Labor and Employment Law Commons^™

Japanese-Style Worker Participation And United States Labor Law, William S. Rutchow

Michigan Journal of International Law

This note will evaluate the current legal status of Japanese-style worker participation programs under the NLRA. First, it analyzes relevant sections of the NLRA and their interpretation by the Board and the courts. Second, the note describes various types of Japanese worker participation programs, and suggests how these programs can be legally implemented under current American labor law. Third, the note considers standards the Supreme Court may adopt to test the legality of worker participation programs in the future. Finally, this note recommends that the Supreme Court uphold those participation programs which are freely chosen by employees.

Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman

University of Michigan Journal of Law Reform

Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should …

Protecting Worker Complaints After Meyers Industries, Barbara J. Fick

Journal Articles

This Article examines the effect of the Meyers Industries decision on the protection available to workers under the NLRA, and discusses other statutory and common-law remedies protecting workers now foreclosed from NLRA protection as a result of Meyers Industries.

Employer Postcertification Polls To Determine Union Support, James D. Dasso

Michigan Law Review

This Note evaluates these competing standards in light of the two major policy objectives of the NLRA: industrial stability and employee free choice. It concludes that the courts of appeals properly apply a less stringent standard. Part I considers employer polling in the larger context of the general law of employer interrogation. This section concludes that the Board's standard for postcertification polling deviates significantly from the general law of employer interrogation as well as the more specific rules established for precertification polling. The remainder of this Note demonstrates that the Board's distinctions between pre- and postcertification polling do not justify …

Evaluating Unions: Labor Economics And The Law, Michael J. Goldberg

Michigan Law Review

A Review ofWhat Do Unions Do? by Richard B. Freeman and James L. Medoff

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) …

Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean

University of Michigan Journal of Law Reform

This Note considers the circumstances under which the NLRA should preempt state law tort suits for discharge in contravention of public policy by employees covered by a collective bargaining agreement, and by at-will employees. Part I discusses the rationale behind the preemption doctrine and outlines the tests the Supreme Court has adopted for determining when the NLRA preempts state laws. Part II argues that the specific rationale behind the Court's preemption tests are inapplicable to the typical public policy wrongful discharge action. Part III identifies the ways in which public policy wrongful discharge actions might infringe on the NLRA. It …

The Supreme Court Takes One Step Forward And The Nlrb Takes One Step Backward: Redefining Constructive Concerted Activities, Christina A. Karcher

Vanderbilt Law Review

The National Labor Relations Act (NLRA or the Act) governs the relationship between employers and employees in the United States. Specifically, section 7 of the Act 3 defines the basic rights of employees and section 8(a)4 defines employer unfair labor practices. Section 8(a)(1) generally proscribes employers from interfering with employees in the exercise of section 7 rights.' Thus,many unfair labor practice cases turn on whether section 7 of the Act protects the employee activity. Section 7 protects "concerted activities" engaged in "for the purpose of collective bargaining or other mutual aid or protection."' Courts frequently struggle to determine whether given …

Participatory Management Under Sections 2(5) And 8(A) (2) Of The National Labor Relations Act, Michigan Law Review

Michigan Law Review

This Note argues that participatory management programs initiated by the employer in nonunion settings should be permissible under the NLRA when they do not restrict the freedom of employees to choose their own bargaining representative. Section I describes the major currents of participatory management theory. Section II explores the restrictive interpretation the National Labor Relations Board (Board) and the courts have traditionally given those sections of the NLRA applicable to participatory management programs. Section III describes the increasingly permissive approach taken by some courts, and to a lesser extent by the Board, in applying the NLRA to participatory management settings. …

Protecting A Union Member's Right To Resign-Resolution Of The Conflict Between Dalmo Victor And Rockford-Beloit, Laura A. Norman

Vanderbilt Law Review

This Recent Development contends that a union restriction on a member's right to resign constitutes an unfair labor practice under section 8(b)(1)(A). Part II of this Recent Development focuses on judicial and Board treatment of the inherent conflict between an employee's section 7 right to refrain from collective activity and a union's authority to regulate internal affairs.

Part III examines three recent decisions addressing a union's authority to restrict a member's right to resign. Finally, part IV suggests that the Supreme Court should apply the Scofield v. NLRB three-part test to union rules restricting resignation. Part IV also asserts that …

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.

The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine

Articles

There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.

The National Labor Relations Act Does Not Preempt A Discharged Permanent Replacement Worker's State Cause Of Action, Stephanie L. Stromire

Vanderbilt Law Review

The purpose of this Recent Development is to examine the issues surrounding discharged permanent replacement workers and to discuss problems confronting state courts that try to implement the Belknap decision. Part II of this Recent Development analyzes the legal background leading up to Belknap. Part III examines the Belknap opinion. Part IV criticizes the decision on three fronts and suggests possible ways of addressing the problems that Belknap presents.

Some Observations About The Standards Applied To Labor Injunction Litigation Under Sections 10(J) And 10(L) Of The National Labor Relations Act, George Schatzki

Indiana Law Journal

No abstract provided.

Values And Assumptions In American Labor Law, Michigan Law Review

Michigan Law Review

A Review of Values and Assumptions in American Labor Law by James B. Atleson

Representational Rights Of Security Guards Under The National Labor Relations Act: The Need For A Balancing Of Interests, Vivian A. Rattay

Fordham Urban Law Journal

The private security industry is experiencing great prosperity. Despite the job opportunities in the industry, however, there are various problems endemic to employment as a security guard. Wages are usually low and risks can be high. While union membership has increased among security guards, collective bargaining has been unsuccessful in alleviating the occupation's problems. Section 9(b)(3) of the National Labor Relations Act specifically prevents the Board from finding a unit appropriate if it includes both guards and non-guards. This section cannot be applied properly without first considering the Act's overall policies and Congress' specific intention in passing this section. Meanwhile, …

Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine

Articles

Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from …

The Bildisco Case And The Congressional Response, James J. White

Articles

Section 365 of the Bankruptcy Reform Act authorizes one in bankruptcy to "assume or reject any executory contract ...of the debtor." The most frequent use of the section arises when a lessee goes into Chapter 11 and decides either to reject its real estate lease with its lessor or, if the lease is at a favorable rental rate, to assume it and assign it to another. A less frequent but more controversial use of section 365 is to reject one's collective bargaining agreement with his employees.

The First Amendment And Nonpicketing Labor Publicity Under Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act, Lee Goldman

Vanderbilt Law Review

This Article attempts to provide the appropriate constitutional analysis of restrictions on nonpicketing labor publicity. Part II describes the relevant statute and illustrative cases, including the Supreme Court's DeBartolo decision, that have raised but not resolved the first amendment issues concerning nonpicketing labor publicity. The cases focus attention on two restrictions the courts have imposed on nonpicketing labor publicity-the "producer-distributor" and the "for the purpose of" requirements. Part III analyzes the protected status of the nonpicketing labor speech by comparing nonpicketing labor publicity with labor picketing and commercial speech-two areas that bear superficial similarity to nonpicketing labor publicity and that …

Secondary Consumer Picketing, Statutory Interpretation And The First Amendment, Michigan Law Review

Michigan Law Review

This Note examines both the statutory and constitutional implications of Safeco and Tree Fruits. It suggests that the confusion surrounding existing Board and court interpretations of section 8(b)(4)(ii)(B) stems from the Supreme Court's failure to assess realistically the impact that consumer picketing has on secondary businesses, as well as the Court's refusal to examine the objectives of unions that resort to secondary picketing.

Individual Rights In The Work Place: The Burger Court And Labor Law, Theodore J. St. Antoine

Book Chapters

The Supreme Court, like other institutions, must play the part that the times demand, often with small regard for the personal predilections of its membership. The Warren Court and the Burger Court, in their respective contributions to the law of union-employer-employee relations, almost reversed the roles they might have been expected to assume. The major accomplishment of the Court in the labor area during the Warren era was a fundamental restructuring of intergovernmental relationships, while the Court's overriding concern throughout the Burger decade of the 1970s and beyond has been the defining of individual rights in the work place.

Fearful Asymmetry: Employee Free Choice And Employer Profitability In First National Maintenance, Richard Litvin

Indiana Law Journal

No abstract provided.

The Polygraph In The Workplace, David E. Nagle

University of Richmond Law Review

The polygraph is an instrument which measures and records certain physiological data of a subject under controlled conditions in an attempt to detect deception. It operates on the theory that an individual exhibits certain predictable physiological characteristics every time that he intentionally tells a lie. While some critics question the reliability and validity of polygraph test results, the use of the polygraph in the workplace reveals that it has gained acceptance by a sizable segment of American business as an effective tool in personnel matters.

Foreword To The Developing Labor Law: The Board, The Courts, And The National Labor Relations Act, Theodore J. St. Antoine

Other Publications

Over a dozen years ago, while I was serving as Secretary of what was then styled the Section of Labor Relations Law, I had a ringside seat at the production of the first edition of THE DEVELOPING LABOR LAW. I remember counting myself thrice blessed. I had no role whatsoever to play in the impossible task Charlie Morris had undertaken. Yet if by some miracle he succeeded, I could join my fellow Council members in taking due credit for our sagacity in sponsoring such an ambitious and imaginative project. And as a teacher and researcher, I would have available a …

Union Representatives As Corporate Directors: The Challenge To The Adversarial Model Of Labor Relations, Robert A. Mccormick

University of Michigan Journal of Law Reform

This Article addresses these questions first by discussing the predominant philosophical approach adopted by unions in their dealings with management, and then describing several ways in which the labor laws reflect this traditional model of employment relations by showing, first, that the influence of unions has been limited to circumscribed categories of business decisions. The Article next examines decisions made by the National Labor Relations Board ("NLRB") and the courts that have carefully sought to separate employer from employee, assuming their interests to be inherently antagonistic. Then follows an evaluation of the NLRB's treatment of deviations from the traditional model …

The Nlrb And The Discharge Of Supervisors: Parker-Robb Brings Questionable Reform, Terry A. Bethel

Articles by Maurer Faculty

No abstract provided.

The Regulation Of Labor Unions, Theodore J. St. Antoine

Articles

This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.

Nlrb Deferral To Arbitration: The Evolution Of The Spielberg Doctrine, Brian S. Taylor

William & Mary Law Review

No abstract provided.

The Labor-Bankruptcy Conflict: Rejection Of A Debtor's Collective Bargaining Agreement, Michigan Law Review

Michigan Law Review

This Note examines the courts' accommodation of the labor and bankruptcy policies when a debtor in possession or trustee seeks to reject a collective bargaining agreement. Part I criticizes a series of recent cases that failed to confront the statutory conflict. If these courts had recognized the conflict between the language of the Bankruptcy Act (now the Code) and the Labor Act, they would have been forced to consider whether the labor and bankruptcy policies actually clashed. Part II finds that in most instances they do not, and argues that requiring the debtor in possession to bargain with the union …

Discharge Of Supervisors For Union-Related Activity: An Examination Of "Pattern Of Conduct" Analysis, Michael L. Dagley

Vanderbilt Law Review

Recent Board decisions such as Brothers Three Cabinets suggest that the Board has frequently contravened congressional intent by extending the protection of the Act to cover supervisors. This Note begins with an examination of the legislative history of the Taft-Hartley Amendments, focusing upon the congressional intent behind the exclusion of supervisory personnel from the protection normally afforded employees under the Act. The Note then traces the historical development of supervisory discharge law and analyzes the development of the "pattern of conduct" standard. Finally, the Note investigates the inherent analytical problems with the "pattern of conduct" standard, examines the inconsistent application …