David P. Twomey Professor of Law Carroll School of Management, Boston College Member of the Massachusetts and Florida Bars

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CHAPTER 1 Perspectives; Early Doctrines; Current Applications 1

CHAPTER 2 Congress, Administrative Agencies, and the Courts 27

CHAPTER 3 Railway and Airline Labor Relations Law 41

CHAPTER 4 The National Labor Relations Act 57

CHAPTER 5 Employer Unfair Labor Practices 139

CHAPTER 6 Regulation of Union Activities 201

CHAPTER 7 Legality of Strikes 245

CHAPTER 8 Dispute Settlement Law 277

CHAPTER 9 Regulating Internal Union Conduct: DFR, ERISA, and RICO 297

CHAPTER 10 Public Employment and Labor Law 329

CHAPTER 11 Occupational Safety and Health Law 361

CHAPTER 12 Discrimination Laws: Protected Classes under Title VII and the Constitution 395

CHAPTER 13 Procedures and Remedies 473

CHAPTER 14 Pay Equity; Age Discrimination 523

CHAPTER 15 Disability Discrimination Laws—Workers’ Compensation, SSDI and the ADA—Medical and Military Leaves 553


CHAPTER 16 Employment Relationships: Contractual and Tort Theories 597

CHAPTER 17 Employee Privacy Topics 633

CHAPTER 18 Wage and Hour Law—Plant Closings and Unemployment—Foreign Workers 677

APPEND IX A: Types of Cases Before the National Labor Relations Board 713

APPEND IX B: Labor Management Relations Act, 1947, as Amended by Public Laws 86-257, 1959 and 93-360, 1974 717

APPEND IX C: Excerpts from the Labor-Management Reporting and Disclosure Act of 1959 751

APPEND IX D: Excerpts from Title VII of the Civil Rights Act of 1964 as Amended by the Equal Employment Opportunity Act of 1972 759

APPEND IX E: Excerpts from the Civil Rights Act of 1991 763

APPEND IX F : Excerpts from the EEOC’s Uniform Guidelines on Employee Selection Procedures (1978) 773

APPEND IX G: Excerpts from the EEOC’s Guidance on Vicarious Employer Liability for Harassment by Supervisors 779

APPEND IX H: Excerpts from the Americans with Disabilities Act of 1990 783

APPEND IX I : Excerpts from the ADA Amendments Act of 2008 (S.3406, P.L. 110-325) 789








CHAPTER 1 Perspectives; Early Doctrines; Current Applications 1

Section 1 Introduction: Perspectives 1 2 Historical Context: The Criminal Conspiracy Doctrine 8 3 Historical Context: The Contractual Interference Doctrine 11 4 Historical Context: Early Applications of the Sherman Act 15 5 Injunctions and the Clayton and Norris-LaGuardia Acts 16 6 Continuing Impact of Antitrust Laws 21

CHAPTER 2 Congress, Administrative Agencies, and the Courts 27

Section 7 Introduction 27 8 Open Operations of Administrative Agencies 28 9 Agency “Regulations” as Law 29

10 The Adjudicatory Function 30 11 Exhaustion of Administrative Remedies 30 12 Court Review of Agency Findings of Fact 31 13 Court Review of Agency Determinations on Law and Policy:

The Chevron Framework 31 14 The Federal Court System 33


CHAPTER 3 Railway and Airline Labor Relations Law 41

Section 15 Introduction 41 16 Bargaining Representation 42 17 Mediation, Arbitration, and Emergency Boards 43 18 Major and Minor Disputes 45 19 Railroad and Airline Boards of Adjustment 48 20 The Surface Transportation Board 51 21 Strike Injunctions 52 22 Jurisdictional Issues: The RLA and the NLRA 52

CHAPTER 4 The National Labor Relations Act 57

Section 23 Introduction 58 24 Historical Development 58 25 Administration 62 26 Procedures 65 27 Jurisdiction: Employers Under the Act 68 28 Agency Law, Independent Contractors, “Contingent” Workers 72 29 Jurisdiction: Employees Under the Act 76 30 Jurisdiction: Preemption 86 31 Majority Bargaining Rights 93 32 The Appropriate Bargaining Unit 95 33 Multiemployer Bargaining Units 99 34 Craft Severance 102 35 Determining Employees’ Choice 102 36 Election Conduct and Free Speech 111 37 Election Propaganda and Misrepresentations 119 38 Bargaining Rights Based on Authorization Cards 121 39 Remedial Powers 125

CHAPTER 5 Employer Unfair Labor Practices 139

Section 40 Protection of Employee Rights 139 41 Freedom from Interference 141 42 Domination of Labor Organizations 150 43 Discrimination as to Hire and Tenure 156 44 Discriminatory Lockouts 160 45 Permanent Shutdowns 162 46 Discrimination for Concerted Activities 165 47 Union Security and “Right-to-Work” Laws 167 48 Discrimination for NLRB Action 170


49 Duty of Employer to Bargain 171 50 Successor Employers’ Obligations Under the NLRA 182 51 Rejection of Labor Contracts Under Chapter 11 of the Bankruptcy

Code 188

CHAPTER 6 Regulation of Union Activities 201

Section 52 Union Unfair Labor Practices 201 53 Picketing: Types and Constitutional Parameters 206 54 Mass Picketing 210 55 Union Access to Private Property 214 56 Organizational and Recognitional Picketing: Informational

Picketing 221 57 Jurisdictional Disputes 223 58 Secondary Activity: “Ally” and “Common Situs” Doctrines 225 59 Secondary Activity: Consumer Product Picketing, Handbilling,

and Bannering 228 60 Hot Cargo Agreements 235 61 Damages from Boycotts and Picketing 239

CHAPTER 7 Legality of Strikes 245

Section 62 Types of Stoppages 245 63 Employer Unfair-Labor-Practice Strikes 247 64 Permanent Replacement of Strikers 250 65 Unprotected Strike Activity 257 66 Effects of Strikes in Violation of NLRA Notice

Requirements 260 67 No-Strike Agreements 262 68 Norris-LaGuardia and No-Strike Injunctions 263 69 National Emergency Strikes 268

CHAPTER 8 Dispute Settlement Law 277

Section 70 Introduction 277 71 Definitions and Terms 278 72 Assisting Negotiations 280 73 Grievance Arbitration and the NLRA 281 74 The Courts and the Arbitration Process 285 75 Labor Arbitration of Statutory Discrimination Claims 286 76 Judicial Review of Arbitration Decisions 289


CHAPTER 9 Regulating Internal Union Conduct: DFR, ERISA, and RICO 297

Section 77 Introduction 297 78 Union’s Duty of Fair Representation (DFR) 298 79 Members’ Rights under the Union’s Constitution 305 80 Union Discipline: Section 8(b)(1)(A) 306 81 Rights of Members 310 82 Union and Management Reporting Requirements 313 83 Employee Retirement Income Security Act (ERISA) 314 84 Political Contributions and Expenditures 321 85 Antiracketeering Laws 322

CHAPTER 10 Public Employment and Labor Law 329

Section 86 Introduction: Current Controversies 329 87 Federal Employment 332 88 State and Local Employment 343 89 Congressional Power over State Employment Standards 355

CHAPTER 11 Occupational Safety and Health Law 361

Section 90 Purpose and Scope 361 91 Administration 362 92 Standards 363 93 Employer Duties 371 94 Protection from Retaliation 376 95 Inspection 379 96 Citations and Penalties 383 97 Overlapping Jurisdiction 387 98 Violence in the Workplace 387 99 State Programs 389

100 State “Right-to-Know” Legislation 390

CHAPTER 12 Discrimination Laws: Protected Classes under Title VII and the Constitution 395

Section 101 Introduction 395 102 Title VII as Amended 396 103 Race and Color 411 104 Religion 417


105 Sex 424 106 Employer Liability for Sexual Harassment 432 107 Employer Liability for Coworker and Nonemployee Sexual

Harassment 446 108 National Origin Discrimination and “English Only” Rules 448 109 Protection against Retaliation 451 110 Title VII: Section 703 Exceptions 456 111 Selected Constitutional Theories on Discrimination 464

CHAPTER 13 Procedures and Remedies 473

Section 112 Mixed-Motive Cases 473 113 Statistical Cases 476 114 Title VII Court-Ordered Remedies 479 115 Consent Decrees and Voluntary Affirmative Action Plans 485 116 Reverse Discrimination and Affirmative Action Plans 493 117 The Arbitration Option 497 118 Executive Order 11246: Affirmative Action Programs 506 119 Other Remedy Options 512

CHAPTER 14 Pay Equity; Age Discrimination 523

Section 120 Equal Pay for Equal Work 523 121 The Gunther Decision and Comparable Worth 529 122 Age Discrimination 534 123 Prohibited Practices and Damages 540 124 The Older Workers Benefit Protection Act; ADEA Exemptions and

Defenses 546

CHAPTER 15 Disability Discrimination Laws—Workers’ Compensation, SSDI and the ADA—Medical and Military Leaves 553

Section 125 Discrimination Against Disabled Workers 553 126 The Rehabilitation Act of 1973 555 127 The Amended Americans with Disabilities Act 562 128 Workers’ Compensation: Relationship to the ADA 575 129 Accommodation between SSDI and the ADA 582 130 Family and Medical Leaves of Absence 584 131 Military Leaves and Reemployment Rights 589


CHAPTER 16 Employment Relationships: Contractual and Tort Theories 597

Section 132 Employment at Will, Exceptions, and Discrimination Claims 597 133 Whistleblower Protection under the Sarbanes-Oxley

and Dodd-Frank Acts 610 134 Noncompetition Agreements 616 135 Employer Liability for Torts of Employees 619 136 Proper Classification of Workers 621 137 Negligent Hiring and Retention of Employees 623

CHAPTER 17 Employee Privacy Topics 633

Section 138 Historical Background, Introduction to Employee Privacy 633 139 Public Employees’ Privacy Rights 635 140 Private-Sector Employees: Property Searches 640 141 Invasion of Privacy 641 142 Monitoring Employee Telephone Conversations and E-Mail 644 143 Drug Testing 652 144 Alcohol Abuse and Employee Assistance Programs 660 145 Polygraph Examinations 662 146 Employee Defamation Claims 668

CHAPTER 18 Wage and Hour Law—Plant Closings and Unemployment— Foreign Workers 677

Section 147 Developing Law Regulating Wages and Hours 677 148 Plant Closing Laws: The Warn Act 689 149 Unemployment Compensation 693 150 Employment-Related Immigration Laws: Introduction 697 151 Employer Sanctions and Verification Responsibilities 698 152 Employer Discrimination 702 153 Business Visas 703

APPEND IX A: Types of Cases Before the National Labor Relations Board 713

APPEND IX B: Labor Management Relations Act, 1947, as Amended By Public Laws 86-257, 1959 and 93-360, 1974 717

APPEND IX C: Excerpts from the Labor-Management Reporting and Disclosure Act of 1959 751


APPEND IX D: Excerpts from Title VII of the Civil Rights Act of 1964 as Amended by the Equal Employment Opportunity Act of 1972 759

APPEND IX E: Excerpts from the Civil Rights Act of 1991 763

APPEND IX F : Excerpts from the EEOC’s Uniform Guidelines on Employee Selection Procedures (1978) 773

APPEND IX G: Excerpts from the EEOC’S Guidance on Vicarious Employer Liability for Harassment by Supervisors 779

APPEND IX H: Excerpts from the Americans with Disabilities Act of 1990 783

APPEND IX I : Excerpts from the ADA Amendments Act of 2008 (S.3406, P.L. 110-325) 789





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This textbook presents a comprehensive treatment of all of the major labor and employment topics of our time. It contains more materials than would ordinarily be covered in a one-semester course. The intent is for instructors to select the topics and materials that best fulfill their course objectives and the current needs of their students in the ever-changing business and political environment. The What’s New and Why segment (see page xvi) details the broad range of new and developing topics contained in this edition.


Legal essays on each section’s topics are carefully crafted to clarify the often chal- lenging complexities of our labor and employment laws. The self-outlining essays are student friendly, yet authoritative and neutral, with neither management nor employee bias. Detailed footnotes in each chapter are a hallmark feature of this text. The footnotes not only meticulously provide case citations for further research or assignments, but also provide interesting side stories to help illustrate the legal concepts explored, offer historical or additional information, and give dif- fering points of view to encourage critical thinking and discussion.


Each chapter contains numerous court and agency cases relevant to the topics at hand. Some cases were selected for their historical import, some for their particu- larly insightful discussion of the issues, some because they represent turning points in the law, and most because they deal with issues of current significance. All have


been carefully edited to remove extraneous discussion while preserving the integrity of the opinion. Where appropriate, lengthy or complex discussions have been sum- marized in brackets and, in some cases, dissenting opinions have been included. Each decision is followed by case questions to guide the student through the opin- ion and assist in identification of the cogent issues and arguments.

At the end of each chapter is a broad selection of case problems. These are derived from court and administrative agency decisions in real cases and offer stu- dents the opportunity to apply the legal principles to real-life situations. Citations at the end of each case problem enable students to research how the problem was actually resolved.


Chapter 1: Section 1 sets forth, with brief details, each of the federal labor and employment statutes treated in this book. All employers meeting the law’s jurisdic- tional thresholds are subject to the National Labor Relations Act. Some examples are given, showing the types of mistakes that both union and nonunion employers continuously make because of their lack of knowledge of this law. Perspectives on the antidiscrimination laws are discussed, including the question of why the win rate for Title VII cases in the federal courts is just 11 percent. New text addresses injunctions, the Norris-LaGuardia Act, and the nonstatutory labor exemption to the antitrust laws. The recent Brady v. National Football League decision is presented.

Chapter 2: This chapter extends the survey treatment of administrative law, and the Chevron framework for court review of agency determinations on law and pol- icy, by adding the new Mayo Foundation for Medical Education v. United States precedent. Some detail is required to explain why the new text on the “Pretrial Steps of a Lawsuit” is needed. We all understand that it is unacceptable and illegal to discriminate on the basis of race, color, religion, national origin, sex, age, or dis- ability. For example, Joanne Zippittelli applied for a promotion; her supervisor asked how old she was and she replied 63. The supervisor said she would “probably not get the position.” Joanne had better performance evaluations and a better atten- dance record than the younger person who was promoted to the job. Joanne believed she was the victim of age discrimination. She never got to have her case pre- sented to a jury because the federal trial court and appeals court ruled that the employer’s motion for summary judgment should be granted. Employers have a 63 percent success rate winning such cases, pretrial. It is critical for the students of labor and employment law to have a basic understanding of the Pretrial Steps of a lawsuit, where cases can now be terminated by federal judges not only through sum- mary judgment, but also through motions to dismiss, precluding plaintiffs from con- ducting discovery under the new plausibility pleading standards.

Chapter 3: This chapter has been rewritten to reflect the various crafts that make up appropriate bargaining units in both the rail and airline industries, and the new “simple majority” rule for conducting representation elections. The chap- ter has been compressed, covering the legal framework for resolving disputes according to the categories of “major” and “minor” disputes, featuring the new Brotherhood of Maintenance of Way Employees v. BNSF Railway precedent case.


Chapter 4: This comprehensive chapter covers the workings of the National Labor Relations Board. A major function of the Board is to conduct elections to determine if a majority of employees in an appropriate bargaining unit want a union to represent them. Misclassification of individuals as independent contractors rather than employees is a current issue with major adverse impact on employees, competing employers, and the government, so the subject is treated in detail. The topic “The Recognition Bar Doctrine,” dealing with an employer’s voluntary recog- nition of a union based on a showing of majority status by authorization cards rather than by an election, was modified by the Bush II Board in its 2007 Dana Corp. decision, with the Board majority expressing a preference for elections as opposed to authorization cards. With the composition of the Board changing with the election of President Barack Obama, a new Board majority overruled the Dana Corp. decision. Judge Harry Edwards points out that it is a fact of life in NLRB lore that interpretation of certain substantive provisions of the NLRA fluctuate with the composition of the Board, and if reasonable each decision is entitled to deference. Throughout this text, where issues are subject to such fluctuation, the positions of both sides are presented, leaving it to the reader to decide the correctness of the current ruling. Social media and employee rights under the NLRA to discuss terms and conditions of employment with coworkers is a new topic for this chapter. The NLRB’s General Counsel instituted a new priority action program under Sec- tion 10(j) of the Act to seek the temporary injunctive relief of return to work pend- ing the outcome of Board proceedings, when individuals are fired during union organizing efforts. The deletion of two cases, and more stringent editing of existing cases, allowed two new cases to be added to this chapter.

Chapter 5: This important chapter covers employer unfair labor practices. Managers and students can learn from the mistakes of others, as this chapter is studied. A new subsection entitled “Employer-Union Prerecognition Negotiations” is added, along with a precedent case recently decided by the NLRB. The scope of an employer’s duty to bargain with a union has been rewritten and expanded with topics such as “Employer’s Obligation to Furnish Information,” “Surface Bargain- ing,” and “Bargaining Impasses.”

Chapter 6: This chapter deals with union unfair labor practices. Perhaps the most complicated concepts under NLRB and Supreme Court precedents are the sec- ondary activities of unions, including consumer product picketing, handbilling, and bannering. New text on bannering reflects the 2011 NLRB decisions on this topic. A new court decision is presented in which a neutral employer successfully sued a union for damages caused by the union’s secondary picketing activity at a jobsite.

Chapter 7: While retaining the text and cases on the rights and obligations of employers and employees relating to strike activity, new text is presented on the use of Section 10(j) temporary injunctions to require the immediate reinstatement of unfair labor practice strikers.

Chapter 8: This chapter on dispute settlement law has been reorganized. It contains a new section on “Labor Arbitration of Statutory Discrimination Claims” reflecting the Supreme Court’s recent Pyett decision, which now permits employers and unions to bargain away individual employees’ rights to pursue statutory dis- crimination claims in federal court, relegating union members to arbitration for resolution of their claims.


Chapter 9: While containing coverage of the union’s duty of fair representa- tion for its members, this chapter also contains updates on a union’s right to disci- pline its members. The materials on ERISA are expanded to more fully explain the distinctions between defined contribution plans and defined benefit plans, and the reasons that defined contribution plans are now the plans most frequently offered by employers.

Chapter 10: Public-sector labor laws are in transition as state legislative bodies consider measures that restrict, eliminate, or modify collective bargaining rights. A new section is added to the text outlining the current controversies, as well as the selected approaches taken to resolve fiscal troubles either unilaterally by legislative action or through concessions obtained via collective bargaining. The material on contractual impasse settlement procedures has been rewritten to reflect current pro- gressive practices.

Chapter 11: The Occupational Safety and Health Act has been remarkably effective, as can be seen from the following statistics. In 1970 when the law was enacted, with the U.S. population then at 203,000,000, more than 14,000 workers were killed in industrial accidents. In 2009, with the U.S. population at an esti- mated 307,000,000, some 4,551 workers were killed in work-related incidents. In a 2011 ruling by the Occupational Safety and Health Review Commission, it over- turned a 2007 OSHRC decision and returned to the longstanding precedent that a general contractor, who created or controlled a hazard to which one or more employees of a subcontractor were exposed, can be held responsible for a serious violation of the act and assessed a penalty.

Chapter 12: This comprehensive chapter covers Title VII of the Civil Rights Act of 1964. It has been rewritten in major respects. For example, new text addresses the current focus of litigation by the EEOC on its new Systemic Class Action Program. Under this program, when the EEOC perceives a statutory viola- tion during its investigation of an individual charge, it may bring a class action lawsuit against the employer, issuing comprehensive subpoenas for records of all similarly situated individuals. Private class action lawsuits are also significant mat- ters for employers today, but they must meet the Supreme Court’s recent Wal-Mart Stores v. Dukes analysis. With the success rate for Title VII cases in federal courts at just 11 percent, understanding burdens of proof for disparate treatment and dis- parate impact cases is critical for both plaintiffs and defendant-employers in evalu- ating their settlement and litigation options. New text explains these theories with appropriate examples. New text also discusses the discrimination law dealing with employee garments worn for religious reasons. The section on pregnancy-related benefits and job protection has been rewritten. The Glenn v. Brumby case presents the developing theory of sex stereotyping based on the PriceWaterhouse v. Hopkins precedent as successfully applied to a transgender individual. Retaliation claims are now the most frequent type of claim filed with the EEOC. Four Supreme Court decisions from 2008–2011 have enhanced retaliation rights and expanded the reach of retaliation claims beyond Title VII to other employment- related statutes.

Chapter 13: Dealing with procedures and remedies regarding discrimination cases, including affirmative action programs, this chapter also expands the treatment of awards of attorneys’ fees. It includes a presentation of the EEOC v. Peoplemark


decision, in which the EEOC was required to pay some $752,000 in attorneys’ fees, expert witness fees, and other expenses because it should have known its Systemic Class Action suit against the temporary staffing company was devoid of merit. Many employers require their employees to arbitrate all claims, including statutory discrimination claims, arising in their employment relationship. The text contains coverage of these issues regarding mandatory employment arbitration of statutory discrimination claims. Under Executive Order 11246, the Office of Federal Contract Compliance Programs has responsibility for compliance with affirmative action pro- grams of federal contracting agencies. In July 2011, the agency announced its policy of thorough, careful reviews of federal contractors, with increased focus on compen- sation discrimination and affirmative action, as bolstered by a staff increase of 35 percent over a two-year period, including 200 new compliance officers.

Chapter 14: Covering pay equity and age discrimination, this chapter presents the 2011 Equal Pay Act decision of Renstrom v. Nash Finch, which analyzes all the elements that are required for success in an Equal Pay Act case. The Supreme Court’s Gross v. FBL Financial Services, Inc. decision is discussed, making clear that decisions construing Title VII do not control the construction of the Age Discrimination in Employment Act; the decision ruled out mixed-motive theories under the ADEA.

Chapter 15: The dramatic changes to the Americans with Disabilities Act wrought by the ADA Amendments Act of 2008 provided an opportunity to rewrite the complicated text to reflect the ADAAA’s expressed intent that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The 2010 Horgan v. Simmons decision for the plaintiff, presented in the text, is supportive of the now straight forward analysis of disability cases. The Family and Medical Leave Act has a “key employee” exemption under which an employer may deny restoration of such an employee to employment. New text treats this exemption, and the technical condi- tions that must be complied with, in the Neel v. Mid-Atlantic of Fairfield case. Military Leaves and Reemployment Rights are discussed in expanded text. The Supreme Court adopted the Subordinate Bias Doctrine (or The Cat’s Paw Theory) in its 2011 Staub v. Proctor Hospital decision. The Serricchio v. Wachovia Securi- ties, LLC decision addressed the issue of the employer’s obligation to provide the same terms of employment as the reservist had prior to service in Iraq. It also addressed whether the reservist was entitled to liquidated damages.

Chapter 16: Section 16.2 contains an update on the SOX whistleblower law, and presents the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, with its rather dramatic expansion of the SOX Act cause of action, allowing immediate lawsuits in federal court and bounties. The Brown v. Lockheed Martin Department of Labor ARB decision shows the ruin to a whistleblower employee’s health and career. Proper classification of workers is again addressed in this chap- ter, noting that employers who misclassify employees as individual contractors may be held liable for the misclassified employees’ torts, and lack proper liability coverage.

Chapter 17: In a 2011 decision, the U.S. Supreme Court addressed the argu- ments of NASA contract workers at Cal Tech that NASA violated their U.S. con- stitutional right to informational privacy by its employment background check


questions, with the Court determining that the government had legitimate interests at stake, and that the individuals have the protections of the Privacy Act of 1974. The Supreme Court also decided a Fourth Amendment privacy case against a law enforcement officer regarding the search of his text messages in its City of Ontario, California v. Quon decision. A current case is discussed in which an employer was allowed, under a limited exemption, to request an employee to submit to a poly- graph test.

Chapter 18: In the presentation of wage and hour law, a discussion is added on the law regarding the utilization of unpaid interns. With the economic down- turn and an increase in WARN Act cases, Section 18:2 has been rewritten to reflect the developing law in this area. The sections on employment-related immi- gration law have been rewritten to reflect the administrative changes by USCIS under its 2011 final rule on acceptability of identity documents. Verification through the E-Verify system and the USCIS statistics on the workings of the system are presented. The Supreme Court’s 2011 Chamber of Commerce v. Whiting deci- sion, on the constitutionality of Arizona’s Legal Arizona Workers Law, is presented.


Accessing CengageBrain

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“Sign Up” in the top right corner of the page and fill out the registration information. (After you have signed in once, whenever you return to CengageBrain, you will enter the user name and password you have chosen and you will be taken to the companion site for your book.)

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The Instructor’s Manual for the 15th edition of Labor & Employment Law contains questions and answers for each of the cases reported in the text as well as answers to end-of-chapter questions and case problems. The manual includes an “Author’s Comments” feature, which offers suggestions for sparking classroom discussion while referencing specific cases, footnotes, and sections of the text.


The companion website for this edition of Labor & Employment Law offers links to the following: important labor and employment law sites; labor and employment law blogs; legal forms and documents; free legal research sites (com- prehensive and circuit-specific); help in the classroom; and labor and employment law directories, departments, agencies, associations, and organizations. In addition, a list of recent labor and employment law cases with links directly to the excerpted versions is available on the website.

Many instructors set aside time each week to discuss current labor and employment law issues as they develop by requiring student reports to the class drawing from local and national newspapers, current periodicals and news maga- zines, and current court decisions. By using the vehicle of current issues, you can put the struggle between management and labor in perspective, draw students into the controversy, and thereby help them crystallize in their own minds the argu- ments on both sides, the conflicting interests and the balance and compromise so necessary in our complex society.


I wish to thank all those who have helped make this book possible, especially the reviewers of this and prior editions: Christine Neylon O’Brien, Boston College; Michael K. Fee, Esq., of Needham, Massachusetts; Len Bierman, Texas A&M University; Wayne Davis, Webster University; Anne L. Draznin, University of Illinois, Springfield; Hank Findley, Troy University; Laura J. Hanson-Brown, Web- ster University: Brian Heshizer, Georgia Southwestern State University; Richard J. Hunter, Jr., Seton Hall University; Ghadir Ishquaidef, University of Kansas; Penelope R. Jennings, California State University, Northbridge; Doug Kennedy, University of Wisconsin, Stout and St. Mary’s University of Minnesota; Nancy Lahmers, Fisher College of Business, Ohio State Univeristy; Susan Mae McCabe, Kellogg Community College; Lisa Moeller, Beckfield College; William B. Read, Husson University; Judy N. Rudolf, South College, Asheville; David Skeen, Webster University, Luke AFB Campus; Beth Anne Wolfson, Bentley University; Kiren Dosanjh Zucker, California State University, Northbridge; and Bruce Zucker, California State University, Northbridge. I am grateful for the research assistance and helpful comments of my colleague Margo E. K. Reder. Amy Hinz and Kathleen M. Kyratzoglou provided invaluable assistance in the preparation of the manuscript.

Suggestions for the improvement of this book will be most cordially welcomed.

David P. Twomey Carroll School of Management,

Boston College Chestnut Hill, Massachusetts


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Professor David P. Twomey has been teaching and writing in the Labor and Employment Law area as a member of the Business Law Department of the Carroll School of Management at Boston College since 1968. He is a member of the National Academy of Arbitrators and has served as arbitrator in more than 2,000 labor-management disputes throughout the country. His service includes appoint- ments, by Presidents Ronald Reagan, George H. W. Bush, William J. Clinton, and George W. Bush, to eight Presidential Emergency Boards, whose recommendations served as a basis for the resolution of major disputes in the rail and airline indus- tries. His work is neutral and authoritative. Recent examples of his work, published as lead articles in the Labor Law Journal, are:

• David P. Twomey, Employment Retaliation Claims under the Supreme Court’s Burlington, Crawford and Thompson Decisions: Important Implications for Employers, 62 LABOR LAW JOURNAL 2, 57–66 (Summer 2011).

• David P. Twomey, The Supreme Court’s 14 Penn Plaza v. Pyett Decision: Impact and Fairness Considerations, 61 LABOR LAW JOURNAL 2, 55–66 (Summer 2010).

• David P. Twomey, The Employee Free Choice Act: Congress, Where Do We Go from Here?, 60 LABOR LAW JOURNAL 2, 71–81 (Summer 2009).

He is coauthor of a widely used business law textbook. His articles have appeared in journals such as Best’s Review, The American Business Law Journal, The Massa- chusetts Law Quarterly, The Florida Bar Journal, and The Business Law Review.

After service in the U.S. Marine Corps, he graduated from Boston College, earned his M.B.A. at the University of Massachusetts, Amherst, and earned a J.D. degree at Boston College Law School. He is a member of the Massachusetts and Florida Bars.


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1:1 Introduction: Perspectives

1:2 Historical Context: The Criminal Conspiracy Doctrine

1:3 Historical Context: The Contractual Interference Doctrine

1:4 Historical Context: Early Applications of the Sherman Act

1:5 Injunctions and the Clayton and Norris-Laguardia Acts

1:6 Continuing Impact of Antitrust Laws


In the United States, the relationship of employer and employee is a contractual one. If the employment contract does not have a definite duration, it is terminable at will. Under this employment-at-will doctrine, the employer historically was free to hire or not hire, and free to discharge any employee for any reason or no reason. The employee was free to leave his or her employment at any time for any reason. Gradually, federal and state statutes were enacted to provide certain individual rights to workers, protecting them from workplace exploitation and discrimination by employers. Absent this statutory protection, however, or a narrow court-created contract or tort exception, the employment-at-will doctrine is still the basic default rule governing employment in the United States.


A separate set of rules governs the negotiation and enforcement of collective bargaining contracts between unions and employers, as developed under the Rail- way Labor Act and the National Labor Relations Act.1

The federal statutes affecting employment relations covered in this book are:

• The Railway Labor Act of 1926 as amended (RLA), which regulates the rights of individuals to form unions and engage in collective bargaining in the rail- way and airline industries.

• The National Labor Relations Act of 1935 (NLRA) and the Labor Management Relations Act of 1947 (LMRA), which govern the rights of individuals in the private sector to form and join labor unions and to engage in collective bargaining.

• The Fair Labor Standards Act of 1938 (FLSA), which sets minimum wages and regulates overtime pay and child labor.

• The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), which regulates the relationship between labor unions and their members and provides a bill of rights for union members.

• The Equal Pay Act of 1963 (EPA), which prohibits gender-based compensation differentials for work requiring equal skill, effort, and responsibility.

• Title VII of the Civil Rights Act of 1964, as amended in 1972 and 1991, which prohibits discrimination in employment on account of race, color, religion, national origin, or sex.

• The Age Discrimination in Employment Act of 1967, as amended (ADEA), which prohibits discrimination in employment on account of age.

• The Occupational Safety and Health Act of 1970 (OSHA), which seeks to assure all workers safe and healthful working conditions.

• The Rehabilitation Act of 1973, which requires the federal government as an employer to implement affirmative action plans on behalf of handicapped employees, and also requires federal contractors to take affirmative action to employ the handicapped.

• The Employee Retirement Income Security Act of 1974 (ERISA), which sets vesting rights, fiduciary and administrative standards, and reporting require- ments for employee pension and benefit plans.

• The Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964, prevents employers from treating pregnancy, childbirth, and related medical conditions in a manner different from other medical conditions, and provides protection from adverse employment action because of pregnancy.

1 Collective bargaining contracts govern the rights and obligations of employers and employees subject to these contracts. Under collective bargaining, representatives of the employees bargain with a single employer or a group of employers for an agreement on wages, hours, and working conditions. The agreement worked out by the representatives of the employees, usually union officials, is generally subject to a ratification vote by the employees. Terms usually found in collective bargaining contracts are (1) identification of the work belonging exclusively to designated classes of employees; (2) wage and benefit clauses; (3) promotion and layoff clauses, which are usually tied in part to seniority; (4) a management’s rights clause; and (5) a grievance-arbitration procedure. A grievance-arbitration procedure provides a means by which persons claiming that the contract was violated or that they were disciplined or discharged without just cause may ultimately have their cases decided by impartial labor arbitrators.


• The Immigration Reform and Control Act of 1986 (IRCA), which protects lawful aliens against discrimination because of their national origin or citizen status.

• The Employee Polygraph Protection Act of 1988 (EPPA), which generally protects private-sector job candidates and employees from being subjected to lie detector tests.

• The Worker Adjustment and Retraining Notification Act of 1988 (WARN Act), which requires employers with 100 or more employees to give 60 days’ notice of plant closings if 50 or more workers at one site are to lose their jobs; it also has a mass layoff provision.

• The Americans with Disabilities Act of 1990 (ADA), which prohibits discrimina- tion in employment on account of disability. The ADA Amendments Act of 2008 (ADAAA) states that the definition of disability shall be construed in favor of broad coverage to individuals under the ADA, to the maximum extent possible.

• The Older Workers Benefit Protection Act of 1990 (OWBPA), which amended the ADEA, prohibits age discrimination in employee benefits.

• The Family and Medical Leave Act of 1993 (FMLA), which requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave for certain family and medical reasons.

• The Uniformed Services Employment and Reemployment Rights Act of 1994, which protects civilian job rights of individuals who leave their jobs for active military service.

• The Health Insurance Portability and Accountability Act of 1998 (HIPAA), which holds health care providers and their employees to strict privacy stan- dards regarding individually identifiable health information in any form.

• The Sarbanes-Oxley Act of 2002 (SOX), which contains protections for employee corporate whistleblowers who provide information regarding mail, wire, bank, or securities fraud; any violation of an SEC rule; or any federal law protecting shareholders against fraud.

• The Genetic Information Nondiscrimination Act of 2008 (GINA), which pro- vides protection for employees against discrimination in employment on the basis of genetic information. “Company doctors” administering medical examinations must not ask for DNA tests or family medical histories.

• The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), which expands whistleblower protections to a wide range of financial services employees, and provides bounties to whistleblowers on monetary recoveries that aggregate to more than $1 million.

The states also have a very important role in the regulation of employment relationships between employers and employees. Among other things, they admin- ister unemployment compensation insurance programs, regulate workers’ compen- sation programs, and set public policy regarding the termination of at-will employees and state and local government employee collective bargaining rights.


The decline in the number of unionized workers in the United States is seen by some as a reason to deemphasize the study of labor relations law. It is true that since 1983, the first year for which comparable union data are available, the


percentage of U.S. workers belonging to unions has shrunk from 20.1 percent of the nation’s workforce to approximately 11.9 percent (in 2010). The highly union- ized blue-collar sectors of our economy, including manufacturing, mining, and transportation, have suffered employment declines, often due to improved labor- saving technology. This decline has adversely affected the percentage of unionized workers in the United States. However, approximately 21.8 percent of our nation’s transportation and utility workers continue to be represented by unions, with 15.8 percent of telecommunications, 10.7 percent of manufacturing, and 13.1 per- cent of construction workers maintaining union membership. Some 36.2 percent of all employees in federal, state, and local government service are union members. Labor has not been very successful in organizing so-called white-collar workers, such as clerical, professional, technical, sales, and other such employees. Musicians, actors, and professional athletes are highly unionized, and many college faculty members, engineers, physicians, and nurses are unionized. About 14.7 million U.S. workers belonged to unions in 2010; some 1.6 million other workers are repre- sented by unions even though they are not union members, and many other mil- lions of U.S. workers receive wage and benefit adjustments comparable to or in excess of union wage rates and benefits because their employers track and pay dif- ferentials so as to avoid the unionization of their companies.2


Labor relations laws do not apply only to unionized employers. All employers that meet appropriate jurisdictional requirements are subject to federal labor laws, and their employees have the right to form and join labor unions. The employers are obligated to bargain with union representatives if a majority of the employees in an appropriate bargaining unit choose such representation.

A narrow, summary treatment of United States labor laws is of some informa- tional value to students of management, human resources, and economics. How- ever, our labor laws are quite complex. Since enactment of the Railway Labor Act in 1926, to the present, the courts have been called on to resolve constantly devel- oping and very difficult policy questions in labor relations law. Often labor law decisions involve the interaction of several laws, including antitrust, anti- injunction, and labor relations law, as presented in the Brady v. National Football League decision reported in this chapter. However, when considered category by category and case by case, the elements of complex legal doctrines become clear and understandable.

UNIONIZED EMPLOYERS. Employers cannot threaten, coerce, or restrain employees in the exercise of their statutory rights under the NLRA, including their right to strike. Employers have the broad right to manage their business as they see fit, subject to the terms of their collective bargaining agreement(s), if one or more exist. On April 20, 2011, the National Labor Relations Board (NLRB) filed a complaint against the Boeing Company based on statements made by high Boeing executives, applicable to

2 For the latest information on union membership, see


its union-represented employees, that it would remove or had already removed work from Boeing’s facilities in the Puget Sound area of Washington state because the employees had struck Boeing in the past; the statements threatened or impliedly threatened that the Washington unit would lose additional work in the event of future strikes. The alleged comments were connected to the company’s plan for a new South Carolina production facility for its 787 jetliners. Boeing disagrees with the factual assertions related to the complaint and asserts its right to build planes in South Carolina.

Louis of Boston is one of that city’s priciest clothing stores. The president of Louis decided to contract out the alteration work formerly performed by in-house tailors. She believed that she had the legal right to outsource the work and lay off the employees at the expiration of the store’s collective bargaining contract with the Needles Trades union. As will be seen in Chapter 5, labor law is not that simple, and an employer’s bargaining obligation does not end at the expiration of the contract. After consulting with an employment law attorney and following 19 days of intermit- tent protests and adverse publicity, Louis of Boston issued an apology for not having followed the letter and spirit of the law and reinstated its nine tailors with back pay.

NONUNION EMPLOYERS. The owner of the famous Boathouse restaurant in New York City’s Central Park terminated more than 30 employees who had petitioned for union recognition. These employees—waiters, bartenders, and busboys—were employees at will. The restaurant’s management believed that it had not violated any labor laws in dismissing them as it saw fit. However, with the NLRB about to issue a far-reaching complaint of labor law violations, the restaurant offered to return all of the fired employees to work, with back wages, and to negotiate a col- lective bargaining contract with the Hotel Trades Council union. Nonunion employers need to know that employees who form or are forming a labor organi- zation are protected under the National Labor Relations Act against discharge or other adverse employer actions in retaliation for the employees’ union activities.

Faced with employee discontent about changes in the company’s pay and bene- fit policies implemented due to adverse economic conditions, and later aware that a union was initiating an organizing campaign, the president of Electromation Inc. set up company action committees with company-selected employee representatives to seek solutions to the numerous problems affecting employees. The NLRB decided that the president had formed an illegal labor organization and usurped his employ- ees’ legally protected right to bargaining representation of their own choosing.

Employee and management cooperation is very important in today’s global economy. Whether it is a nonunion or union company, thorough knowledge of the intricacies of labor relations law is essential in setting up lawful employee- management teams. The extent of management rights in this regard is presented in Chapter 5.


Employment discrimination based on race, color, religion, national origin, gen- der, age, or disability is both unacceptable and illegal in our society. When four white executives of Texaco, Inc., were caught on tape making racist statements


about minority employees and discussing how to conceal evidence sought by the plaintiffs in a racial discrimination lawsuit, the company had no defense for such inexcusable and intolerable conduct. Within two weeks of release of the tape, Texaco agreed to settle the underlying lawsuit for $176.1 million.3 Laura Zubulake filed a sex discrimination lawsuit against her employer, UBS Warburg LLC, and instead of the employer’s human resources personnel making a diligent inquiry into her complaints, evidence found in e-mails subpoenaed in pretrial discovery indicated that senior management decided to “exit her ASAP.” Her attorney believed that, instead of helping her, the company made every effort to build a file against her. This case went to trial and the jury awarded Zubulake $2,214,009 in back pay, $6,863,100 in front pay, and $20,169,081 in punitive damages.4 Novartis Pharmaceuticals Corp. agreed to a $175 million settlement of a nationwide class action lawsuit of systemic sex bias in pay, promotions, and pregnancy leave.5 The EEOC’s new Systemic Class Action Program has been suc- cessful in pursuing discrimination cases affecting large classes of individuals under every statute enforced by the agency.6

Despite the plaintiff-positive headlines that come from successful settlements and trials such as those just mentioned, employment discrimination plaintiffs are doing poorly in federal courts, whether before trial, at trial, or on appeal. In a 2009 article published in the Harvard Law & Policy Review, the authors’ find- ings showed that the win rate for federal trial court plaintiffs over the period from 1979 to 2006 was 15 percent in job discrimination cases, whereas the win rate in all other civil cases was 51 percent.7 In the period from 1998 to 2006, the win rate for Title VII cases was 10.9 percent—and there was a breathtaking drop of nearly 40 percent in the number of discrimination cases filed in the federal dis- trict courts from 1999 to 2007.8

In general, employers have become more careful to avoid discriminatory behavior. Moreover, employers are generally quick to settle discrimination charges prior to litigation when there is credible evidence of discrimination, lest they be exposed to adverse publicity and what they perceive as the possibility of runaway jury awards. The litigation hurdles in pretrial procedures (covered in Chapter 2), coupled with the low chances of success in federal courts, may very well dissuade attorneys from taking on discrimination cases and in part explain the remarkable drop in the number of lawsuits filed in federal courts.9 The mate- rials in this book’s employment discrimination chapters (chapters 12–15) provide

3 David Thomas, The Real Shame of the Texaco Case, BOSTON SUNDAY GLOBE, Nov. 17, 1996, at D1, D5. 4 John Herzfeld, Federal Jury Awards $29.2 Million to Fired UBS Equities Saleswoman, DLR No. 67, at 1 (April 8, 2005). 5 Janet Walthall, Novartis Female Sales Reps to Settle Sex Bias Class Action for $175 Million, DLR No. 135 (July 15, 2010). 6 See Section 12:1 of this text. 7 Kevin Clermont & Stewart Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse, 3 HARVARD L. & POL’Y REV. 3, 30 (2009). 8 Id. at 41. 9 Some of the decline can also be attributed to the mandatory arbitration of statutory discrimination claims increasingly required in initial employment contracts.


students with a framework for the individualized evaluation of cases involving discrimination based on race, color, religion, national origin, sex, age, and dis- ability, which will serve them well as future managers and human resources pro- fessionals, and enable them to take corrective action when discrimination is found to have occurred and defensive action when groundless claims of discrimination are raised.


The major federal labor-employment laws identified previously in this section are continuously developing, as issues are addressed and sometimes readdressed by administrative agencies and the courts, and to some degree reflect the political and economic climate of our time. Every chapter of this text contains new precedents and issues on chapter subject matter. A few examples follow.

• The National Mediation Board issued a new rule revising representation elec- tion procedures, which has had an impact on union representation elections in the railroad and airline industries.

• Misclassification of workers by employers as independent contractors rather than employees is having adverse implications for employees, competing employers, and the government, and is currently a major issue.

• The Supreme Court’s Pyett decision10 now permits employers and unions to bargain away individual employees’ rights to pursue statutory discrimination claims in federal court, relegating union members to arbitration for resolution of their claims.

• Public-sector labor laws are in transition as state legislative bodies consider measures that restrict, eliminate, or modify collective bargaining rights (see Chapter 10 on public employment and labor law).

• In a 2011 decision, the Supreme Court adopted a subordinate bias doctrine—a so-called cat’s-paw theory of discrimination—in a case involving alleged dis- crimination against an employee on the basis of military service under the Uniformed Services Employment and Reemployment Rights Act.11

• In 2010, “retaliation” claims were the type most frequently asserted in charges filed with the EEOC. The Supreme Court’s 2006 Burlington Northern & Santa Fe Railway Co. v. White12 decision lowered the standard that plaintiffs must meet to prove a retaliation claim under Title VII, and four additional Supreme Court decisions from 2008 to 2011 enhanced retaliation rights and expanded the reach of retaliation claims to other employment-related statutes. Retaliation is now widely considered a major liability area for employers, and the text provides guidance to reduce the risk of retaliation claims.

• Class action lawsuits alleging wage and hour violations of the Fair Labor Standards Act are presently the number-one exposure for most companies,

10 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009). 11 Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). 12 548 U.S. 53 (2006).


according to the head of the class action defense group at the major national law firm of Seyfarth Shaw LLP in Chicago.


The first recorded American labor relations case took place in Philadelphia and involved a criminal proceeding in 1806 against eight members of a guild of boot- makers and shoemakers (cordwainers) who had gone on strike against their employers: Commonwealth v. Pullis. The employer group of masters asked the jury to establish the principle that the strike of the guild members was a criminal conspiracy in restraint of trade. The cordwainers were charged with (1) mutually agreeing to refuse to work for an employer who paid less than a fixed rate (which was higher than what had customarily been paid), (2) agreeing to try to prevent other craftsmen from working except at this rate, and (3) agreeing not to work for anyone who employed a cordwainer who had broken the guild’s rules. The jury found the defendants guilty, and the court fined each defendant $8.

In the landmark 1842 decision Commonwealth v. Hunt, written by Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court, the court refuted, but did not squarely repudiate, the criminal conspiracy doctrine. Several members of the Boston Journeymen Bootmakers Society had been convicted of criminal conspiracy to withhold their services from an employer until such time as the employer discharged a journeyman named Jeremiah Horne, because Horne was not a member of the Bootmakers Society. The conviction was appealed, and the appeals court ruled that it was not an invalid purpose for the society to induce all those engaged in the same occupation to become members of the society. Accord- ing to the court, the legality of unions depended on their purpose and the means by which the purpose was carried out.


[From the judge’s charge to the jury.] What is the case now before us? … A combination of workmen to raise their wages may be considered in a twofold point of view: one is to benefit themselves [and] the other is to injure those who do not join their society. The rule of law condemns both. If the rule be clear, we are bound to conform to it even though we do not comprehend the principle upon which it is founded. We are not to reject it because we do not see the reason of it. It is enough, that it is the will of the

majority. It is law because it is their will—if it is law, there may be good reasons for it though we can- not find them out. But the rule in this case is pregnant with sound sense and all the authorities are clear upon the subject. Hawkins, the greatest authority on the criminal law, has laid it down, that a combination to maintaining one another, carrying a particular object, whether true or false, is criminal.…

In the profound system of law, (if we may compare small things with great) as in the profound systems of



Providence … there is often great reason for an institu- tion, though a superficial observer may not be able to discover it. If obedience alone is required in the present case, the reasonmay be this. One man determines not to work under a certain price and it may be individually the opinion of all: in such a case it would be lawful in each to refuse to do so, for if each stands, alone, either may extract from his determination when he pleases. In the turnout of last fall, if each member of the body had stood alone, fettered by no promises to the rest, many of themmight have changed their opinion as to the price of wages and gone to work; but it has been given to you in evidence, that they were bound down by their agree- ment, and pledged by mutual engagements, to persist in it, however contrary to their own judgment. The con- tinuance in improper conduct may therefore well be attributed to the combination. The good sense of those individuals was prevented by this agreement, from hav- ing its free exercise…. Is it not restraining, instead of promoting, the spirit of ’76 when men expected to have no law but the Constitution, and laws adopted by it or enacted by the legislature in conformity to it? Was it the spirit of ’76, that either masters or journey- men, in regulating the prices of their commodities should set up a rule contrary to the law of their country? General and individual liberty was the spirit of ’76. It is our first blessing. It has been obtained and will be main- tained…. Thoughwe acknowledge it is the hard hand of

labour that promises the wealth of a nation, though we acknowledge the usefulness of such a large body of tra- desmen and agree they should have every thing towhich they are legally entitled; yet we conceive they ought to ask nothing more. They should neither be slaves nor the governors of the community.

The sentiments of the court, not an individual of which is connected either with the masters or journey- men; all stand independent of both parties… are unan- imous. They have given you the rule as they have found it in the book, and it is now for you to say, whether the defendants are guilty or not. The rule they consider as fixed, they cannot change it. It is now, therefore, left to you upon the law, and the evidence, to find the verdict. If you can reconcile it to your consciences, to find the defendants not guilty, you will do so; if not, the alter- native that remains, is a verdict of guilty.

[The jury found the defendants guilt



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