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Employment Law and

Labor Regulations
Chapter 16
Chapter Issues
Employment at Will
Substance Abuse
Worker Safety and Health
Workers Compensation
General Regulation of Labor
Markets
Major Labor Relations Acts
The National Labor Relations
Board
Unionization
Collective Bargaining



Employment-At-Will
Free Market Concept
Employers: Can hire and fire who they want
Employees: Work-at-will/quit when they want
Contractual and statutory limits to at-will
Public Policy Exceptions:
Refusing to commit an illegal act
Important public duty (jury duty)
Public right (filing for workers compensation)
Whistle Blowing
Contracts in violation of public policy, i.e.
exculpatory agreements
If firm dismisses employee in violation of
public policy, employee may sue for wrongful
discharge or retaliatory discharge (torts)




Brown v. Soh (within text)
Brown worked for Skip Barber Racing School; offers advanced
driving classes for the public in restricted area
Everyone, including instructors, signed liability waiver to hold
school harmless for any injuries incurred.
Covered all liability for employees injured on job
Client, Soh, driving with an instructor
Ran into Brown in restricted area, waving flag to signal drivers
Brown sued school; trial court granted summary judgment to
school since he had signed a liability waiver. Brown appealed.
HELD: Reversed and remanded.
Exculpatory agreements are rejected in the employment context
due to public policy considerations if too strong.
Employer had advantage in bargaining strength against employee
take it (the adhesion contract of exculpation) or leave it
situation for employment and waiver too broad.
If employers allowed to have broad waivers of liability, incentive
by employers to manage risk at the workplace is reduced
Ballalatak v. All Iowa
Agriculture Assn.
Ballalatak worked as supervisor for Hawkeye Downs.
Two employees were injured on job; called Ballalatak and reported injury.
Ballalatak drove to scene, helped get men to hospital & filled out report.
Later, general manager, Nowers, told the 3 men to meet with him before
returning to work.
Told the men their medical expenses would be taken care of.
Injured men told Ballalatak they were concerned they would not receive
workers compensation benefits.
Ballalatak told Nowers the workers had rights to benefits.
Nowers fired him.
Ballalatak sued, saying he was fired for arguing about workers
compensation duties to the injured workers.
Nowers claimed he fired him for insubordination.
District court dismissed suit.
Ballalatak appealed. (Continued)
Ballalatak v. All Iowa
Agriculture Assn., cont.
HELD: Affirmed. Usually employer may fire an at-will employee any time.
Exceptions are if discharge is contrary to public policy.
Ballalatak claims he was fired for raising concerns about workers
compensation claims. Public policy interests should extend to
supervisors who advocate benefits/rights of other employees.
Court protects employees exercising their own statutory rights.
Ballalatak was not fired to secure his own right.
Nor was he fired for refusing to violate workers compensation law.
Fired for his attempt to ensure his employer did not violate statutory right
of other employees.
Iowa law does not protect internal advocates for other employees.
Law also does not protect employee who asserts other employees may
contact an attorney re: workers compensation rights.
Noncompetition Agreements
Employees sign not to leave employment
and compete directly with employer.
Different states differ
Some generally allow them
Some states allow courts to imply
reasonable terms to save the covenant
in part
Other states will eliminate most such
agreements entirely
Others common law governs,
allowing if restraints are reasonable in
time and extent of coverage.
Employers must pay attention to
individual state law in this area.

Good Reasons Not to Come to Work
(Excuses Heard By Managers)
I just got a new tattoo and need a few days to
recover.
Im taking a few days off to start my own
business.
I need time to find myself.
Im going to be in a kick-boxing tournament.
I need a leave of absence to try another job. But
if it doesnt work out Id like to come back.
Im going to jail
My cat has hairballs.

Zambelli Fireworks
Manufacturing Co. v. Wood
Zambelli is large fireworks company working in most of U.S.
Wood was hired by Zambelli to as pyrotechnician and
choreographer. Execute fireworks displays with music
Wood learned trade secrets, client lists, pricings, costs & contract
terms.
Zambelli paid for Wood to become a certified trainer for the
Pyrotechnic Guild International
Noncompete agreement signed in 2005 said that if Wood left
Zambelli, he
would not work for a competitor in the U.S. for 2 years
would not solicit former clients
would not disclose or use trade secrets
AND if there was litigation and Zambelli prevailed, Wood would
pay legal fees & costs
Zambelli Fireworks
Manufacturing v. Wood, cont.
Wood later hired by Pyrotecnico, a major competitor.
Signed an agreement he would not take or use an Zambelli
information or trade secrets
Pyrotecnico agree to pay his salary for two years if needed because
of covenant with Zambelli & also would cover legal expenses.
Zambelli sued to enforce covenant not to compete.
District Court held agreement was enforceable under Pennsylvania
law; enjoined most technical work by Wood.
Wood and Pyrotecnico appealed.
HELD: District Court decision affirmed.
Zambelli had a legitimate business interest in its goodwill & Woods
specialized training & skills.
Agreements are upheld when restrictions are reasonable to protect
employers interests.
Anti-Raiding Covenants
Employees required to sign an agreement they will
not recruit fellow employees for another company
when they leave their current place of employment
Varies from state to state
Some courts hold clauses in violation of public policy
Is an illegal restraint on competition
Other courts hold the as enforceable
New York court held that once employee leaves place of
employment, continued restraints are not favored
Exception: to protect things, i.e. trade secrets
California & Texas have held that covenants limited in time &
coverage are enforceable
In Missouri, legislature specifically held such covenants legal
Substance Abuse
Alcohol the worst
13.6% of all adults have
experienced alcohol addiction
or abuse in their lives
8% of workers are serious
alcohol abusers
Another 3-8% of adults abuse
or addicted to illegal or
improperly dispensed drugs
One in eight of workers have
substance abuse problem
Consequences of
Substance Abuse
Reduced productivity & higher insurance expenses cost
employers over $250 billion per year
Safety Issues ~ workers under influence of alcohol or other
drugs are 3.6 times more likely to be injured or to injure another
Federal Railroad Administration found over 10 years that 28 RR
accidents killed 37 people & caused millions of dollars damages
due to alcohol or drug-impaired workers
National Transportation Safety Board found alcohol or other
drugs factor into 1/3 of accidents involving truck drivers killed
on the highway
Insurance costs are about double for families with an alcoholic
Issue Spotter: What Attitude Toward Drinking and the Office?
Re: office parties and other festivities

Drug-Free Workplace Act
Requires all companies of more than
$25,000 worth of business with the
federal government to certify they
have drug-free workplace:
Publish policy statement
Establish drug awareness program
Make known availability of program
Require employees to notify
employers of any drug related
convictions
State Standards
(States are Different)

Specific restrictions on
substance testing.
Minnesota: Only employees
in safety-sensitive positions
may be drug tested.
Maine: Employee must be
notified if fails drug test and
given another test before
employer is notified.
Employers must comply with
particular states rules.

See Issue Spotter: How Does an
Employer Handle an Employee Who
Flunks a Drug Test?

See Test Yourself, p. 465
General Employee
Substance Abuse Policies
Pre-employment screening usually OK (many states
say testing after job offer is extended)
Safety sensitive jobs
Notification
Voluntary nature employee knew of policy
After accidents OK
Reasonable suspicion document in employee file
Use Certified Labs for drug testing results
Give all employees copy of company policy and keep
a signed receipt from employee
Make policy clear
Check with attorney
Worker Health & Safety
Occupational Safety and Health Act of 1970 (OSHAct) created
Occupational Safety and Health Administration (OSHA), the
Occupational Safety and Health Review Commission (OSHRC) and
the Natl. Inst. for Occupation Safety and Health Council (NIOSH)
OSHRC decides administrative cases brought by OSHA
NIOSH does studies to help set safety standards
Safety Inspections
Over 7 Million workplaces: only small fraction inspected annually
4th Amendment prohibits searches without warrant (but warrants
are usually easy to get)
Marshall v. Barlows Inc. (OSHA inspectors routinely obtain
administrative warrants that dont require show of probable cause;
the warrant requirement is not difficult.)


Penalties imposed under
Section 17 of OSHA
A willful or repeated violation up to $70,000 per
violation
A serious violation up to $7,000 per violation
A non-serious violation up to $7,000 per violation
Failure to correct a violation (or knowingly make
false statement in OSHA records ) up to $7,000
per day
A willful violation resulting in death of an employee
may result in criminal penalties imposed
R. Williams Construction Co. v.
Occupational Safety & Health Review
Commission
Williams dug a 12 deep trench at construction site.
Employees regularly cleaned up submersible pump at
bottom of trench.
Two workers entered trench with no supports. Trench
collapsed killed one and seriously injured other worker.
OSHA inspected: Cited company for 1) failing to instruct
employees about safety and 2) failing to properly build
and maintain trench.
3 serious violations ($7,000 each); 1 willful violation
($70,000) = $91,000 total in fines.
ALJ held hearing; heard employees testify of minimal
safety training and little control over the trench.
Managers claimed there was adequate safety.
(Continued)
R. Williams Construction Co. v.
Occupational Safety & Health Review
Commission, cont.
ALJ downgraded willful violation to serious & reduced
total fines to $22,000 company had a good history.
Williams appealed to the Commission, which was denied.
Williams appealed to Appeals Court.
HELD: Affirmed. Williams failed to instruct employees in
proper safety measures.
Williams made no effort to ensure employees not to enter
trench on day it collapsed.
Employees should not be expected by management to
take greater care to avoid placing themselves in danger.
If this such risk is placed on employees, it misconstrues
the purpose of the OSHA safety standards.

Miracle Healing
Boston fire inspector Albert Arroyo,
age 46, was declared totally
permanently disabled from an
unwitnessed on-the-job injury
6 weeks later, he overcame his
disability
He finished in 8
th
place in the Pro
Natural American bodybuilding
championship
Questioned about this, his lawyer
explained: Arroyo was depressed
over his disability & started working
out to get his mind off of his forced
retirement.
OSHAs Toxic Substance Standards
Covers asbestos, vinyl chloride, coke-oven emissions, and other
industrial carcinogens
Must adequately insure to the extent feasible . . . that no EE will
suffer material impairment of health or functional capacity
OSHA must have scientific evidence that there is significant health
risk before it can regulate
OSHA standards involve big money so politics get involved
Companies support reelection of politician so he might control
the regulators (Nixon Administration memo describing fundraising
potential of OSHA)
On other sidepoliticians woo union support
Creates ossification of rulemaking at OSHA, with few health
standards adopted regardless which party controls the White
House
See Exhibit 16.1 Ten Most Common Workplace Safety Violations
Hazard Communication
Standard (HazCom)
Worker-Right-To-Know Laws re: employee
exposure to hazardous chemicals
Chemical producers and users conduct a hazard
determination of chemicals they use/produce
Written Communication Standard
Labels for chemical containers
Material Safety Data Sheets (MSDS)
Employee Training Programs
Concerning requirements under the law
Training to detect hazards and protect
themselves in emergency actions

Workers Compensation
Provide something for both workers & employers
States enact workers comp. laws to provide employer paid
insurance for work-related accidents
Payment by schedule; not tort suit that might provide more $
Objectives:
1) provide benefits to work-accident victims regardless of fault
2) provide a certain remedy and relieve hassles of tort litigation
3) protect public and private charities from undue burden
4) reduce fees to lawyers and expert witnesses
5) encourage ER safety w/accident rating based premium
6) provide open communication of accident for future safety
Benefits & Incentives
Obligations to employees, NOT independent contractors
Companies pay premiums based on injury claims records vary
widely among states
Different states have different systems, rules, payout histories
Most states dont restrict amount or length of benefits
Worker may receive 2/3 of gross wages as disability income
As low as $400 in some states to over $1,000 in others
Benefit Categories:
Death
Total disability,
Permanent partial disability
Temporary partial disability
Medical expenses
Question: Is the system flawed?
Many run in the red


Juarez v. CC Services, Inc.
Juarez worked for Westarz Homes at construction sites for 5 years.
Bever was a superintendent at the sites supervised sub-
contractors and moved trash.
Bevers presented himself as an independent contractor under the
name of T. Bever Construction.
Westarz provided Bever a truck to move trash. Truck insured by
Westarzs insurance company, Country Insurance.
Bever was backing truck up at site, and hit Juarez.
Crushed his left arm and shoulder, leaving him unable to work.
Juarez filed for workers compensation.
Westarz paid no workers compensation premiums, claiming it only
used independent contractors and had no employees.
Site was investigated; determined Juarez was an employee.
Juaraz awarded workers compensation benefits from a Special
Fund for such circumstances.
Juarez also sued Bever Construction for negligence for Bevers
hitting Juarez with the truck. (Continued)
J uarez v. CC Services, Inc., cont.
Country defended, saying Bever and Juarez were both employees of
Westarz, and workers compensation was the only remedy.
Jury held Bever was an independent contractor and awarded Juarez
$600,000 for negligence by Bever (which was covered by the insurance
policy on the truck).
Country moved for summary judgment that it should not have to pay the
judgment.
HELD: Motion granted. Country does not have to pay the $600,000.
There is a master-servant relationship between Westarz and Bever.
Westarz had ultimate control over Bevers activities; Bever furthered
interest of Westarz; Westarz provided materials for Bevers job; Westarz
dictated where Bever would work; Bever and Westarz had 4-year
exclusive relationship; Bever was paid a set amount each week; Bever
provided vital service to Westarz Business.
Juarez and Bever were co-employees.
Juarez already sought workers compensation benefits.
Therefore, Arizona law precluded Juarez from bringing suit against Bever for
additional compensation, and Country does not have to pay claim.
Issue Spotter: Reducing
Risks and Improving Looks
To save workers from being injured;
reduce likelihood of OSHA violation; and
reduce # of workers compensation
claims:
Impose dress code?
Code covers safety and looks?
Improves professionalism of workplace?
Can employers do what they want?
Does this change nature of work contract with
workers?
Donuts Are Not Healthy
Howard was snacking on donuts & coffee while driving a
truck to Oklahoma and choked on a donut bite causing
him to sneeze, which caused lower back pain.
Had surgery to remove a herniated disk.
Applied for disability benefits, claimed that eating donuts
& drinking coffee are part of normal truck-driving.
Trucking company said that sneezing is a personal
internal weakness not related to his employment.
Missouri Workers Compensation ALJ held: $18,542 in
permanent partial disability benefits for Howard.
Upheld by the Missouri Labor & Industrial Relations
Commission, but with serious doubts about a donut
disability.
General Regulation of
Labor Markets
Family & Medical Leave
Hiring Legally
Federal Minimum Wage
Requirement
Occupational Licensure &
Regulation
Warning Employees of Plant
Closings
Employee Retirement Plans

Family & Medical Leave Act: FMLA
Private employers with 50+ employees
All government jobs
12 weeks unpaid leave
After childbirth or adoption
To care for seriously ill child, spouse or parent
In case of employees own serious illness
Pertains to serious health condition
More than 3 consecutive days of incapacity & treatment
for condition involving 2 or more treatments, including
exams; or one treatment with continuing prescription
medicine or special equipment
Includes pregnancy
Absence from multiple treatments & recovery for
surgery or condition that results in more than 3-day
period of incapacity left untreated

Family & Medical Leave Act:
FMLA
Exempts key employees 10% highest paid that
would cause economic harm to ER
Special rules apply for military caregiver
situations
Many states have laws applying to employers not
covered by the federal statute
May be required to certify visits to doctors OR
obtain fitness for duty evaluation regarding
returning to a specific job
Callison v. City of Philadelphia
Callison worked for city for two years. Diagnosed with
anxiety caused by stress at home and on the job.
Used a lot of sick leave; was place on Sick Abuse List.
Required to get medical certification for all sick days;
subject to penalties for violations of policy.
Employee on sick leave must call hotline if leaves home.
Sick-leave investigator calls homes to see if employees
are there.
Callison took 3 months FMLA leave.
City checked on him. He often was not home.
Suspended for failure to follow policy.
Callison sued, saying he was not subject to discipline
while on FMLA leave. Said discipline by the City was
retaliatory.
Trial court held for City. Callison appealed.
Callison v. City of
Philadelphia
HELD: Affirmed.
City did not engage in prohibited acts by their
policies.
There is no right in the FMLA that employee is
left alone when under the Act.
Employers may check to ensure employees on
leave do not abuse their leave, especially if they
are on the employers Sick Abuse List.
Internal call-in policy does not diminish
protections of the FMLA.
Hiring Legally
For every person hired, employer must have an I-9 form on file.
Documents must be presented for proof of employment eligibility
even if U.S. citizen
Must accept documents that appear valid
Balance verification of employee and yet avoid discrimination
Deals with the I-9 system and documents specified on the I-9 form
Also use E-Verify program of U.S. Citizenship and Immigration
Services electronic verification system (USCIS)
See USCIS website for details www.uscis.gov
Program has had numerous difficulties with accuracy
Many federal contracts require E-Verify use
Some states (i.e. Arizona & Mississippi) also require E-Verify
Cant hire illegal immigrants
Fines & criminal Penalties
$375 to 3,200 for first offence per alien
$4,300 16,000 for 3
rd
and subsequent offences
Also penalties for failing to properly complete I-9 forms

Federal Minimum Wage Requirements
Initiated in 1938 as part of Fair Labor
Standards Act
Averages about 50% of the average
manufacturing wage
Minimum wage of $7.25/hour since 2009
Some states like California have higher
minimum wages
Some state laws cover employers exempt
from federal law
Employers must pay FICA tax of 7.65%
Employers pay workers compensation
insurance, and unemployment insurance
taxes
Based on number of former employees
claiming benefits
Occupational Licensure
and Regulation
Licensing requirements at federal and
(mostly) state level
Usually a state commission determines
entry criteria
I.e. formal education
Sometimes apprenticeship
Testing
Ability through certificate to practice as
lawyer, doctor, nurse, dentist,
veterinarian, barber, architect,
psychologist, dog groomer, beekeeper,
massage parlor operator, etc. etc. etc.
State Law Regulations
Few controls at federal level most restrictions by states
Employees in contact with children/other vulnerable people often
undergo criminal background check
Laws range from affecting how businesses provide reference to
when employees paid their final pay check
Many states require time off to employees to vote and to attend
parent-teacher conferences
Importance of state laws
1. Many smaller firms unaware of details of laws unwittingly violate.
Larger companies can afford legal department to monitor the law.
2. Many state employment laws are enforced by state labor
departments have administrative sanctions.
3. Laws vary considerably from state-to-state. If a company expands,
must look at laws to area in which it is expanding.

Warning Employees of
Plant Closings
Worker Adjustment and Retraining Notification Act (WARN)
Employers with 100+ full-time employees must give advance
notice of plant closing or mass layoff if 50+ employees affected.
Notice given directly to each affected EE 60 days in advance of
closing or layoff.
Notices also sent to collective bargaining agents, local elected
officials, and state labor departmental officials.
Notices must be for permanent termination and reduction in
work time of 50% or more for 6 months or longer.
EEs who do not receive proper notice may sue for up to 60 days
back pay, benefits, interest & attorneys fees.
Local government may sue company for up to $500/day for each
day there was no notice.
Some states have plant closing requirements beyond federal
requirements.

Retirement Plans
Employee Retirement Income Security
Act (ERISA)
Guarantees expectations of retirement
plan participants protects benefits
after reasonable length of employment
Vesting requirements participants
receive benefits after certain length of
employment
Mandatory vesting 3 different options
established by ERISA
Protects workers in case of company
closing will still get their benefits
Statutes are complex involving lengthy
regulator filings for pension & benefit
plans need for expert guidance
Major Labor Relations Acts
1932 Norris-La Guardia Act:
Federal Courts cant issue injunctions in nonviolent
labor disputes insures right to strike, picket, quit
work, etc.
Prohibits yellow-dog contracts (requiring employees
to agree not to join a union as condition of job)
1935 Wagner Act (National Labor Relations Act;
NLRA): Right of workers to unionize; created National
Labor Relations Board (NLRB).
Monitors unfair labor practices
Boards decisions can vary with political makeup
outcome of proceedings varies over time more than
most agencies

Major Labor Relations Statutes
1947 Taft-Hartley Act ~ Labor-Management Relations Act:
(Amended NLRA) Employers have right to go to NLRB
protects employers. Unions are prohibited from:
1) coercing employees to support union
2) refusing to bargain in good faith with employers
3) carrying out certain strikes secondary boycotts, charging
excessive union fees, or featherbedding
4) going on strike during 30-day cooling off period or during 60-
day period ordered by the President.
1959 Landrum Griffin Act ~ Labor-Management Reporting
& Disclosure Act: (Amended NLRA) Increased reporting,
regulation of internal union affairs; protects union
members from improper actions by leaders through:
monitoring leadership
union member bill of rights

Do What We Say, Not What We Do
Workers launched a protest, accusing
employer of
improper layoffs
unlawful bans on union activities
reclassifying workers in order to disempower
the union
The workers were employed at national
Service Employees International Union
headquarters in Washington, D.C.
Another casefederal arbitrator held:
For years, employer had willfully
violated the Fair Labor Standards Act
not paying overtime to its workers
The employer was the U.S. Equal
Employment Opportunity Commission
National Labor Relations
Board: NLRB
Administrative agency
created to monitor
unfair labor practices
and assure that union
representation elections
are fair
Jurisdiction: labor
dispute that affects
interstate commerce
About 30,000 cases a
year, most are unfair
labor charges
Unfair labor practices
actions that impede the
goals of the NLRA
Hearing is before
administrative law judge
(ALJ)
Is an employee of the
NLRB
Issues an order
Order is final unless one
party files an exception

National Labor Relations Board:
NLRB
If exception filed,
appeal is heard by
Washington panel of 3
NLRB members
Sometimes the
entire board may
hear an appeal
If one party refuses to
accept boards
decision, case will be
referred to U.S. Court
of Appeals
For enforcement or
review of order
In rare instances case
may go the U.S.
Supreme Court for
final review
Presidents are either
pro-labor or pro-
management
Presidential
appointment to the
Board usually
politically sensitive

See also http://www.nlrb.gov

Unfair Labor Practices
Examples of employer
conduct violating NLRA
Threatening employees with
loss of jobs or benefits if they
join or support a union
Threatening to close a plant if
employees vote for unionization
Questioning employees about
union activities
Promising benefits to
employees if the do NOT
support a union
Giving employees worse
assignments for participating in
protected activities
Examples of union
conduct violating NLRA
Threatening employees with
loss of job if they dont
support the union
Refusing to help employees
with grievances who have
criticized union leaders
Engaging in picket line
misconduct, such as
threatening non strikers
Striking over issues
unrelated to employment
terms and conditions
NLRB Remedies
Posting a notice in the workplace
Issuing a cease and desist order
Providing back pay for lost
wages
Reinstating dismissed workers
Issuing an order to bargain with
the union; but cannot force
bargain
Labor Law in China
Peoples Republic of China established 3 new labor laws in 2007
The Employment Contracts Law (ECL)
The Employment Promotion Law (EPL)
The Labor Dispute Mediation and Arbitration Law (LDMAL)
ECL favors long-term employment relationships over short-term ones
Provides job security and severance pay
Attempts to have open-ended contracts with just cause for termination
Unions focused on assisting employees in negotiation, not collective bargaining
Addresses employment discrimination
Including ban on discrimination race, ethnicity, gender, religion & positive disease
status (i.e. employees with Hepatitis B)
LDMAL covers employment disputes
Makes decision of arbitration commission binding
Also increased time employees had to bring claims to a year
China has created laws similar to most western countries
Implementation requires similar legal system of those in western countries
Still work in progress
Unionization
Representation Elections
Employees sign authorization cards - need 30% to go
to NLRB for an election
Campaign by union and management
NLRB supervised election:
More than 50% vote yes?
If so, union certification is granted
Is exclusive bargaining agent for all employees. If not, union
fails.
Can also have 30% call for election to decertify union
NLRB and courts do not permit access to company
property by outside organizers.
See Exhibit 16.2

Agency Shops
When Union elected to be collective bargaining agent,
workers who join pay union dues
Agency Shops Employees represented by Union
members pay union dues
non-members pay agency fees (a little lower than
union dues)
Unions give $ to support political activities, including
candidates
22 states have right-to-work laws that prohibit agency
shops. Even if majority of workers voted for union,
workers can refuse to join or pay agency fees.

See Issue Spotter: Hiring Documentation & Discrimination
Collective Bargaining
Union is exclusive bargaining agent for employees
Collective bargaining covers whole process from initial contract
negotiations up through contract administration
Most collective bargaining agreements contain dispute resolution clauses
(grievance arbitration clauses)
Grievance arbitration
Disputes resolved by an internal grievance procedure
If results not satisfactory, disputes heard by outside labor arbitrator
(chosen under contract)
Each side can veto nominees result is that both sides see arbitrator as
fair
Right to grieve is an issue belonging to union, not workers
If employee unhappy; sue union for violating duty of fair representation
NLRA requires Good Faith Bargaining
Certain subjects mandatory, i.e., wages, hours, other terms and
conditions of employment, etc.
Can back up positions with strike by union or lockout by employer


Teamsters Local Union No. 523
v. NLRB
Interstate Brands makes/distributes products such as Hostess, Dolly
Madison & Wonder Bread
Different distribution system handled different products
Employer consolidated distribution sales distributors &
representatives would handle all product lines
Union now represented all workers, rather than only some
Rammage had been a Dolly Madison sales rep for 15 years before
consolidation (was not represented by union)
Now he was represented by union, but placed at bottom of seniority list
This gave preference to workers that union had represented before
Result: Rammage was endtailed to bottom of distribution system
Lost his regular route; was demoted
He complained to NLRB that union & employer were engaged in
unfair labor practice
Board held in Rammages favor. Union appealed. (Continued)

Teamsters Local Union No. 523
v. NLRB cont,
HELD: Affirmed.
When there is a unit merger, union and employer
are not permitted to dovetail the seniority of
employees while endtailing previously
unrepresented employees.
The fact that Rammage was endtailed PLUS
demoted (because he was not in the Union)
suggests Union caused Employer to discriminate
against him
Rammage wins.
Concerted Activities
To promote productive collective bargaining, Congress provided
certain activities to be protected.
Concerted Activities: Employer & union back up positions:
Union can strike; employer can lock out workers
Each side may do other activities to pressure the other side
Protected Activities: Right to engage in concerted activities for
mutual aid or protection
i.e. most union organizing efforts or refusal to work due to
unreasonable hazards or concerns re: working conditions
Unprotected Activities: Threats or acts of violence not protected
Employers may fire employees for insubordination, disobedience
or disloyalty unless activity is part of protected concerted activity
Primary boycott (strike against employer whose collective
bargaining agreement is in question) is legal
Secondary boycott (when union uses economic pressure to force
others to stop doing business with an employer not directly
involved in primary labor dispute) is illegal
Employee Blogs
Large employers control e-mail, with policies that company has right to
access e-mails on company computers and accounts.
Software scans e-mails for red flag words sex, guarantee, social security
number, etc. Helps to reduce lost work time, litigation due to harassment
claims, and loss of secure information.
Blogs now are a concern.
Some employees have been fired due to blogging.
Since blog comments posted anonymously, it is difficult and costly to track
down the negative blogger.
If firm can show defamation/trade secret infringement, then have right to
obtain discovery from court to uncover bloggers trail.
Courts do not wish to issue injunctions against blogs 1
st
Amendment
freedom of speech issues.
If blog is dedicated to complaining about company employment policies,
speech may be protected as a concerted activity under NLRA.
Company policies concerning blogs have included financial information of
the company (securities laws and fiduciary obligations), personnel matters
(employee privacy rights), and proprietary information (trade secrets).
Employees who violate these company policies based on legal rights of the
company can be fired.
Employer Economic
Responses
Employers may not retaliate against employees
for engaging in protected activities
Have right to use some economic pressure
May lock out employees until dispute with union
is settled
Legal if evidence of bad intent is not shown, such as
trying to break the union
Lockout is usually a defensive move and okay if in an
effort to promote settlement
Replacement of employees by non-union workers
can be okay
If collective bargaining agreement expires with no
agreement to a new contract and union calls for strike,
the ER can hire new workers and keep using existing
union workers who cross picket lines.