Law Commons^™

Twenty-First Century Labor Law: Striking The Right Balance Between Workplace Civility Rules That Accommodate Equal Employment Opportunity Obligations And The Loss Of Protection For Concerted Activities Under The National Labor Relations Act, Christine Neylon O'Brien

William & Mary Business Law Review

Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee …

Avoidance Creep, Charlotte Garden

Faculty Articles

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any existing rationale for …

What’S Good For The Goose Is Good For The Gander, Or Is It? The Pitfalls Of Using The Court’S Neoliberal Construction Of The First Amendment To Protect Secondary Picketing, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Trespassory Union Picketing On Private Property: Sears, Roebuck And Co. V. San Diego County District Council Of Carpenters - Bringing State Law To "No-Man's Land"?, Donald S. Jakubowski, Marni E. Byrum

Pepperdine Law Review

No abstract provided.

First Amendment Protection For Union Appeals To Consumers, Michael C. Harper

Faculty Scholarship

This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The …

Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil

Dalhousie Law Journal

For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did notprovide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter's rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could …

The New Labor Law: A Very Limited Management Victory, Howard Glickstein, Bernard Gold

Howard Glickstein

No abstract provided.

Justice Carter's Dissent In Hughes V. Superior Court Of Contra Costa County: Harbinger Of The 60s Civil Rights Movement And Affirmative Action?, Frederick White

Publications

As a response to the discriminatory hiring practices of a large number of white-owned businesses in the 1940s, Hughes and others established a group called "Progressive Citizens of America" ("Progressive") in Richmond, California. The Hughes case detailed the events surrounding unemployed black workers picketing certain "Lucky Stores;' a grocery chain with a store located near the Canal Housing Project in Richmond, in order to compel the store to hire more black clerks. In response to the picketing, lawyers for Lucky Stores requested a preliminary injunction against the picketing. The request for injunctive relief was granted by the Superior Court of …

Twenty Years Of Labour Law And The Charter, Dianne Pothier

Dianne Pothier Collection

This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …

Labor, Theodore J. St. Antoine

Book Chapters

Labor relations present three principal kinds of constitutional issues. First, to what extent does the first amendment protect employees’ efforts to organize labor unions and solicit support, and to what extent does it limit the power of unions over their members? Second, how does the doctrine of federal preemption restrict the states in regulating union and management activities? Third, what due process guarantees may employers and employees invoke in response to federal and state laws establishing new substantive rules and remedies in employment? Although the Supreme Court has never squarely?

Contempt For Workers, Harry J. Glasbeek

Osgoode Hall Law Journal

Charter proponents have been hopeful that the courts will use the constitutional entrenchment of rights to enlarge the political freedom of Canadians. Charter opponents have been doubtful of the court's ability to do so and, more importantly, of their willingness to do so where the enhancement of rights would undermine existing power relations. While many cases which come before the courts do not raise this issue squarely, the contradictory propositions are tested where capital labour conflicts are the subject of litigation. The argument is that it is the courts' historic mission to safeguard capital from working class challenges. Two recent …

Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine

Articles

Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …

Picketing, Theodore J. St. Antoine

Book Chapters

Picketing typically consists of one or more persons patrolling or stationed at a particular site, carrying or wearing large signs with a clearly visible message addressed to individuals or groups approaching the site. Some form of confrontation between the pickets and their intended addressees appears an essential ingredient of picketing. Congress and the National Labor Relations Board have distinguished between picketing and handbilling, however, and merely passing out leaflets without carrying a placard does not usually constitute picketing. What stamps picketing as different from more conventional forms of communication, for constitutional and other legal purposes, ordinarily seems to be the …

Secondary Consumer Picketing, Statutory Interpretation And The First Amendment, Michigan Law Review

Michigan Law Review

This Note examines both the statutory and constitutional implications of Safeco and Tree Fruits. It suggests that the confusion surrounding existing Board and court interpretations of section 8(b)(4)(ii)(B) stems from the Supreme Court's failure to assess realistically the impact that consumer picketing has on secondary businesses, as well as the Court's refusal to examine the objectives of unions that resort to secondary picketing.

Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine

Articles

"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the Constitution …

Labor Law - Secondary Picketing - Buy Local Campaign At A Netural Business Violates Section 8(B)(4) Of The National Labor Relations Act, W. James Mckay

Villanova Law Review

No abstract provided.

Retail Store Employees Union Local 1001 V. Nlrb (Safeco Title Insurance Co.): Extending Tree Fruits To Protect Picketing Of Predominant Product Secondaries, Ann C. Hodges

Law Faculty Publications

The consumer product boycott is a traditional weapon employed by organized labor in disputes with employers. Picketing to solicit support from the public and other workers is also a traditional labor tactic. The legality of seeking support by combining these two methods--picketing a retailer to urge a consumer boycott of the primary employer's product-has been a source of disagreement among the Supreme Court, the United States Court of Appeals for the District of Columbia, and the National Labor Relations Board. The contested issue is whether picketing to instigate a product boycott on the premises of an employer with whom the …

Unauthorized Work Stoppages--Stranger Pickets In The Coalfields, S. Benjamin Bryant

West Virginia Law Review

No abstract provided.

The Right To Engage In Concerted Activity After, Union Recognition: A Study Of Legislative History, Staughton Lynd

Indiana Law Journal

No abstract provided.

Labor Law - An Employer Does Not Commit An Unfair Labor Practice When, Subsequent To An Impasse In Collective Bargaining, He Locks Out His Regular Employees And Operates With Temporary Replacements, Francis P. Newell

Villanova Law Review

No abstract provided.

Labor Law--Picketing--Constitutional Law--First Amendment Challenges By Federal Employees To The Broad Labor Picketing Proscription Of Executive Order 11491, Michigan Law Review

Michigan Law Review

This Note will consider the constitutional validity of section 19(b)(4)'s broad prohibition against federal-employee labor picketing. However, before the first amendment questions are considered, two preliminary issues should be discussed.

Labor Law--Boycotts And Strikes--Picketing--The Picketing Of An Independent Warehouse I Which A Primary Employer's Goods Are Stored-- Steelworkers, Local 6991 (Auburndale Freezer Corp.), Michigan Law Review

Michigan Law Review

When a group of employees strike against their own employer--the primary employer-their purpose usually is to disrupt his operations in the hope that economic pressure will persuade or coerce him to meet their demands. They may picket the primary employer's premises in order to publicize the strike or to try to persuade fellow employees to join it; and even if the picketing induces third persons not to deal with the primary, the employees' activity constitutes protected primary picketing. If the goal of the striking employees is in fact to publicize the strike and to persuade their co-workers, they will naturally …

The Law Of Picketing In Alberta, Innis Christie

Innis Christie Collection

The author discusses the law of picketing with special emphasis on cases decided in Alberta and on the peculiarities of the Alberta labour legislation. The law relating to picketing is considered in two categories: Picketing in support of unlawful strikes and picketing in support of lawful strikes. In this context the author discusses when picketing can be enjoined or give rise to damage actions. The author recommends a rational assessment of when, where and how picketing should be allowed in the context of the Canadian system of collective bargaining, with less reliance in the control of picketing on the torts …

Labor Law--Until Congress Acts, Secondary Picketing By Unions Subject To The Railway Labor Act Is Protected Against State Proscription--Brotherhood Of Railroad Trainmen V. Jacksonville Terminal Company, Michigan Law Review

Michigan Law Review

In a major labor dispute between the Brotherhood of Railroad Trainmen and the Florida East Coast Railway Company (FEC), the parties, having exhausted all the procedures of the Railway Labor Act (RLA) for resolving a major dispute, resorted to self-help remedies. FEC unilaterally changed its operating employees' rates of pay, rules, and working conditions; and the union, in turn, called a strike and picketed peacefully at locations where FEC operated, including the premises of the Jacksonville Terminal Company, which served a number of other railroads. The avowed objective of the union's picketing was to cause the other carriers using the …

Labor Relations--Consumer Picketing Under Section 8(B) (4) (Ii) (B) Of The National Labor Relations Act--Honolulu Typographical Union, No. 37, I.T.U., A.F.L.-C.I.O. V. Nlrb, Michigan Law Review

Michigan Law Review

The principal case is concerned generally with the problem of secondary activity by unions, and specifically with the application of a judicially created exception to the general prohibition against such activity. As originally written, section 8(b)(4) was intended to protect neutral employers from becoming involved in disputes between other employers and unions by prohibiting certain union activities. Among the practices forbidden was the traditional secondary boycott which arises when a union in a dispute with a primary employer brings pressure to bear on other employers (secondary employers), through their employees, to cease doing business with the primary. However, the statute …

Collective Bargaining In Canada, Innis Christie

Innis Christie Collection

The small body of Canadian legal literature is greatly strengthened by the publication of Dean Carrothers' major work. Students and teachers of labour law and practitioners in the field have found Collective Bargaining Law in Canada to be a most welcome addition to the author's already extensive writing in the field.

Respect For Picket Lines

Indiana Law Journal

No abstract provided.

Product Picketing-A New Loophole In Section 8(H) (4) Of The National Labor Relations Act?, Michael A. Warner

Michigan Law Review

Legal writers have been intrigued for years by the challenge of classifying and identifying the resulting incidents of the joint and survivor bank deposit when an attempt is made to use it as a mode of effectuating a donor depositor's intention to confer benefits on a donee co-depositor. Much in their discussions is useful to one who is concerned with the concept that has evolved in Michigan, where a 1909 statute states that some co-depositors are presumed to be joint tenants. Michigan judges and practitioners must determine, however, whether comment about national trends is applicable here, for in many respects …

Labor Law -- 1963 Tennessee Survey, Paul H. Sanders, Harvey Couch

Vanderbilt Law Review

I. ARBITRATION PROCESS

An active area of litigation today is concerned with the interrelation of the judicial process and the arbitration process in the settlement of labor disputes. It was observed in last year's survey that the Supreme Court of the United States had "embarked on the project of fashioning a body of federal common law governing the enforcement of collective bargaining agreements"' since the landmark decision in the Lincoln Mills case.

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II. PICKETING

The Labor-Management Reporting and Disclosure Act of 1959 amended section 8(b) of the National Labor Relations Act to make it an unfair labor practice for …

Labor Law--Injunctions--Order Restraining Election Aboard "Flag-Of-Convenience" Vessel, Lee D. Powar

Michigan Law Review

Upon petition of the National Maritime Union, the National Labor Relations Board directed a representation election among all unlicensed foreign seamen employed by Empresa Hondurena de Vapores, S.A., aboard a Honduran-registered ship. Empresa, a Honduran corporation which is a wholly-owned subsidiary of the United Fruit Company, sought injunctive relief in a federal district court. The petition alleged that the Board's order violated treaty obligations, the Constitution of the United States and principles of international law. The Regional Director of the NLRB moved to dismiss, asserting that the district court lacked jurisdiction to enjoin such an order and that the Board's …