Labor and Employment Law Commons^™

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …

The Case For Limiting Judicial Review Of Labor Board Certification Decisions, Michael C. Harper

Faculty Scholarship

Part I of this Article explains in more technical detail the effects of the present system of judicial review of Board certification decisions and how that system developed. Part II argues that this review should be sharply curtailed, suggesting that unless a court is able to rule that the Board has rendered a certification decision for an improper motive, it should reconsider that decision only to the extent it involves a constitutional issue, a narrow jurisdictional issue, or one of a few bounded technical issues. Such a curtailment of review should be embraced by all who remain sympathetic to the …

The Nuclear Regulatory Commission's Regulation Of Radiation Hazards In The Workplace: Present Problems And New Approaches To Reproductive Health, Neal Smith, Michael S. Baram

Faculty Scholarship

On December 20, 1985, the Nuclear Regulatory Commission (NRC) proposed revisions to its Standards for Protection Against Radiation [hereinafter Standards].¹ If adopted, the new Standards will provide additional protection for millions of workers and their unborn children. The effects of the Standards will extend, however, far beyond the health of those exposed to radiation. Specifically, the NRC's proposal may provide a new paradigm for regulating health hazards that have no safe threshold level of exposure. It will also focus debate on whether or not women should be precluded from working in fetotoxic environments

Chemical Industry Accidents, Liability, And Community Right To Know, Michael S. Baram

Faculty Scholarship

The Bhopal, India tragedy and other industrial accidents (e.g., Seveso, Flixborough, Mexico City, Institute, WV) have frightened the citizens of developed and undeveloped countries. These accidents, along with numerous hazardous waste problems, have led to a dramatic loss of public confidence in chemical industry management and their safety experts. The occurrence of such accidents also provides vivid evidence of the serious gap between government legislative promises and government performance in the actual control of industrial hazards.'

As a result, persons who believe they have been injured or put at risk by industry are now using tort law to secure private …

Fair Representation As Equal Protection, Michael C. Harper, Ira C. Lupu

Faculty Scholarship

In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to …

Charting The Future Course For Corporate Management Of Health Risks, Michael S. Baram

Faculty Scholarship

Corporations engage in technological activities of benefit to society, but thereby also create new health risks for workers, consumers, and communities. Government regulatory agencies deal with this chronic problem by conducting risk analyses and imposing various duties on private firms. Despite agency efforts and corporate compliance, health risks continue to arise and take their toll. To what extent will private firms voluntarily assume greater responsibility for preventing these health risks? This question is of increasing social importance, because the limitations of regulatory efforts are now obvious, whereas health risks are now being identified at what appears to be an increasing …

The Right To Know And The Duty To Disclose Hazard Information, Michael S. Baram

Faculty Scholarship

In late 1983, the Occupational Safety and Health Administration (OSHA) promulgated its final rule on "hazard communication." This rule establishes for many workers the right to know certain health hazard information held by their employers. Concurrently, the rule imposes on these employers the duty to disclose such privately held information. ^I

The OSHA rule is limited and late, and joins a crowded field. It follows in the wake of several decades of legal developments which have established various rights to know and duties to disclose. Since the latter part of the nineteenth century, state common law for personal injuries has …

The Consumer's Emerging Right To Boycott: Naacp V. Claiborne Hardware And Its Implications For American Labor Law, Michael C. Harper

Faculty Scholarship

Hard cases do not always make bad law. Sometimes, when confronted with records that will yield neither to the direct application of established legal principles nor to factual manipulation, courts articulate, or at least suggest, a new principle which should and often does refine a body of old law. The Supreme Court's decision in NAACP v. Claiborne Hardware Co." should become a prominent and salutary example of such hard cases. Before Claiborne Hardware, the Court had indicated that legislatures, for rational economic policy reasons, could make peaceful consumer boycotts illegal.' Confronted with compelling facts in the Claiborne Hardware …

Biological Monitoring: The Employer's Dilemma, Frances H. Miller

Faculty Scholarship

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute …

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 …

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 …

Union Waiver Of Employee Rights Under The Nlra: Part Ii - A Fresh Approach To Board Deferral To Arbitration, Michael C. Harper

Faculty Scholarship

The author applies the non-waiverprinciple developed in Part I of this article to Board deferral to arbitration. Former Chairman Murphy's concurring opinion in General American Transportation Corp. is evaluated in light of the non- waiver princple. The author analyzes the issues not properly resolved in that opinion, while demonstrating its basic insight.

In Part 1 of this essay, I explored the implications of the Supreme Court's holding in NLRP v. Magnavox Co. that exclusive bargaining agents do not have the authority to waive certain rights protected by section 7 of the National Labor Relations Act. Drawing on Magnavox, …

Union Waiver Of Employee Rights Under The Nlra: Part I, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.