Question

Key Terms

Research the topics on the web of this key terms. Find a real example for each term and prepare a short narrative regarding what you found.

Electronic Communications Privacy Act

Distributive Justice

Landrum-Griffin Act

Unfair Labor practice strike

Answer 1

Electronic Communications Privacy Act

The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are commonly referred together as the Electronic Communications Privacy Act (ECPA) of 1986. The ECPA updated the Federal Wiretap Act of 1968, which addressed interception of conversations using "hard" telephone lines, but did not apply to interception of computer and other digital and electronic communications. Several subsequent pieces of legislation, including The USA PATRIOT Act, clarify and update the ECPA to keep pace with the evolution of new communications technologies and methods, including easing restrictions on law enforcement access to stored communications in some cases.

General Provisions. The ECPA, as amended, protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically.

Civil Rights and Civil Liberties. "The structure of the SCA reflects a series of classifications that indicate the drafters’ judgments about what kinds of information implicate greater or lesser privacy interests. For example, the drafters saw greater privacy interests in the content of stored emails than in subscriber account information. Similarly, the drafters believed that computing services available ‘to the public’ required more strict [sic] regulation than services not available to the public…To protect the array of privacy interests identified by its drafters, the [Act] offers varying degrees of legal protection depending on the perceived importance of the privacy interest involved. Some information can be obtained from providers with a subpoena; other information requires a special court order; and still other information requires a search warrant. In addition, some types of legal process require notice to the subscriber, while other types do not."

The Act reflects a general approach of providing greater privacy protection for materials in which there are greater privacy interests. For a more in-depth analysis, U.S. Dept. of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence In Criminal Investigations (2009), pp. 115-116, (287pp | 1.01mb | PDF).

Specific Provisions. The ECPA has three titles:

Title I of the ECPA, which is often referred to as the Wiretap Act, prohibits the intentional actual or attempted interception, use, disclosure, or "procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic communication." Title I also prohibits the use of illegally obtained communications as evidence. 18 U.S.C. § 2515.

Exceptions.  Title I provides exceptiions for operators and service providers for uses "in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service" and for "persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978." 18 U.S.C. § 2511. It provides procedures for Federal, State, and other government officers to obtain judicial authorization for intercepting such communications, and regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. § 2516-18. A judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that an individual is committing, has committed, or is about to commit a "particular offense" listed in § 2516. 18 U.S.C. § 2518.

Title II of the ECPA, which is called the Stored Communications Act (SCA), protects the privacy of the contents of files stored by service providers and of records held about the subscriber by service providers, such as subscriber name, billing records, or IP addresses. 18 U.S.C. §§ 2701-12.

Title III of the ECPA, which addresses pen register and trap and trace devices, requires government entities to obtain a court order authorizing the installation and use of a pen register (a device that captures the dialed numbers and related information to which outgoing calls or communications are made by the subject) and/or a trap and trace (a device that captures the numbers and related information from which incoming calls and communications coming to the subject have originated). No actual communications are intercepted by a pen register or trap and trace. The authorization order can be issued on the basis of certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the applicant’s agency.

Amendments. The ECPA was significantly amended by the Communications Assistance to Law Enforcement Act (CALEA) in 1994, the USA PATRIOT Act in 2001, the USA PATRIOT reauthorization acts in 2006, and the FISA Amendments Act of 2008 (116pp | 303kb | PDF). Other acts have made specific amendments of lesser significance.

Distributive Justice

The term distributive justice refers to fairness in the way things are distributed, caring more about how it is decided who gets what, rather than what is distributed. In modern society, this is an important principle, as it is generally expected that all goods will be distributed throughout society in some manner. In a society with a limited amount of resources and wealth, the question of fair allocation is often a source of debate and contention. This is called distributive justice. To explore this concept, consider the following dissenting opinion definition.

History of Distributive Justice

Some modern philosophers express the opinion that the notion of distributive justice is not very old, probably originating in the 18th century, based on the idea that society did not have a structure sophisticated enough to address allocation of resources with the intent of meeting everyone’s needs. Additionally, in empires and kingdoms of old, the monarch owned everything, permitting his subjects to use goods, land, and other items in his name.

Distributive Justice and the Right of Necessity

Sometime in the 12th century, the question of whether someone who had great need would be justified in taking something that belonged to someone else without consent, if it was needed to save his life, was addressed by certain philosophers. Religious scholars, at first, seemed inclined to say no, arguing that doing something that is evil, or otherwise inherently wrong, could not be justified by need. Believers in the philosophy of right of necessity brought about questions of the justification of property rights.

The idea of private property, or property being owned by a single person or entity other than the crown, gained both popularity and legitimacy over time. The writings of church fathers, church councils, and popes, however, were interpreted as meaning that the concept of private ownership of property was a matter of human law, not divine or natural law. Both natural and religious laws held that the earth had been given by God for the benefit of all, meaning that all things must be shared with those who need them.

As an example of distributive justice, and the right of necessity, sixteenth century English philosopher Thomas Hobbes suggested that each individual person has a right to whatever is needed for self-preservation, including such things as food, water, fire, clothing, and a place to live.

Equality of Resources

There is a philosophy in distributive justice, in which treats each person’s abilities and external resources as random chance. In this theory, inequalities between people’s social situations are acceptable, if they are a result of the individuals’ personal choices, but are not acceptable if they result from disadvantages thrust upon them. Under this theory, an individual who begins with equal resources may still end up in a better state than others, simply by virtue of having fewer handicaps, or greater talents.

Distributive Justice Example

Suppose 30 people survive a plane crash, and make their way onto a small, deserted island. The group places a priority on determining what resources are available to them, including natural resources of the island and the sea, and resources that may have washed ashore from the wreck. What would be the best way to ensure those resources are shared among the survivors in a fair and equitable fashion?

Jewish-American philosopher Thomas Dworkin suggests that, in order for a division of resources to be fair and impartial, one must apply what he calls “the envy test.” In this evaluation of distribution, none of the survivors would prefer, or envy, someone else’s resources. If this system of distributive justice is used, however, the final allocations may meet the test, but still appear biased or unfair.

Dworkin recommends a different manner of distribution of resources that places each individual in the same starting position, and allows them to choose which resources they would prefer to have. Should all of the resources be pooled, then each survivor be given an equal number of tokens. An auctioneer, appointed to divide the resources into lots, on which survivors may bid, using their tokens. This allows each person to make a choice as to his priority in resources, and on which items he will bid.

Welfare-Based Principles of Distributive Justice

Distributive justice takes into account the equitable distribution of many aspects of social life, above and beyond “goods.” Other benefits and burdens that are considered include potential income and economic wealth, taxation, work obligations, political power, education, housing, healthcare, military service, and community involvement.

Equality issues then are commonly seen in affirmative action policies, minimum wage laws, and public education opportunities and quality. Some of the more highly contended issues of distributive justice are those of public welfare, including Medicaid and food stamps, as well as providing aid to developing nations, and issues of progressive or tiered income taxes

.The Importance of Distributive Justice

In some fashion, every person’s claim to resources is, or has been, affected by someone who came before. The issue of what someone owns, or what he is entitled to, may be divided into two camps: (1) the belief that everyone begins life at a null point when they are born, after which they must earn their way through life, acquiring resources through the use of their talents and effort; and (2) the belief that each person, from birth, is entitled to what his parents possess, regardless of their own efforts in life. The second camp may be expanded to include people who believe they are entitled to what others have, regardless of family relation.

It has been noted that people begin to feel a sense of injustice when they believe that their condition or outcome is not in balance with the conditions of other people in similar situations. The perception of being at some kind of unfair disadvantage, or of not receiving a “fair share” of resources, often leads to feelings of despair. This is especially true when a person feels his fundamental needs are not met. A gulf between the “haves” and “have nots” of society sometimes drives people to challenge the system, pushing for change.

The issue of perceived imbalance in distribution has become apparent in certain regions of the world, including the Middle East, Europe, and other regions, as more and more people take a stand, often violently. Even in the United States, as the gulf between classes increases, civil and political unrest escalate. Another important issue in distributive justice is society’s belief that such things as race, color, gender, and religion should have nothing to do with distribution. Many people’s actual life experiences lead them to feel at an unfair disadvantage, and left out of what should be fair distribution.

Example of Distributive Justice in Education

If equality in distribution of resources was the only true measurement of who should get what, goods or other resources would be divided equally among all people. Another, equally important, consideration is need. To illustrate how a simple, equal division of resources is likely to result in an unequal outcome, consider the needs of students entering college each year.

Fairplay Community College has decided to offer a $500 scholarship to every freshman coming in with a GPA of 3.0 or higher. On the surface, giving every student in the group the same size scholarship seems to be a fair way to distribute the monies. On the other hand, while a $500 scholarship will certainly help pay the expenses of students whose family can afford the rest of their tuition and other expenses, it has no value at all to the students whose families cannot afford the additional $3,000 to $4,000 per semester tuition. In this example of distributive justice, the school is likely to save quite a bit of money, as a large number of freshman students in the 3.0 GPA group will simply not be able to avail themselves of the scholarship.

The GPA approach certainly appears to reward students according to their efforts and abilities, though a more just method of distribution may take into account the students’ individual financial needs. In fact, many colleges in the U.S. do offer needs-based scholarships, in which students with a greater need receive a larger scholarship. In educational opportunities, as well as social programs, this type of approach helps ensure everyone’s needs are met.

Distributive Justice and the Environment

As it relates to the environment, distributive justice refers to the evenhanded sharing of society’s environmental risks, benefits, and impacts. These issues include air and water pollution, overburdened landfills, industrial waste, and other environmental burdens. Distributive justice in the environment is the vital principle of sharing the burdens and responsibilities for the earth’s health, as pollution, global warming, and other environmental consequences have a negative effect on people’s heath, decrease quality of life, and reduce property values.

Landrum-Griffin Act

What Is the Landrum Griffin Act?

The Landrum Griffin Act, also known as the labor management reporting and disclosure act of 1959, is a labor law that sets regulations for the internal affairs of labor unions, and their official's relationships with employers. The main intention of this act is to ensure that union practices are just and fair, and do not exploit members or use the union as a tool for criminal activity.

A History of the 1959 Landrum-Griffin Act

The main events in the timeline of the act are outlined in order below:

• After the Taft-Hartley Act was passed, the number of union victories in elections conducted by the National Labor Relations Board declined.
• The Wagner Act saw a 12-year administration with a strong percentage of victories by unions documented in elections. However, in the first year after the Taft-Hartley Act was passed, there was a 10 percent reduction in victories (from 80 to 70 percent).
• The 1950s arrived and saw the U.S. labor movement under intense scrutiny by congress for several matters of misconduct, including racketeering, corruption, and other matters.
• The scrutiny placed on the labor movement, the decline in union victories, and other cracks in the laws of the Taft-Hartley Act and the Wagner Act were all alarm bells for congress who decided in 1959 that extra reforms were necessary.
• Later that year, President Eisenhower signed the Landrum-Griffin Act, which changed many details of the Taft-Hartley agreement.

The 1959 Landrum-Griffin Act and Amendments to Taft-Hartley

Following the 1959 introduction of the Landrum-Griffin Act, several changes were introduced. The number of amendments was extensive, but perhaps some of the most notable involved the U.S. state labor boards and courts being given jurisdiction over cases that were rejected by the board and any unethical, unlawful processes that involved one business manipulating another into acting a certain way (hot cargo agreements and secondary boycotting for instance) were outlawed.

The new laws aimed to protect the rights of employees from unfair practices by either their union or their employer. To this end, the Landrum-Griffin Act protects the union membership rights of employees from unions, and the National Labor Relations Act protects the rights of employees from unfair practices by unions or employers.

This topic is quite extensive and not all points are relevant to all businesses. For further reading on the changes introduced by the act, and the industries affected, refer to the National Labor Relations board breakdown.

The Landrum-Griffin Act

The Act covers matters relating to the relationship between a union and the members within it. It protects the rights of union members against potentially corrupt or exploitative unions and employers.

The Landrum-Griffin Bill of Rights

Under a separate area of this new legislature, a code of conduct was established which guaranteed union members certain rights within their union and set reporting requirements for the involved parties (union officers, unions, consultants, and employers). The administration of these provisions was assigned to the Department of Labor.

The Landrum-Griffin Act established a Bill of Rights for union members. This bill outlines:

• The reporting requirements that labor-relations consultants, employers, employees, union officers, and surety companies should follow.
• The standards to be followed when union officers are elected.
• What the safeguards are for protecting labor organization funds and assets.

Actions Against Unethical Behaviors

Following offenses of corruption, and the uncovering of ties between labor and organized crime, President Eisenhower and Senator John. L. McClellan were insistent that the new law was needed to help ensure that unions were more honest and democratic in their operation. New actions to promote honesty included issuing penalties against:

• The misuse of union funds.
• Officials who commit crimes.
• Labor officials who use violence to prevent union members from exercising their rights.

A strict ban on secondary boycotts was also introduced.

Title I of the Act

Title I of the Landrum Griffin Act mainly discusses the fair treatment that the Act expects, and enforces, for employees and union members. This treatment includes:

• Equal rights when voting in elections for all individuals.
• Freedom of speech during union meetings.
• Freedom to attend meetings.
• A secret ballot voting method used when voting on increases in dues or assessments.
• Individuals subject to disciplinary procedures must be given written notification of charges, time to prepare for the hearing, and a fair trial.
• No disciplinary methods for individuals exercising statutory rights.
• Members meeting and assembling freely with other members (provided they follow the rules related to meeting conduct, etc.).
• Not disciplining, fining, or suspending members without following the correct procedures and being given a fair hearing.
• Labor organizations not doing anything to prohibit or limit the right of members to take legal action or try to intimidate or influence their behavior in any way.
• No fees or rates amended, and no special entry criteria introduced unless such actions are introduced and approved by national or international labor organizations.

Title II of the Act

The second title of the Landrum Griffin Act deals with the union's management of finances, and mainly exists to prevent any incorrect use of monies or criminal behavior. It states that unions must have constitutions and bylaws and should file copies of each of these with the U.S. Secretary of Labor. Any potential conflicts of interest between a union officer or employee's personal situation and the union duties must be disclosed.

The title specifies several reports that unions must file:

• Dues, fees, and assessments
• Financial auditing
• Qualifications for membership
• Authorization for the disbursement of funds and other spending

Other reports must be filed that lay out the financial position of the union. These should include:

• Assets and liabilities at both the start and end of the fiscal year
• Receipts, salaries, and any reimbursements for expenses
• Details of loans given to any employee, union member, union officer, or business.

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Unfair Labor practice strike

The Right to Strike

Section 7 of the National Labor Relations Act states in part, “Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:

Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.

It is clear from a reading of these two provisions that: the law not only guarantees the right of employees to strike, but also places limitations and qualifications on the exercise of that right. See for example, restrictions on strikes in health care institutions (set forth below).

Lawful and unlawful strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay.

It must be emphasized that the following is only a brief outline. A detailed analysis of the law concerning strikes, and application of the law to all the factual situations that can arise in connection with strikes, is beyond the scope of this material. Employees and employers who anticipate being involved in strike action should proceed cautiously and on the basis of competent advice.

Strikes for a lawful object.Employees who strike for a lawful object fall into two classes “economic strikers” and “unfair labor practice strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

Economic strikers defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.

Unfair labor practice strikers defined.Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.

If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.

Strikes unlawful because of purpose. A strike may be unlawful because an object, or purpose, of the strike is unlawful. A strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be a strike for an unlawful object. For example, it is an unfair labor practice for an employer to discharge an employee for failure to make certain lawful payments to the union when there is no union-security agreement in effect (Section 8(a)(3). A strike to compel an employer to do this would be a strike for an unlawful object and, therefore, an unlawful strike. Strikes of this nature will be discussed in connection with the various unfair labor practices in a later section of this guide.

Furthermore, Section 8(b)(4) of the Act prohibits strikes for certain objects even though the objects are not necessarily unlawful if achieved by other means. An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, nor is it unlawful for a union merely to request that it do so. It is, however, unlawful for the union to strike with an object of forcing the employer to do so. These points will be covered in more detail in the explanation of Section 8(b)(4). In any event, employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement.

Strikes unlawful because of timing—Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision.

Same—Strikes at end of contract period.Section 8(d) provides that when either party desires to terminate or change an existing contract, it must comply with certain conditions. If these requirements are not met, a strike to terminate or change a contract is unlawful and participating strikers lose their status as employees of the employer engaged in the labor dispute. If the strike was caused by the unfair labor practice of the employer, however, the strikers are classified as unfair labor practice strikers and their status is not affected by failure to follow the required procedure.

Strikes unlawful because of misconduct of strikers. Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a “sitdown” strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:

• Strikers physically blocking persons from entering or leaving a struck plant.
• Strikers threatening violence against nonstriking employees.
• Strikers attacking management representatives.

Section 8(g)—Striking or Picketing a Health Care Institution Without Notice. Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other concerted refusal to work at any health care institution without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service.