IS THE WORKERS FORUM FOR
DISCUSSING MATTERS OFF WORK LIFE. WORKPLACE IS
APPROPRIATE FORUM FOR THESE DISCUSSIONS…
WORKPLACE AS PROTECTED FORUM
(v) NLRB v. Local 1229, I.B.E.W. - Purely Defamatory Material
prohibited from distribution
1. During picketing of co for failing to renegotiate contract, ees passed
out to public newsletter claiming Co’s programs (TV) were low
quality
2. Held – Taft-Hartley Act states that no order of the Board shall require
the reinstatement of an individual who was discharged for cause.
Disloyalty is a completely valid reason for discharge. The speech was
disloyal because it did not pertain to what was going on – meant to
defame the ER and did not attempt to inform the public about the
dispute. The speech is only protected if it is about the dispute.
a. Concerted activity that is disloyal to the ER is not protected as
“activity for the mutual aid and protection” under § 7.
b. Truth of falsity of EE’s statement is not material. EE can be fired
for truthful if it is disloyal.
(3) Summary:
(a) Govt ees have large area of free speech- to all matters of public concern;
private ees have only limited free speech where it is related to the
organizational activities of the Union (mutual aid and protection)
(b) Govt has not recognized pwr of taking a job away
III) EMPLOYER SPEECH AND PERSUASION:
(1) Free Speech & Coercive Thrust
(a) Learned Hand: speech comes in context & must be treated as such
(i) § 8(a)(1) – speeches that coerce, interfere, or restrain EEs in the exercise
of the right to organize are unfair labor practices.
1. Three ways in which ER speech may raise legal questions:
a. If content is coercive or the circumstances under which it is made
give it coercive impact.
b. Can change the balance of EE rights – i.e. they campaign against
the union, giving greater rights to union to fight back.
c. Speeches by either side may be thought to be improper because
they unduly influence the outcome of elections conducted by the
Board under § 9.
2. § 8(c) – if there is no coercive content, then speech alone is not an
unfair labor practice.
(b) Virginia Electric, USCT, 1941 – Coerciveness determined by context in
which speech is made
(i) Co had been w/o a U. Shortly after Natl Industry Recovery Act, Co posted
bulletin throughout its operations appealing to Ees to bargain w/ the Co
directly w/o the intervention of an outside U, and thereby coerced its Ees.
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Labor Law Outline - Professor Summers – Spring 2001
Inside U was created. ER told Ees that if they met w/ the outside U they
would be discharged.
(ii) USCT says need more than just speech, must have unfair labor
practice – if overtly threatens job than enough but if not overt than not
enough; must look at all surrounding circumstances when determining
if speech is violative - TEST:
no threat of econ consequence may
be related to ee’s choice to organize
(iii)B/c of Congress, Speech must contain some kind of threat or be in some
context that is threatening to be unfair labor practice; speech can be evid
of unfair practice; view words in their context
(c) NLRB v. Gissel, USCT, 1969 – Need factual basis for ‘predictive speech’
(i) President of Co found that the U was trying to organize his wkrs &
threatened the wkrs that strike would put the Co out of business & the
parent Co would move them. Before the election, sent around pamphlet
about the Teamsters & filled it w/ anti-U arguments. Bd found that under
totality of circumstances, the activities were a violation of §8(a)(1).
(ii) Held: 1st A protects ER through §8(c) – no threat of reprisal or force or
promise of a benefit & the speech is protected. The ER is free to
communicate his views about the U. The ER may even make predictions
about the future of Co post-unionization…However, prediction must be
based on objective facts as to demonstrably probable consequences. In this
case, those criteria were not met. There was no basis for fear of strike &
every basis for rumor of plant closing to have coercive effect. THREAT v.
PREDICTION DISTINCTION
(2) Employer Speech & Union’s Right to Reply
(a) Livingston Shirt Co, NLRB. 1953 – ER can use captive audience of ee to
make non-coercive speech
(i) During U drive, President of Co assembled Ees during wkg hrs, ordered
them to attend & made anti-U but non-coercive speech. Ees representing
U asked for an opportunity to reply & were denied. After losing the
election, U asked Bd to rule on whether this was unfair labor pracctice.
(ii) Held: U doesn’t have to give U chance to reply to ER speech on his
property. Uncoercive speech, whenever delivered by ER is not unfair
labor practice.
1. U has other avenues to get at Ees & ER should not be req to
underwrite U campaign
2. Supervisors are way co can use wkg time to develop an anti-U
campaign.
3. Case overrules VA Electric w/ regard to captive audiences- now rule is
that can’t have them 24 hrs before election that’s all.
(3) Free Speech & Fair Elections
(a) Sewell Co, NLRB, 1962 – Propaganda otherwise interfering w/ election
may lead to re-do
(i) ER engaged in racial propaganda, inciting racial antagonism to get Ees not
to join U saying U was friendly to blacks. Sent picture of U president
dancing w/ black woman to newspaper.
(ii) Held: truthful declaration of U’s position, even if has racial overtones is
okay; but burden on party making statement to show is truthful – new
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Labor Law Outline - Professor Summers – Spring 2001
election ordered b/c upset laboratory conditions under which elections are
supposed to be conducted
1. Statements that are temperate, germane & correct factually won’t be a
problem
2. 3rd parties allowed to do more, ? usu is are they agents of U or er
iv) PICKETING, FREE SPEECH AND FREEDOM OF ASSEMBLY:
(1) Analyses of Picketing in a particular case must ask:
(a) To whom are the words addressed?
(i) May seek to persuade other Ees to refuse to work
(ii) May seek to persuade Ees of another ER to refuse to make deliveries or
perform services
(iii)May seek to persuade customers to refuse to patronize
(b) With whom does the Union have a basic dispute & on whom U seeks to exert
econ pressure
(i) Picketing to get dept store to stop selling something made by Co w/ whom
U has dispute or picketing to get benefits for workers of dept store
(c) What is the object of the Picketing – to organize ees and obtain recognition or
to use econ force?
(i) Achieve unionization/recognition
(ii) Exert added pressure on ER in negotiations – encourage Ees not to work,
truckers to refuse to enter, or customers not to patronize
(iii)Area stds picketing – picketing for same treatment as other in same
industry
(d) Picketing permitted w/I limits as form of economic pressure to counterbalance
economic pressure of Ers
(i) Primary = legal picketing directed at ER
(ii) Secondary = illegal picketing directed at Ees of another EE for purpose of
harming their own ER
(2) § 8(b)(7) LANDRUM-GRIFFIN ACT:
(a) Unfair labor practice to picket where the object of picketing is:
(i) forcing or requiring an ER to recognize or bargain w/a labor organization
(not tolerated after NLRA since it channeled recognition claims to NLRB
election procedure… ER decisions about terms and conditions of work
should not be subject to economic pressure by union that doesn’t represent
EEs) OR
(ii) forcing or requiring the EEs of an ER to accept or select such labor
organization as their representative, unless the labor organization is
currently certified as the representative, AND:
1. where the ER has lawfully recognized another labor organization and
it can’t be addressed under § 9(c)
a. Exception = union can picket the last 90 days running up to an
election.
2. where within the preceding 12 months a valid election under § 9(c)
had been conducted;
a. if the union has won the election, you go back up to the “unless”
clause and they can picket and if they don’t they can’t.
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Labor Law Outline - Professor Summers – Spring 2001
3. where such picketing has been conducted without a petition under §
9(c) being filed within a reasonable period of time not to exceed 30
days from the commencement of such picketing
a. Union is thus allowed a maximum of 30 days to picket without an
unfair labor practice being held against them.
i. INFORMATIONAL picketing is allowed for an indefinite
amount of time.
ii. Unless it interferes with other employers (delivery, transport,
etc.)
iii. EFFECT is key, not intent. Even if they do not intend to
obstruct the secondary ER, they can be enjoined from picketing
if the effect/result is to impede ER.
v) COMPULSORY UNIONISM, FREEDOM OF ASSOCIATION AND FREE
RIDERS:
(1) To what extent can the ER limit the freedom of association?
(a) Closed shop = must be a member of the union to get a job.
(i) Taft-Hartley § 8(3) prohibited the closed shop – an agreement under
which ER was required to employ only union members.
(b) Union shop = EE must become a member of the union and subject to
discharge if they don’t
(i) No longer exists legally
(c) Agency shop = EE not required to join the union but must pay dues and
initiation fees (since they benefit from bargaining.
(i) Today we have a truncated version of the agency shop – only required to
pay dues and initiation fees that go to the collective bargaining (so that the
EEs aren’t free riders).
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Labor Law Outline - Professor Summers – Spring 2001
4) THE RIGHT TO VOICE – DEMOCRACY IN THE WORKPLACE
a) THE HISTORIC PROMISE & PREMISES OF INDUSTRIAL DEMOCRACY
i) The Promise
(1) Industrial democracy should match system of political democracy and will be
achieved through collective bargaining:
(a) Decisions of the workplace are actually more important to the worker than
political decisions because there is a closer and more direct effect on the
worker’s life.
(b) Human dignity requires that workers not be subject to oppressive conditions.
ii) The Premises
(1) Biddle – How do we think of the ER and EE?
(a) Partnership? Towards a common goal? Problem – no equality of bargaining
power
(b) Class-war? Two opposing interests in conflict?
(2) Derber – Operational definition of what = industrial democracy:
(a) Representation: right to choose representatives
(b) Participation: EEs have a voice through their representatives in the
determination of the rules relating to their terms and conditions of
employment
(c) Equal rights and opportunities: all EEs have equal rights regardless of race,
sex, etc.
(d) Right of dissent: freedom of speech and orderly opposition are protected
(e) Due process: individuals or groups can raise complaints and have ready access
to effective procedures which assure them of a fair hearing and just
determination
(f) Responsibility: live up to contractual duties and responsibilities in an orderly
and lawful manner
(g) Minimum standards: socially acceptable minimum standards of employment
are provided
(h) Information: all needed information is provided to interested parties
(i) Personal dignity: dignity of every individual is respected
b) The Instrument of Voice
i) The Majority Union: § 9(a) – union designated by NLRB as representative is the
exclusive representative.
(1) One union, voted in by a majority of the workers, is recognized as the bargaining
unit for a workplace.
(a) Considered the best guarantee of workers rights. Otherwise there would be
playing off of groups against each other and no agreement would be reached.
(b) Binds all EEs regardless of their membership in the union or not.
(c) Until one union has established a majority, it has no status to bargain on
behalf of its members.
(2) Requires a unit appropriate for collective bargaining:
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Labor Law Outline - Professor Summers – Spring 2001
(a) § 9(b) delegates the power to the Board to determine the appropriate unit
without much legislative guidance:
(i) can chose between ER unit, craft unit, plant unit, or subdivision thereof
(ii) the initiative for determining the unit is with the union which may petition
the board for an election
(iii)statute requires only that it be an “appropriate” unit, but not the most
appropriate unit.
(b) Bargaining unit has many roles:
(i) = election district used to determine which, if any, union is the majority
union.
1. Union seeks district that will increase its chances of winning and the
ER wants one that will enable it to defeat the unit.
(ii) = a governing unit
1. becomes, by force of law, the industrial government for all EEs in the
bargaining unit. Members of other unions, non-union members
subject to terms of the collective agreement.
(iii)= an economic entity pairing union and management for purpose of
collective bargaining.
(c) Legal bargaining unit does not necessarily determine the economic bargaining
unit – units can be combined and be covered under a single agreement.
(d) Countervailing values:
(i) Smaller unit = greater freedom of choice for the members
(ii) Larger unit = more workable collective bargaining process
(e) Fragmentation – rarely are all EEs in a single bargaining unit (blue
collar/white collar, etc.) and some EEs may not be in any bargaining unit and
only have their individual contracts.
(f) Although unions bargain separately, the ER may bargain first with the major
union and that agreement then provides the pattern for all other units. So, in
reality, one unit becomes the leader, setting the pattern for the others.
ii) Non-Majority Unions:
(1) Statutory Status:
(a) §9(a) – majority union is the exclusive representative
(i) Under JI Case v. NLRB an ER is forbidden from bargaining with a nonmajority union and under Emporium Capwell, strikes and picketing by a
minority union are unprotected activity.
(b) §7 and §8 relate to unions generally
(c) If there is no majority union, non-majority union’s activities are concerted
activities protected by the statute – except that it cannot claim or assert
exclusive recognition and attempt to bargain for all EEs – this is a violation of
§8(a)(2)
(i) § 8(a)(2) – even a good faith belief that the union had a majority – it is no
defense
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(d) In reality:
(i) ERs refuse to bargain with minority unions. If the Board held they could
not refuse:
1. ER would be required to bargain with union even though union cannot
prove a majority, and union would not have to have election to get
limited bargaining rights. Would significantly reduce importance of
elections and election rules.
2. Might result in fracturing of bargaining so that ER might have to deal
with 3 or 4 unions whereas before it had to deal with 1 or none. But
bargaining is already fragmented by pattern of bargaining units.
(ii) ER can bargain with minority if it chooses to.
(iii)Bargaining of minority unions only affects its own members
(e) Problems with non-majority bargaining:
(i) If non-members are paid less than the collective agreement negotiated by
the majority union they might be coerced to join the union
(ii) QUERY – IF NON-MEMBERS ARE PAID MORE THAN THE
COLLECTIVE AGREEMENT BY THE MAJORITY, WOULD THIS
VIOLATE § 8(A)(3)?
iii) The Company Union – Employer Influence and Employee Choice:
(1) Statutory basis for preventing company unions:
(a) § 2(5) – the term “labor organization” means any organization of any kind, or
any agency or employee representation committee or plan, in which EEs
participate and which exists for the purposes, in whole or in part, of
dealing with ERs concerning grievances, labor disputes, wages, rates of
pay, hours of employment or conditions of work.
(b) § 8(a)(2) – it is an unfair labor practice to dominate or interfere with the
formation or administration of any labor organization or contribute financial
or other support to it.
(c) Combating the company union was a major objective of the Wagner Act for 3
reasons:
(i) Limited to the sole ER, company unions could not effectively cooperate
with other unions to form industry wide policies and give mutual aid and
support.
(ii) Representatives of company unions, being EEs, could not speak freely b/c
of the subtle fears for their economic livelihood. Nor could the EE
representatives gain the expert knowledge of the labor market and
industrial relations to bargain effectively.
(iii)Company union is supported in whole or in part by the ER is subservient
to his will and interests – thus, collective bargaining becomes a mockery.
1. THE NLRA AS PASSED REALLY ONLY REFLECTS THIS
ARGUMENT – main goal was to stop ER interference and control.
(iv) Board reviews “Company Influence” by:
1. Who suggested it
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Labor Law Outline - Professor Summers – Spring 2001
2.
3.
4.
5.
6.
7.
8.
Who suggested terms/form
Active solicitation by supervisory personnel
Opportunity for EEs to accept/reject organization
Influence by supervisors in discrediting outside/other unions
Linking benefits to membership in favored organization
Advance of $ to those not able to pay membership
Domination and support
a. Distinguishing between domination and support –
i. Domination: ER is order to disestablish the organization and to
cease dealing with it as a labor organization. Examples:
 Establishment and maintenance of the labor organization
by the ER – structure and function determined by ER,
existence depends on ER.
 Management’s use of an EE agent to organize and control
labor organization
 Active participation of supervisory personnel in the affairs
of the organization
 Internal law of labor organization which permitted
management to retain effective control of the organization.
ii. Support: ER is ordered to refrain from recognizing or
otherwise dealing with the organization unless and until is has
been certified by the Board. Examples:
 Grant of financial aid to organization
 Grant of plant facilities
 Solicitation of membership in the organization
 Favored treatment of the organization over its rival
(d) Board determines “independence” by:
(i) EE freedom to determine structure
(ii) EE representative freely elected
(iii)EE representatives protected from unjust discharge
(iv) Guarantee of financial support – fixed amount/member
(e) Arguments for the Co. union:
(i) Free choice – if EEs choose it, courts should respect that choice
(ii) Related issues –
1. should we honor that choice?
a. To what extent do we let people vote out democracy? Is voting not
to have a voice permissible?
2. Is it really free choice?
a. EE are put in a position or ordinary unions or nothing at all. If the
ER gets involved it doesn’t look like there is really free choice.
3. Does it meet the statutory objective?
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a.
Statutory purpose to foster industrial democracy and choosing not
to choose doesn’t meet this objective.
(2) Knowles v. NLRB, CTAPP, 1974 – ER may be represented on ee committees
if doesn’t control comm, inhibit ee voices and was ee choice
(a) Ees voted to have OAE as their bargaining unit. When failed to come to agrmt
w/ mgmt, one of Ees petitioned to have Bd decertify U. Bd set election &
OAE lost. Immediately after election Ees & mgmt created new plan for 5 inhouse committees with each to be composed of 5 Ees & 1 mgmt rep. OAE
claims system violates §8(a)(2). Bd agreed.
(b) Held: where a cooperative arrangement reflects a choice freely arrived at &
where organization is capable of being a meaningful avenue for the expression
of EE wishes, it is not objectionable under the act.
(3) Keeler Brass, NLRB, 1995 – Er should deal w/ the U or nothing
(a) ER changed grievance procedure – reduced # of people on the committee,
changed regular mtg days, eliminated all references to a separate complaint
committee & abolished committee’s discretion to call special mtgs w/o
approval of ER. Committee mts in ER’s conference rm & he pays for their
time. There was significant evidence that committee often changed its mind
after talking to mgmt.
(b) Held: (2 part test)
(i) This is a §2(5) labor organization. Committee exists to “deal with” ER
about grievances.
(ii) ER unlawfully dominated committee in violation of §2(5). ER suggested
formation of committee, unilaterally reformed committee, committed
resources – totality of circumstances looks like domination.
iv) Considering Alternatives
(1) What do Worker’s Want? R. Freeman & J. Rogers
(a) Don’t necessarily want a union
(b) Do want more direct contact with mgmt.
(2) Kochan, Labor Policy for the 21st c
(3) Summers, Employee Voice & Employer Choice
v) A Court Created Participation Dillemna - Can there be too much ee
participation?
(1) NLRB v. Yeshiva, USCT, 1980 – Univ. Faculty too Managerial to be
Employees
(a) Statute excludes supervisors, not considered ees; but bd held that there
are certain people who aren’t supervisors but have managerial functions
that should also be left out (manager exception is judicially created)
(b) Ct separates managers from ees by saying managers are the ones who are
really loyal b/c they’re concerned about the enterprise and workers aren’t –
devastating view
(c) Ct says full-time faculty have too mush interest; can’t have collective
bargaining unless you have an adverse interest (statute designed to create
participation says if you participate, you’re not protected by the act)
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Labor Law Outline - Professor Summers – Spring 2001
(d) When you have effective sys. of faculty self-governance (Yale, Penn) you
don’t have unions b/c faculty won’t join them; but where schools are run like
businesses w/ hierarchical structure, then need for U arises
C) VOICE IN WHAT MATTERS? SUBJECTS OF BARGAINING:
i) Mandatory Subjects of bargaining:
(1) § 8(d) defines the duty to bargain to
(a) wages
(i) basic hourly rates, paid holidays, severence pay, bonuses, pension plans,
group health & insurance, profit-sharing & stock purchase, merit wage
increase, EE cafeteria and vending machine prices
(b) hours
(i) hours of day and days of week during which EE is required to work
(ii) other terms and conditions of employment
1. grievance & arbitration, layoffs and recall, no strike/lockout clauses,
discipline & discharge, sick leave, safety health regulations, seniority,
plant rules, breaks, dress codes, absentee/late policy, parking, fighting,
non-discrimination policy, scheduling & arranging negotiation
sessions.
(c) Legal consequences of mandatory subjects:
(i) The ER must negotiate in good faith
(ii) ER cannot unilaterally change a mandatory item (i.e. wages, vacation,
medical coverage) without first notifying the union
(iii)Union can strike to obtain a desired mandatory term.
(iv) ER can lockout
(d) Examples: layoffs, recalls, production quotas
(2) Non-mandatory subjects:
(a) ER can just refuse to discuss it.
(b) If union insists on a non-mandatory subject they can be found in violation of
§ 8(b)(3) – duty to bargain.
(c) ER can change non-mandatory term at will.
(d) A strike to obtain a non-mandatory term is a refusal to bargain.
(e) Examples: advertising, products design, financing arrangements
(3) Management Perogatives Clause: “ER reserves the right to…”
(a) NLRB v. American National Insurance - Ct Allows Management
Perrogatives Clause
(i) Union objected to term in contract that stated that the ER have flexible
standards about conditions of employment – ‘management functions’
clause that kept some things from fixed arbitration and reserved to
management (discharges). Union filed complaint on basis of refusal to
bargain. Board held for union. Court of Appeal reversed.
(ii) Held: It is common collective bargaining practice. Flexible standards is
something that should be determined at the bargaining table and not by the
Board since the purpose of the Act was to promote industrial peace by
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Labor Law Outline - Professor Summers – Spring 2001
encouraging the making of voluntary agreements. No agreement is
mandated – the duty to bargain is to be enforced by the application of a
good faith bargaining standard. Since they bargained in good faith for
the clause there is no violation.
(iii)ER meets statutory obligation when it is willing to bargain in good faith
about what terms will go into the K and those that won’t. NLRB should
not look to substance.
(iv) Note – If the union is strong the clause will be inconsequential and if the
union is weak then the management will take many things off the table.
(b) NLRB v. Truitt Manufacturing Co. - Duty to Disclose Information to the
Union:
(i) ER claimed that it could not afford to pay higher wages (union wanted
10c. raise and ER said 2.5c. would put it out of business), but refused to
produce information substantiating its claim arguing that the information
was irrelevant to the bargaining process and related to matters exclusively
within the province of management. Board found it to be a failure to
bargain in good faith and the Court of Appeals reversed.
(ii) Held: Good faith bargaining necessarily requires that claims made by
either bargainer should be honest claims. If an argument is important
enough to present in the give and take of bargaining, it is important
enough to require some proof of accuracy. Thus, this was bad faith.
1. Thus, unless union makes it an issue, the union has no right to
economic info.
2. Typically the union is required to provide all non-financial info. that is
potentially relevant and reasonably necessary for the union to perform
its statutory function (wage rates, incentive earnings, overtime hours,
promotions, layoffs, insurance costs, and pension payments).
(c) Decision v. Effects Bargaining:
(i) Effects – if the ER makes a decision that has the effect of reaching
employment terms or conditions, the ER must bargain with the union as to
how the effects of the decision will be felt. Criticism = all collective
agreements impeded management decision making…
(ii) Decision – if the decision turns on labor costs there must be negotiation –
moving the plant, subcontracting, etc. – but if it rests on other grounds you
don’t have to negotiate.
(d) Fibreboard Paper Products Corp. v. NLRB: Must bargain
(i) Collective agreement was to expire. When the union and the ER could not
come to an agreement, the ER told the union that it could save a
substantial amount of money by contracting out the maintenance work and
then proceeded to do so. Then, the ER stated that since it had no EEs in
the bargaining unit it no longer needed to bargain with them. Thus, all
maintenance EEs were terminated. Board held that decision to
subcontract the work without first bargaining to impasse with the union
violated § 8(a)(5) and ordered reinstatement. Court of Appeals enforced
that order.
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Labor Law Outline - Professor Summers – Spring 2001
(ii) Held: Contracting out of work that members of an existing bargaining unit
previously performed is a subject about which the NLRA requires ERs
and the representatives to bargain collectively – a mandatory subject
because it covers a condition of employment: termination. This is in
accord with the fundamental purpose of the Act because it brings a
problem of vital concern to labor and management within the framework
established by Congress as most conducive to industrial peace. To require
the ER to bargain about this does not significantly abridge his freedom to
manage his business. Although you can’t say that an agreement will be
reached with the existing union, the chances are good enough to warrant
subjecting such issues to the process of collective negotiation.
(iii)Concurrence: words of the statute are words of limitation. Limited
category of issues subject to compulsory bargaining. Not all decisions that
affect job security are subject to compulsory bargaining b/c some things
are too indirect and uncertain. Generally contracting out is not a
mandatory subject, but here it is because it is substituting one group for
another. If it’s at the core of entrepreneurial control there is not duty.
(e) First National Maintenance Corp. v. NLRB: no duty to bargain
(i) Company provides cleaning services. One place that it contracted to
reduced the fee from $500 to $250 it paid the Co. and the contract that
they had with that place stated that they couldn’t hire any of the
Company’s EEs during the term of the contract and for 90 days thereafter.
Because the place refused to pay the higher fee, the Company broke its
contract with it and then fired the EEs and told them they wouldn’t
bargain about it because it was a financial/managerial matter. Union filed
an unfair labor charge.
(ii) Held: bargaining over management decisions that have a substantial
impact on the continued availability of employment should be required
only if the benefit, for labor-management relations and the collective
bargaining process, outweighs the burden placed on the conduct of the
business. Here, the burden could include the union trying to stall or delay
the closing. Harm to ER’s need to operate freely outweighs the
incremental benefit that might be gained through the union’s participation
in making that decision. Since the reason for closing here was an issue of
economic cost, it is not about union animus and thus not subject to
reprisal.
1. No duty to bargain about decision, but a duty to bargain about the
effects of the decision.
2. General rule – no duty to bargain about partial shut-downs unless done
for an anti-union reason (Darlington). For plant relocations sometimes
you have to bargain & sometimes not depending on whether it turns on
labor costs.
3. Difference = replacing v. eliminating
(f) The duty to bargain about moving…
(i) Burden is on general counsel to establish prima facie that the relocation
did not involve a basic change in the nature of the ER’s operation.
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Labor Law Outline - Professor Summers – Spring 2001
(ii) Then ER must show by preponderance of the evidence that labor costs
were not a factor in the decision or that even if labor costs were a factor,
the union could not have offered labor cost concessions that could have
changed the ER’s decision to relocate.
d) VOICE IN THE VOICE – THE RIGHT TO A DEMOCRATIC UNION
i) Overview of LMRDA
(1) In 1957, investigation into the undemocratic practices of the Teamsters led to
the passing of the Labor Management Reporting Disclosure Act of 1959
(LMRDA) – Landrum/Griffin Act - ensuring that the U have a min. level of
democracy in its internal affairs
(2) Overview of LMRDA:
(a) Title I:
Bill of Rts for U members
(i) Rt to participate
(ii) Freedom of Speech
(iii)Union Dues
(iv) Protects indivs from being disciplined for suing the U
(v) Rt to fair trial (due process)
(b) Title II: Requires financial reports and information to members
(c) Title III: Trusteeships; so larger U didn’t usurp local U control
(d) Title IV: Regulates U elections
(e) Title V: Imposes on U officers fiduciary relationships
(3) Like Wagner Act – intended to create a structure, but leaving ultimate decisions to
Us; U entitled to make mistakes if w/in democratic bounds; govt not to secondguess all U decisions; problem of having democracy in a one-party state
(4) Govt requires Us to be democratic (but not private corps) b/c U has been
designated by the govt to be the representative for bargaining
ii) Bunz v. Moving Picture Operators Protective Union, USCtApp, 1977 –
Meaningful Rt to Vote
(1) During a strike, the officers of the union imposed an assessment of $50 per month
on any member who did not walk the picket line. When the referendum that
authorized the assessment was voted on by secret ballot 59% of the members
voted for it. The union’s by-laws said that 2/3 of the members present had to vote
for it in order for it to pass. The union said it was valid anyway, citing the
LMRDA which provides that no special assessment shall be levied “except by
majority vote.”
(2) Held: A union’s violation of its own by laws is not per se a violation of the
LMRDA and courts don’t have jurisdiction to enforce union constitutions and by
laws where there is no violation of the LMRDA. But, § 101(a)(1) of the LMRDA
states that “every member of a labor organization shall have equal rights to vote in
elections and referendums subject to reasonable rules and regulations in such
organizations by laws.” Equal right to vote means that the right each member has
to vote must be meaningful. Here, they violated the statute by not giving Bunz a
meaningful vote – he was allowed to cast a ballot, but the minority’s ballots were
deprived of their effectiveness when the union raised the 5 or votes required to
defeat the assessment from 34% to 51%. By doing so the officers discriminated
against the minority voters
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Labor Law Outline - Professor Summers – Spring 2001
iii) Salzhandler v. Caputo, USCtApp, 1963 – U member can express views ag U that
are slander w/in limits
(1) Salzhandler was the appointed financial secretary. He distributed a leaflet
accusing the president of mishandling union funds. The president filed charges
with the union tribunal for libelous statements. Salzhandler was removed from
office and told he couldn’t participate in meetings, etc. He then brought this
action in Federal Court to reverse the council’s actions.
(2) Held: Statute protects members in criticizing the union. The intent of Congress
was to prevent union officials from using their disciplinary powers to silence
criticism and punish those who dare to question and complain. Furthermore, the
speech doesn’t fall within 2 of the categories that are exceptions to the free speech
rule: 1) responsibility of every member to the union (he was actually acting in the
interest of the union) and 2) interference with unions contractual duties (he didn’t
interfere). Finally, the desirability of protecting the democratic process w/i
unions outweighs any possible weakening of the union in their dealing with ERs
which may result from freer expression of the opinions of the union – if you
exclude his participation/silence the people willing to complain, you kill the
process.
(a) The protection of this person does make a practical difference. It permits
groups who oppose the leadership to coalesce and possibly overturn the
leadership. Democratic Process.
iv) Wirtz v. Hotel & Club Ees Union, USCT, 1968 – U ruls about who can run for
office must be reasonable or else viol §401 of LMRDA
(1) ? of requiring having held an office in order to run for office (prohibited 93% of U
from running); Test of rerunning an election; how do you know if the practices
affected the outcome of the election? Outcome not who is the winner, but what is
the effect of counting up the votes(even doing well for a non-incumbent can say
something about U’s situation)
(2) Here machine perpetuating the machine; purpose of statute to protect democratic
process; by-law unreasonable qualification as to potential office holders in
viol of §401 – have to show affected outcome of election; U can respond to
prima facie showing
(3) If you require U members to go to mtgs, then have to know of an issue far enough
in advance
(4) LMRDA §401 – distribution of campaign literature must be provided at
candidates expense to all members of the U – b/c incumbents have a blt in
advantage since names and addresses not public knowledge
(5) Outsider Rule - §501 precludes getting funds from non-U ers (such as an aunt
who owns a business), so limits opposition grps from getting $ to run campaign
v) Sheet Metal Wrkrs, USCT, 1989 – Firing U member for speaking ag U proposal
viol §101 b/c chills rt to free speech
(1) elected official spoke in opposition to trustee’s proposal to increase union dues
b/c he wanted expenditures reduced. He was then fired.
(2) Held: He can’t be fired for his actions. Allowing an elected official to be
removed for exercising his free speech rights would effectively nullify a
member’s right to vote for a candidate whose view he supports. Deprives the
members and the official of their protected right to free speech.
(a) Compare With Appointed Official – not the same idea behind it – not
silencing the members vote, but permitting the newly elected president to
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Labor Law Outline - Professor Summers – Spring 2001
victory which might be meaningless if he can’t get rid of people who aren’t
for him. (Finnegan v. Leu).
vi) RICO Statute:
(1) criminal conspiracy to deprive someone of property; taking over of U can be said
to deprive U members of property; trusteeships used to re-establish democratic
processes
(2) prohibits racketeering – govt can move in & remain receiver or trustee
(3) dept of justice realized that some Us were seedbank of mafia org. mafia goes
where $ are. Us were opportunity for getting lots of $
(4) try to reestablish democratic process in Us. Govt was taking over certain
procedures in the Us. Was it still a U? In a way, yes. Govt never used this device
except where there was obvious mafia control.
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Labor Law Outline - Professor Summers – Spring 2001
5) REGULATION OF MARKET FORCES IN THE COLLECTIVE MARKET
a) The “free market” contradiction – limits on economic measures both sides can use:
i) Each side uses economic pressure to try to get the other side to commit to the terms it
wants.
ii) Unions – strikes, etc.
iii) ER – lockout, control over property and jobs generally.
iv) The purpose of collective bargaining is to balance the power of economic force – the
two forces have to be relatively equal to produce acceptable results. Thus, the forces
can’t be left totally free and there must be some structuring/defining of what is
acceptable economic action.
b) The Duty to Bargain and Economic Action:
i) ER must bargain in good faith to impasse – can’t change terms unilaterally until he
has done so – ULP § 8(a)(5). What = impasse? Further bargaining had no prospect of
success.
ii) The Union does not need to bargain to impasse before it can use economic force
(strike). Limitations on this rule: EEs who deliberately time strike so as to create a
risk of substantial property damages thereby engage in unprotected activity for which
they can be discharged. NLRB v. Insurance Agents Union.
c) Union Economic Action and Employer Countermeasures:
i) Some forms of action are not protected by §7 but are also not prohibited – the EE can
engage in them and the ER can discharge for them – the theory is that you can’t be at
work and on strike at the same time; you are either at work subject to the authority of
the ER or off the job in a total strike.
(1) Partial Strikes.
(2) Walking out for the rest of the day each time the company refused to settle a
grievance.
(3) Concerted refusal to work overtime.
(4) Refusal of city bus workers to drive buses on the weekends.
(5) Refusal to do part of assigned work claimed to be outside their job classifications.
(6) Restrictions of production as protest against new piece rates.
(7) Refusal to work at previous capacity, as a protest against reduced wages.
(8) A demonstration in the aisles of the plant that interfered with production.
ii) NLRA § 2(3) – any person whose work has ceased as a consequence of a labor
dispute remains an EE.
iii) Economic Strikes –
(1) Replacements:
(a) MacKay Rule: ER can hire permanent replacements and refuse to rehire
strikers after dispute is over (if there is no room for them because of the
replacements). However, the striking worker remains an EE even if not
reinstated, so Co. must give them a position when/if they open up.
Replacement workers and strikers are entitled to vote in representation
elections.
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Labor Law Outline - Professor Summers – Spring 2001
(i) This is probably not still a good rule bc of weakness in current unions.
Also clear viol of statute bc it discriminates btw those who strike & those
who don’t
(b) NLRB v. MacKay Radio & Telegraph – Economic strikers not protected
(i) Nation-wide strike by union as a result of negotiation break-down. The
Co., to maintain operations, brought in replacements. When the strike was
over, ER said some of the jobs were gone. The people whose jobs were
“gone” were the strike leaders. Union files §8 claim for interfering with
union activity (by discriminating against the leaders).
(ii) Held: Not an unfair labor practice for the ER to hire permanent
replacements during the strike in order to protect and continue his business
in the face of the strike according to §13. Furthermore, he doesn’t have to
fire those replacements when the strike is over. BUT – the ER cannot
discriminate against who he actually does re-instate. This is a violation of
§8 – interfering, restraining and coercing EEs.
1. NOTE – this type of rule makes the strike somewhat ineffective by
elevating the ER’s right to continue business w/EEs §7 rights. It also
increases the disparity between the earnings of two groups – makes the
strong stronger (strong union or irreplaceable workers are the only
ones who don’t suffer here) and the weak weaker.
2. Also –this rule is counterproductive to the interests/purposes of the
statute because it doesn’t promote industrial peace. Permanent
replacements become the object of objection for the strikers and cause
picket line violence and poor worker environment between the
replacements and the reinstated workers.
a. The court reads the rule into the statute even though there are no
words in the statute that deal with this and without attempting to
inquire what “balance of bargaining power” means.
3. This rule has led to a decrease in union membership. Makes a great
difference for the ability to organize since they know they can lose
their jobs.
(2) Crossovers
(a) TWA v. Independent Federation of Flight Attendants – built on McKay –
Strikers only entitled to nondiscriminatory review & disposition of their
job applications for rehiring
(i) ER continued to operate during a strike by hiring permanent replacements
and “crossovers” (EEs who chose not to strike or returned during the
strike). The crossovers were allowed to take the more desirable jobs of
striking EEs. Court held that when the strike was over the EEs that had
been on strike could not bump the replacements or the crossovers from
jobs take during the strike. It justified this by saying that those reinstated
would retain their seniority for purposes of claiming future jobs. The
Court acknowledge that a competition may arise between the EEs to return
to work to avoid being displaced but thought this was only a secondary
effect.
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Labor Law Outline - Professor Summers – Spring 2001
(ii) This type of rule tends to encourage those of lesser seniority to return to
work and grab better jobs. It strengthens the ER’s hand.
(iii)If there is a lay-off after the strike has ended, the returned workers still
have seniority and the replacements are the most junior so they are the
ones laid off.
(iv) When it comes to the reinstatement of the laid of workers, the answer of
who gets their job back could greatly affect the union’s ability to strike –
just as the rule about crossovers frustrates strikes. Ultimately, the
replacements would be last in line to get their jobs back.
iv) Unfair Labor Practice Strikes
(1) ER’s countermeasures are more limited. He can hire replacements, but when the
strikers make an unconditional offer to return to work, it must reinstate them if
work is available, even if that requires dismissal of the replacements.
v) Replacement Workers and Union Representation
(1) There is no presumption that striker replacements oppose the union.
(2) NLRB v. Curtin Matheson Scientific, Inc. – can’t presume replacements have
anti-U bias
(a) the union and the Co. reached an impasse in negotiations so the union
commences an economic strike. When the union ended the strike and
accepted the last offer on the table before the strike, the co. responded that the
offer was no longer available and that it withdrew recognition of the union
because it doubted that the majority was supported by a majority of the
workers. This was based on the Gorman Presumption that replacement
workers do not support the union.
(b) Held: the replacement worker is no different from a striker who, feeling the
financial heat of the strike on himself and his family, is forced to abandon the
picket line and go back to work. Replacements may sometimes desire
representation despite their willingness to cross the picket line. Policy - If the
ER adopted an antiunion presumption, it would permit him to eliminate the
union merely by hiring a sufficient number of replacement EEs – this might
encourage the ER to avoid good faith bargaining over a strike settlement and
instead use the strike as a means of removing the union altogether. If the ER
could have this presumption it might chill the EE’s exercise of their statutory
right to engage in concerted activities.
(i) NOTE – the MacKay rule has the same repercussion of chilling the
exercise of the statutory right to engage in concerted activities that the
court is concerned with here. In that situation, the ER can just hold a vote
since the replacements can vote at that time (and, logically, a la the
Gorman presumption the replacements will be anti-union since if the
union won they would likely be force out of their jobs by the return of the
strikers).
(ii) Applying the Chevron Doctrine – Ct doesn’t necessarily agree w/ Bd’s
decision, just saying will defer.
vi) Handbook promises and “permanent replacements”
(1) Belknap Inc. v. Duwaine R. Hale – state actions ag ER for breach of promise
of permanent emplymt to replacements allowed.
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Labor Law Outline - Professor Summers – Spring 2001
(a) Union and Co. reached an impasse and the EEs went out on strike. The Co.
put an ad for replacement EEs for “permanent” positions & told Ees that
positions would be permanent. The strike ended and the parties agreed that
they would reinstate the workers so the Co. fired the “permanent” replacement
workers. The workers brought suit.
(b) Held: the ER is not shielded by federal law from suits for misrepresentation
by the replacement workers.
(c) Note – this rule frustrates the MacKay rule a bit – If they are not shielded and
the union is able, as part of resolving the strike, to get the strikers reinstated,
the ER is subject to all this liability. Thus, this rule might actually frustrate
the resolution of disputes. Or, it frustrates the ER’s decision to hire
“permanent” replacements… and court is really stating that you can hire
“permanent” replacements a la MacKay rule, but they really aren’t permanent
if the union can get you to reinstate the strikers.
vii) Unemployment/Food Stamps for Strikers
(1) General rule is that striking EEs are not entitled to unemployment benefits.
(a) Majority in NY Telephone v. NY Dep’t of Labor held that silence on part of
Congress in NLRA discussion supports the inference that Congress intended
to allow the States to make this policy determination for themselves.
(i) This rule effects market balance since the denial of unemployment makes
it harder for workers to strike.
(b) Dissent argued that what Congress left unregulated is important, b/c it sows
that they wanted collective agreement and bargaining to govern the
relationship. Unemployment compensation would only undermine the
balance established.
(2) 1981 Budget Act changed the food stamp program to deny them to households
with a member of a union strike
(a) the Act was upheld by the Court as it did not violate “associational rights”
(b) Court’s rationale was based on “neutrality” to the disagreement.
(c) Summers points out that this neutrality was really one-sided since businesses
get many benefits:
(i) Tax subsidies through deductions, depreciation and credits
(ii) Loans through small business association
(iii)Can carry loss from strike over several years to maximize tax advantage.
viii) Can the Union fine EEs for not participating in the strike?
(1) Pattern Makers League of North America v. NLRB – Viol U members rts for
penalizing them for crossing over
(a) union provided in its constitution that resignations are not permitted during a
strike or when a strike is imminent. Ten members of the union resigned and
returned to work during the strike. When the strike was over, the union said
their resignations were not valid and fined them the amount they earned by
returning to work. EEs brought suit under § 8(b)(1)(a).
(b) Held: Union restrictions on the right to resign are inconsistent with the policy
of voluntary unionism in §8(a)(3). The only obligation that the union can put
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Labor Law Outline - Professor Summers – Spring 2001
on the EE is initiation fees and dues – they can’t be required to join the union.
Thus, they must be able to resign or the union action is seen as coercive.
(c) Note – there is no discussion of the effect on bargaining power but it does
make it harder for the union to strike. This is the major point of the case.
(2) Criticism of the Holding – reasons why union should be able to fine its workers:
(a) Statutory reasons: § 8(b)(1)(A) left unions free to define their own
membership, including internal rules like when they can resign. BUT – since
the beginning the Court has said that only “reasonable” rules are permissible.
(b) Principle of voluntary unionism: union rule stands for proposition that to
become a union member, must accept obligations that come with membership.
Quid pro quo of benefits he has received.
(c) Freedom of Contract: union constitution is contract. All contracts infringe on
voluntariness.
(d) Concern about free riders in union who would benefit from strength of union,
but not have to sacrifice work when there is a strike.
ix) The Lockout Problem
(1) At issue is that the union wants to strike at the time of maximize economic
pressure – and the union wants to pick the time with the least pressure.
(2) Lockouts are permitted if they are for economic purposes and ER has bargained to
impasse (Teamster 639) – not if they are to discourage or discriminate against
union members.
(3) American Ship Building Co. v. NLRB – Lockout allowed even if pressures U
(a) Repair workers for ships on the Great Lakes are usually busiest in the winter
months. They were in the midst of negotiations and they could not come to an
agreement. The ER knew that they were going to try and strike at the most
crucial moment – in the winter. At impasse, the lockout ensued. At issues was
whether the union has unilateral control over the time at which a plant closes
or whether the ER has this weapon too.
(b) The Court said that both parties had the right to choose so ER didn’t violate
§8(a)(1). The Board had said that if ER had the timing it would give him too
much power and that he has other weapons to the lockout would imbalance
power. The Court said that it was not for the Board to design the balance of
power. But then the Court does what they said the Board shouldn’t do – says
that ER’s actions aren’t inherently destructive of union’s ability to bargain.
d) Note – throughout the entire discussion of economic action the Court fails to
acknowledge that they are actually designing the balance of power. Thus, there is never
any discussion of whether the Court “should” balance one way or another. The real
problem is never adressed! This is the fundamental policy question that no one will face.
e) Secondary Boycotts:
i) The union has a problem with one ER where the union is not the majority
representative. He tries to get at that ER by convincing another ER where he has
union representation to boycott the first ER (forces this by threatening to strike ER2).
Thus, you hit ER2 to get at ER1. Either way you get the same results – either strike
ER1 or have ER2 boycott.
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Labor Law Outline - Professor Summers – Spring 2001
ii) The Court thinks that secondary boycotts are bad because it makes a neutral party
suffer (the ER2).
(1) The question then is:
(a) Is ER2 really neutral? Not really.
(b) Making neutrals suffer is the essence of many strikes –
(i) For example – the bus strike. The riders suffer from the strike and are the
ones who put pressure to settle the problem.
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Labor Law Outline - Professor Summers – Spring 2001
6) PRIVATE GOVERNMENT IN THE WORKPLACE
a) Introduction
i) Collective agreements provide system of private gov’t regulating EE relations
(1) substantive terms provide the governing law (wages, hours, vacation, seniority,
etc.), and
(2) grievance procedure provides the administrative structure
(a) grievances claim violations of the terms of the contract and may protest
practices or conditions not covered by the collective agreement or raise claims
by individual EEs that they haven’t been treated fairly or that supervisors have
abused their power.
(b) If dispute involved the interpretation or application of the collective
agreement, the union can demand arbitration and the award is final and
binding.
ii) Wagner Act did not denote the proper forum for dispute (NLRB- interpret statute,
Arbitrator- interpret K):
(1) Economic force (strike): K would be interpreted through a battle – the meaning of
the K would be determined by the economic muscle.
(2) Courts: sue for breach of K
(3) Arbitration: impartial arbitrator
(4) 95% of union Ks have arbitration clauses.
iii) What substantive law to apply to the collective contract? Resolved by Taft-Hartley 1947:
(1) Pre-Taft-Hartley – collective agreements were covered by state K law… TaftHartley preempted state K law with federal law.
(2) Inadequacies in remedies for breach of collective agreement were recognized and
there was the desire to make them legally enforceable in federal courts: Statutory
recognition of the collective agreement as a valid, binding and enforceable K is a
logical and necessary step – will promote a higher degree of responsibility of the
parties to such agreements and will thereby promote industrial peace.
(3) THA §301 – gives federal courts jurisdiction over suits for enforcement of
collective bargaining agreements
(a) federal courts have jurisdiction of “suits for violation of Ks between an ER
and a labor organization representing EEs in and industry affecting
commerce…, or between any such labor organizations”).
(b) No guidance by Congress, though, on how arbitration fits in here
(c) Intended to reinforce state remedies by providing a more effective remedy in
federal court.
b) Judicial Enforcement of Collective Agreements
i) What substantive law should apply - §301 has no substantive provisions? Can the
Court compel arbitration (b/c of Norris-LaGuardia Act outlawing injunctions in labor
disputes)?
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Labor Law Outline - Professor Summers – Spring 2001
ii) Garmon Preemption – requires that state and federal courts defer to primary
jurisdiction of NLRB when claim is actually or arguably subject to §7 or §8
protection (to prohibit state interference with national labor policy).
iii) Lincoln Mills – Parties can sue to arbitrate under §301 if in coll agrmt; fed cts
create body of law for enforcement of coll agrmts
(1) collective agreement provided that there would be no strikes or work stoppages
during the period of the agreement, and for a grievance procedure the last step is
arbitration. Union processed grievances and requested arbitration but ER refused
to arbitrate so union brought them to court:
(2) Substantive law to apply is federal law, which the court should fashion from
the policy of national labor laws.
(3) Norris-LaGuardia indicates a congressional policy toward settlement of labor
disputes for arbitration b/c it denies injunctive relief to any person who has failed
to make “every reasonable effort” to settle the dispute by negotiation, mediation,
or “voluntary arbitration.” Court can compel arbitration.
c) COURTS & ARBITRATORS- JUDICIAL RELIANCE ON PRIVATE PROCESS
i) United Steel Workers v. American Manufacturing Co. – Cts to deermine forum
parties agreed upon for dispute settlement bu not to interpret coll agrmt
(1) EE settles workers comp. claim by stipulating that he’s 25% disabled. Then EE
sues to get his job back. ER refuses to arbitrate b/c he says there is no dispute–
agreement says that arbitration could be had in disputes as to “the meaning,
interpretation and application of the agreement.”
(2) Court compelled arbitration – the agreement is to submit all grievances to
arbitration, not merely those the court may deem meritorious. Function of the
court is confined to ascertaining whether the party seeking arbitration is
making a claim which on its face is governed by the K. No exception to the “no
strike” clause so none for the grievance clause – the quid pro quo.
(3) Typical contract analysis:
(a) Is it in the terms of the K?
(b) Can it be implied by other terms of the K?
(i) What did parties intend
(ii) What did they reasonable think
(iii)Implied terms
(iv) Boilerplate terms
ii) United Steel Workers v. Warrior & Gulf Navigation – Presumption of
Arbitrability
(1) Subcontracting dispute – ER subcontracted and laid off workers who were then
hired by subcontractors to do the work. CBA had a no strike/no lockout provision
and grievance procedure – procedures strictly a function of management not
subject to arbitration, differences as to meaning and application will go to
arbitrator and there will be no suspension of work. ER refused to arbitrate and
union sued to compel. ER claimed it was a management function and union sued
on induced lock-out.
(2) Court held the dispute should go to arbitration.
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Labor Law Outline - Professor Summers – Spring 2001
(a) Arbitration is the substitute for industrial strife. It is at the heart of the
collective agreement because it is the means of solving the unforeseeable in
accord with the variant needs and desires of the parties. The processing of
disputes via the grievance procedure is the vehicle by which the meaning and
content are given to the collective bargaining agreement. Thus, apart from
matters the parties specifically exclude from the grievance procedure, all
issues that arise must be subject to the grievance and arbitration provisions.
(b) Congress – in Section 301 of LMRA – gave the courts the duty of determining
whether the party has breached the promise to arbitrate. To be consistent with
Congress’ intent, the court should then strictly confine its inquiry to the
question whether the party agreed to arbitrate the grievance or agreed to
give the arbitrator the power to award what he did. All doubts should be
resolved in terms of coverage – presumption of arbitration.
(i) Court was particularly wary of getting involved in the merits of the K – so
tossing everything over to arbitration was a good idea – otherwise it was
Court or strike… arbitration was most peaceful and neutral option.
iii) United Steel Workers v. Enterprise Wheel – Arb Standard of Review = Essence
of agrmt
(1) issue of whether the court should enforce/scrutinize an arbitrators award? EEs
left their job to protest against the discharge of an EE. When told to go back to
work by union, ER told them they didn’t have a job. A grievance was filed and
arbitration ordered. Arbitrator found that they were discharged in violation of the
agreement, even though their behavior was not proper. Thus, he ordered (even
though the K had expired before the arbitration award) reinstatement with
backpay minus a suspension period. ER refused to comply and DC ordered
compliance. AC then refused to order compliance on ground that the arbitrator’s
award was unenforceable since it was after the termination of the agreement.
(2) SC holds that arbitrator must draw essence of award from K and court can upset
the award only if it wasn’t faithful to the K (arbitrator owes a fidelity to the K) –
so, even if it makes no sense to the judge, as long as he’s drawn essence from K
the court can’t intervene. Otherwise, would upset the intent of the parties to have
final and binding award by the arbitrator (if it was subject to judicial scrutiny).
(a) If K is susceptible to an interpretation that will support the arbitrator’s award,
then court should uphold it. If words are ambiguous in the award, uphold it.
In case of faulty arbitration, the award will be set aside and the dispute will be
submitted to a different arbitrator.
(3) NOTE – court has held that accrued/vested rights arising under the K do not
terminate with the K nor does the agreement to arbitrate.
iv) Eastern Associated Coal Corp v. United Mine Wkrs of Assoc Dist 17 – public
policy concerns can’t overturn arbit awd unless agrmt violates public policy
(1) Arbitrator ordered ER to reinstate EE truck driver who had 2x tested positive for
marijuana. Issue = whether considerations of public policy require cts to refuse to
enforce the arbit awd.
(2) Held: public policy concerns can’t overturn arbit decision. Real issue is whether
terms of collective bargaining agrmt violate public policy. No law was violated.
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Labor Law Outline - Professor Summers – Spring 2001
Consistent w/ recidivist approach of DOT policy. Deference to Congress. Lower
cts decision does not violate any well-defined explicit dominant public policy.
d) Creation and Enforcement of the No-Strike Obligation:
i) Creation:
(1) Local 174 Teamsters v. Lucas Flour Company – no strike clauses read into
agrmts unless explicitly otherwise
(a) CBA states that any disagreements b/t ER and EE should be submitted to
arbitration. EE was hired and union called a strike to force ER to rehire the
EE. ER brought suit in state court against the union asking damages for lost
business as a result of the strike (a breach of the K – even though there was no
express no-strike clause).
(b) Court holds that under federal law the K prohibits a strike even though
there is no explicit “no-strike” clause b/c they agreed to arbitration (an
either or type deal) – a contrary view would be at odds with the basic policy of
the national labor legislation to promote the arbitral process as a substitute for
economic warfare.
ii) Enforcement:
(1) Sinclair, USCT, 1962 – Norris held to forbit fed cts from enjoining strikes ag
no strike agreements
(a) U struck in viol of a no strike clause; lower ct issued injunction; USCT says
Norris forbids this; er went to state ct and got inj, then U moved to fed ct b/c
fed law applies, but fed ct can’t issue injunctions b/c of Norris Act – should
fed ct dissolve the injunction?
(b) Taft-Hartley makes injunction the remedy; if §301 strips states of rt to
enjoin strikes in breach of contract, then ruins purpose of §301 (b/c
damages least useful remedy); Can’t enforce no-strike clause w/
injunction. Sole remedy under §301 is damages
(2) Boys Market v. Retail Clerks Union USCT (1970) – Overrules Sinclair:
national policy in favor of arb but policies agst injunction (Norris) so limit
Norris to extent nec to promote arbit.
(a) Source of the problem - § 301 said ‘suits’ could be brought in federal court
for breach of K which implied damages or injunctions. Court had previously
held that the Norris LaGuardia Act prohibited injunctions in labor disputes –
but in Lincoln Mills the court said that they could compel arbitration and this
was seen as okay, so they were already issuing injunctions in labor disputes.
The court was compromised… thus, here the Court held that if you have a
dispute that can be submitted to arbitration and the ER is willing to
arbitrate, then you can enjoin the strike to protect the arbitration process.
(b) This qualified the NLA – and did not overrule it since Court could only issue
an injunction if:
(i) Contract provides for arbitration
(ii) Specific underlying dispute is arbitrable
(iii)ER agrees to submit to arbitration
(iv) Injunction is warranted under ordinary principles of equity (is ER
suffering irreparable injury b/c of strike?)
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Labor Law Outline - Professor Summers – Spring 2001
7) RIGHT TO FAIR AND EQUAL TREATMENT:
a) Fair Representation in Contract Negotiation and Administration:
i) NLRA effectively eclipsed the individual employment contract – stripped the
individual EE of any ability to exit from the system except by quitting. The
democratic process protects the majority, but it does not adequately protect the
members of minority or vulnerable groups. This creates 2 problems:
(1) What can the Board or courts do to protect minorities in the negotiating process
(from the majority neglecting their interests or appropriating benefits at the
minority’s expense)?
(2) Does the collective agreement vest legally enforceable rights in the individual EE
and can the EE assert those rights without resort to the union as exclusive
representative or are they bound to the union?
ii) Fairness in Contract Negotiation
(1) Steele v. Louisville & NR Co. - Duty of Fair Representation
(a) Group of black railroad firemen challenged K provision negotiated by a union
(from which they were excluded) and management that limited or denied
certain position to black EEs. Court established that Congress intended a duty
of fair representation under the RLA that requires the bargaining
representative to represent the entire craft. Thus, Court held that the union
must represent the all EEs – even non-members – in good faith, fairly and
w/o discrimination. The union acts like a legislature and is subject to
restrictions on its power to deny, restrict or destroy rights for whom it
legislates. Court read this in for fear of results had this not been the holding.
(2) Ford v. Huffman – Military preference allowed (today would viol Title VII)
(a) ER gave EEs credit towards seniority for pre-employment military service, a
required under the collective agreement, and also gives preference to those
who went right into the military after highschool even though they never
worked for the company. This had the effect of bumping out people who had
been working during the war (women & minorities, but this was never
mentioned by the court).
(b) Court held that the agreement was valid because while there is a duty to
represent fairly, that does not mean that everything will always come out
equally. They have the authority to determine how to meet that standard.
Union has some latitude. Court ultimately found this fair b/c of the public
policy of crediting EEs for time spent in the military during war as stated in
the Veterans Preference Act of 1944. Policy dictates that military be given
credit – union went beyond this and gave credit to people who had never
worked for them before. This was okay – according to the court b/c the Dep’t
of Labor was recommending this and it was union practice. Union must be
given a wide range of reasonableness subject always to good faith and
honesty of purpose. Also – court thought this was an example of the majority
voting to give the minority a benefit so it wasn’t suspicious – but Court
overlooks the fact that it was the women, etc. who were getting displaced.
(3) Standard of Review:
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Labor Law Outline - Professor Summers – Spring 2001
(a) Unions – acting as legislatures – will be given the same deference as
Congress, less they be characterized as so far outside the range of
reasonableness as to be irrational or arbitrary.
(b) Duty of fair representation is that of a fiduciary.
(4) Seniority:
(a) Problem arises when companies merge. How to merge seniority lists?
Usually argue either that lists should be dovetailed (each EE should retain her
seniority from the old Co.) or that seniority should be based on length of time
worked at new plant. Problem thus arises – how to calibrate the interests??
(5) How do we know what is fairness? In negotiation it is difficult to know –
negotiating is an irrational and chaotic process. People trade things which may be
illogical and interests often get overlooked. You can’t satisfy everyone. Thus,
courts are reluctant to upset the provisions of the K and would rather deal with
procedure by which they got the provisions.
(6) Miranda Fuel Co. – Board recognized the duty of fair representation by holding
that arbitrarily refusing to process and EEs grievance was an ULP.
iii) Fairness in Contract Administration
(1) Central Question – whether union by refusing to process a grievance or to take the
grievance to arbitration can foreclose the individual EEs from enforcing their own
rights created in the collective agreement? NO.
(2) The source of the problem:
(a) §9(a) gives unions exclusive representation rights, but also states that the EE
shall have the right at any time to present grievances to ER w/o union so long
as it doesn’t violate the grievance procedure. So the § makes a distinction b/t
negotiation of the agreement and the grievance procedure.
(b) In Smith v. Evening News the Court held that the CBA does create rights in
individuals to sue ERs based on § 301 which vested individuals with the right
to sue an ER to vindicate uniquely personal rights under the agreement.
(c) Problem is that rights are defined by the collective agreement which is
qualified by the arbitration clause… and often Unions contract to be the
exclusive representative of the EEs in grievance procedures. Thus, the Court
has held that an EE must exhaust the grievance procedure before you can go
to court. Republic Steel Corp. v. Maddox.
(3) Vaca v. Sipes – indiv may sue only after exhausting grievance procedures
(a) EE was discharged for poor health and sued union officials for refusing to
take his wrongful discharge grievance to arbitration. During grievance
procedure, union sent the EE to a physician for a physical and the medical
report concluded that the EE’s blood pressure was too high to permit him to
return to work and then decided not to arbitrate the grievance. EE sued ER
under § 301 and union for violation of the duty of fair representation.
(b) Court held 2 things:
(i) Federal Court is the proper forum for breach of duty of fair
representation. Can be heard in state court but they have to apply federal
law.
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Labor Law Outline - Professor Summers – Spring 2001
1. Typically there is primary jurisdiction in the NLRB for administrating
the NLRA and the court shouldn’t act until the agency has made its
decision. This is the Garmon preemption doctrine. But, the Court
stated here that although the duty of fair representation is arguably an
ULP and therefore primary jurisdiction would rest in the Board, it
doesn’t since the duty of fair representation was established in Steele
after the doctrine came about… so Board doesn’t have exclusive
jurisdiction.
(ii) No violation of the duty of fair representation – EE failed to prove
arbitrary or bad faith conduct by the union in processing the grievance.
Union has duty not to act in an arbitrary, discriminatory, or bad faith
manner but just settling without going to arbitration isn’t a violation of
that duty b/c EE doesn’t have an absolute right to have grievance
arbitrated. Union had a right to refuse to process a grievance when
chances for success are slight or few.
(4) So… the EE can circumvent the need to exhaust grievance remedies in K by suing
ER for violation of the K and Union for a violation of the duty of fair
representation.
(a) In order to recover from ER must show that ER violated the K and that Union
violated duty of fair representation.
(b) In order to recover from Union, must show that ER violated K and that there
was a good grievance.
(5) Hypotheticals:
(a) Truck drivers sue for underpayment of overtime required by multi-employer
K. Drivers repeatedly complained to union, but business agent refused to take
any action. Only excuse was that employer claimed he could not afford to pay
more.
(i) Union’s decision not to file grievance is arbitrary b/c it’s not according to
the established rule. The standard is the terms of the K, which the
employer is violating.
(b) Two companies merge. K language is ambiguous, but consistent practice has
been to dovetail seniority lists. Union officials, responding to majority views
of employees, agree w/ employer that employees of smaller, absorbed
company should go to foot of seniority list. Employees who are laid off
object, but their grievances are rejected by union-employer joint committee.
(i) Consistent practice is to dovetail, so union not acting according to
established rule. And there’s invidiousness. So breach of duty.
(c) Murphy discharged for theft of company property. Protested innocence and,
following established practice, filled out grievance form, signed it, and gave it
to shop committee man. Committee man lost form and forgot about it. A
year later, after Murphy was acquitted, he discovered that union never filed
grievance. Files a new grievance but arbitrator dismisses it as not timely.
(i) There’s no invidiousness. Standard is one of fiduciary relationship.
Enforcement of a legal right in a procedure designed to enforce legal right.
Classic case of malpractice for a lawyer. But in union, representative is
volunteer, fellow employee. Should not hold him to standard of a lawyer.
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Labor Law Outline - Professor Summers – Spring 2001
(ii) Some jurisdictions would say that there’s a violation of the duty only if
gross negligence.
(6) Hines v. Anchor Motor Freight - ? of whether showing U negligence is
enough undecided.
(a) Employees are discharged for dishonesty, in that they were alleged to have
false expense reports. They pushed the union to investigate the motel, but the
union told them not to worry about it. Union prosecutes grievance and loses.
Came out later that motel clerk was the one actually fudging the receipts, and
employees were innocent. Complaint is the way the union presented the case
in arbitration. They failed to get evidence that would have gotten the
discharge set aside.
(b) Court holds union violated its duty of fair representation b/c there were
sufficient facts from which bad faith or arbitrary conduct on part of local
Union could be inferred from trier of fact (political antagonism between local
union and Ps b/c of a wildcat strike led by some of Ps and union president
calling them “hillbillies”; motel clerk’s admission; failure to put on any
exculpatory evidence; assurances they had nothing to worry about).
(c) ER remains liable for damages since it does not matter whether the arbitrator’s
decision was correct/binding, but whether the procedure was fair. If the union
fails in its duty of fair representation, then the arbitration process is void. It’s
a procedural defect that goes to the fairness of the proceeding.
(7) Summers – the arbitration process often isn’t fair so it is appropriate for the Court
to examine.
b) TITLE VII – CIVIL RIGHTS ACT OF 1964
i) §703: It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to have or to discharge any individual or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions and
privileges of employment because of such individual’s race, color, religion, sex or
natural origin. Subsequent provisions elaborated this prohibition and extended to
employment agencies and unions.
ii) Civil Rights Act of 1866 – applies only to race discrimination, damages are not
capped.
iii) 1991 Amendments –
(1) Substance:
(2) Procedure:
(a) Jury trial if requested
(b) Compensatory and punitive damages
iv) Procedure for filing a Title VII claim:
(1) Charge can be filed by or on behalf of a person claiming to be aggrieved with the
EEOC.
(2) EEOC investigates the charge for reasonable cause (not deciding whether there
was a violation or not):
(a) If it finds that there is no reasonable cause to believe the charge is true, it
notifies the charging party and respondent, giving to the charging party a
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Labor Law Outline - Professor Summers – Spring 2001
“right to sue” letter authorizing the charging party to bring civil suit in his or
her own name in the federal district court.
(b) If they find reasonable cause, it attempts to conciliate the dispute and if this
fails the EEOC may bring a civil action in its own name. (very few happen
this way).
(i) If the EEOC fails or refuses to bring suit in its own name w/i 180 days of
the filing of the charge, it must give the charging party a “right to sue”
letter.
v) Damages:
(1) Reinstatement, back wages of up to 2 years, front wages (if reinstatement isn’t an
option), compensatory (emotional pain and suffering, inconvenience, mental
anguish, loss of enjoyment of life and other non-pecuniary losses) and/or punitive
damages (for intentional discrimination engaged in with malice or reckless
indifference to the federally protected rights of the aggrieved individual - ranging
from 50k- 300k).
(2) In sexual harassment suits, if the woman didn’t lose her job there can be no
backpay so the damages are limited to compensatory and punitive damages.
(3) No punitive damages can be recovered against a gov’t agency.
vi) What’s the difference b/t the EEOC and the NLRB?
(1) EEOC finding has no legal impact (c/w NLRB). Regardless of EEOC finding, the
individual can sue.
(2) Title VII doesn’t preempt state statutes – states can have their own antidiscrimination laws.
vii) Disparate Treatment – purposeful discrimination:
(1) McDonnel Douglas Corporation v. Green – order of proof in discrim cases of
disparate treatment
(a) Procedure for claim:
(i) P bears the initial burden of production. P must make a P/F showing of
discrimination by:
1. That the individual belongs to a racial minority
2. That he applied to and was qualified for a job for which the ER was
seeking applicants.
3. That, despite his qualifications, he was rejected.
4. That, after his rejection, the position remained open and the ER
continued to seek applicants from persons of complainant’s
qualifications.
a. If nothing more is introduced by anyone, P gets directed verdict.
(ii) The burden then shifts to the ER to articulate some legitimate, nondiscriminatory reason for the EEs rejection. This is simply a burden of
production (i.e. more believable than not).
1. The cause need not be a “good reason” – just a non-discriminatory
one.
(iii)Burden then shifts back to P who must show that Co.’s articulated reason
was a pretext for discrimination.
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(2) Modifications to the test:
(a) Burden of proof remains with the P at all times – must convince of a purpose
to discriminate– proof that ER’s reason was pretextual does not entitle P to
judgment as a matter of law b/c they still bear the burden of proof and case
can go to jury. See: St. Mary’s Honor Center v. Hicks
(3) Dual Motive Firing:
(a) When ER has a dual motive for firing an individual (one legit and the other
discriminatory) P has to prove that the ER relied upon the discriminatory
reason in firing the person. ER can then overcome a guilty verdict by proving
by a preponderance of the evidence that, even if it had not taken the
discriminatory reason into account, it would have come to the same decision
to fire that person. See Price Waterhouse v. Hopkins.
(4) Partnership – once contractual relationship of employment is established, Title
VII is applicable. Even if partnership is not an implied term of the K, it is a
benefit or privilege of employment and can not be doled out in a discriminatory
fashion (even though partners aren’t EEs when the person is up for partnership
they are an EE and that is why the act applies.
viii) Disparate Impact: Employer’s good intent or absence of discriminatory intent
does not redeem employment procedures that prevent minority employees from
obtaining jobs by imposing tests that are not job related.
(1) Griggs v. Duke Power Co.:
(a) Initially, employer employed only black employees in Labor Department
which had lowest paying jobs. Later, employer instituted a policy of requiring
a high school education for employment in every department except Labor.
Under this policy, employer permitted employees to transfer from Labor
Department to other departments, provided they had completed high school.
New employees in every department except Labor were required to pass two
professionally prepared aptitude tests and to have a high school education for
placement. Black employees charged employer w/ racial discrimination.
Court of Appeals said no evidence of discriminatory purpose in use of
diploma or testing requirements.
(b) SC held that Title VII proscribes not only overt discrimination, but also
practices that are neutral on their face but that have a discriminatory impact.
The touchstone is business necessity. If practice operates to exclude blacks
can’t be shown to relate to job performance, practice is prohibited.
(c) THE TEST: (See Ward’s Cove below).
(i) P must show that employment practice that is neutral on its face has a
disparate impact
(ii) D must then show non-discriminatory business justification AND that
practice (test) is job related
(iii)P can rebut the proffered justification by showing that there are other
measures that are equally effective in serving the ER’s legitimate business
interest w/o the disparate impact.
(2) Ct. v. Teal:
(a) If test is not job related and it has a significant adverse effect on minorities
and women it violates Title VII. The fact that the ER compensated for the
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discriminatory barrier to reach a bottom-line that was non-discriminatory does
not cure the violation. The whole process must be fair.
(3) Watson v. Fort Worth Bank and Trust:
(a) Bank relies on subjective judgment of supervisors in selecting supervisory
EEs. Court holds that if there is a disparate impact, subjective standards
violate Title VII too.
(4) Ward’s Cove Packing Co. v. Antonio:
(a) P must not only establish by statistical evidence that hiring practices have a
disparate impact, but it must also identify the specific components of the
hiring practice that have cause the disparate impact.
(b) ER must then offer a non-discriminatory business justification for the
challenged components as well as that they are job related (§703 of 1991
Amendment).
(c) P then has the burden of rebutting business justification and showing that
there is a non-discriminatory way to achieve the same result.
ix) Affirmative Action & Race
(1) Johnson v.Transportation Agency – USCT approves gradual affm act plan
(a) Agency Plan provides that, in making promotions to positions within a
traditionally segregated job classification, the Agency is authorized to
consider as one factor the sex of a qualified applicant. The plan didn’t set
aside a specific number of positions for minorities or women, but authorized
the consideration of ethnicity or sex as a factor when evaluating qualified
candidates for jobs in which members of the group were poorly represented.
Road dispatcher position opened up and the position requires a minimum of
four years of dispatch or road maintenance work experience. Two of the
applicants deemed eligible were a man and a woman that were equally ranked.
The position went to the woman. Man then sues.
(b) Court upheld the plan:
(i) PROCEDURE:
1. P must show that race/sex has been taken into account
2. D carries the burden of production to establish a non-discriminatory
reason for its decision (AA as justification)
a. ER seeking to justify the adoption of a plan need not point to its
own prior discriminatory practices, nor even to evidence of an
“arguable violation” on its part. ER need only point to a
“conspicuous imbalance in traditionally segregated job categories.
b. Is manifest imbalance enough?
i. Compare % in workforce with % in area labor market or
general population if there is no expertise required in the job
(so need not be such as would support of P/F case against an
ER for discrimination). P.70.
ii. When the job does require special training, the comparison
should be with those in the labor force who possess the
relevant qualifications.
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c. Does it unnecessarily trammel the rights of male EE or create an
absolute bar to their adavancement?
i. No – deemed a plus, but does not mandate hiring women over
men or insulate the individual from comparison with other
candidates. No one is automatically excluded.
3. P must then carry the burden of proof that he plan is pretext and is
invalid.
(2) Wygant v. Jackson Board of Education: Layoff plan.
(a) Layoff plan that stated that % of minority teachers laid off would be no more
than the % working… so teachers with greater seniority were laid off instead
of minorities with less seniority. SC held: can’t have a plan to provide role
models for minority school children – societal discrimination alone is not
enough to justify a racial classification. There must be some showing of prior
discrimination by a gov’t unit. Furthermore, although you can discriminate in
hiring to remedy effects of past discrimination, discrimination is layoffs was
impermissible. Denial of future employment opportunities is not as intrusive
as loss of an existing job. Hiring goals impose a diffuse burden foreclosing
one of several opportunities while layoffs impose the entire burden on
achieving racial equality on particular individuals. That burden is too
intrusive.
(3) Piscataway Teachers:
(a) Two teachers had the exact same seniority and they laid off the white guy.
Court held that it was not adopted to remedy discrimination and that it
unnecessarily trammeled the rights of the non-minority b/c not a temporary
plan and no long/short tem goals. Is there a better argument here, though, for
providing role models in education (as c/w employment claims)? This was
considered when they were considering admissions policies for law schools.
(4) Adarand – strict scrutiny to all racial classifications.
x) Affirmative Action & Sex
(1) Dothard v. Rawlinson: Bona Fide Occupational Qualification (race is never a
BFOQ).
(a) Qualifications for prison guard = height and weight requirement that
effectively excluded women. Disparate Impact claim. §204 of rules for
assigning guards established gender criteria for assigning correctional
counselors for contact positions in maximum security prisons.
(b) Height and Weight requirement invalidated:
(i) P has to show that the facially neutral standards select applicants for hire
in a significantly discriminatory fashion. ER then must meet the burden of
showing that the requirement has a manifest relationship to the
employment in question. If the ER proves that the challenged
qualifications are job related, P may then show that other selection devices
without similar discriminatory effect would also serve the ER’s legitimate
interest in efficient and trustworthy workmanship.
1. In this case, they claimed strength had a manifest relationship and the
Court responded that this goal could be achieved by measuring
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strength directly and that is this test was administered fairly would
meet the standards of Title VII because it would be one that measure a
person for the job and not the person in the abstract.
(c) § 204 – purposeful discrimination – upheld.
(i) Bona Fide Occupational Qualification – discrimination based on sex is
valid when the essence of the business operation would be undermined by
not hiring members of one sex exclusively (but you can’t refuse to hire
based on stereotypical characterizations).
1. In this case, Court held that it was a BFOQ b/c there is inadequate
staffing so there is no attempt made to separate /classify inmates
according to their offense or level of dangerousness that is essential to
penological administration. As a result, 20% of the male prisoners
who are sex offenders are scattered throughout the penitentiary. The
likelihood that inmates would assault a woman because she is a
woman would pose a real threat to the victim of the assault as well as
to the basic control of the penitentiary and protection of its inmates
and the other security personnel.
2. Dissent – Proper response to this situation is to remedy the problem in
the prison, not to exclude women.
(2) BFOQ exception has proven to be very narrow:
(a) Weeks v. Southern Bell Telephone Co. – decision must be based on
individual strength and ability, not stereotype of women as the weaker sex.
(b) Diaz v. Pan American Airways – can’t hire only women as flight attendants
– catering to passenger needs is only tangential to what was reasonably
necessary for the job.
(c) St. Cross v. Playboy – playboy club could hire only women to be bunnies
since part of job was titillate and entice male customers.
(d) Fernandez v. Wynn Oil Co. – customer preference on sexual stereotyping
can’t justify discriminatory conduct. (international case).
(e) Abrams v. Baylor College of Medicine – refusal to assign a Jewish
anesthesiologist to work at a hospital in Saudi Arabia violated the prohibition
against discrimination on the basis of religion.
(f) Kern v. Dynalectron Corp. – ER could require helicopter pilots that flew
into Mecca to be Moslems (otherwise they would be beheaded).
(3) United Automobile v. Johnson:
(a) protecting women from lead exposure and company from potential tort
liability is not BFOQ. Case shows narrowness of BFOQ. May be too late by
the time we find a woman is pregnant, so we’ll exclude all women who will
potentially become pregnant.
(b) Court says it’s for woman to choose. If she wants to run risk, not for
employer to say. BFOQ has to concern job-related skills and aptitudes.
Unless pregnant women differ from others “in their ability or inability to
work,” they must be treated the same” as other employees “for all
employment-related purposes.”
xi) Sexual Harassment
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Labor Law Outline - Professor Summers – Spring 2001
(1) Quid pro quo harassment:
(a) When employer/ supervisor gives employee perception that they must have
sex in order to keep their job or to get a promotion. These cases don’t pose
significant problems. Only problem is employer’s responsibility. Normally
the offender has supervisory authority (that’s how they’re able to extract sex)
and supervisor is the agent of the employer. So strict liability if done by
supervisor. It’s not necessary that the person actually have the power to hire
and power. Enough that victim believes person has control over their job.
(2) Hostile Work Environment:
(a) Conduct which has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile or offensive
work environment.
(b) The harassment must be severe or pervasive.
(c) Liability of ER:
(i) Statute prohibits ER from discriminating – so the Court looks at the
situation from an agency perspective… as long as it isn’t frolic and detour
the ER is liable for EE’s acts.
(ii) For Supervisors - ER is liable for failing to remedy or prevent a hostile or
offensive work environment of which management-level EEs knew, or in
the exercise of reasonable care should have known.
1. ER can raise defense in these cases that they exercised reasonable care
to prevent and correct promptly any sexually harassing behavior and
that the EE unreasonably failed to take advantage of any preventable
or corrective opportunities provided by the ER or to avoid the harm
otherwise. Burlington Industries v. Ellerth.
(iii)ER’s remedy should be immediate and appropriate – reasonably calculated
to end the harassment. Need not fire the harasser – just need to be
reasonably calculated to end the harassment.
(d) Harasser and victim can be of the same sex. Oncale v. Sundowner Offshore
Services.
(e) Ellison v. Brady: San Mateo/San Fran - woman received strange love letters
from a co-worker and ER did little about it. Court finds that EEs conduct was
sufficiently severe and pervasive to alter the conditions of P’s employment
and create an abusive working environment.
(i) Test of Hostile Work Environment:
1. That he or she was subject to sexual advances, requests for sexual
favors, or other verbal or physical conduct of a sexual nature.
2. That this conduct was unwelcome
3. That the conduct of the harasser was sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive
work environment.
(ii) Should be judged from reasonable victim (woman) standard – so even if
harasser thinks he is merely complimenting, judged by the standard of the
victim.
(f) Harris v. Forklift Systems: what is an abusive work environment?
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(i) So long as the environment would reasonably be perceived, and is
perceived, as hostile or abusive there is no need for it also to be
psychologically injurious.
(ii) Whether an environment is hostile or abusive can be determined only by
looking at all the circumstances:
1. Frequency of the discriminatory conduct
2. Severity of conduct
3. Whether it is physically threatening or humiliating or a mere offensive
utterance
4. Whether it unreasonably interferes with an EE’s work performance.
xii) Religious Discrimination:
(1) Test
(a) An employee’s religion must be accommodated unless accommodation would
cause undue hardship to the employer.
(b) If the employer has reasonably accommodated employee’s religion, the
employer does not have to take the employee’s suggested accommodations
into account, nor do they have to prove that the employee’s suggestions would
cause an undue hardship.
(c) § 703(j) of Civil Rights Act of 1964: employer has an obligation to
“reasonably accommodate to an employee’s ... religious observance or
practice w/o undue hardship on the conduct of the employer’s business.”
(2) Application
(a) Ansonia Board of Education v. Philbrook: School board’s collective
bargaining agreement with union granted each teacher a certain number of
days leave each year to be used in a defined way. P wanted to use 3 days
granted for personal reasons as religious holidays, b/c his religion required he
take 6 days off from work rather than the 3 days allowed for religious holidays
by the K. The K provided that personal leave days may not be used for those
otherwise specified in the K. This meant P could not use personal days for
religious observance.
(i) Holds that an employer met § 703(j) obligation b/c it demonstrated that it
offered a reasonable accommodation to the employee (unpaid leave).
(ii) Any reasonable accommodation may do. Employer gets to decide what’s
reasonable. Need not accept employee’s reasonable accommodation or
prove that EEs alternative would pose an undue burden.
(iii)Unpaid leave is a reasonable accommodation. Effect is only loss of
income for employee.
(iv) Unpaid leave not reasonable when paid leave is provided for all purposes
except religious ones. Can’t discriminate.
(b) From 2nd Cir: In order to make out a prima facie case of religious
discrimination,  must show:
(i) He or she has a bona fide religious belief that conflicts with an
employment requirement;
(ii) He or she informed the employer of this belief;
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(iii)He or she was disciplined for failure to comply with conflicting
employment requirement.
(c) Court doesn’t really reach what’s undue hardship (In Hardison court said that
accommodation results in undue hardship whenever that accommodation
results in “more than a de minimus cost” to the employer. Doesn’t reach
question more than that b/c allows employer to decide what’s reasonable and
won’t cause an undue burden).
(3) TWA v. Hardison: more than de minimis cost to ER is an undue burden.
(4) Toledo v. Nobel-Sysco, Inc: Truck driver uses peyote for religious reasons: ER
could make reasonable accommodation by requiring EE to take day off work after
using peyote. This accommodation would not cause undue hardship.
(5) Hobbie v. Unemployment Appeal Commission: You’re denied unemployment
compensation if you’re fired for willful misconduct or if you voluntarily quit.
State can’t force you to choose between following precepts of religion and
forfeiting benefits and abandoning one of precepts of religion in order to accept
work. Denial of benefits is unconstitutional b/c it burdens her free exercise of
religion.
c) Age Discrimination
i) ADEA – Age Discrimination in Employment Act –
(1) Procedure – EEOC enforces. Always had jury trials. Front pay rather than
reinstatement is often awarded. Willful violators could be assessed double
damages and att’y fees.
(2) Age range – anyone over 40 is protected. Mandatory retirement for public safety
officers at 70 is permissible, but not for university professors.
(3) BFOQ – ER can discriminate for safety reasons, but must show:
(a) Evidence that age is related to safety and
(b) They are unable to deal with EEs individually.
(c) Jury must be instructed that that standard is: whether based on objective
evidence the restriction is reasonably necessary to the accomplishment of the
safety goal. There is not deference to the ER’s judgment except as it relates to
reasonableness.
ii) Western Airlines v. Creswell (SC 1985). BFOQ case.
(1) FAA has regulation prohibiting any person from serving as a pilot or first officer
on a commercial flight if tat person is 60.
(2) Court holds that jury did not err in deciding that P’s case does not fall within a
BFOQ defense.
(a) Some qualifications may be so peripheral to the central mission of the ER’s
business that no age discrimination can be reasonably necessary to the normal
operation of the particular business. The ADEA requires that age
qualifications be something more than “convenient” or “reasonable” – they
must be reasonably necessary to the particular business and this is so only
when the ER is compelled to rely on age as a proxy which can be shown only
by:
(i) ER had reasonable cause to believe, that is, a factual basis for believing,
that all or substantially all persons over age qualifications would be unable
to perform safely and efficiently the duties of the job involved; OR
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(ii) that age is a legitimate proxy for safety-related job qualifications b/c ER
can prove it is impossible or highly impractical to deal with older
employees on an individualized basis.
(b) In assessing whether the qualification is reasonably necessary, you need not
defer to the ER’s judgment.
(c) It may be “rational” to require retirement at any age, but that requirement
might not comply w/Congress’ direction that ERs must justify the rationale
for the age they choose. Unless an ER can establish a substantial basis for
believing that all or nearly all EEs above an age lack the qualifications
required for the position, the age selected for mandatory retirement must be
an age at which it is highly impractical to insure by individual testing that its
EE will have the necessary job qualifications.
iii) O’Connor v. Consolidated Corp (1996) – doesn’t matter if EE fired is replaced by
EE that is also protected by ADEA (e.g. over 40) – only matters that EE lost out b/c
of age.
iv) Treatment v. Purpose:
(1) Court’s never ruled whether impact is required for age.
(2) Hazen Paper Co. v. Biggins (S. Ct. 1993):
(a) EE fired just before pension would vest. EE claims ONLY disparate
treatment.
(b) Court held that there is no disparate treatment under the ADEA when the
factor motivating the ER is some feature other than the EE’s age.
(i) Disparate treatment claim can only succeed if the protected trait played a
role in that process and had a determinative influence on the outcome.
When the ER’s decision is motivated by factors other than age, the
problem of inaccurate and stigmatizing stereotypes disappears. This is
true even if the motivating factor is correlated with age, as pension status
usually is. On average an older EE has had more years in the work force
than a younger EE and thus may well have accumulate more years of
service with a particular ER – yet an EE’s age is analytically distinct from
years of service. Thus, an ER can take years of service into account while
ignoring age and thus is it incorrect to say that a decision based on years
of service is necessarily age-based.
(ii) Does violate ERISA.- can’t fire an EE in order to prevent his pension from
vesting. But it does not, without more, violate ADEA.
(c) Fairness of holding is not apparent b/c there is disparate impact… large
portion of people who had accumulated pensions were over 40. Court
assumed there was disparate impact, but said that wasn’t relevant b/c it was
analytically distinct. Concurrence says there are substantial arguments that it
would be improper to carry over disparate impact theory from Title VII to
ADEA cases.
d) Disability –
i) Prohibits federal agencies and federally funded state programs from discriminating
against handicapped individuals solely by reason of their handicap.
ii) History
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Labor Law Outline - Professor Summers – Spring 2001
(1) Before ADA there was Rehabilitation statute that applied to federally funded jobs.
Underlying premise of that and ADA was that people should be treated equally.
(2) But with ADA there was an additional thrust: there should be some positive aid
given to disabled persons. Objective is to get disabled people into workforce.
That itself has a social value, so it’s worth it even if it costs.
(3) Who pays?
(a) When Rehabilitation Act conditioned federal funding on compliance, federal
government paid.
(b) Now, ADA applies to private employers, so the employer must pay.
(4) Question is how much of a helping hand must employer provide?
(5) Congress intentionally copied ADA verbatim from rehabilitation statute so cases
apply.
iii) What is a disability?
(1) Physical or mental impairment that substantially limits one or more of major life
activities (need not be job related)
(2) Individual has a record of such impairment
(3) Individual is regarded as having such impairment. (so need not actually be
impaired)
(4) Statutory Structure of ADA
iv) What is discriminate?
(1) Accommodations - Not making reasonable accommodations to known physical or
mental limitations of a qualified individual unless such covered entity can
demonstrate that the accommodation would impose an undue hardship of the
operation of the business of the entity.
(2) Deny Employment - Denying employment to individual who is otherwise
qualified is denial is based on the need of the business to make an
accommodation.
v) Who is a qualified person with a disability?
(1) An individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such
individual holds or desires. Considerations shall be given to the ER’s judgment as
to what functions of a job are essential.
vi) What is a reasonable accommodation?
(1) Making existing facilities used by EEs readily accessible to and usable by
individuals with disabilities, AND
(2) Job restructuring…
vii) What is an undue hardship?
(1) An action requiring significant difficulty or expense, when considered in light of
these factors:
(a) The nature and cost of the accommodation
(b) Overall financial resources of the facility, number of persons employed at the
facility, effect on expenses and resources, and impact in general on the
operation of the facility.
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Labor Law Outline - Professor Summers – Spring 2001
(c) Overall financial resources of the covered entity, overall size of the business
w/respect to number of its EEs, the number/type/location of its facilities
(d) The type of operation or operations of the covered entity.
viii) GENERALLY:
(1) P must have a disability and must be able to perform the essential functions of the
job.
(2) Employer must make reasonable accommodation where possible but is not
required to do anything that would be an undue hardship
ix) NOTE –
(1) the act specifically excludes certain disabilities such as sexual orientation,
compulsive gambling, kleptomania, or pyromania and current illegal use of drugs.
(2) DOES cover person w/AIDS b/c of substantial limitations on procreation and
sexual relationships that are major life activities.
x) Medical examinations –
(1) Prior to employment – cannot conduct medical exam or inquire as to whether the
applicant has a disability or its severity. They can ask if they are qualified for the
job and ask them to prove it if they do so uniformly.
(2) After being offered the job – can require medical exam as long as it is the same
for all applicants.
(3) Current EEs – cannot be required to submit to a medical exam or questioned
about a disability unless the exam or inquiry is related to job or based on business
necessity. Drug testing is permissible since illegal use of drugs isn’t a disability.
xi) Perceived v. Actual Disability:
(1) Statute says you can meet disability definition by discrimination based on
perceived disability.
(2) Cook v. RI Mental Health (1st Cir.1993): morbidly obese applicant sues for
discrimination. Court finds she was perceived as being disabled. Irrelevant
whether employee contributed to her disability or whether disability was mutable.
(a) Procedure – P must show:
(i) The she applied for a post
(ii) That at the time she suffered from a cognizable disability
(iii)Was nonetheless qualified for the position
(iv) She was not hired due solely to her disability.
(b) Procedure on perceived disability – P must show:
(i) No disability –
1. While she had a physical or mental impairment, it did not substantially
limit her ability to perform major life activities, OR She did not suffer
from a statutorily prescribed physical or mental impairment.
(ii) ER treated as disability –
1. That the ER treated her impairment (whether actual or perceived) as
substantially limiting one or more of her major life activities
(c) In this case, the woman does qualify under the act:
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(i) mutability – could actually not be mutable (heritable obesity), but
regardless – as long as ER treated as immutable that is all that matters.
(ii) Voluntariness – act applies to many disorders that may be caused or
exacerbated by voluntary conduct and is relevant only in determining
whether a condition has a substantially limiting effect.
(iii)Substantially limiting effect – EE need not have been rejected from a
myriad of jobs – this would require the EE to go around engaging in futile
attempts to be employed in order to bring suit. There is a significant legal
distinction between rejection based on job-specific perception that the
applicant is unable to excel at a narrow trade and a rejection based on
more generalized perception that the applicant is impaired in such a way
as would bar her from a large class of jobs. The latter is the offense.
(iv) Qualified for job – unfounded assumption that applicant is unqualified for
a particular job, even if arrived at in good faith, is not sufficient to forestall
liability. ER’s belief must be objectively reasonable – can’t be based on
stereotypes and broad generalizations.
(v) Rejected b/c of disability/perceived disability.
xii) Boundaries aren’t clear cut – all terms in the act are elusive:
(1) Definition of Disability is elusive:
(a) Uncorrected vision not a disability – didn’t substantially limit life activities
(b) Cross-eyed not a disability
(c) Back anomaly not a disability, but can be perceived as such
(d) Back condition that limits police officer from wearing a gun belt not disabled
(2) Reasonable Accommodation is elusive:
(a) Providing readers for blind not an undue hardship
(b) Post Office need not provide step stool for EE who suffered dwarfism
(c) Post Office must transfer HIV to LA for better treatment
(d) Transfer woman away from supervisor whose negative comments further
anxiety which causes her pain in her jaw
e) FAIR AND EQUAL TREATMENT IN ARBITRATION
i) Central Principle
(1) Fairness = equal treatment. Rules should be enforced equally.
(a) ER can lay down the intention to enforce something he hasn’t been enforcing
and then enforce it – but he can’t just start enforcing when he hasn’t in the
past.
(b) If you discipline someone it must be timely, so you can’t just say you will
discharge others who had violated to compensate for unequal enforcement of
rules.
(2) Examples
(a) Women is sent home b/c she’s wearing red pant. Arbitrator says there’s no
evidence that red is more inciting than green.
(b) Woman is sent home for having pants rolled up. Can’t punish her and not
other employees.
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