Labor and Employment Law Commons^™

Modern Discrimination Theory And The National Labor Relations Act, Rebecca Hanner White

William & Mary Law Review

No abstract provided.

The Failure Of Gissel Bargaining Orders, Terry A. Bethel, Catherine Melfi

Articles by Maurer Faculty

No abstract provided.

Of Labor Law And Dissonance Colloquy, James J. Brudney

Faculty Scholarship

What accounts for the dissonance between the meaning of our national labor law, as decreed primarily by federal judges, and the social and economic realities of workplace relationships addressed by that law? In his darkly eloquent commentary, Professor Getman acknowledges that such dissonance is not unique to the law governing labor-management relations. Yet the courts' often mistrustful approach toward employee rights under the National Labor Relations Act ( NLRA" or "Act") has had a special impact. The NLRA emerged at a time of social turbulence, and was based on a recognized need to redress the fundamental inequality of bargaining power …

Organized Labor As Shareholder Activist: Building Coalitions To Promote Worker Capitalism, Marleen A. O'Connor

University of Richmond Law Review

In the past, the traditional question posed by unions was: "which side are you on?"--presenting a clear choice between labor and capital. As membership and bargaining power fall, however, unions are asserting their rights as shareholders to influence corporate decision making outside the conventional labor law framework. Because the National Labor Relations Act does not adequately protect workers' rights, unions have devised innovative methods as shareholders to exercise unprecedented power over managers. In only a few years, labor-shareholders have become highly visible players in the institutional shareholder movement. As a group, labor-shareholders submit one of the largest numbers of shareholder …

Beyond Bread And Butter: The Political Paradigm Of Management Training, David J.B. Froiland

Indiana Law Journal

No abstract provided.

Mandatory Arbitration Of Individual Employment Rights: The Yellow Dog Contract Of The 1990s, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

The Ada And The Nlra: Balancing Individual And Collective Rights, Robert A. Dubault

Indiana Law Journal

No abstract provided.

Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker

Michigan Law Review

This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns …

Reflections On Group Action And The Law Of The Workplace Symposium: The Changing Workplace, James J. Brudney

Faculty Scholarship

Sixty years after the National Labor Relations Act (NLRA) was passed, collective action appears moribund. Current analysis burying and praising the NLRA has focused primarily on the changed economic realities of the product and labor markets. Yet there is another story to be told involving a comparable transformation of the legal culture. Relying in part on empirical analysis of court decisions, I argue that changes in federal workplace law over the past thirty years have undermined the concept of group action-in particular collective bargaining-as a preferred means of regulating the employment relationship. These changes are the product of leading institutional …

Famous Victory: Collective Bargaining Protections And The Statutory Aging Process, A , James J. Brudney

Faculty Scholarship

When it enacted the National Labor Relations Act in 1935, Congress gave statutory recognition to collectively bargained terms and conditions of employment. In recent decades, the number of cases in which the Supreme Court has interpreted the NLRA has declined, leaving the Act's interpretation and enforcement primarily to the National Labor Relations Board and the federal courts of appeals. In this Article, Professor Brudney presents the results of his study of 1,224 NLRB adjudications and their fate upon federal court review, from 1986 to 1993. Professor Brudney analyzes the reversal and affirmance data, and identifies areas of general Board-court agreement …

Rethinking Financial Information Disclosure Under The National Labor Relations Act, Brent Robbins

Vanderbilt Law Review

The National Labor Relations Act's ("NLRA") central purpose is to reduce industrial strife and stimulate economic growth by promoting collective bargaining between employers and unions.' The 1947 amendments to the Act make clear that collective bargaining must be conducted in good faith. Under the Act, as interpreted by the National Labor Relations Board ("NLRB") and the courts, labor and management must bargain collectively in good faith over the "mandatory" subjects of "wages, hours, and other terms and conditions of employment." From its earliest days, the NLRB has interpreted the duty to bargain collectively as requiring companies to bargain collectively with …

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

Fair Notice: Assuring Victims Of Unfair Labor Practices That Their Rights Will Be Respected, John W. Teeter Jr

Faculty Articles

Employers should always be required to read notices aloud to their workers as a standard remedy for violations of the National Labor Relations Act. Such a remedy would be a small but essential step in redressing the harm inflicted on workers by an employer’s unfair labor practices. Such notices are necessary for a series of reasons. First, millions of Americans suffer from reading deficiencies and cannot comprehend a printed notice. Second, even literate employees may not happen to observe the printed notice at the workplace. Third, a mere piece of paper is unlikely to reassure victims of unfair labor practices …

Between The Buttons: Employer Distribution Of Antiunion Insignia, John W. Teeter Jr

Faculty Articles

Employers should be forbidden from offering antiunion insignia to their workers. This is not contrary to current labor rules that allow employers and their supervisors to wear insignia. The workers' rights would still be safeguarded because employees would remain free to buy or create their own antiunion insignia. The goal is to protect the right of workers to debate, campaign, and vote on unionization with no harm to legitimate needs for self expression.

Generally, workers are entitled to wear campaign insignia regardless of whether it supports or decries unionization. In this manner, workers can openly proclaim their beliefs and seek …

Meeting The Demands Of Workers Into The Twenty-First Century: The Future Of Labor And Employment Law, Kenneth G. Dau-Schmidt

Indiana Law Journal

No abstract provided.

The Americans With Disabilities Act And Collective Bargaining Agreements: Reasonable Accommodations Or Irreconcilable Conflicts?, Mary K. O'Melveny

Kentucky Law Journal

No abstract provided.

The Statutory And Constitutional Limits Of Using Protected Speech As Evidence Of Unlawful Motive Under The National Labor Relations Act, Rebecca White

Scholarly Works

A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer's vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying …

The Nlrb's Deferral Policy And Union Reform: A Union Perspective, Leonard Page, Daniel W. Sherrick

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 …

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 …

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

Union Representation Election Reform: Equal Access And The Excelsior Rule, Randall J. White

Indiana Law Journal

No abstract provided.

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 …

Drafting Wagner's Act: Leon Keyserling And The Precommittee Drafts Of The Labor Disputes Act And The National Labor Relations Act, Kenneth M. Casebeer

Articles

This Article analyzes the development of the National Labor Relations Act through the drafts of the original Act. The author traces the evolution of Senator Wagner's ideas through numerous policy and political battles to the passage of the NLRA in 1935. The author explores the development of the drafts and the historical context surrounding their creation to reveal the social theory of the drafters and illuminate previously unexplored undercurrents in the text of the Act itself. The author, through this novel approach to the NLRA, sets up a new way to view the 1935 Act, and evaluates subsequent amendments and …

The Future Of Labor-Management Cooperative Efforts Under Section 8(1)(2) Of The National Labor Relations Actfff, David H. Brody

Vanderbilt Law Review

Much of the current debate concerning labor-management cooperative efforts centers on section 8(a)(2) of the National Labor Relations Act (the Act), which makes dominating, interfering with, or contributing to the formation or administration of any labor organization an unfair labor practice. On its face, this section may inhibit cooperative efforts through a prohibition of management support for employee organizations. The effect of section 8(a)(2), however, need not be so restrictive because of the Act's underlying concern for the effectuation of employee freedom of choice. A concern for employee free choice provides a means for permitting positive cooperative efforts, consistent with …

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 …

Unions And Urinalysis, Deborah A. Schmedemann

Faculty Scholarship

Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for …

Judicial Enforcement Of Nlrb Bargaining Orders: What Influences The Courts?, Terry A. Bethel, Catherine A. Melfi

Articles by Maurer Faculty

No abstract provided.

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 …

Divided We Stand: Concerted Activity And The Maturing Of The Nlra, B. Glenn George

Faculty Publications

No abstract provided.