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Labor and Employment Law Text Cases Fourteenth
Edition South Western Legal Studies in Business
Academic David Twomey Digital Instant Download
Author(s): David Twomey
ISBN(s): 9780324594843, 0324594844
Edition: 14
File Details: PDF, 3.88 MB
Year: 2009
Language: english
LABOR & EMPLOYMENT LAW
Text and Cases
This page intentionally left blank
LABOR & EMPLOYMENT
LAW
Text and Cases
FOURTEENTH EDITION

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

Australia • Brazil • Canada • Mexico • Singapore • Spain • United Kingdom • United States
Labor & Employment Law: Text & © 2010, 2007. South-Western Cengage Learning
Cases, Fourteenth Edition
ALL RIGHTS RESERVED. No part of this work covered by the copyright herein
may be reproduced, transmitted, stored, or used in any form or by any means
David P. Twomey
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 Dedicated to:
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This page intentionally left blank
Brief Contents

P REFACE xvii
A BOUT THE AUTHORS xxiii
chapter 1 Overview; Early Doctrines; Current Applications 1
chapter 2 Congress, Administrative Agencies, and the Courts 23
chapter 3 Railway and Airline Labor Relations Law 33
chapter 4 The National Labor Relations Act 51
chapter 5 Employer Unfair Labor Practices 135
chapter 6 Regulation of Union Activities 191
chapter 7 Legality of Strikes 235
chapter 8 Dispute Settlement Law 265
chapter 9 Regulating Internal Union Conduct 287
chapter 10 Public Employment and Labor Law 321
chapter 11 Occupational Safety and Health Law 353
chapter 12 Discrimination Laws: Protected Classes under Title VII
and the Constitution 387
chapter 13 Procedures and Remedies 463
chapter 14 Pay Equity; Age Discrimination 515
chapter 15 Disability Discrimination Laws—Workers’ Compensation,
SSDI and the ADA—Medical and Military Leaves 543
vii
viii brief contents

chapter 16 Employment Relationships: Contractual and Tort Theories 583

chapter 17 Employee Privacy Topics 615
chapter 18 Wage and Hour Law—Closings and Unemployment—Foreign
Workers 661
appendix A Types of Cases Before the National Labor Relations Board 693
appendix B Labor Management Relations Act, 1947, as Amended by Public
Laws 86-257, 1959 and 93-360, 1974 697
a p p e n d i x C Excerpts from the Labor-Management Reporting and Disclosure
Act of 1959 723
a p p e n d i x D Excerpts from Title VII of the Civil Rights Act of 1964 as Amended
by the Equal Employment Opportunity Act of 1972 730
a p p e n d i x E Excerpts from the Civil Rights Act of 1991 733
appendix F Excerpts from the EEOC’s Uniform Guidelines on Employee
Selection Procedures (1978) 741
a p p e n d i x G Excerpts from the EEOC’s Guidance on Vicarious Employer
Liability for Harassment by Supervisors 745
a p p e n d i x H Excerpts from the Americans with Disabilities Act of 1990 748
appendix I Excerpts from the ADA Amendments Act of 2008 752
appendix J Excerpts from the EEOC’s ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical
Examinations 756
appendix K Excerpts from the EEOC’s Enforcement Guidance: Workers’
Compensation and the ADA 762
appendix L Excerpts from the EEOC’s Compliance Manual Section on
Religious Discrimination (2008) 766
G LOSSARY 769
I NDEX OF C ASES 775
I NDEX OF S UBJECTS 789
Contents

P REFACE xvii
A BOUT THE AUTHORS xxiii

Overview; Early Doctrines; Current Applications 1

chapter 1
| Section
1 Introduction 1
2 Historical Context: The Criminal Conspiracy Doctrine 5
3 Historical Context: The Contractual Interference Doctrine 8
4 Historical Context: Early Applications of the Sherman Act 12
5 Injunctions and the Clayton Act 13
6 Continuing Impact of Antitrust Laws 16
7 The Employment Relationship 18

Congress, Administrative Agencies, and the Courts 23

chapter 2
| Section
8 Introduction 23
9 Open Operations of Administrative Agencies 24
10 Agency “Regulations” as Law 24
11 The Adjudicatory Function 26
12 Exhaustion of Administrative Remedies 26
13 Court Review of Agency Findings of Fact 26
14 Court Review of Agency Determinations on Law and Policy:
The Chevron Framework 27
15 The Federal Court System 28

ix
x contents

Railway and Airline Labor Relations Law 33

chapter 3
| Section
16 History, Purpose, Constitutionality 33
17 Expanding Coverage 35
18 Administration, Remedy, Enforcement 35
19 Bargaining Representation 45
20 Strike Injunctions 45
21 Jurisdictional Issues: The RLA and the NLRA 45

The National Labor Relations Act 51

chapter 4
| Section
22 Introduction 52
23 Historical Development 52
24 Administration 56
25 Procedures 57
26 Jurisdiction: Employers Under the Act 61
27 Jurisdiction: Agents, “Contingent” Workers 67
28 Jurisdiction: Employees Under the Act 72
29 Jurisdiction: Preemption 82
30 Majority Bargaining Rights 88
31 The Appropriate Bargaining Unit 89
32 Multiemployer Bargaining Units 94
33 Craft Severance 96
34 Determining Employees’ Choice 97
35 Representation Elections 106
36 Election Conduct and Free Speech 107
37 Election Propaganda and Misrepresentations 113
38 Bargaining Rights Based on Authorization Cards 116
39 Remedial Powers 120

Employer Unfair Labor Practices 135

chapter 5
| Section
40 Protection of Employee Rights 135
41 Freedom from Interference 137
42 Domination of Labor Organizations 145
43 Discrimination as to Hire and Tenure 150
44 Discriminatory Lockouts 153
45 Permanent Shutdowns 155
46 Discrimination for Concerted Activities 158
47 Union Security and “Right-to-Work” Laws 160
48 Discrimination for NLRB Action 163
49 Duty of Employer to Bargain 164
50 Successor Employers’ Obligations Under the NLRA 173
51 Rejection of Labor Contracts Under Chapter 11 of
the Bankruptcy Code 180
 contents xi

Regulation of Union Activities 191

chapter 6
| Section
52 Union Unfair Labor Practices 191
53 Picketing: Types and Constitutional Parameters 195
54 Mass Picketing 200
55 Union Access to Private Property 203
56 Organizational and Recognitional Picketing:
Informational Picketing 211
57 Jurisdictional Disputes 214
58 Secondary Activity: “Ally” and “Common Situs” Doctrines 215
59 Secondary Activity: Consumer Picketing, Handbilling,
and Bannering 218
60 Hot Cargo Agreements 225
61 Damages from Boycotts and Picketing 230

Legality of Strikes 235

chapter 7
| Section
62 Types of Stoppages 235
63 Employer Unfair Labor Practice Strikes 237
64 Permanent Replacement of Strikers 239
65 Unprotected Strike Activity 246
66 Effects of Strikes in Violation of NLRA Notice
Requirements 248
67 No-Strike Agreements 250
68 Norris-Laguardia and No-Strike Injunctions 252
69 National Emergency Strikes 256

Dispute Settlement Law 265

chapter 8
| Section
70 Introduction 265
71 Definitions and Terms 266
72 Assisting Negotiations 269
73 NLRB Deferral to Arbitration 270
74 The Courts and the Arbitration Process 275
75 Judicial Review of Arbitration Decisions 278
76 Seizure of Vital Industry 282

Regulating Internal Union Conduct 287

chapter 9
| Section
77 Introduction 287
78 Union’s Duty of Fair Representation (DFR) 288
79 Members’ Rights Under the Union’s Constitution 295
80 Union Discipline: Section 8(b)(1)(A) 296
81 Rights of Members 300
xii contents

82 Union and Management Reporting Requirements 304

83 Employee Retirement Income Security Act (ERISA) 305
84 Political Contributions and Expenditures 313
85 Antiracketeering Laws 314

Public Employment and Labor Law 321

chapter 10
| Section
86 Introduction 321
87 Strikes by Government Employees 322
88 Federal Employment 331
89 State and Local Employment 339
90 Congressional Power over State Employment
Standards 346

Occupational Safety and Health Law 353

chapter 11
| Section
91 Purpose and Scope 353
92 Administration 354
93 Standards 355
94 Employer Duties 363
95 Protection from Retaliation 367
96 Inspection 370
97 Citations and Penalties 374
98 Overlapping Jurisdiction 378
99 Violence in the Workplace 378
100 State Programs 380
101 State “Right-to-Know” Legislation 381

Discrimination Laws: Protected Classes under Title VII

chapter 12
| and the Constitution 387
Section
102 Introduction 387
103 Title VII as Amended 388
104 Race and Color 400
105 Religion 406
106 Sex 412
107 Employer Liability for Sexual Harassment 419
108 Employer Liability for Coworker and Nonemployee
Sexual Harassment 436
109 National Origin Discrimination and “English Only”
Rules 438
110 Protection Against Retaliation 441
111 Title VII: Section 703 Exceptions 444
112 Selected Constitutional Theories on Discrimination 451
 contents xiii

Procedures and Remedies 463

chapter 13
| Section
113 Burden of Proof 463
114 Statistical Cases 470
115 Title VII Court-Ordered Remedies 474
116 Consent Decrees and Voluntary Affirmative Action
Plans 478
117 Reverse Discrimination and Affirmative Action
Plans 485
118 The Arbitration Option 489
119 Executive Order 11246: Affirmative Action Programs 497
120 Other Remedy Options 503

Pay Equity; Age Discrimination 515

chapter 14
| Section
121 Equal Pay for Equal Work 515
122 The Gunther Decision and Comparable Worth 519
123 Age Discrimination 524
124 Prohibited Practices and Damages 531
125 The Older Workers Benefit Protection Act; ADEA Exemptions
and Defenses 536

Disability Discrimination Laws—Workers’

chapter 15
| Compensation, SSDI and the ADA—Medical and
Military Leaves 543
Section
126 Discrimination against Disabled Workers 543
127 The Rehabilitation Act of 1973 545
128 The Amended Americans with Disabilities Act 552
129 Workers’ Compensation: Relationship to the ADA 563
130 Accommodation between SSDI and the ADA 570
131 Family and Medical Leaves of Absence 572
132 Military Leaves and Reemployment Rights 577

Employment Relationships: Contractual and

chapter 16
| Tort Theories 583
Section
133 Employment at Will, Exceptions, and Discrimination
Claims 583
134 Whistle-blower Protection Under the Sarbanes-Oxley Act 596
135 Noncompetition Agreements 600
136 Employer Liability for Torts of Employees 602
137 Proper Classification of Workers 603
138 Negligent Hiring and Retention of Employees 605
xiv contents

Employee Privacy Topics 615

chapter 17
| Section
139 Historical Background, Introduction to Employee Privacy 615
140 Public Employees’ Privacy Rights 617
141 Private Sector Employees: Property Searches 622
142 Invasion of Privacy 623
143 Monitoring Employee Telephone Conversations and E-Mail 629
144 Drug Testing 635
145 Alcohol Abuse and Employee Assistance Programs 643
146 Polygraph Examinations 645
147 Employee Defamation Claims 651

Wage and Hour Law—Plant Closings and

chapter 18
| Unemployment—Foreign Workers 661
Section
148 Developing Law Regulating Wages and Hours 661
149 Plant Closing Laws: The WARN Act 672
150 Unemployment Compensation 678
151 Employment-Related Immigration Laws: Introduction 682
152 Employer Sanctions and Verification Responsibilities 683
153 Employer Discrimination 685
154 Business Visas 685

Types of Cases Before the National Labor Relations Board 693

appendix A
|
Labor Management Relations Act, 1947, as Amended
appendix B
| by Public Laws 86-257, 1959 and 93-360, 1974 697

Excerpts from the Labor-Management Reporting and

appendix C
| Disclosure Act of 1959 723

Excerpts from Title VII of the Civil Rights

appendix D
| Act of 1964 as Amended by the Equal Employment
Opportunity Act of 1972 730

Excerpts from the Civil Rights Act of 1991 733

appendix E
|
Excerpts from the EEOC’s Uniform Guidelines on Employee
appendix F
| Selection Procedures (1978) 741

Excerpts from the EEOC’s Guidance on Vicarious Employer

appendix G
| Liability for Harassment by Supervisors 745

Excerpts from the Americans with Disabilities Act of 1990 748

appendix H
|
 contents xv

Excerpts from the ADA Amendments Act of 2008 752

appendix I
|
Excerpts from the EEOC’s ADA Enforcement Guidance:
appendix J
| Preemployment Disability-Related Questions and Medical
Examinations 756
Excerpts from the EEOC’s Enforcement Guidance: Workers’
appendix K
| Compensation and the ADA 762
Excerpts from the EEOC’s Compliance Manual Section on
appendix L
| Religious Discrimination (2008) 766

G LOSSARY 769
I NDEX OF C ASES 775
I NDEX OF S UBJECTS 789
This page intentionally left blank
Preface

WHAT IS NEW IN THIS EDITION

The new edition of Labor & Employment Law continues to present a comprehen-
sive treatment of labor and employment law topics. New text, cases, and case pro-
blems have been added throughout the book. However, the unprecedented number
and scope of recent administrative and court decisions required many major revi-
sions throughout the book to properly present current developments in the law.

NEW CHAPTER
The federal administrative agencies dealing with labor and employment law matters
have issued many important and often controversial decisions since the last edition of
this text. For example, the National Labor Relations Board (NLRB), which had a ma-
jority of Republican appointees since December 2002, came under heavy criticism con-
cerning its decisions not only from union and opposition political leaders, but from
academicians as well. A letter signed by 57 labor law professors was sent to Congress
in December 2007 asserting in part that: “[b]y overturning precedent and establishing
new rules … the Board has regularly denied or impaired the very statutory rights it is
charged with protecting ….” The then Chairman of the NLRB responded that the deci-
sions were not politicized and that the complaints were politically motivated. In light of
these developments, Chapter 2, a short new introductory chapter, presents an overview
of basic administrative law principles and outlines the federal court system with a labor
and employment law focus. Care has been taken to present both the majority and dis-
senting opinions of the controversial cases recently decided by administrative agencies
so that the readers may determine for themselves the “correctness” of the decisions
under administrative law principles. And, with an understanding of the federal court sys-
tem, readers may follow the appropriate appellate review process, up to the Supreme
Court in some cases, as labor and employment law precedents are established.

xvii
xviii preface

NEW CASES
Each chapter contains numerous court and agency cases relevant to the topic at
hand. Reflecting the growing importance of labor and employment law cases in
the federal court system, the U.S. Supreme Court decided an unusually large
number of labor and employment law cases, eleven, during the 2007-2008 term.
The cases are referenced or reported in this edition of the textbook, including
two “retaliation” cases adding to the Court’s landmark 2006 BNSF v. White
“retaliation” decision, and a large number of other equal employment opportunity
cases. Some cases were selected for their historical import, some for their particularly
insightful discussion of the issues, and some because they represent turning points
in the law. All have been carefully edited to remove extraneous discussion while
preserving the integrity of the opinion.
Each decision is followed by case questions to guide the student through the
opinion and assist in identification of the cogent issues and arguments.
At the end of each chapter is a selection of case problems. The case problems are
derived from court and administrative agency decisions in real cases and offer students
the opportunity to apply the legal principles in each chapter to real-life situations.

SIGNIFICANT REVISIONS
In Chapter 4, substantial coverage is devoted to the Labor Board’s new definitions
utilized to determine “supervisory” status of employees and their eligibility or exclu-
sion from the coverage and rights of the National Labor Relations Act. The chapter
also details union efforts to avoid the NLRB election process and the Board’s Dana
Corp. decision modifying the “recognition bar doctrine.” The Board’s Register-
Guard decision is also presented, which involves discipline of a union officer for
using company owned e-mail for union business, although the company permitted
personal use of e-mail for a wide variety of nonbusiness purposes.
Chapter 5, involving protection of employee rights, includes a new section that
applies the Myers Industries rule that the activities of a single employee acting with
the purpose of furtherance of the goals of a group can be protected “concerted”
activity under Section 7 of the NLRA. Chapter 6 presents, with new clarity, guid-
ance for the murky statutory language of Section 8(b)(4) of the NLRA, which
involves union secondary activity, including consumer picketing, handbilling,
and bannering. The Board majority’s recent precedent on “permanent replace-
ment status” and the dissenting view is covered in Chapter 7. The new edition con-
tains court decisions on ERISA and public sector union security clauses. It also
contains new OSHA cases and a new section on “Violence in the Workplace,” in-
cluding employer obligations under the act’s general duty clause to develop and
implement workplace violence prevention plans.
Major revisions to the equal employment opportunity chapters reflect recent
decisions by the Supreme Court and U.S. courts of appeals. These updates appear in
Chapter 12 sections on “National Origin Discrimination and ‘English Only’ Rules”
and “Protection Against Retaliation,” which includes a subsection on “Employer
Preventative Steps.” Significant new developments in Age Discrimination Law adverse
to employers are presented in Chapter 14, while text and a case demonstrate how dif-
ficult it is for a plaintiff to win an age discrimination case.
 preface xix

The Americans with Disabilities Act of 1990 was amended by the ADA
Amendments Act of 2008, effective January 1, 2009. The major changes to the
ADA are presented in Chapter 15 and new text also focuses on the increased im-
portance of employers’ obligations to provide “reasonable accommodations” un-
der the ADA. Newly developing “whistleblower law” is presented in Chapter 16,
including protection of public employee whistleblowers after Garcetti and whistle-
blower protection under the Sarbanes-Oxley Act. Chapter 17 presents text and a
recent decision on employee privacy rights concerning text messaging. Chapter 18
provides new text and cases on overtime and immigration issues.

DETAILED FOOTNOTES
The detailed footnotes in each chapter are a hallmark feature of this text. The foot-
notes in this edition have been fully updated and new footnotes have been added
throughout. 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
differing points of view to encourage critical thinking and discussion.

LABOR & EMPLOYMENT LAW INSTRUCTOR RESOURCES

INSTRUCTOR’S MANUAL
www.cengage.com/blaw/twomey
The Instructor’s Manual for the new edition of Labor & Employment Law con-
tains questions and answers for each of the cases reported in the text as well as
answers to end-of-chapter questions and problems. Also helpful for the instructor,
the manual includes Author’s Comments, which offer suggestions for sparking class-
room discussion while referencing specific cases, footnotes, and sections of the text.

TEXT COMPANION WEBSITE

www.cengage.com/blaw/twomey
The companion website for this edition of Labor & Employment Law has been
greatly enhanced to streamline necessary resources. In addition to providing access
to the Instructor’s Manual and Court Case Updates, the website now also offers
links to the following: important labor and employment law sites, labor and em-
ployment law blogs, legal forms and documents, free legal research sites (com-
prehensive and circuit-specific), help in the classroom, 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.

COURT CASE UPDATES

www.cengage.com/blaw/cases
South-Western’s Court Case Updates provide monthly summaries of the most im-
portant legal cases happening around the country.
Other documents randomly have
different content
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spelling.
2. Anachronistic, non-standard, and uncertain spellings
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