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ELR 625 Processes of Collective Bargaining

Legal Writing Exercise

The intent of this assignment is to guide the student through the legal analysis of a set of facts through the application of statutes (if any) and legal precedents (cases). Here is the scenario to analyze:

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WallyWorld is a large amusement park that employs hundreds of workers and is located just off of Interstate 54. The workers are not members of any union. The amusement park itself is surrounded by large visitor parking lots that surround the park on all sides. There are signs posted prominently at various locations all throughout the park stating that the park is private property and that non-employee solicitation, canvassing, distribution of literature or trespassing of any kind is not permitted anywhere on the premises, including the parking lots. WallyWorld, on these signs, further reminds non-employees that there is no right of access to non-work areas, and that access is only permitted for the use of the park as a member of the public visiting for amusement park purposes.

Amusement Workers of the World, the AWW, is a union that seeks to represent amusement park workers. None of the WallyWorld workers are members of the AWW. The AWW has been trying in various ways to interest WallyWorld workers in joining the AWW. They have tried billboard advertising, trolling social media and various other publicity measures but have not yet succeeded in getting any authorization cards signed. They are aware that all of the WallyWorld workers park in one big parking garage that has entrances that enter and exit directly off of Interstate 54, so there is no public area at the parking garage where handbilling or informational picketing or any other means of active publicity can be engaged in by AWW organizers. The parking garage has the same postings against solicitation, trespassing and the like just like the rest of the park property. In frustration, the AWW one day enters the WallyWorld parking garage and proceeds to place AWW informational handbills on the windshields of worker cars while walking around wearing informational AWW placards. Many workers are coming and going while this is occurring.

Immediately upon detecting the presence of the AWW, WallyWorld security responds and orders the AWW organizers, none of whom work for WallyWorld, off the property. Security also confiscates all of the AWW’s handbills from the car windshields.

The AWW promptly files charges with the NLRB. You are the field examiner assigned to the case. What issues do you expect to see? Please analyze the merits of the case using the relevant laws and case precedents.

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Here is the instruction I might give at the end of the scenario:

Please write an analysis of any legal issues that you identify in the preceding scenario. You must use the cases listed in the syllabus and as found in the book as the precedent for your jurisdiction. In other words, the primary source of your arguments as to how the facts will be resolved must be cases from the syllabus. Once you have developed your arguments with a case or cases you cite as precedent, you may add brief references to other cases that were discussed in notes between the cases we are treating as precedent, either to point out additional support for your argument or to point out how other courts have handled these types of cases in a different manner. Materials not found in the book may not be used in the paper.

Instead of the paragraph above, follow these instructions for this Legal Writing Exercise:

1. To get started with the assignment, provide a brief restatement of the general facts.

2. State an issue that you have identified that the AWW can raise, e.g., “The first issue raised by this scenario is whether…” You may want to add some facts specifically relevant to this issue if they weren’t included in your initial summary.

3. Next, you want to transition to discussing your first case that you will use as precedent to resolve the issue. There are any number of ways to make this transition. An example is found on page 184 at the beginning of the third full paragraph:

The latter issue was explored by the Supreme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). There, in the course of an organizing campaign…

One more example:

In NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (1955), the court dealt with the issue of…”

And, if you tweak the citation slightly – NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (1955) (hereinafter Babcock) – you leave no doubt about the shorthand version of the case when you refer back to it. For example, when you move to discussing another case, you might say, “Unlike the Babcock court, the court in [full citation of your next case] held that…” This avoids cumbersome repeat references to the longer citation for Babcock.

4. Once you cite the case, you next must present a summary of the relevant facts of the case you are citing. If you were using the Babcock case as your precedent, you would talk about the relevant details of that case, the issue the court decided, and its reasoning. You are making the case to the reader that the facts of the case being cited as precedent are similar enough to the scenario that it is proper to use the court’s holding and its reasoning to decide how to rule on the facts of the scenario.

5. The next step is to apply the precedent court’s reasoning and holding to the scenario. You might say, “Just like in the Babcock case, the employees in this case worked at…

6. This type of analysis is intended to be a discussion of all relevant information, so when you do an assignment, there may be multiple cases that tie in with the scenario. Just because you developed one case, that doesn’t necessarily mean you are done. This is your opportunity to show the reader how much you know about the topic from all the reading in the book. You might discuss several cases that go in different directions with the facts in the scenario.

7. In addition to responding with cases from the Table of Contents (“main” cases) that were covered, you may wish to add some of the cases that were referenced only briefly in the notes and materials between the main cases. Please give the full citation in the style I gave you (you will note that the full citation is always given for the case in those materials) and then whatever the information is that you wanted to mention. It is understood that you will not develop those cases the way you do the main cases. Please give a page number for such cases, e.g., “In NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), as discussed on page 184, the court held that…”

8. Be sure to remember that cases not found in the book may not be used in your analysis, and for cases such as Savair, which appears only in a brief discussion on a page in the book, you may use only the information given in that note about the case to respond to the scenario. There are three reasons for these restrictions. The first is that I do not have time to track down information I may never have read that is brought in from sources beyond the book. The second is that even a case mentioned in a note may be accurate as to what is said in the note, but no longer current precedent in terms of the other parts of the case, and that is of even greater concern if you use a search engine to find a case that uses similar language, and sounds good, but in fact is not current law. Lawyers spend a lot of time learning how to decide if a case is still valid before they rely on it, and we don’t have the time or resources to do that. Thus, we must limit ourselves to the book as the source of relevant precedent. The third reason is that the intent of the course is for you to read the book. Reliance on search engines to find cases that seem to respond to the facts of the scenario undermines my ability to assure that you are learning the materials covered in the book and the course.

9. For purposes of this assignment, you may stop your analysis once you have developed one Table of Contents (main) case in the manner described above. Go back and review your citations to make sure they are in the proper form/style. If you want to add some materials from the notes you may, but that is not required for this exercise.

10. Please double-space your paper.

11. Your case citations serve as your paper’s citations, so there is no need to cite the book other than to write something similar to “as discussed in note 3 on page 262” in the body of your writing if you are using note materials that don’t come from a case.