FREE LABOR, LABOR ORGANIZATION, AND THE LAW A. REPPRESSION – prior to the Wagner Act 1. Criminal conspiracy - 1800s – courts considered concerted employment union efforts (strikes, picketing, etc) to be common law criminal conspiracies. 2. Labor injunction in private disputes a. Vegelahn v. Gutner - An act by employees to intimidate an employer and persons employed is an unlawful interference with the rights both of employer and of employed. Maintenance of a picket in front of an employer’s premises for the purposes of preventing persons in his employ from continuing therein, regardless of the picketer’s conduct, is unlawful, and may be enjoined. b. Plant v. Woods - The court held that defendant interfered with plaintiff's members' right to dispose of their labor with full freedom. 3. The Antitrust laws a. Sherman Act – Competition law – 1890 prohibits certain business activities that reduce competition in the marketplace, and requires the government to investigate and pursue trusts, companies, and organizations suspected of being in violation. a) Loewe v. Lawlor – Sherman Act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between the states, or restricts the liberty of a trader to engage in business. The court held the fact that defendants were members of a labor union seeking to force plaintiff to unionize did not serve to take defendants out of the reach of the Act. b. The Clayton Act - 1914 - right to organize unions without employer interference, labor organizations are not committing "anti-trust", employers and workers are competitors and organized competition is good, attempt to curtail the use of injunctions, §6 - "the labor of a human being is not a commodity or article of commerce, nor shall such [labor] organizations or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust . a) Passed by Congress in attempts of limiting union exposure to antitrust liability. b) Limited by Duplex Printing Press Co v. Deering, which gave a narrow reading to the Clayton Act provisions protecting labor activity. B. TOLERANCE 1. The Norris-LaGuardia Act – 1932 prohibits federal courts from issuing injunctions (with a few exceptions). The act was to keep the courts out of the labor market a. Established the predicate that peaceful, concerted activities - strikes, boycotts or picketingshould not be enjoined by law. (Union-Neutral) b. Apex Hoisery Co v. Lender – Court gave narrow reading of the market effects of union activity that would allow the application of the antitrust laws. c. United States v. Hutcheson – Court considered the Norris-LaGuardia Act to constitute a congressional statement of public policy that guided the interpretation of the antitrust laws. 2. The Sherman Act recalibrated 3. Labor activity and the constitution a. Thornhill v. Alabama – held AL state law, which made it an offense to picket, facially invalid. Labor relations were "not matters of mere local or private concern," and that free discussion concerning labor conditions and industrial disputes was "indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society." There was no clear and present danger of destruction of life or property or of breach of the peace was inherent to labor picketing. C. RECOGNITION: WAGNER ACT (NLRA) 1. Wagner Act – 1935 concerned primarily with the organizational phase, established the twin rights to organize and bargain collectively, and made it government policy to encourage unionization and collective bargaining. (Union-Friendly) a. Prevent practices which interfered with the growth of unions and development of collective bargaining b. Concerned exclusively with the activities of employers violating rights guaranteed in §7 and with limiting employer’s unfair labor practices under §8 c. Left substantive terms and conditions of employment entirely to private negotiation D. RETRENCHMENT

1 –Levy 2012

1. Taft Hartley Act - 1947 (amendment to NLRA) attempted to “balance” obligations between employers and unions by restraining union as well as employer unfair labor practices by providing alternatives to collective bargaining where public health or safety is seriously affected. a. Permitted individual states to outlaw union shops b. Outlawed secondary boycotts and mass picketing c. Provided enforcements of labor agreements. 2. Landrum-Griffin Act - Affected the internal affairs of unions and prohibited "sweetheart" contracts. II. THE JURISDICTION, STRUCTURE, AND PROCEDURE OF THE NLRB A. NLRB JURISDICTION 1. Enterprises covered: a. The Commerce Requirement and Other Limitations on NLRB Jurisdiction - §§10(a), 9(c)(1), 1 NLRB’s jurisdiction extends to cases “affecting commerce” as defined in §2(7) Board self-limited itself in 1958, saying that commerce only applied where: a) Retail concerns - have at least $500,000 annual business; b) Nonretail companies - (ex. manufacturing) have at least a $50,000 annual outflow or inflow, direct or indirect c) Instrumentalities, links, and channels of insterstate commerce - (ex. Trucking companies, etc.) which derive 50,000 or more annually from interstate portions of their operations, or from services performed for employers in commerce d) Public utilities - which have at least $250,000 gross annual volume or qualify under the jurisdictional standard applicable to non-retail firms e) Transit systems - (other than taxicabs) with an annual gross volume of $250,000 or more f) Newspapers and communication systems - radio television, telegraph and telephone systems have $100,000 gross volume and Newspapers which have $200,000 gross volume g) National Defense – all firms having a substantial impact on national defense h) Proprietary and nonprofit hospitals – with an annual revenue of at least $250,000 i) Law Firms and Legal Assistance Programs – with gross annual revenue of at least $250,000 2. Excluded employers: a. Religiously-Operated Activities – NLRB v. Catholic Bishop of Chicago – prevented the Board from dealing with any religiously-operated activity that involves employees (interference with 1st Amendment). b. Most significant group of excluded employers are public employers – federal, state, county, and municipal government. 3. Excluded employees: a. Some categories of employees at common law that are excluded statutorily – agricultural workers, domestic workers, and supervisors. b. Undocumented alien workers – SureTan, Inc v. NLRB – Court sustained the extension of Labor Act to aliens unauthorized to work in the United States. c. Foreign Employee and Company Jurisdiction – no jurisdiction over American citizens who are permanently employed outside of US by American companies although employees in temporary assignment abroad are still covered – jurisdiction over foreign companies doing business in US. 4. Statutory Exclusions – §2(3) definition of “employee” – Taft-Hartley adds exclusions for: a. Agricultural Laborers – Board interpreted this statutory exclusion narrowly, holding that no worker can be considered agricultural unless his duties form an integral part of ordinary farming operations. a) Work must ordinarily be of a sort performed before the products can be marketed through normal channels. b) Not specifically excluded but developed under common law decisions. b. Independent Contractors (§2(3)) – Congress found distinction between “employees” who do a job for a wage, and “independent contractors.” a) Tests for “Independent Contractor” Status : 1) Right to control test (Common law test, Respondeat Superior) – does employee have a right to control the manner and means by which the job is done? Supreme court concluded that this test is vague, applied differently in different juridictions, thus irrelevant for the purposes of the Wagner Act, which
2 –Levy 2012

is a federal legislation, administered by a national agency, to solve national problem on national scale. 2) Economic Realities Test (definitive test used today because of problems with “right to control” test) – looks at underlying economic realities of relationship – treat them as independent contractors only if they are truly independent entrepreneurs. b) United Insurance Co. – insurance agents, despite “control” over strategies, were to be considered “employees” under §2(3) because: 1)they didn’t operate their own businesses; 2)were trained by company; 3)did business in the company’s name; 4)receive company benefits; 5)permanent working arrangement with company. c) Roadway Package System, Inc. – drivers for company’s small package pick-up and delivery system are employees as defined by §2(3) – significant factor was that many of Roadway’s policies hinder the driver’s from using their trucks during off hours and thus from independently making money – had major specifications for their trucks and therefore after a driver quits, he has pretty much only the option of reselling it to another Roadway driver. 1) Contrast with Dial-A-Mattress Operating Corp. where the court found that drivers were independent contractors because there was significant entrepreneurial opportunity for gain or loss and a separate identity from Dial. c. Supervisory, Managerial, and Confidential Personnel (§2(11)) – only “supervisors” explicitly excluded from “employee” by NLRA (§2(3) – covers pretty much only “touch employees”), “managerial” and “confidential” personnel excluded by common law – separation between providers of capital and providers of labor (each should have their own representatives) – important to exclude them because if the Act does not covers them, they cannot vote in elections and any involvement by them in a union would constitute employer interference under §8(a)(2). a) Reasons for Supervisor Exclusion: 1)conflicts of interest; 2)failure to supervise appropriately – if leaders are in a union, they will not supervise properly (will work to minimize effort); 3)coercion of rank-and-filers – problematic to be in a union with people who have power over you (one solution may be to create separate unions); 4)refusal to cross picket lines – one role of supervisors is to cross picket lines because they have a duty to the organization. b) Test for supervisors (§2(11)): 1)individual exercising authority in the interest of the employer; 2)you exercise one of the listed duties (ex. hiring, transferring, suspending, etc.); 3)you exercise independent judgment when making your decisions. 1) Scope of “supervisor” – is it unfair that protection under the NLRA only covers “touch employees” who actually work on the floor, and excludes even middle managers involved in knowledge-based, pro-active roles even if they have similar concerns about job security and fair treatment? Furthermore, many “touch” workers are now given responsibilities in such matters as quality and inventory control and production process development – should they too now be excluded? 2) Potential Problems – “supervisor” status might exist, but might not fit in certain situations: 1)conferring supervisory status would create an “unrealistic” supervisory ration – does it make sense to say there’s 20 supervisors for 40 employees?; 2)regular employee becomes highest authority during a certain shift; 3)employees do not get any extra pay for their “supervisory” duties or were making less than even those they were supervising. c) Managerial Employees – no statute excludes them explicitly – Supreme Court excludes them under decision in Bell Aerospace Co. – 25 buyers from the purchasing and procurement department at the company’s plant are managerial employees according to reviewing court because even if you’re a non-supervisor, you must be excluded if you make or implement established policy for the employer – on remand, the Board upheld their prior decision that these buyers were employees, adding to the above definition that managers must also “have discretion in the performance of their jobs independent of their employer’s established policy” (3rd prong on §2(11)) but that employees didn’t in this case (only implemented established policy). 1) Congress would not have intended to invite the conflict of interest that would flow were such managerial employees to organize and bargain with the
3 –Levy 2012

employer; indeed, on a broader rationale such managerial employees are “the employer”. 2) See also Yeshiva case – where US Supreme Court held that Full-time faculty members at a large private university were all “managerial employees” and this outside of the protections of NLRA. d) Confidential Employees defined as those who “assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.” 1) Labor Nexus Requirement – NLRB v. Hendricks – exclusion only applies to those who have access to confidential information that is labor-related (labor nexus) – therefore those who have access only to confidential business information are not excluded. d. Professional Employees (§2(12)) (ex. nurses) – typically covered by the Act – creates tension with the exclusions since very often, professional employees have supervisory roles, but this is often tied to their professional role, but only when they perform a supervisory function not linked to their professional role do they fall under the §2(11) exclusion – although USSC three times rejected attempts by the Board to broadly define professionals as non-managerial or nonsupervisory: a) NLRB v. Yeshiva – found full-time faculty employees to be “managerial” but said that this doesn’t mean they should be excluded as managerial under the Act unless “their activities fall outside the scope of duties routinely performed by similarly situated professionals” (§2(11)). b) NLRB v. Health Care & Retirement Corp. of Am. – LPNs’ were excluded supervisors because direction of less-skilled employees was done in the “interest of the employer” in relation to determining their supervisory status ( §2(11)). c) NLRB v. Kentucky River Community Care, Inc. – Court rejected argument that RNs were not supervisors because they didn’t “exercise independent judgment” ( §2(11)) – “independent judgment” must be applied the same way to all 12 of the listed supervisory functions in §2(11), regardless of whether the employees were professionals e. Students as Employees §2(3) – (ex. Medical residents and graduate assistants) does not specifically exclude students who work for the school but since 1976, the Board said they were “primarily students” and therefore not covered. a) New York University – Board determined that graduate TAs should be considered statutory employees – even though they only worked 15% of the time, this just pointed to the idea that they were part-time rather than full-time employees – also pointed out that teaching was not a prerequisite to getting their degree (in many departments). b) Brown University – overturn NYU decision on grounds that being a TA was inexorably linked to degree requirements and the role of employee could not be distinguished from the role of a student in the TA position – job was not economical, but rather educational in nature B. THE BOARD AND THE GENERAL COUNSEL 1. National Labor Relations Board (NLRB) – rarely engages in rulemaking, generally adjudication. a. Members of the board - appointed by the President for 5-year terms with the consent of the Senate. Two main functions of the NLRB: a) Investigating/ adjudication of Unfair labor practices b) Representation Elections c) Engage in rulemaking b. General Counsel - represents the Board, appointed by the President to 4-year terms. Has the authority to investigate charges of unfair labor practices, to decide whether complaints should be issued on the basis of these charges and to direct the prosecution of such complaints. The General Counsel is appointed to a four-year term with the consent of the Senate. a) Makes determinations of whether complaints will be issued b) Keeps the prosecutorial and adjudicative (hearing) aspects of the agency separate c) Handles elections c. Regional Offices - 30 regional offices under a Regional Director and a Regional Attorney. Regional offices report to the General Counsel who controls the administration

4 –Levy 2012

d. Administrative Law Judge: Field Examiners and Field Attorneys investigate and prosecute before ALJs. The ALJs are independent and hear the complaints filed by the General Counsel. They issue written opinions 2. Unfair Labor Practice and Representation Proceedings –§10 given no private right of action, NLRB works primarily in two areas: a. Procedure in Unfair Labor Practices: a) Filing a charge - first step is to file charge with the appropriate Regional Office that is, the Regional Office in the area where the alleged unfair labor practice was committed. A charge may be filed by an employee, an employer, a labor organization, or any other person. §10 provides for the issuance of a complaint which is issued only after investigation of the charges through the Regional Office indicates that an unfair labor practice has in fact occurred. 1) 6-month limit - §10 (b) the charging party must, within 6 months after the unfair labor practice occurs, file the charge with the Regional Office and serve copies of the charge on each person against whom the charge is made. b) Preliminary Injunctive Relief - §10(l) – for §§8(b)(4)(A-C),(b)(7),(e) – so called mandatory injunction – regional director must go to district court if he has “reasonable cause” to believe in violation (can proceed without NLRB OK) - §10(j) for all other ULPs, requires NLRB authorization to obtain temporary relief of restraining order. c) Arbitration - in certain limited circumstances when an employer and union have an agreedupon grievance arbitration procedure that will resolve the dispute, the Board will defer processing an unfair labor practice case and await resolution of the issues through that grievance arbitration procedure. d) ALJ - An unfair labor practice hearing is conducted before an NLRB administrative law judge, makes findings and recommendations to the Board, in accordance with the rules of evidence and procedure that apply in the U.S. district courts. e) Appeal – all parties to the hearing may appeal the administrative law judge’s decision to the Board. If the board considers that the party named in the complaint has engaged in or is engaging in the unfair labor practices charged, the Board is authorized to issue an order requiring such person to cease and desist from such practices and to take appropriate affirmative action. 1) In routine cases, a panel of 3 members will consider the case. If the case is sufficiently important to warrant a full board, a member may ask to have it referred to full board. 2) New Process Steel v. NLRB – act requires a 3-member quorum at all times, if not, the board cannot function. f) Complaint not issued - Appeal to the General Counsel If the Regional Director refuses to issue a complaint in any case, the person who filed the charge may appeal the decision to the General Counsel. If the General Counsel reverses the Regional Director’s decision, a complaint will be issued. If the General Counsel approves the decision not to issue a complaint, there is no further appeal. g) Court Enforcement of Board Orders—In the U.S. court of appeals. 1) Board orders carry no sanctions, however, every regional office includes a compliance officer who determines whether the board orders are being complied with. 2) If an employer or a union fails to comply with a Board order, §10(e) empowers the Board to petition the U.S. court of appeals for a court decree to enforce the order of the Board enjoining conduct that the Board has found to be unlawful. 3) §10(l) provides that any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any appropriate circuit court of appeals. When the court of appeals hears a petition concerning a Board order, it may enforce the order, remand it to the Board for reconsideration, change it, or set it aside entirely. 4) If the court of appeals issues a judgment enforcing the Board order, failure to comply may be punishable by fine or imprisonment for contempt of court. h) Remedies - §10(c) – allows taking of “affirmative action” to remedy. b. Representation Proceeding-§9 a) Petitions may be filed either by an employer upon whom a demand for recognition and bargaining has been made by a union, or by a union seeking to represent employees 1) Demonstrating a “showing of interest” from 30% of the employees within the bargaining unit, through signed cards authorizing that union to be bargaining agent. b) Petitions: most common type is where union seeks representation election in order to determine desires of employees concerning collective bargaining (what Brown is about) – many issues can be brought up (§9(b)): 1)appropriate bargaining unit; 2)who is a part of the
5 –Levy 2012

unit and gets to vote (ex. Whether individual is supervisor, in which case he would not be able to vote. 3)who is excluded from the unit; 4)are there people ineligible to vote under the statute; 5)where/when is election held? 1) Other petitions: 1)decertification by employer (“individual…acting in their behalf”) or employees (§9(c)(1)(A(ii)); 2)employer claim that more than one labor org. wants to be rep. (§9(c)(1)(B)). c) Procedure in representation cases - § 9(c)(1) provides that when a petition is filed, “the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice,” if the Board finds from the evidence presented at the hearing that “such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” 1) If three or more choices on the ballot and none recieves a majority, § 9(c)(3) provides runoff between the first two choices with the largest number of votes. 2) If a union receives a majority of the votes cast, it is certified; if no union gets a majority, that result is certified. A union that has been certified is entitled to be recognized by the employer as the exclusive bargaining agent for the employees in the unit. If the employer fails to bargain with the union, it commits an unfair labor practice. 3) BASICALLY - 1)commenced at Regional level; 2)Regional Board grants review only where there a) is a substantial question of law or policy (decision in such a case is not real a violation of NLRA and amounts to more of a warning), b) the regional director’s decision on a substantial factual issue is clearly and prejudicially erroneous, c) conduct of the hearing resulted in prejudicial error, d) compelling reasons for reconsidering an important board rule or policy; 3)given “nonadversary” nature, can’t appeal decision, need to convert it into a ULP proceeding - §9(d) says that record in representation proceeding becomes record in ULP proceeding (therefore, need to raise all relevant issues in rep. proceeding - §10(f) appeal to Court of Appeals). 3. Rulemaking Versus Adjudication – two procedures for making policy: a. Adjudication – case-by-case decision making as done by courts (either by ALJs or the Board if appealed to them). b. §6 – Rulemaking – Board given power to make and amend rules in carrying out the Act (used very rarely) – under APA, NLRB must first issue notice or proposed rulemaking and provide opportunity for public comment. a) Bell Aerospace Co. – USSC upheld the idea that the Board can use either form of policymaking whenever it chose. b) Pros of rulemaking: 1)forces dialogue between agency and public; 2)keeps things consistent by wiping out old law; 3)allows the public to participate in the process; 4)limits power of General Counsel. 4. Scope of Review of NLRB Determinations – Standard of review depends on nature of the issue in dispute. a. “Substantial Evidence” Standard - §10(e) – questions of fact, if supported by substantial evidence on the record as a whole, will be conclusive – provides significant deference to agency findings of fact – applies to two different kinds of Board determinations: 1)Pure factual findings – adjudicative facts – questions regarding conduct of specific party involved in the case (who did what, where, when…); 2)Mixed questions of fact and law – see below (ex. whether someone is a “student” depends on legal definition of “employee” as applied to what they do). b. Review of Questions of “Law” and “Policy” – “discretionary judgments” – apply decision in Chevron v. NRDC (Judicial Review – statutory interpretation is more deferential ) – court confronts two questions: 1)Step 1 – has Congress directly spoken on the issue in question? Textual analysis; 2) Step 2 – if Congress’s intent is not explicit, court sees whether agency’s answer is based on permissible construction of the statute (court does not substitute its own judgment). a) Under Step 2: 1)agency decision need only be “reasonable” rather than the only decision that could have been reached; 2)defer to agency because: a)Congress left the gap in the law for a reason (to let the agency fill it); b)agency has specialized knowledge on the issue; c)policy choices better made by agencies which are directly accountable to people through President. b) Mixed Question (same as above) – two step analysis: 1)is agency using proper test/proper legal standard; 2)if it is, is it applying this standard to a proper set of facts? c) Questions of Policy – zone of reversible policy making discretion (a certain area within which the agency can move around and change their minds about an issue – ex. seatbelt
6 –Levy 2012

regulations) – once court has determined what margin the agency has for discretions, agency is allowed to make policy decisions within this area. c. NLRB is given considerable latitude in construing the Labor Act. As long as the question is not one the courts consider definitively to have been resolved by the statute, Board is free to adopt one reading and reading and later abandon it in preference for another (even if it is opposite from what was previously held), as long as it is within the realm of the Act allows. PART 2 THE ESTABLISHMENT OF COLLECTIVE BARGAINING RELATIONSHIP I. THE PROTECTION OF THE RIGHT TO SELF-ORGANIZE A. INTERFERENCE, RESTRAINT, OR COERCION a. Employees’ Right to Self-Organize - Employees shall have the right to 1) self-organization, 2)to form, join, or assist labor organizations, 3)to bargain collectively through representatives of their own choosing, and 4)to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. §7 of the National Labor Relations Act (NLRA). b. Restrictions on solicitation and distribution - §8(a)(1) It is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in §7.” Employer Preventing Employees From Soliciting Information: Employers can’t prohibit employees from talking about or soliciting union information on the employer’s premises during the employee’s own time. If so, it discourages membership in a labor organization and is a violation of §8(1)(a). Must determine if it is actual work time or not (i.e., lunch break, or when the person should be working). NOTE: If question involves distribution of union material, remember there are competing rights: An employer has the right to restrict solicitation and distribution of pro-union material to off duty time and nonworking areas. However, and employee has a statutory right to communicate with other employees on different shifts. a) Specific situations: 1) Uniform no-solicitation policy: An employer must permit union employees to post information on bulletin boards even if other groups cannot because employees could be discriminated against if the information is not available. 2) Breaks: Employees are free to talk and solicit on their breaks, even if paid. Republic Aviation 3) Work Time: Employer can prevent solicitation and union talk during actual working time. Employees can discuss concerns together during their own time. The best place would be at work when other ee are around. 4) Email systems: Companies can restrict union messages on company e-mail systems and computers unless work in a group is done primarily by e-mail across distances because the work group uses e-mail as the only way to make communications. b) Republic Aviation Corp. v. NLRB - The employer adopted a rule prohibiting solicitation of any type in the factory. An employee solicited union membership in the plant during lunch periods. He was discharged, and three other employees were discharged for wearing union steward buttons in the plant after being asked to remove the insignia. In this case, company had a blanket rule prohibiting solicitation of any kind. Union sued b/c this prohibited it from handing out leaflets to try to get the workers to want them as their representative. 1) Competing concerns- employees’ right to self-organization and the employer’s right not to have his business disrupted. 2) NLRB determined that the promulgation and enforcement of the no solicitation rule violated § 8(1) and discriminated against the discharged employee under § 8(3) of the NLRA. 3) Soliciting rule could have a chilling effect on right to self-organize. 4) Page 29 on supplement - Southern New England Tel. Co, 356 NLRB No. 118 – Employees should be entitled to wear shirt that says inmate prisoner of att. c) Cintas Corp. v. NLRB - The employee handbook stated employees were to protect the confidentiality of any information concerning employees, and warned that employees could be sanctioned for violating a confidence or an unauthorized release of confidential information. The employer testified that union flyers had employees' pictures and names along with their wage rates and other terms of employment, and that no disciplinary actions were taken. But, a rule not explicitly interfering with protected activity could still violate § 158(a)(1).

7 –Levy 2012

1) Evidence of actual employee conduct could not vindicate an unlawful rule and an employer's failure (intentional or not) to enforce a facially unlawful rule did not redeem the rule. 2) The Board described the rule as an unqualified prohibition of the release of any information regarding its employees, which could be reasonably construed by employees to restrict discussion of wages and other terms and conditions of employment. 3) Because the employer made no effort in its rule to distinguish protected behavior from policy violations, the Board's determination was "reasonably defensible," and entitled to considerable deference and was upheld. 4) No requirement of anti-union motive. Concern here is whether there will be a chilling effect. Employees must have to reasonably interpret to prohibit section 7 activities. Here, it is reasonable under the circumstances. Rule was overbroad and constituted as an unfair labor practice. Employer Preventing Nonemployees From Soliciting Information : An employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property unless nonemployee union organizers do not have reasonable access to employees outside an employer’s property. Babcock; Lechmere NOTE: Nonemployee union organizers have the right to come on company property only if they do not have reasonable access to employees other than on company property, and even in that case you must balance employee’s §7 rights against the employer’s state-law property rights. a) Lechmere, Inc v. NLRB – Union Food and Commercial Workers Union claimed that Lechmere, Inc. violated §7 by barring them from distributing literature (placing handbills on the windshield of the cars parked in the Lechmere’s lot). Court held that the union organizers have the right of access to an employer’s property ONLY when inaccessibility of the employees makes reasonable attempts to communicate with the employees ineffective. NLRB v. Babcock –Court recognized that an employer’s right to restrict nonemployee union organizers from the company property is limited. 1) Babcock Rule - §7 explicitly provides protection only to employees, but Babcok expanded this to also protect unions or nonemployee organizers to the extent that “right of [employee] self-organization depends in some measure on [their] ability…to learn the advantages of self-organization from others” – however must balance against employer property rights. 2) Jean Country Balancing Test for Access – will look at: 1)degree of impairment of §7 right if access is denied; 2)degree of impairment of private property right if access is granted; 3)availability of reasonably effective alternative means of access. 3) When can you Apply Balancing Test? – USSC rejects Jean Country, saying that it confuses the necessary two-part inquiry that Babcock teaches – need to first see if nonemployee union organizers have other means of access to employees before applying balancing test – if reasonable alternative access does exist, no reason to apply balancing test (threshold question), and no reason for them to get protection of §7. 4) Narrow Exception – Babcock rule only applies where “the location of a plant and the living quarters of the employees place them beyond the reach of reasonable union efforts to communicate.” 5) Dissent – Just because Babcock says inaccessibility would be a reason to grant access, doesn’t mean it’s the only reason – Babcock also goes against Chevron since court failed to recognize that Board’s reading of statute was reasonable, and went ahead to make their own determination of how third parties should be dealt with. 6) Vs. Republic Aviation – does court have less power to strike balances here, given that this affects employer’s state property rights since it involves outsider solicitations rather than employee-employee solicitations? 7) What Counts as “Reasonable Access?” – does it mean access that is equally effective and not any more expensive or difficult than reaching employees at work? Or does it mean any feasible access? 8) Lechmere Application to Reaching Customers – Leslie Homes, Inc. –Lechmere applies equally to nonemployee appeals to customers. b) Oakwood Hospital v. NLRB - Courts have applied Lechmere to deny union agents access to public areas controlled by the employer, such as cafeterias. c) No Reasonable Access Exception

8 –Levy 2012

1) Applies when: The “no reasonable access” exception applies only where the location of the place of business and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, not merely where non-trespassory access to employees may be cumbersome or less than ideal. 2) Burden of proof: The burden on the union to show the lack of reasonable nontrespassory means of communicating its message to the employees is a heavy one. Lechmere 3) Examples: logging camps, mining camps, mountain resort hotels. 4) Employer allows solicitation except from unions = discriminatory: Allowing charities access to the parking lot and not the union is discriminatory 5) Balancing Test If Exception Applies: Only if the “no reasonable access exception” applies is it necessary to take the accommodation inquiry to a second level, balancing the employees’ § 7 rights and employers’ property rights with as little destruction of one as is consistent with the maintenance of the other d) Note on “Salting”- Union staff organizers apply for jobs with targeted companies. If hired, they do their assigned jobs but also engage in organizing activities in their nonworking time on company property, as allowed in Republic. NLRB treats “salts” as “employees” under NLRA. General counsel must prove that the applicant was “genuinely interested”. e) The Register-Guard – did employer violate section 7 rights in disciplining the union member for using the email for union purposes? Prozanski is a unit employee and the union president. In May and August 2000, Prozanski received two written warnings for sending three e-mails to unit employees at their Register-Guard e-mail addresses. The Respondent contends that the e-mails violated the CSP. 1) An employer has a "basic property right" to "regulate and restrict employee use of company property." Union Carbide Corp. v. NLRB. Respondent's communications system, including its e-mail system, is the Respondent's property and was purchased by the Respondent for use in operating its business. 2) There should be a balancing – was there an opportunity to communicate? Must be under special circumstances to restrict communication by e-mail. 3) “The unequal treatments of equal” = discrimination. Majority said it was okay to solicit for yourself but not soliciting for a group. The two are very different from each other. Unless you are treating equals unequally, the employer can draw these lines. 4) Dissent said that it really did not present special circumstances that demonstrate the need for restriction. Dissent also says that it discriminated against use of e-mail for unions because they allowed exception for non-work use such as noncharitable solicitation, babysitting, dog-walking. f) Note on Discrimination Application g) Excelsior Underwear Inc. – When union petitions the NLRB for an election and the employees involved in the campaign are numerous, the board requires the employer to give the union a list of the employees’ names and addresses within 7 days. Although failure to provide such a list has never been held to be an unfair labor practice, it can be the basis for setting aside the election. should election be set aside if employer doesn’t provide union with names and addresses of employees eligible to vote? Decision – disclosure of info should be required in all elections within 7 days of election approval by Regional Director – given that labor org. typically has no right of access to plant, needs to be able to reach employees. 1) Applying Nutone – argument that before requiring disclosing list, union needs to show inability to reach employees in other ways – Court disagrees, saying that union’s alternative means of communication is only relevant if Board’s proposal of access interferes with some employer right (not the case here). 2) Substantial Compliance with the Excelsior Rule – If employer was not in “substantial compliance” with list requirement (ex. number of omissions), Board will overturn election from union objection – lack of such compliance is presumed if defects in list are shown to be in bad faith. 3) Earlier Access to Excelsior Lists – list only required within 7 days of approval of election, but given that union needs 30% union support before filing for election in unit, should lists be made available sooner? 4) Board wants to provide a fair process. It is important to have an informed electorate. 5) Followed by NLRB v. Wyman-Gordon. c. Election propaganda - When dealing with an employer’s right to free speech, you must consider whether the statement contains a threat of reprisal or a promise of benefit.
9 –Levy 2012

§8(c) of the NLRA - the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit. Threats of reprisal – Coercive speech are not protected a) General Shoe Corp - I. General Shoe Corp. (NLRB – ’48) – employer read antiunion Wagner Act severely limited the employer’s freedom of expression. An employer has a right of free speech under the first amendment, and this right has been explicitly codified in NLRA §8(c) b) NLRB v. Gissel Packing Co. (USSC – ’69) – did employer speech go beyond the protections of §8(c) and violate §8(a)(1)? 1) An employer is free to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control and not threats of economic reprisal to be taken solely on his own volition.” 2) Company prediction of adverse consequences of unionization requires (1) objective fact basis (2) outside Company control 3) Cannot be a threat of retaliatory action. An employer’s prediction, even though sincere, that unionization “will or may: result in closing the plant as a result of union demands is coercive, unless the likelihood of closing was capable of objective proof. Factual Misrepresentations: There will ordinarily be a number of factual misrepresentations in during an election campaign by both the employer and union. These statements may lack any threat of reprisal or coercion and thus will be protected under §8(c) against unfair labor practice sanctions; nonetheless, they affect improperly the employees’ assessment of the need for union unionization and therefore may warrant the invalidation of election results. a) Midland National Life Insurance (NLRB – ’82) – day before election, employer distributes document regarding union’s involvement with local employers and their adverse impacts on them, as well as union’s financial report with parts removed – union finds out too close to election time and doesn’t have chance to respond effectively – decision – like Shopping Kart more because it isn’t about subjective determinations of what is a “serious” misrepresentation (like Hollywood Ceramics) but rather has a clear cut, objective rule (leave task of evaluating misrepresentation content to employees, while allowing Board intervention when no voter could recognize it for the propaganda that it is, like forgery). 1) Hollywood Ceramics – new election justified if misrepresentations are a serious departure from the truth and are made at a time when the other party doesn’t have a chance to reply; 2)Shopping Kart – overturns Hollywood Ceramics holding that inquiry into truth or falsity of claims would only occur if misrepresentations concern Board processes, or use of forged documents which make voters unable to recognize propaganda for what it is; 3)General Knit – returns to Hollywood Ceramics; 2) Substance vs. Manner of Misrepresentation – set aside election not because of misrepresentation substance, but because of the deceptive manner in which it is made. 3) Dissent – makes no sense to protect against forgeries while allowing for other types of misrepresentations that perhaps employees cannot discern – also, unlike political campaigns, here employees do not have access to much outside information to help determine whether something is propaganda. 4) Midland in the Courts – all but 6th Cir. follow it – 6th Cir. will overturn election even in the absence of forgery if misrepresentation is “so pervasive and the deception so artful that employees will be unable to separate the truth from untruth” (sounds like Midland dissent). 5) Formco Doctrine – Formco still in place following Midland – overturn election if there’s a substantial mischaracterization or misuse of Board documents (forgery not required). 6) Forward document which deceived workers Inflammatory appeals A deliberate appeal to prejudice (such racial/religious prejudice)interferes with an employee’s reasoned and untrammeled choice and therefore will be cause to overturn an election. a) Sewell Manufacturing CO – the employer’s injection of racial prejudice into the election campaign by inflammatory methods required a new election, even though the
10 –Levy 2012

employer’s statements were not otherwise coercive, because this upset the required “laboratory conditions”. Some statements with racial overtone – such as the union’s position on segregation or union financial contributions to civil rights group – will be appropriate only if “temperate in tone, germane, and correct factually, because employees are entitled to have knowledge about these matters d. Other forms of interference, restraint or coercion a) NLRB v. Lorben Corp. - The court denied the enforcement of petitioner National Labor Relations Board's order against respondent employer that respondent had interfered with, restrained or coerced employees in the exercise of their rights by interrogating then concerning union activities because the respondent had a valid purpose in conducting the polling of the employees and there was no evidence of any employee hostility or coercion. b) International Union of Operating Engineers v. NLRB – current test. The union's area representative commenced organizational activity at a road construction job operated by an employer. The employer's attorney corresponded with the representative regarding possible union membership. After conducting an open, signed poll of its employees to determine whether they wished the employer to bargain with the union, the employer decided not to enter into negotiations with the union. The General Counsel filed a complaint charging the employer with violations of § 8(a)(1), (5) of the Act, and the Board dismissed the complaint. The union appealed, and the court set aside the Board's order regarding the § 8(a)(1) violation. The court found there was no § 8(a)(5) violation because there had been no strike, no evidence of anti-union animus, no discrimination, and no firing because of union activity. The court found that further fact finding was required to determine if the employer had properly polled its employees pursuant to § 8(a)(1), by explaining the purpose of the poll to the employees and offering assurances to the employees that their rights under the Act would not be infringed. 1) The employer’s sole purpose was to ascertain whether the union demanding recognition actually represented a majority of the employees 2) The employees were so informed 3) Assurances against reprisals were given 4) Questioning occurred in a background free from employer hostility to union organization c) NLRB v. Exchange Parts Co.(USSC – ’64) – does §8(a)(1) prohibit conferral of benefits, without more, where employer’s purpose is to affect election outcome? Union lost election after employer allowed employees to decide on nature of previously announced “floating holiday” (whether to allow it to be taken on birthdays) – decision – danger from “well-timed” benefits because employerss recognize that employer can later take them away (create coercion through “fist in a velvet glove”) – less danger if benefits are conferred permanently and unconditionally, but at the same time, there is the issue of other future benefits which could be affected – here, violation of §8(a)(1) because Board assumes improper motive if benefits are timed near election (employer must disprove this by showing timing influenced by factors other than motivating the election – ex. part of existing Co. policy). 1) Estriecher – doesn’t buy the fist in velvet glove analogy – employees more likely to see it as a bribe rather than a threat to harm them in the future – maybe Exchange Parts is about preventing such bribes where union is unable to use the same tactic given their lack of power. 2) Employee Choice – why not let the employees decide, through election, whether they viewed the employer’s gesture as “strategic” or a mere bribe? They always have recourse for another election within a year. d) Exchange Parts and Objections Cases – B&D Plastics – in objections cases, Board will determine if election should be set aside based on: 1)size of benefit conferred in relation to stated purpose for granting it; 2)number of employees receiving it; 3)how employees would reasonably view purpose of benefit; 4)timing of benefit (rebuttable Board inference that benefits during critical period are coercive). e) Solicitation of Grievances – Trobitt & Castleman – absent prior practice of soliciting employees for grievances, timing this new practice with union campaign, is a §8(a)(1) violation if accompanied by express or implied promises to remedy (rebuttable presumption that there is an implied promise to remedy). e. Union misconduct affecting self-organization a) NLRB v. Savair Manufacturing Co. (USSC – ’73) – union used pre-election “recognition slips” which employees signed to avoid paying initiation fees if union won election (not unconditional – need to sign before election) – §8(b)(1) violation? decision – allowing
11 –Levy 2012


paints false picture of employee union support during the campaign (sign them in order to save money if union wins, not to show their support) – no obligation to vote for union after you sign slip, but many may feel an obligation – not resolved whether it’s a ULP for union to promise benefit for those who sign up, but union promises of benefit has been deemed a ULP in other contexts (ex. promising union standard $500 insurance policy for those who sign up – Wagner Electric Corp.). 1) Dissent – “unconditional” waivers of fees (stay open after the election) are clearly not coercive and not ULPs – differentiates between employer promises of benefit (Exchange Parts) and union waiver of fees: 1)employer has power to grant benefit but here it is only contingent on union winning election; 2)when employer increases benefits, this is an implicit threat that they can be taken away, but union can’t transmit such a threat unless it is elected. 2) Unconditional Waiver of Fees – is the Court ruling that the impact of pre-election waivers, however slight, is an avoidable cost because same union interests can be served by “unconditional” waivers (that are legal)? 3) Union-Financed Litigation as a Savair Violation? Can union initiate litigation against employer, on behalf of employees during the “critical period” as a “taste” of what they can do? Novotel New York says this is not objectionable, but Freund Baking Co. says it is. An empirical postscript

B. COMPANY DOMINATION OR ASSISTANCE NLRA §8(A)(2) Prohibits Employer Domination or interference with labor organizations and or other support to such organizations. 8(a)(2) is designed to prevent interference by employers with organizations of their workers that serve or might serve as collective bargaining agencies—i.e. the company union. **Any group, including an employee representation committee, may meet the definition of a labor organization even if it lacks formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues. Thus, a group may be an employee representation committee within the meaning of §2(5) even if there is no formal framework for conducting meetings. a. Report of the senate committee on education and labor on the wagner act b. Electromation, Inc –Co. develops “action committees” to involve employees in fixing problems in five categories – Co. manager management officials facilitated discussions and coordinated meetings – employee participants signed up and were paid for their time – when union tried to get representation, committees were disbanded – union claimed §8(a)(2) violation – decision – “labor organization” can exist even if it lacks formal structure, has no elected officials, constitution, or bylaws, does not meet regularly, and does not require fees. a) Management “Domination” – can be established by employer’s act of creating the organization and determining its structure and function (if employees determine formulation and structure, domination is not established, even if employer can influence organization’s structure or effectiveness) – in this case, Co. determined method for choosing reps. (sign-up sheet) and determined what subjects would be discussed (excluded issue of wages). b) Intent vs. Purpose – no anti-union animus, or intent to dissuade unionization, needed to find §8(a)(2) violation (look at effect) – still, need to look at “purpose” of organization through what it actually does – if purpose is to “deal with” employer concerning conditions of employment, then it is a labor organization under §2(5) no matter what the employer’s involvement in creating and keeping it around might be. c) Reasons for Finding Labor Organization in This Case: 1)employees participated in committees; 2)activities of committees constituted “dealing with employer;” 3)subject matter of dealing concerned conditions of employment; 4)employees acted in representational capacity within meaning of §2(5). 1) Representational Capacity Requirement – Board has refused to rule on whether §2(5) requires the organization to function in a representational capacity, or whether this is the policy underlying §8(a)(2). d) Committees for Productivity and Efficiency Problems – concurrence says they should be allowed – claim they fall outside of §2(5) being unconcerned with the prohibited areas listed in the definition. e) Rule: The employer-created action committees were labor organizations, as defined by the NLRA, and the employer violated §8(a)(2) of the NLRA by unlawfully dominating or interfering with the committees. c. International Ladies’ Garment Workers v. NLRB –

12 –Levy 2012

a) §9(a) guarantees employees freedom of choice and majority rule in their selection of a bargaining representative. The Act, thus can place a non-consenting minority under the bargaining responsibility of an agency selected by a majority of workers. b) The grant of exclusive recognition to a minority union constitutes unlawful support in violation of §8(a)(2) because the union which is favored is given a marketed advantage over any other union in securing the adherence of employees; notwithstanding that the employer and union had a good faith belief that the union had majority status. This is because nothing in the language prescribes scienter an element of an unfair labor practice under §8(a)(2). c) Card Checks: are the manner whereby the union goes around and secures recruits by having employees join the union by signing or checking the cards. Card checks are critical because an employer can only recognize a union without a minority from by an election, but can never recognize a minority without a majority from all card checks. d) Remedy: redo the card check, or haven an election (which is the prevailing trend). e) Rule: A showing that an employer granted recognition to a minority union as an exclusive bargaining agent is sufficient to support a finding of violations of §8(b)(1)(A) by the union, notwithstanding the good-faith belief by both sides in the union’s majority status. d. Employer Neutrality and the Midwest Piping Doctrine a) Modern Midwest Piping Doctrine: the Board will not find §8(a)(2) violations in rival union (initial organizing) situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the board. 1) However, once notified of a valid petition, an employer must refrain from recognizing any rival unions until the regional director conduct a valid election; in other words, strict employer neutrality in initial organizing situations. 2) 30% Rule: when one of the several rival labor organizations cannot command the support of even 30% of the unit, it will no longer be permitted to forestall an employer’s recognition of another labor organization which represents an uncoerced majority of employees and thereby frustrate the establishment of a collective bargaining relationship. 3) Violations: although an employer will no longer be automatically violate §8(a)(2) by recognizing one of the several rival unions before an election petition has been filed; an employer will still be found to have violated §8(a)(2) for recognizing a labor organization which does not actually have majority employee support. e. A note on Neutrality Agreements a) Majestic Weaving - a union negotiated a collective agreement with an employer contingent upon its securing majority support by card authorization. b) Dana Corp – C. DISCRIMINATION NLRA §8(a)(3) makes it unlawful for an employer to discourage or encourage membership in any labor organization by discrimination in regard to hiring or tenure of employment, or with respect to any term or condition of employment. a. Edward G Budd Mfg Co. v. NLRB –Company employees formed an association to address concerns with management. Management cooperated with the organization. UAW sought to organize employees but was unsuccessful. a) Rule: An employer may discharge an employee for a good reason, a poor reason, or no reason at all, so long as the provisions of the NLRA are not violated. b) It is a violation of the NLRA §8(a)(3) to discharge an employee because he has engaged in activity on behalf of the union. Conversely, an employer may retain an employee for good reason, bad reason, or no reason at all and the reason is not a concern of the Board; however, an employer cannot retain an employee and then use his poor work performance as a pretext for discharging when he becomes union affiliated. b. The discrimination requirement – a) General Counsel has burden of proving that the employee’s conduct protected by section 7 was a substantial and motivating factor in the discharge. 1) Company has an affirmative defense. Co. has burden of proving that business justification b) Wright Line Test: Dual Motives: [this is how the board deals with dual motives] §10(c) of the NLRA, which states that unfair labor practice violations must be based upon the preponderance of testimony taken by the Board; requires that the Board has the burden of proving that the employee’s conducted protected by §7 was a substantial or motivating factor in the discharge.
13 –Levy 2012


d. e. f.


1) The employer’s business justification is an affirmative defense, to which the employer bears 2) The burden of not simply initiating the introduction of evidence but also of persuading the fact finder. [Wright Line, NLRB v. Transportation Management Corp. (Supreme Court upheld test formulated by Board in Wright Line case before the Board)]. Mueller Brass Co. v. NLRB – (prior to wrightline case) Petitioner company fired two workers: one for unexcused absence from work, and the other for disorderly, immoral, and indecent conduct. Respondent national Labor Relations Board concluded that the discharges were motivated by petitioner's antiunion sentiments and its desire to get rid of union activists. Finding that petitioner violated 29 U.S.C.S. § 158(a)(3), respondent ordered reinstatement and back pay. In addition, respondent found that conversations between supervisors and worker about union support were coercive and in violation of § 158(a)(1). Respondent sought enforcement of its orders and petitioner sought review. On appeal, the court found insufficient support in the record for respondent's conclusions that petitioner unlawfully discharged the employees or that its remarks were designed to interfere with or coerce workers exercising their rights under 29 U.S.C.S. § 157. Accordingly, the court denied enforcement of respondent's orders. a) Rule: in controversies involving employee discharges or suspensions, the motive of the employer is the controlling factor. Absent a showing of antiunion animus, an employer may discharge an employee without running afoul of the fail labor laws for good reason, bad reason, or no reason at all. b) The mere fact that an employee not only breaks a company rule, but also evinces a prounion sentiment is not enough to destroy the just cause for his discharge. c) The essence of discrimination in violation of §8(a)(3) is treating like cases differently; that is, if an employer fires a union sympathizer or organizer, finding of discrimination rests on the assumption that in the absence of the union activities he would treated the employee differently. d) HOWEVER, if the misdeeds of an employee are so flagrant that he would have been fired anyway, there is no room for discrimination to play a part because neither the employee nor any others will be harmed by the firing if all understand that the employee would have been fired anyhow. e) Remedies: the Board has the power under NLRA §10(c) has the power to reinstate a wrongfully discharged employee, however, that power is remedial and punitive. It is not to penalize the employer for antiunion animus by forcing on the payroll an employee unfit to stay on the job. Judicial Review of Board fact-findings Universal Camera Corp. v. NLRB NLRB v. Adkins Transfer Co. a) Rule: a company may suspend its operations or change its business methods so long as the change in operations is not motivated by illegal intention to avoid obligations under the Act. b) An employer may discharge or refuse to employ one of its employees for any reason, just or unjust, except because of discrimination of union activities and relationships. c) The only discrimination proscribed in §8(a)(3) is discrimination that discourages or encourages membership in labor organizations. The controlling issue in discrimination cases is the true motivation of the discharge. In other words, when the sole motivation of the employer is to remain profitable, or other economic considerations of the time, it is not unlawful for them to terminate union positions. d) Runaway Shops: an analogous problem to discrimination arises when an employer because of a union, decides to close its plant and relocate elsewhere. 1) There is a general agreement that if the employer’s move is motivated by hostility toward and a desire to escape the union, the action violates §8(a)(3). 2) It is well settled that an employer may not transfer its business to deprive employees of rights protected by §7. 3) HOWEVER: the courts have been generally more willing than the Board to countenance employer relocation triggered by worsening economics to which the union substantially. contributes. Textile Workers Union v. Darlington Mfg. Co. - Discriminatory Lockouts (Temporary Closings): the discriminatory lockout is designed to destroy a union and is an economic weapon which has been used to discourage collective bargaining and collective employee activities and as such, they are held to violate the NLRA because they involve discriminatory employer action for the purposes of obtaining some benefit in the future from new.

14 –Levy 2012

D. EMPLOYEES REMEDIES FOR UNFAIR LABOR PRACTICES a. Phelps Dodge Corp. v. NLRB b. Remedies for employer coercion and discrimination a) Delay – An order or reinstatement or an order to bargain must come quickly. b) Reinstatement – A union supporter who is returned to a job in a non-unionized company. c) Gissel bargaining orders – Obligation rests, ultimately, not on a legal constraint – for an employer need make no meaningful concession as a matter of law – but on the union’s ability to impose a cost of disagreement to strike. d) Back pay –Sum is reduced by the iterim and is subject to a statutory obligation to mitigate the wrongdoer’s liability. c. A note on back pay d. A note on “notice” and “access” remedies e. A note on §10(j) injunctions II. SELECTION OF THE REPRESENTATIVE FOR THE PURPOSES OF COLLECTIVE BARGAINING A. GROUNDS FOR NOT PROCEEDING TO AN INVESTIGATION AND CERTIFICATION a. Remember – a company has three options whenever a union claims majority a) Recognize the union (as long as you don’t have the thing where the union fraudulently tells you that they have majority status – 8a2 violation) b) File Election Petition: this could be helpful if you don’t think the union is that popular at the time and you think the union will lose c) Do nothing and wait for the union to file election petition b. Election Petitions: a) Elections conducted by the board under §9. b) Union files = must show substantial support/interest of the workers (at least 30% of the members of the would-be bargaining unit-usually at least 60% to win) i. For rival unions – a rival union only needs to have ONE authorization card to get on the ballot ii. BUT, it must have at least 10% support (authorization cards) before it can challenge the eligibility of voters (this would be during the election, see below) c) Commission of an unremedied ULP-union will file blocking charges to stop election until ULP’S remedied, or union can wait and file ULP’s with Board after it loses to attempt to get a bargaining order or more likely the election set aside b. The most important grounds on which the board may decline to proceed to an investigation or certification have been: a) The want of substantial interest on the part of the petitioning union b) The commission of unremedied unfair labor practices c) A prior certification or the lapse of less than a year since the last previous election d) The subsistence of a valid collective bargaining agreement. c. A petitioning union, while it doesn’t need to show a majority, must at least show authorization from 30% of the employees in an appropriate bargaining unit. d. A collective bargaining agreement may later cease to be a bar for any one of several reasons: a) A contract for a fixed term will bar a petition filed by a rival union for only the first 3 years of its life, even if the specified term is for a longer period and even though contracts of a greater duration are commonly used in the industry or area of question b) If the bargaining representative has become “defunct”, the contract will not act as a bar to an election. A union is held to be defunct if it is unable or unwilling to represent the employees in the bargaining unit. c) A contract may cease to operate as a bar when changes in circumstances have occurred due to expansion or changes in the employer’s operations. e. §9(a) – majority of determined unit must designate or select representative who will have exclusive collective bargaining authority in relation to pay, wages, hours of employment, or other conditions of employment. a) Designation/Selection – Act does not enumerate any specific method by which representative is picked (employer with objective evidence of majority, such as through auth. cards, can voluntarily recognize union). f. §9(c) – Board can conduct secret-ballot elections to determine majority status or for “certification” of results. a) Certification – provides additional benefits beyond mere “designation or selection,” given greater legitimacy of result (see Gissel).

15 –Levy 2012

B. APPROPRIATE BARGAINING UNIT a. Significance a) NLRB Unit Determinations: Substance and Procedure – before election, need to determine appropriate bargaining unit (§9(a) – “unit appropriate”) – unit questions arise in two contexts: 1)appropriate unit within single facility (ex. do all employees in factory make up one unit, or should they be broken up according to job specifications?); 2)whether singlefacility or multi-facility unit is appropriate (ex. should all employees in job classification within all of Co.’s plants be grouped together? Should there be a grouping based on geography of plants, as in by regions?). b) Procedure: 1)union takes “first shot” at picking appropriate unit – filed petitions with Regional office; 2)employer often seeks to alter unit (tries to make it larger so that common interests are harder to come by – will decrease strike probability); 3)agreement over unit will lead to an election (85% of cases); 4)If no agreement, hearing is held in Regional office and Regional Director makes decision, subject to rarely granted discretionary review of the Board; 5)Board unit decision can only be appealed if a ULP precipitates and the unit issue is raised in the ULP proceeding (§9(d)). c) Presumption in favor of a smaller bargaining unit b. Criteria for unit determinations a) Blue Man Vegas, LLC v. NLRB - Petitioner argued the Board erred in holding the bargaining unit proposed by the union was appropriate. Petitioner argued that (1) the Board applied the wrong standard to determine whether the proposed unit was appropriate, (2) the unit determination was not supported by substantial evidence, and (3) the exclusion of musical instrument technicians (MITs) from the proposed unit created a disfavored residual unit. None was persuasive. The court concluded that the Board applied the correct legal standard to determine whether the proposed bargaining unit was appropriate. The Board correctly applied the overwhelming-community-of-interest standard; it did not presume the union's proposed unit was valid. The Board's determination that the MITs could be excluded from the bargaining unit because they did not share an overwhelming community of interest with stage crew employees included in the unit was supported by substantial evidence and did not conflict with precedent or the Board's residual unit policy. The Board recognized the MITs differed from the employees in other crews in ways unique to the MITs, namely, in terms of supervision, form of payment, and sign-in sheets. 1) Rule: if employees in a proposed unit share a community of interest, the unit is prima facie appropriate unless the employer can show the prima facie unit is truly inappropriate. This is based on the overwhelming community of interest standard. 2) Test - 1) An appropriate unit if community interest 2) BUT not if truly inappropriate because there is another group with the same overwhelming community of interest.  MIT’s do not share an overwhelming community of interest with the other stage crews. 3) An appropriate bargaining unit is one that share a community of interests. 4) In evaluating a proposed bargaining unit – consider the similarities of the following factors: hours of work, benefits, supervision, training, and skills.  similarity in earnings  similarity in other benefits (hours, terms, etc)  similarity in kind of work performed  similarity in qualifications  geographic proximity  continuity or integration of production processes  common supervision and determination of labor relations policy  history of collective bargaining  desires of employees  extent of union organization  Whether the employees included in a proposed unit share a community of interests, not whether all employees sharing a community of interest are included in the proposed unit. b) American Hospital Ass’n v. NLRB – Petitioner hospital brought an action challenging the facial validity of § 9(b) of the National Labor Relations Act (Act), 29 U.S.C.S. § 159(a), arguing that a rule that respondent board formulated violated a congressional admonition to respondent to avoid the undue proliferation of bargaining units in the health care industry. The trial court agreed and enjoined enforcement of the rule. The lower appellate court
16 –Levy 2012

reversed, and the court affirmed. The court concluded that the statutory authorization "from time to time to make, amend, and rescind" rules and regulations expressly contemplated the possibility that respondent would reshape its policies on the basis of more information and experience in the administration of the Act. The court found that respondent's conclusion that, absent extraordinary circumstances, acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units, was based on a reasoned analysis of an extensive record. The court found that respondent justified its selection of the individual bargaining units by detailing the factors that supported generalizations as to the appropriateness of those units. 1) The board promulgated a substantive rule defining the employee units appropriate for collective bargaining in a particular line of commerce. The rule is applicable to acute care hospitals and provides that 8 units shall be appropriate in any hospital: registered nurses, physicians, professional (except registered nurses and physicians), technical employees, skilled maintenance employees, business office clerical employees, guards, nonprofessional employees (other than technical employees, etc.). 3 exceptions: (1) extraordinary circumstances – like when an application of the general rule produces a unit of five or fewer employees (2) cases in which conforming units already exist (3) cases in which a union seeks to combine two or more of the eight specified units 2) Rule: The NLRB has the authority under the NLRA to promulgate a general rule outlining the unit appropriate for an entire industry. 3) The general mandate granted to the NLRB by §6 is unquestionably sufficient to authorize the rule at issue unless limited by some other provision in the act. “in each case” under 9(b) is synonymous with “whenever necessary”. c. Single-location versus multi-location unit a) Presumption in favor of a single unit - a single plant unit, being one of the types listed in the statute as appropriate for bargaining purposes, is presumptively appropriate and this presumption has been widely followed in multi-location industries. b) Many employers carry on their businesses in a variety of geographical areas, with different stores and retail chains throughout the country. Where a union seeks to organize a company of this kind, it is possible to conceive a unit comprising all the employees in the region, state, municipality, or all the employees within a signal plant, office or store or a class of employees within a single store, office, or plant. 1) As noted, the union will seek a smaller bargaining unit, and the company will strive for a larger unit. The Board generally prefers small bargaining units also; however, §9(c)(5) does not require this nor indicate a preference for it. c) Bargaining Unit Determination: the primary responsibility for determining the appropriateness of a unit for collective bargaining rests with the Board. It is given broad discretion in determining bargaining units to assure to employees the fullest freedom in exercising the rights guaranteed by the Act. d. Multiemployer and coordinated bargaining a) A number of employers within a single are or industry may band together to bargain as a group within a single union, which represent employees at all of the companies. This is common, if not dominant bargaining pattern in such industries as clothing, construction, longshore and maritime, trucking and warehousing, coal mining and wholesale and retail trades. b) Withdrawal from Multi-Employer Bargaining Units: the Board’s rules for withdrawal from a multi-employer bargaining unit permit withdrawal prior to the date set for negotiation of a new contract or the date on which negotiations actually begin, provided that adequate notice is given. 1) Once negotiations for a new contract have commenced, however, withdrawal is not permitted unless there are unusual circumstances. a. Unusual Circumstances: will be found where an employer is subject to external financial pressures or where a bargaining unit has become substantially fragmented. 2) The Board has specifically held that an impasse is not such an unusual circumstance because an impasse is not sufficiently destructive of group bargaining to justify withdrawal. c) Interim Agreements: the parties in a multi-employer bargaining unit can implement interim agreements which allow business to continue until a final agreement between the parties is reached, but these must distinguished from an entirely new contract.

17 –Levy 2012

d) Charles Bonanno Linen Service, Inc. v. NLRB – The union, the employer, and a multiemployer association began bargaining sessions. The negotiators agreed upon a proposed contract which was rejected by the union. Several subsequent meetings failed to break the impasse, and the union initiated a selective strike against the employer. The employer hired permanent replacements for all of its striking drivers and notified the multiemployer association that it was withdrawing with respect to negotiations because of the ongoing impasse with the union. Soon after the employer's withdrawal, the multiemployer association ended its lockout and agreed on a new contract with the union. The employer refused to acknowledge the contract. The court agreed with the court of appeals that the employer attempting such a withdrawal committed an unfair labor practice in violation of §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act by refusing to execute the collective bargaining agreement later executed by the union and the multiemployer association 1) The issue is whether a bargaining impasse justifies an employer unilateral withdrawal from multiemployer bargaining unit. 2) Rule: An employer attempting such a withdrawal commits an unfair labor practice in violation of §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act (Act), by refusing to execute the collective-bargaining agreement later executed by the union and the multiemployer association. a. Right to withdraw – before negotiations begin by clear, unequivocal notice or after negotiation begin by mutual consent or unusual circumstances. b. Unusual circumstances where an employer is subject to extreme financial pressures or where a bargaining unit has become substantially fragmented c. An impasse in bargaining in a multiemployer unit is not an unusual circumstance justifying unilateral withdrawal by the Union or by an employer. As a recurring feature in the bargaining process, impasse is only a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force. d. Balance “conflicting legitimate interests” rather than economic weapons and bargaining strengths. c) General Electric Co. v. NLRB - Petitioner, a corporation which manufactured and sold electrical equipment and related products, refused to bargain with intervenor, an international labor union, because petitioner objected to the presence on intervenor's bargaining committee of representatives of other unions. Respondent, the National Labor Relations Board, held that petitioner's actions constituted a violation of §§ 8 (a)(1) and (5) of the National Labor Relations Act, 29 U.S.C.S. §§ 158 (a)(1), (5). The court ruled that a union's inclusion of members of other unions on its bargaining committee did not justify an employer's refusal to bargain. Further, the court held that in arguing that employees could not select members of other unions as representatives of their own choosing on a negotiating committee, petitioner undertook the burden of showing of a clear and present danger to the collective bargaining process. The court found that petitioner did not demonstrate the type of clear and present danger to the bargaining process that was required to overcome its burden and that intervenor had the right to include members of other unions on its negotiating committee. 1) Union Negotiating Committees - mixed union negotiating committees (i.e. the union in negotiations brings other union negotiators from different unions to the bargaining table, not to help in the formation of the collective bargaining agreement by as “experts in negotiation”) are not per se improper absent of showing of ulterior motive or bad faith, and an employer commits an unfair labor practice unless it bargains with the such a group. a. NLRA §8(b)(1)(B): the right to choose bargaining representatives is a right of the employees and a corresponding right of employers to choose whomever they want to represent them in formal negotiations is fundamental to the statutory scheme i. In general, either side, can choose as it deems fit a representative and neither side can control the other’s selection. ii. Exception: the freedom to choose a bargaining representative is not absolute, and exceptions arise in situations infected with ill-will which make bargaining impracticable. The employer has the burden to demonstrate, when objecting to the employee’s selection of a bargaining representative, to show a clear and present danger to the collective
18 –Levy 2012

bargaining process, which is a considerable burden. Clear and Present Danger Test: there are only a few things which constitute a “clear and present danger” to collective bargaining: • conflicts of interest; • someone as a bargaining representative who has expressed great animosity towards the employer; • a union established company in direct competition with the employer; • an ex-union official added to employer committee’s to put one over on the union; Or • Someone who has made racial or ethical slurs on or against the employer. b. As a general proposition, the union may include members of other unions on a negotiating committee because the union has an interest in using experts to bargain, whether the expertise on technical, substantive matters, or on the general art of negotiation. In filling that need, no good reason appears why the union may not look to outsiders, just as the employer is free to do. iii. C. REVIEW OF REPRESENTATION PROCEEDINGS a. Generally, the NLRA has no provision for direct judicial review of Board determinations, such as the appropriate bargaining unit, made in the course of representation proceedings: a) NLRA §10(f): provides that a party may have judicial review if “aggrieved by a final order” or the Board, however, decisions in representation proceedings are not “final orders.” b) Since such orders issue only in unfair labor practice cases, an aggrieved party must commit an unfair labor practice in order to obtain judicial review. c) NLRA §9(d): provides that ht record in the presentation case is to become a part of the record which is certified to the federal court of appeals in the unfair labor practice case. EX: the most common example is when the employers refusal to bargain with a union certified by the Board as bargaining representative, when the certification is based upon a determination of a bargaining unit or the validity of the union’s election victory which the employer wishes to challenge on review. In other words, the employer has to commit an unfair labor practice, usually refusal to bargain, to get into federal court. d) But note: 28 U.S.C. §1337 provides that federal courts have jurisdiction to hear any case arising under the laws of the United States. b. Direct Statutory Violation by NLRB: if an administrative agency, such as the NLRB, acts in excess of its delegated powers, then the inference is strong that Congress intended the statutory provisions of general jurisdiction to apply; in other words, a federal district court does not lack jurisdiction if the NLRB acts in direct contravention of a statutory mandate; although the NLRA does not give the court jurisdiction to review the Board’s bargaining unit certification determination. c. Leedom v. Kyne - Respondent brought suit in the district court against the National Labor Relations Board (Board) because the Board had exceeded its statutory power in including professional employees, without their consent, in a bargaining unit with nonprofessional employees in violation of 29 U.S.C.S. § 159(b)(1). The U.S. Supreme Court affirmed the order of the district court and held that the Board committed an unlawful action that inflicted an injury upon respondent. The district court had jurisdiction, under the National Labor Relations Act (Act), 29 U.S.C.S. § 159(b)(1), over an original suit to vacate a determination made by the Board. Apart from the review provisions of the Act, respondent was afforded a remedy. In addition, the Court did not make a review of the Board's determination, but struck down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. d. Boire v. Greyhound Corp. – (Almost never used kind of exception) Supreme Court held that the board's decisions in certification proceedings were reviewable only where the dispute concerning the certification's correctness resulted in a finding that an unfair labor practice was committed. The delay in challenging the validity of the board's orders in this type of proceeding was legislatively intended and was fully provided for under the Act. Although a narrow exception for review had been permitted where the board made a decision contrary to a specific prohibition in the Act, it was inapplicable because whether the employer possessed sufficient indicia of control did not involve a construction of the statute and did not affect any determination regarding independent contractor status, which was the employer's basis for alleging that the board had exceeded its delegated powers. a) This is a factual issue, unlike Kyne which depended solely upon construction of the statute.
19 –Levy 2012


SECURING BARGAINING THROUGH UNFAIR LABOR PRACTICE PROCEEDINGS Although it is much easier for the union to secure recognition through a Board conducted election, this is not the only method by which a union can secure bargaining status. The union can also secure bargaining status through unfair labor practice proceedings brought against the employer, typically upon claims that the employer improperly refused to bargain under §8(a)(5). Under this approach, the union must demonstrate majority status through authorization cards. A. NLRB v. Gissel Packing Co - The court consolidated appeals in four cases decided by two federal appellate circuits to resolve a conflict as to the extent of an employer's duty to bargain where a nascent union's representative status was basely solely on possession of union authorization cards. The Supreme Court adopted the National Labor Relations Board's (NLRB) position that the TaftHartley amendments to the National Labor Relations Act, 29 U.S.C.S. § 151 et seq., did not restrict employers' duty to bargain solely to unions whose representative status was certified after an NLRB election. The employees' possession of single-purpose authorization cards, without more, triggered the duty to bargain under the Cumberland Shoe doctrine. The NLRB was empowered to order bargaining where an employer committed unfair labor practices that made holding a fair election unlikely. U.S. Const. amend. I protected employers' right to speak to employees about unionization efforts without committing an unfair labor practice as long as no threats of reprisal or promises of benefits were made with the intent of restraining unionization. The Court reversed the Fourth Circuit decisions and affirmed the First Circuit decision. a. With regard to the issuance of a bargaining order for an employer's rejection of a union authorization card majority, and his refusal to bargain, where the employer at the same time committed independent unfair labor practices tending to interfere with a representation election, the National Labor Relations Board is not restricted to issuing such orders only in "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices, but may also issue a bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. b. The Board's authority to issue such an order on a lesser showing of employer misconduct being particularly appropriate where there is also a showing that at one point the union had a majority, in which case effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior; under the Board's remedial power, there is another category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. c. Gissel bargaining orders warranted in the 2 categories: a) Category I – exceptional cases - Outrageous and pervasive ULPs, that are so coercive that fair election is not possible b) Category II – less extraordinary - Co. ULP’s undermine union majority strength and impede fair election B. The Preference for Elections– Board prefers “certification” through election under §9(c) (more reliable, provides union with greater safeguards), ut will also allow for “designation” or “selection” of union by other means (especially when an employer’s ULPs have made an election a difficulty). C. Gourmet Foods, Inc. – D. Linden Lumber Div., Summer & Co. v. NLRB - The union obtained authorization cards from a majority of petitioner's employees and demanded that it be recognized as the collective-bargaining representative. The union filed a petition with the Board for an election, but later withdrew it when the employer declined to enter a consent election agreement or abide by an election. The employer declined the union's renewed demand for collective bargaining. The union then struck for recognition as the bargaining representative and filed a charge of unfair labor practice based on a refusal to bargain. The Board held that the employer was not guilty of an unfair labor practice under § 8(a)(5) on the basis of its refusal to accept evidence of majority status other than the results of a Board election. The court of appeals ruled that the employer should have tested out its doubts by petitioning for an election. The United States Supreme Court held that unless the employer engaged in an unfair labor practice that impaired the electoral process, the union with authorization cards purporting to represent a majority of the employees, refused recognition, had the burden of taking the next step in invoking the Board's election procedure. a. No §8(a)(5) violation for employer to refuse to bargain with union that has card majority if employer hasn’t committed ULPs – union faced with employer who doesn’t want to bargain under card majority can either file for election or press ULPs charges under Gissel (the former takes around 45 days and the latter can take 388)

20 –Levy 2012

b. Even though employer had independent knowledge, union seeking recognition has burden of filing for election petition (§9(c)(1)(A)(i)). E. Brooks v. NLRB – The Board conducted a representation election and certified the union as the exclusive bargaining representative. A week after the election and the day before the certification, the employer received a letter stating that 9 of the 13 employees were not in favor of being represented by the union. The employer refused to bargain with the union. The Board found that the employer had committed an unfair labor practice. The circuit court of appeals enforced the Board's order to bargain. The U.S. Supreme Court granted certiorari and affirmed. The employer could not legally refuse to bargain with the elected bargaining representative on the basis that a majority of employees had deserted the union. If the employees were dissatisfied, they could submit a grievance to the Board. If an employer had doubts about his duty to bargain, it was the employer's responsibility to petition the Board for relief while continuing to bargain in good faith with the elected representative. The Act had specific procedures to follow, all in the name of industrial peace. Allowing employers to refuse to bargain based on the wishes of their employees would have destroyed that goal. a. Brooks received letter a day before union certification, from 9/13 employees who claimed they didn’t want the union – Brooks refused to bargain and was deemed to violate §§8(a)(1) & (5) – to balance interests of employers and employees, NLRA allows: 1)§9(c)(1)(A)(ii) – employees to petition Board for decertification election; 2)§9(c)(1)(B) – employer in doubt of majority of any one union when many claim it, can ask Board for election; 3)§9(c)(3) – no new election within bargaining unit until at least a year after the old one – giving people the chance to contest election when under one year has passed would only delay bargaining and allow angry parties to slow the process (Brooks had duty to bargain). a) Removal of Recognition from Labor Org. “Designated” or “Selected” - voluntary recognition constitutes a bar to an election for a “reasonable time” in order for parties to reach agreement on the first contract (this is typically one year – same thing). b. The National Labor Relations Act was amended to provide that: a) Employees could petition the National Labor Relations Board for a decertification election, at which they would have an opportunity to choose no longer to be represented by a union b) an employer, if in doubt as to the majority claimed by a union without formal election or beset by the conflicting claims of rival unions, could likewise petition the Board for an election c) after a valid certification or decertification election had been conducted, the Board could not hold a second election in the same bargaining unit until a year had elapsed and d) Board certification could only be granted as the result of an election though an employer would presumably still be under a duty to bargain with an uncertified union that had a clear majority. c. Majority union status: a) Company’s duty to bargain b) Certified bar - 1 yr conclusion rebuttable presumption c) CBA – 3 yr conclusive rebuttable presumption. CBA can bar petitions for decertification for three years max – contract required to be in writing, and contain substantial terms and conditions of employment to stabilize the bargaining relationship, including a termination date d) Voluntarily recognized 6 months to conclusive presumption - > rebuttable 1 yr. F. Bartenders Association v. Local – Notes case. Upon the expiration of the “certification year”, the presumption of majority status continues, but it becomes rebuttable G. Employee-Initiated Decertification Petitions a. Employer Options when Believes Union No Longer Enjoys Majority Support: under longstanding precedent of the NLRB, an employer who believes that an incumbent union no longer enjoys the support of a majority of its employees it has three options: a) request a formal, Board supervised election; b) withdraw recognition for the union and refuse to bargain; and c) to conduct an internal poll of employee support for the union. The NLRB has consistently held that the latter two are unfair labor practices unless the employer can show it had a “good faith reasonable doubt” about the union’s majority support. b. Allentown Mack Sales and Service, Inc. v. NLRB - The NLRB found that the employer violated the NLRA by holding a poll to assess employee support for the union without an "objective reasonable doubt" about the union's majority status. The employer appealed, challenging the facial rationality of the NLRB's test for employer polling and its application of that standard to the facts. The court reversed the judgment and remanded the case with instructions to deny enforcement. The court held that the NLRB's "reasonable doubt" test for
21 –Levy 2012

employer polls was facially rational and consistent with the NLRA, but the NLRB's factual finding that the employer lacked such a doubt was not supported by substantial evidence. On the evidence presented to the NLRB, a reasonable jury could not have found that the employer lacked a genuine, reasonable uncertainty about whether the union enjoyed the continuing support of a majority of unit employee. a) If rebuttable presumption of union majority status: 1) Good faith reasonable doubt based on objective evidence– poll – genuine reasonable uncertainty 2) Good faith reasonable doubt based on objective evidence – election – good faith reasonable uncertainty 3) Withdraw recognition – proof = actual loss of majority union support. (Levitz case) b) Nothing “arbitrary or capricious” about having the same high standard for all three (given disruptive nature of polling, Board wants to severely limit it) – however, when considering “good faith reasonable doubt,” Board cannot purport to be engaged in simple fact-finding but in reality prescribe what inferences it will accept and reject (must consider direct, as well as circumstantial evidence available to employer). c) In this case, the company had a genuine reasonable uncertainty to conduct a poll, so there were no unfair labor practices d) Rehnquist Dissent – disputes that “reasonable doubt” test is consistent with the NLRA – standard for valid polling is way too high and effectively removes most of its value – standard for unilateral withdrawals should definitely be higher, especially given that after a poll, union can still petition for election. e) Breyer Dissent – disagrees with finding that there was “good faith” doubt in this case – would give more leeway to Board’s factfinding authority –Board has every discretion to prescribe which evidence is more likely, and which is less likely to show an “objective reasonable doubt.” H. Levitz Furniture Co. –Levitz destroyed unitary standard – now requires: a. Decertification petition for new election – “reasonable uncertainty” b. For unilateral withdrawal of recognition – loss of majority in fact. a) An employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees, with the burden of proof resting with the employer to counter the presumption of continuing majority support. 1) Such as antiunion petitions 2) Firsthand statements by employees. c. For polls – old “good faith doubt” standard left untouched. d. Purpose – with more lenient election standard, Board hopes to encourage more elections while still allowing for acting unilaterally if evidence strongly supports position. ___________________________________________________________________________________________________________ ______________________________________ PART 3. NEGOTIATION OF THE COLLECTIVE BARGAINING AGREEMENT I. EXCLUSIVE REPRESENTATION OF THE MAJORITY RULE Congress has to a considerable degree replaced a bargaining structure based On voluntarism and economic force with one based on legal compulsion. This policy is reinforced by a host of federal and state statutes that limit the managerial control and promulgate substantive rules regarding the workplace.  NLRA §8(a)(5) and 9(a): unequivocally impose an obligation on the to recognize the bargaining representative designated or selected by a majority of its employees in the appropriate bargaining unit.  NLRA §8(b)(3)  NLRA §8(d): Collective Bargaining: to bargain collectively is the performance of a mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder… A. J.I. Case Co. v. NLRB – Petitioner offered its employees individual employment contracts, which some of the employees accepted. The contracts governed certain employment conditions. A union was certified and won an election to become the exclusive bargaining representative of petitioner's employees. Petitioner refused to bargain with the union concerning matters contained within the employment contracts it had with its employees. Petitioner sent a circular to its employees asserting the validity of the individual contracts. Respondent held that petitioner had violated the National Labor Relations Act by refusing to bargain collectively. The court of appeals granted an order of
22 –Levy 2012

enforcement. The United States Supreme Court affirmed. Petitioner's arguments that the individual contracts warranted refusal to bargain and its actions in telling employees by circular letter that the individual contracts had legal effect were improper. Individual contracts were not prohibited in all circumstances, but they could not act as a waiver of any benefit to which an employee was entitled to under a collective agreement, nor could they be used to diminish an employer's duty to bargain with properly elected unions. a. Since the collective trade agreement is to serve the purpose contemplated by the act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled to under the trade agreement. b. Contract in Labor Law - a Company, which has granted individual contracts to its employees, had a duty to bargain with the union, if the union is elected by the workers, because individual contracts cannot be excepted from the NLRA and must heed to collective contracts if the union is authorized by a majority vote and the union is certified or recognized as the exclusive bargaining representative of the employee. Hence, §8(a)(5) requires the employer to bargain, and failure to do so is an unfair labor practice. c. Individual Employment Contracts - individual contracts, not matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the NLRA looking to collective bargaining; nor to exclude a contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. d. Majority Rule - the workman is free, if he values his own bargaining position more than that of the group, to vote against representation; but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. e. Exclusive bargaining representative – company cant circumvent union to deal with individual employees. Employees represented by union can’t circumvent union to bargain directly with the company. f. Union meets duty of fair representation if conduct is not arbitrary, discriminatory, or in B. Emporium Capwell Co. v. Western Addition Community Organization – The employer signed a collective bargaining agreement with the union. The agreement established grievance processes for claims of contract violations, including violations of an antidiscrimination clause. Some minority union employees initiated grievance procedures under the contract for racial discrimination, but ultimately several employees decided that the contract procedures were inadequate to handle the nature and depth of the grievance, so the employees picketed and instituted a boycott against the employer in an effort to engage in separate bargaining. After the employees were discharged, the local civil rights association filed suit, alleging that the employer violated § 8(a)(1) of the NLRA. The lower court reversed the dismissal of the complaint. The United States Supreme Court stated that the employees' concerted activities to engage in separate bargaining could not be pursued at the expense of the orderly collective bargaining process contemplated by the NLRA. Even if the employer's conduct violated Title VII of Civil Rights Act of 1964, the conduct was not entitled to affirmative protection from the NLRA. The judgment was reversed a. Individual Negotiation with Employer - despite the national labor policy against racial discrimination in employment, the NLRA does not protect concerted activity by a group of minority employees (2-persons in this case) to bargain with their employer over issues of employment discrimination in circumvention of their elected representatives. a) Policy - in any one or two individuals was allowed to directly negotiate with the employer, it would undermine the scheme of collective bargaining. In addition, it hurts and fragments the union, and places undue burden on the employer by making him choose which employees get priority and on his time. b) In securing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority b. Right of Minority Bargaining Under §7? Court says no - §7 meant to protect “collective” rights of employees with understanding that the superior strength of some might be subordinated to the interests of the majority – cannot be subject to tyranny of minority desires. c. Duty to Bargain Under §8(a)(5) Subject to §9(a) – employer only has duty to bargain with “majority” representative – allowing minority grievances would also divide bargaining strength of majority. C. The Limits of the Majority Rule

23 –Levy 2012

a. Emporium Capwell and JI Case make clear that the interests and wishes of individuals and minority groups within the bargaining unit must be subordinated to the exclusive-bargaining status of the majority labor organization. However the Board and NLRA have set limits on majority rule in order to obtain more equitable results, such as: a) In determining the appropriate bargaining unit, the Board will exclude employees w/ a conflict of interest or who lack a community of interest. The unit will then be able to select their own majority representative or no representative at all; b) While the union has broad discretion, it also has a duty bargain fairly on behalf of the employees, including non-members, and failure to do so can constitute an unfair labor practice; c) The employees can exercise their rights by ousting a union through a decertification election; d) The Landrum-Griffin Act provides protective standards and procedures to assure proper conduct for union internal affairs; e) Unit members will not automatically become members of the union, i.e., a unit member must become a union member only if the employer and union negotiate a proper collective bargaining provision making membership a condition of continued employment; f) Non-mandatory bargaining subjects may be adjusted by individual or minority bargaining; g) NLRA §9(a) permits employees to present and process grievances directly with the employer; and h) Duty of fair representation: is one of the most significant limitations upon a union’s power to accommodate interests within the bargaining unit. Although adopted under the Railway Labor Act, the duty of fair representation has been extended to unions in industries covered by the NLRA. Breach of the duty of fair representation is an unfair labor practice. D. Steele v. Louisville & Nashville R. Co. a. Duty of Fair Dealing - the aim of Congress [in acting the Railway Labor Act/applicable to NLRA too] was to impose on a bargaining representative of a craft or class of employees, the duty to exercise fairly the power conferred upon it in behalf of those for whom it represents, without hostile discrimination towards any of them. a) So long as the labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty of fair dealing which is inseparable from the power of representation conferred upon it, to represent the entire membership of the craft. b) While the statute does not deny such a bargaining labor organization the right to determine eligibility of its members, the Railway Labor Act imposes on the union, in collective bargaining and in making contracts with the carrier, to represent the non-union or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith. c) Whenever, necessary to that end, the union is required to consider requests of non-union members of the craft and expressions of their views with respect to collective bargaining with the employer an to give them notice of, and opportunity for hearing upon the proposed action. b. Remedies for Breach of Duty of Fair Dealing - the union (representative) which discriminates may be enjoined from doing so and its members may be enjoined from taking the benefit of such discriminatory action a) The employer is also not permitted or bound to take a benefit from a contract, which the bargaining representative is prohibited by statute from making. b) In both cases, the right asserted which is derived from the duty imposed by statute on the bargaining representative is a federal right implied from the statute and the policy behind its adoption. c) In the absence of any administrative remedy, the right may be asserted in federal court. E. Ford Motor Co. v. Huffman a. Limitations on the Duty of Fair Representation - the union has the discretion to make reasonable distinctions among employees, such as, pertaining to competency, skill, and such but cannot be for an impermissible purpose, such as discrimination. Seniority based on military duty was within a reasonable bounds of relevancy. II. THE DUTY TO BARGAIN IN GOOD FAITH A. NLRB v. A-1 King Size Sandwiches, Inc. - A-1 ordered to bargain and did, but agreement was never reached – question whether company’s conduct shows a lack of intention of concluding a CBA (which would amount to a refusal to bargain under §8(a)(5)) – decision – it’s clear from the proposals and positions the company took, that they insisted on unilateral control over almost all major terms and conditions of employment – responses to union objections were submitting clauses that gave

24 –Levy 2012




E. F.

them even broader powers (evidence that Co. had little desire to work towards agreement) – Board was correct to find bad faith in company’s dealings. The duty to disclose information – NLRB v. Truitt Mfg Co. – can NLRB find that employer does not bargained in good faith where employer claims it cannot afford higher wages but refuses to provide evidence to substantiate this claim? Decision – Board has a right to consider employer’s refusal to give – good faith requires that claims made are honest claims and therefore requires proof if the claim is important enough to present during bargaining – in this case, valid to find that not providing proof of financial situation shows bad-faith bargaining (although not in all cases). a. Dissent – “good faith” is not consistent with resolve not to budge from initial position, but it can be consistent with a stubbornness during the process, even if it may seem unreasonable to an outsider – Board decision did not rest on totality of circumstances, but only on issue over disclosure (Truitt tried to reach an agreement by offering a small wage increase). b. Employer’s Financial Records: “Competitive Disadvantage” vs. “Inability to Pay” – what triggers relevancy of employer’s financial documents under Truitt? Following ruling in Nielsen II, Board distinguishes between: a) Union requests following employer statements of actual inability to pay for union demands (Truitt situation – disclosure required); b) Union requests following employer statements of “economic difficulties” (or “competitive disadvantage,” other situations) that would result from following union demands (disclosure not required) – perhaps might encourage employer to be oblique as a result so as to avoid disclosure (might result in miscommunications). Detroit Edison Co v. NLRB – employees that applied for a job were denied because they didn’t pass a battery of aptitude tests – Board orders employer to turn over tests, despite employer desire not to because of disseminating test questions and answers, but restricts content to only material needed to deal with the grievances – decision – USSC reverses – Board remedy does not safeguard the tests, especially considering that union would not be liable for inadvertent leaks – Board does not have power to say union interests predominate over all other interests (there are situations in which an employer’s conditional offer to disclose may be warranted). NLRB v. Insurance Agents’ International Union – a. Mandatory – duty to bargain, right to insist to impasse, rt to use economic force a) Germane to work environment b) Not at core of entrepreneurial control. b. Permissive – ok to bargain but no duty to bargain c. Not protected – tactics not illegal, slow downs Impasse Procedures - §8(d)(1&3) require notices of termination or modification of existing contracts - §8(d)(4) provides 60-day cooling off period in which neither strikes or lockouts can occur – failure to comply with procedures constitutes unlawful refusal to bargain. NLRB v. Katz - – is it a violation of duty to bargain for employer to unilaterally institute changes regarding matters that are subjects of mandatory bargaining under §8(d) and which are being discussed during collective bargaining (ex. granting merit increases, announcing sick-leave policy)? Board said yes – decision – USSC upholds Board ruling. a. Duty to Bargain – under §8(d), duty to “meet…and confer in good faith with respect to [terms and conditions of employment]” – even if there is good faith, can still violate it if you fail to negotiate in fact – that’s what employer did here by instituting unilateral changes, he simply took those topics off the bargaining table (ex. sick leave was being discussed in bargaining but employer’s unilateral actions frustrated efforts to reach a bargain) – unilateral action during negotiations is bad faith. b. Allowed Unilateral Actions – unilateral actions allowed during impasse (Litton) – must be an “overall” impasse that covers entire CBA as opposed just impasse over piecemeal pieces of it (Duffy Tool) – although Nabor Trailers also establishes right of employer to make unilateral changes, even in the absence of impasse, if he notifies union and gives them a chance to respond. Why Allow Unilateral Changes During Impasse? Board could simply require that during impasse, employer has responsibility to maintain status quo until there’s a bilateral agreement on changes – Board argument is that unilateral action during impasse moves negotiations along (but then again, doesn’t this also give the employer more economic leverage). c. Implementation of Less Attractive Proposals – clearly employer is allowed to unilaterally implement its last offer to union before impasse, but can it implement less attractive offers? Telescope Casual Furniture Co. holds that a less attractive offer can be used as a bargaining tactic as a means of pressuring the union to accept the primary proposal. d. Other Legal Consequences of Impasse – suspends duty to bargain.

25 –Levy 2012

e. Expired CBAs and Impasses – expired CBAs continue to govern the employment relationship and there’s still a requirement to bargain to impasse over renewal before employer can unilaterally make changes. f. No-Strike Clauses – under Metropolitan Edison a waiver of statutory rights must be “clear and unmistakable” – therefore, McClatchy Newspapers, Inc. ruled that it was probably illegal for employer to unilaterally implement no-strike clause during impasse, even if this was part of his final offer to the union. III. SUBJECTS OF COLLECTIVE BARGAINING

A. NLRB v. American National Insurance Co - Objecting to the union's proposal of unlimited arbitration in a collective bargaining agreement, respondent employer proposed a management functions clause listing certain matters as responsibility of management and excluding such matters from arbitration. Holding that respondent's action in bargaining for inclusion of any such clause constituted per se violations of § 8(a)(1), (2) of the National Labor Relations Act (Act), 29 U.S.C.S. § 151 et seq., petitioner NLRB ordered respondent to bargain collectively with the union and prohibited bargaining for any management functions clause covering a condition of employment. The court of appeals denied enforcement of that portion of the order directed to the management functions clause and held that the Act did not preclude an employer from bargaining for inclusion of any management functions clause in a labor agreement. On certiorari, the Court affirmed, holding that the duty to bargain collectively was to be enforced by the good faith bargaining standards of § 8(d) of the Act to the facts of each case, rather than by prohibiting all employers in every industry from bargaining for management functions clauses altogether. B. NLRB v. Wooster Division of Borg-Warner Corp. - Respondent employer insisted that collective bargaining agreements with its employees include a ballot clause calling for a pre-strike vote and a recognition clause excluding the international union as a party to the agreement and substituting a local affiliate. Petitioner NLRB held that respondent's insistence constituted a refusal to bargain in violation of § 8(a)(5) of the National Labor Relations Act. In response to petitioner's motion to enforce its order, the appellate court set aside that portion relating to the ballot clause but upheld the order relating to the recognition clause. In affirming in part and reversing in part, the Court concluded that respondent had met the requirements of § 8(a)(5), (d) as to the subjects of mandatory bargaining. However, that did not enable respondent to refuse to enter into agreements on the ground that they did not include some proposal that was not a mandatory bargaining subject. Such conduct constituted a refusal to bargain about subjects within the scope of mandatory bargaining; respondent could not lawfully insist upon either the ballot or recognition clauses as a condition to any agreement. C. The mandatory-permissive distinction D. Fibreboard Paper Products Corp. v. NLRB – (contracting out - mandatory) Petitioner employer notified the union for its maintenance workers that it would be contracting out the maintenance work upon expiration of the current collective bargaining agreements. The union filed unfair labor practice charges against petitioner, alleging violations of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act (Act). The National Labor Relations Board held that petitioner's failure to negotiate with the union constituted a violation of § 8(a)(5) because contracting out work, even if done for economic reasons, was a mandatory subject of collective bargaining. On appeal, the district court granted the board's petition for enforcement. The court granted certiorari to consider whether petitioner was required by the Act to bargain with a union representing some of its employees about whether to contract out work in which those employees had been engaged. The court held that contracting out of work was a condition of employment which was a mandatory subject of collective bargaining under the Act. The board was charged with enforcing the Act and had the authority to take any action necessary, including reinstatement of employees. a. Around the time of expiration of the union contract, employer decides to contract certain work to a subcontractor. Union files ULP under §8(a)(5) that employer violated duty to bargain. NLRB: Although company decision was based on economics and not anti-union animus, it was a ULP not to discuss issue with the union. Employees must be reinstated with backpay. Held: Board decision upheld. b. Terms and conditions of employmen - covers the termination of said employment (which is the result of subcontracting). Whether or not you have employment is a term & condition of employment. BUT, this doesn‘t make sense as you don‘t have terms and conditions of employment unless you have employment. c. Including contracting out within definition of mandatory subject of bargaining will fulfill NLRA‘s goal of labor peace

26 –Levy 2012

d. Only the exact kind of contracting out that happened here is subject to duty to bargain...replacement of employees in an existing bargaining unit with those of an independent contractor to do the same work, under similar conditions of employment e. J. Stewart’s Concurrence (now the law): Employer has no duty to bargain over decisions that lie at the ―core of entrepreneurial control‖ as they are fundamental to the basic direction of a corporate enterprise (i.e. whether management wants to replace workers with machines.) Terms and conditions of employment refer to the physical dimensions of the working environment. Whether there is employment is not always a condition of employment (sometimes the connection is too attenuated). E. Waiver by contract or past practice F. First National Corp. - (partial closing – use balancing analysis, likely conclude that it is not mandatory) Petitioner provided housekeeping for commercial customers. Petitioner contracted with a nursing home, and the employees at the home elected a union as a bargaining agent. Petitioner began to lose money under the nursing home contract and terminated the employees. In doing so, petitioner ignored the union's request to delay the terminations for the purpose of bargaining, asserting that the terminations were purely a matter of money. The union filed an unfair labor practice charge against petitioner, alleging violations of §§ 8 (a)(1) and (5) of the National Labor Relations Act, 29 U.S.C.S. §§ 158(a)(1) and (5). The appellate court held in favor of the union reasoning § 8(d) created a presumption in favor of mandatory bargaining. The Court rejected the presumption analysis and held the harm likely to be done to petitioner's need to operate freely in deciding whether to shut down part of its business purely for economic reasons outweighed the incremental benefit that would be gained through the union's participation in making the decision. Therefore, the decision was not one over which Congress mandated bargaining pursuant to § 8(d). The court reversed the judgment. a. Although parties are free to bargain about any legal subject, Congress has limited the mandate or duty to bargain of wages, hours, and other terms and conditions of employment. b. Always going to have a duty to bargain over the effects. c. Held: The decision to terminate the contract was not part of §8(d)'s ―terms and conditions over which Congress has mandated bargaining. Mandatory subjects of bargaining are topics that settle aspects between employers and employees. d. 3 different types of subjects of bargaining? a) Typical conditions of employment b) choice of advertising, product design, financing & investment conditions: these decisions are too attenuated from employment to constitute a mandatory subject of bargaining c) Economic viability. a. Partial closings – duty to bargain management decisions with substantial impact on employment only if benefits for collective bargaining outweigh burden on conduct of business. b. Balancing test - in view of employer‘s need for unencumbered decision making, bargaining over management decisions that have a substantial impact on employment should only be required if the benefit for labor- management relations and the collective bargaining process outweighs the burden placed on the conduct of business G. Union Food & Commercial Workers, Local 150-A v. NLRB - Petitioner labor union sought judicial review of respondent federal labor board's refusal to consider whether intervenor corporate employer breached federal labor laws by failing to negotiate with petitioner concerning the relocation of certain industrial operations. Intervenor also sought judicial review of respondent's ruling that it did breach its duty when it failed to negotiate a second relocation. The district court held that respondent erred when it refused to review petitioner's claim that facts showed intervenor violated federal labor law when it failed to negotiate one relocation, given federal labor law amendments and United States Supreme Court precedent, with a remand for full consideration being required. The court also held that, as to intervenor's claim, respondent ruled properly that intervenor had breached its legal duty to negotiate, given evidence presented to respondent at a hearing and the aforementioned legal conclusions a. 3 layer test: a) First, the test recognizes a category of decisions lying "at the core of entrepreneurial control," which employers may unilaterally take action. 1. The test exempts from the duty to bargain relocations involving: 1) A basic change in the nature of the employer's operation, 2) A change in the scope and direction of the enterprise, 3) Situations in which "the work performed at the new location varies significantly from the work performed at the former plant," or

27 –Levy 2012

4) Situations in which "the work performed at the former plant is to be discontinued entirely and not moved to the new location." b) Whether "labor costs (direct and/or indirect) were … a factor" in the employer's relocation decision. c) The Board permits an employer to relocate without negotiating where its union either would not or could not offer sufficient concessions to change its decision. 1. Impossibility exception--a provision allowing an employer to eschew negotiations only if its union could not possibly have changed the relocation decision no matter how accommodating the union might have been at the bargaining table. b. Factors: relocating- mandatory bargaining subject. c. General Counsel BOP – relocate= no change in nature of operation d. CO rebut – work varies significantly, old work discontinued, change scope of operation. e. CO defense – decision did not involve labor costs (then there would be no need to bargain) or futile or impossible H. Regal Cinemas, Inc v. NLRB – I. Dorsey Trailers, Inc v. NLRB – this will be on the exam ___________________________________________________________________________________________________________ ______________________________________ PART 4. STRIKES, PICKETING, AND BOYCOTTS I. Rights of Employee Protestors Under the NLRA A. Protected and Unprotected Concerted Activity a. NLRB v. City Disposal Systems, Inc. - A garbage truck driver employed by respondent was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. The governing collective-bargaining agreement provided that employees were not obligated to drive unsafe trucks. Petitioner, the National Labor Relations Board (NLRB), held that the employee's refusal was concerted activity within the meaning of 29 U.S.C.S. § 157, and that his discharge was, therefore, an unfair labor practice under 29 U.S.C.S. § 158(a). The appellate court found that the employee's refusal was an action taken solely on his own behalf and, therefore, not a concerted activity. The court granted certiorari to resolve a conflict in the circuits on this issue. Concluding that petitioner's decision was reasonable, the court reversed the appellate court and remanded. According to the court, when the employee refused to drive a truck he believed to be unsafe, he was in effect reminding his employer of the commitment it made to all employees in the collective bargaining agreement. Thus, his action constituted concerted activity b. Eastex, Inc. v. NLRB – Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during nonworking time that urged employees to support the union. The newsletter urged employees to lobby against incorporation of "right to work" provisions into the state constitution and criticized a Presidential veto of an increase in federal minimum wage. The question presented was whether petitioner's refusal to allow the distribution violated § 8 (a)(1) of the National Labor Relations Act, 29 U.S.C.S. by interfering with, restraining, or coercing employees' exercise of their right to engage in concerted activities for the purpose of mutual aid or protection. The Supreme Court affirmed the appellate court's decision and held petitioner violated NLRB when it banned employees' distribution of the newsletter. The Court held that the employees' appeal to legislation to protect their interests as employees was within the scope of the "mutual aid and protection clause." The Court noted subjects in the newsletter could have had a significant impact on the union's strength at bargaining and on the level of wages negotiated with petitioner a) §7 Protection if Concerted 1) Legitimate Purpose 2) Legitimate Means b) Unprotected – Company right to discipline/discharge 1) Indefensible 2) Reprehensible 3) Disloyal c. “Unprotected” concerted activity d. NLRB v. Local 1229, IBEW - A union and an employer, which operated a broadcasting company, were in the midst of contract negotiations. The employees, who worked as technicians, attacked the quality of the employer's television broadcasts by disseminating

28 –Levy 2012

handbills. The handbills made no reference to an on-going labor dispute. The employer discharged the technicians who were responsible for the distribution of the handbills. On appeal, the Court framed the issue was simply whether the employees were discharged for cause. The Court reasoned that nothing could be further from the purpose of the Taft-Hartley Act than to require the employer to finance the employees' attack on the employer who continued to pay their salaries. The fact that a labor dispute existed contemporaneously did not help the employees. The Court believed that the handbills attacked the employer's policies without any relation to the labor controversy. 1) § 10(c) of the Taft-Hartley Act expressly provides that no order of the National Labor Relations Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. There is no more elemental cause for discharge of an employee than disloyalty to his employer. e. Five Star Transportation, Inc. -The corporation argued that its refusal to hire the drivers who wrote critical letters did not qualify as an unfair labor practice under the National Labor Relations Act. The corporation asserted that § 8(a)(1) of the NLRA did not apply to the instant action because no employer-employee relationship existed between the corporation and the drivers. The appellate court dismissed the corporation's first argument because the term "employee" included any employee, and was not be limited to the employees of a particular employer. It was undisputed that the drivers were employees of the corporation's competitor when they wrote their letters to the school district, and the corporation was an employer. The appellate court rejected the corporation's argument that the National Labor Relations Board erred in finding the drivers to be protected by the Act because the letters they sent were not "concerted activity" under § 7 of the NLRA since the fact that the drivers' letters spoke to the same concerns raised at their union meeting gave credence to the NLRB's finding that they did not act alone. f. Elk Lumber Co. – The plan of decreasing their production to the amount they considered adequate for the pay they were then receiving constituted a refusal on their part to accept the terms of employment set by their employer without engaging in stoppage, but to continue rather to work on their own terms g. Hypothetical BMW: %20Decision.pdf B. Employer Responses to Concerted Activities a. NLRB v. Mackay Radio and Telegraph Co - Respondent employed upwards of 60 supervisors, operators, and clerks, many of whom were members of a local union. Certain members of the union entered into a strike against respondent, but returned to work a few days later. Upon returning to work, the employees noticed that they had been replaced with new employees. Petitioner National Labor Relations Board charged that respondent had violated 29 U.S.C.S. § 158(1) and (3), which was part of the National Labor Relations Act. The board concluded that respondent had engaged in unfair labor practices, and ordered respondent to cease and desist from discharging individuals who had engaged in union activities. The appellate court denied enforcement of petitioner's order, and held that respondent had not engaged in unfair labor practices. Certiorari was granted, and the Court reversed the lower court's decision. The Court held that the men who struck still continued to be respondent's employees within the meaning of the Act, and respondent did indeed engage in unfair labor practices when it replaced the striking men with new employees a. NLRB v. Erie Resistor Corp - The Supreme Court reversed a decision which held that in the absence of a finding of specific illegal intent, a legitimate business purpose was always a defense to an unfair labor practice charge. The super-seniority respondent extended to strikers who left the strike and returned to work by its very terms operated to discriminate between strikers and nonstrikers, both during and after a strike, and had a destructive impact upon the strike and union activity. Petitioner was entitled to treat respondent's case as involving conduct that carried its own indicia of intent and that was barred by the National Labor Relations Act, 29 U.S.C.S. § 158, unless saved from illegality by an overriding business purpose justifying the invasion of union rights. The Supreme Court agreed that the business purpose of keeping production going was insufficient to insulate the super-seniority plan from § 158. Therefore, because respondent's judgment that the claimed business purpose would not outweigh the necessary harm to employee rights, it properly put aside evidence of respondent's motive and declined to find whether the conduct was or was not prompted by the claimed business purpose. a) Conduct which on its face appears to serve legitimate business ends in these cases is
29 –Levy 2012





wholly impeached by showing of an intent of an intent to encroach upon protected rights. NLRB v. Truck Drivers Local Union No. 449 (Buffalo Linen) - The association was comprised of 8 employers that had a multi-employer collective bargaining agreement with the union. After the union and the association began contract negotiations, the union authorized a whipsaw strike against one of the employers. The remaining employers laid off their union members under a temporary lockout. After a new contract was reached, the laid off employees were returned to work. The union then filed unfair labor charges against the employers for the lockout. The lower appellate court found that the temporary lockout constituted an unfair labor practice. In reversing the lower appellate court's judgment, the court held that in the circumstances of the case, the NLRB correctly balanced the conflicting interests in deciding that a temporary lockout to preserve the multi-employer bargaining basis from the disintegration threatened by the union's strike action was lawful. The court noted that a temporary lockout may lawfully be used as a defense to a union strike tactic that threatened the destruction of the employers' interest in bargaining on a group basis i. Defensive Lockouts permitted when economic hardship is shown. Must balance conflicting interest. ii. American Ship Building Co. v. NLRB - A contract between a union and the employer expired when the employer locked out the union. The employer asserted that the lockout was necessary because the union had struck many times before and because the employer was concerned that the union would strike during the busy season. The lower court enforced the order of the NLRB, which had held that the employer had committed unfair labor practices under § 8(a)(1), (3) of the NLRA. The court reversed, holding that the employer had not violated § 8(a)(1) because there was no evidence that the employer was hostile to the collective bargaining process and because the union's right to bargain collectively did not include the right to control the timing and duration of work stoppages. Because the court found that the employer had not acted on the basis of a proscribed purpose and that the purpose and effect of the lockout were simply to bring economic pressure upon the union, the court held that there was no violation of § 8(a)(3) i. Lockout to bring economic pressure on the union is permissible but it is limited ii. An employer who locks out an employee can only hire temporary replacements not permanent replacements. NLRB v. Great Dane Trailers, Inc. – Under the terms of a collective bargaining agreement, an employer agreed to pay vacation benefits to employees who worked more than 1,525 hours in the preceding year, to be paid on or near July 1. The agreement expired, and the employees engaged in a strike. A number of the striking employees demanded their accrued vacation pay. The employer refused and a short time later announced that it would grant the vacation benefits to all employees who returned to work before July 1. The union filed an unfair labor practice charge. The Board found that the employer's action constituted discrimination that would discourage union membership and was an unlawful interference with a protected activity. The Board ordered the employer to cease and desist from its unfair labor practice and to pay the accrued vacation benefits to the striking employees. The lower court refused to enforce the order and held that there was no proof of an anti-union motivation on the employer's part. The Court reversed and enforced the Board's order. The Court held that the employer's discriminatory conduct was inherently destructive of important employee rights and that no proof of anti-union motivation was required. a) GC BOP – Company discriminatory conduct adversely effects §7 rights 1. First step of the analysis. Did the company’s discriminatory conduct adversely affect b) CO BOP – Substantial and legitimate business reason 1. Did the company have a substantial and legitimate business reason> c) Unfair Labor Practice if inherently destructive of employee rights 1. -> if comparatively slight effect 2. -> consider company business reasons. Laidlaw Corp. – Economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; and (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons.

30 –Levy 2012

f. g. h. i. II.

Trans World Airlines v. Independent Federation of Flight Attendants Employee refusals to cross picket lines Metropolitan Edison Co. v. NLRB Unfair labor practice strikes

Constitutional Limitations on Government Regulation A. 5th and 4th Amendments B. Picketing and Freedom of Communication a. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Construction Trades Council b. Carpenters Local No. 1506 c. Hudgens v. NLRB The National Labor Relations Act


NLRB overview Protection under the act of concerted activity 1) Place of discussion – 2)

31 –Levy 2012


32 –Levy 2012

Sign up to vote on this title
UsefulNot useful