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Labor & Employment Law
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LABOR & EMPLOYMENT LAW
Text and Cases
FIFTEENTH EDITION
David P. Twomey
Professor of Law
Carroll School of Management, Boston College
Member of the Massachusetts and Florida Bars
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Labor & Employment Law: Text & Cases,
Fifteenth Edition
David P. Twomey
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Library of Congress Control Number: 2012934295
ISBN-13: 978-1-133-18828-5
ISBN-10: 1-133-18828-1
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Printed in the United States of America
1 2 3 4 5 6 7 16 15 14 13 12
Dedicated to
Jack Connors, Jr., Boston College Class of 1963, friend and golf partner,
who has devoted fifty years of remarkable service to the
Great Boston Community.
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BRIEF CONTENTS
PREFACE xv
ABOUT THE AUTHOR xxiii
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 1 0 Public Employment and Labor Law 329
CHAPTER 1 1 Occupational Safety and Health Law 361
CHAPTER 1 2 Discrimination Laws: Protected Classes under Title VII
and the Constitution 395
CHAPTER 1 3 Procedures and Remedies 473
CHAPTER 1 4 Pay Equity; Age Discrimination 523
CHAPTER 1 5 Disability Discrimination Laws—Workers’ Compensation, SSDI
and the ADA—Medical and Military Leaves 553
v
CHAPTER 1 6 Employment Relationships: Contractual and Tort Theories 597
CHAPTER 1 7 Employee Privacy Topics 633
CHAPTER 1 8 Wage and Hour Law—Plant Closings and Unemployment—Foreign
Workers 677
APPENDIX A: Types of Cases Before the National Labor Relations Board 713
APPENDIX B: Labor Management Relations Act, 1947, as Amended by Public
Laws 86-257, 1959 and 93-360, 1974 717
APPENDIX C: Excerpts from the Labor-Management Reporting and Disclosure Act
of 1959 751
APPENDIX D: Excerpts from Title VII of the Civil Rights Act of 1964 as Amended
by the Equal Employment Opportunity Act of 1972 759
APPENDIX E: Excerpts from the Civil Rights Act of 1991 763
APPENDIX F: Excerpts from the EEOC’s Uniform Guidelines on Employee
Selection Procedures (1978) 773
APPENDIX G: Excerpts from the EEOC’s Guidance on Vicarious Employer
Liability for Harassment by Supervisors 779
APPENDIX H: Excerpts from the Americans with Disabilities Act of 1990 783
APPENDIX I: Excerpts from the ADA Amendments Act of 2008
(S.3406, P.L. 110-325) 789
GLOSSARY 793
CASE INDEX 799
SUBJECT INDEX 807
vi BRIEF CONTENTS
CONTENTS
PREFACE xv
ABOUT THE AUTHOR xxiii
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
vii
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
viii CONTENTS
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
CONTENTS ix
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 1 0 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 1 1 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 1 2 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
x CONTENTS
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 1 3 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 1 4 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 1 5 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
CONTENTS xi
CHAPTER 1 6 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 1 7 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 1 8 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
APPENDIX A: Types of Cases Before the National Labor Relations Board 713
APPENDIX B: Labor Management Relations Act, 1947, as Amended By Public
Laws 86-257, 1959 and 93-360, 1974 717
APPENDIX C: Excerpts from the Labor-Management Reporting and
Disclosure Act of 1959 751
xii CONTENTS
APPENDIX D: Excerpts from Title VII of the Civil Rights Act of 1964 as Amended
by the Equal Employment Opportunity Act of 1972 759
APPENDIX E: Excerpts from the Civil Rights Act of 1991 763
APPENDIX F: Excerpts from the EEOC’s Uniform Guidelines on Employee
Selection Procedures (1978) 773
APPENDIX G: Excerpts from the EEOC’S Guidance on Vicarious Employer
Liability for Harassment by Supervisors 779
APPENDIX H: Excerpts from the Americans with Disabilities Act of 1990 783
APPENDIX I: Excerpts from the ADA Amendments Act of 2008
(S.3406, P.L. 110-325) 789
GLOSSARY 793
CASE INDEX 799
SUBJECT INDEX 807
CONTENTS xiii