Labor and Employment Law Commons^™

Protecting The Expectations Of Permanent Replacements: When May An Employer Limit The Seniority Rights Of Striking Employees?, Sean J. O'Sullivan

Hofstra Labor & Employment Law Journal

No abstract provided.

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 …

What To Do When Employers Discriminate Against Unions (Part 2), Roger C. Hartley, Florian Bartosic

Scholarly Articles

No abstract provided.

Annual Survey Of Virginia Law: Employment Law, Patricia K. Epps

University of Richmond Law Review

This survey covers legislative and judicial developments in Virginia employment law between June 1986 and June 1987. It does not address the workers' compensation and unemployment compensation statutes but focuses on state labor and fair employment laws and the employment-at-will doctrine.

Common Law Remedies Of Employees Injured By Employer Use Of Polygraph Testing, Deborah Weimer

University of Richmond Law Review

Defamation and invasion of privacy occur routinely during the administration of polygraph examinations in the workplace. Previously, employers have been shielded from liability for defamation on the grounds that publications in this context are protected by a qualified privilege. Until recently, the general perception was that employees had no substantial expectation of privacy in the workplace.

Foreign Farm Workers In The U.S.: The Impact Of The Immigration Reform And Control Act Of 1986, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

The enactment of the Immigration Reform and Control Act of 1986 ("IRCA"), popularly known as the Simpson-Rodino Act, was in large part spurred by Congressional desire to exercise more effective control over the influx of foreign farm workers in this country. This is not a new issue; the U.S. has admitted temporary foreign agricultural workers since 1917, and their entry has always been the subject of heated debate. Between 1942 and 1964 the "bracero" program allowed Mexicans to work temporarily in U.S. agriculture, but this program resulted in massive civil rights and labor violations and depressed wages in the Southwest. …

Collective Bargaining And The Coase Theorem, Stewart J. Schwab

Cornell Law Faculty Publications

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.

Recent Decision, R. Christian Hutson

Vanderbilt Journal of Transnational Law

Two dismissed employees, through their collective bargaining agent, sought reinstatement through the arbitration process. Relying on a California statute which made knowing employment of an illegal alien unlawful, the employer determined that the employees resided in the United States illegally and dismissed them." The collective bargaining representative argued that the employer lacked "just cause" to make the dismissal. The arbitrator adopted the representative's position, ruling that continued employment of the two illegal aliens would not subject the employer to criminal liability and holding the California statute "dormant." Based on this finding, the arbitrator awarded reinstatement to each employee and backpay …

Long V. Egnor: Reexamining The Law Of Defamation In The Context Of Public Officials, Phillip B. Scott

West Virginia Law Review

No abstract provided.

Employment Discrimination - The Age Discrimination In Employment Act Permits Recovery Of Liquidated Damages Only Upon Showing Of Employer's Outrageous Conduct In Violating The Act, Jeffrey M. Zimskind

Villanova Law Review (1956 - )

No abstract provided.

Employee Innocence And The Privileges Of Power: Reappraisal Of Implied Contract Rights, William Murray Tabb

Faculty Articles

No abstract provided.

The Case For Limiting Judicial Review Of Labor Board Certification Decisions, Michael C. Harper

Faculty Scholarship

Part I of this Article explains in more technical detail the effects of the present system of judicial review of Board certification decisions and how that system developed. Part II argues that this review should be sharply curtailed, suggesting that unless a court is able to rule that the Board has rendered a certification decision for an improper motive, it should reconsider that decision only to the extent it involves a constitutional issue, a narrow jurisdictional issue, or one of a few bounded technical issues. Such a curtailment of review should be embraced by all who remain sympathetic to the …

The Nuclear Regulatory Commission's Regulation Of Radiation Hazards In The Workplace: Present Problems And New Approaches To Reproductive Health, Neal Smith, Michael S. Baram

Faculty Scholarship

On December 20, 1985, the Nuclear Regulatory Commission (NRC) proposed revisions to its Standards for Protection Against Radiation [hereinafter Standards].¹ If adopted, the new Standards will provide additional protection for millions of workers and their unborn children. The effects of the Standards will extend, however, far beyond the health of those exposed to radiation. Specifically, the NRC's proposal may provide a new paradigm for regulating health hazards that have no safe threshold level of exposure. It will also focus debate on whether or not women should be precluded from working in fetotoxic environments

The Nlrb In The Dog House--Can An Old Board Learn New Tricks, Charles J. Morris

San Diego Law Review

This Article examines the performance of the NLRB in light of the fiftieth anniversary of the National Labor Relations Act. The author argues that the Board has failed to carry out its statutory mandate, specifically criticizing the Board's record of enforcement of core employee protection provisions. The author demonstrates that the Act's unambiguous statement of policy, encouraging free collective bargaining and employee organizational rights, still governs. The author concludes by urging the Board to invoke its statutory authority and makes specific recommendations for non-legislative procedural reform of the NLRB, arguing that such reform would revitalize the Board and vindicate the …

The Burger Court And Labor Law: The Beat Goes On--Marcato, William B. Gould Iv

San Diego Law Review

This Article analyzes many of the major labor law decisions of the Burger Court and their impact on organized labor. The author compares the Court's methodology with that of the Warren Court and asserts that the Burger Court has, in many instances, simply expanded on themes developed by its predecessor. The author further discusses areas in which the Burger Court has broken new ground and concludes that the Burger Court has accelerated the pendulum against the interests of organized labor.

Cobra: Congress Provides Partial Protection Against Employer Termination Of Retiree Health Insurance, David L. Gregory

San Diego Law Review

This Article examines the Consolidated Omnibus Budget Reconciliation Act (COBRA), which provides protection for employees against the unilateral abrogation of retiree participation in an employer's group health insurance plan. The author argues that, while COBRA provides significant benefits for employees, it is not entirely sufficient. The author examines COBRA, its mechanics, and its shortcomings. The author also analyzes pre-COBRA judicial decisions relating to retiree health benefits in both the unionized and non unionized settings and addresses the public policy considerations that support the need to further strengthen legal protections for America's aging workforce.

The Problematic Provision And Protection Of Health And Welfare Benefits For Retirees, Donald T. Weckstein

San Diego Law Review

This Article explores the conceptual underpinnings of the law governing health and welfare benefits of retired employees. The author begins by discussing bargaining rights and duties and examining the legal consequences of an employer modification of bargained-for retiree benefits. The author argues that there is no legal prohibition on modification or termination without proof of a contractual commitment that gives the retiree a vested right to benefits. The author concludes that, until Congress changes the law, a presumption against contractual vesting of retiree benefits should be applied and extrinsic evidence should be admitted to rebut this presumption.

A Modest Proposal: The Statutory No-Cause Alternative To Wrongful Discharge In California, Ellis T. Prince Iii

San Diego Law Review

This Article examines the varied and inconsistent results of California wrongful discharge case law and proposes a statutory alternative to discharge litigation. The author proposes a statute that avoids the question of "just" versus "wrongful" discharge by establishing a "no-cause" discharge option for employers and employees. The author argues that such an option would allow the employer to terminate the employee, without cause, upon payment of a statutorily calculated discharge payment, thereby addressing the interests of the at-will employee as well as the right of the employer to terminate at will.

A Misapplication Of The Sherman Act To Rent Control: Fisher V. City Of Berkeley, Robin M. Bernhardt

San Diego Law Review

This Comment analyzes the recent decisions by the California Supreme Court and the U.S. Supreme Court in Fisher v. City of Berkeley, which upheld municipal rent control under the Sherman Act. The author critiques the Court's decision and highlights several flaws in the analysis. Acknowledging the economic problems associated with rent control, the author concludes that municipal rent control ordinances are clearly outside the scope of Sherman Act antitrust analysis.

Section 10(B) And Rule 10b-5 Federal Securities Law Claims: The Need For The Uniform Disposition Of The Arbitration Issue, Audrey V. Nelson

San Diego Law Review

This Comment examines the use of pre-dispute arbitration clauses in investment contracts. The author argues that, while the United States Arbitration Act mandates the enforcement of arbitration agreements, many courts have refused to enforce investment contract arbitration clauses fearing a lack of investor protection. The author reviews the use of arbitration in the securities industry, as well as the judicial decisions that have impacted its use. The author concludes that, with certain changes in the structure of these clauses, securities industry arbitration clauses should be enforced in order to protect investors and provide a more efficient method of resolving securities …

The Spring Has Sprung: The Fate Of Plant Relocation As A Mandatory Subject Of Bargaining, Joanne D. Roake

San Diego Law Review

This Comment examines the issue of whether plant relocation decisions are a mandatory subject of bargaining. The author examines the National Labor Relations Act and the potential impact of characterizing plant relocation decisions as a mandatory subject. The author then examines the Milwaukee Spring cases and their failed attempts to resolve the issue of plant relocation in labor-management relations. The author argues that the NLRB and the courts should refocus their analysis on whether plant relocation is a mandatory or permissive subject of bargaining and deemphasize boilerplate waivers. The author concludes that the balancing test set forth by the United …

Habitat Conservation Plans Under The Endangered Species Act, Richard E. Webster

San Diego Law Review

This Comment analyzes the development of Habitat Conservation Plans (HCP) as a means for planners to free themselves from the prohibitions against the taking of endangered species under the Endangered Species Act. The author argues that the use of the HCP has resulted in an increase in the number of parties seeking statutory permission to take endangered species. The author examines the statutory requirements for the development and approval of HCPs under section 10(a) of the Endangered Species Act. The author further critiques the first three HCPs that were developed, and suggests various changes to harmonize section 10(a) with the …

Orderlies In The Court? A Proposal For The Proper Designation Of Medical Malpractice Claims, Russell S. Schwartzman

Cardozo Law Review

No abstract provided.

The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman

Michigan Law Review

This Note examines these three possible interpretations of which job characteristics a court must examine when determining the validity of a BFOQ defense to an ADEA suit and concludes that the Eighth Circuit's standard is correct. Because disputes over which interpretation is proper arise almost exclusively in cases involving public safety occupations, this Note discusses the standards for measuring that scope within the framework of the policy considerations associated with public safety. Part I of this Note discusses the three current standards used to determine the scope of the BFOQ defense. Part II illuminates the problems inherent in having three …

The Idea Of The Job As Property In Contemporary America: The Legal And Collective Bargaining Framework, William B. Gould

BYU Law Review

No abstract provided.

Re Canada Post Corp And Cupw, Innis Christie

Innis Christie Collection

National Union Grievance alleging violation of Appendix "Q" of the Collective Agreement between the parties for the Postal Operations Group (Non-Supervisory): Internal Mail Processing and Complementary Postal Services, signed April 2, 1985 and bearing the expiration date September 30, 1986. The Union requested an order that the Employer respect Appendix "Q" by signing sub post office contracts that do not exceed twelve months and by renegotiating any sub post office contracts "so that they do not exceed a twelve month period from the initial signing date".

Wimberly V. Labor & Industrial Relations Commission Of Missouri, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Johnson V. Transportation Agency, Santa Clara County, California, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

United States V. Paradise, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.