ClassNotesLaborLawIIKlare

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Labor Law II

Prof. Karl Klare

Monday, December 1, 2003 (Class 1)

• Announcements
  • One year fellowship AFL-CIO post-graduation $46K-$50K, medical and dental, DC based
  • Peggy Browning Scholarship
  • Tuesday, 12/2, MIT Room 54-100, teach-in on right of employees to organize, John Sweeney Speaking

• Course introduction
  • Other foci than labor law: Constitutional issues including due process and first amendment rights
  • Key provisions from Labor Law I: Section 7, 9(a) of NLRA

• Section 9(a)
  • Majority rule
    • Whether or not organization becomes unionized is decided by majority vote.
    • Doesn't have to be this way--employees could choose to join or not, e.g., European regimes.
  • Exclusive representation
    • Union that wins majority represents every employee in bargaining unit, including those that voted againt unit
    • Unit membership vs. Union membership
      • Union membership: contract between member and union as organization
      • LMRDA: requires unions to treat members in certain ways
      • Unit membership: issue of people in bargaining unit who might disagree with Union

• Duty to bargain
  • Applies once union has majority status
  • 8(a)(5): employer's duty to bargain with Union
  • 8(b)(3): Union's duty to bargain with employer
  • 8(d): partial definition of duty to bargain, includes good faith requirement
  • Collective bargaining agreement is outcome when successful

• Collective bargaining law principles
  • Governance: how decisions are made in workplace
  • Model of governance
    • Different from other familiar systems, e.g., town meeting or state government
  • Overlapping sovereignties
    • E.g., classic case: federal and state law
    • Public law vs. private law between parties

• Public sector (84%) vs. Private Sector (16%) legal rights in employment relationship
  • Constitutional guarantees of individual rights bind public sector but not private sector employers
  • Public sector employer cannot fire employee for reason that violates First Amendment.

• Individual employee vs. represented employee
  • Certain high-powered individual employees can get individualized contract of employment, e.g., college professors
  • Will look at rights of non-union public sector employees vs. union private sector employees; which system of protections is better?
  • Public sector rights tend to be individual, while private sector union rights tend to be collective: i.e., Union can sacrifice individual employee's rights for good of other employees
  • Constitutional rights change much more rarely than collective bargaining rights
  • Mechanism of enforcement: constitution = lawsuit; collective bargaining agreement = arbitration, right to strike.
  • Meaning of "having a right" does not have fixed meaning; when you have a right to freedom of speech, this can mean different things at different times. Protecting people's rights doesn't mean much unless we know what these rights are or mean.

• NLRA does not cover public sector employees except postal workers.
• Federal civil servants outside of military usually covered by Federal Civil Service Reform Act of 1978: resembles NLRA except that employees are not permitted to strike. Felony to strike against United States government.
• State Law. E.g., Mass. Gen. Law. 150e gives collective bargaining rights to most employees of state and local government.
• About 1/3 of states don't recognize collective bargaining rights.
• Public sector unionized employees: statute, collective bargaining agreement, constitution. What happens when collective bargaining agreement points in one direction but constitution points the other way?
• Would workers be better off if constitutional restrictions on unions were lifted?

• Statistics
  • Overall union density: 13.2%
  • Can't be forced to join union, but can be forced to pay dues. Percentage who are unionized: 15%
  • Private sector unionization: 8.5% (significantly below percentage at start of great depression)
  • Public sector unionization: 37.5%
  • Public sector unionization among those who have right to bargain: closer to 50%
  • Yet no right to strike in public sector

• Model collective bargaining agreement
  • Progressive discipline: penalties should increase over repeat offenses; punishment should fit crime
  • Discharge for just cause
  • Example of private lawmaking; common law does not require employer to have good reason for firing; outside of certain statutory requires (e.g., racial discrimination)
  • Discrimination provision: tracks public law, illegal for employer or Union to discriminate on race, color, religion, sex, age, disability, national origin. Union gets efficient method to enforce these rights.
  • Enforced by grievance and arbitration procedures
    • Grievance = allegation that collective bargaining agreement has been violated
    • Arbitration = neutral third party to make binding decision, interprets and applies law of shop.

• Law applied to polity

1. Constitution
2. Law-giver (legislature)
3. Executive branch
4. Judiciary (can strike down legislation, though)

• Law applied to non-union workplace

1. Law external to shop--e.g., environmental regulations, minimum wage (analog to constitution)
2. Legislation/executive branch combined = management (theoretically subject to control of shareholders)
3. Judiciary? None--no "voice mechanism."

• Law applied to unionized workplace

1. Constitution = NLRA, FLSA, Civil Rights Act of 1964 (Title VII) (binds employers and unions), Duty of Fair Representation
2. Legislation = Collective bargaining agreement, sets basic contours of rules for workplace
• Market input: willingness of unit to strike if proposed agreement isn't good enough
• Voice: employer must listen to and attempt to come to terms with union regardless of strength of Union. Duty to bargain.
  • Mandatory subjects of collective bargaining: employer may not make unilateral changes before reaching impasse.
  • Union is statutorily entitled to information about enterprise; also unrelated to bargaining power.
1. Executive: management. Must obey management and file grievances later.
2. Judiciary: arbitration. Again, voice input permitted regardless of bargaining strength.

• Governance
  • Making the contract
    • Duty to bargain, no unilateral changes, etc..
    • Neither party can use its strength to force discussion of permissive subject--Borg-Warner.
    • Borg-Warner: Employer was strong, union was weak. Employer demanded provision to allow it to attend union meeting prior to strike decision and take poll. Supreme Court held that employer can't insist on permissive subject (in this case, internal union affairs).
    • Most core enterprise/major capital decisions are permissive and thus union cannot insist.
  • Interpreting/enforcing the contract
    • Many things can happen during two or three year contract:
      • New matters arise (e.g., war occurs, company has to go into new line of business)
      • Matters discussed before but unresolved
      • Questions of interpretation and application of collective bargaining agreement, situation comes up where rules are ambiguous
      • Matters not discussed in negotiations
    • Duty to bargain continues during term of contract
    • Section 7 rights continue during term of contract
    • Management wants to suspend right to strike and duty to bargain during term of contract
    • Duty to bargain defined in 8(d): proviso, where there is in effect a collective bargaining agreement, cannot use economic force to modify contract until contract has expired.
    • Model Contract provision XVI: union and company agree not to strike and lockout. No-strike clause is crucial feature of system of governance, extremely common
    • Mastro Plastics exception: strike provoked by ULP isn't barred by no-strike clause. Because ULP is breach of fundamental "constitutional" ground rules, no strike clause is suspended.
    • Safety strike, also not barred by no-strike clause.
    • Management rights clause: Article III of model collective bargaining agreement, waiver by union of right to insist on bargaining on certain topics during term of contract. Freezes out Union's coparticipation role during term of contract. Two dimensions:
      • Coverage (what kinds of decisions are left to management during contract--can be broad or narrow)
      • Strength (can give employer unreviewable power or power within certain framework)

• For tomorrow, read Chapter 1 of materials.

Tuesday, December 2, 2003 (Class 2)

• Administrative Issues
  • No class on Friday
  • Next class on Monday, December 8, assignment is Chapter 2

• If we consider workplace as area needing to be government, under common law management governs.
• Common law system ceased to work under industrial age.
• United States has avoided general approach of statutory determination of terms and conditions of employment; leaves determination to private or semi-private systems.
• CVWP = Countervailing worker power; workers have option of putting in institution to advance interests of workers, then goes to freedom of contract between parties.
• Left wing elements in labor movement wanted to effect welfare state; Republicans wanted to repeal NLRA.
• After World War II, biggest strikes in U.S. history.
• 1946 Republicans gained control of Congress. By 1950, it is clear that neither side is strong enough to win or weak enough to lose.
• "Social contract" emerged in late 1940's and early 1950's:
  • Capital had to accept that unions were "here to stay."
    • De facto decision not to repeal NLRA.
    • Law gradually put in place right of union to collect dues money.
  • Labor became conventional in workplace politics and public affairs politics.
    • Gave up idea of massive redistribution.
    • "Worker power" idea narrowed to better wages and benefits, mainstream of Democratic party politics, cold war consensus.
    • Leftist in labor movement purged.
    • Unions achieved high gains in standard of living
      • In return for high wages, labor agreed to stand aside for large strategic capital decisions
      • Mandatory and permissive subjects of collective bargaining doctrine
      • Permissive subjects: union is prohibiting Justice Stewart in Fibreboard, "core of entrepeneurial control."
  • Quid pro quo: unions got legally enforceable review of management decisions through grievance/arbitration; management got legally enforceable "no-strike" obligation, labor peace during term of contract.
    • Lincoln Mills: "The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement."

Textile Workers Union of America v. Lincoln Mills of Alabama

[353 U.S. 448] 1957 United States Supreme Court (cb1-9)

• Probably the most important labor law class since World War II, also important for Federalism
• Starts off as routine contract dispute; union gave no-strike clause in return for grievance/arbitration procedure.
• Grievance arose concerning work load.
• Basic rule is that employees need to follow directions even if it violates contract.
• Union sought arbitration, not for money damages particularly but to get employer not to violate contract again.
• Employer refused to arbitrate, claimed it had authority to make decision.
• Union claimed employer breached contract by refusing to arbitrate
• Union wanted court to injoin employer to arbitrate
• Alabama law did not allow specific enforcement of arbitration agreement, thus only damages were possible in state court.
• Union files suit in Federal District Court
  • §1331 Fderal Question basis for jurisdiction
  • §301 of LMRA: (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
• Options for resolving conflict
  • Lawsuit
  • Self-help
  • ADR
• Problems with Lawsuit as Enforcing Collective Bargaining Agreement
  • Management liked idea of enforcing contract in court, but found it difficult because of technicalities, e.g., union was not viewed as entity under state law but as collection of individuals; union had no money--thus could not get damages, only injunction.
  • Unions didn't like lawsuits because they didn't trust Judges, who tended to be pro-management
  • Unions hated labor injunction--union's power is power to interrupt work, can't be turned "on and off" like electricity. Management used injunctions to put down strikes in late 1800's.
  • If workers violated injunction, contempt trial would be help before Judge who granted injunction, who could send workers to jail.
  • For many year, Democratic party included in platform provision to abolish labor injunction.
• Self-Help
  • Could use strikes or lockouts
  • "The usual methods of adjustments in labor disputes" -- Shulman lecture
  • Prior to World War II, self-help was the typical contract enforcement mechanism
  • Disadvantages: unstability
  • Advantages: worker empowerment
  • During World War II, Unions gave voluntary pledge to not strike during war. Felony to strike in War Industries.
• ADR
  • World War II: grievance and arbitration procedure advanced as a result of no-strike promise; government ordered employers to accept grievance/arbitration during war.
• Late 1940's: pressure on labor was enormous to buy into grievance/arbitration no-strike system.
• For the most part, labor accepted arrangement.
• 1957, Lincoln Mills case: employer is not playing by the rules, now union has massive incentive to force employer to play by rules.
• Frankfurter dissent: accuses Union of opportunism, talks about Clayton Act and Norris-LaGuardia? Act which restrict injunctive relief.
• First question: does § 301 create jurisdiction to hear a case of this kind in Federal Court? Suit for breach of collective bargaining agreement.
  • Requirements to get into Federal Court: statute created by Congress lodging jurisdiction in federal district courts, and prove that statute is within Article III constitutional limits
  • §301 seems to be grant of jurisdiction.
  • Frankfurter claims that §301 is not constitutional under Article III. Suit for breach of collective bargaining agreement does not arise under federal law.
  • If intention of §301 was that courts would apply ordinary state contract law, then §301 would be unconstitutional because it wouldn't raise under Federal Law.
  • Court must then come up with source of law if it wants §301 to be constitutional, but Congress has not come up with any source of law.
  • Thus §301 is substantive, not just jurisdictional.
  • Thus §301 is constitutional.
  • But if federal common law governs collective bargaining agreements, then federal courts would already have jurisdiction under §1337--district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce. No need for jurisdictional words of §301.
• §301 from an obscure jurisdictional provision becomes the source of a large body of federal common law.
• Federal rule to be applied: we will grant specific enforcement of agreements to arbitrate.
• Partial repeal of Norris-LaGuardia? act.

• For Monday, Chapter 2.

Tuesday, December 9, 2003 (Class 3)

United Steel Workers of America v. American Manufacturing Co.

[363 U.S. 564] 1960 United States Supreme Court (cb2-1)

• Patently frivolous grievance; court holds that it must go to arbitration regardless.
• If claim is covered by contract, then employer must go to arbitration.
• "Therapeutic value" of arbitration process--safety valve idea.
• No exception in no-strike clause, thus there should be no exception in grievance clause, "quid pro quo." But in fact trade off is not absolute.

United Steel Workers of America v. Warrior & Gulf Navigation Co.

[363 U.S. 574] 1960 United States Supreme Court (cb2-4)

• Workforce cut in half as result of outsourcing.
• Union claims that this is lockout violating contract; but in fact employer was actually terminating employees, not locking them out.
• Contract says any local trouble of any kind will be settled through arbitration. Issues which conflict with any Federal Statute or "strictly a function of management" shall not be subject to arbitration.
• Defense: subcontracting out is strictly function of management, not subject to arbitration.
• "Warrior & Gulf presumption": Courts should presume that parties have agreed to arbitrate dispute when ambiguous. Must be "positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."
• Need most forceful evidence of exclusion.
• "When, however, an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement"... again, misleading suggestion that no-strike and arbitration promises are both absolute.
• When judges say grievance is arbitrable, this is a "choice of forum" question--if grievance is of type that parties agreed to send through alternative dispute resolution process.
• When grievance gets to arbitration, question is "did employer violate contract?" Arbitrator must apply contract. Almost every contract is going to have a "management rights" clause. If grievance protests act within management rights clause, then no breach of contract.
• Since arbitration can't overturn management rights clause decisions, "no-strike" and "arbitration" clause are not really mirror image quid pro quo.
• Management rights clause typically encompasses much more than exceptions to no-strike clause (i.e., ULP and unsafe conditions strikes).

• Reading for Friday: Chapter 3; focus on Discussion problems.

Friday, December 12, 2003 (Class 4)

• Arbitrability: who will decide dispute? High standard for proving issue is not arbitrable.
• Employer is not always restricted in substantive sense; however. Arbitrator will only act if contract restricts employer's acts.
• Contract almost always has management rights clause; if management's act falls under management rights clause, arbitrator will deny grievance.
• Why arbitrators?
  • Arbitrators may have specialized knowledge.
  • Therapeutic value of alternative dispute resolution (sense of justice for worker).
  • Governmental function theory of collective bargaining agreement
    • Smooth operation of workplace requires certain institutions
    • Collective bargaining agreement only sets out general rules--can't tell management and labor how to respond to each and every situation
    • Warrior & Gulf Navigation: "there are too many people, too many problems, too many unforeseeable contingencies to make the" contract cover everything--needs to be "common law" of shop.
    • Lawmaking is continuous--gap-filling mechanism could be management, but in collective bargaining, gap-filling is bi-partite.

Ford Motor Co.

[3 L.A. 779] 1944

• If employer gives comand, employee must obey, even if command is clearly prohibited by contract.
• Exceptions: reasonably grounded fear of harm, illegal act under public law, if contract specifies certain commands may be refused.
• New cases
  • Privacy -- order to engage in drug testing where contract says employer can't do random drug testing, some arbitrators have said that employee doesn't have to obey.
  • Sexual harassment -- where employee is ordered to do something that subjects her to threat of continued sexual harassment, has right to refuse in some cases.
• Otherwise, basic principle is "work now, grieve later."
• Long delay between incident and arbitrator award--can be 18 months. Thus, during this time employer's interpretation of contract prevails.
• Zipper clause: anything not discussed will be treated as if it was discussed and union lost.
• Arbitrator holds that someone must be in control, and this should be management.

United Steel Workers of America v. Enterprise Wheel & Car Corp.

[363 U.S. 593] 1960 United States Supreme Court (cb2-11)

• Suits to enforce/suits to vacate
• Ordinarily, court should "rubber stamp" arbitatror's award; losing party's attempt to get "another bite at the apple" should be seen as disruptive
• "Arbitral award must draw its essence from collective bargaining agreement." "He does not sit to dispense his own brand of industrial justice."
• Later case: Misco (1987)--at least "arguably draws its essence" from collective bargaining agreement.
• Exceptions to court enforcement of arbitrator decision:
  • Dishonesty/fraud (e.g., bribe)
  • Misco exception: if award violates public policy
• Not reasons for vacating awards:
  • Because ambiguity as to whether award drew its essence from contract
  • Error of law
  • Error of fact ("silly fact-finding" Misco)

United Paperworkers Int'l Union v. Misco, Inc.

[484 U.S. 29] 1987 United States Supreme Court (cb3-7)

• Court's refusal to enforce arbitrator's award under a collective bargaining agreement because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy.
• Congress has determined that best way to resolve problems is "autonomous system of industrial self government."
  • But system is not really "autonomous"--works within property, contract, and tort law
  • No sense in theory that radical restructuring is desirable (i.e., background law rules)
  • Above "autonomous system" is public policy / law (common law, statutes). Court will not uphold autonomous system if it violates public policy.
• Public policy limitations
  • Policy must be explicit
  • Well defined and dominant
  • Award itself must clearly violate public policy
• Employee is smoking marijuana and working on dangerous machine, fired, arbitrator gives him job back, district court refuses to enforce award, Supreme Court overrules.
• Validity of discipline must rest on information available to employer when it acted; evidence of marijuana in employee's car was not found until after termination.
• Is not clearly shown that what award did violated public policy, even if what employee did violated public policy.

Monday, December 15, 2003 (Class 5)

Black v. Cutter Laboratories

[351 U.S. 292] 1956 United States Supreme Court (cb3-1)

• Plaintiff is union activist, discharged for making false statements on application (note that today salts can lie on application). Also discharged for being member of communist party.
• Plaintiff admits false statements, says communist party membership issue is private. At time, communist party membership is felony under Smith Act. Union admits employer might have reason to believe that plaintiff is member of communist party.
• Board of arbitration restores plaintiff on basis that employer knew about issues for years before discharge (keep issues in "pocket" for later). Estoppel or waiver theory.
• California Court of Appeal confirms award, Supreme Court of California overturns.
• California Supreme Court opinion talks a lot about evils of communism. California has public policy against employment of communists. Award is void because it orders employer to reinstate communist.
• Union seeks certiorari on theory that this is state action: if California Courts upset autonomous self-government system that this would trigger bill of rights protection, and that discharge because of political views would violate First Amendment.
• "Independent and adequate state ground": if judgment below could stand on state law, then Supreme Court will not review it.
• Thus, Supreme Court dismisses cert as improvidently granted on basis that decision was state law decision.
• Odd aspects of decision
  • California Supreme Court decision about communists not holding jobs had no basis in statute or anything else. Would not pass under Misco.
  • One year before Lincoln Mills--here contract interpretation turns on state law, rather than federal common law in Lincoln Mills.
  • Supreme Court sees collective bargaining as "private," not invoking Bill of Rights.
• Douglas, Warren, and Black Dissent: California Supreme Court did not rest on state law, but rather was state action which must be subject to bill of rights.
• Footnote: union is subject to bill of rights even though private employer is not. I.e., employer could hire all-Democratic labor force, but union could not limit employees to labor force. But aren't corporations creations of state actors? Shouldn't they be subject to bill of rights too? On the other hand, maybe other cases show that unions are not really subject to same scrutiny as state actors.

Strikes (Chapter 4)

• Quid pro quo deal: enforceable arbitration for enforceable no-strike clause
• When contract expires, however, strikes are still possible.
• Exceptions
  • Public sector strikes almost always forbidden -- felony for federal civil servants
    • In other countries, however, distinction is not public vs. private but critical functions vs. everything else.
  • Secondary strikes -- strikes for organizinig. Made illegal under Sec.8(b)(4) is 1947.
  • Midterm strikes: most important to get rid of from management's point of view.

Sands Manufacturing Co.

[306 U.S. 332] 1939 United States Supreme Court (cb4-4)

• Rule: strike in breach of no-strike clause is unprotected.

• 8(d)(4) 1947 act: violates 8(b)(3) duty to bargain in good faith to strike during contract.
  • Lose status as employee.
• 1947 § 301: added enforcement of collective bargaining agreement in federal court. Money liability for breach of contract.
• 8(d)(4) applies regardless of no-strike clause, but only when strike is for modification of contract. Would not apply, e.g., for grievance strike.
• If there is no no-strike clause, then Sands and § 301 rules don't apply.
• Norris-LaGuardia? §4(a) is other loophole: no injunctions shall be issued by federal courts growing out of labor dispute for:
  • Ceasing or refusing to perform any work
• Thus, if there is grievance strike during contract, even if breaches no-strike clause, federal court cannot issue order to stop strike.

Local 174, Teamsters v. Lucas Flour Co.

[369 U.S. 95] 1962 United States Supreme Court (cb4-7)

• Worker drives forklift onto railroad tracks, is fired by employer.
• Union claims dismissal was not just cause.
• Rather than work/grieve, bargaining unit went on strike. Thus this is grievance strike.
• Employer sues for money damages. Can only win if there is no-strike clause in contract.
• Union claims contract did not contain general no-strike clause: where there is dispute about interpretation of agreement, contract specifies arbitration and there will be no suspension of work.
• "Other disputes" does not have no-strike obligation, however. This union claims it could strike.
• Case is filed in state court: argument that Lincoln Mills made this all federal, subsequently Charles Dowd Box Co. held that suit could be brought in Federal or State Court.
• Question: what substantive rules of contract apply in State Court? Court holds that all suits are substantively governed by federal law, whether case is heard in state or federal court. §301 preemption.
• Basis of preemption:
  • Congress declared that Federal Law had to be "paramount" with respect to collective bargaining agreement (no legislative history is cited, though).
  • Need for uniformity to preserve industrial peace.
    • Maybe makes it easier for workers to participate in collective bargaining (?) to have one interpretive law.
• What is federal common law, then?
  • Follows Circuit Court of Appeals: agreement by employer to settle disputes by arbitration gives rise to implied no-strike clause.
• Thus, if contract is silent, then it will be assumed that union has given no-strike pledge. Thus previously recognized statutory right to strike is nullified by this case because judges think this is better way to preserve industrial peace.

Monday, December 15, 2003 (Class 5)

• For tomorrow, read Gateway Coal. Room will be divided up for three questions on handout.

Local 174, Teamsters v. Lucas Flour Co.

[369 U.S. 95] 1962 United States Supreme Court (cb4-7)

• Black letter holding: promise by employer to arbitrate gives rise to implicit promise by union for no-strike clause, unless overriden by explicit language.
• Two reasons
  • "Traditional principles of contract law" -- but there is no such principle.
  • Policy: contrary view would be completely at odds with basic policy of national labor legislation
• Black dissent: freedom of contract, parties wrote it one way, court is rewriting contract. This is what modern labor legislation is supposed to prevent--courts deciding social policy.
• Arbitrable means procedural arbitrability. But if grievance concerns management perogative, then arbitrator will deny grievance, but union can still not strike over grievance.

Sinclair Refining Co. v. Atkinson

[370 U.S. 195] 1962 United States Supreme Court (cb4-14)

• Another loophole about enforceability of no-strike clauses
• By this time, strike in breach of no-strike clause was unprotected thus workers could be fire and breach of contract subjecting union to monetary liability.
• But if employer fires employees then it may have trouble.
• Damages: may be five years later, doesn't help employer with problem at time.
• Remedy sought in this case was injunction against strike.
• Norris-LaGuardia? Act: federal courts may not issue injunctions growing out of labor dispute against striking.
• Court rejected employer's claim hat Norris-LaGuardia? needed to be "accommodated" to §301(a); said court could not injoin striking.

Avco Corp. v. Aero Lodge No. 735, Int'l. Ass'n. of Machinists

[390 U.S. 557] 1968 United States Supreme Court (cb4-15)

• Employer sues union for breach of contract in state court; state had no equivalent to Norris-LaGuardia?, thus state court could issue injunction against peaceful strike.
• Union seeks to remove to Federal Court--can they do it?
• Under Avco, yes, case can be removed if Federal Court could have had original jurisdiction over case. Must appear from plaintiff's complaint.
• Suit for breach of contract in state court is actually governed by federal common law of collective bargaining agreement (Lucas Flour).
• Employer was thus relying on federal law, thus case could have been brought in federal court under §301.

• Sinclair and Avco promoted forum shopping: any time a union got sued for strike injunction in state court, it could get out of injunction by removing to federal court.

Boys Markets, Inc. v. Retail Clerks Union, Local 770

[398 U.S. 235] 1970 United States Supreme Court (cb5-1)

• Overrules Sinclair--adopts dissent.
• Brennan is one of the most liberal judges, sided with by Nixon conservative appointees.
• Employer rearranges food, union claim this was bargaining unit work.
• Employees demands employer have bargaining unit employee strip counters and restock for breaching contract.
• Rather than "work now, grieve later," union goes on strike.
• Employer seeks strike injunction, gets injunction in state court, then union removes to federal court, but district court does not dissolve injunction.
• 9th Circuit orders District Court to dissolve injunction.
• Supreme Court overrules Sinclair and 9th Circuit, introduces new doctrine.
• Notwithstanding Norris-LaGuardia? §4(a), a strike in breach of no-strike clauseover arbitrable grievance may be injoined if equity favors an injunction.
• Most of reasoning is about why Sinclair was wrong.
  • Sinclair and Avco ousts state courts of jurisdiction, but Congress did not want to oust state courts of jurisdiction.
  • But it is not jurisdiction that is displaced, but rather right of state courts to issue injunctions. Supremacy/preemption of federal law at issue.
  • Could have reconsidered Lucas Flour instead.
  • Brennan says this encourages rampant forum shopping. But instead could have adopted federal common law imposed on state courts barring strike injunctions.
  • Brennan claims that Congress didn't intend to displace state court remedies; but maybe it was just jurisdiction, not remedies, that Congress did not intend to displace.
  • Unintended function of removal proceeding.
• Additional reason: "devastating implications for enforcement of arbitration agreements"
• Employers won't enter into arbitration agreements if they can't get no-strike agreement (but overwhelming number of employers had already agreed to these clauses without ability to get injunction).
• Brennan's vision is thus quid pro quo -- kingpin is arbitration for no-strike.
• Black's vision is that Norris-LaGaurdia? is a heart of federal system--no intervention. Breathing room to employee self-activity.

• Loose ends of Boys Markets tomorrow, and Gateway Coal.

Wednesday, December 17, 2003 (Class 6)

• For Friday, Chapter 7, Part One: Boundary of labor and civil rights law

Boys Markets, Inc. v. Retail Clerks Union, Local 770

[398 U.S. 235] 1970 United States Supreme Court (cb5-1)

• Issue: blending §301(a)-1947 and Norris-LaGaurdia? Act 4(a)-1932.
• Although §301(a) is jurisdictional, has been giving meaning of preserving industrial peace and favoring arbitration over strikes.
• Boils down to 'making a political choice' between competing concerns.
• Brennan's reasoning
  • Statutes may not have self-evident meaning; need to do interpretive work, against literalism
  • Basis of decision needs to be balancing of competing values
  • Not particularly enamored of stare decisis.
• Black
  • Stare decisis
  • Judicial deference to legislature--separation of powers and institutional competence
  • Judges should not make law
  • Deference to will of parties--freedom of contract
• Result: injunction against strike is possible in §301(a) case.

• "Reverse Boys Markets injunctions": union sues employer to stop employer from making change in business that union thinks is prohibited by contract.
  • E.g., employer wants to contract out work, could be irreparable harm.
  • Although reverse Boys Markets injunction might restore some parity, this almost never happens because of traditional rules of equity.
  • Interruption of business is almost always considered irreparable harm, while lost employment is never considered irreparable harm.

• If employer has 100 or more employees at all operations, and if at least 50 employees are involved in subcontracting, then employees are entitled to 60 days notice or 60 days pay (minus weekends and holidays). "WARREN Act."

Gateway Coal Co. v. United Mine Workers

[414 U.S. 368] 1974 United States Supreme Court (cb6-1)

• For many years, subsurface coal mining was most dangerous industry in the United States.
• Problem of regulatory failure: although safety regulations exist, penalties were low and little government monitoring.
• Union can do monitoring and reporting, however.
• Issue: should job action be legitimate response to regulatory failure?
• Dispute: employer proposes to reassign supervisors who have pleaded nolo contendere to falsification of safety records.
• Boys Markets requirements -- must all be met
  • Strike
  • In breach of no-strike clause
  • Over an arbitrable grievance
  • Ordinary rules of equity
• Court holds grievance was arbitrable; under Warrior & Gulf ambiguity is resolved in favor of arbitration.
• Collective bargaining agreement states "any local trouble" is subject to arbitration.
• Collective bargaining agreement also provides for union safety committee to make binding recommendation in case of emergency, argument against arbitrability.
• Thus there may be ambiguity, Warrior & Gulf presumption favors arbitration.
• Arbitration provision in Boys Markets was explicit; here, however, grievance is only arbitrable on basis of Warrior & Gulf ambiguity presumption.
• Douglas dissent wants to make exception for safety cases. "Men are not wont to submit matters of life or death to arbitration."
• Two possible rules
  • This sort of dispute gets channeled into arbitration and grievance
  • This sort of dispute is relegated to conflict of power (Douglas dissent)--tries to get it out of arbitration so there is no implied no-strike promise.
• But if Douglas is right, then safety dispute is not arbitrable, and thus union can only strike.
• Agreement rescinds prior no-strike agreements, but Powell finds that it does not negate current no-strike agreement that arises out of Lucas Flour duty from arbitration provision.
• Gateway Coal creates new presumption: absent an explicit expression of intention to negate no-strike duty, agreement to arbitrate and no-strike will be coterminous.

Monday, January 5, 2004 (Class 8)

• Make up class on Wednesday, January 28, 12:00pm-1:20pm.

Steele v. Louisville & Nashville R.R. Co.

[323 U.S. 192] 1944 United States Supreme Court (cb7-1)

• For background on case (from Friday before break), see Karl Klare [61 Ore. L. Rev. 157.] (1982).
• Group of African-Americans sue employer and union, alleging conspiracy to discriminate against black employees. Want damages and injunctive relief to desegregate union.
• Court avoids constitutional question, says that if NLRA gave power to union without any duty, constitutional questions could arise.
• "We think Railway Labor Act imposes upon rep at least as exacting a duty to protect equally the interests of the members...as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates."
• Question: what is duty then?
• No discrimination based on invidious categories.
• Essential bans union from using suspect classification. But where union is acting within "bounds of relevance," given latitude to make distinctions.
• Example: if union is going to advantage older employees at newer employees' expense, needs to give newer employees notice and opportunity to be heard.
• Duty of fair representation does not require union to desegregate, however.
• Decided same day as Korematsu.
• Opinion closely resembles amicus brief of United States; did not include desegregation in amicus.
• Thus Board continued to certify segregated union.

• Is fair representation possible without full participation?
• Alternative vision of unionism articulated by plaintiffs: participatory/empowering enterprise, explicitly rejected by government.

James v. Marinship Corp.

[155 P.2d 329] 1944 California Supreme Court (cb7-9)

• Shipbuilding union had separate local for African-Americans.
• Union had closed shop with employer.
• Issue arises under California common law: distinguishes Steele, says segregated union is okay, or closed shop is okay, but can't have both.
• Once union has closed shop, it has a quasi-monopoly over access to jobs. Becomes more like a 'public utility'.
• 8(a)(3) if interpretted literally would prohibit not only discrimination against union members but also prohibit favoring unions in any way (i.e., closed shop). But Congress included proviso that payment of dues to union can be condition of employment. Employer cannot favor union if it knows union engages in discrimination. Codified Marinship although it is not clear that Congress understood that.
• "It is difficult to see how a union can fairly represent all the employees of a bargaining unit unless it is willing to admit all to membership, giving them the opportunity to vote for union leaders and to participate in determining union policies..." Different vision of unionism than United States Supreme Court.

• CIO always had non-discrimination clause in constitution; in 1955 AFL-CIO merged; from 1955-1964 some unions were still segregated; in 1965 civil rights act took effect banning discrimination (§703(c)).
• 1975: 31 years after Steele, NLRB ruled that duty of fair representation requires open membership in unions. Gender discrimination case.

• Justice Murphy's concurrence in Steele: court is "mute and placid as to obvious and oppressive deprivation of constitutional guarantees..." Probably would have held that segregated union was unconstitutional.
• Little basis for congressional intent.

• If NLRA/RLA do not require union to give fair representation, would this be unconstitutional?
  • Governmental action--possible theories
    • Shelley v. Kramer: racially restricted covenant--state action comes from court enforcement of contract.
      • Distinguishable because minority members would not want no contract, but a better contract. And problem is not contract itself, but denial of membership. If all contract enforcement is state action, then private-public distinction is abolished.
    • State delegates power or private actor enmeshed in governmental scheme
      • But then anything union does is state action simply because it's part of regulatory scheme.
    • Public function theory -- if private individual assumes or is granted role of performing public function, then is bound by constitution
      • What would be union's role, then? Maybe lawmaking/legislation.
  • Court's problem: needs to somehow make distinction between union's bargaining role and internal rule for purposes of State Action; otherwise all corporations would be state actors.
• Underlying question: how much do we want unions to be constrained as state actor? Too much 'state actor' and unions could be depoliticized.

Conley v. Gibson

[355 U.S. 41] 1957 United States Supreme Court (cb7-13)

• Two phases of collective bargaining: negotiating and administration
• Question: does duty of fair representation apply to administration as well as negotiation?
• Bargaining representative's duty not to draw irrelevant and invidious distinctions (duty of fair representation) does not come to abrupt end with making of contract; collective bargaining is continuous process.
• 9(a)--"provided that any individual employee or a group of employees shall have the right at any time to present grievances to their employer." Suggests maybe that Congress sees duty of fair representation as slightly different in contract administration.
• Mere fact that segregation exists is not enough unless it gives rise to injury (but this is after Brown v. Board).
• Court rejects dismissal on Rule 19 (failure to join indispensable party). Claims that it doesn't effect employer. (but this would have actually bound employer).

• Do Ford Motor Company and next chapter tomorrow.

Tuesday, January 6, 2004 (Class 9)

Ford Motor Co. v. Huffman et al.

[345 U.S. 330] 1953 United States Supreme Court (cb7-16)

• Two types of seniority
  • Benefits seniority: e.g., weeks of vacation relative to time served
  • Competitive seniority: seniority relative to other employees--e.g., lay-offs order
• No legal basis for seniority rights; entirely result of contract or custom
• First collective bargaining agreement: June 20, 1941
  • Competitive seniority for purposes of retention is based on length of service for company
• After 1941, Selective Service Act requires employer to respect accumulated seniority prior to military service and including military service (postemployment service).
• February 26, 1946--renegotiate contract, July 30, 1946--supplemental agreement (contemplated by renegotiating contract)
• Employees sue employer and union, claim company expropriated value from workers when it reordered seniority list.
• Supplemental agreement gave seniority to employees who had done military service but never worked for Ford.
• Duty of fair representation
  • No claim of bad faith
  • "The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed ... subject to good faith and honesty of purpose" (and no invidious discrimination).
  • Union agreed midcontract to take away a benefit Huffman had from 1941 contract.
• Rights are not individual rights, they are representational rights--Huffman can't sue union because he doesn't like how it represented him.
• Gender context: returning veterans were of course almost all men (Ruth Milkman article)

• Traditional view: Bill of Rights protects the individual from the state
• Modern view: bill of rights is not sufficient, thus intermediate groups like unions, civil rights group, women's movement, political parties are necessary to protect the individual.
• Problem: intermediate groups can also become oppressive (e.g., unions that exclude racial minorities)--thus state needs to come in to protect individual from intermediate groups
• Thus two contradictory views of rights: want government to stay out, and let groups represent individuals against state; but sometimes want state to protect individuals from groups (e.g., Steele, imposing duty of fair representation).

• Duty of fair representation becomes piece of architecture of mainstream labor law rather than about civil rights
• Is collective bargaining agreement contract to which employee is party? Can employee force union to enforce contract, or enforce contract on their own?

• Hildreth example: employee claims contract was violated when she was fired without just cause. Union claims it saved jobs even though Hildreth lost her job. No discrimination. Employer will claim there is no contract with plaintiff; contract is with union.

• Friday, complete Chapter 8 Part 1.

Friday, January 9, 2004 (Class 10)

Union News Co. v. Hildreth

[295 F.2d 658] 1961 6th Circuit Court of Appeals (cb8-4)

[315 F.2d 548] 1963 6th Circuit Court of Appeals (cb8-4)

[341 F.2d 531] 1965 6th Circuit Court of Appeals (cb8-4)

• Suit against employer for breach of contract -- §301 suit (shorthand for 'breach of collective bargaining agreement')
  • Contract says no one shall be dismissed except for just cause; Hildreth dismissed only because she was part of underperforming group, nothing specific
• Suit against union for duty of fair representation
  • Claim is that Union is not enforcing employee's contractual rights to be dismissied for just cause
• Another way to frame it: Hildreth believes she has contractual rights against employer and union that she can enforce.
• Alternative framing: contract is between union and employer, individual has representational rights, not contractual rights.
• Union and employer's position in this case: latter view--no contractual rights for employees.
• Issue: if Hildreth can sue employer directly, then union's representational role is undermined--why would employer make deals with union if employees can go around union channel?
• In real case, Hildreth ended up losing: no breach of contract, contract meant what union and employer said.

Cox Article

• Cox doesn't want to permit individual to have cause of action.

Smith v. Evening News Association

[371 U.S. 195] 1962 United States Supreme Court (cb8-6)

• Three bargaining units: two unionized, one not.
• One bargaining unit goes on strike, the other unit wants to work.
• Theory: forcing employer to pay wages when revenue is down because of strike will force employer to settle.
• Other possibility: maybe second unit is under no-strike clause.
• If they don't let unionized unit work, this could be 8(a)(3) violation, since employer is discriminating against unionized unit as nonunionized unit is still working.
• Instead of 8(a)(3), union sues for breach of contract.
• Contract included language that says employer shall not discriminate on basis of union activity.
• Unclear why union sued for breach of contract rather than 8(a)(3) or ULP.
• Garman preemption: exclusive, primary jurisdiction of NLRB. Employer argued that exclusive primary jurisdiction of agency preempts courts.
• Holding: §301 cases are exception from Garman preemption.
• Next question: can employee sue to enforce collective bargaining agreement? Is employee suit against employer §301 suit?
• Held: contract must be between union and employer, suit does not necessarily have to be between union and employer. I.e., individual employee has standing to enforce collective bargaining agreement.
• Not decided whether employee has any substantive rights under collective bargaining agreement; only that individual has standing to pose question.
• Supreme Court seems to moving in direction of individual rights conception of collective bargaining agreement

Humphrey v. Moore

[375 U.S. 335] 1964 United States Supreme Court (cb8-9)

• Much of Humphrey v. Moore was later overruled
• Dealers and E&L are two companies in Louisville, ship automobiles.
• E&L was going to relocate, sold franchise to Dealers.
• Eventually looks more like a merger. Same work was going to be done by same people, just under new auspices.
• Contract language: if there is a merger, seniority shall be determined by mutual agreement between employer and union.
• Parties decide to dovetail for seniority purposes, so seniority was determined by years of service at either company, result was that absorbed employees from older company had seniority.
• Dealer's employees argued this is not a merger, thus contract provision should not be invoked; even if there was a merger, it only authorizes the creation of a new seniority list, but not entitlement to jobs.
• Dealer's employees were displaced, however, and thus became plaintiffs in this case. Sued employer for breach of collective bargaining agreement, alleging discharge without just cause, also sued union for breach of duty of fair representation.
• Plaintiffs lost contract action, saying that interpretation of contract was reasonable.
• But dicta suggests that if employee's interpretation had been correct, they would have been able to enforce it.
• Court also found no breach of duty of fair representation; no allegations of conspiracy or bad faith panned out. Boiled down to conflict of interest.
• Held: union does not breach duty of fair representation but placing itself in position of representing conflicting interests in bargaining unit; in fact, we expect union to do this (unlike, e.g., criminal defense attorneys).
• Holding regarding duty of fair representation continues to be good law.
• Goldberg's concurrence (joined by Brennan)
  • Goldberg had been secretary of labor and official in CIO
  • Brennan's father was labor activist
  • Would have held that individual employees don't have rights to adjudicate meaning of contract
  • Meaning of contract is what union and employer agree, not subject to collateral attack
• Supreme Court found that employees had opportunity to be heard--but this was mistaken: notice and opportunity to be heard must be before union takes a position, which employees did not get.
• Claims to rely on Huffmann: but Huffmann was about renegotiation of contract, here it was interpretation.

• For Monday, Chapter 8 Part 2 -- Maddox case.

Monday, January 12, 2004 (Class 11)

• Tuesday's class: read Vaca v. Sipes, 9-1 to 9-24.
• Friday: complete Chapter 9.

• After Humphrey v. Moore, commentators thought Supreme Court was moving in direction of giving individual employees rights under collective bargaining agreement.
• 9(a): appears to be make distinction between collective bargaining negotiations (majority rule/exclusive representations/group rights) and grievance process (individual employees--different balance between group and individual).
• Right at any time to present grievances to employer and have such grievances adjusted. Seems to suggest there is individual, indefeasible right to directly resolve grievance with employer without having to go through union.
• Model Contract, Article XIV: Should grievances arise, diligent effort will be made to settle them.
• Article XV: Arbitration. Union may submit matter to arbitration within 30 days after last best offer. (not individual)
• Exclusive Grievance Procedure
  • Sole method of dispute resolution.
  • Only union can go to arbitration
• Exclusive grievance procedure was adopted in most contracts in 1940's etc., but seems to contradict Sec. 9(a).
• Autonomous system of industrial self-government seemed to be moving in different direction than Congressional intent.

Republic Steel Corp. v. Maddox

[379 U.S. 650] 1965 United States Supreme Court (cb8-16)

• Unusual features of this case
  • Union entered as amicus of employer, not employee.
  • "In addition, conscientious handling of grievance claims will enhance the union's prestige with employees." But when did union prestige become a guiding policy for Supreme Court?
  • Case concerned $694. But employer took it to Supreme Court. Employer secretly gave Maddox severance pay after case was finished.
• Republic Steel plant closed. Maddox claimed this was permanent plant closing, entitling him to severance pay under contract.
• Normally, employee would file grievance. Rather than filing grievance, however, employee sued for severance in court. Waits until last minute of statute of limitations, did not ask for jury.
• Claim: employee v. employer breach of collective bargaining agreement conceived of as contract.
  • State court holds that Alabama law applies--but this was decided after Lincoln Mills and Lucas Flour, which declared that federal law preempts. So there should be no state law.
  • State court held that because plant was closed, contract was terminated, thus state common law prevails.
  • Under state law, courts can award damages to employees.
  • Under state law, employee has choice between grievance procedure and making claim in court.
• Employer is attempting to escape Alabama law--exactly what Union did in Lincoln Mills.
• Issue for employer: way judges vs. arbitrators think about collective bargaining agreements. Judges thought about collective bargaining agreement as traditional contracts; if one side breached, then other side sues for damages. Arbitrators do not give damages for breach of collective bargaining agreements unless collective bargaining agreement expressly orders them to do so (rare). Ordinarily there is no award of damages for breach of collective bargaining agreement. Instead arbitrator grants "retroactive specific performance."
• No consequential damages or emotional distress from arbitrator's award, unlike breach of contract action in court.
• Supreme Court holds that federal law, not state law, prevails here.
• As a general rule for cases in which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievace procedure agreed upon by employer and union as the mode of redress.
• Rule only applies where contract contains exclusive grievance procedure.
• Harlan cites Smith v. Evening News footnote: there was no exclusive grievance procedure in that case, thus no problem going to court.
• Also cites Second Circuit case, Cox article. Says that §9(a) is not to the contrary, citing another Second Circuit case, which in reality discusses a provision that was not enacted.
• Then gives policy arguments.
  • 203(d) of LMRA: suggests that Congress likes grievance/arbitration. But doesn't necessarily require result reached here.
  • Union interest in arbitration ("union prestige").
  • Really upholding Autonomous Systemb of Industrial Self-Government
• Holding: suit where employee has failed to exhaust grievance process will be dismissed.
• Black dissent: court is concerned about labor and employers, but not individual employees caught in between.
• Black says Maddox has justiciable claim; Harlan also said there was a justiciable controversy, but that it should be channeled first into the arbitration forum.
• Possible reading of case Black and Harlan are both wrong. Maddox lost not because he selected the wrong forum, but because he had no contract claim to begin with. Only right Maddox may have had was to file grievance and be represented by union in grievance procedure. Court moves in this direction in Vaca v. Sipes, but doesn't quite reach it.

Tuesday, January 13, 2004 (Class 12)

• Possible interpretations of Collective Bargaining Agreement
  • Black: collective bargaining agreement = contract, governed by contract principles, can sue as indivdual
  • Harlan/Clyde? summers: contract, for policy reasons, forum of choice for dispute resolution is arbitration
  • Feller: collective bargaining agreement is a contract between union and employer; so far as employee is concerned, it's not a contract. Employee has legal right to be fairly represented by union in administration of contract.

Vaca v. Sipes

[386 U.S. 171] 1967 United States Supreme Court (cb9-1)

• Clear through all these cases that if there is no exclusive grievance procedure in contract, suit for breach of contract will normally be heard even though grievance procedure has not been exhausted.
• Owens has medical problems, employer discharges Owens.
• Owens claims he is healthful, thus discharged is without just cause.
• Owens files grievance. Union concludes grievance has merit. Ultimately union decides to drop grievance, however.
• Possible reasons union drops grievance
  • Employees' own good
  • Limited resources (money, human resources)
  • Union decides grievance can't be won
• Thus employee has attempted to exhaust grievance procedure, but union is unwilling to go all the way to arbitration.
• Employee brings two lawsuits
  • Against employer for breach of contract ('just cause' clause of collective bargaining agreement)
  • Against union for breach of duty of fair representation (for dropping meritorious grievance)
• Jurisdiction: Court holds that both state and federal courts have jurisdiction over this sort of claim.
• Duty of fair representation: Court decides that union did not breach its duty of fair representation.
• Employee can sue employer only if union's failure to proceed with grievance is breach of duty of fair representation. Thus claim will be dismissed when employee returns to state court contract action.
• Two types of preemption doctrine in labor law
• Soft (or "choice-of-law") preemption: state courts can continue to hear cases, but must apply federal law. Lincoln Mills, §301 doctrine -- suits to enforce collective bargaining agreement.
• Garmen ('exclusive primary jurisdiction of National Labor Relations Board') preemption: Congress decided that there needed to be real centralization and uniformity in lawmaking.
  • If fact situation underlying a lawsuit raises issues under NLRA, then it must be heard by NLRB.
  • As a general rule, neither state nor federal courts have jurisdiction over suits directly involving "activity which is arguably subject to §7 or §8 of the Act."
• Some courts and board decisions had held that breach of duty of fair representation is also ULP under 8(b)(1)(a) of Act.
• If Union breaches its duty of fair representation by mistreating bargaining unit members, they are not acting as 9(a) representative (which is union the fulfills duty of fair representation), therefore union is interfering with rights of bargaining units members under 7 to bargain through a representative of their own chosing.
• If Union had won this argument, then all duty of fair representation claims would be out of courts and into NLRB. Upside: free lawyer. Downside: you might win 8(b)(1)(a) against union, but real target is employer, who is not part of NLRB proceeding. Also, General Counsel has unreviewable authority to decide which charges to pursue.
• Supreme Court has never decided question as to whether breach of duty of fair representation is ULP although it is generally accepted that it is.
• Supreme Court creates exception to Garmen preemption in this case, does not want to give NLRB exclusive jurisdiction over duty of fair representation claims.
• Exceptions to Garmen preemption
  • §301 (Smith v. Evening News): even if employers' breach of contract is also ULP, claim can be brought either before Board or in court.
  • Where activity concern is peripheral to NLRA; deeply rooted in local feeling
• Supreme Court adds exception to Garmen preemption: breach of duty of fair representation is not only civil wrong but also ULP, but exclusive Board jurisdiction does not apply.
• "Duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Court does not want to leave duty of fair representation to NLRB's discretion.
• Practical consideration: why not decide duty of fair representation and contract action in one proceeding?
• But duty of fair representation and breach of contract only become inextricably linked as a result of this case.
• Court comes up with new definition of duty of fair representation: occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Cites Humphrey and Ford Motor Co. v. Huffman--but "arbitrary" (or objective test) is new, not from those cases.

• For next class, read rest of Chapter 9.

Friday, January 16, 2004 (Class 13)

• Over weekend, read Chapter 10, go over problems. Class will concentrate on problems 3 and 4.

Hines v. Anchor Motor Freight, Inc.

[424 U.S. 554] 1976 United States Supreme Court (cb9-25)

• Vaca solidified unique conception of collective bargaining agreement: employees have no enforceable legal rights under contract until union has breached its duty of fair representation.
• This case holds that a valuable contractual right held by employer--finality of grievance procedure--is lost if it later turns out the union committed wrong to employee.
• Drivers were discharged for dishonesty, alleged that they falsified expense accounts.
• Union brought grievances, but did not do full investigation to discover that motel clerk had falsified receipts.
• Don't know whether duty breached duty of fair representation, but bad faith, negligence, etc., are alleged.
• Employer claims case is barred by finality clause in collective bargaining agreement.
• Held: if union breaches duty of fair representation it will negate any finality clause, reexposing employer to a breach of contract suit by employee

• Exception to Maddox exhaustion requirement
  • If employer repudiates grievance procedure
  • Futility; e.g., union and employer are aligned against employee
  • Other, including duty of fair representation
• Alternative to §301 contract claim is sometimes NLRB/ULP.
  • In rare cases, the NLRB will cases where exhaustion exception exists; sometimes, NLRB will defer to arbitration.
• Employer can escape from union victory in grievance procedure if award violates public policy (Misco doctrine).
• If decision to drop grievance did not breach duty of fair representation, case is over; no further recourse.
• If union proceeds to arbitration and loses because it made mistake and breached duty of fair representation, then under Hines employee can bring §301 suit.

• White wrote Evening News, Vaca v. Sipes, Hines, etc.. Gives 'black letter summary' of labor law in Section II of Hines.

Vaca v. Sipes

[386 U.S. 171] 1967 United States Supreme Court (cb9-1)

• After deciding that employee can only go along if union has breached its duty of fair representation, Court decides that union did not breach duty of fair representation.
• Plaintiff's argument: meritorious grievance was dropped, this in and of itself was breach of duty of fair representation.
• Court does not want to prohibit union from dropping potentially meritorious grievances, however.
• Authoritative test for breach of duty of fair representation: union's conduct is arbitrary, discriminatory, or in bad faith. (arbitrary is new term in Vaca).
• Most litigation today falls under category of "arbitrary" conduct.
• Particularized treatment of grievances is required--maybe this means union can't swap grievances with employer.
• Narrow reading of requirement: union has to look at grievance and make evaluation as to its merits, and then can do whatever it wants.
• Broad reading: decision to proceed on grievance must be made on that grievance, rather than other factors.
• No absolute right to have grievance arbitrated and that breach of duty of fair representation is not established merely by proof that grievance was meritorious.

• Righthand column of 9-10 very important--reasons why union must be permitted to drop meritorious grievances
  • Settlement is essential to machinery of industrial self-government; gives meaning to the law of the plant. Union must be able to engage in give-and-take settlement process.
  • Settlement process gets rid of frivolous grievances. Contrast with Steelworkers trilogy: even frivolous grievances should be sent to arbitration because of therapeutic effect of "day in court."
  • Eliminate costs/time consuming
  • Prevent overburden arbitration process

• Other costs of formalizing arbitration process: can negatively impact union democracy--might make it harder for workers to handle grievances and move up through union ranks.

• Allowing union discretion in handling grievances: allows parties to identify grievance priorities. Grievance procedure as management tool; feedback system that management uses to alert it of problems on the shop floor.
• Settlement puts union as co-author of law of shop; cases that are chosen for arbitration do become precedents.

Bowen v. United States Postal Service

[459 U.S. 212] 1983 United States Supreme Court (cb9-34)

• Employee is fired, union agrees to fight termination, but then union drops case inexplicably.
• Employee proves union breached duty of fair representation and that he was discharged without just cause.
• Vaca type case where union did breach duty; issue is union's liability for damages.
• Union argues that it should pay legal fees, etc., only.
• Employer argues that it should only be responsible for backpay up to hypothetical date of arbitration. But this means much longer period must be paid by union.
• Court decides that there is nothing union can do; it must pay backpay for failure to represent. (employer, of course, could stop by backpay accretion by rehiring employee or agreeing to arbitration).

Tuesday, January 20, 2004 (Class 14)

• For Friday, read 11-1 to 11-23.
• Next week, Wednesday make-up class.

• Vaca: breach of duty of fair representation is arbitrary, discriminatory, or in bad faith.
• Legally difficult cases come under arbitrary standard.
  • What if union is late in filing grievance?
  • How thorough does investigation need to be?
  • Uneven representation?
  • Prioritizing certain type of grievances over others?
• Key question: is negligence breach of duty of fair representation?
• Argument in favor of negligence as breach: Can't justify negligence on policy basis: no policy stake in being negligent.
• Opposing argument: if we are legally required to be non-negligent, there will be influence on policy decisions, e.g., allocation of money, time, and resources to grievance processing.
• In 1990, Supreme Court assumed that negligence is not breach of duty of fair representation, in United States v. Rawson [495 U.S. 362] 1990 United States Supreme Court.
• Supreme Court has held "wholly irrational behavior," "gross neglect," to be breach of duty of fair representation.

Local 13 v. Pacific Maritime Association

[441 F.2d 1061] 1971 9th Circuit Court of Appeals (cb10-3)

• Grievant was militant local member, represented by local union against employer and national union.
• National union agreed to interpret contract in such a way that grievant's conduct was worthy of discharge in return for other contractual concessions.
• If union deliberately made trade because they didn't like grievant, that would clearly be breach of duty of fair representation.
• Unclear whether case makes trading grievance for any benefit a breach or not.
• Case seems to rest on bad faith determination.

Smith v. Hussmann Refrigerator Co.

[619 F.2d 1229] 8th Circuit Court of Appeals (cb10-9)

• Contract provided for promotion on seniority principle or merit principle.
• Union put all resources behind seniority grievances without focusing on merit grievances.
• Court held that Union breached duty of fair representation by only focusing on seniority grievances.
• Plaintiffs had "rights" and union had fiduciary duty to protect.
• Feller would consider Smith to be wrongly decided; inconsistent with Vaca, Humphry v. Moore, etc..
• Underlying question, does collective bargaining agreement create enforceable legal rights for individual employee?

Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local 14

[453 F.2d 1018] 9th Circuit Court of Appeals (cb10-24)

• Court finds breach of duty of fair representation when union did not explain contract to non-English speaking employee.

Friday, January 23, 2004 (Class 15)

• Polar positions
  • Contract creates entitlement for individual employees (Summers)
  • Contract creates no rights for individuals (Feller)
• Vaca v. Sipes picks some position in the middle
  • Pro-Summers
    • Case speaks repeatedly of "the employee's contractual rights"
    • Footnotes 9,10: this applies only if there is an exclusive grievance procedure; if there is no exclusive grievance procedure then employee can sue
    • Remedy portion: if union violates duty of fair representation, then contractual right becomes vested in individual employee
  • Pro-Feller
    • Outcome of case. Owens lost; he had no remedy in any forum to vindicate his claim, unequivocal holding of Supreme Court.
    • Policies articulated by Court

Smith v. Hussmann Refrigerator Co.

[619 F.2d 1229] 8th Circuit Court of Appeals (cb10-9)

• Union as agent/fiduciary of employees; follows Summers position

Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local 14

[453 F.2d 1018] 9th Circuit Court of Appeals (cb10-24)

• Union can violate duty of fair representation by inaction as well as by action
• Employee alleges that she didn't file grievance because union failed to advise her in her language; union had no bilingual liaisons, Spanish language contract, etc..

• Steelworkers trilogy and progeny: "adversary" or "reactive" democracy: management makes decisions, and union responds with grievances.
• Cf. 'one member one vote' democratic model.
• Problems with autonomous system of industrial self-government:
  • Private sector union density is now 8.3%--unionization has gone down steadily. Including public sector is now 13%.
  • At end of day, outcome is determined by relative economic strength of parties, not justice of positions
  • ASISG creates small island of due process in sea of inequality
• Labor rights have been supplemented by statutes
  • Title VII of Civil Rights Act prohibits race discrimination (collective bargaining was not sufficient to eliminate workplace discrimination)
  • OSHA
  • ERISA
  • ADEA
  • ADA
• "Meshing": what is interface between legal entitlements and collective bargaining entitlements when both apply to same employee
  • Can collective bargaining agreement waive statutory entitlements in return for some other benefit?
    • Collective bargaining agreement can waive Section 7 rights of employees not to strike
  • Must you exhaust grievance procedure before making a lawsuit on a statutory claim? (we know from Vaca that you must exhaust for contractual claim)
  • Does arbitrator jurisprudence on 'just cause' bind courts and vice-versa? Also for discriminatory intent?
• "Comparing Rights" problems
  • Constitutional rights of public sector non-union employees
    • No exhaustion of grievance procedure for constitutional claim
    • Highly individualistic vs. collective for private sector/collective bargaining agreement

Alexander v. Gardner-Denver Co.

[415 U.S. 36] 1974 United States Supreme Court (cb11-4)

• African-American employee discharged; union files grievance claiming that there was no just cause and that dismissal was discriminatory.
• Arbitrator rejects both claims.
• Employee then files statutory claim under Title VII
• Employer claims employee already had chance to make claim in arbitration; thus should be precluded from lawsuit
• Supreme Court rejects employer's arguments
• Contract claim and statutory claim are just 'two different things'; employee is not getting two bites at the apple, rather has two separate claims
• Court claims that Section 7 rights are different because they are collective; but certain rights are individual, e.g., right to refrain from concerted activity
• Certain rights can't be compromised as part of collective bargaining agreement; different type of rights

Monday, January 26, 2004 (Class 16)

• Must sign up to take exam on computer between January 26 and February 13
• Reschedule class on Wednesday; will do chapter 19 Tuesday and Wednesday, drop Loudermill; focus on problem on cb19-54 first.
• Half class will be plaintiffs (my half); other half will be defendants

Alexander v. Gardner-Denver Co.

[415 U.S. 36] 1974 United States Supreme Court (cb11-4)

• Clash or potential clash in workplace law
  • Autonomous Systemb of Industrial Self-Government (arbitration) vs. Industrial Statutory Rights (enforced in court)
• Case holds that arbitration under collective bargaining agreement cannot preclude relitigation of Civil Rights Claim in court
• "Employee rights under Title VII are not subject to prospective waiver." Unclear if still true. (prospective waiver... by collective bargaining agreement? doesn't say; could mean broader, never subject to waiver)
• With respect to Title VII, Congress assigned primary responsibility to courts; disputes under labor agreement, Congress "did" express profound support for arbitration (Lincoln Mills).
• Rights under Title VII are so important/special, that arbitration is 'inadequate substitute' for judicial enforcement.
  • Arbitrators don't know public law, they know law of shop (Steelworkers trilogy)
  • Procedures are informal; appropriate to keep production going; no transcript, no rules of evidence; not enough to protect civil rights
  • Vaca v. Sipes: in arbitration, union represents interests of whole bargaining unit. Title VII is about individual rights, not collective rights.
• But cf. Gateway Coal: mine safety rights can be waived in collective bargaining agreement

Barrentine v. Arkansas-Best Freight System, Inc.

[450 U.S. 728] 1981 United States Supreme Court (cb11-10)

• Alleged minimum wage violation under FLSA; defendant argued claims were precluded by grievance/arbitration procedure, Court rejected argument and extended Gardner-Denver

McDonald? v. City of West Branch

[466 U.S. 284] 1984 United States Supreme Court (cb11-11)

• Employee allegedly discharged for First Amendment protected activity.
• There was a grievance/arbitration procedure, employee did not appeal loss in arbitration but brought § 1983 suit
• Constitutional rights protected by § 1983 are not suspectible to prospective waiver.
• Cannot deprive claimant access to courts on basis of arbitration.
• Arbitration is not proper substitute when constitutional rights are involved, same reasoning as Gardner-Denver
• Deeper issue not addressed: what if collective bargaining agreement "traded away" First Amendment rights, so that there is no constitutional claim, could that be enforced?

Cary v. Adams-Arapahoe School District 28-J

[427 F.Supp. 945] 1977 District of Colorado (cb11-16)

• School of district prohibited teachers from assigning specific books
• Defense: collective bargaining agreement contained management rights clause. Teachers got good wages in return for giving up academic freedom.
• District Court held that teachers had waived First Amendment rights in collective bargaining agreement.
• 10th Circuit Court of Appeals: contract did not waive academic freedom, but rather teachers had no First Amendment right on the merits

• Discussion: should unions be able to waive constitutional rights? Are the rights worth enough?

• Labor arbitration vs. employment arbitration
  • Employment arbitration agreement usually includes some provision that requires all disputes between employer and employee to be resolved in private arbitration

Gilmer v. Interstate/Johnson? Lane Corp.

[500 U.S. 20] 1991 United States Supreme Court (cb11-24)

• Private arbitration agreements covering civil rights claims are enforceable
• Employee isn't waiving rights, but is waiving access to courts

• Recent decisions have imposed some procedural requirements: e.g., employer can't be arbitrator
• Parts of Gardner-Denver that says arbitration is inferior forum for civil rights claim are implicitly overruled by Gilmer

Wright v. Universal Maritine Service Corp.

[525 U.S. 70] 1998 United States Supreme Court (cb11-31)

• Court asked to overrule Gardner-Denver
• Court does not decide whether collective bargaining agreement can waive civil rights claim; adheres to Gardner-Denver
• But if collective bargaining agreement will waive statutory right, it must do so unequivocally

Safrit v. Cone Mills Corp

[248 F.3d 306] 2001 4th Circuit Court of Appeals (cb11-37)

• Court read collective bargaining agreement provision as unmistakeable waiver of right to litigate any dispute
• Supreme Court denied cert

NLRB Deferral to Arbitration

• One dispute, one claim--Steelworkers trilogy will defer to arbitration
• Two, distinct claims, one collective bargaining agreement and the other statutory/constitutional, Gardner-Denver says no deferral, although under attack from above cases
• One incident, two possible claims: breach of collective bargaining agreement (e.g., just cause, no discriminatory firing), NLRA statutory § 8(a)(3) claim, thus two claims
  • Under Gardner-Denver, should get to pursue both claims separately
  • But NLRA rights are different, part of collective industrial self-government system
  • Board will defer to grievance process in this case
  • Thus, collective bargaining agreement will waive statutory NLRA claims
  • Spielberg deferral: if arbitration meets certain requirements, Board will defer to arbitration.
  • Dubo deferral: if dispute is in arbitration, Board will wait until arbitral award is made.
  • Collyer deferral: when union files charge rather than grievance, Board holds that if dispute could be processed in arbitration ad employer is willing to arbitrate, NLRB will suspend processing until grievance/arbitration

Constitutional Rights of Unrepresented Public Sector Employees

• Private sector, 109M, public sector 21M
• Private sector = 8.2% union
• Public sector = 37.2% union
• In addition to constitutional rights, there are also statutory rights, e.g., just cause dismissal.
• How do rights arise in public sector workplace?
  • Rights as citizen that "come with" employee into workplace
    • Only solidified in 1970's, prior to that idea was that employee could suspend all rights as condition of employment
  • Is job property that can't be taken away without due process?
  • Does constitution create right to have employment at all?

Tuesday, January 27, 2004 (Class 17)

• Read chapter 20 for tomorrow
• Tinker: the constitution is not left behind by students or employees at the schoolhouse gate
• State action issue: either actor is government or not; state contractors are borderline.
• Historically, courts asked what function entity was performing to determine state action.

McAuliffe? v. City of New Bedford

[155 Mass. 216] 1892 Massachusetts Supreme Court (cb18-7)

• City fired police officer for political activity; claimed First Amendment right to engage in off-duty political activity.
• Court held that City was not state actor when it acted in its capacity as employer.
• Employee had a constitutional right to talk politics; but did not have constitutional right to be police officer.
• Theory developer into "rights/privileges distinction."
• Much later was called the "problem of unconstitutional conditions."

Scopes v. State

[154 Tenn. 105] 1927 Tennessee Supreme Court (cb18-8)

• Tennessee had criminal law prohibiting teaching of evolution.
• Court held that Tennessee as employer was not governed by constitution but rather master-servant relationship, thus no constitutional challenge.

• Court has now rejected distinction between rights and privileges as doctrine... but may linger in altered form.
• Also rejected is master/servant relationship of public employees; but also may still exist.

• Failed arguments
  • Due process requires government to provide minimum standard of living for all people (education, minimum incoming)
    • Coleman v. Thompson 1991 death penalty case: attorney filed appeal three days late under state rules, court found it was independent state ground to uphold verdict; defendant argued ineffective assistance counsel.
    • Supreme Court held that there is no constitutional right to post-conviction counsel, thus defendant cannot claim constitutional violation in ineffective assistance of counsel
  • Unemployment should be deemed a compensable taking
    • If government takes deliberate action to slow down inflation thus increasing unemployment, then unemployed should be compensated
  • Wealth should be deemed suspect classification

• Successful theory -- "new property"
  • Government doesn't need to give you right in the first place, but if they grant it and take it away, you're entitled to some process
  • Still assumes at some level rights vs. privileges distinction

• Due process
  • Substantive due process: government can't do certain things. Zone of protection into which government may not intrude without compelling justification.
  • Procedural due process: what procedure must government follow before withdrawing a benefit.
    • Prior case law used "unitary analysis": balanced individual's interest against government interest
    • Now, "bifurcation":
      • Must have constitutional interest at stake
        • Life and liberty by virtue of constitution itself
        • Property, treated differently
      • Then, balance to determine what process is due

Board of Regents of State Colleges v. Roth

[408 U.S. 564] 1972 United States Supreme Court (cb19-6)

• Right to liberty and life are created by constitution
• Right to property is not created by constitution but by statute
• "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."
• E.g.:
  • State statute granting explicit benefit
  • Implied claim; Perry

Perry v. Sindermann

[408 U.S. 593] 1972 United States Supreme Court (cb19-12)

• Employee of college had no tenure system writing down, but had "implied" tenure system that lead people to rely on the practice that they would not be fired except for just cause.
• Understandings must be state fostered; cannot be based on needs, desires, or even reasonable reliance by state employee.
• Footnote 7: "We do not now hold that employee had legitimate claim to tenure." Needs to be proved in court. Does not matter what Dean said, ultimately depends on Texas law.

Arnett v. Kennedy

[416 U.S. 134] 1974 United States Supreme Court (cb19-17)

• Civil servant dismissed for alleged misconduct
• First question is whether employee has property interest in job
  • Federal statute (civil service law) gave Kennedy right to job
    • "An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service."
• Rehnquist, Berger, and Stewart: civil service gave certain protections, this is what your property interest is. You don't get more procedure than is specified under statute. "Where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet."
• Six judges appear to reject Rehnquist's idea; procedure is from constitution not from statute

Bishop v. Wood

[426 U.S. 341] 1976 United States Supreme Court (cb19-34)

• Police officer with 34 months service; doesn't have spotless record, but says he has corrected behavior
• Police officer dismissed for misconduct, assume for the purposes of this case that charges are false
• No process except a little bit of advanced notice
• Supreme Court finds no due process problem, because police officer had no property interest in job, he was 'employee at will'.
• Thus, state can circumvent due process requirements by making benefits "at will" (i.e., "privileges") rather than "entitlements" ("rights").
• In some ways, analogous to Vaca v. Sipes and its progeny: grievance process can't be "error free."
• Brennan would remand to meaning of statute:
  • Property for constitutional purposes is not determined by local law but informed by local law; would include legitimate/reasonable reliance of those who depend on government

• I.e., past practice alone is not sufficient to trigger property right. State actor must have done something to tell people they can rely on past ppractice.

Discussion Problem

• Employee is fired, but can prove that reason for termination is false.
• State law requires Governor to certify to Secretary of State that cause for termination exists; this requirement was fulfilled.
• Plaintiff is suing for reinstatement and back pay
• Who to sue?
  • Governor for reinstatement only (state official is state actor for purposes of Fourteenth Amendment but not Eleventh Amendment only for prospective injunctive relief)
  • Secretary of State
  • Supervisor -- could sue in individual capacity; if they have assets you could recover damages, subject to qualified immunity (assuming supervisor participated in firing)
• Court?
  • State or federal
  • § 1331 Federal Question jurisdiction: arises under constitution
  • States are required to hear § 1983 cases
  • Might choose forum based on judge
• Cause of action
  • § 1983

Wednesday, January 28, 2004 (Class 18)

• Procedural due process claim under §1983:
  • Person
  • Under color of state law
  • Deprivation
  • Constitutional right or federal statutory right: constitutional right
    • State action
    • Constitutionally cognizable interest
      • Property
        • Job
      • Liberty
        • Ability to obtain future employment
        • Good name and reputation
  • Constitutional adequate process was denied
    • Hearing?
      • Pre or postdeprivation hearing
    • Appeal
    • Transcript, counsel, evidence, confrontation, etc.
  • Sufficient process?
    • Look to Mathews v. Eldridge
  • Arnett, Loudermill: step 3 question, as to whether constitutionally adequate process was denied
  • Arnett requires full trial-like hearing, post-deprivation for civil service job termination--that is adequate.
  • Liberty Interest
    • Stigma (satisfied)
    • Must be false (controversial; satisfied in this case)

Paul v. Davis

[424 U.S. 693] 1976 United States Supreme Court (cb20-1)

• Individual labeled as "known active" shoplifter.
• Plaintiff shows stigma and falsity.
• Court requires something more than reputation--some other harm.
  • Change in legal status (e.g., termination)
  • Must be published in some way

• Publication requirement possibly not satisfied in example problem--may be satisfied by availability of information in public records

• On Friday, go over exam question in chapter 21

Monday, January 30, 2004 (Class 19)

• For Monday and Tuesday read Chapter 22.
• Friday, no assignment other than problems.

• Due process clause gives fragile protection in last problem; however, most states have statutory civil service protections apart from constitution.
• Today's problem: unionized public sector employees.
• Statute is interpretted as closely as possible to NLRA.

• Courts are divided as to whether collective bargaining agreement in public sector vests individual employees with a property interest sufficient to give procedural due process rights to individuals.

Monday, February 2, 2004 (Class 19)

• Stigma "plus factor": change in legal status, e.g., driver's license, license to practice in profession
• Assuming property interest is reached, question is what process is due?
• Pre-termination: must know charges against him and respond to charges.
• Mathews
  • Termination for employment: strong interest
  • Risk of erroneous deprivation:
  • Government's interest: fiscal and administrative burden of providing more process; mere fiscal burden is not enough to refuse trial-type hearing (Arnett v. Kennedy). Additional interest: government's interest in maintaining industrial peace and continuity of service; and government's interest in achieving that goal through system of exclusive representation.
• Supreme Court has never answered Mathews test with respect to unionized public employees.
• Some District Courts have held that more process is due; essentially holding Vaca v. Sipes unconstitutional with respect to termination of public employees. Could read this to mean Union has heightened standard of representation in public sector; or could give employee election of remedies: either grievance or civil service route.
• Question of government's interest has not been determined with respect to due process rights, but has been decided with respect to First Amendment rights. After Abood and Knight think about question again. Government can override First Amendment rights with its own interests in managing work force.

• First Amendment protections do not apply in private workplace.
• Protection for religious freedom under Civil Rights Act.
• Protection for union activity; whistleblower statutes.
• Connecticut has statute making it unlawful to fire private sector employees for activities that would be protected by First Amendment.
  • Employers claimed there was no First Amendment protection for private sector employees, thus there is no protection.
  • Connecticut Supreme Court eventually overruled this interpretation.
• [13 Industrial Relations Law Journal 1]: Make constitutional rights applicable in private workplace.
• Is constitution increasingly applied to private sector workplace, or is privace sector managerial paradigm increasingly applied to the public sector/government actors? Would it be a good idea to apply constitution to private sector employment?

• First Amendment now applies to public sector employees; not always the case in the history of the United States.
• James citing Tinker: neither teachers nor students leave their First Amendment rights at the school house gates.

Pickering v. Board of Education High School District 205

[391 U.S. 563] 1968 United States Supreme Court (cb22-2)

• Teacher fired for off duty letter to editor criticizing school board.
• Supreme Court held that teacher's First Amendment claim was valid.
• Overrules McAuliffe? v. City of New Bedford, which held that individual did not have right to be policeman.
• But "cannot be gainsaid" that state has interest different from that of ordinary citizen.
• Look at expressional activity of employee; does it interfere with employee's duties or operation of agency? (Pickering balancing test)
• Different from standard for testing government action under First Amendment between government as government and citizen.

• Suppression of speech analysis -- see memo (cb22-1)

• Employer/employee context; applies Pickering balancing test
• Speech protected is matters of public concern, not workplace issues (Connick v. Myers).

• Public sector employee does not need property interest in job to raise First Amendment claim. If you are fired for First Amendment protected expression, you have claim against public sector employee even if you are employee at will. Decision not to rehire cannot give raise to due process claim (Roth), but can give rise to First Amendment claim.
• Tinker: government employer can only suppress speech by showing that activity would materially and substantially disrupt the work and discipline of the school.

James v. Board of Education of Central District No. 1

[461 F.2d 566] 2nd Circuit Court of Appeals (cb22-16)

• Reasonable inferences flowing from concrete facts--not abstractions--must be made that disruption will occur before action can occur.
• Should not accept unquestioningly school authorities' judgment on disruption.

Branti v. Finkel

[445 U.S. 507] 1980 United States Supreme Court (cb22-7)

• Case concerns only belief, not action/conduct/etc..
• Public defender fired because he was Republican.
• In this case, strict scrutiny is applied; government must prove "overriding" interest; extremely compelling; etc..

• Mostly facts- and circumstances-specific rather than general rules. Branti rule is exceptional.
• Pickering lists at least 10 factors for determining whether speech is protected.

Tuesday, February 3, 2004 (Class 20)

• For Friday, prepare problems on pages 22-70 and 22-71. Prepare some ideas in advance.

• Application of First Amendment balancing test is done in fact/context specific way.
• Pickering factors
  • Speech is directed at someone with whom employee is in contact
  • Issue of maintaining discipline by immediate superiors
  • Harmony among coworkers
  • Close working relationships where personal loyalty is necessary
  • Need for confidentiality
  • Seriously undermines effectiveness of working relationship between subordinate and superior
  • Employee has special useful knowledge on issue
  • Can employer dissipate adverse consequences of speech
  • How accurate and careful was employee (reckless disregard for truth would diminish protection)
  • Can public employees be required to use grievance procedure?
• Branti
  • Is party affiliation an appropriate requirement for the effective performance of the public office involved?
• James
  • Teacher wore black armband to school to protest war.
  • Employer argued expression was on duty and on site.

Connick v. Myers

[461 U.S. 138] 1983 United States Supreme Court (cb22-24)

• Some thought before that Pickering would give rights analagous to Section 7 to public employees. But Connick ended that speculation.
• Pickering, antecedents, and progeny: if employees leaflet cannot be fairly characterized as matter of public concern, then Court will not scrutinize discharge.
• We hold only that when employee speaks not as citizen on matter of public concern but as employee then federal court is not appropriate forum to review employer's decisions.
• How to know if matter is public concern?
  • Content, form, and context
• Application of balancing test for one question
  • Leaflet contained one item of public concern--do you ever feel pressure to work on political campaigns?
  • Burden is on government to justify interference with First Amendment interests
  • District Court made finding of fact that leaflet did not disturb office in any way
  • Employer determined that leaflet was causing 'mini-insurrection'
  • Close working relationships were necessary to agency, thus wide degree of deference is appropriate
  • But Tinker/James: should not accept unquestionably employer's description of speech

Waters v. Churchill

[511 U.S. 661] 1994 United States Supreme Court (cb22-41)

• Employer's action will be judged on what he reasonably believed employee said, not what he actually said.
• Thus reasonable mistake of fact is immunized from First Amendment scrutiny.
• Off duty employee is speaking discretely to other employee in cafeteria
• Allegedly criticizing superiors for mismanagement of hospital
• Speech is disruptive as matter of law and thus not protected by First Amendment.

• Split in Circuits on right to petition government as to whether it must be matter of public concern for First Amendment protection

Rust v. Sullivan

[500 U.S. 173] 1991 United States Supreme Court (cb22-52)

• Government funded family planning facilities; facilities are forbidden to discuss abortion on condition of funding.
• Court upholds restriction; government can choose to fund expressive activities that it wants
• Cf. Lying v. International Union, UAW: neutrality is deceptive; can't take away one thing (food stamps for strikers) without shifting balance in one way or another

• HB No. 630 in Massachusetts: companies that contract with state may not use funds derived from state for employee influence activities--i.e., fighting unions.

Friday, February 6, 2004 (Class 21)

• Next week's assignments
  • Monday: 30-1 to 30-22
  • Tuesday: complete #30
  • Friday: complete #31

• Discussion problems
• James is very different, school rather than psychiatric hospital.
• Must concede that he was wearing pin in workplace, would limit public concern
• Tinker: material and substantial disruption

Monday, February 9, 2004 (Class 22)

• Areas where tensions arise between NLRA-type rights and constitutional rights in public sector
  • Access
    • Even after Lechmere, some circumstances force employer to permit non-employee union organizer access (e.g., mine)
    • Does First Amendment stand in for Section 7 rights for access rights? Difference is that in public sector workplace in public property.
  • Petition Clause
    • In some circumstances, petition government for redress of grievances means grievances in employment context
  • 9(a) negotiation of contract--majority representation must be exclusive
    • Terms and conditions of employment are matters of government policy
    • Possibly conflicts with democratic government principles--people through legislature setting policy
  • Union Dues
    • Can union "tax" people they represent to cover expenses?
    • Union acts in quasi-governmental capacity when it represents employees in public sector
    • First Amendment issue: cannot force people to associate with group they don't want. Legislature couldn't tax individuals to donate to Democratic Party. Some people think union is just like a political party.
• Issue of long term vs. short term: might want to support collective power that suppresses individual rights in the short term to reach better equalization of power.

• Access issues
  • Access to public property
  • Access to public decisionmakers
    • Can individuals be excluded from collective bargaining agreement negotiations?

Commonwealth v. Davis

[162 Mass. 510] 1895 Massachusetts Supreme Court (cb30-1d)

• Overruled by Hague v. CIO
• Traditional notion: when government is acting as property owner (rather than legislator) it is not bound by First Amendment.
• Owner of home can decide whom to exclude from property, theory was City is the same
• Same thinking as McAuliffe? v. City of New Bedford [155 Mass. 216] and Scopes Monkey Case: government isn't acting as regulator but is like a private actor.

• Content discrimination--subject to scrutiny
  • Viewpoint -- always strict scrutiny
  • Subject matter
  • Identity scrutiny

• Space (physical property, expanded now to include e.g., airwaves)
  • Traditional public forum vs. qualified public forum
  • Traditional public forum: "time out of mind" people have expressed themselves
  • Designated/dedicated public forum
  • Restricted Use Area

• Perry Education: "The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue."
• But there is no "inherent" character of property, depends on governing law, thus is circular.

• Chart on page 30-1c: different fora vs. diferent types of restrictions

Police Dep't, City of Chicago v. Mosley

[408 U.S. 92] 1972 United States Supreme Court (cb30-2)

• Quintessential public forum: sidewalk
• City bans picketing on sidewalk near public school, except for peaceful labor picketing
• Held unconstitutional by Court.
• Plaintiff is protesting discrimination, not labor picketing.
• "Content-based distinctions never permitted"--but can't really be true.
• Ordinance imposes a selective restriction on expressive conduct "far greater than is essential to the furtherance of a substantial government interest"--apparently is intermediate scrutiny, a la O'Brien.

Perry Education Association v. Perry Local Educators

[460 U.S. 37] 1983 United States Supreme Court (cb30-13)

• "For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." (in quintessential public forum)
• Responds to unclearness in Mosley; answers question, must be "compelling"

City of Madison, School District v. Wisconsin Employee Relations Commission

[429 U.S. 167] 1976 United States Supreme Court (cb30-6)

• Town meeting required to be open by state law, thus designated public forum.
• Two major issues remaining in collective bargaining
  • "Fair share" clause: would require employees to pay dues regardless of membership
  • Binding arbitration on termination
• Dissent in bargaining unit about "fair share" clause
• Union and city settle in private: includes binding arbitration but not "fair share" clause
• Because of dissent and petition, City knew that support wasn't uniform in bargaining unit for clause, thus unlikely that union would strike.
• State Labor Board says that city committed ULP by going around union and negotiating directly with dissident employees.
• If this were only question of Wisconsin Labor Law, then no Supreme Court review because of independent and adequate state grounds.
• Federal Question: order of state agency impacted dissident employees' First Amendment rights.
• No federal labor law question here.
• Court holds Wisconsin Labor Board ruling violated employees' First Amendment rights.
• Compare Capwell: employees lose Section 7 rights when they go around collective bargaining agent

Tuesday, February 10, 2004 (Class 23)

City of Madison, School District v. Wisconsin Employee Relations Commission

[429 U.S. 167] 1976 United States Supreme Court (cb30-6)

• Seems to ignore Capwell by holding action protected, even though it worked much more against union than did the activists in Capwell.
• Problem was that State Labor Board held that Holmquist couldn't speak at School Board meeting, instead should have kept this off the agenda entirely.
• Landrum-Griffin Act: bill of rights of union members
• Tension with Connick: expression would likely not be protected if Holmquist was leafletting outside meeting objecting to fees.
• Status/identity restriction in a designated public forum: subject to strict scrutiny. State claims it has a compelling public interest (collective bargaining), but Court rejects interest.

Maurice Smith v. Arkansas State Highway Employees, Local 1315

[441 U.S. 463] 1979 United States Supreme Court (cb30-11)

• Per Curiam reversal on major constitutional issue with no opportunity for argument or brief.
• State does not have collective bargaining statute, but does informally accept grievances. Employees have union through whom some employees submit grievances.
• Policy of state is to only accept grievances from individual employee.
• When petitioning government for redress of grievances, you do not have right to choose your own advocate.
• Analogy: "you have right to trial, but we're going to pick your lawyer."
• First Amendment does not give anyone the right to be heard; gives right to speak.
• Marshall dissent: government did agree to listen to workers, can't then pick and choose who it will listen to, at least not without justification.
• Maybe subtle reintroduction of rights/privileges idea from City of New Bedford

Perry Education Assocation v. Perry Local Educators' Association

[460 U.S. 37] 1983 United States Supreme Court (cb30-13)

• Sets out quintessential public forums, designated public forums, other (paragraphs 7-9).
• School had internal mail system with mailboxes.
• State law permitted school to give (incumbent) exclusive bargaining agent communication ability with members through mailboxes.
• Rival union challenges refusal of access.
• Court rational basis for distinction.
• Rival union has alternative way to contact members.
• Deeper rationale: mailboxes are not a public forum.
• If forum is opened by government to all, then it can't disinvite on the basis of content/viewpoint/identity, unless compelling justification.
• If government only invites in certain groups, however, then it is not public/designated forum, then content-based discrimination is upheld on rational basis.
• Some circularity if forum is defined by how government has set it up.

• Kokinda: postal service owns land, people want to flyer for Democratic party. Court holds it is public property, but not for public expression.
• Forbes: public television excludes non-major party candidate from forum. Government did not intend to make forum "generally available," only wanted to make it available to "important" candidates, thus no constitutional violation.
• Annual federal giving campaign also not public forum.

• Brennan dissent: this is actually viewpoint discrimination, employer doesn't like rival union.
• Should be struck down under strict scrutiny.
• But no evidence of discrimination.

• Question: is PEA inconsistent with City of Madison?

Minnesota State Board for Community Colleges v. Knight

[465 U.S. 271] 1984 United States Supreme Court (cb30-23)

• Two processes
  • "Meet and negotiate": when a union had been selected as majority bargaining agent--exclusive representation required.
  • "Meet and confer": policy matters, e.g., professional development of faculty.
• But most things that fall into "meet and confer" could also effect issues from "meet and negotiate."
• If there is union, then exclusive representation applies for "meet and confer" as well.
• In this case, there was exclusive representative for both processes.
• Right To Work challenges both processes, claim they interfere with First Amendment right to speak effectively.
• Claims that people have to choose between right of association and right of free speech.
• Holding: exclusive representation in public sector as to mandatory subjects of collective bargaining is constitutional.
• Remaining discusison on meet and confer (nonmandatory issues)
  • Claim--this is closer to political realm, First Amendment interest is stronger.
• Court holds the same for "meet and confer"--collective bargaining negotiations are not public forum, instead are private forum, and thus government can invite whomever it wants.
• Brennan dissents on "meet and confer."
• Since meet and confer negotiations are not public forum, there is no exclusion, there is also no right to be heard under First Amendment.
• Thus, decision to exclude can be rational basis: interest is government's interest in hearing from employees with one voice. Exclusive representation is constitutional because government has decided to proceed through method of exclusive representation.
• Counterargument: we're deciding vital questions of public policy here, can't exclude dissenting views under democratic principles.

Friday, February 13, 2004 (Class 24)

• Next week's schedule
  • Monday, no class
  • Tuesday: Chapter 32--drop Executive Order 107 HR 4636
  • Friday: Chapter 33--drop UFCW

• Unconstitutional conditions
  • McAuliffe?, Scopes: government can impose "unconstitutional" conditions
  • Roth/Perry overturn McAuliffe?
  • Connick/Waters balance constitutional rights against employer's interest, increasingly deferential
• At what point does efficiency stop being neutral criterion and turn into a justification for suppressing dissident views?
• Subsidies: old doctrine said Government can subsidize whatever it wants; supposedly overturned in Roth and Perry ("wooden distinction between rights and privilegees"); may re-enter in Rust: government can enforce neutral criterion that money it allocates is spent on program objectives.
• Public forum: Davis->Hague->PEA, Knight -- does Davis sneak back in in Pea and Knight (Arkansas Highway)?
  • Neutral doctrine: government doesn't have to listen to everyone.
  • Power to disinvite is way to accomplish selective exclusions under "neutral criteria."

Minnesota State Board for Community Colleges v. Knight

[465 U.S. 271] 1984 United States Supreme Court (cb30-23)

• Meet and Negotiate vs. Meet and Confer
• Meet and confer restricted to professional employees--policy choices. Only non-mandatory/permissive subjects.
• Where there is no union, meet and confer is run on one-person one-vote system.
• Where there is union, union automatically became representatives for meet and confer as well as meet and negotiate.
• Case challenges constitutionality of exclusive representation in meet and confer process.
• "This isn't collective bargaining, this is like a city council. Government can't disinvite people based on status. Like City of Madison."
• Becomes "right to be heard" case.
• Court holds there can be no requirement that everyone be heard in making decisions.
• Consistent with City of Madison, where exclusion of dissident member was unconstitutional?
• Majority and concurrence all note that there is alternative channel of communications.
• Core disagreement between majority and dissent: does right to speak mean right to effective speech?
• What about mandatory subjects, does government have right to silence everyone except exclusive representative? Dissenters would say difference is between mandatory and permissive; government must listen for permissive subjects.
• Brennan: exclusive representation with respect to mandatory subjects would meet strict scrutiny; O'Connor would only hold it to rational basis.
• Problem: mandatory/permissive distinction is untenable and destructive. Very few issues which don't straddle boundary.
  • E.g., class size, how much to emphasize academics or sports.
  • May not be tenable to rest First Amendment rights on mandatory/permissive distinction
  • Also depoliticizes unions: says unions are good for "bread and butter" but not "politics"
• Does First Amendment enact 9(a)-typo proviso: employee has right to present grievance to employer and have such grievance adjusted?

• Why should public employee have more First Amendment rights than regular citizen?
  • Pickering says that employment relationship is different.
  • By adopting public sector collective bargainings, government has invited participation. Having done that, there ought to be right of communication directly to employer.
• Marshall concurrence: while First Amendment doesn't mean the government has to listen to everyone all the time, it shouldn't mean that government never has to listen to everyone.
  • Would vary with nature of decision and institutional environment.

• Spring 2003 Exam
  • Town meeting, excludes teachers from participating
  • Employers' argument: like mailbox case; town can pick and choose
  • Alternative channels

Union Security Law

• Union security devices: legal devices to tie job status and rights to union allegiance
• Classic demand: closed shop--can't get job unless member of union, lose job if you quit union. Now illegal.
• Union security is contract matter in U.S. system. Union needs to be strong enough to get employer to agree.
• Closed shop: can't get job in first place unless member in good standing of union; union can insist on discharge if you cease to be member in good standing of union. Until 1935, union pressure to get closed shop was considered tort. Legal from 1935-1947, then illegal under Taft-Hartley.
• Union shop: membership is condition of employment after 30th day of employment.
• Agency shop: no one has to join union ever, but must contribute dues or monetary equivalent (if nonmembers).
• As result of General Motors, union shop and agency shop are basically the same. For any purpose having to do with union security, the word "membership" means simply paying agency fee. You are "member in good standing" so long as you're paid up on dues.
• Bush Executive Order: all federal contractors have to post rule that employees don't have to be union members, just pay dues

Tuesday, February 17, 2004 (Class 25)

• Review of union dues provisions
• §302(c)(4) of Taft-Hartley: anti-kickback laws. Exception had to be made for dues checkoff--automatic deductions of dues from paychecks to go to union.
• NLRA §14(b): explicitly gives states power to decide whether union security agreements are legal. (exception to preemption)
• RLA: preempts state law for union security. (Union membership in good standing = payment of dues). 60th day rather than 30th day.

• Discussion problem: is conditioning grievance representation of nonmember on payment of service fee legal? Held: this is breach of duty of fair representation, unlawful.

• In Knight, there was a question about whether exclusive representation in public sector violates constitution. Court rejected claim that democracy required everyone could participate.
• Actual story in dues cases: cases brought by employer-funded Right to Work Legal Defense Fund--thus rhetoric about lone dissenter working is not entirely accurate in litigation context.
• Supreme Court has concern about compelled individual political association, but doesn't reflect concern about working people's ability to forge political movement.
• Dissident worker is arguing that he has to have a job, thus shouldn't be compelled to associate with union. But on another level employment itself is compelled association.
• Lochner analogy: freedom of choice?

• Abood: "freedom of association for the purpose of advancing beliefs and ideas is protected by First and Fourteenth Amendment."
  • Also implies right to refuse to associate (Keyishian v. Board of Regents)
  • Contributing money is a kind of speech (Buckley v. Valeo).
  • Right to contribute and right not to contribute.
  • Cannot be forced to surrender First Amendment rights as condition of public employment (Pickering etc.).
• Other side of balance: policy of federal labor law: exclusive representation, duty of fair representation, good faith bargaining, continuing process of collective bargaining, entails expenditure of time and money.
  • Performing duties costs money, thus preventing free riders is okay.
• Street: In sum, in prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in negotiation, etc., ... performance of these functions entails expenditures of considerable funds.
• Thus, cases weigh government's interest in achieving industrial peace against First Amendment individual rights.

• Why statutory scheme is important goes to state action issue
• In public sector, state action is easy: government has entertained into agreement
• Court avoids constitutional issue in all of these cases, instead relies on statutory interpretation, so that state action doctrine doesn't expand to include corporations, and others. (except public employment cases).
• But Brennan wrote New York Times v. Sullivan: state action in private libel action against public figure.

Railway Employees' Department AFL v. Hanson

[351 U.S. 225] 1956 United States Supreme Court (cb32-1)

• In Right to Work State, under Railway Labor Act, contract which provides for union security would be illegal but for preemptive act of Federal Statute, thus state action.

Friday, February 20, 2004 (Class 26)

• Exam Structure
  • You must bring the course materials to the exam because specific pages are referenced
  • Two Questions
  1. Statements/quotations from a case, asks you to assess how accurate they are.
  2. Hypothetical, issue-spotter.

• Dues Cases
  • Arise under First Amendment or as statutory interpretation issue to avoid First Amendment questions
  • Governmental action
  • Impact on First Amendment interests?
  • Balancing test -- O'Brien

• State Action
  • In public sector cases, this is an easy question. Collective bargaining agreement is treated as a statute, thus definitely state action.
  • Private sector: union is private party, employer is private party, they make contract for union security (under union pressure). Where is state action? Court never really answers question, instead resorts to statutory interpretation.
  • Issue is important because Bill of Rights does not apply to private actors.
  • Cf. other legal systems with no State Action requirement--e.g., South Africa.
  • Courts are generally happy to apply state action requirement to unions because it weakens union political participation.
  • Steele v. Louisville & Nashville R.R. Co.: when union is making collective bargaining agreement, this is like "national legislature," when it kicks out minorities, this is private action.
  • Town meeting: open, public; collective bargaining, close private.
  • Knight: dissent--huge differences between mandatory and permissive subjects.

• Why state action in union context but not golf club context for political dues money?
  • Because person is compelled to keep job in union context? But compulsion is private, not public.
  • So proponent needs argument why union is different
    • Government sets up exclusive representation
    • Duty to bargain
  • But government didn't force agency fee agreement, only permitted it
  • Cf. Jackson v. Metropolitan: no state action when person's power is turned off without hearing.
  • Problem for liberals: they don't want everything (specifically corporations) to be state actors.
  • If you think Abood was correct, how can you avoid believing all private power is state action?

• Ultimately, balancing test--interest in industrial peace outweighs dissenters First Amendment interests for negotiating contracts and grievance/arbitration. Free-ride theory.
• For "political" causes, balance comes out differently: dissenters First Amendment interests are stronger, not consistent with Congressional intent of industrial peace.

• Nelson Lichtenstein: State of the Unions -- labor history

Abood v. Detroit Board of Education

[431 U.S. 209] 1977 United States Supreme Court (cb32-19)

• To compel employees to financially support a union has a First Amendment impact.
• Thus, go to balancing test, two tracks:
  • Routine expenditures
  • Ideological expenditures
• Judgment made in Hanson and Street is that interference is justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.
• Ideological expenditures: different balance, First Amendment interest of dissenters in not being compelled to finance cause they don't believe in. West Virginia Board of Education vs. Barnett -- foundation of Branti v. Finkel -- pure speech, government must show compelling or "overriding" interest.
  • Pure belief cases are applicable to ideological dues expenditures.
• Thus dissenters are entitled to proportional refund of dues.

• Same result in LRA act by Street and NLRA by Beck (but did not reach state action question in either case)
  • Street dissent: politics is just as much as union philosophy as "bread and butter" concerns.
  • Notion that economic and political concerns are separable is pre-Victorian.
  • Douglas concurrence: some forced associations are inevitable. Union is not really voluntary association, but something necessary to survive in industrial society.
  • Black dissent: this is First Amendment question, we should reach it. Congress gave unions this function.

• Abood: public sector line is hazier.
  • Has been held that expenses to lobby for money to fund contracts, etc., is constitutional.
  • Authoritative test from Ellis: "Is challenged expenditure necessarily or reasonably incurred for the purpose of performing the duties of an exclusive represenattive of the employees in dealing with the employer on labor-management issues?"
  • Organizing in LRA context is not within chargeable dues.
• 9th Circuit holds that Ellis only applies to RLA, not NLRA