Law > QUESTIONS & ANSWERS > LER401: The Law of Labor-Management Relations. Complete Study and Class Notes (35 Pages) (All)

LER401: The Law of Labor-Management Relations. Complete Study and Class Notes (35 Pages)

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Our Nation’s 1st At-Will Exceptions: Bans on Interference and Discrimination. Previous Classes: Section 8(a)(1) makes it ULP for firm to “interfere with, coerce, or restrain” employee’s exercise of Section 7 rights. Today: 8(a)(3) makes it ULP for firm to discriminate against employee in any condition of employment (demote, fire, layoff, discipline, etc.) to discourage union membership Most Americans are still generally “at-will with (limited) exceptions.” Unlike other countries, US lays down NO GENERAL PROTECTION requiring firms to have good cause (or “just cause”*) for taking adverse action against an employee. 8(a)(3): Granddaddy Rule Banning One Kind of Anti-Discrimination/Anti-Retaliation Law 8(a)(3): Granddaddy Rule Banning One Kind of Anti-Discrimination/Anti-Retaliation Law by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization NLRA Section 8(a)(3): Basics 8(a)(3) makes it a ULP for firm to discriminate…: 1) “in regard to hire:” thus protect job applicants not hired b/c of past union activity. Fact that non-hire prevented applicant from becoming “employee”? Not a problem. 2) In “tenure of employment:” protects incumbent employees from discharge/discipline; A Firm Must Have “Specific Intent” To Violate 8(a)(3) Can NLRB peer into mind of managers who, say, did the firing? No. BUT, As we shall see, the NLRB has developed ways of INFERRING employer’s purpose/motive/intent from circumstantial evidence. Discrimination cases often entail “messy” facts. “He said/she said disputes.” Lots of arguments back and forth. GC Has Burden To Prove Four Things: a) The Employee engaged in “protected activity;” b) Employer knew of E’ee activity (E’r Knowledge) and Took Adverse Action vs. Employee; In “normal” case (again, where victim is not undocumented worker) Board will order firm, first, to reinstate employee to his/her Posting of Notice of Employer’s Violation in Conspicuous Places at Work In Hoffman Plastic Compounds (2002) one of our readings for today, the issue before the U.S. Supreme Court was whether the Board The Case of the Undocumented Worker The rulings in Sure-Tan (1984) “PLUS” Hoffman Plastic Compounds (2002) = the following “bottom line”: How Has Hoffman Plastic Affected Remedies Under Laws OTHER THAN the NLRA? Hoffman Plastic and Minimum Wage/OT Cases What if victim of FLSA violation is undocumented, does he/she get payment of wages illegally withheld?

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