CHAPTER 3
Legal Influences
Outline
I. Origin of Labor Relations Law
a. Under the preemption doctrine, federal law takes precedence over state law or local
ordinances.
b. The judicial branch of government functions to determine a law’s constitutionality.
c. Administrative agencies within the Executive Branch:
i. National Labor Relations Board (NLRB).
ii. Management Reporting and Disclosure (Landrum-Griffin) Act.
iii. Federal Mediation and Conciliation Service (FMCS).
iv. U.S. Department of Labor (USDOL).
v. National Mediation Board (NMB).
vi. National Railroad Adjustment Board (NRAB).
vii. State and local administrative agencies.
II. The Norris-La Guardia Act (Federal Anti-Injunction Act) of 1932
a. Restricted role of federal courts, particularly in issuing injunctions and temporary
restraining orders (TRO) and protected right to peaceful picketing and publicity.
b. Declared yellow-dog contracts to be unenforceable in federal courts.
c. Encouraged courts to balance legitimate rights of employers and employees.
d. Expressed congressional support for the process of collective bargaining.
e. Deficiencies of Norris-LaGuardia Act:
i. No independent administrative agency charged or established to enforce the
Act’s provisions.
ii. No specific employer unfair labor practices (ULPs) were identified and
prohibited.
III. The National Industrial Recovery Act (NIRA) of 1933
a. Designed to stabilize economic activity.
b. Allowed businesses to form associations to draw up codes of fair competition.
c. Standardization of marketing, pricing, financial, and other practices.
d. National Labor Board (NLB) established to determine violations under Section 7 and
help settle disputes.
e. Section 7 required codes to guarantee employees’ right to unionize.
f. Deficiencies of the NIRA:
i. Not effective in protecting employee’s rights to organize and bargain collectively
because employers were not required to bargain with unions and the NLB lacked
effective enforcement of its orders.
ii. Ruled unconstitutional in 1935 by Supreme Court.
IV. The National Labor Relations (Wagner) Act of 1935
a. Passed one month after NIRA declared unconstitutional.
b. Established new labor policies.
c. Encouraged collective bargaining and prevented employer interference.
d. NLRB authorized to investigate and decide unfair labor practices (ULPs).
e. Avoided labor unrest by legal protection for employees’ rights.
f. Section 7 listed rights of employees (see Exhibit 3.1, page 95).
g. Section 8 listed ULPs under the NLRA such as:
i. Discharging or refusing to hire union supporters,
ii. Threatening pro-union workers with poor job assignments or termination,
iii. Using company spies to learn who was organizing a union,
iv. Blacklisting pro-union employees,
v. Creating “company unions,”
vi. Bargaining in bad faith (discussed in Chapter 6),
vii. Requiring applicants to sign yellow-dog contracts.
h. The Supreme Court Challenge
i. Declared the National Labor Relations (Wagner) Act constitutional by Supreme
Court in 1937.
ii. Recognized important impact of labor relations on interstate commerce.
iii. Endorsed Congress’ rights to regulate labor relations.
iv. Supreme Court approval and economic conditions lead to huge union
membership growth.
i. Employer Criticisms of the Wagner Act
i. Labor relations favored unions too much.
ii. Public concern over union strikes, boycotts, refusal of unions to negotiate in good
faith, and pressure on job applicants to become union members.
iii. Closed-shop union security clause.
V. Changes under the Labor-Management Relations (Taft Harley) Act
a. Congress amended NLRA with the Taft-Hartley Act (LMRA) in 1947.
b. LMRA addressed deficiencies of the NLRA.
c. Focused on rights of individual employees and employers.
d. Protected anti-union individuals from retaliation.
e. Gave owners and managers bigger voice in opposing the unionization of employees.
f. Deficiencies of the Labor-Management Relations (Taft Harley) Act:
i. Did not universally expand free-speech rights.
ii. Required union officers to sign anti-communism affidavits.
iii. Called a “slave labor act.”
g. Unfair Labor Practices by Unions
A section of unfair union labor practices added to the LMRA including:
i. Threatening workers who refuse to join or support a labor union,
ii. Paying people to support or vote for a union,
iii. Pressuring an employer to discriminate against hiring an anti-union applicant,
iv. Bargaining in bad faith,
v. Jurisdictional strikes,
vi. Strikes against employers who are not involved in the labor dispute,
vii. Political strikes—striking in support of a political cause or candidate.
h. The Closed Shop vs the Union Shop
i. Union shop security clause.
ii. Agency shop clause.
iii. Open shop, right to work laws.
i. Employer Opposition to Unionization
i. Restriction of employers’ right to speak against unionization.
ii. Infringement of employers’ free-speech rights ruled unconstitutional.
iii. Language of court’s decision included in Section 8 of the LMRA.
j. Right to File a Lawsuit. LMRA permitted parties to a collective bargaining agreement to
sue in court for breach of contract.
k. Managers and Unionization. LMRA clarified that managers did not have a legal right to
unionize.
l. Extended to cover the U.S. Postal service in 1970 and health care institutions in 1974.
VI. Labor Management Reporting and Disclosure (Landrum-Griffin) Act (LMDRA)
a. Congress passed LMDRA in 1959 to deal with abuses of power and corruption within
unions and to guarantee union members certain rights within unions:
i. Secret ballot elections.
ii. Approval by members of changes in union dues and fees and local constitution.
iii. Filing of annual reports with the USDOL.
iv. Legal rights in officer elections regardless of position in union.
v. Right to run for office, nominate others for office, make speeches for candidates,
and own a copy of collective bargaining agreement.
vi. Section 303, granting neutral, secondary employees sue for recovery of illegal
strike/boycott/picket damages.
VII. National Labor Relations Board (NLRB)
a. NLRB is an independent federal administrative agency, primary interpreter and
administrator of the NLRA.
b. ULP decisions of NLRB could be appealed.
c. Board composition:
i. Five-member panel with members serving staggered five year terms.
ii. Members nominated by the President, confirmed by Senate.
d. Responsibilities and duties of the board:
i. Prevent employer and union unfair labor practices (ULPs).
ii. Determine representation desires and hold certification elections.
e. Enforcement of LMRA through NLRB
i. Board serves as judicial and policy-making role.
ii. General Counsel’s office investigates (prima facie evidence) and prosecutes
unfair labor practices; represents Board in federal court, and works with Regional
offices to conduct and supervise union representation elections.
iii. Procedure followed in cases involving ULP charges, see Exhibit 3.3.
iv. Contact with the NLRB occurs at the regional or resident office level.
v. Decisions of the Board are subject to review by court of appeals and then
Supreme Court; Courts have agreed with most of Board’s decisions.
f. Employer and Employee Coverage under the LMRA, as Amended
i. Act covers private-sector employees of all employers whose operations have the
potential to vitally affect interstate commerce unless specifically excluded (See
pages 104-107 for excluded parties).
ii. NLRB can refuse to assert jurisdiction in de minimus cases. Exhibit 3.2 lists
NLRB jurisdictional standards. NLRB can defer also to individual states.
g. Concerted and protect employee activity
i. To be protected, the concerted activity must be for a protected purpose described
in Sec. 7 of the LMRA and engaged in using lawful means.
ii. Key point: NLRB decides on a case-by-case basis if an act is concerted and is
protected.
iii. Opportunity for grievance resolution by employer does not have to precede
concerted action.
iv. Interboro doctrine: individuals can act alone if issue concerns term or condition
of collective bargaining agreement.
h. NLRB unfair labor practice (ULP) procedure (see Exhibit 3.3)
i. Charging party is party bringing ULP complaint to NLBR.
ii. Respondent is party accused of committing ULP.
iii. General Counsel and regional office staff investigate merit of ULP charge.
iv. Charge is dismissed, voluntarily settled, or formally heard before an
Administrative Law Judge (ALJ) for decision.
v. The ALJ’s report and recommendations go to Board for review.
vi. ULP categories: routine ULP case (no new or novel issues) and lead ULP (raises
new or novel issues).
i. Unfair labor practice remedies
i. Sec 10 (c), LMRA grants Board broad authority to fashion an appropriate remedy
for ULP violation: issue cease and desist orders, require posting of written
notices, require affirmative action. Punitive damages are excluded.
ii. Board cannot require agreement or make policy for employers.
iii. Board ULP decision can be appealed to federal appeals courts; appeals court
decisions can be appealed to the Supreme Court (petition for certiorari).
iv. Decisions must be enforced if:
1. Decision follows congressional intent in the language of the LMRA.
2. Decision is supported by substantial evidence contained in the case
record.
j. Assessment of the LMRA, as Amended and NLRB Administration
i. Academics believe that current labor policy favors the powerful and labor laws
discourage unionism, labor contracts allow employers to take back gains by the
unions, and replacement workers render strikes ineffective.
ii. Concerns about partisan influences due to Presidential appointments.
iii. The LMRA, unchanged since 1959, is out of sync with substantial changes in the
labor relations environment and concerns over weakening of Board
interpretations vs focusing on changing economy and political climates.
iv. Pro labor tilt to the Board under Obama.
v. Labor unions desired reforms:
1. Better communication with employees during organizing campaigns.
2. Stronger penalties for ULPs by employers against union supporters.
3. Elimination of strikers’ replacement.
vi. Employers seek changes:
1. Employers’ right to create work teams.
2. Ability to create forums for improving productivity.
3. Beck rights.
vii. NLRB critics among government officials
Length of time required to complete ULP case decisions.
viii. Efforts made under Obama administration to reduce time that elapses between
filing of a valid petition and the representation vote.
ix. Other suggested changes include: strengthening remedies for ULPs, efficient
administrative rule-making, reducing shifts in Board policies, union authorization
cards use, and insuring that first contract negotiations result in a labor agreement.
VIII. Transportation-Related Labor Relations Law (Railway and Airlines)
a. The Railway Labor Act (1926) was the first comprehensive labor relations law (covers
railroads and airlines) passed to promote collective bargaining and to avoid interruptions
of transportation services.
i. Coverage was extended to airlines in 1936.
ii. Relies mainly on collective bargaining, but uses mandatory mediation by
National Mediation Board (NMB) for major disputes and turns to the National
Railroad Adjustment Board (NRAB) to resolve minor disputes (grievances), and
uses final and binding arbitration when necessary.
iii. RLA successful in avoiding strikes, 97% of disputes. Only two airline strikes
between 2008 and 2012, only two presidential-appointed emergency boards
established to deal with railroad issues. Last railroad strike in 1994.
iv. The National Railroad Adjustment Board (NRAB) is a bipartisan group of 17
union and 17 management representatives. Established to assist with minor
disputes under the RLA.
v. Differences between the RLA and the LMRA:
1. RLA covers railway and airline industries, LMRA covers most other
private-sector employers in interstate commerce.
2. NMB ballots are mailed, NLRB uses secret ballot.
3. RLA requires show of support from the majority of all employees;
NLRB requires only support from majority of employees actually voting.
RLA and LM RA use same certification since 2010.
4. Higher percentages of employees in the railway and airline industry are
represented by RLA compared to private-sector employees covered
under the LMRA.
5. A union cannot strike and an employer cannot lock out until NMB
procedures exhausted; under LMRA, parties are allowed to engage in
“self–help” actions.
6. RLA: arbitration of minor disputes is mandatory; LMRA: arbitration
procedures are negotiated by parties.
7. LMRA limits certain union activities including “featherbedding”; The
RLA does not contain the same limitations.
8. The LMRA allows prohibition of “union shops”; RLA does not.
b. Assessment of the RLA
i. Success of the RLA has been and is affected by industry conditions, a
complicated labor relations process; Any measure of the RLA’s effectiveness
must be made with reference to its objectives.
ii. Mediation remains most important method of intervention under the RLA, and its
greatest success has been resolving minor issues once large issues have been
resolved.
c. Deregulation legislation in Railroads and Airlines
i. Airline Deregulation Act of 1978, Motor Carrier Act of 1980, and Staggers Rail
Act of 1980.
ii. Increased efforts to avoid strikes, including interventions by Congress.
iii. Results of deregulation are generally greater activity in the industry and
structural change (consolidation and merger), and a decline in services offered, as
well as increased time for contract negotiations and increased frequency of
nonstrike work actions.
d. Promising Developments Regarding the RLA
i. Greater union management cooperation.
ii. Reduction of emergency board procedures.
iii. Progress on work-rule issues.
iv. Positive influence of new management and union leadership.
v. Formation of the National Railway Labor Conference.
vi. RLA appears to have accomplished goal of facilitation cooperative labor
relations.
e. Additional laws that affect labor relations
i. The Employee Retirement Income Security Act (ERISA) establishes minimum
standards for plan participation, vesting rights, benefit accrual and funding,
fiduciary responsibilities of plan administrators, and guaranteed payments of
benefits accrued under a defined benefit plan through a federally chartered
corporation called the Pension Benefit Guaranty Corporation (PBGC), should the
plan be terminated. The PBGC is funded from insurance premiums paid by
employers whose plans are covered, investment revenues, and the remaining
assets of pension plans, which are terminated and taken over by the PBGC.
ii. Americans with Disabilities Act of 1990 (ADA): prohibits employment
discrimination against disabled; requires employers to make “reasonable
accommodation,” except when there is an “undue hardship.”
iii. Bankruptcy Act (1984): subjects contract proposal and union negotiations to
court review prior to rejection of union contract.
iv. Worker Adjustment and Retraining Act of 1988 (WARN): requires notification
of employees, union, and government officials 60 days prior to plant closing or
mass layoff.
v. Racketeering Influenced and Corrupt Organizations Act of 1970 (RICO):
prohibits anyone involved in racketeering from being involved in any interstate
commerce enterprise.
vi. Employment Discrimination Laws and Executive Orders
1. Civil Rights Act of 1991 which amended the Civil Rights Act of 1964;
prohibits discrimination on basis of race, color, religion, sex, or national
origin.
2. Age Discrimination in Employment Act of 1967: prohibits the
discrimination against those over the age of 40.
3. Equal Pay Act of 1963; equal pay for men and women.
5. Executive Orders 11246 and 11375: require affirmative action plans of
government contractors and subcontractors for minority employees.
6. Vocational Rehabilitation Act of 1973: requires affirmative action of
federal government contract holders toward qualified physically and
mentally handicapped individuals.
vii. Other related labor relations laws:
1. Uniform Services Employment and Reemployment Rights Act.
(USERRA) of 1994; Vietnam Era Veterans Readjustment Assistance
Act.
2. Social Security Act of 1935.
3. Fair Labor Standards Act of 1938.
4. Occupational Safety and Health Act of 1970.
5. Family and Medical Leave Act of 1993.
Discussion Questions
1. Some union advocates have suggested that NLRB certification procedures are so
cumbersome that unions would be better off if the LMRA was repealed. If labor laws
discussed in this chapter were repealed, how might this affect (a) the formation of unions and
(b) the terms and conditions of employment for employees? Discuss.
(a) If the LMRA was repealed, all the union actions that have been determined to be illegal,
2. How were the yellow-dog contracts and labor injunctions used to limit activities of union
organizers or slow union growth?
3. What was the intent or purpose of Congress in passing (a) the 1932 Norris–La Guardia Act,
(b) the 1935 National Labor Relations (Wagner) Act, (c) the 1947 Labor Management
Relations (Taft–Hartley) Act, and (d) the Landrum–Griffin Act of 1959?
The objective of the 1932 Norris-LaGuardia Act was to allow employees the right of “full
freedom of association,” restrict employers from interfering in self-organization by
4. Although the National Labor Relations Act gives employees certain rights, these rights are
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Employees do not have the right to threaten or engage in acts of violence, participate in sit
down strikes, physically block entrances to plants, threaten workers not on strike, etc.
5. Is the selection process for determining members of the National Labor Relations Board too
politicized? Does the current selection process lead to instability in interpretations of the
LMRA and if so, is this a positive or negative for employers and employees covered by the
law?
Because the U.S. President appoints members of the Board, labor relations policy can be
6. Why is there still a separate labor relations law for the railway and airline industries?
7. Should the LMRA be amended to cover agricultural laborers?
8. Should the NLRB’s current jurisdictional standards (i.e., monetary threshold for affecting
interstate commerce) be adjusted to take into account the effects of inflation (which would
have the effect of removing employees currently covered by the law under existing
jurisdictional standards)?
Exploring the Web
Labor Relations and the Law
2. National Labor Relations Board: NLRB composition, Caterpillar, Inc., William Gould’s
speech, current chairman of the NLRB, Martindale Hubbell site
3. U.S. Code: Railway Labor Act, Norris La-Guardia, Taft-Hartley, and Landrum Griffin.
Suggested Readings and Term Paper Topics
1. Should the National Labor Relations Act (Wagner Act) be modified to allow employers
to say what they please during representation election campaigns? Why or why not?
What are the implications of changing the law?
Possible references:
Getman, J. G., Goldberg, S. B., & Herman, J. B. (1976). Union representation elections: Law and reality.
2. Should public policy (laws) be devised to promote employment security? If so, how? If
not, why not? What should be done instead?
Possible references:
—- (April 28, 2003). No job is safe. Never will be. Newsweek. 141, 17, 58.
3. Should the Davis-Bacon Act be repealed? Support your position.
Possible references:
—-(August, 1992). Davis-Bacon Act needs reform. Nation’s Business, 80, (8), 70.
4. Express your opinion: Should Worker’s Compensation laws be changed? If so, how? If
not, why not? Support your position.
Possible references:
Bergman, S. (April, 1992). Better safe than sorry. Black Enterprise, 22, (9), 33–36.
Jasper, M.C. (2002). Labor Law, 2nd edition. Dobbs Ferry, N.Y. : Oceana Publications.
Fefer, M. D., & Kirsch, S. T. (June 29, 1992). What to do about Worker’s Compensation. Fortune, 125,
(13), 80–83.
Gabel, J. T., Mansfield, N. R., & Klein, R. W. (1998). The new relationship between injured worker and
5. Agree or disagree: “National Labor Relations Board (NLRB) remedies for employers
found guilty of unfair labor practices are actually counterproductive. The remedies
actually encourage further violations of the National Labor Relations Act.”
Possible references:
Fitzpatrick, J. (Ed.) (1985). NLRB at 50: Labor board at the crossroads. Washington: Bureau of National
Affairs.
Jacoby, S. M. (2004). Employing bureaucracy : Managers, unions, and the transformation of work in the
6. How has the 1993 Family & Medical Leave Act affected business and labor unions?
Possible references:
Bernstein, A. (Feb. 1, 1999). Why the law should adopt more family leave. Business Week, No. 3614, 42-
44.
Gerstel, N., & McGonagle, K. (1999). Job leaves and the limits of the Family & Medical Leave Act. Work
and Occupations, 26, 510-534.
Jacobs, D. (1998). Labor and social legislation in the United States: Business obstructionism and
accommodation. Labor Studies Journal, 23, 52-73.
Jacoby, S. M. (2004). Employing bureaucracy : Managers, unions, and the transformation of work in the
20th century. Mahwah, N.J. : Lawrence Erlbaum.
Waldfogel, J. (1999). Family leave coverage in the l990s. Monthly Labor Review, 122, 13-21.
Zall, M. (2000). The Family and Medical Leave Act: An employer’s perspective. Strategic Finance, 81, 46-
50.
7. Agree or disagree: “Companies in severe financial hardship should be able to use
bankruptcy laws to seek relief from all financial obligations—including existing labor-
management contracts.”
Possible references:
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Datta, S., & Iskandar-Datta, M. E. (1995). Reorganization and financial distress: An empirical
investigation. Journal of Financial Research, 18, 15-32.
8. Trace the history of the National Labor Relations Act (NLRA). What factors (e.g.,
political, industrial, social, economic) contributed to the passage of the law? Why was it
passed when it was rather than, say, 20 years earlier?
Possible references:
Hardin, P. (Ed.)(1992). Developing labor law: The Board, the courts, and the National Labor Relations
Act, Third Edition. Washington: Bureau of National Affairs (two volumes).
9. Agree or Disagree: During the 1980s, the National Labor Relations Board attempted to
destroy the power of unions.
Possible references:
Fitzpatrick, J. (Ed.) (1985). NLRB at 50: Labor board at the crossroads. Washington: Bureau of National
Affairs.
Frum, D. (Jan. 4, 1993). Union rules. Forbes, 151, (1), 88-89.
Karper, M.D. (1982). Can NLRB caseload detect changes in labor relations climate? Monthly Labor
10. Between the time of the War Between the States (1861-1865) and the Korean War
1952), various U.S. Presidents seized mines or factories 71 times in order to “insure the
continuance of production.” Should a president do this? Was such a system more or
less effective than the current system (under the “National Emergency” clause of the
Taft-Hartley Act)?
Possible references:
Bernstein, I., Enarson, H. L., & Fleming, R. W. (eds.) (1955). Emergency disputes and national policy. NY:
Harper & Brothers.
11. How have recent federal laws (since 1980) changed the workplace? Is it better or worse
for workers? Why?
Possible references:
Helewitz, J. A. (1998). Advanced Employment Law. Pearson Publications.
Levitan, S. A., Carlson, P. E., and Shapiro, I. (1986). Protecting American Workers: An assessment of
government programs. Washington, D.C.: BNA Books.
12. How have child labor laws changed in the past 120 years? Should child labor laws be
changed now? If so, how? If not, why not?
Possible references:
Haspels, N. & Jankanish, M. (Eds.) (2000). Action against child labour. Brookings Institute.
Hawes, J. M. (Ed.; 1991). Children in historical and comparative perspective. Westport, CT: Greenwood
Press.
Jasper, M.C. (2002). Labor Law, 2nd edition. Dobbs Ferry, N.Y. : Oceana Publications.
13. Many states have syndicalism laws on the books; many date back to the late 1800s.
What is syndicalism? Why do states have laws against it? Should such laws be enforced
or repealed? Support your position.
Possible references:
Sims, R. C. (Fall, 1974). Idaho’s Criminal Syndicalism Act: One state’s response to radical labor. Labor
History, 15, 511-527.
Dowell, E. F. (1939). A history of criminal syndicalism in the United States. Baltimore, MD: Johns
Hopkins Press. Reprinted: New York: Da Capo Press and New York, AMS Press, 1978.
& Co. Reprinted: Winchester, MA: Allan & Unwin, 1966 (new title: Roads to freedom).
14. How has the law on “employment at will” changed? Are these changes significant?
Have any changes made the workplace better? Or worse? Also, what impact will such
changes have for the nonunion employer? For the unionized employer?
Possible references:
Davis, E. G., Hamilton, L. S. (June, 1989). Challenges to employment at will: A survey of the natural gas
transmission industry. Employee Responsibilities and Rights Journal, 2, (2), 109-119.
Epstein, R. A. (1984). In defense of the contract at will. University of Chicago Law Review, 51, (4), 947–
982.
Jasper, M.C. (2002). Labor Law, 2nd edition. Dobbs Ferry, N.Y. : Oceana Publications.
15. Historically, what has labor’s position been toward immigration? Has there even been
a unified position? How, if at all, has the position changed throughout the decades?
What position should labor have taken/take in the future? Support your position.
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Haus, L. (2002). Unions, Immigration, and Internationalization: New Challenges and Changing Coalitions
in the United States and France. New York: Palgrave Macmillan.
Montwieler, N. H. (1987). The immigration reform law of 1986: Analysis, text, legislative history.
Washington: BNA.
Rivera-Batiz, F. L. (2000). Underground on American soil: Undocumented workers and U.S. immigration
policy. Journal of International Affairs, 53, 485-503.
16. Agree or disagree: “The NLRA was originally intended to be much more ‘radical’ than
it proved to be.” Regardless of your answer to that question, you might also ponder
this: “Should the law be changed? If so, how? If not, why not?” Support your
positions.
Possible references:
Gross, J. A. (1981). The reshaping of the National Labor Relations Board: National labor policy in
transition, 1937-1947. Albany, NY: State University of New York Press.
17. Below are two quotes. Please argue for ONE of these:
(1) “The Americans with Disabilities Act is overly broad and creates havoc with the
American employer-employee relations system; therefore, it should be repealed.”
(2) “The Americans with Disabilities Act is the best thing that ever happened to
American workers—even non-handicapped workers. It is also very good for business;
overall, it is good for enhanced employer-employee relations.”
Possible references:
Beegle, K. and Stock, W. (2003). The labor market effects of disability discrimination laws. Journal of
Human Resources, 38, 4, 806-859.
Lissy, W. E. (March, 1993). Labor law and disabilities law: incompatible? Supervision, 54, (3), 20–21.
18. How should U.S. labor law be changed? Why? Support your position.
Possible references:
Consult the special winter, 1996 issue of Journal of Labor Research (volume 17, No. 1 – see ABI-Inform
for specific authors and titles to order through inter–library loan).
U.S. Commission on the future of worker-management relations (John T Dunlop, Chairman).
Human Resources, 38, 4, 806-859.
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Friedman, S. (1994). Restoring the Promise of American Labor Law. Ithaca, NY: ILR Press
Hardin, P. (Ed.) (1992). Developing labor law: The Board, the courts, and the National Labor Relations
Act, Third Edition. Washington: Bureau of National Affairs (two volumes).
Kilberg, W.J, & Yager, D.V. (Summer, 1994) The Dunlop Commission: A management response.
Employee Relations Law Journal, 20, (No. 1), 1-28.
Nissen, B. (2003). The Recent Past and Near Future of Private Sector Unionism in the U.S.: An Appraisal.
Journal of Labor Research, 24, 2, 323-38.
19. Using information from Labor Law Reporter (and/or the on-line BNA Labor and
Employment Law Library – if your university library subscribes) as your starting point
(volume 1 is the topical index, guiding you to current information found in volumes 26),
and using cases from other relevant reference materials (e.g., CCH NLRB Decisions,
Decisions and Orders of the NLRB, Court Decisions Related to the NLRA, Labor
Cases), analyze legal trends pertaining to the following topic: “(nonunion) employer (or
manager) interrogation of employees who are union advocates and of nonemployee
union organizers.” Analyze 25-30 recent cases. What legal trends do you discern?
What factors seem to influence NLRB and court rulings for your topic? Imagine that
you were to write a paper for Labor Law Journal aimed at human resource (HR)
managers. Using the cases as your main source of information, offer general advice
regarding what HR managers legally can and cannot do with regard to your topic.
20. Agree or disagree: President Clinton’s Secretary of Labor Robert Reich was the
greatest Secretary the Department of Labor has ever had. Support your position.
Suggested References
—- (August, 1996). An interview with Labor Secretary Robert Reich. Training, 33, (8), 37–41
Laws, J. (1997, Jan ). Goodbye, Mr. Reich. Occupational Health & Safety, 66, (1), 4.
21. In 2000, the National Labor Relations Board changed its rule regarding the ability of
temporary workers to unionize. What was the new rule? Is the new rule better or
worse? Support your position.
Possible references:
—(Nov., 2000). NLRB permits temp workers to join the same union as regular employees. HRFocus,
77,(11),2-3.
22. How has organized labor responded to electronic monitoring at work? What does the
law say? How, if at all, should the law be modified? Support your position.
Possible references:
Moberg, D (2003). Labor Fights for Rights. The Nation, 277, 7, 24, 26-8.
Oz, E. (1999). Electronic workplace monitoring: What employees think. Omega, 27, (2), 167177.
Rothstein, L. E. (2000). Privacy or dignity? Electronic monitoring in the workplace. New York Law School
23. Agree or Disagree: The Employee Retirement Income Security Act (ERISA) is in
serious need of major reform. Support your position.
Possible references:
Brauch, J. A. (2000). ERISA at 25 – and its most persistent problem. The University of Kansas Law Review,
48, 285-338.
24. In most states, the law now allows prisoners to do some form of private sector
manufacturing work (there is also the federal Prison Industry Enhancement
Certification Program). How well are these laws working? Do they provide a valuable
service to society? Or do they take jobs away from honest workers and give them to
prisoners and give some firms an unfair advantage over their competitors?
Possible references:
——– (Feb. 9, 1998). Let the prisoners work. Christianity Today, 42, 14–15.
Frum, D. (Aug., 1995). Working for the man. The American Spectator, 28, 48-49.
Stein, N. (2003). Business behind bars. Fortune, 148, 5, 161–166.
25. In recent years, states have relaxed their laws that prohibited using prisoners for
private-sector work. Also, in some states, there are now privately-run prisons. Given
these developments, should prisoners be allowed to unionize? Support your position.
Possible references:
Cohen, W. (Dec. 9, 1996). Need work? Go to jail. U.S. News & World Report, 121, 66-67.
Featherstone, L. (Spring, 2000). Prison labor. Dissent, 47, (2), 71-74.
26. How did federal labor policy change from the Clinton administration to the George W.
Bush administration?
Possible references:
Dannin, E. J. (1999). The TEAM Act: Using comparative experience to assess labor management
cooperation. Labor Law Journal , 50, 245-251.
27. Which federal laws apply to telecommuters? What are the prospects of all federal labor
laws applying to telecommuters? Should they? Why or why not? Support your
position.
Possible references:
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Goldsborough, R. (Jan., 2000). Making telecommuting work. Commercial Law Bulletin, 15, 3436.
Wade, D. R. (1999). The expanding workplace: Telecommuting and legal liability under OSHA, ADA, and
workers’ compensation. Labor Law Journal , 50, (4), 252-263.
Zabrosky, A. W. (Dec., 2000). The legal reality of virtual offices. Consultant to Management, 11, (3), 3-7.
28. What are the current exemptions of U.S. anti-trust law with regard to workers? What
is the position of unions with regard to these exemptions? How, if at all, should the law
be changed? Support your position.
Possible references:
29. Agree or disagree: “With the rise of government protections (e.g., OSHA, EEOC),
unions are no longer necessary.”
Possible references:
Jacoby, S. M. (2004). Employing bureaucracy : Managers, unions, and the transformation of work in the
20th century. Mahwah, N.J. : Lawrence Erlbaum.
Levitan, S A., Carlson, P. E, and Shapiro, I. (1986). Protecting American Workers: An assessment of
Labor Research, 13, (1), 121-133
30. Every presidential election, we hear, in one form or another, about the need for laws
establishing a U.S. “Industrial Policy” (or lack thereof). What is an Industrial Policy?
Do we have one? Do we need one? If so, what type of policy should we have? Support
your position.
Possible references:
Bieber, O. (July 15, 1992). Quality unions: Producing quality products Vital Speeches, 58, (19), 583-586.
Johnson, C, Tyson, L, & Zysman, J. (1989). How Japan‘s development strategy works. NY: Harper.
Additional Information on How This Case Was Settled
CASE STUDY 3-2 Independent Contractors? Or Employees?
The Administrative Law Judge found that the carriers were employees. However, upon review
by the full NLRB, the decision was reversed.
The NLRB ruled that four factors supported “employee” status:
(1) the distribution of newspapers is an integral part of the Employer’s business;
(3) carriers are hired for an indefinite period; and
(1) the company exercised little control over the carriers;
(2) the carriers, not the company, provided the tools necessary to perform the work at issue;
(3) the carriers had entrepreneurial control over the amount of compensation;
(4) the carriers performed their duties with little company supervision; and
(5) the parties intended to create an independent contractor relationship.
Thus, the NLRB said, in effect, that this was a close case, but the scale tipped slightly in favor of
“independent contractor” status.
Original case:
THE ARIZONA REPUBLIC, a division of PHOENIX NEWSPAPERS INC. and GRAPHIC
COMMUNICATIONS UNION LOCAL 58-M
A case heard before the National Labor Relations Board, May 8, 2007
Adapted from actual case: Case 28-RC-006304, available at
http://www.nlrb.gov/search/documents/arizona%20republic