CHAPTER 5
Labor Law
Chapter Overview
It is impossible to understand contemporary U.S. labor relations without a careful examination of labor law. U.S. labor law grants rights to workers, unions, and companies. It also gives them responsibilities and makes certain behaviors illegal. The major labor relations processes are therefore critically shaped by the specific provisions of labor law. A foundation for understanding these processes is studying labor law.
The evolution of common law to business law to labor law is explored in detail. Before the first labor laws were passed, dissatisfied workers in the 19th and early 20th centuries were subject to common law doctrines, usually to their detriment. Moreover, the Sherman Antitrust Act was passed in 1890 to outlaw monopolies and prevent their negative economic and social effects, and was ultimately used against unions. In 1935, explicit labor law was created with the passage of the Wagner Act. Important amendments to the Wagner Act were enacted 12 years later by the Taft-Hartley Act.
Both the logic and the specific provisions of the Wagner Act and the Taft-Hartley Act are emphasized. The Wagner Act is portrayed an attempt to balance efficiency, equity, and voice rooted in the intellectual beliefs of the industrial relations school, and the Taft-Hartley Act is presented as an attempt to correct the perceived one-sidedness and excesses of the Wagner Act. Specific provisions that are emphasized include exclusive representation, the determination of majority support, unfair labor practices, and the creation of the National Labor Relations Board and the Federal Mediation and Conciliation Service.
When union corruption found its way into labor in the 1950s, the government stepped in to investigate and subsequently passed the Landrum-Griffin Act to create a Bill of Rights for union members. All aspects of this labor reform bill are presented.
Private sector employees are ruled by the National Labor Relations Act, while public sector labor law has 51 separate jurisdictions. Other differences, as well as similarities are compared and contrasted. The Civil Service Reform Act is also discussed. The chapter concludes with a practical discussion of the importance of NLRB decisions and an overview of the rise of employment law in the postwar period.
Today’s labor laws were originally created over 60 years ago. While precedents set by subsequent case law have helped to keep pace with the changing labor world, many critics feel reform of U.S. labor law is long overdue. This chapter will assist you in deciding if those critics are right.

Learning Objectives
By the end of the chapter, students should be able to:
1.   Understand how a legal system can be used to either promote or repress unionization.
2.   List the major provisions of U.S. labor law and their underlying logic and rationale, especially with respect to the Wagner Act, Taft-Hartley Act, and Landrum-Griffin Act.
3.   Understand the role of the National Labor Relations Board and similar state agencies in U.S. labor relations.
4.   Compare the similarities and differences between U.S. private and public sector law.
5.   Discuss the criticisms of U.S. labor law and possible directions for reform.

Lecture Outline

• Introduction
• Labor relations is always critically shaped by the legal system, whether there are explicit labor laws or not.
• It is important to recognize the struggle to balance property rights and labor rights.
• Labor relations are affected by business law, labor law, and employment law.
• The Common Law of Labor Relations: Conspiracies and Injunctions
• Early attempts by workers to protest unfair treatment were viewed as conspiracies due to the nature of their collective action.
• Judges issued injunctions to prevent this activity.
• Companies demanded yellow dog contracts to suppress union activity.
• The Business Law of Labor Relations: Unions as Corporations
• A debate ensued over the Sherman Antitrust Act (1890) over whether unions were monopolies.
• The Supreme Court ruled that the act applied to labor unions.
• The Clayton Act (1914) gave unions the legal right to exist but did not exempt them from antitrust law.
• A legal view emerged that unions were legitimate but needed to be controlled by legal regulation to make sure they were serving the public interest.
• Keeping Courts out of Labor Relations: The Norris-LaGuardia Act
• The Norris-LaGuardia Act was enacted in 1932.
• The Act forbids federal courts from issuing injunctions that interfere with strikes, payments of strike benefits, publicizing a dispute, peaceful picketing, and workers joining unions.
• This marks the end of the common law and business law doctrines in U.S. labor relations
• Prelude to a National Policy: The National Industrial Recovery Act and Railway Labor Act
• President Roosevelt promised a “new deal” for the American people.
• The NIRA was passed in 1933, which contained a public works program to create jobs and an ambitious framework for establishing industry codes of fair competition.
• Intense strikes demonstrated the ineffectiveness of the NIRA.
• In 1935, the Supreme Court ruled the NIRA unconstitutional.
• The Railway Labor Act was passed in 1926, with airlines added in 1936.
• The purpose was to avoid strikes and other forms of labor-management conflict that would disrupt interstate commerce and weaken the economy.
• The act was strengthened in 1934 by restricting company-dominated unions and by establishing the National Mediation Board.
• Solving Labor Problems: The Wagner Act
• The Wagner Act was signed into law in 1935.
• The act built upon previous legislative attempts to promote and protect workers’ abilities to unionize in the private sector.
• The act is rooted in the industrial relations school of thought.
• The Wagner Act explicitly establishes exclusive representation.
• A union may represent all employees, or none.
• Representation requires majority support.
• The Wagner Act specified unfair labor practices.
• The Wagner Act created the National Labor Relations Board.
• Employers flaunted the new law until the Supreme Court ruled on NLRB v. Jones and Laughlin Steel Corp., which declared the act constitutional once and for all.
• Rebalancing the System: The Taft-Hartley Act
• The Wagner Act continued to be controversial due to the increase in government intervention in economic and social affairs.
• Many believed the Wagner Act went too far and gave unions too much power.
• The Taft-Hartley Act (1947):
• Restricted union activities.
• Enhanced rights of individuals.
• Established explicit rights of employers.
• Revised dispute resolution procedures.
• Outlawed closed shop agreements.
• Allowed union shops and agency shops, but the Supreme Court later ruled union shops enforceable only as agency shops in which workers can be forced to pay the fraction of union dues that is related to bargaining and administering union contracts.

• The Taft-Hartley Act can be viewed as:
• An effort to restore a needed balance between individuals, unions and employers.
• An opportunistic effort by business and conservative politicians to roll-back labor’s protections.
• Fighting Union Corruption: The Landrum-Griffin Act
• A congressional committee was formed in 1957 to investigate union corruption.
• The committee concluded that rank and file union members lacked a voice, union leaders abused their power, and violence was used to keep members in line.
• The Landrum-Griffin Act was passed in 1959 creating a Bill of Rights for union members, and increasing democracy within the union structure. The act also:
• Required unions and their officers to disclose financial records.
• Restricted the use of union trusteeships.
• Established fiduciary responsibility of union leaders.
• Extensions to Government Employees: Public Sector Labor Law
• The NLRA applies to private sector employees nationwide. Public sector law has 51 separate jurisdictions – the U.S. federal government for federal employees and the 50 state and local government workers in each state.
• There can be significant differences in public sector labor law across different jurisdictions.
• Public sector unionization dates back to the 19th century, but public sector labor law was slow in coming.
• The Civil Service Reform Act was passed in 1978 to solidify the federal sector bargaining system that developed in the 1960s and 1970s.
• Many federal workers such as supervisors, the military, security agencies, the Post Office and several other agencies are excluded.
• The Act parallels the NLRA framework, however strikes are prohibited, wage and benefits are excluded from bargaining, and unions with minority but not majority support have consultation rights.
• Labor relations for state and municipal workers is governed by the laws and courts of each state, separated into four categories:
• Comprehensive laws.
• Narrow laws.
• No laws.
• Prohibitive laws.
• Labor Law in Practice: NLRB Decisions and Reform
• In the private sector, most of today’s laws on labor-management relations were written in 1935 and 1947.
• When the NLRB hears a case, it issues a written decision that may serve as a precedent for future cases.
• The Wright Line test helps to distinguish between legitimate employee discipline and discharge versus unlawful retaliation for union activity. The NLRB General Counsel must show:
• The disciplined or discharged employee was engaged in protected activity.
• The employer was aware of the activity.
• The activity was a substantial or motivating reason for the employer’s action.
• NLRB case law enables the law to accommodate new situations that were not present in 1935 and 1947 and to therefore balance property rights and labor rights in a changing environment.
• Many people believe U.S. labor law is in need of reform.
• Postscript: The Rise of Employment Law
• Labor law focuses on workers’ collective actions; employment law pertains to individual employment rights.
• In the absence of explicit laws, the U.S. employment relationship is governed by the employment-at-will doctrine.
• Unions can help equalize bargaining power between employers and unionized employees while government laws can ensure minimum standards for all employees. Examples:
• Social Security Act.
• Fair Labor Standards Act.
• Federal Unemployment Tax Act.
• Equal Pay Act.
• Civil Rights Acts of 1964 and 1991.
• Age and Discrimination in Employment Act.
• Americans with Disabilities Act.
• Occupational Safety and Health Act.
• Employee Retirement Income Security Act.
• Does employment law provide nonunion workers with sufficient levels of equity and voice?
• Do exceptions to the employment-at-will doctrine go far enough?

Lecture Tips
This is a major chapter that covers a lot of material that is critical to understanding contemporary labor relations. I therefore spend a lot of class time on this chapter—often two weeks (or more if some class time is taken up by in-class debates). I usually spend one lecture covering the evolution from common law and business law up to the Wagner Act. After presenting the Wagner Act, I break things up by discussing the first labor law discussion case (Box 5.23) (this might not occur until the second lecture). After the case, I talk about the debate over the Wagner Act’s constitutionality, the pressures for reform, and the resulting Taft-Hartley Act. I then do another case (Box 5.24) before discussing the Landrum-Griffin Act (this might not occur until the third lecture). After covering the Landrum-Griffin Act, I cover public sector law, labor law in practice (NLRB decision-making), and the need for reform (this stretches over into a fourth lecture). At some point I intersperse a third discussion case (Box 5.25). In addition to fostering classroom discussion and participation, all of the cases are used to reinforce the overall logic of the National Labor Relations Act, not to illustrate specific legal rulings.
Student mastery of such a breadth of material is greatly enhanced by emphasizing the logical development of U.S. labor law. The conspiracy doctrine gets supplanted by the use of injunctions because they are quicker. Spurred by the Great Depression, Congress first tries to protect union activity only by trying prevent injunctions and keeping judges out of labor relations, but after this and the NIRA are unsuccessful, the Wagner Act is enacted. The Wagner Act strengthens the NLRB and outlaws company unions based on experiences under the Railway Labor Act and the NIRA. The Taft-Hartley Act further modifies this framework based on the experiences under the Wagner Act between 1935 and 1947. Public sector legislation further builds off of this framework, but with modifications based on the unique concerns of public sector employers (especially, outlawing strikes in many laws). If students can see labor law as a sequence of logical developments rather than a large number of unconnected doctrines and laws, their comprehension and mastery will be greatly enhanced. Note that this implies covering the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act in sequence as they developed rather than starting from today’s National Labor Relations Act (NLRA).
To further underscore the logic of U.S. labor law, I emphasize the shifting intellectual foundations, from the neoclassical economic foundations of common law and business law before 1932 to the industrial relations intellectual foundations underlying the Wagner Act. The Wagner Act is very hard to understand from any other perspective! As another common thread throughout the chapter, I emphasize the recurring theme of property rights versus labor rights. Students should see common law, business law, and labor law as being different approaches to reconciling conflicts between property rights and labor rights. Students should also see NLRB decisions as trying to balance these conflicts.

At the same time, while I emphasize the core components of the major labor laws (the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act), note that legal details about union organizing, bargaining, strikes and boycotts, grievance arbitration, and company unions are presented in chapters 7-11. I emphasize logic and core components in the class meetings about chapter 5 and postpone details on captive audience speeches, surface bargaining, permanent strike replacements, Electromation, and the like to lectures later in the course on chapters 7-11.

Active Learning Ideas

• Have students prepare answers and discuss the labor law discussion cases (Boxes 5.24 – 5.26).
• Have students take the Section 7 Quiz in Box 5.10. Discuss their answers, and then compare them to the correct answers and justifications at the end of the chapter.
• Ask two students to read of the parts of Mr. Torrey and Senator Wagner from Box 5.12 aloud. Discuss the content of the exchange. How could Senator Wagner have lost this “debate?” Can you think of any argument that Mr. Torrey could have used to better establish his position?

Key Terms
Students will be introduced to the following key terms:

Conspiracy doctrine	The view that workers joining together and refusing to work unless their terms are met is an illegal conspiracy because it was a collective effort by workers that harmed the community and deprived others of their rights.
Injunction	Court ordered restraints on action to prevent irreparable harm or damage to someone else. A popular method for preventing and ending strikes before 1932.
Yellow dog contract	A promise by a worker not to join or support a union; refusal to agree to such conditions meant either termination or not being hired.
Danbury Hatters case	After a failed strike, the United Hatters of North America initiated a nationwide boycott of hats made by a Danbury, Connecticut, nonunion company in 1902. The Supreme Court ruled that the union boycott violated the Sherman Antitrust Act. It also determined that individual union members were liable for damages.
Norris-LaGuardia Act	This 1932 act seeks to protect unionization efforts by forbidding federal courts from issuing injunctions that interfere with strikes, payment of strike benefits, publicizing a dispute, peaceful picketing, and workers joining unions.
Railway Labor Act	The primary purpose of this 1926 act, still in effect today for the railroad and airline industries, is to avoid strikes and other forms of labor-management conflict that disrupt interstate commerce and weaken the economy. The act protects the rights of employees to form labor unions, provides for government mediation of bargaining disputes, and established adjustment boards to solve grievances.
The Wagner Act	Also know as the National Labor Relations Act. This 1935 act grants employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This is the most important law for private sector U.S. labor relations and created employer unfair labor practices and the National Labor Relations Board.

Exclusive representation	A basic principle of U.S. labor relations such that with majority support, a union is the only representative of that group of workers. There cannot be another union, even a company union, representing some of the employees in the group.
Unfair labor practices	Major element of the Wagner Act in which employers are prohibited from interfering, restraining, coercing, or discriminating against employees who are trying to form a union. Companies may not dominate a labor organization. And lastly, it is illegal for an employer to refuse to bargain with a certified union. The Taft-Hartley Act added union unfair labor practices.
National Labor Relations Board	An independent federal agency created by the Wagner Act that is devoted to conducting representation elections and adjudicating unfair labor practices.
NLRB v. Jones and Laughlin Steel Corp.	Supreme court ruling in 1937 that declared the Wagner Act constitutional.
Taft-Hartley Act	Also known as the Labor Management Relations Act, this piece of legislation significantly amended the Wagner Act in the following ways: Excludes supervisors and independent contractors. Expands and restructures the NLRB. Guarantees employees the right to decline participation in union activities. Outlaws the closed shop. Defines six union unfair labor practices. Grants employers the right to express views and opinions except for threats and promises. Requires good faith bargaining, but does not require an agreement. Specifies secret ballot elections for determining questions of majority support for both certification and decertification cases. Allows states to pass right-to-work laws. Created the Federal Mediation and Conciliation Service to provide voluntary mediation. Empowers the president to petition a court to suspend a strike that is deemed a national emergency strike. Viewed by critics of the Wagner Act as a way to re-balance the excesses of the Wagner Act.
Closed shop	A provision negotiated into a collective bargaining agreement in which a company agrees to only hire union members.
Union shop	A provision negotiated into a collective bargaining agreement in which a company can anyone, but to remain employed workers must join the union within a certain amount of time (often 30 days).
Agency shop	Similar to a union shop in that a company can hire anyone, but rather than being required to join the union as required by a union shop provision, workers must just pay dues as a condition of continued employment.
Landrum-Griffin Act	This 1959 act creates a Bill of Rights for union members that guarantees all union members equal rights of participation in internal union affairs including voting and expressing views. Democratic standards for the election of union officers are also established. The main goal of this legislation was to fight union corruption.
Civil Service Reform Act	This act protects most federal workers except supervisors, the military, security agencies, the Post Office, and others. Similar to the NLRA the act calls for exclusive representation with majority support, certification elections, employer and union unfair labor practices, and an agency that administers elections and unfair labor practice charges. However, strikes are prohibited, wages and benefits are excluded from bargaining, and unions with minority but not majority support have consultation rights. This 1978 act codified the piecemeal efforts at protecting federal sector unionization that started in the 1960s.
Wright Line test	A central NLRB test based on the Wright Line decision for distinguishing between legitimate employee discipline and illegal pretextual discipline in retaliation for union activity. When arguing the legitimacy of employee discipline and discharge, the NLRB General Counsel must show that (1) the disciplined employee was engaged in protected activity, (2) the employer was aware of the activity, and (3) the activity was a substantial or motivating reason for the employer’s action. The burden of proof then shifts to the employer to prove that it would have taken the same action even if the employee had not engaged in protected activity.
Employment law	Distinguished from labor law in that it pertains to individual employment rights. Examples include the Civil Rights Act and the Family and Medical Leave Act. Since 1960, new laws have focused on employment rather than labor law.

 

Reflection Questions
1.   A Kenyan proverb states, “When elephants fight, it is the grass that suffers.” How is U.S. labor law premised on this belief? Describe specific provisions in the U.S. labor law that are intended to address this concern.
Think of corporations and unions as the elephants. When they fight through strikes, boycotts, and the like, individual employees and the public suffer. U.S. labor law tries to prevent this suffering by providing for 1) orderly resolution of disputes, such as the representation election process instead of recognition strikes, 2) unfair labor practices to prevent destructive illegal activities, such as firing workers (employer ULPs) and secondary boycotts (union ULP), and 3) in extreme situations, national emergency powers enabling the President to step in.
2.   Outline the arguments in support of the Taft-Hartley Act. Outline the opposing arguments (in other words, that Taft-Hartley was heartily daft).
Many people felt that the Wagner Act gave unions too much power, and the Taft-Hartley Act sought to balance this. The act basically provides employees and employers protection from being intimidated by unions. On the other hand, critics of the Taft-Hartley Act believed that many of the provisions simply weakened the power of unions. Examples include excluding supervisors, banning secondary boycotts, allowing extensive employer campaigning during organizing drives, and allowing right-to-work laws.
3.   In U.S. politics, the Democratic Party has generally been more supportive of labor unions while the Republican Party has been more hostile. Explain how it makes sense that the Wagner Act was sponsored by a Democrat, the Taft-Hartley Act by two Republicans, and the Landrum-Griffin Act by one of each.
The Wagner Act was written in support of unions, particularly to grant them more power. The Taft-Hartley Act greatly reduced that power. The Landrum-Griffin act sought to protect union members, companies, and the public against union corruption.
4.   One of the main tasks of the NLRB is applying the facts of a certain case to the general principals of the NLRA to determine if an unfair labor practice has been committed. To gain a greater understanding of this process, answer the questions in the Labor Law Discussion Cases in Boxes 5.23-5.25.
See the teaching notes for the Labor Law Discussion Cases later in this manual.

5.   In both the private and public sectors, a sharp increase in union membership coincides with the passage of protective legislation. A longstanding debate is whether increased demand for unionization causes new legislation or vice versa. Explain how causality can work in both directions. In which direction is labor law more important? Which direction do you think is more realistic?
Increased demand for unionization can cause new legislation if the government is responding to issues and concerns that sparked union activity – for example, anti-union discrimination and intense labor conflict. Alternatively, in the reverse direction, new legislation may cause increased demand for unionization if the government enacts protections for unionization for reasons unconnected to current employee demands for unionization. For example, if Congress passed the Wagner Act to end recognition strikes, then it is likely that demand for unionization caused protective legislation; in contrast, if the Wagner Act was passed because Congress believed that helping employees win higher wages would end the depression, then it is likely that the protective legislation of the Wagner Act caused increase demand for unionization. Labor law is more important in this second scenario because it is proactively shaping new demand for unionization rather than reactively formalizing pre-existing levels.
6.   Corporations and labor unions are both collections of individuals. In U.S. society, however, corporations are generally assumed to be consistent with the public interest while unions are not (unions are associated with the purely self-interest or private interest of its leaders and members). Describe how this contrast helps explain the differential judicial treatment of corporations and unions before the New Deal. Does this contrast underlie any of the provisions of the Wagner Act? The Taft-Hartley Act?
Students should be able to answer the pre-New Deal and Taft-Hartley Act parts to this question. Before the New Deal, property rights always won over labor rights because property rights were viewed as consistent with the public interest. With the Taft-Hartley Act, union protections were weakened while corporations were granted more rights—this clearly reflects greater respect for corporations than unions. The middle part of this question is more subtle. Even though the Wagner Act protects union activity, it grants rights to individuals, not unions per se. As such, skepticism that unions represent the public interest is also reflected in the Wagner Act.

7.   Reconsider the examples of protected and unprotected concerted activity in Box 5.10. For each one, explain how the ruling tries to balance property rights and labor rights.

	Labor Rights	Property Rights
1.	Employees should be able to obtain fair wages and working conditions, and have input into their determination.	Employers only have to negotiate, not be forced to accept specific conditions against their will.
2.	Employees should be able to pursue decent benefits, and have input into their determination.	Strikes should not damage private property so peacefully picketing is allowed.
3.	Destroying company property violates property rights and is not acceptable.
4.	Discussing wages does not endanger property rights, and therefore should be allowed.
5.	See #4
6.	Subject matter is out of bounds for labor rights (employee ownership) and is therefore unprotected.
7.	Employees should be able to obtain fair wages and working conditions, and have input into their determination.	Employers only have to negotiate, not be forced to accept specific conditions against their will. In this scenario, they can hire replacement workers.
8.	This allows workers to pick and choose what rules they will obey and is unfair to owners and their property rights.
9.	This helps to prevent an employer from unfairly disciplining and employee.	Employers are still allowed to administer legitimate discipline.
10.	See #4
11.	This action is not necessary for the legitimate pursuit of labor rights, and harms property rights (as well as the supervisor personally) and is therefore unprotected.
12.	A worker should not be expected to work in unsafe conditions.	However, they should not be able to hide behind this as an excuse not to work if the conditions are truly not dangerous.

Labor Law Discussion Cases
Box 5.23: Let’s Do Lunch: Insubordination or Protected Activity?
1.   Are the six employees covered by the NLRA? Does it matter that they are not represented by a labor union?
Yes. It does not matter that they are not represented by a labor union.
2.   Consider the five employees who left together. Assuming that the employees are covered by the NLRA, did Bird Engineering violate section 8(a)(1) by firing the five employees? In other words, were they discharged for activities that are protected by section 7? (Hint: if the employees were on strike, it was protected activity. If their action was insubordination, it is not protected.)
Answers will vary. If the activity was due to “mutual aid”, it’s protected activity. If it’s ignoring a rule, then it is insubordination. The ALJ and the NLRB disagreed in this case so multiple interpretations are valid. For additional discussion, see the teaching notes.
3.   Consider the sixth employee who went to her van to get her medicine. Assuming that the employees are covered by the NLRA, did Bird Engineering violate section 8(a)(1) by firing her?
Answers will vary. If she was acting alone, then it is not concerted activity and is therefore unprotected. If she was acting in concert, with the others, then see #2. For additional discussion, see the teaching notes.
4.   If Bird Engineering violated the NLRA, what is the appropriate remedy?
To reinstate all employees with back pay.

Teaching Notes
The Issues
There is one primary issue in this case: does the NLRA protect the six employees who left the production building to go to lunch in defiance of management’s rule? More specifically, did the termination of these employees interfere with, restrain, or coerce employees exercising their rights?
RIGHTS OF EMPLOYEES. SECTION 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...
UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.
Discussion and Rulings
What does section 7 protect? Section 7 protects three things: i) the formation of labor unions, ii) collective bargaining, and iii) “other concerted activities” for “other mutual aid or protection.” There is no union involved in this case so the first two do not apply, but what about “other concerted activities?” Does this apply to nonunion situations? YES, section 7 protects “other concerted activities for...other mutual aid” which includes unorganized employees (NLRB v. Washington Aluminum, 370 U.S. 9 [50 LRRM 2235] (1962)).
Therefore, section 7 may apply to the facts of this case, but we need to think more carefully about the interpretation and meaning of “other concerted activities for...other mutual aid.” First, before getting to specific phrases, recall the domain of section 7. The NLRA pertains to wages, hours, and terms and conditions of employment so the concerted activity must pertain to these subjects. Was the lunch break policy a condition of employment? Yes. Lunch policies are clearly an important component of working conditions.

Second, consider “concerted activities.” “Concert” means “together” – did the employees act together? Five of the six clearly did (three left at one time and two left together a few days later) and we can debate Christina Hodgeman. On the surface, she acted alone which means her activity is not “concerted” and therefore not protected (so the employer is free to discharge her without violating section 8(a)(1)). On the other hand, the NLRB has a long tradition of rulings that “individual protests are protected as concerted activity if the matter at issue is of moment to the group of employees” (Bird Engineering at 1419). It is still debatable, however, how “enmeshed” Hodgeman was with the others. In sum, for five of the six, there is clearly acting in concert.
Third, consider “other mutual aid.” This is probably the most difficult part of the case. Start with a clear example of “mutual aid”: a strike. Suppose the employees clocked out together and declared themselves on strike until the policy was changed. Would this be protected? YES – this is exactly the type of behavior the NLRA protects and this application has been upheld by the Supreme Court in Washington Aluminum (a group of nonunion employees spontaneously stopped working due to dissatisfaction with working conditions). Is that what happened in this case?
According to the Administrative Law Judge, this is what happened in this case. In his words, “employees who together seek amelioration concerning terms or conditions of employment are exercising a right guaranteed under the Act” (at 1419). Consequently, their discharge violates section 8(a)(1). In his view, the employees acted together to protest an element of working conditions.
The National Labor Relations Board (NLRB) (in the Reagan era, June 1984) disagreed. The NLRB argued that this was not “a strike, withholding of work, or other permissible form of protest to demonstrate their disagreement” (at 1415) with a work rule. Rather, the employees simply ignored the rule and by following their pre-rule custom “they did not participate in a legitimate protected exercise but rather engaged in subordination.” They did not go on strike, but rather tried to keep on working while at the same time picking and choosing which rules to follow: “They simply attempted to have it both ways – avoiding the involvement in a labor dispute and deciding for themselves which rules to follow and which to ignore.” This is insubordination which is not protected and therefore the discharges do not violate the NLRA.
In conclusion, the critical issue is how you view the action of clocking out and going to lunch. Is it a protest in an attempt to change the rule analogous to a strike or is it simply ignoring the rule? If it’s akin to a strike (“mutual aid”), it’s protected activity. If it’s ignoring a rule, then it is insubordination.
Remedies
The Administrative Law Judge found all six discharges to violate section 8(a)(1) so he ordered the company to cease and desist from violating the Act and to reinstate the six employees to their previous positions with back pay (with interest) and no loss of seniority. The NLRB did not find any violation and therefore no remedy was necessary.
Final Remarks
Protected activity is a very important concept, but it must be some type of acceptable behavior consistent with the spirit of the Act (to allow workers to band together to counter the bargaining power of employers in determining wages, hours, terms and conditions of employment). Behavior that is individual, violent, illegal, irrelevant (not pertaining to terms and conditions of employment), or simply insubordination is not protected. As with other areas of labor law, there is a balancing of rights between the rights of labor and the rights of management to manage.
Notes on the Nebraska Statute
I traced the Nebraska lunch hour statute (R.R.S. Nebraska 48-212) back to 1931 when it was passed (as 48-215) on April 4, 1931 without the proviso (“Provided, that the provisions of this section shall not apply...). This proviso was added in 1955 (Laws of Nebraska, 1955, ch. 188, p. 535) by Legislative Bill 461 (approved April 7, 1955; effective September 18, 1955). As of 1997, the statute was still in the laws of Nebraska with the same wording. I could not locate any stated rationale for the addition of this proviso.
Citation
This case is adapted from Bird Engineering, 270 NLRB 1415 [116 LRRM 1302] (1984).

Box 5.24: Fired for Poor Driving, or Talking with a Union Organizer?

• How would you argue the first three requirements on behalf of the discharged employee: (1) Garcia was engaged in protected activity, (2) the employer was aware of the activity, and (3) the activity was a substantial or motivating reason for Garcia’s discharge?

See teaching notes.
2.   Assuming that the first three requirements are established, how would you argue on behalf of the employer that Garcia would have been discharged even if he had not engaged in his protected activity?
By focusing on his unsafe driving. See teaching notes.
3.   If you were a member of the NLRB, how would you rule? What is the remedy?
Answers may vary. The remedy would be reinstatement with back pay.
Teaching Notes
The Issue
The scenario in this case is a classic 8(a)(3) unfair labor practice question. The employer claims to have valid, job-related reasons for disciplining or firing an employee while the employee feels that these reasons are an excuse to justify firing a union supporter. The question for the NLRB is whether the employer’s claims are legitimate, or are instead simply a pretext for firing the employee because of their union activity. It is very important for management and union practitioners to understand how the NLRB analyzes and decides these cases.
UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer--(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . . .
Discussion and Ruling
Because this is one of the first labor law discussion cases, I provide the students with some structure for dissecting this case (see the “Discussion” section of Box 5.24). In later cases, students will need to create their own structures for analyzing each case.

When an alleged 8(a)(3) violation hinges on the employer’s motivation (valid job performance issues or retribution for union activity), the NLRB applies the framework established by Wright Line, 251 NLRB 1083 (1980) [approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 403 (1983)]. In this framework, the General Counsel (the prosecution) must first show that (1) the employee was engaged in protected activity, (2) the employer was aware of the activity, and (3) the activity was a substantial or motivating reason for the employer’s action. If the General Counsel establishes these facts, the burden of proof then shifts to the employer to prove that it would have taken the same action even if the employees had not engaged in protected activity.
The discussion case’s first question asks students to construct arguments on behalf of the discharged employee (Jose Garcia) to fulfill the first three requirements. The first two are straightforward: (1) Garcia was engaged in protected activity by meeting with the union organizer, and (2) The employer (as represented by the supervisor, Chris Mueller) knew about this protected activity after talking with workers who were present at the meeting with the union rep (note that at least one employee mentioned Garcia by name). The evidence supporting the third requirement (that the activity was a substantial or motivating reason for Garcia’s discharge) is more subject to interpretation than the first two, but a supporting argument use the following facts: i) the supervisor was clearly upset, ii) the supervisor appeared more upset when hearing Garcia’s name, iii) the monitoring of Garcia’s driving occurred only two days later, iv) Garcia’s infractions were almost immediately reported (this was atypical), and v) Garcia was apparently the first driver ever disciplined for driving infractions.
The discussion case’s second question turns to the next part of the Wright Line framework: Assuming that the first three requirements are established, how would you argue on behalf of the employer that Garcia would have been discharged even if he had not engaged in his protected activity? The answer is directly from the case: “Taylor indicated that Garcia intermittently exceeded the speed limit, ran a red light, and left his turn signal on for a long time. Mueller then fired Garcia for these traffic violations and for two prior incidents of insubordination.”
The final question asks students how they would rule. To rule in favor of Garcia (that his discharge was illegal) requires that the first three requirements were met and that the company’s argument about Garcia’s driving infractions are unconvincing. To rule in favor of the company requires either the first three requirements are not met (which would presumably hinge on the third requirement in this case, that the activity was a substantial or motivating reason for Garcia’s discharge) or that the company’s argument about Garcia’s driving infractions are convincing.

Answers may vary as to which set of arguments is most convincing, but the NLRB ruled against the company and in favor of Garcia. This decision relied on the suspicious timing of the monitoring of Garcia’s driving (the monitoring occurred only two days after the supervisor learned of Garcia’s meeting with the union rep, the results were reported almost immediately, and Garcia was quickly fired without ever get a chance to respond to the accusations) and also on the disparate treatment that Garcia seems to have received (he was apparently the first driver ever disciplined for driving infractions, and the infractions were not more severe than others). In fact, the real supervisor in the real NLRB hearing testified that he often tried to be lenient with the drivers and to give them as many chances as possible. Garcia seems to have been treated differently which undermines the company’s argument that it would have taken the same action against Garcia even without his union activity.
To underscore the legitimacy of different answers, note that one member of NLRB dissented from the majority opinion and felt that the company demonstrated that it would have taken the same action irrespective of Garcia’s union activity. This dissent argues that the driving violations were severe enough (especially running a red light with a full truck of flammable petroleum) to warrant immediate discharge even if no other employees had been previously discharged for driving violations.
Remedies
The NLRB found that the discharge of Jose Garcia violated section 8(a)(3) so it ordered the company to cease and desist from violating the Act and to reinstate Garcia to his previous position with back pay (with interest) and no loss of seniority.
Final Remarks
The Wright Line test is very important for students of labor relations because it pertains to the heart of U.S. labor law: the dividing line between legitimate employee discipline and discharge on the one hand, and unlawful retaliation for union activity on the other. Human resource managers, therefore, must be able to document that employee discipline and termination is applied consistently and for valid job-related reasons, and that the reasons for discipline are not a pretext for discriminating against concerted activity (similar principles apply to other areas of employment law, such as discrimination on the basis of race or sex). This is an important example of how labor law matters for the everyday practice of labor relations, even in nonunion situations.
As with other areas of labor law, there is a balancing of rights between the rights of labor and the rights of management to manage. Employees have the right to engage in union activity, but employers have the right to expect satisfactory job performance. Wright Line cases try to balance these competing rights by determining if employers have a legitimate, not pretextual, reason for disciplining or discharging an employee in each case.

Citation
This case is adapted from La Gloria Oil and Gas Company, 337 NLRB No. 177 (2002).

 

Box 5.25: Is Body Language Protected Activity?

• Are the nurses covered by the NLRA? Remember that the NLRA excludes supervisors from protection under the Act using the following definition:

2(11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Answers can vary. Nurses can direct assignment and make comments about aides, but other people actual make decisions regarding discipline and discharge. The NLRB felt that the nurses were covered and this is what should be assumed to discuss the rest of the case. But there is somewhat of an ongoing debate—this case actually went all the way to the Supreme Court which ruled that the nurses were in fact supervisors.

• Create a list of possible reasons that the three nurses were fired. Determine whether each reason is protected by section 7.

1. Going to Toledo and speaking out against their boss. Protected.
2. Poor work performance. Unprotected if legitimate, but this legitimacy is debatable.
3. Body language to express opposition. Answers may vary. See teaching notes.

• If you were a member of the NLRB, would you rule that HCR violated section 8(a)(1) of the NLRB by discharging the three nurses (assuming that they were covered by the NLRA)? Why or why not?

Answers may vary. See teaching notes.
Teaching Notes
Teaching Strategy
This is an effective discussion case, but the effectiveness is increased if the students discuss the questions in small groups before having a full-class discussion. The instructor should circulate among the small groups to facilitate and focus their discussions.
The Issue
The employees were arguing that their rights guaranteed by Section 7 of the NLRA were being violated because they were discharged for engaging in concerted activities for the purpose of mutual aid.
DEFINITIONS. SECTION 2. When used in this Act--
(3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act...
(11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
RIGHTS OF EMPLOYEES. SECTION 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).
UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.
So in essence, the issue is whether traveling to Toledo and their demeanor (as communicated via body language) is protected activity.

Discussion
Are they covered?
It is important to note that this is a procedural issue – is there something to investigate? For example, if firms with more than 100 employees have to pay a minimum wage then before investigating an alleged violation, you see whether the firm has more than 100 employees and is covered by the law. If the firm only has 50 employees, there is nothing to investigate.
Under the NLRA, it doesn’t matter whether or not there is a union present – unionized and nonunion private sector employees are generally covered (excepting supervisors, agricultural workers, etc.). A more contentious issue is whether or not they are supervisors. Most of the nurses’ work duties are not supervisory, but a small amount could be considered as supervisory in nature. These responsibilities may make them supervisors. Do they?
The nurses did indeed assign work to the aides. However, it does not demand much skill (interchangeable aides) and in fact, they normally follow routine patterns and let the aides decide among themselves who is going to cover what patients. Nurses can make comments about aides, but other people actual make decisions regarding discipline and discharge. Recall that at night they are the most senior personnel present, but the Director of Nursing is on call and is often contacted for non-routine matters.
As the NLRB that the nurses were not supervisors, this is the assumption maintained in discussing the remainder of the case. But answers can vary. In fact, the case made it all the way to the Supreme Court which ruled that the nurses are not supervisors, at least not as argued by the NLRB. In my view, the majority opinion only addresses a very narrow issue. The case does not appear to broadly address whether or not the nurses are supervisors under the NLRA, but rather whether or not the nurses fulfill one of the criteria for supervisors under the NLRA (namely, whether they are acting in the interest of the employer). The NLRB says that the nurses are not acting in the interest of the employer, but in the interest of the patient. The court says that this is a false dichotomy: the employer is in the business of providing good care so nurses are acting in the interests of the patient and the employer. But the students do not need to be confused by this legalese.

Why were they fired?
There appear to be three primary direct candidates for the nurses’ discharge. First, they could have been directly fired for traveling to Toledo. This is probably not true. Second, they may have been fired for their disciplinary notices. Third, they may have been fired due to their resistant demeanor (as communicated nonverbally). Before deciding which reason (or reasons) is paramount, try to decide protected activity.
Is traveling to Toledo protected activity? Why did they travel to Toledo? To discuss work-related problems at the nursing home (in the words of the NLRB, to speak about “workplace matters of concern to the employees”). This is certainly protected.
Are the disciplinary warnings protected? Obviously not if they are justifiable and warranted. However, the warnings may not be valid grounds for a discharge if they resulted because of protected activity (i.e., if the department heads did not like the nurses’ valid criticism of Young so they responded by harassing the nurses via disciplinary notices). There seems to be evidence of this--for example, two of the nurses were the only two to receive warnings about the inservice. Similarly, a state audit found many (minor) mistakes by all of the nurses in their unit, but only the three in question were disciplined.
Is their expressed demeanor protected? This is not an easy decision (the NLRB and the law judge disagreed on this point). First, what does the demeanor pertain to? If the demeanor indicates an unwillingness to fulfill a legitimate job responsibility, then this unwillingness is insubordination and is not protected. The NLRB, however, ruled that the director’s view that they were resistant to change (as expressed nonverbally) indicated that they would continue to engage in the same type of previous behavior. What was this previous behavior? It was expressing dissatisfaction to management and bringing matters of legitimate concern to the employees to the attention of supervisors. This is certainly protected behavior. In sum, to the extent that rolling your eyes and crossing your arms indicates that you are going to continue to discuss legitimate workplace concerns, rolling your eyes and crossing your arms is protected. In contrast, if rolling your eyes and crossing your arms indicates a refusal to accomplish legitimate job duties, then it is insubordination and not protected by the NLRA.
The administrative law judge, while admitting that if their demeanor had been expressed verbally it would be protected, was unwilling to extend protected activity to nonverbal communication (was it even intended as communication?). Should it make a difference whether communication is verbal or nonverbal? The NLRB obviously thought the form of communication irrelevant, although the administrative law judge disagreed. When can you be sure that nonverbal communication is intended to be communication?

Recall the Wright Line (251 NLRB 1083 (1980)) precedent: management has to show that they would have been fired in the absence of the protected activity. It is not sufficient for the company to simply provide a legitimate reason for its action, but rather must convince that the same action would have taken place even if the protected activity had not occurred. Thus, if none of the events would have occurred if the nurses didn’t travel to Toledo, their discharge is illegal because the trip is protected activity.
Rulings
The administrative law judge ruled that the trip to Toledo was protected activity, but was not the reason for their discharge. He ruled that the main reason (among other minor ones, e.g., the complaints by supervisors) for their discharge was their expressed opposition, via body language, to the director. He ruled that had their dissatisfaction been expressed verbally, it would have been protected. But he would not extend protection to non-verbal communication. He also felt that it was too circumstantial to rule that all of the investigations resulted from the Toledo trip.
The NLRB disagreed with the law judge. The NLRB ruled the firings would not have taken place without the trip to Toledo and that the trip is protected activity. Thus, the firings violated Section 8(a)(1) of the NLRA. Further, they ruled that their demeanor expression via nonverbal communication was protected activity. They emphasized that the director was very forthright about admitting that the nurses’ resistance to change was the reason for their discharge. But they felt that this resistance to change meant they would continue their previous activity, i.e., discussing legitimate workplace concerns with management. These discussions are protected and therefore so is the nonverbal communication. Since they were fired for this nonverbal communication, their discharges were illegal (in violation of Section 8(a)(1)). The company did not fulfill its burden under Wright Line to prove that the employees would have been fired had the protected activity never occurred.
The NLRB also ruled that the disciplinary notices stemmed from the nurses’ trip to Toledo and their complaints to management. Since that is protected behavior, the disciplinary notices violate Section 8(a)(1).
Remedies
The NLRB issued a cease and desist order and a make-whole remedy. The NLRB ordered Heartland to restore the nurses to their positions without loss of seniority and to pay them lost earnings. Also, reference to their action was to be removed from their personnel files.

A General Lesson
The Wright Line example embodied in this discussion case can be subtle in that it does not involve explicit union activity – i.e., the nurses were not trying to form a union. A more typical example would involve explicit union activity (as in Box 5.24). For example, instead of going to Toledo to talk to management, suppose the nurses went to Toledo to talk to a union about organizing the nurses. The legal analysis, however, is the same: did the discipline/discharge stem from union activity? If so, the discharge is illegal.
Citation
This case is Health Care & Retirement Corp. of America and Ruby A. Wells, 306 NLRB 1 (1992). The Supreme Court decision is NLRB v. Health Care & Retirement Corp., 114 U.S. 1778 (1994).

Suggested Class Discussion or Short Essay Topics

• In one Sherman Antitrust Act case, the Supreme Court found Samuel Gompers and the American Federation of Labor guilty of violating the Act by placing a stove company on its “We Don’t Patronize” list in its magazine. What do you think motivated the Supreme Court to make this decision? How do you think they justified denying Samuel Gompers and the federation their right to free speech?
• Is it time for U.S. labor law to be reformed? If so, what changes are necessary? What intellectual school of thought (e.g., neoclassical economics, human resource management, etc.) underlies these changes?
• Is it good or bad that major NLRB decisions are sometimes split along party lines (see Box 5.22)?

Internet Exploration

• Find a state bargaining law online. Is this a comprehensive law? How is it similar to the NLRA framework? How is it different?
• Tip: Links to public sector labor laws can be found at: http://www.afscme.org/otherlnk/weblnk36.htm
• Explore the websites of the National Labor Relations Board (www.nlrb.gov ) and the National Mediation Board (www.nmb.gov ). How are these agencies similar? Different?
• Whether or not graduate assistants are protected by labor law in terms of trying to organize unions and bargain collectively depends on whether the university is public or private, and for the public sector, what state it’s located in. Explore the Coalition of Graduate Employee Unions website (www.cgeu.org ) to learn about the employment issues of concern for graduate students and the differing levels of legal coverage. Is it good or bad that there are such great legal differences across sectors?
• Search the Web for statements on the need to reform the NLRA. Try to find pro-business and pro-union perspectives. What are the important issues? Why?

Other Links
Federal Labor Relations Authority: http://www.flra.gov
Norris-LaGuardia Act: http://www.law.cornell.edu/uscode/29/ch6.html
National Labor Relations Act: http://www.law.cornell.edu/uscode/29/ch7.html
Landrum-Griffin Act: http://www.law.cornell.edu/uscode/29/ch11.html
Union LMRDA Reports Online: http://union-reports.dol.gov
Railway Labor Act: http://www.law.cornell.edu/uscode/45/ch8.html
Civil Service Reform Act, Title VII: http://www4.law.cornell.edu/uscode/5/pIIIspFch71.html

Suggested BusinessWeek Articles
1.   “Labor Comes Up for the Test” (March 2, 1935, pp. 9-10)
2.   “Labor Relations Runaround” (July 6, 1935, p. 22)
3.   “A New Deal for America’s Employers” (June 28, 1947, pp. 15-22)
4.   “Labor Violence and Corruption” (August 31, 1957, pp. 77-90)
5.   “Trying to Thaw the Coal Talks,” (March 20, 1978, p. 32)
6.   “Airline Congestion at the Bargaining Table, Too” (March 19, 2001, p. 46)