Labor and Employment Law Commons^™

Deferral And The Dissident, Paul Alan Levy

University of Michigan Journal of Law Reform

I discuss two examples involving a dissident group, Teamsters for a Democratic Union (TDU), that vividly illustrate the problems with NLRB deferral. I then examine the development and evolution of the NLRB's policies concerning deferral to arbitration. Next, I review the statutory- and policy-based arguments advanced for and against deferral. I attempt to assess the best reasons given for the deferral doctrine, while showing why, at least in its current incarnation, NLRB deferral doctrine is contrary to the requirements of the NLRA. More specifically, I show that, to the extent that deferral has some legitimate basis, it is founded on …

Private Plaintiffs' Use Of Equitable Remedies Under The Rico Statute: A Means To Reform Corrupted Labor Unions, Randy M. Mastro, Steven C. Bennett, Mary P. Donlevy

University of Michigan Journal of Law Reform

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may …

Feminizing Unions: Challenging The Gendered Structure Of Wage Labor, Marion Crain

Michigan Law Review

In this article, I argue that labor unions can be an effective, central tool in a feminist agenda targeting the gendered structure of wage labor. Collective action is the most powerful and expedient route to female empowerment; further, it is the only feasible means of transforming our deeply gendered market and family structure. Others have laid the groundwork by showing how existing individual-model challenges have been unable to accomplish such broad-based reform. I begin where they leave off.

Collective Bargaining In The Federal Public Sector: Disclosing Employee Names And Addresses Under Exemption 6 Of The Freedom Of Information Act, Trina Jones

Michigan Law Review

This Note examines the application of FOIA and the Privacy Act to union requests for employee names and addresses under the Fed. LM Statute. Part I briefly explores the importance of employee names and addresses to collective bargaining. This Part also examines the increasingly significant role of public sector unions due to the growth in federal public sector employment and the decline of private sector unionization. Part II analyzes the various circuit court decisions supporting disclosure in the federal public sector. Part III examines Reporters Committee and Department of the Treasury and discusses the potential policy implications resulting from the …

Drafting The Dispute Resolution Clause, Whitmore Gray

Book Chapters

Providing in a contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense, this is what a lawyer regularly does in contract drafting-anticipating misunderstandings or problems that experience has indicated are likely to arise, and trying to provide clear solutions in advance. When it comes to drafting a specific clause for the resolution of further disputes that may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on, or draw the other party's attention …

Demoncratic Institutions Of Industrial Relations: A Polish Perspective, Ludwik Florek

Michigan Journal of International Law

This essay addresses three issues. The author first describes the major features of the previous Polish industrial relations system which caused it to be undemocratic. He then presents arguments justifying the need for a democracy in industrial relations in Poland. Second, the indispensable premises and elements of three basic democratic institutions of industrial relations are identified: trade union freedom, collective bargaining and the right to strike. These elements were selected for analysis on the basis of international legal instruments, in particular, conventions of the International Labor Organization ("ILO"), as well as U.S. and West European labor legislation. The author then …

The Government And Union Democracy, Theodore J. St. Antoine

Articles

The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."

Model Uniform Employment Termination Act, National Conference Of Commissioners On Uniform State Laws

Other Publications

The Scope and Program Committee, at its meeting on January 11-12, 1985, recommended to the Executive Committee that it appoint a Committee to draft a Uniform Wrongful Termination Act. The recommendation was based in part on studies indicating that recent judicial modifications in the doctrine of employment at will had created great uncertainty for both employers and employees. (That uncertainty has grown. See infra.) Members of the Scope and Program Committee stressed that uniformity would be desirable because employees might be hired in one state, work in another, and be fired in a third, and that the subject gave the …

Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine

Articles

A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …

English-Only Rules And The Right To Speak One's Primary Language In The Workplace, Juan F. Perea

University of Michigan Journal of Law Reform

This Article analyzes the issues raised by English-only rules and the decisions discussing these rules. Part I reviews the leading cases on English-only rules. The Article then explores several issues that must be considered in deciding any English-only rule case under Title VII. Part II addresses whether speaking one's primary language should constitute a protected right as an aspect of national origin under Title VII. This Article argues that primary language should be protected under Title VII for several reasons: the courts and the EEOC construe the term "national origin" broadly; primary language constitutes a fundamental aspect of ethnicity and …

Bart Bartosic: What You See Is Not What You Get, Theodore J. St. Antoine

Articles

With "Bart" Bartosic, what you see is not necessarily what you get. Anyone even vaguely acquainted with him knows I am not talking about duplicity; on occasion, Bart can be almost painfully forthright. Nonetheless, on first meeting, most persons are likely to view him as the very soul of politesse - perhaps actually too deferential and accommodating. Yet behind that beguiling exterior can be found a backbone of cast iron, a mind like a steel trap, and (to extend the metallic figure) a willingness, when the situation demands, to be as hard as nails in dealing with either ideas or …

A Primer On Power Balancing Under The National Labor Relations Act, James B. Zimarowski

University of Michigan Journal of Law Reform

The focus of this Article is twofold. First, it addresses the substantive power control mechanisms established and regulated by the National Labor Relations Board (Board) and the courts. Second, it examines the power balancing methodology embraced by these dispute resolution forums. This Article takes the position that power balancing analysis designed to achieve the NLRA's multidimensional policies is a more fruitful endeavor than the analysis of economic efficiency or a partisan approach subject to political considerations.

Substantiating "Competitive Disadvantage" Claims: A Broad Reading Of Truitt, Brandon David Lawniczak

Michigan Law Review

This Note argues that the broad reading of Truitt is correct. It advocates a broad rule which would require an employer to disclose substantiating financial information to its employees' union whenever it claims that meeting a proposed wage demand would place the firm at a competitive disadvantage. Because the appropriateness of substantiating financial information is factually dependent, this Note will not focus on the type or amount of information that should be disclosed. Instead, it will focus on the legal and policy justifications for a broad disclosure rule. Part I reviews Truitt and discusses the various interpretations given to it …

Finding A "Manifest Imbalance": The Case For A Unified Statistical Test For Voluntary Affirmative Action Under Title Vii, David D. Meyer

Michigan Law Review

This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the …

Changing The Rules Of The Game: Pension Plan Terminations And Early Retirement Benefits, Dana M. Muir

Michigan Law Review

This Note examines whether early retirement benefits are included among the liabilities that an employer must satisfy before that employer can receive a reversion of excess assets. Part I reviews the background of plan terminations and how they affect early retirement benefits. It also discusses the general structure of ERISA. Part II examines the controversy surrounding whether ERISA's definition of "accrued benefits" includes early retirement benefits. ERISA requires that employees receive all of their accrued benefits before the employers receive any reversions. However, the circuits have disagreed as to whether early retirement benefits are accrued benefits and, therefore, covered by …

Clearing The Mixed-Motive Smokescreen: An Approach To Disparate Treatment Under Title Vii, Robert S. Whitman

Michigan Law Review

Part I of this Note describes the indirect-evidence inquiry of McDonnell Douglas and its basis in the policies underlying Title VII. Part II presents the various judicial treatments of cases where direct evidence is presented. These three major approaches reflect varying views of the burdens of proof regarding Title VII causation, and assume that the plaintiff has already shown some palpable level of discrimination. Part III describes Mt. Healthy City School District Board of Education v. Doyle, in which the Supreme Court first devised an approach to mixed motives. Although the Mt. Healthy analysis was developed for first amendment …

Comparison: Japanese And American Plant Closing Laws, Allison Zousmer

Michigan Journal of International Law

This Note analyzes the American and Japanese approaches to plant closings and discusses to what extent the American government can apply the successful Japanese approach to its own labor relations system. The first part examines the specific provisions of the two nations' laws. Second, it illustrates how the divergent social rules and historical backgrounds influence the operation of the plant closing laws in both nations. Part three explores the impact and applicability of Japanese labor policies to American industrial practices. The Note concludes that although the Japanese provide a general model for a labor management system which combines cooperation and …

Dispute Resolution Between The General Motors Corporation And The United Automobile Workers, 1970-1982, Theodore J. St. Antoine

Book Chapters

At the end of 1982 the active membership of the United Automobile Workers stood at 1.25 million workers, belonging to about 1,600 local unions in the United States and Canada. There were 1.14 million Americans and 115,000 Canadians. Women accounted for 170,000 memberships in the two countries. A fifth or more of the total may have been retired members. The UAW ranks as the largest manufacturing union, ahead of the United Steelworkers, but behind three unions representing truckers, school teachers, and retail employees. Substantially all the blue-collar workers in the domestic auto industry have been organized, the vast majority by …

Conflict Resolution In Industrial Relations, Theodore J. St. Antoine

Book Chapters

Only about one-fifth of the American labor force is unionized. With certain important exceptions, therefore, no formal machinery exists to resolve the various disputes that arise between a majority of the country's workers and their employers. The exception, which will not be treated in detail in this study, relate to (1) the right to organize into unions, which has been protected in most of the private sector since 1935 by the National Labor Relations Act and in the public sector since the 1960s by federal law and regulation covering U.S. Government employees and by statutes in about thirty states covering …

Commentary On 'Multiemployer Bargaining Rules': The Limitations Of A Strictly Economic Analysis, Theodore J. St. Antoine

Articles

Labor law bulks large on the docket of the United States Supreme Court. Yet never would I have included Charles D. Bonanno Linen Service, Inc. v. NLRB, dealing with the seemingly mundane issue of an employer's right to withdraw from multiemployer bargaining, in the select company of cases addressing such pulse-quickening subjects as affirmative action, picketing as free speech, and union antitrust liability. Professor Douglas Leslie's elegant and provocative article shows just how wrong I was--or at least just how far imaginative analysis can go toward seeing a world in a grain of sand. I lay no claim to expertise …

At-Will Employment: An Overview, Theodore J. St. Antoine

Articles

The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields

Articles

On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …

New Deal Labor Policy And The American Industrial Economy, Patrick T. Connors

Michigan Law Review

A Review of New Deal Labor Policy and the American Industrial Economy by Stanley Vittoz

Labor Law's Alter Ego Doctrine: The Role Of Employer Motive In Corporate Transformations, Gary Alan Macdonald

Michigan Law Review

This Note examines the differing judicial approaches for reviewing NLRB alter ego findings, and concludes that a fundamental problem with all of the current approaches is the unwarranted consideration of motive in varying degrees. This Note proposes a modified "reasonably foreseeable benefit" standard which does not depend in any degree on the employer's motive for changing its corporate form. Part I discusses the origin and evolution of the alter ego doctrine, including its genesis in Southport Petroleum, the well-settled Crawford Door factors, and the related "successorship" doctrine. Part II analyzes the conflict among the federal courts of appeals over …

The Legal And Economic Implications Of Union-Management Cooperation: The Case Of Gm And The Uaw, Theodore J. St. Antoine

Book Chapters

'Cooperation' sounds too much like 'cooption.' 'Collaboration' recalls the Nazis in occupied Europe. Words are important in labor relations. A word we like is 'jointness.' Another is 'involvement.'

With comments like those, a top United Automobile Workers official recently pinpointed one of the most significant and controversial developments in contemporary industrial life-the substitution of a new union-management attitude of conciliation and togetherness for the parties' traditional adversarial stance.

In this paper I shall briefly trace the rise of participative management, as the process is often called, using the experience of General Motors and the UAW as my prime example. The …

Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine

Articles

proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.

A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine

Articles

In this paper, I shall briefly review the nature and limitations of the theories most frequently invoked by the courts in dealing with wrongful dismissal. I shall then examine the major arguments for and against a general overhaul of the doctrine of employment at will. Lastly, I shall discuss some of the particular questions that will have to be addressed in fashioning a statutory solution.

Improving Handicappers' Civil Rights In Michigan--Preventing Discrimination Through Accommodation, Aldebaran Bouse Enloe

University of Michigan Journal of Law Reform

Part I of this Note explains the development of· the current state of handicappers' civil rights law in Michigan, beginning with legislative initiatives and progressing to administrative and judicial decisions. Part II analyzes traditional antidiscrimination theory and suggests how that theory can be adapted to handicappers. By examining hypothetical situations, Part III exposes the disparity between the current state of the law in Michigan and the proposed theoretical analysis and suggests amendments to the MHCRA to reconcile this disparity.

Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine

Articles

Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …

At-Will Employment And The Handsome American: A Case Study In Law And Social Psychology, Theodore J. St. Antoine

Other Publications

The past decade has seen a genuine revolution in employment law, as some forty American jurisdictions, in square holdings or strong dictum and on one or more diverse theories, have modified the conventional doctrine whereby employers "may dismiss their employees at will...for good cause, for no cause or even for cause morally wrong." In this paper I shall briefly review the theories most frequently invoked by the courts in dealing with wrongful dismissal and indicate their deficiencies as a permanent solution for the problem. Next, I shall summarize the major arguments for and against the doctrine of employment at will. …