Law Commons^™

All Along The New Watchtower: Artificial Intelligence, Workplace Monitoring, Automation, And The National Labor Relations Act, Bradford J. Kelley

Marquette Law Review

Recent technological advances have dramatically expanded employers’ ability to electronically monitor and manage employees within the workplace. New technologies, including tools powered by artificial intelligence, are being used in the workplace for a wide range of purposes such as measuring employee work rates, preventing theft, and monitoring drivers with GPS tracking devices. These technologies offer potential solutions for many companies that may increase efficiencies and support operations, dramatically reduce human bias, prevent discrimination and harassment, and improve worker health and safety. Despite these potential benefits, the use of these technologies may raise concerns under the National Labor Relations Act (NLRA), …

Basketball On Strike: The All-Stars Of The Fight For Racial Equality, Sherif Robert Hesni Jr.

Vanderbilt Journal of Entertainment & Technology Law

National Basketball Association players have a long history of fighting against racial injustice. In August 2020, players participated in the most attention-grabbing endeavor to date: a league-wide strike against racial discrimination in the United States. Refusing to play games entails financial risk for players because of a no-strike clause in the collective bargaining agreement between the National Basketball Players Association and National Basketball Association team governors. Team governors can fine, bench, or fire players for refusing to play. However, it may be infeasible to discipline players for attempting to fight for racial equality—-players are extremely important to the well-being of …

Structural Labor Rights, Hiba Hafiz

Michigan Law Review

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …

Interagency Merger Review In Labor Markets, Hiba Hafiz

Chicago-Kent Law Review

No abstract provided.

A Different Set Of Rules? Nlrb Proposed Rule Making And Student Worker Unionization Rights, William A. Herbert, Joseph Van Der Naald

Journal of Collective Bargaining in the Academy

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees …

Alternative Remedies For Undocumented Workers Left Behind In A Post-Hoffman Plastic Era, Rachel S. Steber

Catholic University Law Review

Congress enacted the National Labor Relations Act (NLRA) in 1935 in order to level the bargaining power of employees and employers to prevent burdening the flow of commerce and depressing workers’ wages. The NLRA vests the administration of promulgating the goals of the NLRA in the National Labor Relations Board (Board), broadly stating that the Board should take such affirmative action as necessary to effectuate the policies of the Act.

In 1935, however, Congress could not predict the future demographic makeup of the American workforce, and in its definition of an “employee” as covered under the NLRA, the statute makes …

New Bargaining Order: How And Why Professional Wrestlers In The Wwe Should Unionize Under The National Labor Relations Act, Geoff Estes

Marquette Sports Law Review

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The Persistence Of Union Repression In An Era Of Recognition, Anne Marie Lofaso

Maine Law Review

Labor rights in countries with predominantly free market economies have generally passed through three stages--repression, tolerance, and recognition. In the United States, nineteenth-century state and federal governments repressed labor unions by making conduct, such as workers banding together for higher wages, subject to criminal penalty and civil liability. Courts paved the way for tolerating labor unions by overruling repressive precedents. By the early twentieth century, Congress followed suit by legislatively exempting unions from certain legal liabilities. In 1935, Congress enacted Section 7 of the National Labor Relations Act (NLRA), marking the first formal federal government recognition of employees' “right to …

The Future Of Class Action Waivers In Employment Agreements: Lewis Creates A Framework For The United States Supreme Court, Meghan Gonyea

Arbitration Law Review

No abstract provided.

What Makes Parties Joint Employers? An Analysis Of The National Labor Relations Board’S Redefining Of The “Joint Employer” Standard And Its Potential Effect On The Labor Industry, Deepti Orekondy

University of Miami Business Law Review

Multiple cases decided before the National Labor Relations Board (“NLRB”) have continuously narrowed the scope of the joint employer doctrine. Most recently, in the case of Browning-Ferris Indus., 362 N.L.R.B. No. 186 (August 27, 2015), the NLRB overturned decades of precedent and adopted a much more expansive standard that reverts the doctrine back to its original understanding in 1965. Prior to this decision, the joint employer doctrine established a joint employer relationship when both entities had meaningful control over the terms and conditions of employment and actually exercised that authority. After Browning-Ferris, the new standard now only requires “indirect” …

The Joint-Employer Standard After Browning-Ferris Ii & The 21st Century American Dream, Jay Forester

American University Business Law Review

No abstract provided.

It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David Sherwyn

American University Business Law Review

No abstract provided.

I Swear! From Shoptalk To Social Media: The Top Ten National Labor Relations Board Profanity Cases, Christine Neylon O'Brien

St. John's Law Review

(Excerpt)

This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB …

Awakening The Spirit Of The Nlra: The Future Of Concerted Activity Through Social Media, Benjamin J. Hogan

West Virginia Law Review

No abstract provided.

The Wellness Approach: Weeding Out Unfair Labor Practices In The Cannabis Industry, Taylor G. Sachs

Florida State University Law Review

Selected Campaign Tactics Permitted Under The National Labor Relations Act, John D. Frisby Jr.

Akron Law Review

The thrust of this discussion is to concentrate on several tactics utilized mainly by employers (Soliciting and/or Remedying Grievances during an Election Campaign and Interrogation and Polling) and a tactic used solely by the union (Waiver of Initiation Fees). Following these discussions, a chapter will be devoted to Interference with the Board's Election Process by both parties. Finally, the issue of Misrepresentations in an election campaign will be discussed in depth as this issue is very important today in light of the ever changing approach of the Board over the past several decades.

Judicial Interference With The Nlrb: Yeshiva University And The Definition Of "Managerial", Jane Clark Casey

Akron Law Review

On February 20, 1980, the United States Supreme Court, in NLRB v. Yeshiva University, decided that the full-time faculty members of Yeshiva University are managerial employees excluded from the coverage of the National Labor Relations Act. The decision was an affirmation of the Second Circuit Court of Appeals and a rejection of the position taken by the National Labor Relations Board. This paper reviews judicial interference with National Labor Relations Board decision-making generally, comments on the merits of the Yeshiva decision, and assesses the particular significance of the Court's interference with the National Labor Relations Board definition of "managerial."

Coercive Conduct And Evidentiary Hearings; Atr Wire And Cable Co. V. Nlrb, Patricia A. Mcintyre

Akron Law Review

Traditionally, the Sixth Circuit Court of Appeals has closely adhered to this strict standard.' It has done so in compliance with one of the foremost policies of the Act - the alleviation of labor unrest by expediently certifying bargaining units. ATR Wire and Cable Co. v. NLRB, "I however, represents the current willingness of the Sixth Circuit to de-emphasize the importance of expediently certifying bargaining representatives. First, the circuit will not hesitate to remand a case with direction to the NLRB to conduct an evidentiary hearing when it determines that the Board adopted the Regional Director's recommendation to certify …

The Worker Dislocation Dilemma In The United States And Great Britain: Contrasting Legal Approaches, Peter E. Millspaugh

Georgia Journal of International & Comparative Law

No abstract provided.

From The Seat Of The Chair: An Insider’S Perspective On Ncaa Student-Athlete Voices, Scott Krapf

Indiana Law Journal

This Article explains how student-athletes already have a significantly influential voice. The Author calls upon his personal experience as a former Division I student-athlete and Chair of the NCAA Division I National Student-Athlete Advisory Committee to show that student athletes are capable of effectuating change by expressing themselves through existing means, rather than unionization.

Social Media Policy Confusion: The Nlrb's Dated Embrace Of Concerted Activity Misconstrues The Realities Of Twenty-First Century Collective Action, Geordan G. Logan

Nevada Law Journal

No abstract provided.

"…And Women Must Weep" V. "Anatomy Of A Lie": An Empirical Assessment Of Two Labor Relations Propaganda Films, Thomas G. Field Jr., Juanita V. Field

Pepperdine Law Review

No abstract provided.

Play Ball: What Can Be Done To Prevent Strikes And Lockouts In Professional Sports And Keep The Stadium Lights On, Alexandra Baumann

Journal of the National Association of Administrative Law Judiciary

This comment analyzes the role that the National Labor Relations Board and the Federal Mediation and Conciliation Service play in ending strikes and lockouts caused by collective bargaining in professional sports. It then looks at what can be done to prevent lockouts and strikes in the future, which would not only benefit fans, but also stadium employees, players, and owners, as none of them make money if there are no games.

Notification Of Employee Rights Under The National Labor Relations Act: A Turning Point For The National Labor Relations Board, Amanda L. Ireland

Nevada Law Journal

No abstract provided.

Nlrb V. Yeshiva University: Teacher Participants In University Policy Formulation Deemed Managerial Under Nlra, Valerie A. Moore

Pepperdine Law Review

The development of a "status quo" for teacher bargaining unit certification was brought to an abrupt halt by the recent Supreme Court Yeshiva decision. The author, in agreement with the majority opinion, examines the development of this "status quo" and the cases leading up to and including the Supreme Court's determination that the Yeshiva faculty were managerial employees and thus exempt from coverage under the National Labor Relations Act. Also, the author illustrates the Supreme Court's unfavorable reaction to the National Labor Relations Board's cursory and inconsistent administrative decisions and opinions.

Striking A Balance Among Illegal Aliens, The Ina, And The Nlra: Sure-Tan V. Nlrb, Carl M. Howard

Pepperdine Law Review

Since 1943, the National Labor Relations Board has extended rights guaranteed to employees under the National Labor Relations Act to illegal aliens. In Sure-Tan v. NLRB, the United States Supreme Court for the first time reviewed this practice, approving it and noting that reporting illegal alien employees to the Immigration and Naturalization Service (INS) might constitute an unfair labor practice. Awarding a remedy of back pay was, however, improper as speculative. The author examines the Supreme Court's analysis of the decision and explores its future impact.

Right To Restrain Versus Right To Refrain: An Examination Of Pattern Makers' League Of North America V. Nlrb, Lawrence M. Burek

Pepperdine Law Review

No abstract provided.

Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile

Pepperdine Law Review

No abstract provided.

Proposals To Reinstate The Voluntary Recognition Bar And Rein In Captive Audience Speeches: A Rationale For Change At The National Labor Relations Board, Nora L. Macey

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Comments On Proposed Changes To Captive Audience Speech Rules And Use Of Card Checks, Rik Lineback

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.