387 HA Final Exam Notes
Contracts and Unions
Law Review: Contracts & Unions
List of Topics Contracts (K) Contracts need 4 Things 1. Offer 2. Acceptance 3. Consideration 4. "Meeting of the Minds" Defenses 1. Intoxication 2. Minor 3. Insanity 4. Mistake a. Mutual b. Unilateral 5. Parole of Evidence Rule 6. Statute of Frauds Promissory Estoppel 4-Part Test 1. Promise 2. Reasonable expect reliance 3. Reliance 4. Damage/detriment Damages different for K vs. P.E. Damages Actual loss only Duty to mitigate Specific performance Liquidated damages 2-Part Test 1. impasse to ascertain 2. reasonable estimate Miscellaneous company handbook agent can bind employee Unions NRLA "concerted activity" "permanently replace" Handbilling okay if: 1. remote area, or 2. solicitation allowed Penalty for kicking union off Salting (protected activity) Mass ULPs 3 options management has: Voluntary recognition Neutrality Agreement Fight Elections Authorization cards Bargain units Bargain order Critical period Captive audiences Rides to voting booths Negotiating with union (good faith to impasse) 1. decision must negotiate unless Hotel reservations Breach of fiduciary duty Injunctions Efficient breach
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HA 387 Final Exam Notes a. substantial change in business b. not based on union costs
Contracts and Unions 2. effects always negotiate T.I.P.S.
CONTRACTS
Contracts (K) need 4 things: 1. Offer semantics and wording matter because you might think you have a deal but you may not Ex: "I'm offering $23 for seed" vs. "I'm asking $23" Offers remain open for a reasonable period of time unless it is explicitly stated in the contract how long it lasts o A jury decides what's reasonable or not Counteroffer considered to be a rejection to the initial offer; therefore, each counteroffer is a new offer 2. Acceptance o way in which you accept an offer needs to be in the way the offer was extended o "Mirror Image Rule" can't change the terms of the offer if you intend to accept it o must accept an offer within the stated time or reasonable time 3. Consideration - giving something up to which you are legally entitled for something else o both sides need to be giving up something o courts do not judge the adequacy of consideration in the real world today o Gift no consideration because only one party is giving up something Contract = "Quit smoking and I'll give you $500." Gift = no contract = "You're a good kid. I'll give you $500." 4. "Meeting of the Minds" (Mutual Assent) when both parties come to an understanding on the terms of the deal o Whether or not there was a meeting of the minds is based on objective view o Manifest intentions only counts Defenses 1. 2. Intoxication contract is voidable by only the intoxicated person a. Court won't find you to be intoxicated if you remember the conversation Minor Contract is voidable by minor only; adult can't void a. Adult can attempt to get object back through contract (i.e., CD clubs)
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HA 387 Final Exam Notes 3.
Contracts and Unions
Insanity 1. Legally insane court has found them to be insane - contract is void, neither party can enforce it 2. Clinically insane doctor (psychiatrist) found person to be insane - contract is voidable by insane person only Mistake both types of mistakes have to be about material aspects a. Mutual (bilateral) both people make mistakes; contract is voidable (i.e., neither party knew that the cow was not really baron = contract is void) If it is about value, then it is not void (i.e., locked safe is worth 40K, not $10 = contract not void because you are selling a risk = not a mistake because no one knew) b. Unilateral if a material object, the contract is not void UNLESS two conditions exist: a. one party knew the other party was making a mistake, AND (i.e., I buy a painting from you; I know its worth a lot; you don't know it is because you sell it for $10) b. it is unconscionable to enforce the contract = not fair to enforce it - jury decides what constitutes unconscionability (Ex: sold for $10, but worth $10 million not fair)
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5. Parole Evidence Rule written/oral communication prior or after an integrated contract is made a. Oral/written communication BEFORE integrated contract: 1. Contradicts communication before that contradicts the contract is not usable in court 2. Clarifies communication before that serves to clarify the contract is usable in court b. Communication AFTER integrated contract is admissible because we want people to be allowed to change/amend contracts 6. Statute of Frauds applies to oral contracts; says that certain types of contracts need to be in writing A contract must be in writing if: a. it involves real property b. contract cannot be fully performed in one year - not whether it DID take one year, just something that couldn't be completed in one year Unjust Enrichment you can't profit from the statute of frauds - work done/things done must be paid for by market value - if contract is voidable due to statute of frauds, it doesn't mean that you can escape payment for work completed 7. Promissory Estoppel occurs in cases were there is no contract
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HA 387 Final Exam Notes
Contracts and Unions
To get awarded damages, there is a 4-part test: 1. Promise 2. Reasonably expect reliance promiser could reasonably expect reliance on promisee 3. Reliance rely on that promise 4. Damage/detriment damage results a. Damages are different depending on whether there is a contract or P.E.: Contract you get what you would have gotten if the contract were performed or carried-out Promissory Estoppel you get what you would have gotten if you hadn't met the promisor Damages Actual loss compensated for actual loss only Duty to mitigate loss you have a duty to try and make things better Ex: contract says no dog, your roommate has dog, you allergic, you owe a duty to make the situation better before seeking damages Specific Performance when a court orders the contract has to be completed Ex: K says you'll build house for $500; you don't build, instead of seeking monetary damages, you have to build the house When SP is awarded: a. Sale of real property land b. Personal Performance when a person performing (singer) and no one is comparable, the judge will order that the performance continue (i.e., Madonna singing at Rullof's...she kicks ass and no one else is like her) a. Or, the judge can order that she is not allowed to performance anywhere else the same night as her Ruloff's performance (inhibiting other performances the same time as this contract) Liquidated Damages contract states damages (i.e., in case of breach, you owe $5000) Enforceable if 2 things happen: 1. Real damages are impossible to ascertain at time of contract or time of breach, AND liquidated 2. damages provided for in contract are reasonable estimates
Miscellaneous Agents can bind companies into contracts with employees
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HA 387 Final Exam Notes
Contracts and Unions
Ex: Manager never tells an employee about his/her job security because it can be binding (i.e., you will advance quickly as a result of this project you did) Employee Handbooks considered to be contracts unless within them, it says otherwise If you don't want HB to be a contract, 1. Explicitly state it's not a contract in the book 2. Use general (vague) terms because definite terms can be used against you in court Hotel Reservations considered to be contracts - semantics (wording matters); court cares about objective intent (i.e., the word "hold" = not a contract; "reserve" or "guarantee" = contract) Breach of Fiduciary duty agent and principle relationship; the agent cannot make money off the principle unless the principle agrees Damages: money that should have gone to the principle in the first place and punative damages Ex: agent gets kickbacks Injunction something you ask for when something is happening now that you need to stop now To get an injunction: 1. Prove irreparable harm (damage severely) 2. Likelihood of success on merits - need a better than 50/50 shot of winning the case Efficient Breach times when its best to breach a contract Ex: if you have opportunity to make more money with another contract possibility, then it's ok to breach, though you'll still need to pay consequences (pay prior contract) society doesn't want to limit people from maximizing financial potential
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HA 387 Final Exam Notes
Contracts and Unions
UNIONS
NLRA National Labor Relations Act employees engaged in concerted (more than one person) activity (protests, strikes) regarding terms and conditions of employment are protected can't fire someone for participating in union activities during breaks or nonworking hours when people go on strike, you can "permanently replace" employees but you can't "fire" people Handbilling handing out flyers, notices, etc. to employees Handbilling is okay if, 1. its in a remote area no other way to reach property, OR 2. the employer allows other solicitors on property Penalty for wrongfully kicking union off property: have to post a written apology and let them back on Salting a union sends a union employee to apply for a job with the sole purpose of Infiltrating and establishing the union Rule: Employer can't fire employee for being a Salter However, advice for employer to prevent hiring salter in first place: look for over-qualified people; gaps in resumes have no moonlighting policy having more than one job at a time
Mass ULPs Unfair Labor Practice Strategies used by unions to coerce management into letting companies unionize Mass Applications - Unions send people in union clothes to apply for jobs and those that don't get hired file a lawsuit because they weren't hired due to discrimination company ends up hiring them in order to avoid expensive litigation fees Options management has when a union wants to unionize within their corporation: 1. Voluntarily Recognize mgmt. allows union to enter; no election, union wins 2. Neutrally Recognize doesn't voluntarily recognize union, but doesn't fight it
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HA 387 Final Exam Notes 3. Fight Mgmt. Fights to prevent unions from entering Elections
Contracts and Unions
Authorization cards union hands out to employees to rally and attract employes to get an election o To get an election needs 30% of the bargaining unit to sign cards o Union can demand recognition if a majority (50% or more) sign AND management knows Therefore, it is recommended that management does NOT look at cards Bargaining Units the types of employees the union is seeking (not all employees) What is an appropriate bargaining unit? Test: Do job classifications within have a community of interests? (does it make sense to group housekeeping employees with room service employees?) - Management tries to expand the unit to prevent people from joining - Unions try to contract people in a unit to get them to vote - What matters is how many people show up to vote, not the size of or number of people in the bargaining unit (need +50% people voting) Bargaining Order the union is in Need to show 2 things to get in: 1. At one time, union had over 50% of bargaining unit sign authorization cards, AND 2. the conduct of company was so egregious that a fair election would not have happened Critical Period period of time between petition for election and election date In critical period, company operates under a laboratory microscope If Management breaks or violates law during this period, a. Election gets re-run b. Have a bargaining order
Captive Audience management can hold captive audience speeches (corner you during working hours) except within 24 hours of election Rides to Voting Booths management cannot give rides to voting booths but union can
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HA 387 Final Exam Notes
Contracts and Unions
Negotiating with Unions (good faith to impasse) If company is planning on laying off, partially close, or subcontract, there are two types of negotiations... 1. Decision must negotiate unless a. substantial change in business (getting out of one portion of business), OR b. decision is not based on union costs 2. Do they have to negotiate on effects? Yes, Always! (i.e., health care, pension plan, severance pay, etc.) Management must negotiate in good faith until impasse - management gets final say Decertification After election, if union wins, there is a 1 year period where union is in During that year, employees can petition for kicking union out with 2 points: 1. after one year 2. between 60 and 90 days left (a 30 day period) Management is not allowed to encourage employees to decertify the union. If it does, it will be rescinded. Buying Union Property buy union and contract if you: 1. announce that you are not firing anyone, OR 2. you agree that you are keeping a majority of the employees You can trash union contract if you: 1. waive new terms/conditions, AND 2. not going to keep a majority of the employees T.I.P.S things management can't do during critical period (time between signing auth. Cards but before election date) Threats can't threaten, but the wording you use is important, which won't be interpreted as a threat Interrogate can't ask employee who they are going to vote for; but, you can engage in conversation, which will lead to them saying what you wanted to hear in the first place Promises management can't make promises to employees during this time, but unions can. However, unions promises aren't valid because management makes the decisions Spy Can't spy on employees
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HA 387 Final Exam Notes
Contracts and Unions
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