Law Commons^™

Labor, Richard R. Boisseau, David C. Palmer

Mercer Law Review

No abstract provided.

Employment Discrimination, Susan A. Cahoon

Mercer Law Review

During 1980, the Fifth Circuit again had a full docket of employment discrimination cases. For the most part, the cases tended to turn on the particular facts at issue, and there were few pronouncements by the court of broader significance. An en banc court did decide an important question about limiting communications in class actions, and a panel of the court considered for the first time, whether there is an implied private cause of action to sue for discrimination against the handicapped under Section 503 of the Rehabilitation Act of 1973. The Fifth Circuit also continued to follow a unique …

Garcia V. Gloor: Mutable Characteristics Rationale Extended To National Origin Discrimination, Dwight J. Davis

Mercer Law Review

In Garcia v. Gloor, the Fifth Circuit Court of Appeals upheld a district court ruling that an employer's policy requiring employees to speak only English while at work did not violate the Civil Rights Act of 1964 prohibition against national origin discrimination. In so ruling, the court extended the mutable-immutable characteristics rationale that the Fifth Circuit first outlined in Willingham v. Macon Telegraph Publishing Co.

A Survey Of Recent Retail Facilities Nonemployee Access Decisions, Russell A. Willis Iii

Mercer Law Review

The following is intended as a limited survey of recent decisions of the National Labor Relations Board and various state and federal courts on the subject of nonemployee access to employer property in certain labor relations contexts. To the extent that there is a thematic structure to the writing, it is that implied by interstices between the rationales of the Supreme Court decisions in Hudgen v. NLRB and Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (Sears I). A brief description of those interstices is therefore an appropriate starting point.

Longshoremen's Embargo Of Soviet Goods: A Secondary Boycott Or A Political Protest?, Jeffrey L. Caddell

Mercer Law Review

In January of 1980 the International Longshoremen's Associaton, (ILA), boycotted any and all material destined for or originated from the Soviet Union. The boycott was announced as a political protest of the Soviet invasion of Afghanistan. Not surprisingly, the boycott spawned several lawsuits contesting the legality of the union action: New Orleans Steamship Ass'n v. Longshore Workers; Baldovin v. ILA and Walsh v. ILA. This comment will focus on these three decisions and their treatment of three major issues: first, whether the boycott is within the commerce jurisdiction of the National Labor Relations Board (NLRB); second, whether the …

Nlrb V. Yeshiva University: The Demise Of Academic Collective Bargaining?, Keith Denslow

Mercer Law Review

Although the National Labor Relations Act was enacted into federal law in 1935, the National Labor Relations Board did not extend the Act to cover employees of private, nonprofit universities and colleges until 1970. Shortly thereafter, in a separate but not unrelated decision, the Supreme Court decided NLRB v. Bell Aerospace Co., in which it held that all managerial employees are ineligible for coverage under the Act. Unknown to either the Court or the Board, the Bell decision placed in jeopardy the earlier Board decision to extend jurisdiction over university employees. A clash between the two decisions seemed inevitable …

Wright Line: The Nlrb Adopts The Mt. Healthy Test For Dual Motive Discharge Cases Under The Lmra, Raymond C. Mayer

Mercer Law Review

In Wright Line, the National Labor Relations Board (Board) abandoned its standard causation test for mixed motive or dual motive discharge cases arising under sections 8(a)(1) or 8(a)(3) of the Labor-Management Relations Act' (Act) and adopted in its stead the test enunciated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle. In so doing, the Board wrote an elaborate opinion explaining the development of the conflicting tests applied by the Board and the federal courts of appeals, the Mt. Healthy test, and the applicability of that test to section 8(a)(3) cases.

Wright …

Community Defense Of Union- Free Status, Michael A. Caldwell

Mercer Law Review

During the last decade, the shift of industrialization southward towards the Sunbelt has brought growing prosperity to many previously impoverished communities. Climate, new markets, and favorable tax environments have made previously agrarian communities attractive to northern industries. The ample availability of nonunion labor in these communities has obviously played a large part in their selection as sites for plant relocation. In these cities and towns, the fortuitously "dropped" union authorization card in a plant restroom, or a report that a guest in a local motel has used a credit card issued to a labor union, will send ripples of alarm …

Accommodating Labor's Section 7 Rights To Picket, Solicit, And Distribute Literature On Quasi-Public Property With The Owners' Property Rights, Donald T. O'Connor

Mercer Law Review

Almost a quarter of a century ago, the Supreme Court handed down its landmark decision in NLRB v. Babcock & Wilcox. The Court held that an employer may prohibit nonemployee union organizers from distributing literature to its employees on company property if the employees are not beyond the reasonable reach of the union and the no-access rule does not discriminate against the union. Since Babcock & Wilcox, the development of the law regarding the right of nonemployee organizers to solicit employees on private property not open to the public has followed a predictable path. However, when the property …

Employee Protests Over Supervisory Changes: The Nlrb Versus The Circuit Courts, Andrew Gage Nichols

Mercer Law Review

The protection afforded workers by the National Labor Relations Act (NLRA) extends only to that class of workers defined by the Act as employees.' The term employee as defined by the Act specifically excludes "any individual employed as a supervisor." The Act defines a supervisor as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not …

Safeco And Secondary Product Picketing, Joseph F. Kinman Jr.

Mercer Law Review

In NLRB v. Retail Store Employees Local 1001 (Safeco), the Supreme Court held that primary product picketing at a neutral secondary retailer's place of business that can be reasonably expected to threaten the neutral party with ruin or substantial loss is prohibited by section 8(b)(4)(i,ii)(B) of the National Labor Relations Act (NLRA).

Safeco Title Insurance Company (Safeco) is a California corporation engaged in the operation of a title insurance company in Seattle, Washington. Safeco employees were represented in the collective bargaining process by the Retail Store Employees Union Local 1001, Retail Clerks International Association, AFL-CIO. Negotiations between Safeco and the …

One Step Forward And Two Steps Back: The Shopping Kart - General Knit Dance, Duane C. Aldrich, Richard R. Carlson

Mercer Law Review

In the space of less than two years, the National Labor Relation Board's Shopping Kart Food Market, Inc. experiment was born and laid to rest in a drama of zealous forensics worthy of the union representation campaigns that Shopping Kart sought to deregulate. Shopping Kart, which would have radically curtailed Board review of the truthfulness of union and employer representation campaign propaganda, was disavowed by a new Board majority in General Knit, Inc., with the result that the Board's pre-Shopping Kart policy of scrutiny of campaign propaganda was substantially, if not completely, restored. Although Shopping Kart may …

Secondary Consumer Picketing: The First Amendment Questions Remain, Curtis L. Mack, Risa L. Lieberwitz

Mercer Law Review

The United States Supreme Court has been faced many times with the question of the constitutionality of governmental restrictions on picketing in light of the first amendment protection of free speech. In these decisions, the Court has applied various approaches and tests in an effort to resolve the tension between governmental interests in controlling picketing and individual rights of expression consistent with the first amendment. The Court has confronted these issues particularly in the area of secondary consumer picketing, which is regulated by section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. These issues surfaced first in 1957 with …

Carbon Fuel: An End To The "Best Efforts" Duty By International Unions To Get Wildcat Strikers Back To Work?, Janne Castleberry

Mercer Law Review

The United States Supreme Court in Carbon Fuel Co. v. United Mine Workers held that an international union or its regional subdivision cannot be held liable to an employer for damages resulting from a "wildcat strike"' because it failed to use its best efforts to bring about an end to the unauthorized work stoppage. This holding reflects an effort by the Court to resolve the long standing conflict among the circuits on this issue.

Plaintiff, a coal mine owner and operator, originally brought suit against three local unions of the United Mine Workers of America (UMWA), UMWA District 17 and …

Work Preservation: The Union Struggle Against Technological Innovation, E. Allen Hieb Jr., George Randall Moody

Mercer Law Review

Varied judicial applications of the so-called work preservation doctrine without persuasive or consistent analysis make the area one of the most muddled topics in labor relations law. Common law terminology is blended with labor legislation in order to determine the limits of permissible union attempts to preserve job tasks that are threatened by another work group or advancing technology. This comment will discuss the statutory framework relative to work preservation and discuss some of the issues and rationales for the settlement of disputes in the area. Part I will relate to the general background of work preservation and its relationship …

Kaynard V. Palby Lingerie, Inc.: The Second Circuit Reveals A Bargaining Order With A Surprising Shape, Paul Antonio Quirós

Mercer Law Review

In Kaynard v. Palby Lingerie, Inc., the Second Circuit Court of Appeals held that an interim bargaining order could be granted in the district court's discretion when there is a showing of a "substantial basis" to make a unit determination even though the unit of workers that desire union representation has not been finally determined. Palby is the first case in which a circuit court has ever granted an interim bargaining order under section 10(j) of the Labor Management Relations (Taft-Hartley) Act in the absence of a final unit determination.

Palby Lingerie is the sales end of a four …

The "Squeaky Wheel" Employee: To Grease Or To Replace And The Costs Of Each, Charles A. Edwards, Lovic A. Brooks Iii

Mercer Law Review

[T]he Board seems unable to recognize that as a matter of business judgment there can be only one course open to management when an employee persists in giving it the finger.

Judge Aldrich's comments are, it seems, all too often ignored by the agencies entrusted with the enforcement of federal statutes affecting free speech in the workplace-the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA) and the Wage-Hour Division, United States Department of Labor. This article will examine the validity of the premise discussed by Judge Aldrich in view of …

Section 8(C) Of The National Labor Relations Act: Giving It Meaning, Robert J. Berghel, David J. Dempsey

Mercer Law Review

Section 8(c)1 of the National Labor Relations Act provides that an employer's communication with its employees "shall not constitute or be evidence of an unfair labor practice as long as the communications do not contain threats of reprisals, threats of force, or promises of benefits. In a long series of cases, the National Labor Relations Board has undermined the express language of Section 8(c) and the intent of Congress, both in the substantive content of its decisions and in the manner in which it has rendered those decisions.

Newspaper Guild V. Nlrb: The Duty To Bargain And The Press, Emmitte Hamilton Griggs

Mercer Law Review

In Newspaper Guild v. NLRB, the Court of Appeals for the District of Columbia Circuit held that collective bargaining was not mandatory on all aspects of a newspaper's Ethics Code and Office Rules. The court also held that the penalty provisions attached to these rules could not be separated from the substantive provisions that they were designed to enforce: both were either mandatorily bargainable or they were not. This decision is the most recent one reported that considers the applicability of the National Labor Relations Act' (NLRA) to a newspaper in light of the newspaper's assertion of its first …

The Constitutionality Of Labor Unions' Collection And Use Of Forced Dues For Non-Bargaining Purposes, Hugh L. Reilly

Mercer Law Review

In 1977, the Supreme Court considered whether the first amendment prevents or limits forced union dues in the public sector. The issue arose in Abood v. Detroit Board of Education. The Court's decision resolved several important issues, some unexpectedly, and left others for subsequent litigation. The Court rejected the claim that forced dues for public sector employees are per se unconstitutional. Instead, the Court determined that such fees are constitutional, but only to the extent that they defray the union's cost of "collective bargaining, contract administration, and grievance adjustment." In the Court's view, a fee confined to the cost …

Sick Leave Benefits: The Nlrb Reexamines The Rights Of Disabled Employees During A Strike, W. Carter Bates

Mercer Law Review

In E.L. Wiegand Division, Emerson Electric Co., the National Labor Relations Board (Board) held that an employer may no longer require disabled employees on sick leave to disavow strike activity in order to receive employee disability benefits. The Board went on to hold, however, that once the disabled employee shows affirmative support for the strike, he runs the risk of forfeiting his right to disability benefits. In Emerson, the Board completely reexamined the rights of disabled employees in the context of a labor dispute and expressly overruled its prior decision in Southwestern Electric Power Co.

Nlrb V. Catholic Bishop: Lay Teachers Seek More Than Good Shepherd To Protect Their Rights, Laurie L. Hughes

Mercer Law Review

In NLRB v. Catholic Bishop, the Supreme Court, in a 5-4 decision, held that coverage of the National Labor Relations Act (NLRA) does not extend to lay teachers employed by church-operated schools which include both religious and secular subjects in their curriculums. As will be seen, this conclusion was reached not on traditional first amendment analysis, but instead on narrow statutory construction.

Prior to the decision in Catholic Bishop, the National Labor Relations Board (Board) had long wrestled with jurisdictional issues pertaining to nonprofit educational institutions. The 1951 decision in Trustees of Columbia University made firm the Board's …

The Threat Or The Announcement Of Plant Closure?, H. Thomas Arthur

Mercer Law Review

The limits on an employer's free speech rights during a union representation campaign were established by the Supreme Court in NLRB v. Gissel Packing Co. But the proper interpretation of Gissel first requires an understanding of the limitations on employers' property rights set out by the Court in Textile Workers Union v. Darlington Manufacturing Co. A proper understanding of Darlington leads to the conclusion that the National Labor Relations Board (Board) and the circuit courts have been incorrectly applying the limits on an employer's first amendment right of free speech. The effect of the misapplication in the context …

Nlrb Campaign Laboratory Conditions Doctrine And Free Speech Revisited, James W. Wimberly Jr., Martin H. Steckel

Mercer Law Review

The subject of free speech in union organizing campaigns has generated a great deal of discussion and comment over the years. This subject is naturally popular because of the intensity of a union organizing campaign, the importance of the subject to industry and organized labor, the evolution of constitutional and statutory doctrines applicable to free speech, and the shifts in opinion by commentators and the public over how such matters should be handled. This article will make no attempt to summarize or analyze what has already been said on the subject. Instead, this article will examine one aspect of National …

A Survey: Nlrb Limits On Appeals To Racial Prejudices Of Employees, John P. Campbell

Mercer Law Review

Appeals by an employer to the racial prejudices of its employees may be an unfair labor practice in violation of section 8(a)(1)1 of the National Labor Relations Act (Act). This section makes it unlawful for an employer "to interfere with, restrain, or coerce" employees in the exercise of their rights, under section 7' of the Act, "to form, join, or assist labor organizations," or to refrain from doing so. Racial appeals by either an employer or a union may also be grounds for setting aside an election conducted by the National Labor Relations Board (Board) if, as determined according to …