Limitations on an employer's right to discipline and discharge employees

An employer's prerogative to discipline and discharge its employees has been substantially infringed by the courts, state legislatures, Congress, and governmental agencies. In its recent Materials Research decision, the National Labor Relations Board has expanded the Weingarten principle by limiting the employer's ability to conduct investigatory and disciplinary interviews of nonunion employees. In addition, state courts and legislatures have begun to scrutinize the grounds for an employer's discharge of an employee, and Congress has statutorily prohibited the discipline or discharge of employees who "blow the whistle" on their employers under certain circumstances. This article will evaluate recent developments in this area of law and explore their impact on an employer's right to discipline and discharge its employees.     

Who Is a Worker? Partisanship,the National Labor Relations Board,and the Social Content of Employment

In opinions addressing whether graduate students, medical residents, and disabled workers in nonstandard work arrangements are employees under the National Labor Relations Act, I analyze partisan differences in how National Labor Relations Board members, under the previous two US presidents, confronted the contradictory permeation of wage‐labor into relatively noncommodified relationships. I argue that Republicans mediated the contradictions by interpreting indicia of employer property rights as status authority. They constructed employment as a contractual relationship consummated through exchange relations and demarcated a nonmarket social sphere in which to locate the relationships before them. This construction suppressed the class dimension of employment and the connection between relations of production and relations in production ( Burawoy 1979 ). Democrats mediated the contradictions by recognizing them in part and arguing that the workers were engaged in commodity production. They proposed the Act as a means for workers to negotiate “differentiated ties” ( Zelizer 2005 ) in nonstandard employment.     

A proposal for a nonreinstatement rule in unfair labor practice cases involving patient abuse

Nursing home discharges of employees based on patient abuse raise a difficult issue when the motivating factor for the disciplinary action is union activism. A tension is created between the rights of employees to engage in protected concerted activity and the rights of patients to quality care. In 1974, Congress passed the Health Care Institutions Amendments, which granted to non-profit health care workers collective organizing and bargaining rights substantially similar to those which workers in other industries had enjoyed for decades under the National Labor Relations Act. Congress intended to give health care workers only that degree of parity, however, which is compatible with the provision of high quality patient care. The agency charged with enforcing the Act, the National Labor Relations Board (NLRB), has failed to distinguish employee misconduct in industrial settings from patient abuse in health care institutions when fashioning remedies for discriminatorily discharged union activists. The NLRB typically has ordered the reinstatement, with back pay, of the patient abuser as the patient's primary care-giver. This Article suggests that a front pay remedy is more appropriate to these cases because it protects the patient's right to be free from abuse without sacrificing employee unionization rights.     

Is "ten days" really ten days?--the National Labor Relations Act's strike notice requirement in the healthcare industry

Nearly thirty years ago, Congress amended the National Labor Relations Act (Act) and provided employees of healthcare institutions with the right to strike and picket. At the same time, Congress added a new Section 8(g) requiring a labor organization to provide a healthcare institution with ten days' notice before engaging in various types of concerted activity--primarily strikes and picketing--against the institution. Thus, Section 8(g) is an important statute for healthcare employers. But since the time Congress added Section 8(g), the National Labor Relations Board has taken various views on Section 8(g) and whether "ten days" is really ten days. This Note explores the purposes of Section 8(g), as well as the reach and limits of its language, noting areas in which the board may wish to reconsider its application of the statute. Ultimately, the Note provides a checklist for healthcare employers to keep in mind with respect to Section 8(g).     

Freedom of Speech in Union Representation Elections: Employer Campaigning and Employee Response

In 1977 the National Labor Relations Board announced that it would no longer probe the truth or falsity of statements made in the course of representation campaigns. This decision, Shopping Kart Ford Market, overruled longstanding Board policy and was itself overruled the following year. Now, in August of 1982, the Board has again made a commitment to nonprobing and has reinstated the Shopping Kart standard (Midland National Life Insurance Co.,___ N.L.R.B.____, 110 L.R.R.M. 1489 (1982)). Such seesawing of Board positions suggests the difficulty of attempting to protect freedom of speech while simultaneously supporting other national labor policy goals, including employee freedom of choice and the integrity of representation elections. Critical to determining the appropriate standard for campaign speech is an understanding of how employees respond to misrepresentations or coercion in an employer's campaign rhetoric. This paper investigates the relationship between employer campaigning and employee response. Both employer and labor organization will have incentives to prevent coercive or misrepresentative speech at certain levels of violation severity. But in an intermediate range of speech in which that is not the case, the Board has a unique role to play in protecting the rights of individual employees and the public interest in the integrity of elections.     

Union organizing drives dealt a blow by Supreme Court

The Lechmere case is important because it reaffirms that employers' property rights take precedence over the rights of nonemployees to engage in union organizing on employers' property. This is particularly important for hospitals and health care institutions because of their heightened exposure to union organizing activity after American Hospital Association v. National Labor Relations Board, discussed above. Providers should, however, remember two points. First, the principal focus of Lechmere was on union organizing by nonemployees; nothing in Lechmere limited the basic right of employees to form and join labor unions as guaranteed by Section 7 of the NLRA. Additionally, Lechmere notwithstanding, providers must be careful not to discriminate in their approach to union organizing activities--even by nonemployees. Thus, if a provider allows nonemployee groups other than unions to enter upon its property for purposes of soliciting employees and/or distributing literature, any attempt to bar nonemployee union organizers from the property would probably be deemed discriminatory and could indeed be an unfair labor practice. (In Lechmere, the employer consistently enforced a ban against all such nonemployee groups.)     

Smokers vs. nonsmokers in the work place: clearing the air.

As the antismoking movement grows, employees are becoming more vociferous about their right to a work environment free from tobacco smoke and its toxic effects. In response to these concerns, ordinances regulating smoke in public places and in some cases banning it altogether have been passed in several states and some cities. Likewise, courts have addressed the issue of nonsmokers' rights in the work place. In the following article, the authors examine the scope of regulation thus far and the prospect of future regulation on smoking in the work place. They also examine court, National Labor Relations Board, and arbitration decisions that have dealt with the rights of smokers and nonsmokers.     

"Totality"--right or wrong: the totality trilogy

Totality, or the concept that all evidence that may bear on a given case should be considered together in issuing a decision, has been applied inconsistently by the National Labor Relations Board, particularly with regard to three types of cases: "good faith doubt" cases, those involving employer statements made during a union election campaign, and employee discharge cases. In the following article, the author examines cases that demonstrate how the Board has vacillated in its application of the totality principle.     

An 'enlightened' view of employee committees under the Taft-Hartley Act

The Sixth Circuit Court of Appeals recently ruled, in NLRB v. Streamway Division of the Scott and Fetzer Co., that an in-plant representation committee, unilaterally established by the employer, was not a labor organization. Until 1959, when the Supreme Court decided NLRB v. Cabot Carbon. "labor organization" was narrowly construed, based on the traditional adversary model of labor relations. With Cabot Carbon, and some later Board decisions, the definition has broadened. Now, at a time when many employers are turning to employee committees, quality circles, etc., as ways of improving relations with employees, the Streamway decision takes on particular significance. In the following article, the author examines the statutory basis for determining whether an employee committee is a labor organization, within the meaning of the National Labor Relations Act. He also discusses the judicial and Board precedent for the more liberal definition of "labor organization" set forth in Streamway.     

Health Care Institution Amendments to the National Labor Relations Act: an analysis.

Ira M. Shepard, J.D. herein analyzes the legislative history and the substantive provisions of the 1974 Health Care Institution Amendments to the National Labor Relations Act. The Amendments bring private, non-profit health care institutions and their employees under the coverage of the NLRA, the goal of Congress being to reach a successful compromise of the public's right to receive uninterrupted health care; the health care institution's obligation to provide these services to the fullest extent possible; and the right of health care employees to have the same voice in the determination of their wages, hours, and working conditions accorded other workers under the NLRA.     

Hospital strikes: complying with NLRA notice requirements

Section 8(g) of the National Labor Relations Act, added in the 1974 amendments to the Act, requires a labor organization to give an employer in the health-care field ten days' notice of an intended strike or picketing. The purpose is to allow the health-care employer time to make arrangements to ensure the continuation of health-care services to critically ill patients. Failure of a union to give this notice constitutes a violation of the Act, and individuals who engaged in the activity may, as a result, lose their status as employees under the Act. In the following article, the authors examine the requirements of section 8(g) and the case law interpreting this statute. They suggest likely future interpretations of this law and make practical suggestions for responding to strikes in the health-care setting.     

"Business Unionism" versus "Responsible Unionism": Common Law Confusion, the American State, and the Formation of Pre-New Deal Labor Policy

The emergence of the American Federation of Labor in the 1880s and its ideology of voluntarism or "business unionism" transformed the mainstream American labor movement. Voluntarism, however, had little impact on the formation of the pre-New Deal labor policy. I suggest that members of the progressive movement developed "responsible unionism" as an alternative to "business unionism" and that it was the progressives' alternative that shaped later developments in labor policy. (1) Progressive state and federal court judges relied on the principles of agency, a fiduciary term, to make unions competent contracting parties and enforce collective trade agreements. (2) Although the AFL had long lobbied for anti-injunction legislation sup ported by an underlying ideology of voluntarism, the progressive Republican-Democratic coalition that engineered passage of the Norris-LaGuardia Anti-Injunction Act of 1932 based the legislation on their notion of "responsible unionism." These progressives interwove the principles of agency into the act. As a result, rather than withdrawing the American state from labor-management relations, the act caused unions to begin to lose their status as private, voluntary associations, thus creating the foundation for the construction of the statist regulatory apparatus, the National Labor Relations Board, during the New Deal.     

Plant Closings and Public Policy: Achieving an Optimal Level of Plant Closings

A severe problem confronting the Northeast portion of the United States has been the closing of plants. In making the decision to close a plant, firms tend to consider private benefits and costs. However, there are significant external costs to the community and workers which an appropriate public policy should require firms to consider. The law has dealt with the plant closing issue in several ways, including the collective bargaining process through the National Labor Relations Act, court challenges, and state and local legislation. This study examines each of these and concludes by calling for comprehensive federal legislation.     

Structural determinants of union activity in hospitals

This study uses national data from the American Hospital Association and the National Labor Relations Board in a multivariate framework to assess the impact of various structural factors on union activity in hospitals. The theoretical framework includes both management and union perspectives in evaluating (1) whether the hospital had a signed collective-bargaining contract in 1980; (2) whether a union election had been held; and (3) whether the union won the election. The results indicate that certain structural characteristics (hospital size, ownership, teaching status, and location) have had a significant impact on union activity in hospitals, while other characteristics (third-party reimbursement and area factors) have not. The results also show that prospective reimbursement has a positive impact on union activity.     

Plans established or maintained pursuant to collective bargaining agreements under section 3(40)(A)--Pension and Welfare Benefits Administration. Notice of intent to form a negotiated rulemaking advisory committee

The Department of Labor (Department) intends to form a Negotiated Rulemaking Advisory Committee (Committee) in accordance with the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act. The Committee will negotiate the development of a proposed rule implementing the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001-1461 (ERISA). The purpose of the proposed rule is to establish a process and criteria for a finding by the Secretary of Labor that an agreement is a collective bargaining agreement for purposes of section 3(40) of ERISA. The proposed rule will also provide guidance for determining when an employee benefit plan is established or maintained under or pursuant to such an agreement. Employee benefit plans that are established or maintained for the purpose of providing benefits to the employees of more than one employer are "multiple employer welfare arrangements" under section 3(40) of ERISA, and therefore are subject to certain state regulations, unless they meet one of the exceptions set forth in section 3(40)(A). At issue in this regulation is the exception for plans or arrangements that are established or maintained under one or more agreements which the Secretary finds to be collective bargaining agreements. If adopted, the proposed rule would affect employee welfare benefit plans, their sponsors, participants and beneficiaries, as well as service providers to plans. It may also affect plan fiduciaries, unions, employer organizations, the insurance industry, and state insurance regulators.     

Judicial review of NLRB rulemaking in the health care industry: implications for labor and management

In 1987 the National Labor Relations Board set out to promulgate a rule to define the appropriate bargaining units for the health care industry, making the first use of its substantive rulemaking powers. This departure from the traditional process of adjudication of unit determination issues occurred because of thirteen years of NLRB frustration resulting from congressional admonition against proliferation of bargaining units and subsequent inconsistent judicial interpretation of that admonition. This article traces the factors that led to the decision to rulemake, discusses the development of the rule itself, and examines the rule's judicial experience to date. It presents empirical findings of hospital union election activity during the period from 1985 through 1987 that confirm the thesis that bargaining unit size is a significant variable in election outcomes. Finally, the authors assess the likely outcome of the impending Supreme Court decision on the rule, along with implications for labor and management.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

雇主不当劳动行为的民事救济——基于我国和美国不当劳动行为救济制度之比较

我国《工会法》第52条规定的责令雇主承担不当劳动行为的民事责任,与美国《国家劳资关系法》第10(c)条的规定看起来很相似,相比之下,这一规范在美国劳动法的实践中很有效,在我国却极少被适用,解释方面也存在较大的分歧。美国是世界上最早创设不当劳动行为救济制度的国家,从《瓦格纳法》规定的雇主不当劳动行为的禁止规范及救济措施,到《塔夫托—哈特莱法》将适用对象扩大到工会和雇员,在雇用自由原则和劳资自治模式的背景下,其演变始终以保护雇员团结权的松紧程度和收放态度为线索。我国《工会法》现正处于第三次修改阶段,适时检讨第52条的解释和适用的障碍,还可以解决其与《劳动合同法》规范的竞合问题。     

Performance of functions; claims for compensation under the Energy Employees Occupational Illness Compensation Program Act. Interim final rule; request for comments

This document contains the interim final regulations governing the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the Department of Labor (Department or DOL). Part B of the Act provides uniform lump-sum payments and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B of the Act also provides smaller uniform lump-sum payments and medical benefits to individuals found eligible by the Department of Justice (DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or years of established wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any years of established wage-loss). Part E of the Act also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of the RECA and, where applicable, to survivors of such employees. The Office of Workers' Compensation Programs (OWCP) administers the adjudication of claims and the payment of benefits under EEOICPA, with the Department of Health and Human Services (HHS) estimating the amounts of radiation received by employees alleged to have sustained cancer as a result of such exposure and establishing guidelines to be followed by OWCP in determining whether such cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for notifying potential claimants and for submitting evidence necessary for OWCP's adjudication of claims under EEOICPA.     

The Consequences of Culture: Legal History,Labor Law,and the Contributions of Christopher Tomlins

This article reviews three books on labor law written by Christopher Tomlins. They are, in order of publication, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (1985); Law, Labor, and Ideology in the Early American Republic (1993); and Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010). Tomlins has been an influential figure in the movement known as “critical legal studies” and has helped shape a new approach to the field of labor history, labor law, and the study of US workers. Over the span of twenty‐five years, Tomlins's research has been central to evolving theories of law and social interaction and has continuing relevance to more recent scholarly developments such as the field of “cultural cognition” studies.