Digital Commons Network^™

First National Maintenance V. Nlrb: Limiting The Mandatory Duty To Bargain, Augusta Scribner

Antioch Law Journal

In First National Maintenance Corp. v. NLRB I the United States Supreme Court further limited the subjects that require mandatory collective bargaining. 2 The Court overruled a long-standing National Labor Relations Board policy that required an employer to bargain about the decision to partially close its business. 3 The Court formulated a new balancing test that weighs the employer's need to maintain the freedom to manage its business against the benefit to labor-management relations and the collective bargaining process.

A Guide For Occupational Safety And Health For Legal Services And Community Law Offices, Carol Oppenheimer

Antioch Law Journal

The Occupational Safety and Health Act (OSH Act), passed in 1970, is intended to provide "every working man and woman in the Nation safe and healthful working conditions."' The Occupational Safety and Health Administration (OSHA) enforces the Act; 2 the National Institute for Occupational Safety and Health (NIOSH) does research on workplace hazards and recommends practices and standards for industry. 3 By contrast with the state workers compensation schemes, the underlying purpose of the OSH Act is to prevent occupationally related injuries, disease and death, rather than to compensate the worker once the harm has occurred. The OSH Act, if …

Judicial Responses To The Eeoc's Failure To Attempt Conciliation, Michigan Law Review

Michigan Law Review

This Note suggests that a court faced with inadequate conciliation efforts by the EEOC should dismiss the action without prejudice. Part I argues that dismissal better serves the remedial purpose of the statute than summary judgment. Part II then demonstrates that dismissal satisfies the policy concerns of courts that dispose of inadequately conciliated suits. Although dismissal may not promote judicial efficiency as well as summary judgment, courts and the Commission can handle the dismissal to minimize duplication. Part III advances dismissal for failure to state a claim upon which relief can be granted as the appropriate procedural vehicle for disposing …

Legal Issues In Affirmative Action - Problems Affecting Women, Assembly Select Committee On Fair Employment Practices, Assembly Committee On Judiciary

California Assembly

Today, the Assembly Select Committee on Fair Employment Practices, and the Assembly Judiciary Committee are holding a joint interim hearing on legal issues on affirmative action problems affecting women. Our purpose today, is to examine some of the problems confronted by women in employment. We will examine the areas of recruitment, hiring, mobility, the grievance procedures, and the emerging issue of collective bargaining. The committees are also very interested in examining the issue of ethnic women, and the progress they have made in equalizing their representation in the labor force.

Rule 10b-5-The Equivalent Scope Of Liability Under Respondeat Superior And Section 20(A)-Imposing A Benefit Requirement On Apparent Authority, Carol M. Lynch

Vanderbilt Law Review

This Note demonstrates that the scope of employer liability for employees' rule 10b-5 violations is no broader under a proper application of respondeat superior than under section 20(a). This Note does not address the question whether respondeat superior applies under rule 10b-5, but rather how courts should apply it.

Part II examines the majority, minority, and Third Circuit decisions on employer liability. Part III discusses the traditional analysis under both respondeat superior and section 20(a) and compares the scope of liability under each one. Part III concludes that except for an employer's liability for acts that are within an employee's …

Leveling The Road From Borg-Warner To First National Maintenance: The Scope Of Mandatory Bargaining, Michael C. Harper

Faculty Scholarship

The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, ¹⁹ illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.²⁰ The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to …

United States Postal Service Board Of Governors V. Aikens, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Perry Education Association V. Perry Local Educators' Association, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Newport News Shipbuilding & Dry Dock Co. V. Equal Employment Opportunity Commission (Eeoc), Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The Origins Of The Occupational Safety And Health Act Of 1970, Patrick G. Donnelly

Sociology, Anthropology, and Social Work Faculty Publications

This paper analyzes the emergence of the Occupational Safety and Health Act of 1970 and finds previous explanations of its origin inadequate. I trace the roots of this law to the protests of rank-and-file workers across the United States at a time when the support of these workers was particularly important to the two main political parties. The protest was directed not only at those employers who operated unsafe and unhealthy workplaces, but also at union officials who paid little or no attention to safety and health issues in negotiating new contracts.

Multiple Legal Representation Of Erisa Plans And Employers Following Allegations Of Fraud And Malfeasance, Elwyn C. Lee

Indiana Law Journal

No abstract provided.

Employer Participation In The Decertification Process: How Big A Helping Hand?, Ellen Rust Peirce

Buffalo Law Review

No abstract provided.

Baseball's Third Strike: The Triumph Of Collective Bargaining In Professional Baseball, Robert A. Mccormick

Vanderbilt Law Review

Since the inception of professional baseball, team owners have imposed limits on the freedom of players to negotiate contract terms. In this article Professor McCormick traces the history of attempts by professional baseball players to obtain contractual freedoms through the use of the antitrust and labor relations laws, attempts that culminated with the players' strike of 1981. Although players in other team sports successfully have utilized antitrust laws to increase player bargaining power, Professor McCormick argues that labor law has provided baseball players the only effective means to gain increased contractual freedoms. Professor McCormick concludes that player-owner disputes over the …

Exercise Of Executive Discretion: A Study Of A Regional Office Of The Department Of Labor, Michael C. Harper

Faculty Scholarship

Writing for a recent symposium on empirical research in administrative law, Professor Paul Verkuil noted that such research "casts light on one of the dark corners of the law. The vast majority of administrative decisions are of the informal variety, meaning they take place outside the reach of generic administrative procedure acts and frequently outside the courts themselves."' We are only beginning to appreciate how vast is this dark corner and how varied the possible modes of illumination.

This essay casts some additional light into the corner by reporting on a study of the exercise of executive discretion by a …

Forty-Eighth Annual Report Of The National Mediation Board, National Mediation Board

Federal Documents

No abstract provided.

The Conflict Surrounding The Producer Distributor Relationship Requirement Of The Publicity Proviso

Washington and Lee Law Review

No abstract provided.

Labor Relations Law In The United States From A Comparative Perspective*, Benjamin Aaron

Washington and Lee Law Review

No abstract provided.

Recent Decisions Under The Federal Mine Safety And Health Act Of 1977, Wray Voegelin

West Virginia Law Review

No abstract provided.

Employment Discrimination Under The Federal Mine Safety And Health Act, James A. Broaderick, Daniel Minahan

West Virginia Law Review

No abstract provided.

Dalhousie Faculty Association V Board Of Governors Of Dalhousie College And University, Innis Christie

Innis Christie Collection

Association grievance alleging that Ms. Bednarski and Dr. Ross were members of the Bargaining Unit for the academic year 1981-82, that the University breached the Collective Agreement between the parties signed February 5, 1981 and effective from that date to June 30, 1982 and thereafter in accordance with Article 33.01, by failing to deduct regular monthly dues from their salaries in accordance with Article 7.02 and failing to provide information in accordance with Articles 7.05, 7.08(a) and 7.08(b). The Association seeks a declaration that Ms. Bednarski and Dr. Ross were members of the Bargaining Unit during the academic year 1981-82 …

Vested Seniority Rights: A Conceptual Approach, Francis A. Citera

University of Miami Law Review

Under contemporary jurisprudence, vested seniority rights are considered creatures of contract. As such, they generally are subject to "divestiture" with the termination of the collective-bargaining agreement. Relying upon Zdanok v. Glidden Co. and Locke's labor theory of property, the author argues that seniority rights are property rights derived from the worker's employment independent of the contract.

In Wake Of Mandolidis: A Case Study Of Recent Trials Brought Under The Mandolidis Theory--Courts Are Grappling With Procedural Uncertainties And Juries Are Awarding Exorbitant Damages For Plaintiffs, David A. Mohler

West Virginia Law Review

No abstract provided.

The Limits Upon A Labor Union's Duty To Control Wildcat Strikes, James Bryan Zimarowski

West Virginia Law Review

Industrial relations and collective bargaining have come a long way since the violent industrial and economic warfare of the pre-1940's period. But as labor unions and business organizations became more facially "professional" in their relationship, some union rank and file members have viewed this professionalism as being both restrictive and conservative and have chosen to resolve certain industrial grievances through the use of wildcat work stoppages. This discordant practice has created strains in the collective bargaining relationship of the negotiating union and the employer, in legal actions to enforce the collective bargaining argeement, in the relationship between the union and …

Sexual Harassment And The Employer-Employee Relationship, Alayne B. Adams

West Virginia Law Review

No abstract provided.

[Introductory Remarks Of Comnissioner J. Clay Smith, Jr. At Swearing-In Ceremony Of Clarence Thomas As Chairman Of The Equal Employment Opportunity Commission], J. Clay Smith Jr.

Selected Speeches

No abstract provided.

Back Pay In Employment Discrimination Cases, James L. Hughes, David R. Jennings, Charles D. Maguire, Jr., Betsy G. Shain, Jay L. Tobin, Jay F. Whittle, Jr.

Vanderbilt Law Review

This Special Project examines the back pay decisions and analyzes the problems that have confronted the courts dealing with this remedy for employment discrimination in the context of Title VII and section 1981. Because of the enormity of the issues that have arisen in Stage I of the proceedings, however, and the extensive coverage given those problems by the courts and commentators, the Special Project will deal only with the recovery stage, or Stage II, of the litigation. Consequently, the reader should assume that liability for employment discrimination has already been established in each of the cases discussed below. Before …

Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review

Michigan Law Review

This Note argues that in the absence of any clear indication that the legislature intended to bar such suits, courts should uphold private actions whenever plaintiffs can establish the elements of a common-law tort. Part I briefly outlines the various theories supporting the view that public sector collective bargaining statutes preempt private actions. The analysis is necessarily general, but Part I concludes that in most cases neither the language and structure of the applicable statute nor an analogy to federal labor law will resolve the preemption question. Part II, therefore, looks to the policies that animate no-strike provisions and argues …

Ofccp And Affirmative Action, J. Clay Smith Jr.

Selected Speeches

No abstract provided.

Labor Relations—Flsa Action Not Barred By Prior Arbitration, Patrick R. James

University of Arkansas at Little Rock Law Review

No abstract provided.

Alternatives To Seniority-Based Layoffs: Reconciling Teamsters, Weber, And The Goal Of Equal Employment Opportunity, Paul M. Hamburger

University of Michigan Journal of Law Reform

This Note advocates the use of legal incentives for adopting nonpreferential alternatives to seniority-based layoffs. Part I analyzes the impact of bona fide seniority systems on recently hired minorities and women. Part II discusses existing legal incentives for unions and employers to seek alternatives to strict seniority layoffs and for courts to enjoin such layoffs, thereby forcing the parties to negotiate over alternatives. Finally, part III examines two kinds of potential alternatives: racially preferential alternatives, which are prohibited under Title VII, and nonpreferential options, which are permissible and should be used increasingly.