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Labor Law Levy

Labor Law Levy

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Published by: Isabella L on Jun 27, 2013
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Labor Law - Fall 2012
PART 1. THE EVOLUTION OF LABOR RELATIONS LAWI. FREE LABOR, LABOR ORGANIZATION, AND THE LAW
A.
REPPRESSION – prior to the Wagner Act
1.
Criminal conspiracy - 1800s –
courts considered concerted employment union efforts (strikes,picketing, etc) to be common law criminal conspiracies.2.
Labor injunction in private disputes
a.
Vegelahn v. Gutner -
An act by employees to intimidate an employer and personsemployed is an unlawful interference with the rights both of employer and of employed.Maintenance of a picket in front of an employer’s premises for the purposes of preventingpersons in his employ from continuing therein, regardless of the picketer’s conduct, isunlawful, and may be enjoined.b.
Plant v. Woods
-
 The court held that defendant interfered with plaintiff's members' right todispose of their labor with full freedom.3.
The Antitrust laws
a.
Sherman Act – Competition law –
1890 prohibits certain business activities that reducecompetition in the marketplace, and requires the government to investigate and pursuetrusts, companies, and organizations suspected of being in violation.a)
Loewe v. Lawlor –
Sherman Act prohibits any combination whatever to secureaction which essentially obstructs the free flow of commerce between the states, orrestricts the liberty of a trader to engage in business. The court held the fact thatdefendants were members of a labor union seeking to force plaintiff to unionize didnot serve to take defendants out of the reach of the Act.b.
The Clayton Act
- 1914
-
right to organize unions without employer interference, labororganizations are not committing "anti-trust", employers and workers are competitors andorganized competition is good, attempt to curtail the use of injunctions, §6 - "the labor of ahuman being is not a commodity or article of commerce, nor shall such [labor] organizationsor the members thereof, be held or construed to be illegal combinations or conspiracies inrestraint of trade under the anti-trust
.
a)Passed by Congress in attempts of limiting union exposure to antitrust liability.b)Limited by
Duplex Printing Press Co v. Deering
, which gave a narrow reading to theClayton Act provisions protecting labor activity.B.
TOLERANCE
1.
The Norris-LaGuardia Act –
1932 prohibits federal courts from issuing injunctions (with a fewexceptions). The act was to keep the courts out of the labor marketa.Established the predicate that peaceful, concerted activities - strikes, boycotts or picketing-should not be enjoined by law. (Union-Neutral)b.
 Apex Hoisery Co v. Lende
– Court gave narrow reading of the market effects of unionactivity that would allow the application of the antitrust laws.c.
United States v. Hutcheson
– Court considered the Norris-LaGuardia Act to constitute acongressional statement of public policy that guided the interpretation of the antitrust laws.2.
The Sherman Act recalibrated
3.
Labor activity and the constitution
a.
Thornhill v. Alabama –
held AL state law, which made it an offense to picket, faciallyinvalid. Labor relations were "not matters of mere local or private concern," and that freediscussion concerning labor conditions and industrial disputes was "indispensable to theeffective and intelligent use of the processes of popular government to shape the destiny of modern industrial society." There was no clear and present danger of destruction of life orproperty or of breach of the peace was inherent to labor picketing.C.
RECOGNITION: WAGNER ACT (NLRA)
1.
Wagner Act –
1935 concerned primarily with the organizational phase, established the twin rightsto organize and bargain collectively, and made it government policy to encourage unionization andcollective bargaining. (Union-Friendly)a.Prevent practices which interfered with the growth of unions and development of collectivebargainingb.Concerned exclusively with the activities of employers violating rights guaranteed in §7 andwith limiting employer’s unfair labor practices under §8c. Left substantive terms and conditions of employment entirely to private negotiationD.
RETRENCHMENT
1 –Levy 2012
 
1.
Taft Hartley Act - 1947 (amendment to NLRA)
attempted to “balance” obligations betweenemployers and unions by restraining union as well as employer unfair labor practices by providingalternatives to collective bargaining where public health or safety is seriously affected.a.Permitted individual states to outlaw union shopsb.Outlawed secondary boycotts and mass picketingc.Provided enforcements of labor agreements.2.
Landrum-Griffin Act -
Affected the internal affairs of unions and prohibited "sweetheart"contracts.
II. THE JURISDICTION, STRUCTURE, AND PROCEDURE OF THE NLRBA.NLRB JURISDICTION1.Enterprises covered:
a.
The Commerce Requirement and Other Limitations on NLRB Jurisdiction
-
§§10(a),9(c)(1), 1
NLRB’s jurisdiction extends to cases “affecting commerce” as defined in
§2(7)
 Board self-limited itself in 1958, saying that commerce only applied where:a)
Retail concerns
- have at least $500,000 annual business;b)N
onretail companies
- (ex. manufacturing) have at least a $50,000 annual outflowor inflow, direct or indirectc)
Instrumentalities, links, and channels of insterstate commerce
- (ex. Truckingcompanies, etc.) which derive 50,000 or more annually from interstate portions of their operations, or from services performed for employers in commerced)
Public utilities
- which have at least $250,000 gross annual volume or qualify underthe jurisdictional standard applicable to non-retail firmse)
Transit systems
- (other than taxicabs) with an annual gross volume of $250,000 ormoref)
Newspapers and communication systems
- radio television, telegraph andtelephone systems have $100,000 gross volume and Newspapers which have$200,000 gross volumeg)
National Defense
– all firms having a substantial impact on national defenseh)
Proprietary and nonprofit hospitals
– with an annual revenue of at least$250,000i)
Law Firms and Legal Assistance Programs
– with gross annual revenue of atleast $250,0002.
Excluded employers
:a.Religiously-Operated Activities – NLRB v. Catholic Bishop of Chicago – prevented the Boardfrom dealing with any religiously-operated activity that involves employees (interferencewith 1
st
Amendment).b.Most significant group of excluded employers are public employers – federal, state, county,and municipal government.
3.Excluded employees:
a.Some categories of employees at common law that are excluded statutorily – agriculturalworkers, domestic workers, and supervisors.b.Undocumented alien workers – SureTan, Inc v. NLRB – Court sustained the extension of Labor Act to aliens unauthorized to work in the United States.c.Foreign Employee and Company Jurisdiction
no
jurisdiction over American citizens who are
 permanently 
employed outside of US by American companies although employees in
temporary 
assignment abroad are still covered – jurisdiction over foreign companies doingbusiness in US.4.
Statutory Exclusions
§2(3)
definition of “employee” – Taft-Hartley adds exclusions for:a.
Agricultural Laborers
– Board interpreted this statutory exclusion narrowly, holding thatno worker can be considered agricultural unless his duties form an integral part of ordinaryfarming operations.a)Work must ordinarily be of a sort performed before the products can be marketedthrough normal channels.b)Not specifically excluded but developed under common law decisions.b.
Independent Contractors (§2(3))
– Congress found distinction between “employees” whodo a job for a wage, and “independent contractors.”a)Tests for “Independent Contractor” Status :1)
Right to control test
(Common law test, Respondeat Superior) – doesemployee have a right to control the manner and means by which the job isdone? Supreme court concluded that this test is vague, applied differently indifferent juridictions, thus irrelevant for the purposes of the Wagner Act, which
2 –Levy 2012
 
is a federal legislation, administered by a national agency, to solve nationalproblem on national scale.2)
Economic Realities Test
(definitive test used today because of problemswith “right to control” test) – looks at underlying economic realities of relationship – treat them as independent contractors only if they are trulyindependent entrepreneurs.b)
United Insurance Co.
– insurance agents, despite “control” over strategies, were tobe considered “employees” under
§2(3)
because: 1)they didn’t operate their ownbusinesses; 2)were trained by company; 3)did business in the company’s name;4)receive company benefits; 5)permanent working arrangement with company.c)
Roadway Package System, Inc.
– drivers for company’s small package pick-up anddelivery system are employees as defined by
§2(3)
– significant factor was that manyof Roadway’s policies hinder the driver’s from using their trucks during off hours andthus from independently making money – had major specifications for their trucksand therefore after a driver quits, he has pretty much only the option of reselling it toanother Roadway driver.1)Contrast with
Dial-A-Mattress Operating Corp
. where the court found thatdrivers were independent contractors because there was significantentrepreneurial opportunity for gain or loss and a separate identity from Dial.c.
Supervisory, Managerial, and Confidential Personnel(§2(11))
 
only “supervisors”explicitly excluded from “employee” by NLRA (
§2(3)
– covers pretty much only “touchemployees”), “managerial” and “confidential” personnel excluded by common law –
 
separation between providers of capital and providers of labor (each should have their ownrepresentatives) – important to exclude them because if the Act does not covers them, theycannot vote in elections and any involvement by them in a union would constitute employerinterference under
§8(a)(2)
.a)Reasons for Supervisor Exclusion : 1)conflicts of interest; 2)failure to superviseappropriately – if leaders are in a union, they will not supervise properly (will work tominimize effort); 3)coercion of rank-and-filers – problematic to be in a union withpeople who have power over you (one solution may be to create separate unions);4)refusal to cross picket lines – one role of supervisors is to cross picket lines becausethey have a duty to the organization.b)Test for supervisors (
§2(11)
): 1)individual exercising authority in the interest of theemployer; 2)you exercise one of the listed duties (ex. hiring, transferring,suspending, etc.); 3)you exercise independent judgment when making yourdecisions.1)Scope of “supervisor” – is it unfair that protection under the NLRA only covers“touch employees” who actually work on the floor, and excludes even middlemanagers involved in knowledge-based, pro-active roles even if they havesimilar concerns about job security and fair treatment? Furthermore, many“touch” workers are now given responsibilities in such matters as quality andinventory control and production process development – should they too nowbe excluded?2)Potential Problems – “supervisor” status might exist, but might not fit incertain situations: 1)conferring supervisory status would create an“unrealistic” supervisory ration – does it make sense to say there’s 20supervisors for 40 employees?; 2)regular employee becomes highestauthority during a certain shift; 3)employees do not get any extra pay for their“supervisory” duties or were making less than even those they weresupervising.c)
Managerial Employees
– no statute excludes them explicitly – Supreme Courtexcludes them under decision in Bell Aerospace Co. – 25 buyers from the purchasingand procurement department at the company’s plant are managerial employeesaccording to reviewing court because even if you’re a non-supervisor,
you
must 
beexcluded if you make or implement
established policy for the employer 
– onremand, the Board upheld their prior decision that these buyers were employees,adding to the above definition that managers must also “have discretion in theperformance of their jobs
independent of their employer’s established policy 
” (3
rd
 prong on
§2(11)
) but that employees didn’t in this case (only implemented
established
policy).1)Congress would not have intended to invite the conflict of interest that wouldflow were such managerial employees to organize and bargain with the
3 –Levy 2012

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