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1981-1982 Annual Survey of Labor Relations and Employment Discrimimation Law

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1981-1982 Annual Survey of Labor Relations and Employment Discrimimation Law Boston College Law Review Volume 24 Article 2 Issue 1 Number 1 12-1-1982 1981-1982 Annual Survey of Labor Relations and Employment Discrimimation Law Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Labor and Employment Law Commons Recommended Citation 1981-1982 Annual Survey of Labor Relations and Employment Discrimimation Law, 24 B.C.L. Rev. 47 (1982), http://lawdigitalcommons.bc.edu/bclr/vol24/iss1/2 This Survey is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 1981-1982 ANNUAL SURVEY OF LABOR RELATIONS AND EMPLOYMENT DISCRIMINATION LAW LABOR RELATIONS LAW I. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY 51 A. Bargaining Unit Determination 51 1. Religious/Lay Employee Units: Mercy Hospital of Buffalo v. NLRB 51 2. Application of "Labor-Nexus" Test to Determine Exclusion of "Confidential Employees" from NLRA: NLRB v. Hendricks County Rural Electric Membership Corporation 60 B. Elections, Invalidity of Minority Quotas for Union Elective Offices: Donovan v. Illinois Education Association 74 II. UNFAIR LABOR PRACTICES 79 A. Employer Unfair Labor Practices 79 1. The Selective Disciplining of Labor Union Officials— Two Contrasting Views.. Fournelle v. NLRB and NLRB v. Armour-Dial, Inc. 79 2. Partial Closing Decisions: First National Maintenance Corp. v. National Labor Relations Board 95 3. Successor Employer's Duty to Bargain With a Union: NLRB v. Winco Petroleum Co. 104 4. Corporate Relocation and Existing Collective Bargaining Agreements: NLRB v. Marine Optical, Inc. 111 B. Union Unfair Labor Practices 116 1. Individual Employee Liability for Wildcat Strikes: Complete Auto Transit, Inc. v. Reis 116 2. Federal Criminal Prosecution for Union Violence: United States v. Thordarson 123 III. FEDERAL JURISDICTION 134 A. Exhausting Internal Union Grievance Procedures Prior to Filing a Federal Claim: Clayton v. Automobile Workers 134 B. Bringing Union Constitutions Within the Sweep of Section 301: United Association of Journeymen v. Local 334 145 IV. EMPLOYEE BENEFITS 152 A. Employee Benefit Funds Under 302(a) of the Labor Management Relations Act: UMW Health and Retirement Funds v. Robinson 152 V. ADEA 161 A. Willful Violations of the ADEA: Kelly v. American Standard, Inc. and Syvock v. Milwaukee Boiler Manufacturing Co. 161 VI. CONSTITUTIONAL DECISIONS 172 A. Standards for "Reverse Discrimination" Suits Under the Equal Protection Clause and Section 1981: Valentine v. Smith and Setser v. Novak Investment Co 172 B. Another Limitation on National League of Cities: United Transportation Union v. Long Island Rail Road Co 182 C. Employee Free Speech and Agency Shop Agreements: School Committee of Greenfield v. Greenfield Education Association 189 VII. PROCEDURAL ISSUES 197 A. Liberal Construction of the National Labor Relations Board's Procedural Regulations: Livingston Powdered Metal, Inc. v. NLRB and Kessler Institute for Rehabilitation v. NLRB 197 EMPLOYMENT DISCRIMINATION LAW I. PROCEDURAL DEVELOPMENTS 213 A. Equitable Modification of Title VII Filing Requirements: Zipes v. Trans World Airlines 213 B. Title VII and Continuing Violations: Bronze Shields, Inc. v. New Jersey Dep't of Civil Serv, 220 II. SENIORITY SYSTEMS 232 A. Broadening the Substantive Scope of Title VII' s Seniority System Exemption: American Tobacco Company v. Patterson 232 III. SEX DISCRIMINATION 241 A. Wage Discrimination Under Title VII—Does the `Equal Work' Standard Apply?: County of Washington v. Gunther 241 B. Customer Preference and the Bona Fide Occupational Qualification: Fernandez v. Wynn Oil Co. 256 C. Transsexuals and Title VII: Sommers v. Budget Marketing, Inc. 266 IV. RELIGIOUS DISCRIMINATION 272 A. Religious Discrimination and Union Accommodation: Tooley v. Martin Marietta Corp. 272 V. ATTORNEY'S FEES 286 A. Attorney's Fees for Proceedings not Mandated by Title VII.' Chrapliwy v. Uniroyal, Inc 286 B. Attorney's Fee Awards Under Title VII for Mandatory State and Local Proceedings: New York Gaslight Club, Inc. v. Carey 291 December 1982] ANNUAL SURVEY OF LABOR LAW 51 LABOR RELATIONS LAW I. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY A. Bargaining Unit Determination 1.* Religious/Lay Employee Units: Mercy Hospital of Buffalo v. NLRB' Determining the proper composition of an employee bargaining unit is a highly discretionary task and is left largely to the National Labor Relations Board (the Board). 2 Section 9(a)3 of the National Labor Relations Act (the Act) requires only that a bargaining unit be "appropriate." 4 In reviewing the Board's determination of what constitutes an appropriate unit, 5 courts will in- terfere only if the decision is arbitrary or capricious. 6 Thus, it is only in situa- tions where the record is inadequate to support the decision made that courts may overturn the Board's judgment.' In exercising its discretionary authority, the Board's primary test for determining the appropriateness of a bargaining unit is whether the proposed members share a sufficient "community of in- terest.' 's Relevant to this inquiry are factors such as the wages, hours, interac- tion, duties, skills and supervision of the bargaining unit's membership. 9 The rationale for the community of interest requirement is that by assuring greater similarity of working conditions of bargaining unit members, a greater likelihood of effective collective action will belostered." Thus, significant in- congruities in the composition of a proposed bargaining unit will undermine • Michael F. Coyne, Staff Member, BOSTON COLLEGE LAW REVIEW. 1 668 F.2d 661, 109 L.R.R.M. (BNA) 2388 (2d Cir. 1982). 2 18C T. KHEEL, BUSINESS ORGANIZATIONS, LABOR LAW 5 14.01[11 (1981). 29 U.S.C. 5 159(a) (1976). ▪ Section 159(a) provides in pertinent part: "Representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining. ." 29 U.S.C. 5 159(a) (1976) (emphasis added). 5 Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of sec- tion 159(a) of this title." 29 U.S.C. 158(a)(5) (1976). For the provisions of section 159(a), see supra note 4. Thus, the Act mandates that an employer collectively bargain with his employee's representative when the bargaining unit so represented is "appropriate." See 29 U.S.C. 55 158(a)(5), 9(a) (1976). 6 Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1974). In Packard the Court held that the National Labor Relations Act mandates that an employer must bargain with a board- certified representative, id. at 490, observing: the issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed. Id. at 491. See also May Department Stores Co. v. NLRB, 326 U.S. 376, 380 (1945) (concluding that the judicial review afforded is not for the purpose of weighing the evidence upon which the Board acted and perhaps to overrule the exercise of its discretion but to "guarantee against ar- bitrary action by the Board.") Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491-92 (1947). a See 18C T. KHEEL, BUSINESS ORGANIZATIONS, LABOR LAW 5 14.02 [2] (1981). Id. '" Id. Hall, The Appropriate Bargaining Unit; Striking a Balance Between Stable Labor Relations and Employee Free Choice, 18 WEST. RES. L. REV. 479, 487-88 (1967). 52 BOSTON COLLEGE LAW REVIEW [Vol. 24:47 the unit's "appropriateness," and will release the employer from the statutory duty to bargain." In recent years, the community of interest doctrine has been used to challenge the exclusion of religious order employees from bargaining units con- taining lay personnel. During the Survey year, the United States Court of Ap- peals for the Second Circuit in Mercy Hospital of Buffalo v NLRB" again con- sidered the application of this standard to religious order personnel, and con- tinued a trend toward limiting the exclusion of such persons from bargaining units for the absence of a community of interests with lay employees. Challenges to the inclusion of religious order personnel in lay employee bargaining units have arisen in instances where institutions have been found- ed, administered or controlled by a religious order to which religious employees seeking admission to the unit belonged. In its first effort to treat the ap- propriateness of a mixed lay/religious employee bargaining unit, the Board in Fordham University" ordered the inclusion of religious faculty in the unit." In its next major treatment of the issue, the Board in Seton Hill College" rejected a challenge to the exclusion of religious faculty," and reversed Fordham University with respect to any inconsistencies." In excluding the religious faculty, the Board in Seton Hill based its decision on two grounds. First, the Board reasoned that the religious faculty "would be subject to conflicting loyalties" if included in the unit.' 8 Second, the Board determined that the religious faculty did not share the same "economic interests" as the lay faculty.' 9 " 18C T. KHEEL, BUSINESS ORGANIZATIONS, LABOR LAW 14.02 [2] (1981). See also supra note 5. 12 668 F.2d 661, 109 L.R.R.M. (BNA) 2388 (2d Cir. 1982). 13 193 N.L.R.B. 134, 78 L.R.R.M. (BNA) 1177 (1971). 14 Id.
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