Labor Law Final Exam Instructions

As provided for the Employment Law mid-term, following are the exam instructions for the Labor Law final exam (really a second mid-term) tomorrow. Please note, you will have these for the exam, but I wanted to provide them early in case you want to read them first.

INSTRUCTIONS FOR FINAL EXAMINATION

This is an open-book examination. You may use any class-related, non-electronic materials you wish to bring, and you may take the exam on laptop if you have complied with the UND School of Law’s requirements. Other than the hard copies of materials you bring for the exam, you may not use a computer (other than for taking the exam), the Internet, or other electronic resources (unless otherwise authorized by the Dean’s office for specific accommodations). Thus, you must print out and bring to the exam anything you wish to access during the exam. The work on this exam must be solely your own. You must turn in this exam along with any scrap paper at the end of the exam.

You will have one and a half hours (90 minutes) to complete the examination, which consists of 3 essay questions. There are multiple portions of some of the questions; please answer each part. I have assumed 5 minutes for you to get the materials and get the exam started and 15 minutes for reading the materials. I then divided the remaining 70 minutes of the exam among the questions below. Please answer every question. You are better served answering every question, with a little less on each part, than missing an entire question. This exam provides the equivalent of 70 points, with the minutes alloted corresponding to the number of points available on each question.

This exam is single-sided and is 4 total pages, including this cover sheet.

Please use only your exam number -- do not use your name, student ID number or Social Security Number on any exam materials.

This exam is to be your work, and your work alone. University and UND School of Law policies apply, including, but not limited to the School of Law’s Academic Dishonesty and Misconduct Policy. By turning in this exam, you certify that the exam was completed only by you, without the aid of any materials not expressly authorized.

This exam covers the material we discussed in class. Relax (as best you can) and use the information from class to guide you to the correct answers. If you see any problems or inconsistencies, note them on the exam and move on.

NOTE: For this exam, please assume that all the cases we discussed are binding in the courts in the fictional state of MinnKota. If the cases we have discussed conflict on a relevant issue, it means that the Federal Court for the Circuit covering the District of MinnKota has not ruled on he issue, and the District Court would need to choose. Then explain why the court should adopt one case over the other. (You can simply say, e.g., “The Second Circuit says X, but Seventh Circuit says Y; the District of MinnKota should pick X because . . . .”). MinnKota is NOT a right to work state, so that is not an issue in this exam.

Good Luck!

Fair Representation Doctrine

QUERY: Was the Fair Representation Doctrine created by Congress in the NLRA - presumably under section 8(b)(1)(A) - or is it strictly a creation and interpretation of the courts? Vaca v. Sipes only stated that the Miranda case was the first case in which "a union's breach of its statutory (?) duty of fair representation violates N.L.R.A., section 8(b)." Many thanks.

Professor's Response:

The fair representation doctrine was created by the Supreme Court, and cannot be located in the statutes. As such, although the term cannot be specifically found in the N.L.R.A., a union that does not fairly represent its members has committed an unfair labor practice that violates N.L.R.A. § 8(b).

Consider the NLRB Board

Following is some information regarding the NLRB Board, from the NLRB web site:

The Board has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year. The current Members are Chairman Peter C. Schaumber and Wilma B. Liebman. (There are three vacancies on the Board.)

The NLRB General Counsel is also appointed by the President with advice and consent of the Senate.

Because of this structure, a new administration cannot change the entire board immediately, but each administration would have have a majority after three years. Perhaps even sooner, if there are vacancies (as there are now).

Compare NLRB structure to the structure of the Federal Energy Regulatory Commission (FERC):

The Federal Energy Regulatory Commission (FERC) is composed of up to five commissioners who are appointed by the President of the United States with the advice and consent of the Senate. Commissioners serve five-year terms, and have an equal vote on regulatory matters.

To avoid any undue political influence or pressure, no more than three commissioners may belong to the same political party. There is no review of FERC decisions by the President or Congress, maintaining FERC's independence as a regulatory agency, and providing for fair and unbiased decisions. The Commission is funded through costs recovered by the fees and annual charges from the industries it regulates.

One member of the Commission is designated by the President to serve as Chair and FERC's administrative head.

Which do you think is more likely to be more consistent and effective? Why? Do the different roles of each group warrant the different structures?

Union and Employer Possible Refusual to Bargain Facts

Here are the fact patterns we discussed today in the context of what constitutes a refusal to bargain for unions and employers. Given that many of these activities are permissible, note how much latitude each side has to use "economic weapons."

Employer Fact Pattern

Union Fact Pattern

Labor and Employment Writing Competition

Please click here for the information regarding the writing competition I mentioned in class today. Please let me know if you have any questions or are interested in participating.

Recent Articles Discussed in Class: TOTY Non Grata & Boeing Back to Work

North Dakota’s new Teacher of the Year was barred from a reception held to honor top teachers in the state because she declined to join the North Dakota Education Association.

http://www.grandforksherald.com/articles/?id=91749

Airline manufacturer Boeing Co. saw 27,000 union machinists start the process of returning to work last Sunday as the company and its suppliers began gearing up after a 57-day strike that shut down production and caused ripples throughout the industry.

http://online.wsj.com/article/SB122559637967691023.html#printMode

Mid-Term Exam Grades

Exam #	Score	Grade
101	62	A
115	65	A
126	40	C+
130	45	B
137	45	B
144	43	C+
155	57	B+
177	51	B
179	53	B+
181	47	B
182	18	D
184	35	C
209	50	B
218	50	B
232	55	B+
236	41	C+
239	61	A
262	51	B
267	45	B
272	44	C+
273	42	C+
275	51	B
285	62	A
286	58	A
289	53	B+

Average Grade = B (3.06)
Average Raw Score = 48.96

Grade Break Down:
A: 5
B+: 4
B: 9
C+: 5
C: 1
D: 1

Please speak to me with any questions you might have about your exam. This is an opportunity for me to provide you feedback that can help you on the final exam, so there is a direct potential benefit from our conversation. You may also contact me via e-mail or telephone, but ideally, I'd like to show you specific comments or issues in the context of your exam.

Union Guys

In last Thursday's class, in addition to the case file materials, we watched and discussed the short film, Union Guys. If you missed class or would otherwise like access to the film, it can be found here.

Among things, we discussed whether the film is pro-union or anti-union (or both or neither). In connection with the case file, we also considered the scope of what is permissible employer conduct with regard to replacement workers and how that impacts union/employee conduct.

I welcome your comments, here or via e-mail, regarding the film and/or the resulting discussion.

What Merger Talks Could Mean for Autoworkers' Union

A recent Detroit Free Press article, GM, Chrysler deal could spur UAW concessions, underscored many of the issues we discussed today. Among others, consider this excerpt:

Peter Morici, a University of Maryland business professor and former chief economist at the U.S. International Trade Commission, said Chrysler should be allowed to file for bankruptcy.

"The simple fact is that the best solution for Chrysler is Chapter 11 to remove the burdens of the UAW contract and scale down the company to something one half to two thirds its current size," Morici wrote in an e-mail Monday. "That would serve GM's interests, too -- both Ford and GM would benefit from some capacity and cars going off the market."

Morici noted that if GM acquired Chrysler's Jeep brand and minivan program, "GM would still have to pay heavy severance bonuses to workers it laid off streamlining their operations, similar payments would be required to shutter much of Chrysler's unattractive truck and car operations, and GM would still have to fund the union health care fund for retired Chrysler employees.

"Those costs" are "simply more than the Jeep and minivan franchises are worth."

With both bankruptcy and merger talks looming, this should be an interesting process to watch.

Union Busting

From an employer standpoint, what is the best way to bust an existing union? Would it be possible for an employee, who is a member of a union, to speak against that union and dismantle it from the inside out? I know that there are all sorts of protections for non-unionized employees when they are starting out in the formation of a union, but are there similar protections for union members when they are starting out taking down a union? I'm sure it is a union specific question, but can a union oust an existing member because they are speaking against the union?

To me, especially in states without right to work legislation, it seems that unions and labor entities monopolize employment in certain industries and have gained an unfair advantage when it comes to negotiating with employers. When unions were first suggested and implemented, wasn't the point to place the employees and employers on level playing fields so that neither one had an advantage? It seems to me that when the employees have the upper hand in negotiating, they do right by themselves at the expense of the employer and their industry.

I can't claim to know everything about the situation, but it sure doesn't seem to be working out too well for the auto industry.

Professor' Response

There's a lot here, and a lot more than can be addressed in a blog post. We'll discuss a number of these issues in class, but here's a short response to a few points:

(1) It's a lot easier for a union to keep out a union in the first place than to eliminate one.

(2) If the employees don't want the union, they can either choose a new one or decide not to have one.

(3) It's a stretch to say unions "monopolize employment." Once a contract is up, the employer can hire anyone they wish -- just look at the NFL circa 1987.

(4) The auto industry is a great example of two sides negotiating themselves into a corner. We'll talk details in class.

Keep in mind, though, things are not always as they seem. "Power" is often overstated on either side, and everything is very fact intensive. The key is avoiding assumptions that make it difficult to see the other side's argument.

Additional Files Not on Syllabus

The CaseFile web site includes two files that are not included on my syllabus:

28.0 - RFD
30.0 - Some Team, Somewhere

We may use these for additional in-class discussion, but these are not files that are currently needed, and they are not assignments. Depending on how our other discussions go, I may ask you to bring them to class. (These additional files do not impact the cost of the materials -- it would be $12.95 -- with or without them.)

Part 2: Labor Law

Today marks the beginning of part two of the course: Labor Law. For today's class, the reading discusses several sections of the National Labor Relations Act. I will provide handouts of some key sections in class today. The handout can also be accessed by clicking here.

Mid-Term Exam Instructions

Following are the exam instructions for the mid-term tomorrow. Please note, you will have these for the exam, but I wanted to provide them early in case you want to read them first.

INSTRUCTIONS FOR MID-TERM EXAMINATION

This is an open-book examination. You may use any materials you wish to bring, and you may take the exam on laptop if you have complied with the UND School of Law’s requirements. Other than the hard copies of materials you bring for the exam, you may not use a computer (other than for taking the exam), the Internet, or other electronic resources (unless otherwise authorized by the Dean’s office for specific accommodations). Thus, you must print out and bring to the exam anything you wish to access during the exam. The work on this exam must be solely your own. You must turn in this exam along with any scrap paper at the end of the exam.

You will have one and a half hours (90 minutes) to complete the examination, which consists of 3 essay questions. There are multiple portions of some of the questions; please answer each part. I have assumed 5 minutes to get the materials and get the exam started and 15 minutes for reading the materials. I then divided the remaining 70 minutes of the exam among the questions below. Please answer every question. You are better served answering every question, with a little less on each part, than missing an entire question. This exam provides the equivalent of 70 points, with the minutes alloted corresponding to the number of points available on each question.

Please note -- this exam is single-sided and is 3 total pages, including this cover sheet.

Please use only your exam number -- do not use your name, student ID number or Social Security Number on any exam materials.

This exam is to be your work, and your work alone. University and UND School of Law policies apply, including, but not limited to the School of Law’s Academic Dishonesty and Misconduct policy. By turning in this exam, you certify that the exam was completed only by you, without the aid of any materials not expressly authorized.

This exam covers the material we discussed in class. Relax (as best you can) and use the information from class to guide you to the correct answers. If you see any problems or inconsistencies, note them on the exam and move on.

NOTE: For this exam, please assume that all the cases we discussed are binding in the courts in the fictional state of Dakota. If the cases we have discussed conflict on a relevant issue, please treat both cases as lower Dakota court decisions, meaning that the Dakota Supreme Court would need to choose. Then explain why the court should adopt one case over the other. (You can simply say, e.g., “Indiana courts say X, but Ohio courts say Y; Dakota should pick X because . . . .”)

Good Luck!

A couple additional points for you to consider. First, don't worry about feeling a time crunch. I am asking for a lot of information, but I recognize that you could provide more information in 3 hours than 90 minutes. Please just do your best and answer every question.

Second, in my explanation for how to balance court decisions, I noted you could say, “Indiana courts say X, but Ohio courts say Y; Dakota should pick X because . . . .” That was just an example. You could also say, “Some courts say X, but other courts say Y; Dakota should pick X because . . . .” Saying which state or the case name is not critical -- A clear grasp of the content and understanding of the issues is what I am seeking.

Subjective or Objective?

In regards to the Invasion of Privacy tort, is the "reasonable person" element subjective or objective?

Professor's Response:

The test is objective, but not in the sense that every “reasonable person” would be offended by the disclosure. Rather, consider the Young case from the reading materials: “No doubt an objective test obtains. A person may not be held liable for public disclosure of facts about another unless he should reasonably have foreseen that the person would be likely offended.” Thus, the test is not whether the plaintiff deemed it highly offensive; however, the fact that some person might not find disclosure of the information offensive does not mean there is no case, either. That is, the test is whether the disclosure of the information disclosed would be deemed “objectionable or highly offensive to a reasonable person of ordinary sensibilities.”

The Young court notes that information about “one’s sexual organs and reproductive system” is clearly a private matter. “It may be the fact that many women who have undergone a hysterectomy do not keep that fact secret, but this is not the test.” As long as a reasonable person woman would consider the fact a private matter, and it is foreseeable that a reasonable person would consider it a private matter, it is sufficient to satisfy the offensive or objectionable prong.

Thus, in our case file, the question was whether the release of a person’s age is “objectionable or highly offensive to a reasonable person of ordinary sensibilities.” Note that if age disclosure is not deemed highly offensive or objectionable to a reasonable person, it does not mean there might not be some other claim, such as intentional or negligent inflection of emotional distress. However, such claims are beyond the scope of our course.

Selected Portions of the North Dakota Worker’s Compensation Law

The following sections of the North Dakota Century Code are similar to the Indiana laws, with a few variances, we considered for today's reading assignment. In class, we'll look for and discuss the potential significance of these differences. (Hard copies of these laws will be provided in class.)

§ 65-01-01. Purposes of workforce safety and insurance law--Police power

The state of North Dakota, exercising its police and sovereign powers, declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workers injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title, and to that end, all civil actions and civil claims for relief for those personal injuries and all jurisdiction of the courts of the state over those causes are abolished except as is otherwise provided in this title. A civil action or civil claim arising under this title, which is subject to judicial review, must be reviewed solely on the merits of the action or claim. This title may not be construed liberally on behalf of any party to the action or claim.

§ 65-01-01.1. Civil liability for intentional injuries

The sole exception to an employer's immunity from civil liability under this title, except as provided in chapter 65-09, is an action for an injury to an employee caused by an employer's intentional act done with the conscious purpose of inflicting the injury.

§ 65-01-03. Person performing service for remuneration presumed an employee

Each person who performs services for another for remuneration is presumed to be an employee of the person for whom the services are performed, unless it is proven that the person is an independent contractor under the "common law" test. The person who asserts that a person is an independent contractor under the "common law" test, rather than an employee, has the burden of proving that fact.

§ 65-01-10. Waiver of rights to compensation void--Deduction of premium from employee prohibited--Penalty

No agreement by an employee to waive rights to compensation under this title is valid except as provided in section 65-05-25. No agreement by any employee to pay any portion of the premium paid or payable by the employer into the fund is valid, and any employer who deducts any portion of such premium from the wages or salary of any employee entitled to the benefits of this title is guilty of a class A misdemeanor.

North Dakota Defamation & At-Will Employment Exercise/Case

Here is the exercise we discussed today, along with an abbreviated version of the court's resolution of the issue.

Forester v. West Dakota Veterinary Clinic