X. Labor Law

Washington and Lee Law Review Volume 38 | Issue 2 Article 16 Spring 3-1-1981 X. Labor Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Labor and Employment Law Commons Recommended Citation X. Labor Law, 38 Wash. & Lee L. Rev. 682 (1981), https://scholarlycommons.law.wlu.edu/wlulr/ vol38/iss2/16 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . 682 WASHINGTON AND LEE LAW REVIEW [Vol. XXXVIII In Werner, the Fourth Circuit recognized that Rule 407 merely codified the common law on subsequent repairs and was therefore a proper subject for judicial interpretation.79 The court followed traditional common law reasoning to find that without the protection offered by Rule 407, drug manufacturers would be reluctant to take remedial measures after injuries. The Werner court narrowly construed the feasibility exception and refused to broaden the exception to include strict liability cases. The Fourth Circuit, however, failed to consider the consumer protection policy that led to the adoption of strict liability and incorrectly applied federal procedural law instead of state substantive law. Unless Congress acts to change the provisions of Rule 407, the Fourth Circuit is unlikely to allow admission of evidence of subsequent repairs unless the defendant first controverts feasibility. JEFFREY C. PALKOVITZ X. A. LABOR LAW Recognition of the "PurelyInformational"Exceptionto Employer's Discharge Rights and the Union's "Duty to Investigate" Section 7 of the National Labor Relations Act (NLRA) protects the rights of employees to engage in concerted activities for their "mutual aid or protection."' Section 8(a)(1) of the NLRA states that an employer commits an unfair labor practice if it interferes with, restrains, or coerces employees in the exercise of their section 7 rights.' The National Labor Relations Board (Board) and the reviewing federal courts are responsible for determining which concerted activities' are protected by Section 7 and thus free from employer interference under section 8(a)(1). Strikes, including spontaneous work stoppages, are generally considered Coop., 356 U.S. 525, 535 (1958). In fact, the Erie doctrine has never been invoked to void a federal procedure rule. Hanna v. Plumer, 380 U.S. 460, 470 (1965). Since Rule 407 does not expressly apply to strict liability, see text accompanying note 5 supra, the issue is not whether to void the Rule. The Fourth Circuit should not have extended the Rule to include strict liability because of the conflict with Maryland substantive policy. See note 77 supra. 7 628 F.2d at 856. 29 U.S.C. § 157 (1976). 2 29 U.S.C. § 158(a)(1) (1976). Literally, "concerted activity" describes uniform action by two or more individuals. See BLACK'S LAW DICTIONARY 262 (5th ed. 1979). Under the National Labor Relations Act (NLRA), "concerted activity" refers both to employees' actions and the legal status of those actions. See Note, Concerted Activity UnderSection 7 of the NationalLaborRelationsAct, 1955 U. ILL. L.F. 129, 129-32. See generally R. GORMAN, BASIC TEXT ON LABOR LAW 298-301 (1978) [hereinafter cited as GORMAN). 19811 FOURTH CIRCUITRE VIE W protected activity.4 Some strikes, however, may be unprotected because they have unlawful objectives,' a tortious or criminal nature, 6 or contravene statutory labor7 or other 8 policies. Strikes which violate no-strike provisions9 of collective bargaining agreements"0 are generally considered unprotected activity." The NLRA NLRB v. Washington Aluminum Co., 370 U.S. 9, 14-17 (1962). In Washington Aluminum Co., eight employees walked off the job because the employer's machine shop was extremely cold. Id. at 12. The Supreme Court found that the employees had acted in concert in protesting their employer's failure to provide adequate heat. Id. at 14-15. The employer's discharge of the employees violated § 8(a)(1) of the NLRA by interfering with employee rights under § 7 to act in concert for mutual protection. Id. at 17; accord, Richard Shubert Assocs., 222 N.L.R.B. 867, 872, 91 L.R.R.M. 1411, 1412 (1976) (walking off job to protest employer's insistence upon employees remaining at outdoor work stations despite icy conditions held protected activity). 5 See Koretz & Rabin, The Development and History of Protected Concerted Activity, 24 SYRACUSE L. Rav. 715, 716-17 (1973) [hereinafter cited as Kortez & Rabin] (citing cases for proposition that strike with unlawful objective is unprotected). Section 8(b) of the NLRA provides that a significant range of economic pressure devices used by unions constitute unfair labor practices. 29 U.S.C. § 158(b) (1976). The activities include jurisdictional strikes, secondary boycotts, and strikes for recognition despite the Board's certification of another union as bargaining representative. See Kortez & Rabin, supra, at 717. The activities prohibited by § 8(b) are not protected by § 7. See Cox, The Right to Engage in Concerted Activities, 26 IND. L.J. 319, 325 (1951). One commentator has proposed that employees should never be discharged for engaging in concerted activities to obtain mutual aid or benefit unless their conduct was unlawful and the employees knew, or should have known, of the unlawful nature of that conduct. Schatski, Some ObservationsConcerningaMisnomer- "Protected"ConcertedActivities, 47 TEXAS L. REv. 378, 379 (1969). a See Koretz & Rabin, supra note 5, at 717 (citing cases for proposition that strike of tortious and criminal nature is unprotected); Cox, BOK & GORMAN, CASES AND MATERIALS ON LABOR LAW 936 (8th ed. 1977) (same); e.g., NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 252 (1939) (strikers' activity held unprotected where employees violated statecourt injunction, engaged in prolonged sitdown strike, forcibly seized plant, and destroyed employer's property). 7 See Koretz & Rabin, supra note 5, at 717-18 (citing cases for proposition that strike which contravenes basic NLRA policy is unprotected). " See Koretz & Rabin, supra note 5, at 719-24 (citing cases for proposition that adoption of improper means of achieving otherwise legitimate objective may render concerted action unprotected); e.g., Elk Lumber Co., 91 N.L.R.B. 333, 26 L.R.R.M. 1493 (1950) (discharge proper of workers who slowed down pace when employer changed payment method from piece-work basis to straight hourly rate). 'No-strike provisions generally fall into two categories. They are either unconditional bans on strikes, absolutely restraining the right to strike during the life of the contract, or conditional bans, requiring the employees to refrain from striking only until a certain condition has been met or a proce (...truncated)