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14 UNIT SEVEN: AGENCY AND EMPLOYMENT
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 15
4. H-2, O, L, and E Visas
Temporary nonimmigrant visas are also available for agricultural seasonal workers, a company’s
managers and executives, certain investors and entrepreneurs, and performers, athletes, and other
“acclaimed” individuals.
C. STATE IMMIGRATION LEGISLATION
• Immigration is generally a federal matter, and the states cannot impose regulations that conflict with
federal law.
VII. Labor Unions
A. FEDERAL LABOR LAWS
Labor legislation outlined briefly in the text includes—
2. National Labor Relations Act
The National Labor Relations Act (NLRA) of 1935, which established employees’ rights to organize,
to engage in collective bargaining, and to strike. The NLRA prohibits employers from engaging in
specific unfair labor practices, including—
• Interference with employees’ efforts to form, join, or assist labor organizations or to engage in
concerted activities for their mutual aid or protection.
a. The National Labor Relations Board
The National Labor Relations Board (NLRB) oversees union elections and prevents employers
b. Good Faith Bargaining
A party’s refusal to bargain in good faith over a mandatory subject can be an unfair labor
practice that may be reported to the NLRB.
c. Workers Protected by the NLRA
An individual must be an employee or a job applicant (or a union organizer).
16 UNIT SEVEN: AGENCY AND EMPLOYMENT
ADDITIONAL BACKGROUND—
National Labor Relations Act
When Franklin Roosevelt took the oath of president of the United States in the depths of the Great
Depression, less than 10 percent of the industrial work force was unionized. This was the lowest figure in this
century—membership in unions affiliated with the American Federation of Labor had been more than twice as
General Hugh Johnson, Administrator of the National Recovery Administration (NRA), proved to be more
sympathetic to management than labor. By the second half of 1933, more than two-thirds of the largest
manufacturing companies had established company unions, and unorganized labor responded with the
greatest wave of strikes since 1919. Roosevelt responded by establishing the National Labor Board (NLB),
headed by Senator Robert Wagner, to mediate labor disputes. Employers and the NRA resisted the NLB,
which had no enforcement powers.
In April 1934, a new wave of strikes began—auto workers, truck drivers, longshoremen, and textile
workers. In June, with a steel workers’ strike imminent, Congress passed a resolution empowering the
In July 1935, Congress passed the National Labor Relations Act (NLRA), which was sponsored by
Senator Wagner. The NLRA states that unequal bargaining power between employees and employers leads
The NLRA gave the NLRB enforcement powers.
Employers viewed the NLRA as a drastic piece of legislation. Those who opposed the act claimed that
the Constitution’s commerce clause (Article I, Section 8, Clause 3) did not grant Congress the power to
3. Labor-Management Relations Act
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 17
The Labor-Management Relations Act (Taft-Hartley Act) of 1947 allows state right-to-work laws,
which makes it illegal to required union membership for continued employment. The act proscribes
certain union practices, including—
• A closed shop (which requires union membership as a condition of employment).
4. Labor-Management Reporting and Disclosure Act
The Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act) of 1959, which
established an employee bill of rights and reporting requirements for union activities, and strictly
B. UNION ORGANIZATION
The first step in union organizing is to have the workers sign authorization cards.
1. Union Elections
a. Appropriate Bargaining Unit
The proposed union must represent an appropriate bargaining unit (employees whose skills,
duties, and pay are similar).
b. New NLRB Rules Expedite Elections
2. Union Election Campaigns
• During an election campaign, the employer can limit campaign activities on company property
during working hours, for a legitimate business reason, and can campaign against the union.
CASE SYNOPSIS—
Case 34.3: Contemporary Cars, Inc. v. National Labor Relations Board
Contemporary Cars, Inc., sells and services cars. Bob Berryhill is the manager. AutoNation owns it. When
the International Association of Machinists began a campaign to organize the service employees, they held
off-site meetings. A union election was scheduled.
18 UNIT SEVEN: AGENCY AND EMPLOYMENT
During the election campaign, at individual and group meetings with the employees, managers often
outnumbered employees, who were asked about union activity. Solutions were promised for workplace
problems. A supervisor commented on an employee’s “rush” to leave work to attend “that meeting,” implying
that union activities were under management surveillance. AutoNation added a provision to its employee
handbook to prohibit any solicitation on its property at any time. The dealership fired an employee who was a
leader in the union campaign, stating that he lacked sufficient technical skills.
..................................................................................................................................................
Notes and Questions
Suppose that the dealership had practiced transparency and neutrality, and taken no steps to
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Union Election Campaigns
Cases concerning conduct during union election campaigns include the following.
• National Labor Relations Board v. Kentucky Tennessee Clay Co., 295 F.3d 436 (4th Cir. 2002) (coercive
and threatening conduct by employees who were apparent agents of the union, during the representation
election, materially affected the election results, so that the National Labor Relations Board abused its
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 19
C. COLLECTIVE BARGAINING
The central legal right of a union is to engage in collective bargaining on members’ behalf.
1. Terms and Conditions of Employment
Wages, hours of work, and other conditions of employment may be discussed during collective
bargaining sessions. The subjects for negotiation include—
• Workplace safety.
• Employee discounts.
2. Good Faith Bargaining
Both sides must bargain in good faith. Refusing to bargain in good faith without justification is an
unfair labor practice. Actions constituting bad faith include—
• Excessive delaying tactics.
• Insistence on obviously unreasonable contract terms.
D. STRIKES
When collective bargaining results in an impasse, a union may call a strike.
1. The Right to Strike
The right to strike is guaranteed by the NLRA, within limits, and strike activities are protected by the
20 UNIT SEVEN: AGENCY AND EMPLOYMENT
2. Illegal Strikes
These include—
3. After a Strike Ends
In an economic strike, strikers have no right, however, to return to their jobs (although employers
4. Lockouts
An employer may not use a lockout as a tool to break the union and pressure employees to vote in
favor of decertification. There must be some economic justification for a lockout.
TEACHING SUGGESTIONS
1. Students may have a difficult time understanding that the development of effective labor law is fairly
modern and is still going through a growing process. For example, some states have right-to-work laws and
2. Ask students to discuss with the class whether they or any of their immediate family members have ever
belonged to a union and their experiences with the union. What were their attitudes towards elections,
strikes, collective bargaining, and other union topics discussed in this chapter?
4. To discuss the material in this chapter, you might start from the students’ personal perspective.
Undoubtedly, they, or at least many of them, have had jobs. What was their chief concern? The money,
5. Society does not stand still, and neither can the law that governs it. The Family and Medical Leave Act of
1993 (FMLA) provides an excellent illustration of how the law can recognize and effect change. The FMLA
reflects the realities of today’s world. Nearly two-thirds of women with children now work, by choice or
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 21
6. Students may be surprised to learn that their e-mail may not be private, technologically or legally, when it
is sent or received through their workplace. Students might be asked to discuss the advantages and
disadvantages of this circumstance. Would they rather work for an employer who monitors their
communications or one who does not? Why?
Cyberlaw Link
How might the existence of the Internet affect employees’ attempts to unionize and employers’ at-
DISCUSSION QUESTIONS
1. What are some important provisions of the Fair Labor Standards Act? The Fair Labor Standards Act
(FLSA) of 1938, which covers employers engaged in interstate commerce, regulates child labor, maximum hours, and
3. What state and federal statutes protect employees from the risks and effects of employment-related
injury, death, or disease, and what is that protection? State workers’ compensation statutes establish procedures
for compensating employees injured on the job. Claims are administered by a state agency or board that has quasi-
judicial powers. All rulings are subject to court review. Recovery is determined without regard to fault, predicated on
22 UNIT SEVEN: AGENCY AND EMPLOYMENT
4. What protection do employees have from the financial impact of retirement, disability, death,
hospitalization, and unemployment? Federal and state governments participate in insurance programs designed
to offer protection in this area. The Social Security Act of 1935 provides for old-age retirement, survivors, disability,
and hospital insurance (OASDI). Employers and employees contribute under the Federal Insurance Contributions Act
5. How does the law protect the privacy of employees? The Employee Polygraph Protection Act of 1988
prohibits most employers from requiring, causing, suggesting, or requesting that employees or applicants take
polygraph tests; using, accepting, referring to, or asking about the results of polygraph tests taken by employees or
6. Discuss exceptions to the employment-at-will doctrine. Contract Theory Exceptions. Some courts have
held that an implied employment contract exists between employer and employee under an employer’s handbook,
personnel bulletin, or the like if the document states that workers will be dismissed only for good cause, and an
employer who fires a worker contrary to this promise is liable for breach of contract. In a few states, all employment
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 23
7. Why should immigration be permitted? Currently, immigrants revitalize nations and their economies, as
well as enriching their cultures. In many countries, including the United States, the populations would grow
8. Why should immigration be restricted? Immigration should be restricted in some way because a nation
might find itself otherwise overwhelmed. There could be too many persons seeking too few jobs, for example, or too
9. Is penalizing employers the best approach to take in attempting to curb illegal immigration? Yes,
because employment is the primary motivation for those who would immigrate illegally. (Why else would anyone
voluntarily leave their home to live where they know nearly no one, likely do not speak the language or understand
much of the culture, and would be unable to participate in the government?) Sanctioning those who would employ
10. What were the purposes behind the adoption of the National Labor Relations Act? The purpose of the
NLRA was to secure for employees the rights to organize, to bargain collectively through representatives of their own
ACTIVITY AND RESEARCH ASSIGNMENTS
1. Invite a spokesperson from a local labor organization and a member of a local management organization to
discuss one or more of this chapter’s topics in the classroom. For example, they might be asked to talk about the
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 2: When Donald Waddell, a supervisor for the Boyce Thompson Institute for Plant Research,
was hired, the employee manual said that the job was “terminable at . . . will.” Later, the company adopted a
24 UNIT SEVEN: AGENCY AND EMPLOYMENT
In Waddell v. Boyce Thompson Institute for Plant Research, Inc., a state intermediate appellate court
affirmed. The Institute’s whistleblower policy was implemented after Waddell was hired. And Waddell did not pass up
other job opportunities based on the policy. The failure to show detrimental reliance on the whistleblower policy
undercut the claim for an implied contract. This made Waddell’s employment at will, terminable for any reason at any
time.
In many countries, discharging an employee is more difficult and costly for the employer than it is in
the United States. Why? Employment laws in many other countries are more restrictive of their employers’ ability to
If Waddell were allowed to bring a claim for breach of contract, how might his supervisor, Sophia
Darling, defend her conduct? Explain your answer. At trial, Darling would likely say that she was allowed to fire
Waddell for any reason. The whistleblower policy prohibits retaliating against employees who complain about certain
Is the at-will employment doctrine fair to employees? Why or why not? The at-will tradition offers some
Footnote 23: Under new standards for all federal workers, contract employees with long-term access to
federal facilities were ordered to complete a standard background check—the National Agency Check with Inquiries
(NACI). Robert Nelson and other Jet Propulsion Laboratory (JPL) private contract employees filed a suit in a federal
district court against NASA, claiming that the NACI violated their privacy rights. The court denied the plaintiffs’ request
to enjoin the NACI, but the U.S. Court of Appeals for the Ninth Circuit reversed and issued the injunction. NASA
appealed.
In National Aeronautics and Space Administration v. Nelson, the United States Supreme Court reversed
and remanded. The government has long required and conducted employment investigations of applicants for the
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 25
The government’s interest in security has weighed more heavily in the balance against individual
rights, particularly the right to privacy, in the twenty-first century than in previous decades. Why? The terrorist
attacks on the World Trade Center and other targets on September 11, 2001, prompted the public and private sectors
Suppose that after the decision in this case, a JPL employee refuses to cooperate in a NACI
background check. What would be the most likely consequences? The contract employees subject to the
background check requirement are those with long-term access to government facilities. Most likely, any JPL
The Constitution does not explicitly mention a general right to privacy. From what sources does the
Court infer this right? (Hint: See the section on “Privacy Rights” in Chapter 4.) As explained in a previous
chapter, a right to privacy was mentioned in the dissent to the 1928 Supreme Court case of Olmstead v. United States
