Chapter 12
THE RISE OF ORGANIZED LABOR AND ITS REGULATORY FRAMEWORK
INTRODUCTION
The twelfth chapter focuses on the development of labor law in the United States. From its origins as illegal
criminal activity, collective bargaining has evolved into a legitimate way for employees to earn equal
bargaining power with the employers. The National Labor Relations Act (NLRA) prohibits both the
employer and the union from discriminating against employees, based on union membership and sets forth
prohibitions, called “unfair labor practices” which, again, can be committed by both the employer and the
union. Additionally, the NLRA creates the National Labor Relations Board (NLRB), which is the
administrative body charged with the responsibility to enforce the provisions of the NLRA.
CHATPER OUTLINE
Labor Development in America
Pre-Civil War
Most union activity considered a criminal conspiracy and illegal.
Commonwealth v. Hunt did not abolish the doctrine of criminal conspiracy with regard to
unions, but it did make it extremely difficult to apply the doctrine to labor activities.
After 1842, the legality of labor unions was accepted by mainstream judicial opinion.
*Criminal conspiracy is a crime that may be committed when two or more persons agree to do something
unlawful.
The Post-Civil Way Period
The Knights of Labor
First developed in Philadelphia in 1869.
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10.5 million members) merged with the CIO (with 4.5 million members) in 1955. The resulting
organization, the AFL-CIO, was the dominant body in the American labor movement.
The Change to Win Coalition
In 2005, seven major unions accounting for nearly six million members broke away from the
AFL-CIO to form the Change to Win Coalition.
The coalition seeks to revitalize the labor movement by putting greater efforts into
organizing and adapting to the changing attitudes of twenty-first century American workers. (p. 336)
Recent Trends in the Labor Movement
By 2009, only about 12 percent of the work force (public and private sector) were unionized.
The election of Barack Obama, and the control of both houses of Congress by the
Democrats, brought a renewed hope to the U.S. labor movement, and union officials look forward
to more political influence and the passage of worker-friendly legislation.
Legal Responses to the Labor Movement
Injunctions
CASE 12.1 LOEWE V. LAWLOR
208 U.S. 274 (1908)
Facts: A company alleged that a boycott was a conspiracy to restrain trade and sought damages of
$240,000 against individual union members. The district court sided with the company saying that the
union’s boycott interfered with “trade or commerce among the states” as disallowed by the Sherman Act.
The union appealed.
Issue: Are union boycotts attempts to restrain or interfere with trade in violation of the Sherman Act?
CASE 12.2 DUPLEX PRINTING PRESS COMPANY V. DEERING
254 U.S. 443 (1921)
Facts: Printing union organized a strike to force the employer to agree to a closed-shop provision, eight-
hour workday, and to adopt a wage scale. The union called for a boycott. The employer filed suit under
the Clayton Act. The union argued that Sections 6 and 20 of the act prevented an injunction.
Issue: Does the Clayton Act exempt labor union activities from the prohibitions of the Sherman Act?
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CASE 12.3 PULTE HOMES, INC. V. LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA
648 F.3d 295 (6th Cir. 2011)
Facts: Pulte Homes, Inc. a successful home builder, sued a national labor union for orchestrating an
attack on the company's phone and e-mail systems. The complaint stems from an employment dispute.
In September 2009, Pulte fired a construction crew member, Roberto Baltierra, for misconduct and poor
performance. Shortly thereafter, the Laborers' International Union of North America [LIUNA] began
mounting a national corporate campaign against Pulte—using both legal and allegedly illegal tactics—in
order to damage Pulte's goodwill and relationships with its employees, customers, and vendors. LIUNA
filed an unfair-labor-practice charge with the National Labor Relations Board [NLRB]. LIUNA claimed
that Pulte actually fired Baltierra because he wore a LIUNA t-shirt to work, and that Pulte also
terminated seven other crew members in retaliation for their supporting the union. Pulte maintains that it
never terminated any of these seven additional employees. LIUNA also began bombarding Pulte's sales
offices and three of its executives with thousands of phone calls and e-mails. To generate a high volume
of calls, LIUNA both hired an auto-dialing service and requested its members to call Pulte. It also
encouraged its members, through postings on its website, to “fight back” by using LIUNA's server to
send e-mails to specific Pulte executives. Most of the calls and e-mails concerned Pulte's purported
unfair labor practices, though some communications included threats and obscene language. The calls
clogged access to Pulte's voicemail system, prevented its customers from reaching its sales offices and
representatives, and even forced one Pulte employee to turn off her business cell phone. The e-mails also
overloaded Pulte's system, which limits the number of e-mails in an inbox; and this, in turn, stalled
normal business operations because Pulte's employees could not access business-related e-mails or send
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e-mails to customers and vendors.
Four days after LIUNA started its phone and e-mail blitz, Pulte's general counsel contacted LIUNA and
requested that LIUNA stop the attack because it prevented Pulte's employees from doing their jobs.
When the calls and e-mails continued, Pulte filed this suit alleging several state-law torts and violations
of the Federal Computer Fraud and Abuse Act [CFAA, a statute that both criminalizes certain computer-
fraud crimes and allows for civil suit.]
Pulte asked the court to issue a preliminary injunction stopping LIUNA's phone and e-mail campaign.
The district court denied Pulte's motion, holding that it lacked jurisdiction under the Norris–LaGuardia
Act [NLGA] to issue a preliminary injunction because the suit involves a labor dispute and LIUNA's
campaign attempts to publicize that dispute. Pulte appealed to the U.S. Court of Appeals for the Sixth
Circuit.
Issue: Is the phone and email campaign by LIUNA within the definition of a labor dispute under the
NLGA, so that the court is unable to issue an injunction prohibiting the conduct?
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2019.
-Phillip A. Miscimarra was sworn in as a member of the Board on August 7, 2013, for a
term that expires on December 16, 2017.
The General Counsel
Prosecutorial branch of the NLRB and is also in charge of the day-to-day administration of
the NLRB regional offices.
The general counsel is nominated by the president, with Senate confirmation for a four-year
term.
Procedures
Unfair Labor Practice Charges
The filing of an unfair practice charge initiates NLRB proceedings in unfair labor practice
cases.
Section 10(b) of the act requires that unfair practice charges must be filed within six months
of the occurrence of the alleged unfair practice.
See Exhibit 12.3 for a summary of unfair labor practice procedures.
Representation Elections
Employees choosing whether or not to be represented by a labor union as their exclusive
bargaining agent.
Representation proceedings are at the very heart of the NLRA because the acceptance or
rejection of a union as bargaining agent by a group of employees is the essence of the exercise of the
rights guaranteed by Section 7 of the act—to engage in, or refrain from, concerted activity for
purposes of collective bargaining or mutual aid or protection.
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Jurisdiction
General Jurisdictional Standards
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CASE 12.4 NATIONAL LABOR RELATIONS BOARD V. KENTUCKY
RIVER COMMUNITY CARE, INC.
532 U.S. 706 (2001)
Background: Union petitioned the NLRB to represent employees at a care facility. The employer
objected to the inclusion of registered nurses arguing they were supervisors. The regional director ruled
that the employer had the burden of proving status and that they had not carried that burden, so that the
nurses could be included. The employer then refused to bargain with the union in order to get judicial
review of the certification decision. The board held that the employer violated the NLRA and the
employer appealed to the circuit court. The circuit court held that the board erred in putting the burden
on the employer and also found that the nurses exercised independent judgment. The board appealed.
Issue: Are the nurses supervisors and therefore not protected by the act?
2. The board argued that employees do not use “independent judgment” when they exercise “ordinary
3. The significance of the determination that the staff nurses are supervisors means that they are not
“employees” under the NLRA and do not have any of the statutory protections of the NLRA—so
they would not be protected from being fired if they tried to join a union. Other professional
employees may also be denied the protection of the NLRA if they have the authority to engage in
any of the activities listed in S.2(11).
*Managerial employee is a person involved in the formulation or effectuation of management policies.
ELTHICAL DILEMMA
Faculty Consultation Rights at Prestigious University?
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CASE 12.5 NLRB V. MEENAN OIL CO., L.P.
139 F.3d 311 (2d Cir. 1998)
Background: The Board petitioned for enforcement of its order finding that an employer had violated the
act by refusing to bargain with a union. The employer argues that some of the employees in the union are
outside of the protection of the NLRA as confidential employees. On employee is a secretary with access
to confidential information.
Issue: Are these employees confidential employees and outside the scope of the act?
CASE 12.6 NLRB V. TOWN & COUNTRY ELECTRIC, INC.
516 U.S. 85 (1995)
Facts: A nonunion contractor advertised for applicants but refused to interview some who were known
paid organizers for a union. The ALJ ruled in favor of the union, and the Board affirmed. The circuit
court reversed stating that an “employee” did not include those persons who work for a company while
being paid by a union to organize that company. This made those applicants unprotected by the act. The
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Board appealed.
Issue: Does the definition of “employee” under the NLRA include persons working for a company and,
at the same time, being paid by a union to help the union organize the company?
Decision: Yes. The language of the act is broad enough to include them. The employer may not refuse to
hire applicants on the basis that they are paid union organizers, as long as the applicants are sincerely
applying for work. Many employees have more than one job. The employer would have the burden to
prove the applicants were not sincerely applying for work. Status as a paid union organizer is insufficient
to meet that proof.
THE WORKING LAW:
Are College Athletes Employees?
2(3) of the National Labor Relations Act (NLRA). The players seeking union representation stated that
their major concerns were: (1) ensuring that the university provided medical treatment for the athletes
after their playing days are over, (2) that they do not lose their scholarships if they are injured, (3) that
they are not subject to unnecessary brain trauma, and (4) they are given better opportunities to complete
their degrees. The university took the position that the players were students rather than employees. The
regional director’s decision was that the players were employees under the NLRA, and the regional
director directed that a representation election be held to determine whether the players wish to be
represented by CAPA.
Jurisdiction Over Labor Organizations
1. The injunction was effective against union activities because courts generally issued it at the request
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3. The Norris-La Guardia Act prohibited federal courts from issuing injunctions in labor disputes unless
5. Private sector employers engaged in, or affecting, interstate commerce that are not excluded from the
coverage of the Act and are within the NLRB jurisdictional guidelines are subject to the NLRA. The
following employers are excluded from the coverage of the NLRA: the federal government and
wholly-owned corporations, state governments and any political subdivision thereof, employers
6. The hospitals could argue that the requirement of representatives from organized labor on the board
8. The Supreme Court held that the law was not preempted by S. 7 of the NLRA because the law didn't
actually conflict with S. 7. S. 504 of the Labor-Management Reporting and Disclosure Act of 1959
prohibits persons from serving as union officials if they have been convicted of certain crimes; S.
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9. The 10th Circuit upheld the NLRB's jurisdiction in the case. The Court held that the services
11. The Board, in overruling the decision of the regional director, held that the close relationship
1986), the Board's assertion of jurisdiction over a labor dispute between the union representing the
clerks, tellers and typists at the New York branch of the State Bank of India was upheld, and an order
to recognize and bargain with the union was enforced by the Court of Appeals. Although the bank is
12. The court agreed with the Board that the plaintiff’s discharge violated section 8(a)(1) of the Act. The
13. The Board's decision to assert jurisdiction over the university was refused enforcement by a divided
1st Circuit Court of Appeals, which held there was sufficient involvement with the Catholic church
to come under the Catholic Bishops doctrine. Subsequently, in Trustees of St. Joseph's College, 282
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15. The Board had held that illegal aliens were entitled to protection under the Act because no federal
statute prohibited hiring illegal aliens, see Duke City Lumber Co., 251 NLRB 53 (1980); NLRB v.
17. The students will not be able to answer this question without more information. This scenario is
20. Hospital medical students in residency (residents) enjoy the same rights as any other employee
under the NLRA. They have been recognized as employees under the National Labor Relations
Act since 1999, when the NLRB ruled that residents are employees, regardless of the educational