Labor and Employment Law Commons^™

Multinational Collective Bargaining--Myth Or Reality?

Vanderbilt Journal of Transnational Law

The expansion of the multinational corporation (MNC) has precipitated an international aspect of labor with important consequences for the relationship between employers and employees. Basically, there is an inherent conflict between the objectives of the MNC and the labor union. The MNC endeavors to organize its operations for production where costs are lowest and sales where prices are highest. Given good coordination, the MNC can manage its activities to take advantage of cost differences in labor, capital, tax rates, and market conditions. On the other hand, the labor union seeks to have the MNC return the greatest net benefit to …

Erosion Of Trade Union Power Through Multinational Enterprises?, Hans Gunter

Vanderbilt Journal of Transnational Law

The present article explores the effects of the operations and growth of multinational enterprises (MNEs) on power, role, and legitimation of the trade unions within the national industrial relations systems in the industrialized countries of Western Europe and North America. This study neglects the effects of MNEs on international union cooperation and labor solidarity, which are dealt with in other contributions to this issue. This focus reflects the author's thesis that the main trade union concern and strategy in the countries in question is the integration of MNEs into the existing national industrial relations setting, while the development of border-crossing, …

Title Vii Seniority Remedies In A Time Of Economic Downturn, Donald R. Stacy

Vanderbilt Law Review

This article will attempt to clarify the application of rules against employment discrimination in a period of rising unemployment by first examining the nature of the seniority system and then explaining the theory and mechanism of the conventional remedy. Next a review of recent problems that have tested that remedy will be undertaken, with special attention devoted to the peculiar problems incident to layoffs. Lastly, the article will consider the means by which an employer can minimize the liability that may result from the discriminatory impact of seniority systems.

Enterprise Coverage Under The Fair Labor Standards Act: An Assessment Of The First Generation, Mack A. Player

Vanderbilt Law Review

Some thirteen years have passed since Congress created the concept of "enterprise coverage," a concept unique to social legislation. With the appearance of two recent Supreme Court decisions'and the passage of the Fair Labor Standards Act Amendments of 1974 most of the crucial coverage issues arising under the Fair Labor Standards Act have now been resolved. It is appropriate therefore to review the coverage provisions of this unique and complicated statute, with particular emphasis upon the aspects of "enterprise coverage."

Economic, Medical And Legal Aspects Of The Age Discrimination Laws In Employment, Irving Kovarsky, Dr. Joel Kovarsky

Vanderbilt Law Review

There is speculation that many colleges and universities will be hard hit in the near future by the EEOC because of sex discrimination. It can also be anticipated that the institutions of higher learning will soon be faced with many charges of age discrimination . Because of the limited funds available and the attitudes of some administrators, older employees who find it difficult to move to other jobs are given only small wage increases. This failure to match the cost of living of older employees while younger and more mobile members fare better proportionately may well be a sign of …

Credit Discrimination Against Women: Causes And Solutions, Margaret J. Gates

Vanderbilt Law Review

This article deals both with the laws that cause credit discrimination against women and with those that have been and could be formulated to solve the problem. It first explains the nature and importance of the problem, then discusses the apparent legal and economic bases of the discrimination, and finally explores the adequacy of existing and proposed remedies.

Some Comments On Labor Dispute Settlement Processes, Paul H. Saunders

Vanderbilt Law Review

"A Strikeless Society on America's Horizon?" The question mark at the end of this recent headline

"A Strikeless Society on America's Horizon?" The question mark at the end of this recent headline on a syndicated newspaper column suggests appropriate skepticism about the substance therein, even thouperiod be the fullness of time for the emergence of significant new developments in labor peacemakinggh the column reported that the first eleven months of 1973 had been "the most serene labor climate in a decade with man hours lost at a 10-year low."' Well before the year-end "energy crisis" and attendant economic dislocations, however, …

The Nlrb And National Labor Policy: An Introduction, Edward B. Miller,

Vanderbilt Law Review

Each of the five articles in this symposium deals with a recent development in American labor law. Professor Sanders addresses the interesting question whether strikes have a place in future labor dispute settlement. Mr. Nash discusses at length the important new policy of NLRB deferral to arbitration under Collyer Insulated Wire. Mr. Kilberg then examines the recurring problem of discrimination in American labor organizations, and Mr. Bakaly reconsiders the important case of Burns International Security Services, Inc. v. NLRB and gives us a critical evaluation of that decision. Finally, Professor Rabin presents a comprehensive synthesis of the law relating to …

The Development Of The Collyer Deferral Doctrine, Peter G. Nash, Roland P. Wilder, Jr., Alan Banov

Vanderbilt Law Review

Collyer Insulated Wire' has been one of the most significant decisions by the National Labor Relations Board (Board) in recent years..That case established the principle' that the policies of the National Labor Relations Act (NLRA or Act) could best be effectuated if the Board deferred resolution of disputes based primarily on the meaning and application of a collective-bargaining agreement to the grievance--arbitration provisions of the parties' agreement. While the underpinnings of Collyer are traceable to well-established NLRB and judicial precedents, the decision is nonetheless an important new "developmental step"' that has precipitated far-reaching changes in the Board's approach to processing …

The Regulation Of Transnational Sports Competition: Down From Mount Olympus, James A.R. Nafziger

Vanderbilt Journal of Transnational Law

This article seeks first to identify the behavioral and organizational characteristics, and to clarify the shared goals of transnational sports competition. Against this background, the article will examine the formal characteristics of decision-making within the Olympic Movement, whose quadrennial Games provide the most highly developed for a for these events. Finally, four case studies are used to evaluate the Olympic organization's performance--that is, the efficacy of relevant policies, rules and procedures that are available to decision-makers to achieve the shared goals of the organization. Several modest proposals are advanced. Aside from these, however, a comprehensive prescription of alternative policies, rules …

Survival Of The Bargaining Agreement: The Effect Of Burns, Charles G. Bakaly, Jr., James S. Bryan

Vanderbilt Law Review

The purpose of this article is to examine some of the implications of the Burns decision for management officials contemplating a takeover and more specifically to consider the extent to which a successor employer may be bound by the provisions of its predecessor's bargaining agreement. Although the article focuses on the Burns case itself, some consideration also is given to the Court's earlier decision in John Wiley & Sons, Inc. v. Livingston and to the question whether Wiley provides a means of avoiding the mandates of Burns.

Current Civil Rights Problems In The Collective Bargaining Process: The Bethlehem & At&T Experiences, William J. Kilberg

Vanderbilt Law Review

This article explores the development, theory, and design of the government's Contract Compliance Program and the other statutory means of pursuing equal employment opportunity. Part I is a brief explanation of the Contract Compliance Program under Executive Order 11,246. Part II presents a discussion of the legal underpinnings of the affirmative action concept. Part III deals with the decision In the Matter of Bethlehem Steel Corporation, a landmark administrative hearing under procedures established by the Office of Federal Contract Compliance, and the American Telephone & Telegraph Company Memorandum of Agreement and Consent Decree,' which has been described as "the largest …

Limitations On Employer Independent Action, Robert J. Rabin

Vanderbilt Law Review

An important change appears to be taking place in measuring the limitations upon an employer's independent right to run his business. Where this question was formerly tested under the National Labor Relations Act,' which defines the scope of the duty to bargain, recent developments suggest that the scope of independent employer action' henceforth will be determined through the arbitration process.This is a salutary development, since the question of the scope of independent employer action is a complicated one and ought to be resolved by application of the surest kinds of guidelines. A carefully drafted collective bargaining agreement can spell out …

Recent Cases, Author Unidentified

Vanderbilt Law Review

Labor Law--Authorization Cards--Court Suggests Board Requirement That Employer Petition for Election to Demonstrate Good Faith Upon Rejection of Authorization Cards --

Plaintiff unions' sought a National Labor Relations Board (NLRB) bargaining order alleging a violation of section 8(a)(5) of the National Labor Relations Act (NLRA) based on defendant-employers' refusal to recognize the unions when presented with authorization cards signed by a majority of the employees.' Plaintiffs contended that the language and history of sections 8(a) (5) and 9(a)" of the NLRA and interpretative court decisions establish an employer's duty to bargain whenever the union representative presents "convincing evidence of majority …

Some Comments On Labor Dispute Settlement Processes, Paul H. Sanders

Vanderbilt Law Review

The question mark at the end of this recent headline on a syndi- cated newspaper column suggests appropriate skepticism about the substance therein, even though the column reported that the first eleven months of 1973 had been "the most serene labor climate in a decade with manhours lost at a 10-year low."' Well before the year-end "energy crisis" and attendant economic dislocations, how- ever, questions such as the following, far from being in the realm of idle conjecture, were becoming increasingly pertinent: Will the travail of this gloomy period be the fullness of time for the emer- gence of significant …

Recent Cases, Vanderbilt Law Review

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Recent Development: Comment, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Labor Law--The National Labor Relations Board Redefines And Restricts The Scope Of Managerial Employee Classification, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Preservation of internal union solidarity through the exercise of disciplinary power over members has been recognized as an essential prerequisite to maintenance of a strong bargaining position vis-a-vis management.' Therefore, courts have afforded unions relative freedom to discipline members who violate rules of internal union government. Somewhat different principles of union discipline, however, are applied to members who occupy supervisory positions with the employer.' The employee-member is loyal primarily to his union, but the loyalty of the supervisor-member ultimately is two-dimensional:' he is loyal to the union by virtue of his union membership and to the employer by virtue of …

Deference Of Jurisdiction By The National Labor Relations Board And The Arbitration Clause, Alan C. Rosser

Vanderbilt Law Review

In 1935, when the Wagner Act was passed, arbitration was not used extensively as a method of settling labor disputes. Most parties to labor disputes relied on the National Labor Relations Board (NLRB) or the courts as means of settlement, rather than binding themselves to the decision of an arbitrator.' Gradually, however, with the increased avail-ability of more skilled arbitrators and the acute awareness of the costs of outside solution, arbitration has become a highly popular method of settling labor disputes. It is estimated that 94 percent of all collective bargaining agreements now provide for arbitration of grievances not settled …

The "Polaroid Experiment" In South Africa--A Progress Report, Beryl Unterhalter

Vanderbilt Journal of Transnational Law

The business activities of the Polaroid Company in South Africa came under attack in October of 1970, when a small group of Polaroid workers who called themselves the Polaroid Revolutionary Workers' Movement received wide publicity for their protests concerning an alleged anomaly in the company's annual report. According to the Polaroid Revolutionary Workers' Movement, the report, while alluding to the company's role in combating racism and in providing equal opportunities for all employees, described its expanding field of operations and increased profits in South Africa, a country in which racial discrimination is widespread. The Movement further pointed out that part …

Successorship And Collective Bargaining Agreements In Business Combinations And Acquisitions, Richard G. Vernon

Vanderbilt Law Review

Mergers, consolidations, and purchases of assets are important and frequent business transactions in our economy' and involve a great deal of planning and negotiating by the enterprises concerned. Until recently,the rights of employees and their representative labor unions generally were not considered to be a factor in these plans. In 1964, however, the Supreme Court, in John Wiley & Sons, Inc. v. Livingston, held that common law privity-of-contract principles, which lower courts traditionally had invoked to preclude survival of employees' rights, did not necessarily apply to collective bargaining agreements. Wiley was a nonunion corporation that had merged with a smaller …

Admiralty--Choice Of Law--Ship Owner With Substantial Business Contacts In The United States Is An Employer Within Meaning Of Jones Act, Journal Staff

Vanderbilt Journal of Transnational Law

Plaintiff, a Greek seaman, sought relief in federal court under the Jones Act for injuries suffered aboard ship while docked in a United States seaport. Defendants, corporations, controlled by a permanent resident alien of the United States, contended the Court was without jurisdiction since they were not employers within the meaning of the Jones Act and because the contract of employment with plaintiff provided for the application of Greek law. The District Court found for the plaintiff. The Fifth Circuit affirmed.

On certiorari to the United States Supreme Court, held, affirmed. A shipowner with substantial business contacts in the United …

Workmen's Compensation At Sea, Charles D. Evens

Vanderbilt Journal of Transnational Law

At the present time there are three possible remedies available to seamen who are injured in the course of their employment. In order to maintain any of these actions, the injured party must of course qualify as a seaman. The traditional tests used to determine whether a maritime worker is a seaman are as follows: 1) the vessel must be in navigation, 2) the worker must have a more or less permanent connection with the vessel, and 3) the worker must be aboard the vessel primarily to aid in navigation. These standards have been somewhat modified by Offshore Company v. …

Boys Markets And National Labor Policy, Stephen C. Vladeck

Vanderbilt Law Review

In 1962, the Supreme Court held in Sinclair Refining Co. v.Atkinson' that section 4 of the Norris-LaGuardia Act barred federal courts from enjoining union violations of no-strike clauses in collective bargaining agreements. Since Sinclair, violations of this type have been the subject of considerable discussion, but have resulted in little litigation. The number of man days lost as a result of no-strike clause violations is minimal and the frequency of these violations is so small that it is difficult to imagine that they have any great influence on the course of industrial relations. Nevertheless, lovers of symmetry have argued that …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Personal Injury--Intent to Injure Is Not a Prerequisite to Recovery for Police Abuse Under Section 1983

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Constitutional Law--Abortion--Statute Prohibiting Abortion of Unquickened Fetus Violates Mother's Constitutional Right of Privacy

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Constitutional Law--Obscenity--State Statute Allowing Injunction Against Dissemination of Allegedly Obscene Material Prior to Adversary Hearing Not Violative of First Amendment

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Constitutional Law--Right of Privacy--State Statute Requiring Disclosure of All Substantial Financial Interests of Public Officials is Overbroad and an Unconstitutional Invasion of Privacy

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Constitutional Law--Sixth Amendment--Admission of Prior Inconsistent Statements as Substantive Evidence Does Not Violate Right of Confrontation

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Criminal Procedure--Search and Seizure--Warrantless Search of …

Book Notes, Law Review Staff

Vanderbilt Law Review

Debtors in Court: The Consumption of Government Services

By Herbert Jacobs. Chicago: American Politics Research Series, Rand McNally & Co., 1969, Pp. xv, 244.

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The Infamous of Nuremberg

By Col. Burton C. Andrus

London: Leslie Frewin, 1969. Pp. 211. $4.00

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Labor and the Legal Process

By Harry H. Wellington

NewHaven: Yale University Press, 1968. Pp. viii, 409. $10.00.

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Obscenity and Public Morality

By Harry M. Clor

Chicago:University of Chicago Press, 1969. Pp. xii, 315. $9.50.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust-Informal Price--Information Exchanges Held Violative of Sherman Act

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Conflict of Laws--"Contacts" Doctrine Applied to Supplement Federal Maritime Law in Diversity Action

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Constitutional Law--Fourteenth Amendment Prohibits Extended Postponement of Parole Consideration for State Inmate When Made on the Basis of an Unreliable Factual Determination

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Labor Law--Collective Bargaining-Employer May Not Enforce Collective Bargaining Agreement Provision Embodying Union Waiver of Employee's Right to Solicit Against That Union

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Labor Law-Remedies--NLRB May Order Retroactive Payment of Fringe Benefits Where Employer Wrongfully Refuses to Sign Collective Bargaining Agreement

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Religious Societies--First Amendment Prohibits Civil Courts From Determining Doctrinal Questions in Resolving Church …

School Board Authority And The Right Of Public School Teachers To Negotiate--A Legal Analysis, Reynolds C. Seitz

Vanderbilt Law Review

Realistically, the hurdle erected at one time by some courts, and legislative bodies to prevent public employees from joining employee organizations, including unions, no longer exists. Today it seems certain that the first amendment, through its protection of freedom to assemble, insures the right to join an employee organization. The issue with which this article deals still remains: whether there is an infringement on the legislative power of the school board if it is required to negotiate with teachers through representatives of their choosing.

The issue with which this article deals still remains: whether there is an infringement on the …

Vertical Conflicts: The Role Of State Law In Suits Under Section 301, Edward J. Hardin, Joseph C. Miller

Vanderbilt Law Review

One of the most difficult practical problems posed by our federal system arises when the judicial institutions of one law-making authority are enlisted to enforce and protect rights created by another. While the United States Supreme Court through its appellate jurisdiction is the institution charged with the final responsibility for overseeing a satisfactory solution to this problem, and while the Court can indicate how competing interests are to be harmonized in specific controversies and provide some principles which may be useful in different contexts, it cannot review every state 301 suit. In the long run, success depends upon the earnest …