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SOUTH-WESTERN LEGAL STUDIES IN BUSINESS
CASE UPDATESLABOR LAW
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SW Legal's Case Updates is a SW Legal Studies service to provide briefs of the latest state and federal court cases. Review the summaries and, for cases of interest, select the case brief. If you cannot find a case of interest, return to Topic Index . |
Title
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Summary
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Restaurant May Require Servers to Pool Tips
Briefed Case |
Appeals court held that so long as an employer, such as at a restaurant, pays workers at least the minimum wage, it may require workers, such as servers, to contribute their tips to a common pool distributed to other employees. |
Dispute as to Scope of Labor Arbitration Agreement Goes to Arbitration, Not to Court
Briefed Case |
Appeals court held that where an agreement between a union and an employer called for arbitration of disputes, any disputes, including ones over the coverage of the arbitration agreement itself, must go to arbitration, not to court, for resolution. |
Union May Be Sued for Common Law Nuisance
Briefed Case |
New York high court held that a union could be sued for nuisance to enjoin it from making a racket when engaged in lawful distribution of union material. Such common law actions are not preempted by the National Labor Relations Act. |
One Open Argument with Union Organizers Not Illegal Surveillance
Briefed Case |
Appeals court affirmed NLRB decision that a company did not engage in illegal surveillance of unionization efforts when a manager spoke to employees being offered union cards in an open setting. |
Agency Fees May Include Costs of National Union Litigation
Briefed Case |
Appeals court held that it was proper for the agency fees paid by non-members of a union to include the cost of litigation incurred by the national union that concerned union representation matters, since such litigation relates to the benefits and procedures of all persons represented by a union. |
Workers Not Paid for Time in Transit to Job Not Ordered by Employer
Briefed Case |
Appeals court held that an employer did not have to compensate workers for time spent in transit from their parking lot through security and a ride on a bus provided by security for work at an airport. Since the security was not under the employer’s control, it was not responsible for that time. |
Minimum Wage Law Does Not Apply to Persons Providing Companionship Services for the Elderly
Briefed Case |
Supreme Court held that Congress intended to exclude persons providing companionship services for elderly person, whether employed directly by the person receiving care or employed by an agency that directs them to work for a particular elderly person. |
Duties of RN Did Not Make Her a Supervisor Rather Than an Employee
Briefed Case |
Appeals court held that an RN, fired for circulating a petition protesting some work rules, was eligible for a hearing at the NLRB to see if her employer improperly punished her for engaging in protected activities. Her duties, which involved reporting problems of nursing assistants, did not rise to the level of a supervisory position. |
Bargaining Unit May Not Be Composed of One Person
Briefed Case |
Appeals court reversed an NLRB ruling. The court noted that the NLRA does not permit one-person bargaining units, so efforts to create a one-person bargaining unit are not protected activities and the employee in question may be fired. |
Intellectual Property Rights Subject to Bargaining by Public Employees
Briefed Case |
Kansas high court held that a university could bargain with its faculty union regarding rights to copyrights and patents created by faculty. Federal copyright and patent law do not prevent parties from bargaining over that issue. |
Decertification of Union Does Not Automatically End Employer Pension Obligations
Briefed Case |
Appeals court affirmed that when a union is decertified the pension plan defined in the collective bargaining agreement continues in force until the employer goes through a specific procedure under federal law to change the terms of the pension plan. |
Pharmacists Are Professionals Not Due Overtime Pay under FSLA
Briefed Case |
Appeals court held that pharmacists meet the definition of professionals
who are exempt from the overtime pay requirement of the Fair Labor Standards
Act. They have significant learning, use independent judgment, and are
not subject to close supervision, which are characteristics of professionals. |
Employees Represented by Union May Not Be Forced
to Wear Union Logo
Briefed Case |
Appeals court held that even though a collective bargaining agreement
required employees to wear a union logo on their uniform, the requirement
was in violation of the NLRA, as employees have the right not to engage
in union activities. |
Worker Fired for Bad Attitude Not Protected by
Union Status
Briefed Case |
Appeals court held that a worker who had a union leadership role received
no protection from the NLRA for his union status after he was fired for
calling his supervisor names. His insubordination and firing had nothing
to do with union activity. |
Prescription for Marijuana Does Not Create Legal
Excuse to Avoid Company Drug Policy
Briefed Case |
Court overturned the decision of a labor arbitrator who held that a company
had to reinstate an employee who was fired for testing positive for marijuana.
Marijuana use, whether by prescription or not, violated the collective
bargaining agreement, which is to be followed. |
Union May Not Distribute Materials on Private
Property without Permission
Briefed Case |
Appeals court, reversing the National Labor Relations Board, held that
a union had no right to go on to the property of a grocery store to distribute
its material to the store's customers as part of its union organizing
effort. Store property is private property, so may not be used without
permission. |
Workers Participating in Unfair Labor Practices
Strike Must Be Reinstated
Briefed Case |
Appeals court held that an employer violated the rights of
workers to choose a bargaining agent when the employer agreed to negotiate
with a union not chosen by a majority of the workers. Since the strike that
followed was an unfair labor practices strike, the workers had to be reinstated
in their jobs when they wanted to return to work. (Updated July 2003) |
Executive Order May Require Federal Contractors
to Post Notice of Worker Rights
Briefed Case |
Appeals court upheld the right of the president to issue
an executive order requiring certain federal contractors to post workplace
notices informing employees that they may not be forced to join a union
or to pay dues not related to union representation activities. (Updated May 2003) |
Technological Obsolescence Does Not Allow a Firm
to Dismiss Union Employees
Briefed Case |
Appeals court affirmed an order of the NLRB that
a movie theater company reinstate film projectionists who had been fired
because they are no longer needed due to computerized operation of movie
theaters. The employer had a duty to bargain with the union about the elimination
of the positions. (Updated April 2003) |
Successor Employer Must Bargain with Unions
Briefed Case |
Appeals court held that a new company that was
formed from existing companies, is a successor employer that must bargain
with the unions that represented the employees when they worked for their
previous employers. (Updated December 2002) |
Employers May Control Who Distributes Literature
on Company Property
Briefed Case |
Appeals court reversed an NLRB decision ordering
an employer to allow unions to distribute union material on company property.
The employer has the right to bar union materials from being distributed
while allowing charities to distribute their materials. (Updated December 2002) |
Claim of Sex Discrimination Must Be Resolved by
Arbitration Under Collective Bargaining Agreement
Briefed Case |
The Alaska high court held that a claim of sex
discrimination in employment, based on state law, was subject to grievance
procedure and binding arbitration under terms of the collective bargaining
agreement that covered the complaining party. (Updated July 2002) |
Union Salts May Lie to Obtain Employment
Briefed Case |
Appeals court held that a salt, who was sent
to seek employment in order to gain access to a workplace to assist efforts
to unionize the workers, could not be discriminated against for his salting
activities, nor could he be fired for giving false information on his job
application that did not affect his qualifications to do the job. (Updated April 2002) |
Concerted Effort to Refuse Voluntary Overtime
Work Is Not a Strike
Briefed Case |
Appeals court held that it was not an illegal
strike for a pilot's union to request all pilots not to bid on flying overtime
for the company as a way to pressure the company to settle grievances about
other matters. Such concerted action is not an illegal strike that would
have violated the collective bargaining agreement. (Updated November 1, 2001) |
Employer Bears Burden of Proving that Employees
Are Supervisors Not Subject to Unionization
Briefed Case |
Supreme Court upheld an NLRB policy that states
in the cases of dispute between an employer and a union about whether certain
employees are supervisors, which means they cannot be represented by a union,
the party advocating the supervisor designation status has the burden to
prove that certain criteria of supervisor status are present. (Updated October 1, 2001) |
Courts Can Overturn Labor Arbitrator's Decision
in Rare Instances
Briefed Case |
The Supreme Court, reversing an appeals court,
held that the decision of a labor arbitrator is to stand if errors were
made, unless the arbitrator commits a serious error. In such instances,
the courts should not resolve the case on its merits, but return the matter
for further arbitration proceedings. (Updated September 1, 2001) |
Laid-Off Workers Unlikely to Return to Work
May Not Vote in Union Representation Election
Briefed Case |
Appeals court reversed NLRB holding that all
workers who had been laid off by an employer two months before a union representation
election could vote in the election. Unless laid-off workers have a reasonable
expectation of returning to work, which did not exist here, they do not
have the right to vote in an election. (Updated June 1, 2001) |
Employer Must Pay Back Wages to Union Organizer
It Refused to Hire Due to Union Status
Briefed Case |
Appeals court upheld NLRB decision against an
employer who refused to hire a worker who let the employer know that he
was a union organizer who would attempt to organize the workers. The employer
unfairly discriminated against the worker and must pay him back wages despite
his being on the union payroll at the time. (Updated March 1, 2001) |
Employer May Not Unilaterally Change Labor Policies
During Collective Bargaining
Briefed Case |
Appeals court affirmed NLRB bad faith finding
against an employer who changed a labor policy during collective bargaining
proceedings to one less favorable to its employees than its previous policy.
Such changes in labor policy are bad faith unless a complete impasse in
bargaining has occurred. (Updated February 1, 2001) |
NLRB May Order Wage Increase As Remedy for Unfair
Labor Practice
Briefed Case |
Appeals court upheld various company tactics
to be unfair labor practices, including not granting the usual across-the-board
pay raise to employees and blaming it on the union attempting to organize
the workers. The NLRB could order the company to grant the wage increase
if economic conditions would have normally warranted it. (Updated January 1, 2001) |
Court May Issue Injunction in Labor Dispute When
Non-Arbitration Contract Issue at Stake
Briefed Case |
Appeals court upheld an injunction issued by
a district court against the plans of a company to restructure their operations
without proper notice to the union as required by the collective bargaining
agreement. Since that part of the agreement was not subject to arbitration,
it could be subject to court action. (Updated December 1, 2000) |
Mixed Unions Are Valid Representation Agents Once
Recognized by Employers
Briefed Case |
Appeals court reversed the ruling of the NLRB
that a mixed union, one that admitted security guards and non-guards into
membership, was under the NLRA. While the NLRB may not certify such unions,
an employer may voluntarily recognize them, at which point they are due
NLRA protection. (Updated November 1, 2000) |
Court May Enforce Arbitrator Decision Prior to NLRB
Ruling
Briefed Case |
Appeals court upheld the decision of a district
court to enforce the ruling of an arbitrator who decided that an issue he
held was covered by terms of a collective bargaining agreement. The fact
that the employer also appealed to the NLRB does not mean that the courts
will not enforce the decision of the arbitrator. (Updated March 1, 2000) |
Public Policy About Drugs Overrides Collective Bargaining
Agreement Terms
Briefed Case |
New Hampshire high court held that an employer's
adoption of a zero tolerance drug policy, which resulted in dismissal of
two public transit employees who tested positive for drug use, was favored
by public policy and allowed the employer to override the terms of the collective
bargaining agreement regarding discipline in such instances. (Updated February 1, 2000) |
Deception in Polling of Employees Before Election
May Be Coercion
Briefed Case |
Appeals court reversed decision of NLRB to ignore
union materials issued right before a representation election. The materials
claimed that a large majority of the employees supported the union when
the vote showed that not to be true. Such misrepresentation requires the
NLRB to investigate the matter, not ignore it and certify the union. (Updated February 1, 2000) |
No Unilateral Changes of Compensation Package by
Employer During Negotiations with Union
Briefed Case |
An appeals court upheld decision of NLRB that
an employer violated the NLRA by unilaterally implementing certain changes
to their employees' compensation package while negotiations with the union
were on going. (Updated September 1, 1999) |
LPNs Are Not Supervisors for Purposes of Collective
Bargaining
Briefed Case |
Appeals court upheld decision of NLRB that LPNs
at a nursing home were employees who could engage in collective bargaining,
not supervisory personnel, as are RNs. Their supervision over nursing assistants
was rather routine and did not involve susbstantive decisions expected of
supervisors. (Updated June 1, 1999) |
Undocumented Aliens Could Participate in Union Representation
Election
Briefed Case |
Appeals court upheld the determination of the
NLRB to accept the results of a union representation election, in favor
of the union, that was challenged by employer because the work status of
some workers who voted had not been determined and they were subject to
dismissal if they did not have proper documentation. (Updated June 1, 1999) |
Appeals Court Will Not Review Arbitrators' Decision
on Drug Testing Find
Briefed Case |
Court of appeals upheld arbitrators' decision
that railroad properly fired employee who did not comply with the terms
of a drug test program allowed by its collective bargaining agreement. Only
in rare instances, such as fraud, will a court review arbitrators' decisions. (Updated May 1, 1999) |
Union Cannot Deny Non-Union, Represented Workers'
Right to Internal Appeal
Briefed Case |
Appeals court upheld NLRB determination that
a union engaged in unfair labor practice by denying a represented worker,
who was not a union member, the right to appeal an employment decision under
the internal union appeal process. (Updated May 1, 1999) |
Statutory Claim for Damages Subject to Arbitration
Briefed Case |
Appeals court held that employer's possible claim
for damages for illegal secondary boycott is subject to arbitration. The
employer's bargaining agreement calls for arbitration of all disputes. That
will be upheld unless there is a clear waiver of arbitration in certain
instances. (Updated April 1, 1999) |
Indian Tribes May Adopt Right-to-Work Provisions
Briefed Case |
The San Juan Pueblo Indians adopted a right-to-work
ordinance to apply on Tribal lands, stating that union membership could
not be compulsory. The district court rejected the NLRB position that Indian
Tribes may not adopt right-to-work laws. (Updated April 1, 1999) |
Walkout By Workers to Protest Firing of Supervisor
Not Protected Activity
Briefed Case |
Appeals court reversed finding of NLRB that a walkout by most workers at a restaurant in protest of a popular manager being fired was a protected concerted activity. Dismissal of supervisory personnel is almost always a managerial decision not subject to concerted activity by employees. (Updated April 1, 1999) |
Union Agreement That Used Statutory Language Upheld
Briefed Case |
Employee claim of bad faith by union for failing
to inform her that agency fees would meet her legal obligation, rather than
union membership and dues, rejected. The union security agreement used the
language of the NLRA. Union did not have a duty to explain how the statute
works in practice. (Updated January 1, 1999) |
Claims of FLSA Violations May Be Litigated or Arbitrated
Briefed Case |
Appeals court upheld right of employees and
unions to choose to litigate or arbitrate alleged violations by employer
of rights protected by FLSA. Union and employees were not restricted to
arbitration only. (Updated January 1, 1999) |
NLRB May Not Arbitrarily Change Definition of Acceptable
Bargaining Units
Briefed Case |
NLRB's reversal of long-standing
policy of requiring "wall-to-wall" bargaining units within lumber
operations, without explanation, violates reasoned decision-making required
by APA. (Updated 10-19-98) |
Union Shop Provision Ordered Stricken from Collective
Bargaining Agreement
Briefed Case |
Bargaining agreement contained mandatory
union membership as condition of employment. NLRB holding that non-enforcement
of the clause was sufficient was rejected by appeals court which ordered
the union shop provision stricken and employees to be informed of rights
under NLRB. (Updated 10-19-98) |
Union Plant Must Stay Open; May Not Move South
Briefed Case |
Appeals court upheld NLRB request
for injunctive relief to require Pennsylvania manufacturer to stay in operation
rather than move to new plant in Georgia, pending appeal of decision by
NLRB that plant was guilty of unfair labor practices during collective bargaining
talks. (Updated 10-5-98) |
NLRB "Good-Faith Reasonable Doubt" Standard
of Continuing Union Support Upheld
Briefed Case |
New business owner heard from several
employees that union lacked support. Employer called for an election which
union lost. NLRB decision to overturn the election violated the Board's
own "good-faith reasonable doubt" standard whether calling for
a polling of employees was justified. (Updated 4-6-98) |
Don't Tell Us If You Are a Union Organizer
Briefed Case |
Employer's policy of refusing to
consider employment applications on which applicants wrote "volunteer
union organizer" upheld as not in violation of NLRA since information
was written in violation of application instructions and was not effort
to communicate to other workers. (Updated 12-29-97) |
No Pain, No Pay, No Unemployment Comp
Briefed Case |
Newly hired police officer made no
effort to get into shape to pass physical test required of all officers.
Knowing he would be dismissed if he did not get into shape, he made no effort
to do so. Unemployment compensation is not due former employees who engage
in such misconduct. (Updated 11-14-97) |
No Timely Appeal Means No Appeal of NLRB Decision
Briefed Case |
Hotel protested decision of NLRB
regional director to certify a union to represent one group of employees.
Hotel failed to appeal the decision to the NLRB so that later, when the
union won the election, the hotel could not appeal to the courts to review
the proper certification of the union. When NLRB appeal procedures are not
followed, the right of appeal to the courts is lost. (Updated 10-3-97) |
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