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Full-Text Articles in Law
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Michigan Law Review
This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
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) …
Federal Regulation Of The Workplace In The Next Half Century, Theodore J. St. Antoine
Federal Regulation Of The Workplace In The Next Half Century, Theodore J. St. Antoine
Articles
Even the general circulation press, from the New York Times to the Los Angeles Times to Business Week, has taken to examining the current malaise of the labor movement and the increased emphasis upon ensuring the safety, health, and economic security of employees through direct governmental regulation rather than through collective bargaining. What accounts for this upsurge of scholarly and popular interest in labor relations and labor law? There are undoubtedly multiple causes but I should like to focus on a couple of reasons that seem preeminent to me.
Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine
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 …
Organized Labor, The Environment, And The Taft-Hartley Act, James C. Oldham
Organized Labor, The Environment, And The Taft-Hartley Act, James C. Oldham
Michigan Law Review
The legal issues inherent in treating out-plant pollution under the Taft-Hartley Act cannot be fully evaluated without a realistic appreciation of practical considerations and industrial experience. For this reason, considerable empirical information has been collected from a variety of sources. The examination and evaluation of this data will precede the legal analysis. The data, it is hoped, will resolve two questions: What is the effect of out-plant pollution on the workers, and what has been the response of labor unions to date?
Judicial Valour And The Warren Court's Labor Decisions, Theodore J. St. Antoine
Judicial Valour And The Warren Court's Labor Decisions, Theodore J. St. Antoine
Book Chapters
Lawyers who practice regularly before the Supreme Court are likely to prepare their arguments with a specific Justice in mind. The choice does not necessarily tum on who might be the swing vote in a given case. Often it is just a matter of which Justice can be relied upon, because of his particular interests and his insight, to search out the strengths and weaknesses of the opposing positions, and to see that all the hard questions are asked. In a labor case during the early years of the Warren Court, that would usually have meant Justice Frankfurter. Later on, …
A Touchstone For Labor Board Remedies, Theodore J. St. Antoine
A Touchstone For Labor Board Remedies, Theodore J. St. Antoine
Articles
Fashion dictates what lawyers argue about, and law professors write about, more than we may care to admit. In labor law, especially, the styles change with a rapidity that would impress a Paris couturier. During the past decade the spotlight has moved from union democracy to labor contract enforcement to the union organizing campaign. Today the "in" topic is National Labor Relations Board (NLRB) remedies. Yet if any subject deserves immunity from the vagaries of fashion, this is the one; for all rights acquire substance only insofar as they are backed by effective remedies. Coke said it long ago: "[W]ant …
Labor Law-Independent Contractor Status-Extension Of The Right Of Control Test, F. Bruce Kulp Jr.
Labor Law-Independent Contractor Status-Extension Of The Right Of Control Test, F. Bruce Kulp Jr.
Michigan Law Review
Petitioner, a large independent oil company, owned a gasoline service station which it leased to an individual operator, reserving the right to determine certain aspects of the lessee's operations. During the lease period, a majority of the station attendants signed union authorization cards, and the union requested a meeting with the lessee for the purpose of negotiating a contract. The lessee refused to negotiate, discharged the attendants, and hired replacements. The trial examiner found that petitioner, as an employer of his lessee, had violated section 8(a)(5) of the National Labor Relations Act by refusing to bargain. On appeal, held, …
No-Strike Clauses In The Federal Courts, Frank H. Stewart
No-Strike Clauses In The Federal Courts, Frank H. Stewart
Michigan Law Review
One consideration will support several promises. A promisor may extract more than one promise in return for his single undertaking to do - or not to do. It depends upon his bargaining power. His single undertaking may be so valuable that several promises are necessary to induce him to act, or not to act. He is privileged to hold out for the best deal. The law does not examine his motives or reduce his demands. And from this arises the common- law principle that one consideration may support several promises.
Labor Law - Arbitration - Restriction Of Judicial Intervention Into The Arbitration Process, James J. White
Labor Law - Arbitration - Restriction Of Judicial Intervention Into The Arbitration Process, James J. White
Michigan Law Review
Respondent company laid off a number of employees as a result of its decision to contract out maintenance work formerly done in the company shop. After the grievance procedure failed to resolve petitioner union's claim that this violated the contract provision against lockouts, and the company refused the union's request for arbitration, the union sought specific performance of the promise to arbitrate contained in the collective bargaining contract. In dismissing the plea, the district court found that contracting out work was solely a function of management and therefore not arbitrable because the contract specifically excluded from arbitration "matters which are …
Labor Law - Appropriate Bargaining Unit Under Section 9(B) Of The Taft-Hartley Act- Determination Requires Nlrb To Exercise Discretion, James N. Adler
Labor Law - Appropriate Bargaining Unit Under Section 9(B) Of The Taft-Hartley Act- Determination Requires Nlrb To Exercise Discretion, James N. Adler
Michigan Law Review
Petitioner union sought to represent maintenance and construction electricians employed by plate glass manufacturer at a new plant. How ever, employer and intervenor union entered into an agreement extending to the new plant an existing contract covering employees at certain of employer's other plants. At hearings upon petitioner's application to determine the "appropriate" bargaining unit under criteria established by section 9 (b) of the Taft-Hartley Act, employer and intervenor urged that the highly integrated nature of the plant and the history of plantwide bargaining at employer's other plants made a single bargaining unit covering all plant's employees the only appropriate …
Labor Law - National Labor Relations Board - Effect Of The Nlrb's Refusal To Take Jurisdiction, Joseph O. Sullivan, John C. Dowd S.Ed.
Labor Law - National Labor Relations Board - Effect Of The Nlrb's Refusal To Take Jurisdiction, Joseph O. Sullivan, John C. Dowd S.Ed.
Michigan Law Review
Appellant corporation was charged by the United Steelworkers of America with unfair labor practices in violation of sections 8(a)(1), (3) and (5) of the National Labor Relations Act. Although appellant's business affected commerce within the meaning of the act, the acting regional director of the NLRB declined to issue a complaint because the company's volume of business did not meet the Board's revised minimum "jurisdictional" standards. The union then filed substantially the same charges with the Utah Labor Relations Board. The Utah Board's determination that it had jurisdiction was affirmed by the Utah Supreme Court. On certiorari to the Supreme …
Labor Law - Lmra - Status Of A Walkout Prompted By Health Reasons In The Face Of A No-Strike Clause, Robert E. Hammell S.Ed.
Labor Law - Lmra - Status Of A Walkout Prompted By Health Reasons In The Face Of A No-Strike Clause, Robert E. Hammell S.Ed.
Michigan Law Review
The employer and the union were covered by a contract which contained a no-strike clause. In spite of this agreement, buffers in the employer's plant walked off their jobs when a blower in the buffing room failed to carry away dust and cool the area properly. The trial examiner found that the walkout was a protected concerted activity and not a strike, and that the employer had therefore committed an unfair labor practice by refusing to permit the buffers to return to their jobs when the blower had been repaired. On exceptions taken to these findings, the NLRB reviewed and …
Labor Law - Lmra - Deduction Of Workmen's Compensation From Employer's Back Pay Liability, John A. Beach
Labor Law - Lmra - Deduction Of Workmen's Compensation From Employer's Back Pay Liability, John A. Beach
Michigan Law Review
The National Labor Relations Board found that the Moss Planing Mill Company had committed an unfair labor practice in discharging an employee for his union activities. The company's secretary-treasurer also had battered the employee, inflicting injury, at the time of the discharge. Pursuant to section 10 (c) of the amended National Labor Relations Act, the Board ordered the company to reinstate the employee and make him whole for back pay lost due to the unfair discharge. The order was enforced by the court of appeals. In a supplemental order specifying the amount of back pay to be awarded, the Board …
Labor Law - Labor - Management Relations Act - Further Comments On Federalism, Robert B. Olsen S.Ed.
Labor Law - Labor - Management Relations Act - Further Comments On Federalism, Robert B. Olsen S.Ed.
Michigan Law Review
Until a decade ago, the nation's lawyers paid little attention to the status of federal-state relations in the regulation of labor disputes. Today there hardly appears a volume of a legal journal that does not contain the product of new efforts to bring order out of the chaos that prevails in this area. A number of writers have apparently given up the task of reconciling statutory provisions with case law and case law with sound federal policy, and have resorted to the simpler, yet challenging, method of proposing amendments to existing federal statutes. Worthy as these efforts may be in …
Labor Law - Lmra - Status Of Union Official As An "Employee Representative" For Purposes Of Prosecution Under Section 302, George E. Ewing
Labor Law - Lmra - Status Of Union Official As An "Employee Representative" For Purposes Of Prosecution Under Section 302, George E. Ewing
Michigan Law Review
The appellant was president of the International Longshoreman's Association, the recognized bargaining agent for longshore labor in the Port of New York. An officer of several of the employer members of the New York Shipping Association paid the appellant $5500 in six yearly "Christmas presents." The appellant was convicted of violating section 302 of the Labor-Management Relations Act, which makes it a misdemeanor for "any representative of any employees" to receive or agree to receive money from his employer, subject to certain exceptions. On appeal, held, reversed. The word "representative" is a term of art used throughout the act …
Labor Law - Lmra - "Hot Cargo" Clause As A Defense To Secondary Boycott, Jack G. Armstrong S.Ed.
Labor Law - Lmra - "Hot Cargo" Clause As A Defense To Secondary Boycott, Jack G. Armstrong S.Ed.
Michigan Law Review
In McAllister Transfer, Inc. the National Labor Relations Board decided to reconsider the question of "hot cargo" clauses. In this case, the Teamsters' union requested McAllister, a non-union cartage company, to recognize it as the bargaining representative of McAllister's employees, and submitted a proposed contract to the employer. When McAllister refused to recognize the Teamsters, the union announced that the company would be "shut off" from interlining freight. Accordingly, the Teamsters induced those of their members who were working for three other carriers not to handle McAllister freight. Each of these other carriers was a party to a cartage agreement …
Labor Law - Collective Bargaining - Enforceability Of Collective Agreements Under Section 301(A), Douglas Peck S.Ed.
Labor Law - Collective Bargaining - Enforceability Of Collective Agreements Under Section 301(A), Douglas Peck S.Ed.
Michigan Law Review
Plaintiff, an unincorporated labor organization, filed suit in federal district court to enforce a collective bargaining agreement with defendant. The complaint alleged that defendant was obligated by the agreement to pay employees represented by the plaintiff their full salary for the month of April 1951 regardless of the fact that they had been absent on certain working days. The suit was brought under section 301 (a) of the Labor-Management Relations Act of 1947.On appeal from a court of appeals decision directing dismissal for lack of jurisdiction, held, affirmed, two justices dissenting. An action by a labor organization to enforce …
Labor Law-Labor-Management Relations Act-Emergency Strike Provisions, Walter H. Weiner S.Ed.
Labor Law-Labor-Management Relations Act-Emergency Strike Provisions, Walter H. Weiner S.Ed.
Michigan Law Review
Suit by the United States, under authority of the National Emergency provisions of Title II of the Labor-Management Relations Act, to enjoin a strike in a single plant engaged in the manufacture of pipe used in the construction of atomic energy plants. The district court granted an injunction, and the labor organizations adversely affected thereby appealed. Held, affirmed. The threatened strike would have affected a substantial part of the atomic weapon industry and would have imperiled the national safety. United States v. United Steelworkers of America, C.I.O., (2d Cir. 1953) 202 F. (2d) 132.
Labor Law-Class Action By Labor Union Members To Enforce Collective Bargaining Agreement-Jurisdiction Of State Courts, John Houck S.Ed.
Labor Law-Class Action By Labor Union Members To Enforce Collective Bargaining Agreement-Jurisdiction Of State Courts, John Houck S.Ed.
Michigan Law Review
Plaintiff was an employee of defendant corporation, and an officer of the union accredited as bargaining agent. He brought an equity suit in the Ohio courts for specific enforcement of a collective bargaining agreement and to collect back wages, on behalf of himself and other union members similarly situated. The basis of the suit was section 11257 of the Ohio General Code, providing for class actions. The lower court dismissed the petition on the grounds of no jurisdiction under that section. On appeal, held, reversed. Although the defendant corporation's activities in interstate commerce subject it to federal labor legislation, …
Job-Seeking Aggression, The Nlra, And The Free Market, Sylvester Petro
Job-Seeking Aggression, The Nlra, And The Free Market, Sylvester Petro
Michigan Law Review
Two principles are at war in modem labor relations. One, the principle of free choice of employee representation, underlies all modem labor relations legislation. The other, the principle of absolute proprietary rights in certain work, manifests itself in the traditional jurisdictional dispute but occurs in a broader context as well. The labor relations principle, an attempt to order relations between employers and employees on a civilized basis, requires collective bargaining between employers and the representatives of their employees and further declares that the selection of representatives by employees shall be free of coercive interference by employers. Job-seeking aggression, combatting this …
Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.
Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.
Michigan Law Review
Plaintiff corporation and defendant union entered into a collective bargaining agreement which provided that there should be no strikes by members of the union until the grievance procedure prescribed therein was exhausted. A walkout in violation of this agreement occurred and the plaintiff sought damages for the consequent loss of profits. A statute provided that ''Whenever any unincorporated . . . association . . . shall be formed in this state . . . actions . . . may be brought by or against such associations. . . " On de novo hearing, held, the defendant was amenable to …
Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.
Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.
Michigan Law Review
Plaintiff corporation and defendant union entered into a collective bargaining agreement which provided that there should be no strikes by members of the union until the grievance procedure prescribed therein was exhausted. A walkout in violation of this agreement occurred and the plaintiff sought damages for the consequent loss of profits. A statute provided that ''Whenever any unincorporated . . . association . . . shall be formed in this state . . . actions . . . may be brought by or against such associations. . . " On de novo hearing, held, the defendant was amenable to …
Labor Law--Arbitration--Management's Disciplinary Authority On Union's Breach Of A No-Strike Covenant, Jean Engstrom S.Ed.
Labor Law--Arbitration--Management's Disciplinary Authority On Union's Breach Of A No-Strike Covenant, Jean Engstrom S.Ed.
Michigan Law Review
A demonstration protesting the proper discharge of two union officials resulted in the discharge of ninety-six participating employees. The following day the company commuted the penalty to a two-week suspension. The effective collective bargaining agreement provided that there should be no strikes or lockouts "for any reason" unless the grievance and arbitration procedure had been exhausted but it reserved the employer's right to discharge for breach of the agreement. The arbitration board awarded employees back pay for the time of suspension and seniority and other rights incident to employment for the entire period. Although the employee had violated the no-strike …
Labor Law - "Channeling" The Duty To Bargain - Effect Of Violation Of "No-Strike" Clause In Existing Agreement, John F. Buchman S.Ed.
Labor Law - "Channeling" The Duty To Bargain - Effect Of Violation Of "No-Strike" Clause In Existing Agreement, John F. Buchman S.Ed.
Michigan Law Review
Employer and union had an existing collective agreement which provided detailed procedures for adjusting grievances, including arbitration as the final step, and contained a no-strike clause. Disputes arose concerning action taken by the employer affecting working schedules, overtime work, and other conditions of employment without consulting the union; and disciplinary measures were taken against certain employees in pursuance of the new working rules. The union finally called a strike, without filing grievances according to the contract procedure on the disputes which were the immediate causes of the strike. The employer discontinued hearings on two pending grievances and refused to negotiate …
Labor Law-Constitutionality Of Statutes Prohibiting "Hot Goods" And "Secondary" Boycotts, Jerry S. Mccroskey
Labor Law-Constitutionality Of Statutes Prohibiting "Hot Goods" And "Secondary" Boycotts, Jerry S. Mccroskey
Michigan Law Review
In a contempt action against the business agent of an A.F.L. furniture and van workers local for violation of an injunction based on statutes prohibiting "hot goods" and "secondary" boycotts, held, petitioner discharged; the statutes are violative of the Fourteenth Amendment of the federal Constitution in prohibiting peaceful picketing or other publication of the facts concerning a labor dispute in pursuance of an "agreement or combination to cause" any employee to stop handling certain goods or to put pressure on his employer to do so. ln re Blaney, (Cal.1947) 184P. (2d) 892.
Labor Law-Torts-Liability Of Labor Union For Inducing Breach Of Contract, Ira M. Price, Ii S.Ed.
Labor Law-Torts-Liability Of Labor Union For Inducing Breach Of Contract, Ira M. Price, Ii S.Ed.
Michigan Law Review
During the past fifteen years the law as a whole has moved rapidly in the direction of favoring union activity. A labor policy expressed in numerous federal and state laws and important judicial decisions has generally recognized and protected in the courts the workers' right to be free from employer interference, to strike, to engage in peaceful picketing, and to conduct primary boycotts. Within this liberalizing judicial concept of the rights of labor, the present status of the action against labor unions for inducing breach of contract presents an interesting study of the tenacity of an early common law theory …