Labor and Employment Law Commons^™

Labor Law-Two Views Of A Labor Relations Consultant's Duty To Report Under Section 203 Of The Lmrda, Michigan Law Review

Michigan Law Review

Title II of the Labor-Management Reporting and Disclosure Act (LMRDA) requires unions, union officials, union employees, employers and "labor relations consultants" to file various reports with the Secretary of Labor. The purpose of these provisions is to discourage corrupt, though not necessarily illegal, labor management activities by disclosing them for public scrutiny. Section 203(b) of the Act, which is aimed at the "labor relations consultant," states that "every person" who agrees with an employer to "directly or indirectly" (1) "persuade employees" regarding their right to organize and bargain collectively or (2) inform the employer of certain union-employee activities must file …

The Labor Board And The Arbitrators, Theodore J. St. Antoine

Other Publications

The Labor Relations Law Section of the State Bar of Michigan held its second program of the current year, from May 27 through May 30, 1967 on Mackinaw Island, on a variety of subject matters with excellent presentations by the resource people conducting each of the various symposiums. Those who were unable to be present in this joint venture of pleasure and legal presentations will be able to at least vicariously "gather in the sheaves" of the legal wisdom disseminated during the program by the report contained herein. For those who were fortunate enough to attend plus those who didn't, …

Collective Bargaining And The Antitrust Laws, Theodore J. St. Antoine

Other Publications

A central aim of the antitrust laws is the promotion of competition. A central aim of collective bargaining is the elimination of competition-according to classical trade union theory, the elimination of wage competition among all employees doing the same job in the same industry. Given these disparate aims, the antitrust laws and collective bargaining will almost inevitably tend to clash. To harmonize them, the type of competition which the law is intended to foster must be carefully distinguished from the type of competition which union-employer bargaining can properly displace. The Supreme Court's last major effort to draw the demarcation line …

Absolute Preferences In Municipal Civil Service Appointments: The Unresolved Conflict With Municipal Discretion, Thomas E. Swaney

Michigan Law Review

State legislatures have enacted civil service laws applicable to municipalities in order to ensure that local governments provide optimum services to their citizens. To achieve this objective, the laws restrict eligibility for public service positions to persons of proven qualifications. Although these statutes provide general guidelines for municipal employment procedures, final decisions as to the actual hiring of employees are generally left to the municipalities. This practice recognizes the advantages of permitting local officials who are intimately acquainted with the demands of government work in their particular localities to select employees at their own discretion. However, it has been deemed …

The Unanswered Questions Of American Ship, Michigan Law Review

Michigan Law Review

The National Labor Relations Act does not specifically prohibit an employer from temporarily locking out his employees during collective bargaining negotiations. For many years, nevertheless, only lockouts used solely to avoid substantial economic loss as a result of union action-so-called "defensive" lockouts-were allowed. However, the emphasis which Congress placed on equality of bargaining pressure in enacting the Taft-Hartley amendments to the NLRA has caused a change in this judicial attitude. Although a few courts have gone so far as to suggest that the lockout should be as freely available as the strike, the United States Supreme Court has been more …

Labor Law-State Court Jurisdiction Over Employee's Damage Action Against Union For Failure To Process Fully Grievance Is Not Pre-Empted By The Nlrb-Sipes V. Vaca, Michigan Law Review

Michigan Law Review

Plaintiff, discharged by his employer on the ground that he was no longer physically able to work, enlisted the aid of his union to contest the dismissal. Under the provisions of the collective bargaining agreement between the union and the employer, the union was to seek redress of employee complaints by means of a five step grievance procedure, with arbitration as the final step. The union processed plaintiff's grievance without success through the first four steps of the procedure, but refused to take the issue to the arbitral level. Plaintiff brought suit against the union in a Missouri county circuit …

Labor Law-Nrab Awards In Work Assignment Disputes Are Unenforceable Unless The Board Has Considered The Interest Of The Competing Union-Order Of R.R. Telegraphers V. Union Pac. R.R., Michigan Law Review

Michigan Law Review

The Order of Railroad Telegraphers filed a complaint with the National Railroad Adjustment Board (NRAB), alleging that the Union Pacific Railroad had violated its collective bargaining agreement with the union by assigning work covered by that agreement to members of the Brotherhood of Railway and Steamship Clerks. The Telegraphers sought damages in the form of back pay, but did not demand job reinstatement. Notice of the Telegrapher's claim was served on the Clerks who declined to appear before the Board since they viewed the dispute as one which involved only an interpretation of the contract between the Telegraphers and the …

Labor Law--Nlrb Refuses To Apply Related Work Doctrine To Construction Site Picketing--Building And Construction Trades Council (Markwell & Hartz), Michigan Law Review

Michigan Law Review

The New Orleans Building and Construction Trades Council, an association of craft unions, was engaged in a labor dispute with Markwell & Hartz, the general contractor on a construction project. In support of its dispute with the general contractor (primary employer), the Council picketed all gates leading to the job site, although some gates had been specifically reserved for the exclusive use of those subcontractors (secondary employers) with whom the union had no dispute. Employees of the subcontractors refused to cross the picket line to perform work pursuant to their employers' contracts with the general contractor. Markwell & Hartz filed …

"Runaway Shop" Must Bargain With Union Upon Request At New Site Whether Or Not Union Reacquires Its Majority Status--Garwin Corporation, Michigan Law Review

Michigan Law Review

The sole stockholder of the Garwin Corporation, a New York apparel manufacturer, caused a similar manufacturing company to be incorporated in Florida. The Garwin Corporation then terminated its New York operations, discharged its employees, and resumed operations at the Florida location. The International Ladies' Garment Workers' Union, which represented a majority of the discharged employees, filed a complaint with the National Labor Relations Board, alleging that the Garwin Corporation had violated sections 8(a)(l), (3) and (5) of the National Labor Relations Act because the relocation was motivated by anti-union animus and because the discharged employees were deprived of their rights …

Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel

Articles

In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggest that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine this. …

Social Security Disability Determinations: The Burden Of Proof On Appeal, Michigan Law Review

Michigan Law Review

In 1956, the Social Security Act was amended to provide monthly disability insurance benefits to qualifying individuals under a uniform national program administered by the Secretary of Health, Education, and Welfare. Under this program, a claimant is entitled to disability benefits if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to be of long continued and indefinite duration." This definition and its accompanying statutory standards were purposely made conservative in order to minimize the problems inherent in initiating the program; it was contemplated that …

Boulwareism And Good Faith Collective Bargaining, Michigan Law Review

Michigan Law Review

The obligation to bargain collectively in good faith is imposed on both the employer and the representative of his employees by the National Labor Relations Act. Generally, some form of ask-and-bid bargaining is used to satisfy this statutory obligation. Since 1947, however, the General Electric Company has developed and used a bargaining technique known as Boulwareism, which, on its face, seems capable of achieving the same results as the ask-and-bid method, but in a more efficient manner. Nevertheless, the National Labor Relations Board recently found Boulwareism to be in violation of the duty to bargain in good faith.

Admissibility Of Parol Evidence In Judicial Determinations Of Arbitrability, Michigan Law Review

Michigan Law Review

Whether parol evidence of bargaining history is admissible in a court's determination of arbitrability is a problem arising out of the United States Supreme Court's 1960 decisions in the Steelworkers Trilogy. The Court there emphasized the national labor policy favoring arbitration as the best means of resolving labor disputes. Citing its earlier Lincoln Mills decision interpreting section 301(a) of the Labor Management Relations Act, the Court stated that, in enacting section 301, Congress assigned the question of the jurisdiction of an arbitrator to the courts in the absence of an agreement by the parties specifically assigning the question to …

The Report Of The President's Cabinet Committee On Private Pension Plan Regulation: An Appraisal, Thomas B. Ridgley

Michigan Law Review

The growth of private employee pension plans in the American economy is astonishing. From 1953 to the end of 1964, the accumulation of assets of private pension funds has grown from 16.9 billion dollars to 75 billion dollars, with a projected accumulation of 225 billion dollars by 1980. At present, private retirement plans cover approximately 25 million workers, which is one-half of all employees in private non-farm establishments. Moreover, unions increasingly stress both the creation of pension plans where none exist and increased benefits from current plans. Thus, during the recent United Auto Workers negotiations the union sought and received …

Unfair Representation As An Unfair Labor Practice, Michigan Law Review

Michigan Law Review

In its 1962 Miranda Fuel Co. decision, the National Labor Relations Board formulated a novel doctrine whereby it acquired jurisdiction over unfair representation complaints filed by union members in good standing on the theory that a union which fails to represent all of its members fairly commits unfair labor practices in violation of sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act. Formerly, unfair representation complaints filed by union members had been cognizable only by the courts, since unfair representation was not considered an unfair labor practice and, consequently, was outside the jurisdiction of the NLRB.

Withholding Taxes On Wage Dividends For Pre-Bankruptcy Wages Assigned To Fourth Priority In Distribution Of Bankrupt's Estate-In Re Connecticut Motor Lines, Inc., Michigan Law Review

Michigan Law Review

Among claims against a bankrupt estate were those for unpaid wages and vacation pay earned within three months of the bankruptcy of the employer. The referee ordered distribution of the amount of the claims, assigning them second priority, but he refused to authorize deduction of income withholding tax and social security taxes from these payments as requested by the Government. The district court reversed, holding the trustee in bankruptcy liable for the taxes as a first priority administrative expense. On appeal, held, reversed. Taxes based on wage claims accruing prior to bankruptcy but paid during bankruptcy are section 64a(4) …

The Supreme Court And Labor Dispute Arbitration: The Emerging Federal Law, Russell A. Smith, Dallas L. Jones

Michigan Law Review

Within the past few years, the United States Supreme Court has handed down a number of decisions of great significance to the labor dispute arbitration process. Some have been concerned with problems of arbitrability or arbitral authority; others with the availability and exclusivity of the arbitration process vis-a-vis alternative legal remedies for breach of the labor agreement; and still others with the effect of a breach of obligation by one party to the labor agreement upon the obligations of the other party. We propose in this article to analyze these decisions, to attempt to categorize the different kinds of challenges …

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 …

Statement By Employer To His Employees Concerning Cause Of Discharge Of Fellow Employee Is Not Privileged-Sias V. General Motors Corp., Michigan Law Review

Michigan Law Review

Plaintiff, employed for ten years by defendant as a plant guard and held in high repute by the community, was summarily discharged for allegedly taking company property. The property in question was an automobile generator that plaintiff claimed to believe was one he had arranged to purchase from the company as salvage for use in his own car. Plaintiff removed the generator in an open manner, explaining to other employees what he was doing. The generator was found in the guard booth where plaintiff had left it with another guard while he went to the plant medical department for treatment …

Subcontracting Clauses And Section 8(E) Of The National Labor Relations Act, David M. Ebel

Michigan Law Review

The addition of section 8(e) to the National Labor Relations Act in 1959 jeopardized the validity of all subcontracting clauses-provisions in employer-union collective bargaining agreements which in some manner eliminate or condition the employer's right to contract out work or which penalize the exercise of that right. Although it was not the congressional intent that section 8(e) indiscriminately abolish all subcontracting clauses, this is the literal impact of the language used in the section.

Management And Labor Appraisals And Criticisms Of The Arbitration Process: A Report With Comments, Dallas L. Jones, Russell A. Smith

Michigan Law Review

Although arbitration as a means of resolving disputes arising under collective bargaining agreements has received widespread acceptance in this country/ in recent years there has been some evidence of increasing criticism of the process. As part of a research project dealing with the impact of the 1960 Supreme Court decisions in the Warrior & Gulf "trilogy" and the 1962 Sinclair "trilogy," we decided to ascertain how parties are appraising the arbitration process. We report here the more significant results of this survey along with our evaluation of the criticisms and suggestions which were received.

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, …

The Worker And Three Phases Of Unionism: Administrative And Judicial Control Of The Worker-Union Relationship, Alfred W. Blumrosen

Michigan Law Review

This article will examine the extent to which, and the methods by which, individual rights are protected in each of these three phases of union activity. We will see that the employee is well protected in his right to oppose political action of the union and has considerable legal protection for his rights to engage in internal union political struggles, but the employee has received little protection for his economic interests in collective bargaining between unions and employers. A recent decision by the NLRB, which will be examined in some detail, suggests that additional protection for individual economic rights in …

Reflections On The Nature Of Labor Arbitration, R. W. Fleming

Michigan Law Review

The use of arbitration as a means of settling labor-management disputes has increased steadily in the past twenty years. Recent decisions of the Supreme Court have underlined the importance of the process. The natural tendency is to compare labor arbitration with the court system as an adjudicatory process. There are, however, significant differences between the two, and this needs to be better understood.

An intelligent evaluation of the differences, and of the labor arbitration tribunal in general, can be made only after an exploration of its origin and history, and after some consideration of the kinds of cases which are …

Advocating The Rights Of The Injured, Benjamin Marcus

Michigan Law Review

When workmen's compensation was first introduced a half century ago, it was felt necessary to cushion the shock in a number of ways. One of these was the idea of a bargain, an exchange, in which the worker, to obtain the new remedy based on liability without fault, gave up his existing remedy, the right to a tort action against his employer for a negligent injury. It is time that the terms of that bargain be re-examined.

Labor Law--Federal Pre-Emption--Scope Of Arguable Nlrb Jurisdiction, Martin B. Dickinson Jr., S.Ed.

Michigan Law Review

Picketing by petitioner interrupted the unloading of respondent's cargo vessels. A state court granted respondent's request for a permanent injunction against further picketing, despite petitioner's contention that, since it was a "labor organization" within the meaning of section S(b) of the Labor Management Relations Act and respondent had alleged an unfair labor practice, the National Labor Relations Board had exclusive jurisdiction of the dispute. The Supreme Court of Minnesota affirmed the granting of injunctive relief. On certiorari to the United States Supreme Court, held, reversed, one Justice dissenting. Since an unfair labor practice has been alleged and petitioner is …

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 …

Labor Law-Collective Bargaining Agreements-Implied Limitation On Management's Right To Subcontract, A. Paul Victor

Michigan Law Review

During the existence of a collective bargaining agreement which included both exclusive recognition and union shop clauses but did not include a management prerogatives clause, defendant employer, without the consent of the plaintiff union, contracted out janitorial work which had previously been performed by three of its employees. Subsequently, these employees were laid off and the plaintiff's protest, though in compliance with all grievance procedures, was unsuccessful. Thereupon, the plaintiff sought declaratory judgment relief under section 301 of the Labor-Management Relations Act, alleging that the defendant had no right to subcontract work customarily performed on its premises by its employees …

Administrative Procedure-Enforcement Of Nlrb Orders-Power Of Cour Of Appeals To Modify Scope Of Consent Order, Lee D. Powar

Michigan Law Review

A complaint issued by the National Labor Relations Board charged respondents, an employer and two labor unions, with illegally maintaining a closed or preferential shop. Following the issuance of the complaint, a settlement agreement was reached in which respondents stipulated to waive a hearing and all other proceedings to which they might be entitled under the National Labor Relations Act or under rules and regulations of the Board. Respondents also consented to the entry of a broad cease-and-desist order and a subsequent decree in which they were ordered to refrain from unlawful preferential hiring arrangements with each other, or with …

Labor Law-Unemployment Compensation-Applicable Disqualification Provision Where Claimant Is Discharged For Unauthorized Walkout, L. R. Bishop

Michigan Law Review

Plaintiff was discharged by his employer for participating in a walkout which was not authorized by the union of which he was a member and which was in violation of the applicable collective bargaining agreement. In passing upon his subsequent application for unemployment compensation, the Appeal Board ruled that he was disqualified from receiving benefits for the duration of his unemployment because his actions had constituted "misconduct" under section 29(1)(a)(2) of the Michigan Employment Security Act. The circuit court reversed, holding that the "misconduct" provision did not apply and that plaintiffs acts were properly cognizable under section 29(1)(b) which provides …