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Labor Law Outline

1) Early Labor Organization


a) The Criminal Conspiracy Doctrine
i) Labor in the 18th century was a mixture of master artisans, journeymen, apprentices,
indentured servants, and slaves
ii) Clashes developed btwn the masters who set wages and prices and the journeymen who
resorted to organized voluntary societies to help them with disputes with masters
(1) Right to quit was not a freely established right
iii) There were maximum wage laws to suppress the wages of highly skilled workers or those with
rare talents
iv) Philadelphia Cordwainers’ Case (Commonwealth v. Pullis)
(1) Eight leaders of the Federal Society of Journeymen Cordwainers were brought to trial and
accused of conspiring to increase their pay rates after leading an unsuccessful strike for
higher wages.
(a) Criminal conspiracy- conspiracy was collective action
(i) Reflected the common belief that the appropriate form of barganinng was btwn
individuals; collective action to shore up a wage or to demand a higher one was
both harmful to society and unlawful
(2) What are the prosecution’s arguments?
(a) Management protects the public bc they have no interest in setting prices too high
(b) It is wrong for a group of people to set the prices bc it interfered with the rights of those
who were willing to work for less (People have the right to work for less)
(c) The entire welfare of the community was imperiled bc prices would rise to anti-
competitive, artificially high prices
(3) After a three day trial, the jury found the defendants guilty of "a combination to raise their
wages". The union of Philadelphia Journeymen Shoemakers was convicted of and
bankrupted by charges of criminal conspiracy. The defendants were fined US$8 each (the
cost of one week's wages) and made to pay the costs of the suit.
(4) The law established in this case, that labor unions are illegal conspiracies, would remain
the law until Commonwealth v. Hunt, tried in Massachusetts Supreme Judicial Court
b) Illegal Conduct Doctrine
i) By the mid 1800’s many courts accepted the act of organization as proper and as a result,
considered collective action an illegal conspiracy only if either improper tactics or improper
goals were involved
(1) Ex- arson, violence, etc.
i) If the purpose for the union activity was not illegal, it was permitted
b) Judicial Reaction and the Labor Injunction
ii) Labor injunction- prior to the Norris- LaGuardia Act, employers used the labor injunction to
end strikes. Often initiated ex parte in friendly courts, the injunction would prohibit not only a
strike itself, but any tactics an employer could convince a judge were inappropriate.
(1) State ct injunction
(2) An estimated one quarter of all strikes in the 20’s were enjoined
iii) Vegelahn v. Guntner
(1) In this case the union had picketed in front of the employer's business with the object of
persuading current employees and job applicants to not enter the building. The union also
picketed to pressure workers to break employment contracts with the company. The
objective was to force higher wages.
(a) Issue- whether injunction against collective action was proper
(2) *Rule- The union must be pursuing lawful ends by lawful means
(a) Strikes for any ends that are inappropriate or that use tactics considered inappropriate
are tortious, and thus enjoinable
(b) Ct enjoined all picketing- in addition to the use of threats, it is unlawful to make
employment unpleasant or intolerable by the use of moral intimidation
(i) *No matter how peaceful the picketing, if it might cause discomfort to
strikebreakers or customers who saw it, it is unlawful
(3) Ct held that the coercion and intimidation found to have occurred interfered with the right
of an employer to hire whom it pleases, and the right of workers to enter into employment.
The court ruled that the union was guilty of an intentional tort.- injunction issued
(a) Holding- an employer and an employee possess consitutional rights to secure or remain
in employment free of interference by force or intimidation
(i) Court broadly defined intimidation to include “moral intimidation”
1. *picketing is intrinsically intimidating and coercive and thus enjoinable
(ii) Regulation of striker’s own conduct (refusing to work) is lawful, but directing
intimidation or coercion with the object of affecting others is not.
(4) Justice Holmes disagreed, equating the use of collective force by workers to the corporate
use of force to compete.
(a) 2 men picketing is not inherently coercive. Implication is that mass picketing would
be. Enjoining peaceful patrolling is unwarranted, since violent or criminal misconduct
is prohibited by other aspects of the injunction
(i) Right to discuss *But- no force may be used
(ii) The threat to do an act otherwise lawful, remains a lawful act
(b) It must be true that combined working men have the same liberty as combined capital
to support their interests by argument, persuasion and the bestowal or refusal of
advantages otherwise lawfully controlled
iv) Injunction criticism
(1) Ex parte TRO’s issued; *Labor was not represented
(2) Untrustworthy affidavits- conclusory
(3) Boilerplate allegations
(4) Employers armed guard affiants become sworn marshals to enforce the TRO
c) Anti-trust laws
i) Sherman Antitrust Law- 1890
(1) Outlawed monopolies- restraints on trade
(2) Used anti-union employers to attack union economic activity (collective action)
(a) Danbury Hatters- the Hatter’s Union tried to organize the entire industry
(i) Strike in Connecticut- with support of AFT, called for a national boycott
(ii) Manufacturers sued individual union members, claiming that the strike and boycott
constitute an illegal attempt to interfere with the interstate transportation of hats
(iii) Company won treble damages- $240k
(b) Many companies used the Sherman Act to bust unions
(3) Problem partially remedied by Clayton Act- limited the application of antitrust laws to
union activity
(a) *Until this time, more cases were brought against unions than against businesses
(b) But, Sup Ct construed the Act unfavorably to union activity
b) Railway Labor Act-
i) Response to Pullman Strike of 1894- Premised on collective bargaining
c) Norris LaGuardia Act-
i) Prohibits fed courts from issuing injunctions in most labor disputes
ii) Prohibits enforcement of “yellow dog” K’s
(1) Yellow dog: Agreement by management, in return for employment, that employee will not
engage in union activity
iii) Deprives fed cts of jurisdiction to enjoin enumerated acts in a labor dispute, including striking,
peaceful assembly, moral persuasion, publicizing a labor dispute, payment of unemployment
benefits
iv) No fed ct action against officers or members of labor organizations absent clear proof or actual
authorization for wrongful act
(1) Higher standard of proof required
v) Contradictory hearing, testimony and opportunity for CX required before injunction issues
(1) *No More Ex Parte hearings
vi) Ct must find specific things in order to issue injunction:
(1) Unlawful acts have been threatened and will be committed unless restrained
(2) Substantial and irreparable injury
(3) Balancing
(4) No adequate remedy at law
(5) Law enforcement unwilling or unable to furnish adequate protection
i) TRO possible but limited to 5 days, and bond must be provided for damages
d) National Labor Relations Act (NLRA) (Wagner Act)
i) Enacted in 1935- Purpose: promoting industrial peace by encouraging collective bargaining
ii) Preamble to NLRA:
(1) Acknowledge that employers would not bargain with employees prior to the Act, which
created strikes and industrial strife, burdening commerce
(2) There is an inequality of bargaining positions bc employees cant negotiate as a group- need
to be empowered
(3) If you provide protections for collective action, then commerce is protected
(4) Declare- it is the policy of the US to eliminate the causes of obstructions to commerce by
encouraging collective bargaining
iii) 2 major components of the statute:
(1) Selecting a union for collective bargaining
(a) §7- employees shall have the right to self-organization, to form, join, or assist labor
orgs, to bargain collectively through reps of their choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection
(i) *Right to strike
(ii) And shall also have the right to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring membership in a
labor union (Might have to pay dues)
(iii) Violation of §7- no proof of harm required
(2) Unfair labor practices
(a) §8- prohibits:
(i) Employer interference with the rights guaranteed by §7
(ii) Employer imposition of representation plans or company unions, and support or
assistance to any labor org
(iii) Discrimination in hiring or firing or terms of employment on account of
union membership or activity
(iv)Retaliation for testifying or bringing charges before the NLRB
(v) Employer refusal to bargain in good faith with the union chosen by the majority of
its employees
iv) §9- created the process by which the NLRB was to conduct representation proceedings
vii) Exclusions from coverage
(1) Independent contractors- not employees
(a) Old test: right to control the manner and means by which the result is to be
accomplished
(b) New test: multi-factor agency analysis similar to FLSA
(2) Managerial employees
(3) Confidential employees
(a) One who assists or acts to effectuate management labor relations policies
(i) Ex- Clerical employee who works for HR rep
(ii) NOT secretary for supervisor
(4) Agricultural and domestic employees
(1) Certain religious institutions
v) National Labor Relations Board
(1) NLRB is empowered to prevent any person from engaging in any unfair labor practice
“Affecting commerce”- very broad
(a) NLRB declines to exercise jurisdiction unless an enterprise meets its self-imposed
jurisdictional standards- excludes:
(i) United States or any wholly owned gov’t corp, or any Fed Reserve Bank, or any
state or political subdivision thereof, or any person subject to the Railway Labor
Act, or any labor org (other than when acting as an employer), or anyone acting in
the capacity of officer or agent of such labor organization
(5) Types of cases:
(a) R cases- election/ representation cases
(b) C cases- unfair labor practice cases
(6) 5 members of NLRB (Political appointees)
(a) Case presented to ALJ, who renders opinion
(b) Decision can be appealed to the Bd
(c) Then go to fed appeals ct for appeal/ enforcement
(d) Regional offices around country
(i) Delegated the authority to make decisions by the Bd; can render certain decisions
(R cases)
(7) Outline of a “C” case:
(a) Charge filed against employer or union in the region where the charge arose
(b) 6 month SofL for filing of ULP- §10b period
(i) Begins when ULP is committed
(c) Bd agent investigates, takes evidence provided by charging party, interviews charging
parties witnesses, then requests a response from party charged
(d) Bd agent prepares a report for the regional director who decides whether or not a formal
complaint will issue
(e) Before complaint is issued, a charge may be:
(i) Withdrawn
(ii) Dismissed
(iii) Settled
(f) Charging party may appeal the decision of the regional director not to issue a
complaint, but the appeal is to the Gen Counsel, not the NLRB
(i) ALJ decision- can file exceptions to the NLRB
(g) **Only 10 days to answer the complaint!! Answer quick!
(h) ALJ hearing
(8) “R” Case Proceeding:
(a) Union must establish representation in order to be officially recognized- usually, a
secret-ballot election or signed authorization by third party
(i) Process for election:
1. Union obtains proof of interest, through card signing or petitions (before they
can get a petition process, they must have 30% of workforce support in the unit
it proposes to represent)
2. Union files an election petition
a. Employer may check showing of interest- 30% required!
i. Labor bd checks signatures on authorization cards
ii. Insufficient showing= dismissal
3. Intervention- another union can get on the ballot if they have 10% support
(b) Dismissal of petition:
(i) Election bar rule- no election shall be directed in any bargaining unit which held an
election within the preceding 12 month period
(ii) K bar- An existing collective bargaining agreement can bar the filing of a petition
1. 3 year limit
2. Bd recognizes an “open period” beginning 90 days before the bargaining
agreement expires and ending 60 days before expiration, at which point an
insulated period begins (can file within this period)
(iii) Voluntary recognition-
1. The Bd will provide the union protection from an election for a reasonable
period in order to give it an opportunity to bargain free from the pressure of a
rival union’s petition or decertification petition
(iv)Blocking charges – union’s choice as to whether to continue when charges are
pending against employer
(v) Supervisory taint- if support is tainted by supervisory conduct, petition cannot be
filed (*Supervisors cannot be involved in unionizing)
(c) Appropriate unit: (the group of jobs that define the electorate for the rep election)
(i) Union must select an appropriate bargaining unit; Significance- only those included
in the unit may vote
(ii) Steps:
1. Stipulation as to appropriate bargaining unit- if that doesn’t work;
2. Go to hearing, which is conducted quickly (you get 5 days btwn notice and the
hearing)
a. Bd uses multi-factor test- critical qst: whether the employees share a
“community of interest”
(d) After conclusion of hearing- parties get a week to write briefs
(i) Bd issues Decision and Direction of election 25-30 days from decision
(ii) Secret ballot election usually ordered to be conducted on employer’s premises
(iii) Excelsior list- list of names and addresses of employees in the appropriate
union
1. due to union 7 days after decision and direction
(iv)Posting of official Board Notice of Election
(v) Election must be conducted in “laboratory conditions”
(e) The Campaign
(i) Employer and union campaign for employee votes- provide persuading info
(ii) Union access to employees
1. Union can go to their homes; leaflet; do not have the right to enter private
property to access the employees
2. Employer is prohibited from visiting employees at home
(iii) Management cannot misrepresent facts during this period
(iv)Lawful “captive audience” speech
1. Employer can call employees together at work and tell them whatever
2. *must stop 24 hours before election
(v) Laboratory conditions
(f) Election Day
(i) NLRB conducts secret ballot election
(ii) Election observers- unaffiliated poll workers
1. Supervisors not permitted in the area- neither are union reps
(iii) Inspection of voting area, ballot box
1. But- Union and non-voters not allowed in voting area while polls open
(iv)Release of workers to vote- must give a break to vote
(v) Challenged ballots- procedure
(vi)Vote count conducted immediately after polls close
(vii) Majority of valid ballots cast required for union (tie goes to the company)
(g) Post Election
(i) Objections must be filed within 5 days- to fed circuit courts
1. No direct appeal to Cts for Decision and Direction/ “R” case issues
(ii) Decision on objections, hearing- Bd can just dismiss it, or conduct a hearing
(iii) Certification of election results
1. Year of insulation/presumption during which no other union can file petition
(iv)Obligation to bargain with union chosen; Employer’s remedy: Testing certification
by refusal to bargain
1. Bd will then proceed against the employer in refusal to bargain case
1. Appellate Ct decides whether there was a basis for refusing to bargain
viii) NLRB v. Jones and Laughlin Steel (1937)
(1) Sustained the constitutionality of the NLRA
(a) The right to self-organize and choose a rep for a lawful purpose, collective bargaining,
is a fundamental right
(2) The Ct held that the Act was narrowly constructed so as to regulate industrial activities
which had the potential to restrict interstate commerce
(a) The national gov’t was justified in penalizing corps engaging in interstate commerce
which refuse to negotiate with their workers
vi) Btwn Wagner Act passage and Taft Hartley was the best time for labor- org at its highest
e) Taft Hartley (Labor Management Relations Act)
i) NLRA regulated employer behavior, but NOT union behavior
(1) Concern with secondary boycotts and closed shops
ii) Amended NLRA:
(1) Inserted into §7 the right to refrain from the activities that the NLRA had protected
(2) Introduced union unfair labor practices into §8, such as:
(a) Union interference with an employees exercise of §7 rights
(b) Secondary boycotts and strikes over jurisdictional disputes
(c) Pressuring an employer to discriminate against an employee bc of her union
membership or nonmembership in most circs
(i) *Banned closed shops (where nonunion workers could not be hired), but permitted
union shops (where all workers pay union dues even if they don’t belong to it) and
other union security agreements (but states can regulate or outlaw themselves)
(3) Excluded supervisors from coverage
(a) 12 statutorily defined indicia of “supervisor”
(i) NLRA §2.11- term supervisor means any individual having authority to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly direct them, or to adjust their
grievances, or effectively recommend such action- if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
(b) If you’re a supervisor- effect:
(i) Not “employee” protected by NLRA
(ii) *Cant be in bargaining unit with non-supervisory employees
(iii) Can commit unfair labor practices for which employer is responsible
1. *If you’re not a supervisor, employer can’t direct their union participation; but
if they are, they must discuss it- Employer needs to know!
(c) Burden of proof of supervisory status:
(i) Rests with the person asserting that the individual is a supervisor
2. Burden met by proving “authority to exercise one of the 12 listed supervisory
functions”
(d) Nurses duties- Bd initially took position that nurses are not supervisors
(i) Kentucky River- Sup Ct
1. Nurses in issue acted as building supervisors during the second and third shifts,
and were authorized to shift staff btwn units
a. *Only people that had authority in the building during this time
b. Exercise of independent judgment was required
2. Bd said- nurses not supervisors bc did not use independent judgment; ordinary
business judgment (Its vague- Bd can interpret it how they want)
3. Sup Ct Rejected the Bd’s opinion on independent judgment
a. Taft-Hartley broadly defined the supervisory exclusion
(ii) Sup Ct decisions: Bd must apply broad interpretation of “independent judgment”
1. Employees who direct the manner of other’s performance of discrete tasks-
NOT supervisory
a. Bd must figure out which employees do more than that; those who direct
employees as §152(11) requires
(e) Oakwood Healthcare- Bd’s first pronouncement after Kentucky River
(i) Assign- defined as the act of designating an employee to a place, or giving
significant overall duties
1. Choosing the order which the employee will perform discrete tasks is NOT
exercising authority to assign
2. *Assign= designation of significant authority
(ii) Nursing home charge nurses lack the authority to assign and responsibility to direct
1. “Responsibility to direct”- person with people under him, who decided what job
shall be undertaken next or who shall do it
a. Provided that the direction is both responsible and carried out with
independent judgment
2. “Responsible direction”- requires a showing that the employer delegated to the
putative supervisor the authority to direct the work and the authority to take
corrective action, and that the putative supervisor is held accountable for the
performance of the task, and that there is a prospect of consequence
3. “Independent judgment”- lack of independent judgment if there are detailed
instructions which dictate the direction
a. ex- decision to staff a shift with a certain number of nurses (fixed nurse-
patient ratio)
b. *Look to whether there is some allowance for discretionary choices
c. Ex: Hiring process- if called upon to asses applicants’ experience, ability,
etc, then independent judgment is used; if ultimate decision is not up to that
supervisor at all (meaningful input), then no use of independent judgment
(iii) Judgment must involve a degree of discretion that arises above the “routine
or clerical”- assessment of skill level, etc.
1. If there is only one choice, then its not independent judgment
2. Use of discretion or authority to deviate from policy- that’s independent
judgment
(4) Permitted “featherbedding” (paid to not do work)
(5) Authorized an 80 day injunction against strikes that might affect national health or safety
(6) Forbade political contributions from unions and excessive dues
(7) Required union leaders to take a non-communist oath
(8) Forbade strikes by fed employees
(9) Made unions liable for breach of K damages
(10) Created office of General Counsel to separate the Bds prosecutorial and
adjudicatory functions
(11) Provided a forum in fed Ct for enforcement of collective bargaining agreements
f) Labor Management Reporting and Disclosure Act of 1959 (Landrum-Griffin)
i) Last amendments to the NLRA
(1) Administrative burden to unions
(2) Added §8(b)(7)- regulates organizational and recognitional picketing
2) Employer Interference
a) Lechmere Inc v. NLRB
i) Union tried to distribute handbills in parking lot- employer kicked them off
(1) General policy of kicking off ALL solicitors
(2) Filed unfair labor practice charge- barring nonemployee organizers from its property
ii) Precedent: (changed with composition of the Ct)
(1) Babcock and Wilcox - non-employee outside organizers sought access to company parking
lot to solicit workers
(a) Bd ordered access- no other access
(b) Sup Ct reversed; §7 does not protect nonemployee union organizers
(i) Except in rare cases where the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate with them through the usual
channels
(2) Jean Country
(a) NLRB created a balancing test:
(i) Weighing the impairment of §7 rights caused by the employer’s denial of access
against the degree of impairment of the private property right in issue
(ii) Factored in was the extent to which alternate methods of effective access to
employees existed
1. *Overruled by Lechmere
ix) RULE- As long as non-employee union organizers have reasonable access to the employees
without interfering with the employers private prop rights, there is no need to weigh the
impairment of employers prop rights against the impairment of §7 rights
(1) Deprives Bd of using balancing test
(2) Private property is important- §7 does not allow trampling of private property rights
(3) *Access warranted only where workplace and living quarters are beyond reasonable union
efforts to communicate
(a) Only in such rare circs involving totally inaccessible workers, such as remote lumber
and mining camps, should the Bd balance the competing statutory and property rights
(b) Union’s heavy burden to establish isolation
ii) Dissent- Bd should be given broad deference
b) Secondary businesses
i) May employees of a subcontractor distribute union lit. among co-workers during non-working
time on the non-working premises of a second unrelated business where the employees
exclusively work?
(4) Yes- Southern Services
x) Is access different if a union is certified as the employees bargaining rep?
(1) **Union officials have the right to access the employees during nonworking time in
nonworking areas- also they have the right to observe methods of production
(2) Employer should reasonably accommodate access by bargaining rep
(a) Balance need for access with need to prevent disruption
d) No Solicitation Rules
i) Rule- an employer may make and enforce a rule prohibiting union solicitation by employees
during working time, and any such rule is presumptively valid, absent evidence of a
discriminatory purpose
(1) Discrimination- invalidates an otherwise acceptable policy
(a) If you say, no solicitation for employees- then NOONE may solicit (no girl scouts, etc)
(i) If you allow anyone, you must allow anyone (circuit split)
(2) However, an employer may NOT generally enforce such rules to prohibit employee
solicitation during non-work times (lunch or breaks), even though the employee is on the
employer’s property
ii) Working time v. working hours
(1) Working time- only the time that you’re working
(2) Working hours- the entire time you’re there
iii) Absent special circs, an employer may generally not prohibit the wearing of union buttons or
insignia by employees
iv) Email- if personal use is allowed, it cant be limited based on union activity
(1) Gallup, Inc- NLRB held that the implementation of a no solicitation policy including a ban
of email use for nonbusiness reasons was a section 8a1 violation bc it was implemented as
a result of the union organizing campaign
v) Off-duty employees
(1) Can deny access if:
(a) Access is denied to working areas and interior of facility, not areas open to public
(b) No access rule is clearly communicated
(a) Applied non-discriminatorily
vi) NLRB v. United Steelworkers (Nutone)
(1) Company was distributing anti-union literature while enforcing rule against employees
posting signs or distributing lit on company property or soliciting or campaigning on
company time
(2) Holding-
(a) Employer, who bars union solicitation during working time, does not commit an unfair
labor practice when it engages in conduct which, if engaged in by an employee, would
violate the employer’s own lawful solicitation rule, UNLESS the conduct is otherwise
unlawful (threats, intimidation, etc)
(i) *Law does not require that employers and unions be treated the same
(3) Reaffirmed by Beverly Enterprises (1998)
(a) Majority of the Bd decided that an employer’s distribution of flyers was proper even
though it was concurrently enforcing a no solicitation, no distribution rule against its
employees
e) §8c- Employer free speech (added by Taft-Hartley)
i) §8c- Bd shall not base any finding of unfair labor practice upon any stmt of view or args, either
written or oral, if such stmt contains under all the circs no threat, express or implied, of reprises
or force, or offer, express or implied, of benefit
(1) *Expression of any views shall not be evidence of an unfair labor practice, as long as
it contains no threat of reprisal or force or promise of benefit
ii) Examples of lawful speech:
(1) Communication of reasonable fear that increased labor costs would render facility non
competitive
(2) Supervisor tells handbillers- “hope you guys are ready to pack up and move to mexico”
(3) “I will fight the union in every legal way possible”
(4) “If the union calls an economic strike, you place your job on the line… you could lose your
job”
(5) Employer reference to lower wages paid at unionized plants and suggestion unionization
might result in lower wages at employer’s plant
(a) Lawful, provided there is evidence
iii) Examples of Unlawful speech:
(1) Employer claiming it might lose a major client; Unlawful, absent objective evidence to
support claim
(a) **Bd looks at whether it is speculation vs. objective evidence of what WILL happen
(2) Slide show presentation showing rental trucks replacing employee driven trucks at another
company after the union won an election there
iv) General Shoe- an election may be set aside based upon conduct which is not an unfair labor
practice, if it destroys the laboratory conditions necessary for a free and fair election
(1) Even though stmts are not threatening, etc
f) Interrogation
i) Blue Flash- overruled, but- important dissenters view that §7 rights cannot be freely and fully
exercised if employers are permitted to qst, pry, and investigate employee sentiments
ii) Interrogation- not per se unlawful
(1) Whether particular employer conduct interferes with, restrains, or coerces employees as
to union affiliation - must be determined on the record as a whole
iii) Any employer who engages in interrogation about union activity does so with notice that he
risks a finding of unfair labor practice if the interrogation restrains or interferes with rights
protected under the Act
(1) Casual questions- ok
(2) Probing questions- not
iv) Lawyer’s interrogation
(1) A lawyer can commit an unfair labor practice in investigating an unfair labor practice
(2) Johnnie Poultry safeguards:
(a) An employer must communicate to an employee the purpose of the questioning, assure
him that no reprisals will take place, and obtain his participation on a voluntary basis
(b) The questioning must occur in a context free of employer hostility to union
organization and must not be itself coercive in nature
(c) The qsts must not exceed the necessities of the legitimate purpose by prying into union
matters, eliciting info concerning an employee’s subjective state of mind or otherwise
interfering with the statutory rights of employees
(3) Before you interview any witness, ensure you receive a Written Acknowledgement from
employee being interviewed that you have provided Johnnie’s Poultry safeguards
v) Struksnes polls- Polling employees is a violation, unless Strucknes is followed
(1) But, pre-election polling by union is ok
g) Promises- unfair labor practices with an election pending
i) In the course of an election campaign, an employer may not promise or confer a benefit
conditioned on the employees rejecting a union
(1) Wages, benefits, promotion, job assignments; Solicitation of grievances
h) Economic coercion
i) *Neither employers nor labor orgs may provide gifts of meaningful value to influence
employee voting
ii) Introduction of benefits authorized PRE-petition- Pedro Inc
(1) Regularly scheduled increases should stay on schedule- must follow normal course of
business
(2) Lasalle Ambulance- employer violated the act by not giving customary scheduled pay
increase
i) Violence- obviously Not allowed
i) Interstate transportation of strikebreakers is a federal crime
ii) But, random chat isn’t a big deal- “mere hyperbole”
j) Espionage and Spying
i) Surveillance of employee activity is a violation, even if they don’t know they’re being watched
(1) Impression of surveillance is unlawful
ii) Videotaping union rallies held outside employer’s shipyard is a violation since employer did
not have a reasonable and objective basis for anticipating employee misconduct
(1) Photographing employees engaged in protected activity intimidates by creating fear of
future reprisals
iii) May not CX witnesses in NLRB proceedings about the identity of union supporters
iv) Surreptitious spying on protected activity is unlawful
2) Employer Domination or Support
a) §8(a)(2)- makes it unlawful for an employer to dominate or interfere with the formation or
administration of any labor org or contribute financial or other support to it
i) Outlaws company unions
ii) Forbids an employer to contribute money to a union it favors or to give a union improper
advantages that are denied to rival unions
b) Bernhard-Altmann Texas Corp
i) Issue- whether it was an unfair labor practice for both an employer and a union to enter into an
agreement under which the employer recognized the union as exclusive bargaining rep,
although only a minority of the employees had authorized the union to rep their interests
(1) Employer didn’t check whether or not the union had majority support- *should have
done a card check!
ii) What matters is the point at which the employer recognizes the union
(1) Even though union HAD support at the time the claim was brought
(2) *Once the employer commits to support a union, any subsequent decision is tainted
(a) Employees must have a totally free choice, untainted by inappropriate employer
support
(b) “Deceptive cloak of authority with which to persuasively elicit additional support”
iii) Good faith irrelevant- It doesn’t matter that employer thought there was a majority
iv) Remedy- Bd ordered election
c) Construction industry- *Exception for construction employers
i) Pre-hire agreements under §8(f)- an employer engaged primarily in the building and
construction industry who hires on a job by job basis does not violate §8a2 by entering into a
collective bargaining agreement before majority status
ii) John Deklewa & Sons- provided clarification of 8(f) re construction co’s
(1) §8f agreements enforceable for their duration- no midterm repudiation permitted
(1) Agreements may be repudiated upon expiration, unless the employer has voluntarily
recognized the union, or the union has been certified in an NLRB proceeding
d) BE&K Construction (printout)
i) Employer, a general contractor, contracted to modernize a steel mill using non-union labor
ii) Unions engaged in multiple challenges to the project- many tactics used to mess with the
contractor
(1) Employer sued the union for a bunch of random claims- All claims dismissed, with
prejudice
(2) Union filed unfair labor practice charges, alleging that the employers lawsuits interfered
with, restrained, and coerced employees in violation of §7
iii) 6th Circ- employers litigation was retaliatory bc there was an utter absence of merit
(1) Ordered employer to pay attnys fees and expenses for defense
iv) Issue- may the board impose liability upon an employer who could show the underlying lit was
objectively baseless?
v) Sup Ct reversed
(1) The right to petition the gov’t is precious- and includes right of access to Cts
(2) Bill Johnsons- filing of a well-founded lawsuit could not be enjoined as unfair labor
practice, even if retaliatory
vi) Holding- the Bd may subject a litigant to unfair labor practice proceedings where it finds the
suit objectively baseless, and it finds the employer possessed a subjectively retaliatory
motive
3) Employer Discrimination
a) §8a3 prohibits discriminatory treatment by an employer for the purpose of encouraging or
discouraging union membership
i) Protects participation in union activities
ii) *the most frequently filed ULP charge
b) Almost anytime there is a differentiation of treatment affecting adversely a union worker, or one
interested in becoming a union worker, and a similarly situated non-union worker, who is not
adversely treated, a claim of discrimination may be raised
i) Very fact sensitive- look to how the rules of the workplace were applied
(1) Cannot fire an employee for a reason that was not penalized before
(2) Must show consistency of application
c) Discriminatory Discharge- must prove:
i) Employer knowledge of union activity
ii) Timing of discharge
(1) Company condoned that action right before
(2) Proximity to exercise of §7 rights
iii) Length of employment
iv) Disciplinary record
v) Has employer condoned allegedly undesirable behavior in the past from discharged employee
from others
vi) Seriousness of infraction
vii) General evidence of hostility toward union
d) Burden of proof- general counsel
i) Standard- preponderance of the testimony taken shows that the employer committed an unfair
labor practice
ii) GC’s explanation of “good cause”- p.99
e) Judicial review- standard:
i) Substantial evidence on the record as a whole; Great deference given to Bds expertise
iii) Administrative law judge given great deference re weight on credibility determinations
f) Mixed Motive Cases:
i) Where there is some proof that employer acted on account of protected reasons, but also
evidence that employee engaged in offense which should lead to discipline
ii) Wright Line**
(1) Once GC proves by preponderance of evidence that employer’s action was substantially
motivated by antiunion animus, employer must prove affirmative defense that adverse
action would have been taken even if the employee had not been involved in protected
conduct
g) Discrimination to Encourage Union Membership
i) Hiring Halls: union run referral system; employer calls to get employees for projects
(1) Teamsters- Hiring hall is not per se illegal
(a) Legal hiring hall agreement- must not discriminate btwn union and non-union members
(i) Must refer out both union and non-union members
(b) *What is illegal is encouraging or discouraging union membership by discrimination
(i) Bd looks to whether the hiring hall is discriminating in its referrals
1. But- Seniority and proficiency testing is ok
ii) Union Security:
(1) Closed Shop- must be a union member to work there
(a) Illegal- Taft Hartley
(2) Union shop- requires nonunion employees to become members of the union within a
prescribed period after initial employment
(3) Agency shop- employees have to pay dues to the union, but don’t have to become formal
members of the union
(a) Not applicable in right to work states- authorized by Taft Hartley (21 states)
(i) State legislation prohibiting a denial of a person the right to work on account of
membership or non-membership in a labor union
(ii) Creates possibility of free-riders- employees don’t pay, but get benefit of
unionization of others
(b) NLRB v. GM
(i) Issue- whether agency shop is an unfair labor practice
(ii) Holding- no unfair labor practice; agency shop ok
(iii) “Financial core member”= “union member” for purposes of union security
clauses (not for any other purpose)
1. Have to pay reduced dues, and employer cant fire you for not being a “union
member”
(c) The parameters of which costs non-members may be required to pay:
1. Beck- Bargaining unit employees must only pay for support of union activities
germain to collective bargaining
2. *Ellis- The test is whether the challenged expenditures are necessarily or
reasonably incurred for the purpose of performing the duties of an exclusive rep
of the employees in dealing with the employer on labor-management issues
a. Employees may be compelled to pay their fair share of the direct costs of
negotiating and administering a collective-bargaining K and of settling
grievances and disputes, as well as the expenses or activities or undertakings
normally or reasonably employed to implement or effectuate the duties of
the union as exclusive rep of the employees
3. A union or agency shop provision may not be used to enforce membership
obligations not relating to dues payments (ie fines)
(d) Checkoff- employers have dues deducted from paychecks
(i) §302c4- a written authorization of checkoff must be obtained from employees
(e) Schemerhorn- right to work case
(i) States may not only prohibit the execution of union security agreements, they may
also enforce their laws by appropriate sanctions
(ii) Refusal to bargain not §8a5 violation in contrast to GM Case
4) Protected Concerted Activities and Employer Response
a) §7 of the Act expressly authorizes employees to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection
i) *Key is concerted action, for mutual aid and protection
(1) Groups of employees who are not organized into a union are protected as long as their
activity is for mutual aid and protection and not an inappropriate means
(a) Protection is broader than union activity
(2) But, if employees in a given workplace select a union as their collective bargaining rep,
they can no longer engage in certain concerted activity that would have been protected in
the absence of a union
b) Concerted action- more than the individual action of a self-interested actor
i) Even if the individual employee’s activity is directed toward an issue that affects other
employees
ii) Grudge holding employee circulating a petition to get rid of supervisor is not concerted activity
iii) Interboro Doctrine- the assertion of a right grounded in a CBA is concerted activity
iv) City Disposal
(1) Garbage truck driver “reasonably and honestly” refused to drive truck bc it had faulty
brakes- was fired
(a) CBA- employer shall not require employees to drive unsafe trucks
(2) Issue- concerted action for mutual aid and protection? (just one guy!)
(3) Holding- A lone employee's invocation of a right grounded in his collective bargaining
agreement is concerted activity (Interboro Doctrine)
(a) But- Some courts reject Interboro, but even those courts have found a single employee
who intends to induce group activity, or who intends to act as a rep, are engaging in
concerted activity
(1) The employee’s belief does not have to be right, it simply must be honest and reasonable
(subjectively)
v) Meyers II- holds concerted activity encompasses those circs where individual employees seek
to initiate or to induce or to prepare for group action, as well as individual employees bringing
truly group complaints to the attn of management
vi) Mike Yurosek & Sons- Employees individually refusing overtime were acting in concert bc
their response was a logical outgrowth of earlier expressed group concerns
vii) Woman’s Place- Call to USDoL by single individual to complain about holiday protected bc
employee and coworkers had previously complained together
viii) Watkins Motor Lines- Married truck driving team's complaints not concerted bc they were
acting as a team thereby effectively acting as a single unit
ix) Holling Press – employee who asked a co-worker to testify in her sexual harassment case,
threatening subpoena, found unprotected bc the activity was not for “mutual aid or protection”
(2) No evidence co-worker was concerned about sexual harassment since she had to be
threatened with subpoena
x) Whirlpool Corp- Ct found Sec of Labor had properly promulgated OSHA regs permitting
employees to refuse to perform unsafe work if the employees fear of serious injury or death is
objectively reasonable
xi) Odyssey Capital- employees may refuse to do work if there is a “genuine” fear of harm
c) Purpose- the activity must be directed toward collective bargaining or mutual aid or
protection (An effort to change wages, hours, or other terms and conditions of employment)
i) Examples of protection:
(1) Striking for higher wages
(2) Employees walking off the job to protect cold working conditions
(3) Group letter protesting selection of supervisor
(4) Discussion of wages among employees
d) Protected means- means must not be disloyal or unlawful
i) Unprotected Conduct
(1) Advocating consumer boycotts of employer’s products
(2) Disparagement of employer’s product
(3) Unprotected disloyalty
(3) Partial strikes, sit down strikes, intermittent work stoppages, spontaneous walk-out in
dangerous situations, wildcat strikes (an unauthorized work stoppage while a labor K is still
in effect)
(a) Elk Lumber
(i) Work Slowdown strike of employees- working for increased pay, or return to old
piecework pay; Discharge upheld bc “means” was not protected
1. Employees came to work and did nothing- UNPROTECTED
(ii) *Employees are entitled to strike, but not in place
1. Either you leave and don’t collect wages, or you don’t strike
e) Weingarten Rights-
i) Employee who requests union representation during investigatory interview which they
reasonably believe might lead to discipline is entitled to union representation in the interview
(1) Must have rep present before supervisor can interview you
(2) Even if employer is not thinking about discipline; if employee thinks discipline is
reasonably to follow, must have rep if they ask
ii) Denial of right can lead to reinstatement with back pay
iii) Employee must invoke the right
f) Striker’s Rights
i) Mackay Radio ***!!
(1) Strike in 1935- employer brought in replacement workers and continued to operate
(a) Strikers remain §2(3) employers- do not lose status as employees
(i) Even though not paid, they remain employees and are protected by the Act
(2) Strike failed- back to work, except 11 who were permanently replaced
(3) Holding-*Permanently replacing economic strikers is not an unfair labor practice
(a) You can tell employees; if you go out on an economic strike, I will make an effort to
replace you permanently, and you wont be able to come back to work
(b) Strikers remain employees with reinstatement rights when an appropriate vacancy
arises (when spot is not filled by permanent replacement)
(i) Offering reinstatement only to vacant positions is not an unfair labor practice
1. Employees put on a preferential hiring list to await reinstatement as and when
vacancies occur
(c) Discriminatory selection for reinstatement is an unfair labor practice
(i) Must justify not filling open positions with non-discriminatory reason (ie seniority)
ii) Economic striker’s rights:
(1) After conclusion of a strike, reinstatement cannot be denied due to union membership or
other protected concerted activity
(2) Strikers must make an unconditional offer to return to work either personally or through
their union
(3) Strikers are permanently replaced, not terminated (Remain employees)
(a) Int’l Van Lines- It is a per se unfair labor practice to terminate strikers
(4) Laidlaw- employees entitled to reinstatement until the time that they get reinstatement; can
be an indefinite time
(a) Unless they have acquired regular and substantially equivalent employment, or
employer has a legitimate and substantial business reason for denying reinstatement
(5) Oregon Steel Mills- employer violates §8 when it bypasses qualified strikers on a
preferential rehire list to hire temps
(6) Aqua Chem- employer may require periodic indication of continued interest in
reemployment
(7) Rose Printing- employer need not offer reinstatement to jobs that are not the same or
substantially equivalent, even if strikers are qualified to fill them
(8) Honoring a picket line at another employer’s premises = economic striker
(a) Can be replaced, but rights of economic strikers apply (reinstatement)
iii) Erie Resister
(1) Re-affirmed Mackay Radio (employer can permanently replace economic strikers)
(2) Employer Granting 20 years of super-seniority to new hires and crossovers is a violation
(a) New hires and crossovers put at top of seniority lists- significant effect
(i) Layoff in reverse order of seniority; choice for overtime
(4) Gave Permanent favorable treatment to replacements and crossovers- ULP
iv) TWA
(1) Holding- at the end of a strike, an employer is not required to displace non-striking
employees who worked during the strike in order to reinstate striking employees with
greater seniority
v) Unfair Labor Striker’s Rights
(1) When a strike is caused by an employer’s unfair labor practice, strikers may not be
permanently replaced, and must be reinstated upon their request
(2) An economic strike can be converted into an ULP strike; workers replaced after conversion
are unfair labor practice strikers
(3) Permanent replacements can vote in a representation proceeding; temporary replacements
for ULP strikers cannot
(4) Mastro Plastics
(a) Collective bargaining agreement- general no strike clause
(i) Expired- intent to negotiate
(ii) Act requires 60 day cooling off period before an economic strike
1. Any employee who engages in a strike before expiration of cooling off period
loses protection as an employee under the act
(iii) Employer engaged in unfair labor practices during the 60 day period
1. Employees strike within the 60 day period
(b) Issue- protected activity?
(c) Holding- A general no-strike clause does not waive the employee’s right to strike in
response to an unfair labor practice
1. Must specify that you are waiving your right to strike for ULP
2. *Bd only protects strikes protesting serious unfair labor practices
(ii) Purpose of the 60 day period is to remove the economic pressure of a strike from
the renegotiation period
1. Since strike was not related to modification of the K (economics); the 60 day
period was inapplicable.
vi) Lockouts- employer action which, in effect, locks out its present work force
(1) Employer may hire temporary replacements for its locked out employees
g) Employer’s Anti-union animus
i) Great Dane Trailers
(1) Employer denied payment of accrued vacation benefits to strikers
(a) Sup Ct- General test for determining whether an employer may discontinue or withhold
benefits after a strike begins
(2) Sup Ct- discrimination; violation
(a) Bd can assume violation here, without proving improper motive
1. 8a1 doesn’t require intent
2. 8a3 requires intent, but Bd can assume intent where…
(b) Some conduct is so inherently destructive of employee interests that it may be deemed
proscribed without need for proof of an underlying improper motive
(i) Some conduct carries with it unavoidable consequences which the employer not
only foresaw, but which he must have intended and thus it bears its own indicia of
intent
(c) If it can reasonably be concluded that the employers discriminatory conduct was
inherently destructive of important employee rights, no proof of anti-union motivation
is needed, and the Bd can find an unfair labor practice despite employer evidence of
business justifications
(i) Erie Resister; Metropolitan Edison- more serious discipline of union officers than
rank and file; Great Dane
(d) But if the adverse effect of the discrimination on employee rights is comparatively
slight, AND employer has come forward with evidence of legitimate and substantial
business justifications for the conduct, an antiunion motivation must be proved
(i) Mackay; American Shipbuilding- lockout and temporary replacement of strikers;
TWA- offering specific positions previously held by permanent employees
ii) Summa Corp
(1) Party costing $4,000 given for employees who did not strike- Violation
iii) Detroit Newspaper
(1) No need to bargain with striking union before setting different terms for replacement
workers
(a) NLRB specifically noted this does not mean different terms and conditions for
replacements and returning strikers
(b) Cant set up a dual wage scale, etc- ONLY temporary impact
iv) The NLRB exhibits a propensity to protect organizing activity
(1) Shamrock Foods- termination of union organizer due to alleged misconduct unlawful even
in absence of showing of anti-union animus since animus assumed from organizing activity
(a) More latitude afforded employer in response to union economic pressure
v) Burnup & Sims
(1) Employer discharged 2 employees engaged in union organizing on the mistaken belief that
they were intending to use violence in the organizing effort
(a) Employer good faith precludes anti-union animus (§8a3)
(2) §8a1 is violated if discharged employee was engaged in protected activity, the employer
knew it was such, and that the basis of the discharge was an alleged act of misconduct in
the course of that activity, and that the employee was not, in fact, guilty of that misconduct
(a) Employer has burden of showing that it held an honest belief that the employee
engaged in serious misconduct
(b) The burden then shifts to the GC to show affirmatively the misconduct did not occur
h) Going Out of Business, Partial Shutdowns, and Runaway Shops
iv) Runaway Shop- Closing a union plant or one undergoing organizing and reopening another
facility in another location to perform the work of the closed facility
(1) Test: Anti union motivation or economic justification
(1) Remedy- Bd may order reinstatement at the new facility, backpay, moving expenses
ii) Darlington Mfg.
(1) Issue- whether an employer can close shop in retaliation for the employees decision to be
represented by a union
(2) Rule- Employer property rights to close its business completely trump employee §7 rights,
therefore no §8a1 violation when business is completely closed
(a) No duty to bargain about the decision to close the enterprise
(b) Employer has the absolute right to terminate his entire business for any reason he
please, BUT *No partial closings
(3) Darlington test for ULP: It is an ULP If the persons who control a plant being closed for
anti union reasons-
(a) Have an interest in another business, whether or not affiliated with or engaged in the
same line of commercial activity, of sufficient substantiality to give promise of their
reaping benefit from the discouragement of unionization of that business;
(b) Act to close their plant with the purpose of producing such a result; and
(a) Occupy a relationship to the other business which makes it realistically foreseeable that
its employees will fear that such business will also be closed down if they persist in
organization activities
(2) A partial closing is an ULP if motivated by a purpose to chill unionism in any of the
remaining plants of the single employer and if the employer may reasonably have foreseen
that such closing would likely have that effect
c) Remedies for Interference with Organizational and Other §7 Rights
i) §10 of the NLRA grants the Bd broad remedial powers
(1) Power to nullify an election and order a new one
(2) Power to issue cease and desist orders and to order reinstatement and/or back pay for
victims of discriminatory discharge
ii) Striker Misconduct:
(1) Clear Pine Mouldings
(a) ULP strike- Striking employees wanted to be reinstated, but issue was whether they had
engaged in misconduct sufficient to disqualify them from reinstatement
(i) Threats; physical violence- hitting workers’ cars with sticks, etc
(b) Bd rejected prior law, which said employee misconduct could be justified by the
seriousness of the employer’s ULP
(c) Issue- whether the misconduct is such that, under the circs existing, it may reasonably
tend to coerce or intimidate employees in the exercise of rights protected under the Act
(i) NEW standard to look at (also applies to conduct towards persons not protected)
(2) NMC Finishing- obscene picket sign vilifying individual non-striker justified employer’s
refusal to reinstate striker carrying sign for 5 minutes
(3) Catalytic Inc- striker anonymously telephoned home of non-striker and called strikers wife
a GD bitch
(a) Striker held not to have engaged in coercive conduct bc no threat was involved
iii) Remedial Problems
(1) Hoffman Plastics- undocumented aliens illegally in the US are ineligible for back pay
remedy
Section II. Representation Questions
1) Establishing Representative Status Through NLRB Elections
a) §9a of NLRA requires a determination of union majority status in a unit appropriate for collective
bargaining, before certification of a union as the exclusive representative for purposes of collective
bargaining
i) Once certified, no other entity may bargain re matters appropriate for collective bargaining
ii) Certified union bargains for all members
b) Typically the method by which employees select a union, or choose not to be represented by one,
is by a majority vote in a secret ballot election in an appropriate bargaining unit
i) NLRB delegated its powers in election cases to regional directors
(1) Bd has discretion to review regional directors’ decisions; only granted in limited circs (No
“R” cases)
ii) If an election is conducted, the results of the election are determinative, provided it was
conducted under the required laboratory conditions
iii) Other ways, besides election: Voluntary recognition, card check
iv) Employers remedy to test certification- by refusing to bargain
c) Process:
i) Begins when a union (or an employee or group of employees) files an election petition
(1) Union must then be able to show substantial support (30%) among the workers in the unit it
proposes to represent
(a) Appropriate unit- the group of jobs that define the electorate for the rep election
(i) There can be more than one unit appropriate in any given situation
(ii) Employees in appropriate unit are those eligible to vote
ii) Election-
(1) Voter eligibility:
(a) Determined by the employer’s payroll cut off immediately preceding:
(i) The stipulation for an election, OR
(ii) The decision and direction of election
(b) North American Healthcare- all employees in the appropriate unit on the payroll as of
that date are placed on the Excelsior list, which includes the full name, address, and zip
code of the eligible voters
(i) Must be done within 7 days of the Stip, or date of decision
(ii) The employer produces the Excelsior list from its payroll immediately preceding
the cut off date
(c) Bear Truss- inaccuracies not grounds to set aside election where employer relied in
good faith on info employees provided, but employee failed to update
(d) Employee also must be employed on the date of the election
(i) Laid off employees may be eligible to vote, if expectation of returning
(ii) Persons on sick leave are eligible; but must appear at the polling area
(iii) Temporary employees may be eligible to vote, if: p219
1. Reasonable expectation test
2. Date certain test
(iv)Alleged discriminatees may vote by challenged ballot
1. Anyone that shows up at the poll will be allowed to vote by challenged ballot
(v) Strikers allowed to vote in any election conducted within 12 months of the
commencement of the strike
(2) Majority:
(a) RCA MFG- majority status is determined by a majority of those voting in the election,
NOT a majority of those eligible to vote
(i) Employer wins ties, even in decertification elections
iii) Bars to Conducting Election:
(1) Certification year- union is irrebuttable exclusive bargainer for one full year after election
(a) No election shall be directed in any bargaining unit or subdivision within which, in the
preceding 12 month period, a valid election shall have been held
(2) Contract Bar: 90-60 day window
(a) CBA- during term of the agreement, up to 3 years, no election may occur
(b) Btwn 90th and 60th day before the agreement terminates- a petition may be filed
(3) Blocking Charges
(a) Union ULP charges may stall election- on hold until there is a resolution to charges
(4) Supervisory taint
(a) If supervisors are involved in organizing, then there is an ULP and election would not
be fair
d) Unit Issues- What is an appropriate unit for purposes of collective bargaining?
i) *Look to whether there is a shared community of interest btwn the employees
ii) Bd looks at various factors:
(1) Similarity of pay and method of computing pay
(2) Similarity of benefits
(3) Similarity of hours of work
(4) Similarity of kind of work performed
(5) Similarity of qualifications, skills, and training
(6) Physical proximity and frequency of contact and transfers
(7) Functional integration of the firm
(8) The firm’s supervisory structure and organizational structure, especially as it relates to
setting and applying labor relations policies
(9) Bargaining history
(10) Employee desires
(11) Extent of union organization within the firm
iii) Bd specifically requires certain things:
(1) §9b1-professional employees must vote to be included in order to be in a unit with non-
professional employees
(2) §9b3- Guards- cannot be included in a unit with non-guards
(3) Action automotive- close relatives of management excluded if they receive special
privileges, or are aligned with management
(4) §9c5- extent of organization cant be a controlling factor
iv) Craft or industrial (plant-wide units)
(1) Globe Machine and Stamping Co.
(a) 3 unions sought to represent some or all of the employees
(b) Prior bargaining history inconclusive
(c) Preference of employees was the determinative factor
(2) Mallinckrodt
(a) Under what circs do you permit a severance election for a craft unit?
(b) Bd retains discretion to decide whether craft unit is appropriate
(3) Presumption of plant wide unit in manufacturing- wall to wall unit
(4) Presumption of single facility units- factors for finding of multiplant units p. 234
(a) Bargaining history
(b) Extent of interchange and contacts btwn employees in the various plants
(c) Extent of functional integration of operations btwn the plants
(d) Differences in the products of the plants or in the skills and types of work required
(e) Centralization of management and supervision
(f) Physical or geographical location of the plants in relation to eachother
iv) Hospital Unit issues:
(1) Bd initially used traditional community of interests standard- didn’t work
(2) ST. Francis Hospital- Disparity of interests standard
(a) Required sharper than usual differences for permitting separate units
(3) Bd then adopted a rule to create 8 separate units in acute care hospitals:
(a) RNs
(b) MD’s
(c) All other professionals
(d) Technical employees
(e) Skilled maintenance employees
(f) Clerical employees
(g) All nonprofessional employees
(4) Burden on employer to show extraordinary circs to warrant different units
d) Conduct of Elections
i) General Shoe
(1) Conduct that creates an atmosphere which renders improbable a free choice will sometimes
warrant invalidating an election, even though that conduct may not constitute an ULP
(2) Pres brought everyone into his office- antiunion address
(a) Bd- this conduct, plus propaganda, warranted setting aside the election
(3) Bd looks not only to the content of the propaganda, but also to the circs under which it was
disseminated
(a) Election was not rendered under sufficient laboratory conditions
ii) Dempster Bros- Speech held in cafeteria ok
iii) Peerless Plywood- Neither employer nor union can make speeches on company time to massed
assemblies of employees within 24 hours of the election
iv) Comet Electric- requiring employees to wait until after hours speech to get paychecks=
interference
v) Kalin Const.- split paychecks must be done outside 24 hour rule
(1) Split paycheck- shows how much union is costing
vi) Sunrise Rehab- unscheduled employees offered 2 hours of show up pay to vote- objectionable
if payments exceed actual transportation costs
vii) Dal-Tex Optical***
(1) Conduct violative of §8a1 is, a fortioriari, conduct which interferes with the exercise of a
free and untrammeled choice in an election
(a) Interferes with laboratory conditions
viii) Shopping Kart- Truth or falsity of campaign statements no longer issue Bd will investigate
for purposes of setting aside rep elections
ix) Racial appeals- Employers use of race-baiting almost never approved
x) Savair Mfg- offering to waive initiation fees to those who execute pre-election authorization
cards= union interference
(1) But offering to waive initiation fees for all employees if union wins election is not
xi) Free legal services offered by union/ free tshirt- not a violation
e) Judicial Review
i) NLRA provides for review of final orders of the Bd in an appropriate fed circuit ct in ULP
cases, either on the petition of any person aggrieved by the final order, or on the Bd’s petition
seeking enforcement of its order
ii) Leedom v. Kyne
(1) Bd approved a bargaining unit that seemed prohibited on the face of the Act
(2) Sup Ct- Fed dist Ct has jurisdiction to determine whether the Bd was acting within its
jurisdiction or beyond statutory boundaries
(3) Limited based on 4 factors for review (p.218)
2) Establishing Representative Status Through Unfair Labor Practice Proceedings
a) Board may issue a bargaining order- require the union to bargain with the authorized union
*Requires a showing of majority status
i) Bargaining orders sparely used and reserved for particularly bad fact cases
ii) Bd must take into account current circs in evaluating propriety of a bargaining order
b) Early on, Bd awarded bargaining rights to a union on the basis of signed cards from over 50% of
the employees in the bargaining unit if the cards signed authorized it to bargain on behalf of the
employee who had signed
i) Bd retreated from this- reluctant to grant bargaining rights on the basis of a card majority;
prefer election
ii) NLRB v. Gissel
(1) Serious ULP’s occurred before/ during election- destroyed laboratory conditions of election
(2) Union had majority through authorization cards of employees
(a) Cumberland doctrine- if card is written lawfully, its employer’s burden to show
invalidity in order to not count it for majority status
(3) Issue- when, if ever, can the Bd order an employer to bargain with a union on the basis of
signed authorization cards
(4) Ct- NLRB may impose bargaining order without an election to remedy pervasive ULPs that
have a tendency to undermine the union’s majority strength and the election process
(a) Upheld Bd’s position that an employer may insist upon a secret ballot election unless
the employer engages in ULP’s likely to destroy the union’s majority and seriously
impede the election
(b) Rejected employers arg that authorization cards are inherently untrustworthy
(5) **Rule of Gissel: An employer who rejects a union’s request to bargain, which is
predicated on a card count showing a majority status, and thereafter commits serious
ULP’s- runs the risk of a bargaining order being imposed as a remedy
iii) Linden Lumber
(1) An employer in the ordinary case need not bargain with the union merely on the basis of a
card majority
(a) Unless an employer has engaged in an ULP that impairs the electoral process, a union
with authorization cards purporting to rep a majority of the employees, which is refused
recognition, has the burden of taking the next step in invoking the Bd’s election
procedure
(b) An employer is not required to petition for an election in order to protect itself against a
§8a5 charge if it refuses to recognize a union based on a majority card count
iv) Jefferson Smurfit-
(1) Employer may insist on election to prove majority status, and it is the union’s burden to file
the petition for election
v) Photobell Co.
(1) If union loses the election, it must file not only ULP’s, but also timely objections to the
election and the election must be set aside before Bd will issue bargaining order
c) Bd does not issue/ Ct’s do not enforce bargaining orders often
i) Overnite- 4th Circ refused to enforce bargaining order against employer
(1) 5 years had passed since the ULP, there was high turnover among employees
(2) Concern by Ct that the effects of the ULP had dissipated, and that bc of turnover, the union
never had support of the majority of the current members of the bargaining unit
(3) Ct found new election to be adequate remedy
3) Duration of the Duty to Bargain
a) Once a union achieves representative status by election or by voluntary recognition, the employer
must recognize and bargain with it so long as that status is retained
i) Bd created a presumption that a person represented by a union continues to wish representation
by that union absent strong proof to the contrary
b) The Presumption of Continued Majority Status
i) Irrebuttable Presumption:
(1) Certification Year- an employer must recognize a union for the entire year following
certification even if it has evidence of the union’s loss of majority
(a) Brooks v. NLRB-
(i) “the underlying purpose of this statute is industrial peace. To allow employers to
rely on employees’ rights in refusing to bargain with the formally designated union
is not conductive to that end, it is inimical to it. Congress has devised a formal
mode for selection and rejection of bargaining agents and has fixed the spacing of
elections, with a view of furthering industrial stability and with due regard to
administrative prudence”
(ii) Upon certification by the NLRB as the exclusive bargaining agent for a unit of
employees, a union enjoys a irributable presumption of majority support for one
year from certification, NOT election day
1. During that time, an employer’s refusal to bargain with the union is per se an
unfair labor practice under 8(a)(1) and 8(a)(5)
2. After the first year, presumption continues, but is rebuttable (in certification
contest, where there is an election)
(2) Voluntarily Recognized Unions- irrebuttable presumption of continued majority support
applies and continues for a reasonable period of time after recognition
(a) Reasonable- defined by asking whether bargaining had a fair chance to succeed
(i) Gissel Bargaining order: reasonable period of presumption of union majority status
is no less than 6 mo and no more than a year
(b) After a “reasonable time”- presumption becomes rebuttable
(3) But See: Metaldyne/ Dana Corp- Sep 29,2007
(a) Both employers voluntarily recognized unions based on majority status established by a
neutral 3rd party’s card check
(i) Decertification petitions filed by unit employees
(b) Ct reviewed Recognition Bar Doctrine- New Law
(i) Immediate post-recognition imposition of an election bar does NOT give sufficient
weight to the protection of the statutory rights of affected employees to exercise
their choice on representation
(ii) *Election is the preferred method of choosing a bargaining rep
(c) New Law- NO election bar imposed after card based recognition, unless:
(i) Employees in the bargaining unit receive notice of the recognition and of their right
within 45 days of the notice, to file a decert petition or to support the filing of a
petition by a rival union, and
1. *Bd must send out notice to employees so they can decide whether to apply for
a petition
(ii) 45 days pass from the date of notice without the filing of a valid petition
(d) If a valid petition is supported by 30% or more and is filed within 45 days of the notice,
the petition will be processed
(i) Showing of interest can be garnered by signatures obtained before as well as after
the recognition
(e) These principles govern whether or not a card check or neutrality agreement was in
place
(i) *Blanket rule
(4) Contract Bar- irrebuttable presumption of majority status which binds the employer for the
period of time during which the CBA would bar an election (not more than 3 years)
(a) During this time, an employer cannot use doubt about a union’s majority as a defense to
a refusal to bargain charge
(b) Auciello- employer may not refuse to abide by K terms on the basis of doubt as to
majority status of union
ii) Other Rules:
(1) Airport shuttle: no contact from union for 7 months after certification is not a waiver of
obligation to bargain
(2) New Lexington Healthcare: one year irrebuttable presumption of majority status attaches to
a union which wins decertification election
(3) Mar-Jac Poultry: settlement of refusal to bargain charge entitles union to one year
irrebutable presumption of majority status
(4) Chealsea Industries: employer may not rely upon evidence acquired during the
certification year to support post-certification year claim that union had lost majority status
(5) Employee turnover? New employees are presumed to support the union
c) Loss of Representative Status
i) 3 major ways in which a union’s continued majority status can be challenged:
(1) Employer may choose to withdraw from negotiations, refuse to bargain further with the
union, and withdraw recognition on the basis that the union has lost majority support
(a) Prior to Levitz Furniture, an employer was permitted to withdraw recognition from an
incumbent union by proving either that the union had in fact lost the support of a
majority of employees or that it had a good faith doubt based on objective evidence that
the union no longer enjoyed majority support
(i) Levitz overruled good faith doubt test
1. employer can withdraw recognition and refuse to bargain ONLY IF it can prove
that the union has, in fact, lost majority support
(b) Curtin Matheson- in a strike situation in which the employer had hired permanent
replacements, Sup Ct held that the Bd was within its discretion to adopt NO
presumption regarding the union sentiments of permanent replacements
(i) Bd does not have to presume that they support or oppose the union
(ii) Court affirms refusal to presume, without direct evidence of employee preferences,
that an employer may in good faith doubt that replacement strikers support the
striking union
(2) Employer doubting the union’s continued majority status may file a petition for an election
to test the union’s majority status
(3) Employees may file a petition for a decertification election, asserting that the union is no
longer the representative of the majority

Part 3- Union Collective Action


1) Intro
a) Collective economic action- methods: Strike, Picketing, Boycott
b) Unions are in a retreat mode- steadily declining in membership since the 70’s
i) Unions are thus trying to push the Employee Free Choice Act in the Senate
(1) Employer would no longer have a right to petition for an election; certified authorization
cards would be enough
(2) Propose to augment penalties for certain UL charges
2) Anti-Injunction Statutes
a) Panama Steamship
i) A labor dispute existed- peaceful picketing of Liberian ship by American union
(1) Dist ct enjoined the picketing; no labor dispute, and even if there was, Dist Ct found
unlawful interference with foreign commerce
ii) App Ct- dist ct had no jurisdiction to enjoin peaceful picketing
(1) Norris La Guardia- deprives fed cts of jurisdiction to issue an injunction on the facts
presented (there are exceptions)
b) Exceptions to Norris LaGuardia-
i) NLRB is empowered to issue injunctions under §10e, j and l
(1) E- empowers NLRB to seek judicial enforcement of its orders
(2) F- permits a person aggrieved to petition for review
(3) J- empowers NLRB to seek appropriate pre-hearing temporary injunctive relief to prevent
ULPs
(a) 2 part test: whether there is a reasonable cause to believe the employer has violated the
Act, and whether the issuance of pre-hearing injunctive relief is just and proper
(4) L- it is mandatory for the NLRB to seek an injunction for violations by a union of §8b,
recognitional picketing, secondary boycotts, or hot cargo provisions
c) New Negro Alliance- association, not union, protested racist hiring practices by boycotting and
picketing
i) Held- Norris LaGuardia bars fed ct injunction
d) Jacksonville Bulk Terms- politically motivated longshoremen refused to load ships bound for
SovUnion
i) Non-economic motives do not remove dispute from reach of Norris LaGuardia
e) San Antonio Comm. Hospital- “this facility is full of rats” falls within fraud exception
3) Constitutional Protection
a) Thornhill v. Alabama- Blanket prohibitions on picketing without an investigation into its conduct
and purpose is prohibited by the 14th amendment
b) Teamsters v. Vogt
i) *The right to strike is neither fundamental nor afforded any protection beyond §7 of NLRA
ii) As long as a state can adduce a public policy which is served by enjoining the picket, and
articulates a rational basis for its regulation, state reg of picketing will withstand constitutional
scrutiny
c) Hudgens v. NLRB
i) Shopping center is not equivalent of company town, therefore no constitutional right to engage
in picketing or hand billing
ii) Only protection on private property is §7 of NLRA, and Bd must make an accommodation
btwn the employees §7 rights and the employers private property rights
d) Venetian Casino
i) Union has first amendment right to picket on casino’s private sidewalk bc it has a historically
public character and is interconnected to Vegas’ network of public sidewalks
e) Local 100- Lincoln Center’s fountain plaza is not a public forum- no right to rally
4) Picketing and Union Discipline
a) Regulation of Coercive Methods of Picketing
i) Meadowmoor Dairies
(1) Issue- can ct enjoin peaceful picketing when it is enmeshed with contemporaneously
violent conduct?
(2) Holding- yes
ii) Youngdahl- Peaceful picketing exempted from injunction against violence and obstruction
iii) §8b1a- it shall be an unfair labor practice for a labor organization or its agents to
restrain or coerce employees in the exercise of §7 rights
(1) Aimed at coercive conduct; not intended to prevent strike- intended to prevent intimidation
threats, violence
(2) Peaceful Action is not regulated- must have some economic/violent coercion
(a) Curtis Bros.- §8b1a applies only to acts involving violence, threats, intimidation by the
union- not to general pressure upon employees
(i) *Congress did not intend §8b1a to regulate peaceful recognitional picketing- look to
§8b4
(b) Handbilling is protected, while picketing is what is regulated by the NLRA
iv) Mass Picketing- Can be enjoined, even in the absence of violence
(1) Intimidating in and of itself
(2) Blocks access
v) Lock Joint Pipe
(1) Union officials engaged in violence and threats during strike
(2) ALJ ordered union to pay backpay to employees who did not work as a result of unions
§8b1 violation
(3) NLRB reversed- Policy of refusing backpay if the unlawful conduct consists solely of
interference with employees right to ingress and egress
vi) National Cash Register- Union and employer jointly liable for backpay where employer
unlawfully prevented an employee from working at union’s insistence
(1) Look to agency principles to determine joint liability
vii) Northern States Steel- union coercion of employees into quitting violated §8b1
(1) Backpay appropriate bc unlawful act unconnected with strike or picketing
viii) Videotaping or photographing nonunion workers crossing a picket line violates §8b1a if the
union’s surveillance would have a reasonable tendency to restrain or coerce employees
exercise of their §7 rights
ix) Picket Sign Content
(1) Cts will enjoin language which constitutes fraud, libel, misrepresentation or inciting a
breach of the peace
(2) Permitted to say things like- unfair, fascist, dictators
(a) *Use language of peaceful confrontation
b) Union Fines and Discipline as Coercion
i) Employees have §7 right to refrain from concerted activity
(1) Subject to proviso: “this paragraph shall not impair the right of a labor org to prescribe its
own rules with respect to the acquisition or retention of membership therein”
(2) Qst: when may a union apply its own rules to members notwithstanding their tendency to
burden or interfere with the employees’ exercise of §7 rights
ii) Allis Chambers
(1) Unions have the right to fine members for violating internal union rules, including fining
members for crossing a picket line and returning to work during a strike
(a) Unions may sue in ct to collect
(2) Leg intent of Taft Hartley’s §8b1a- not to regulate internal union affairs
iii) Exceptions where union may not fine members:
(1) Union discipline frustrated an overriding fed labor policy
(2) Fines for refusing to participate in a work stoppage which violated a valid no striker
provision of CBA
(3) Union may not discipline for filing charge with NLRB (protected actions)
iv) Boeing- Even excessive fines do not violate §8b1a
v) Carpenters Local 720- Procedural due process is irrelevant in determining the legality of fines
vi) Pattern Makers- Taft Hartley eliminated compulsory unionism; Members must be free to
resign at any time, with no penalty
(1) **Mailed resignation is effective at 12:01 am the day after its postmarked
vii) Radio Officers- union security agreements cannot be used for any purpose other than to compel
payment of union dues and fees
c) Organizational and Recognition Picketing
i) §8b- restricts union activity- Limits Picketing with a recognitional or organization objective
(“where an object thereof is forcing or requiring an employer to recognize or bargain with a
labor org as the rep of his employees, or forcing or requiring the employees of an employer to
accept or select such labor org as their CB rep”)
(1) §8b7 will only bar such picketing when:
(a) Another union has been lawfully recognized by the employer and K-bar rules do not
yet allow holding an election
(i) *Protects certified incumbent unions from picketing by uncertified rival unions
(b) A valid election has been held within the preceding 12 months, or
(c) No petition for election has been filed “within a reasonable period of time not to exceed
30 days from the commencement of such picketing”
(i) If the union files a petition within the reasonable period, no violation, and the
picketing can continue while the petition is processed
(ii) Employer Could try for expedited election
(iii) If union loses, continued picketing violates 8b7
(2) *Informational picketing is ok; distinct from picketing with a recognitional objective
(a) Ex- to publicize the employer’s non-union status and below union-standards wage
scales
(3) *Picketing with a recognitional objective is not regulated by §8b7 if such picketing is
PURELY informational and does not have the effect of stopping deliveries or pickups or
causing persons to refuse to perform services
ii) Blinne Construction
(1) Mixed purpose picketing- area standards, recognitional (§8b7 applies), and ULP goals
(a) *Any Union engaging in recognitional picketing must file petition within 30 days
(2) Union argued employer ULPs should relieve union from obligation to file a petition
(3) Bd- ULPs are no defense where union fails to file a petition within the 30 day period
(a) Election could just be held in abeyance pending the purging of any ULP
iii) Crown Cafeteria
(1) Picketing with recognitional objective exceeded 30 days without a petition being filed
(a) Union argued that it was informational ONLY (exception)
(2) Holding- Recognitional or organizational picketing is ok if it meets 2 restrictions:
(a) It must be addressed to the public and be truthful, and
(b) It must not induce other unions to stop deliveries or services
iv) Claude Everett
(1) Area standards picketing- picketing with the purpose of protecting the standards of the
union’s current membership from being undercut by employers who pay substandard
wages
(2) Holding- picketing did not have a recognitional or organizational purpose, and thus it did
not violate §8b7 even though it interfered with deliveries and services
(a) *Area picketing is outside the reach of §8b7 so long as the purpose of such picketing is
to induce the picketed employer into raising its wage and benefits levels to those of
unionized employers
v) Fanelli Ford- picketing solely to protect employee discharge does not violate 8b7c
vi) Picketing employees are not engaging in protected conduct when their picketing violates §8b7
(thus, employer is free to act)

Section IV. Secondary Pressure


1) Primary-Secondary Distinction
a) Rice Milling
i) Agents of the union picketed the mill with the object of securing recognition of the union as the
collective bargaining rep of the mill employees (Recognitional picketing by uncertified union)
(1) Sought to influence 2 men in charge of a truck of a neutral customer of the mill to refuse to
go to the mill for an order of goods
ii) Issue- did the outside union members attempting to influence neutral workers violate §8b4?
iii) Holding- no (Old statute - required an inducement of concerted activity)
(1) *Did not amount to such an inducement or encouragement to amount to concerted activity
(2) No attempt by the union to induce any action by the employees of the neutral customer
which would be more widespread than that already described
iv) *8b7 was not passed until 8 years later (to address this problem – close the loophole)
b) Brandon Reg. Med Center
i) Recent case involving picketing at a medical center
(1) Handbills- called the contractor a “rat employer” (+16 ft inflatable rat)
ii) Is the rat lawful? Is it a picket- a handbill- a big sign- a threat- defamation?
(1) If handbilling- handbilling exception applies (informational)
(2) Parties settled
iii) Then- mock funeral procession by union, with a grim reaper
(1) Leaflets with information; No interference with egress or ingress
iv) Issue- whether the union’s activity was equivalent to secondary picketing and patrolling which
can be regulated under §8b4iiB, or more like peaceful handbilling, which raises first
amendment concerns
(1) §8b4iiB- ULP for a labor org to threaten, coerce, or restrain any person engaged in
commerce where an object thereof is forcing or requiring any person to cease doing
business with any other person
v) Injunction issued- prohibited means used for a prohibited purpose
vi) 2 part test used to determine propriety of injunctive relief
(1) Reasonable cause to believe that ULP has occurred
(2) Whether equitable relief is just and proper
vii) Union conceded that the object of the picketing was to force hospital to cease doing business
with the contractor; Relied on handbilling proviso
(1) Ct did not agree- this was not just a handbill, its picketing
(a) Picketing- not just picket signs, but conduct which causes persons to refrain from
entering business or do business with employer
2) Common Situs Problems
a) When a primary employer is temporarily on the premises of a neutral employer, the union’s right
to picket the primary employer and the protection provided neutral employers by §8b4 are in
conflict
i) Moore Dry Dock
(1) Union picketed to protest use of a nonunion crew by the owners of the ship, which was
temporarily tied to the dock for repairs and preparation
(a) Shipyard employees refused to work
(2) Usually the situs of a primary labor dispute is the primary employer’s premises
(a) Where a ship or truck or other movable work site is the primary presence which the
union seeks to picket, it is referred to as an “ambulatory” situs
(3) Issue- does the right to picket follow the situs while it is stationed at the premises of a
secondary employer, when the only way to picket that situs is in front of the secondary
employers premises
(4) Bd- the right of the union to picket at the site of its dispute must be balanced against the
right of a secondary employer to be free from picketing concerning a controversy that does
not involve it
(5) Picketing is primary (legal) if it meets the following conditions: Common Situs Picketing
(a) The picketing is strictly limited to times when the situs of dispute is located on the
secondary employers premises;
(b) At the time of the picketing the primary employer is engaged in its normal business at
the situs;
(c) The picketing is limited to places reasonably close to the location of the situs, and;
(d) The picketing discloses clearly that the dispute is with the primary employer
(6) Criteria met here
(7) Limited holding… specific to facts here
(a) Continued picketing after the removal of the shipowners employees from the ship
would violate §8b4b
ii) Denver Building Trades
(1) Issue- whether a union committed a ULP by violating §8b4a by engaging in a strike, an
object of which was to force the general contractor on a construction project to terminate its
K with a non-union subcontractor?
(a) Bc the union employees refused to cross the picket line, the job was shut down until the
GC removed the subcontractor from the job
(2) Sup Ct held picketing violated §8b4b bc the object of the picketing was to force the general
to terminate the subcontractor
(a) The existence of the subcontractor relationship makes unlawful activity which would be
lawful if a single employer had employed all of the employees
(b) Picketing the GC would have been lawful, except that it involved the employees of
another (secondary) employer
iii) When neutrals and the primary employer and those doing business with them use the same gate
or entrance, the union may lawfully picket the common entrance in order to get its message
across to the work force of the primary employer and others doing business with it.
(1) To avoid disruptions, neutral employers at a common site will ask for a reserved gate
system; union must restrict its picketing to the gate(s) reserved for the primary employer or
face secondary boycott liability
(2) General Electric
(a) GE owned a manufacturing facility with 5 separate entrance gates
(i) Gate 3A was a reserved gate for employees of contractors- GE employees were not
to use it
(b) Issue- legality of picketing at the reserved gate (violation of §8b4?)
(c) 3 findings to support liability: (test applies to cases where neutrals are working on the
property of the primary employer)
(i) Existence of a separate gate, marked and set apart
(ii) Work done by employees who enter the sep gate must be unrelated to normal ops of
the primary employer
(iii) Work must be of a type that would not require the curtailing of the normal
ops of the plant
(d) Under this decision, a union may picket a gate being used by a contractor doing work
on the struck employer’s premises if the contractor is doing work necessary to help the
employer continue operations in the face of the strike or work which enables the
employer to lessen the economic impact of the strike by completing projects which
would otherwise have curtailed production if not done during the strike
(i) C/R Ally doctrine
iv) Markwell and Hartz
(1) Bd does not apply GE test to evaluate picketing at a common situs in the construction
industry even when the dispute is with the general contractor (Apply Moore Dry Dock)
(2) When the primary is on a construction site it is but one of several employers operating on
the premises owned and operated by a third party
(a) A subcontractor and general contractor on a construction project are separate employers
doing separate work
3) Class Update- Current changes to the law
a) BE&K Construction-
i) Bd- a completed lawsuit that is reasonably based cannot be found to be an ULP
(1) Issue is whether the suit is reasonably based
(a) Adopted anti-trust test to determine whether suit is reasonably based:
(i) no reasonable litigant could realistically expect success on the merits
(2) Holding- maintenance of a reasonably based suit is lawful regardless of the motivation for
filing it
(3) Since Sup Ct found underlying suit was reasonably based, there is no issue
b) E-Mail- Issues:
(1) Do employees have a right to use their employer’s email system to communicate with other
employees about union or other concerted protected matters?
(a) What restrictions?
(i) Discriminatory limitations?
(2) Should the bd apply traditional rules regarding solicitation and/or distribution?
(3) If employees have a right to use their employer’s email system, may an employer
nevertheless prohibit email access to its employees by non-employees?
(4) If employees have a right to use the email system, what restrictions?
(5) Location of employees workplace- other than that maintained by employer
(6) Is the use of email system a mandatory subject of bargaining?
(7) If §7 right, is that right waivable by union?
2) Salting
a) Salting- refers to paid or unpaid union organizers who apply for jobs with an employer to:
i) Get a job and advocate for union affiliation from inside the company, or
ii) Set an unwitting employer up for a ULP
b) It is an ULP for an employer to refuse to hire an applicant merely bc the applicant plans on
expressing union views- violates §8
c) Typically, a salt will apply for a job making it known on the application that union organizing is
his or her intention
i) Unions defend the tactics saying it is necessary to further workers rights after Lechmere
d) Town and Country Electric (Sup Ct 1995)
i) Company refused to interview 10 of 11 union applicants who answered employment ad
(1) NLRB held that company had committed ULP by discriminating on the basis of union
membership
(2) 8th Circ refused to enforce- term “Employee” does not cover those who work for a
company while a union simultaneously pays them
ii) Issue- can a worker be a company’s “employee” within the terms of the NLRA if, at the same
time, a union pays that worker to help the union organize the company?
iii) Holding- yes
iv) Statute defines “employee” to mean any employee, and shall not be limited
(1) Broad definition of “any employee”
v) Thus, Sup Ct left available to unions the possibility of sending its organizers to target
companies as job applicants who can then campaign from within (And thus salts are protected)
e) Toering Electric
i) Holding- an applicant for employment must genuinely be interested in seeking to establish an
employment relationship with the employer in order to qualify as a §2 employee and thus be
protected against hiring discrimination based on union affiliation or activity
(1) General Counsel bears the ultimate burden of proving an individual’s genuine interest in
seeking to work for the employer
f) Oil Capital
i) Revises backpay rules in salting cases
(1) Before, backpay period runs from the time of the unlawful act until the employer made a
valid offer of reinstatement/ instatement
(a) Presumed that a salt, if hired, would have stayed on the job for an indefinite period
(2) The reality is that salts, when hired, stay on the job until:
(a) They succeed in their organizational effort, or
(b) Reach the point where such efforts are unsuccessful
ii) Burden shifted to union to establish that the employee would have remained employed
(1) Dissent argues that this rewards the wrongdoer by giving it the benefit of the uncertainty
g) St. George Warehouse
i) Modified NLRB procedures in backpay cases
ii) Under the new rule, the General Counsel has the burden of producing evidence concerning
employees’ efforts to find interim employment after an unlawful discharge
h) Other-
i) Pacifica Foundation- Bd held that unpaid staff at a nonprofit radio station are not employees
under the NLRA
(1) Must receive compensation in order to be an employee
ii) Truth in Employment Act- would amend NLRA to hold an employer is not required to employ
any person who seeks a job to promote interests unrelated to those of the employer
3) Employee Free Choice Act
a) Pending legislation in Congress; Would amend NLRA-
i) Certification based on signed authorization cards (no election)
ii) First K binding mediation and arbitration
(1) Binding for 2 years
iii) Stronger penalties for certain ULP
(1) Backpay- 2 times backpay as liquidated damages
(2) Civil fines up to 20k for willful and repeated conduct
Part IV Collective Bargaining
1) Once a collective bargaining representative has been designated or selected by the employees, the
employer must recognize the representative and bargain in good faith.
2) The Duty to Bargain Collectively
a) Exclusive Representation and Majority Rule
i) Recognition of a majority representative, whether voluntary or mandatory, excludes any other
person or group seeking to represent the same employees regarding wages, hours, and other
terms and conditions of employment (§9a)
ii) JI Case Co v. NLRB
(1) 75% of employees had Ks with employer
(2) Then, a union was certified- Tried to bargain with employer
(3) Employer- raised existing K’s as bar to negotiating with the union
(4) Holding- individual K’s of employment are not a defense for an employer who refuses to
bargain with certified union
(a) Obligation to bargain supercedes- must collectively bargain with certified union
(b) Individual K’s cannot detract from collective agreements
(5) Concern by the Ct that employer could undermine collective union efforts with individual
bargaining
(a) Cant allow employer to appeal to individual interests over collective bargaining
(6) Employees may not K to waive benefits conferred in collective bargaining
(a) Collective bargaining binds dissenters, even if they individually could negotiate a better
deal- *the group bargains as one
(i) even in right to work states (don’t have to belong to the union, but are bound by the
terms of CBA)
(7) Affirms concept of exclusive representation
(a) Individual advantage is collectivized and is deemed a contribution to the collective
result
(b) Does not foreclose individual agreements completely, only those which undercut or
detract from collective bargaining
iii) Caterpillar
(1) A P covered by a CBA is permitted to assert legal rights independent of that agreement,
including state-law K rights, so long as the K relied upon is not a CBA
iv) Emporium Capwell Co v. Western Addition Community Organization
(1) Issue- in light of the national policy against racial discrimination in employment, does the
NLRA protect concerted action by minority employees to bargain with their employer over
issues of racial discrimination?
(a) Dissident employees rejected K grievance proceedings, refused to participate and
sought to bargain directly with management rather than through the union
(2) Sup Ct- picketing is not protected bc individuals may not bypass certified union and
bargain directly with their employer
(a) Exclusivity rule is efficient, and exclusivity shores up union strength
v) E. Chicago Rehab Center- employees who walk off the job without union authorization are
protected (unauthorized walkout= wildcat)
(1) *employees may not attempt to bargain with the employer individually
(2) Unauthorized wildcat activity is generally protected unless it
(a) Constitutes an attempt to bargain with the employer
(b) Bypasses the union as bargaining rep, or
(c) Undermines the union’s efficacy
vi) Chelsea Labs- dissident employee who insists his employer discuss replacing incumbent union
is protected
b) Nature of the Duty to Bargain
i) NLRA:
(1) §8a- it shall be an ULP for an employer to refuse to bargain collectively with the reps of his
employees
(2) §8d- defines collective bargaining as the performance of the mutual obligation of the
employer and the rep of the employees
(a) to meet at reasonable times,
(b) to confer in good faith
(c) with respect to wages, hours and other terms and conditions of employment
(d) or the negotiation of an agreement, or any qst arising thereunder
(e) and the execution of a written K incorporating any agreement reached if requested by
either party
(f) but such obligation does NOT compel either party to agree to a proposal or require the
making of a concession
(3) §8b- union cannot refuse to bargain collectively with the employer, provided it is the rep of
his employees
(a) Steelworkers and Skibeck
(i) Union violated NLRA by unilaterally instituting a ban on members’ acceptance of
temporary supervisory assignments despite a provision of the CBA granting
company the right to make such assignments
(b) Concerted refusals to work overtime compel employer to give into bargaining demands
constitutes strike in violation of 8b3 since no notice or cooling off period occurred
(c) Phelps Dodge- Union insistence on joint negotiations with employer for all bargaining
units violates 8b3
(i) Integrity of established bargaining unit may not be unilaterally attacked
ii) Good Faith
(1) A sincere desire- an open mind and sincere effort to find a basis- to reach an agreement
(2) General Electric
(a) Boulwareism- concept of bargaining where the employer researches the employees’
desires, then translates its research into a firm, fair, and final proposal for bargaining
purposes- take it or leave it
(i) Employer then publicizes and markets the proposal to the employees and the public,
and refuses to engage in trading or negotiating at the bargaining table
(ii) *Undercuts the union completely
1. Dealing with the union through the employees rather than with the employees
through the union
(b) Rule- company must work with the employees through the union
(c) Also- Parties have the right to choose the rep that they wish to be present at the table
(i) Exception- where the choice presents a clear and present danger to the collective
bargaining process
1. Violent propensity might encumber vigorous exchange of positions during
bargaining
(3) Dierks Forests- Hard bargaining is not per se unlawful
(a) As long as its in good faith, its fine
(b) At some juncture in the negotiations an employer may make a firm and final offer
(i) Philip Carey- no violation when employer made final offer at 22nd meeting in
series of give and take sessions (Good faith effort prior to the final offer)
(4) Surface Bargaining- going through the motions with perceptible intent never to reach an
agreement
(a) NLRB will find the employer is engaging in unlawful surface bargaining
(b) In order to prevent surface bargaining, the Bd must consider the substantive proposals
of the parties **Fact driven determinations
(i) Little or no wage increase during period of high inflation
(ii) Insisting on ct reporter at K negotiations
(iii) Intractable insistence on unpalatable management rights clause
(c) Good faith of the employer is judged by the totality of the employers conduct including
conduct away from the bargaining table (Pre-election speeches included)
(i) As long as the employer does not manifest a mindset at odds with reaching an
agreement
(5) Employer has first amendment right to communicate bargaining proposals to employees as
long as it does not bargain directly with the employees
(a) Employer is not required to give union meaningful opportunity to consider a proposal
before employer communicates it to employees
(b) But- Ryan Iron Works- company Pres who invited individual for 3 hour car ride to
discuss progress of negotiations engaged in direct dealing in violation of 8a5
(6) Chicago Local No.- company proposes terms and advises union they will be withdrawn if
not accepted in a specified period of time. Withdrew proposals after union rejected them
(a) No violation
(7) Tentative agreements- Withdrawal of a TA without a really good reason can be a violation
(8) Suffield Academy- Once agreement is reached, ratified by the union, it’s a violation if
employer refuses to sign
(9) NLRB v. American National Insurance
(a) Employer insisted upon inclusion in CBA a management rights clause which precluded
from arbitration many mandatory subjects of collective bargaining: hiring, discharge,
promotion, work schedules, etc
(b) NLRB’s position- by insisting on a management rights clause which gives the employer
final decision making on a mandatory subject of bargaining, the employer is refusing to
bargain over the issues covered by the management’s rights clause
(c) Sup Ct- disagreed
(i) As long as the bargaining or the clause was in good faith, a management’s rights
clause does not violate §8a5
(ii) Bd may not compel concessions, or sit in judgment on substantive proposals
(iii) Bd may use insistence on management’s rights clause as evidence of bad
faith if coupled with other evidence
(10) Union member behavior:
(a) work slowdown and other harassment of management by unionized employees not a
refusal to bargain; such conduct, however is not protected, and may be a legitimate
basis for discipline
(b) refusing to negotiate outside working hours and refusing unpaid leave to employees on
the bargaining committee violates 8a5
iii) Bargaining Remedies
(1) In remedying ULP’s, §10c mandates that the Bd take such affirmative action including
reinstatement of employees as will effectuate the policies of the Act
(a) Limitations:
(2) H.K.Porter
(a) Union certified- bargaining commenced
(i) Company refused to give check off
(b) BD found refusing check off was intended to frustrate the making of a CBA- ordered
the employer to agree to the dues checkoff
(c) Issue- can the Bd compel a company to agree to any substantive contractual provision
of a CBA?
(d) Sup Ct-NO- the Bd has the power to compel employers and employees to negotiate,
but the NLRA does not require either party to agree to particular provisions of a
CBA
(i) Bd cant force them to agree to anything
(3) Clearwater Finishing
(a) Employer granted wage increase to non-union workers same day it began bargaining
with union representing other workers
(b) Agreement reached on wage increase for represented workers, but the company refused
to make it retroactive
(c) Bd found violations and ordered retroactive wage increase
(d) 4th Circ denied enforcement- Bd had no authority to do that
(4) Invaldi- when the company refused to execute an agreement ALREADY reached with the
union, it violates 8a5
(a) 9th circ enforced order to employer to execute the K
(5) Colfor, Inc- NLRB remedies employer’s refusal to bargain by extending cert year by 6
months
(6) Ex-Cello Corp
(a) Trial examiner imposed compensatory remedy by ordering employer to compensate the
employees for the monetary loss incurred as a result of the employer’s refusal to
bargain
(i) Employer was testing certification, not flagrantly violating the act
(b) Issue- Does the Bd have this authority?
(c) Holding- No- providing retrospective remedy is no different than imposing a
prospective K term on employer
(d) By this proposed remedy the gov’t forces the employer to accede to the union’s demand
(e) Dissent-
(i) §10c of the Act directs the NLRB to remedy ULPs by ordering violators to cease
and desist their unlawful conduct and to take such affirmative action including
reinstatement of employees with or without backpay as will effectuate the policies
of this Act
1. language affords the interp that there are broader remedies in the Act
(ii) No new terms were added to the K by the compensation- compensatory only
(7) Tiidee II- NLRB remedies flagrant violations with order for employer
(a) To pay union’s litigation expenses,
(b) To provide employee addresses and
(c) Provide access to company bulletin Bds
(8) Unbelievable Inc- reverses precedent and says Bd lacks authority to award attnys fees and
lit expenses
(a) *Expenses, fees, and costs of union and NLRB are more likely than specific benefits to
employees in cases of flagrant employer misconduct
iv) Unilateral Action
(1) Employer may not make unilateral changes in existing wages, hours or terms and
conditions of employment before the parties have reached an impasse in negotiations
(2) NLRB v. Katz
(a) Employer announced new auto wage increases, merit increases and a change in sick
leave policy while the parties were negotiating
(i) The employer was bargaining in good faith- there was no evidence of bad faith
(b) Holding- violation of §8a5; Cant bypass the union
(i) a refusal to in fact meet and confer about any mandatory subject of bargaining
about which the union seeks to negotiate is a refusal to bargain even where the
employer truly seeks an agreement ultimately
(3) Impasse- reached when there is no realistic possibility continuing negotiations would be
fruitful
(a) Must be an overall impasse as to the agreement as a whole before the employer may
unilaterally implement changes to working conditions
(b) Employers declare impasse and unilaterally implement at their peril
(4) Unilateral change after impasse- unilateral changes after impasse that implement proposals
consistent with final offers made to the union do NOT violate §8a5
(i) If there is an overall impasse, employers may implement only a final offer, which:
1. Is a product of untainted good faith negotiations
2. Has been presented to, and rejected by the union
3. Is implemented in a manner that does not disparage the union in its capacity as
bargaining rep, or
4. Disparage the collective bargaining process
(ii) Implementation of changes more favorable than the final offer are unlawful
(iii) Implementation of changes less favorable than the final offer are lawful
v) Supplying Information
(1) Union is entitled to information required for bargaining
(a) Job descriptions- Wages, terms, and conditions of employment
(i) Benefits packages, etc.
(b) Upon request, this info must be made available to the union
(2) NLRB v. Truitt Manufacturing
(a) Financial data need not be supplied unless the employer claims a financial inability to
meet union demands
(b) An employer who asserts an unwillingness to pay, as distinguished from an inability to
pay, has no duty to disclose financial info
c) The Subject Matter of Collective Bargaining
i) Three categories:
(1) Mandatory- terms and conditions of employment
(a) Wages, benefits, hours, terms and conditions
(i) No-strike clause; change in a union’s work jurisdiction
(b) Refusal to discuss a mandatory subject is a violation of 8a5; must be at the table
(c) Duty of good faith; duty to disclose relevant information and refrain from pre-impasse
unilateral changes
(2) Permissive- all other matters which are not illegal
(a) The parties may bargain by mutual agreement, but neither side may insist on a proposal
to an impasse
(b) Ex- performance bonds, the amount of an agency shop fee charged nonmembers,
interest arbitration clause
(c) A refusal to discuss or negotiate a permissive subject is not illegal
(3) Illegal
ii) NLRB v. Wooster Division of Borg-Warner Corp
(1) Employer insisted that CBA include:
(a) A ballot clause calling for a pre-strike secret vote on the employer’s last offer
(b) A recognition clause which excluded the international union as a party, despite the
international union being the certified bargaining rep
(2) *Neither clause is a mandatory subject
(3) Ct- An employers refusal to enter into a CBA unless it contains a subject which is not a
mandatory subject of bargaining is a refusal to bargain about the mandatory subjects
(a) Cannot create an impasse on permissive subjects; violation of §8a5 bc
iii) Pittsburgh Plate Glass
(1) Retirees are not “employees” under NLRA
(a) Bargaining over retiree rights is a Permissive subject
(2) Remedy for a unilateral mid-term modification of a term relating to a permissive subject of
bargaining is not a finding of a ULP but rather an action for breach of K
iv) Discontinuing Operations
(1) Fibreboard
(a) Issue- is contracting out maintenance work a mandatory subject of bargaining?
(b) Holding- contracting out of work, where the replacement of bargaining unit employees
with employees of an independent contractor who will perform the same work under
similar conditions of employment is a mandatory subject of bargaining
(c) Remedy- bd ordered resumption of maintenance ops by employer and the payment of
backpay was enforced
(2) First National Maintenance
(a) Maintenance contractor- performed cleaning and maintenance services for commercial
customers in NY City
(i) Company wanted to terminate its K with a nursing home, which would terminate
some jobs
(ii) Union requested bargaining- company refused and terminated the K
(b) Sup Ct- reversed Bd finding of failure to bargain over decision
(i) Bargaining over decisions substantially affecting continued availability of
employment is required only where the benefit for labor/management relations or
the collective bargaining process outweighs the burdens placed on the conduct of
the business
(3) Dubuque Packing
(a) What is the test to be used to determine whether relocation is a mandatory subject of
bargaining?
(i) GC has the initial burden of showing that the employer’s decision involved a
relocation of unit work unaccompanied by a basic change in the nature of the
operations
1. If burden is met, a prima facie case that the employer’s decision is a mandatory
subject has been made
(ii) Employer can rebut GC’s prima facie case by showing work is different, or
performed differently, or
(iii) Employer may show
1. Either labor costs were not a factor in the decision, or
2. If labor costs were a factor, the union could not have offered a concession that
would change them
(b) Subcontracting cases not applicable to relocation issues, bc employer usually tends to
continue the same basic operations at the new facility
(i) The test does not apply to subcontracting decisions
d) The Duty to Bargain During a Contract’s Term
(1) Tide Water- §8d contains procedural requirements that must precede termination or
modification of the CBA:
(a) Termination or modification of the K can occur only if:
(i) Written notice is served of the proposed modification or termination 60 days in
advance of expiration,
(ii) Offers to meet and occur with the other party,
(iii) Notice to FMCS within 30 days,
(iv)60 day cooling off period during which K continues in force, or until K expires,
whichever is later. During this period no strike or lockout.
(2) Jacob’s Manufacturing
(a) 2 yr CBA had wage reopener after first year- union wanted to discuss health insurance
and pensions
(b) Issue- whether the subjects of insurance and pensions were contained in the K; if they
were, no duty to bargain existed- if they were not, the employer had a duty to bargain
over these mandatory subjects
(c) Ct- split decision
(i) 2 bd members would hold both issues must be open to bargaining- duty to bargain
over all unwritten mandatory subjects
(ii) Dissenting 2 urge K stability should prevent renegotiating matters not specifically
addressed in the reopener
(iii) 5th bd member- pensions were bargainable bc they were not discussed in the
CBA, but insurance was not bc it was discussed
(d) Parties can avoid a duty to bargain about matters not contained in the agreement (such
as pensions here) by including a waiver known as a “zipper clause” in the agreement
(i) But, they can be challenged
2) (More) Secondary Pressure
a) The Ally Doctrine
i) Ally Doctrine- concerted action against an employer who is performing “farmed-out” work for
the account of another employer whose employees are on strike will NOT be treated as a
secondary boycott
ii) Royal Typewriter
(1) Ct- an employer is not within the protection of §8b4a when he knowingly does work which
would otherwise be done by the striking employees of the primary employer and where this
work is paid for by the primary employer pursuant to an arrangement devised and
originated by him to enable him to meet his contractual obligations
b) Consumer Picketing
i) Tree Fruits
(1) Union striking fruit packers picketed supermarkets to persuade customers not to buy WA
apples
(2) Ct- picketing which merely follows the struck product did not threaten, coerce or restrain
the secondary party within the meaning of §8b4iib
(3) Thus- a union may follow a struck product to the store of the secondary employer who sells
it and appeal to the customers of the secondary to not buy the primary’s product
(a) BUT- union cannot urge customers to stop patronizing the entire store
ii) Safeco Title Insurance Co
(1) Issue- whether §8b4iiB forbids secondary picketing against a struck product when such
picketing predictably encourages consumers to boycott a neutral party’s business
(2) As long as secondary picketing only discourages consumption of a struck product,
incidental injury to the neutral is a natural consequence of an effective primary boycott
(a) Product picketing that reasonably can be expected to threaten neutral parties with ruin
or substantial loss simply does not square with §8b4iiB
iii) Merged product doctrine- once the “hot” product becomes merged with the neutral’s product,
consumer picketing is not appropriate
(1) Bread in a restaurant is a merged product, but bags used in a grocery store are not
c) Threats and Coercion of Secondary Employers
i) NLRB v. Servette
(1) Union on strike of Servette (a wholesale food distributor)
(a) Union threatened to pass out handbills asking managers not to handle goods from
Servette, and urging the public not to buy items distributed by Servette
(2) Ct- no violation of §8b41 (no attempt to get managers to cease working), nor of §8b4ii
(handbills did not threaten, restrain, or coerce)
ii) Debartolo Corp
(1) Handbilling at shopping mall truthfully revealed the existence of a labor dispute and asked
customers not to patronize any mall stores until the mall owner promised not to use non-
union contractors to build out other stores in the mall
(a) No picketing or patrolling was involved
(b) Union seeking only a consumer boycott against other mall tenants, not a secondary
strike by their employees
(2) Holding- handbilling is exempt from reach of §8b4iiB- First Amendment = its not coercive
(3) The loss of customers bc they read a handbill is the result of lawful persuasion, not
unlawful coercion
iii) §8b4 Analysis:
(1) Is the union picketing? If not (ie handbilling only) it is lawful even if aimed at secondary
employer. First amendment concerns mean such persuasive pressure is not coercive, unless
it has the effect of interfering with delivery or services. If so, §8b4 applies
(2) If the pressure is directed towards a primary employer, it is lawful, but §8b7 may apply
(organizational or recognitional picketing)
(3) If the pressure directed towards a secondary employer
(a) Does it violate i or ii?
(b) Does it have a prohibited object?
(c) If yes to both, then it is unlawful
iv) Restrictions on Unions:
(1) Strikes and picketing directed as the primary employer are lawful
(2) Noncoercive requests by the union to a secondary employer not to buy the primary’s
products are also lawful as a primary boycott
(3) A union’s appeal to the secondary employer’s employees to strike, or to the secondary’s
customers not to purchase from the secondary until the secondary stops doing business with
the primary are UNLAWFUL secondary boycotts
d) Hot Cargo Agreements (NOT on exam)
i) Hot cargo agreement- voluntary agreement btwn a union and a neutral employer by which the
latter agrees to exert pressure on another employer with whom the union has a dispute, as by
ceasing or refraining from handling, using, selling, transporting, or otherwise dealing in any of
the products of an employer that the union has labeled as unfair
(1) Prohibited by Landrum-Griffin
ii) Sand Door
(1) Voluntary boycott clauses are not illegal
(a) Could be enforced, though not by strike or economic pressure
iii) Then, Landrum Griffin-
(1) Made it a ULP for any union and any employer who is a common carrier to enter into any
K whereby such employer ceases or refrains from handling.. any of the products of any
other employer
Section 6- Featherbedding
1) Featherbedding- a union practice designed to increase employment and guarantee job security by
requiring employers to hire or retain more employees than are needed
a) §8b6 makes it a ULP for a union to cause or attempt to cause an employer to pay for services not
performed
2) American Newspaper Publishers v. NLRB
a) Ct- narrowly construed the statute to prohibit payment for work not done
i) Payment for “made work” is left to collective bargaining
b) As long as employees are doing work, then no ULP
3) NLRB v. Gamble Ent.
a) In bargaining, in return for a union agreeing to allow out of town orchestras to perform in owner’s
theatre, the union proposed that theater owner agree to employ local musicians for independent
performance
b) Holding- no violation, bc they actually performed
Section 8- NLRA Preemption
3) Preemption- where fed labor law is said to preempt state law, the state law in qst must give way in
favor of the federal scheme
a) Garmon- the NLRA preempts state reg of conduct that is protected or prohibited by the Act, or that
is arguably protected or arguably prohibited by the Act
b) Machinists- the NLRA not only protects some conduct and prohibits other conduct, it also leaves
open a field of economic conflict that Congress intended to keep unregulated
c) §301 provides for concurrent jurisdiction in state and fed cts to hear claims brought under CBA's,
and the Ct has held that to promote uniformity in the interpretation of CBA's, fed law shall govern
in 301 claims
4) Gus v. Utah
a) Ct created a legal “no man’s land” under the labor laws by holding the states were preempted from
acting to regulate industries which “affect commerce”
i) NLRB declines jurisdiction and states are prohibited from regulating
5) Garmon Preemption
a) Issue- whether a state had jurisdiction to award tort damages under state law against a union for
engaging in peaceful picketing
b) Holding- when it is clear or may fairly be assumed that the activities which a state purports to
regulate are protected by §7, or constitute a ULP under §8, due regard for the fed enactment
requires that state jurisdiction must yield
i) Preempts anything if it is protected, proscribed, or arguably either
c) Deference to the exclusive, primary competence of the Bd
d) If the Bd decides, subject to appropriate fed judicial review, that conduct is protected by §7, or
prohibited by §8, then the matter is at an end
i) To avoid potential conflicts that would frustrate the purpose of the NLRA
e) Judicial action is preempted even if the NLRB declines to assert jurisdiction (no man’s land)
f) Judicial action is preempted even where the remedy involved is unavailable under the NLRA
g) Exception: States have a compelling interest in remedying violence and imminent threats to public
order
6) Injunctive Relief-
a) When a state ct enjoins union collective action which appears to be within the exclusive
jurisdiction of the NLRB, a fed ct will not entertain a union suit to enjoin the state ct action
b) If an ULP is filed, and the NLRB has sought an injunction, a fed ct may enjoin the state action, in
aid of its jurisdiction
7) Lockeridge
a) K action brought by a suspended union member against his union in Idaho state ct
b) Idaho S. Ct finds jurisdiction-
i) Garmon only applies to situations where state is trying to regulate labor relations
(1) This is just state law breach of K
c) Ct- Garmon applies here and preempts state law; Ct wanted to create a workable Garmon
preemption doctrine
i) Preemption is designed to avoid conflicting regulation of conduct
ii) In enacting the NLRA Congress sought not merely to change the substantive law, but also to
restructure fundamentally the process for effectuating that policy
(1) Comprehensive legal system controlled by an expert administrative body
8) Machinists’ Preemption- Permissive preemption
a) After expiration of CBA, union refused to work OT to exert pressure on employer
i) NLRB dismissed charge of ULP; not prohibited
ii) State charge- found a violation and enjoined the union
b) Policy of federal labor law is to prohibit some forms of economic pressure, protect other forms,
and to leave other forms unregulated
c) States may not regulate union economic pressure that is neither protected nor prohibited under the
NLRA
i) Unregulated economic pressure is subject only to market forces
9) Preemption exceptions:
a) A state’s decision to pay strikers unemployment benefits is not preempted
b) Federal and state minimum employment standards are not preempted
c) One time severance benefit for plant closing not preempted
d) Trespassory union collective activity may be enjoined. State Ct jurisdiction not preempted
e) Garmon- a state may regulate conduct that is only of peripheral concern to the Act
10) Belknap
a) Issue- whether a state ct action for breach of K and misrepresentation brought by permanent
replacement workers who were ousted as part of a strike settlement was preempted
b) Ct rejected Machinists and Garmon preemption here
c) While fed law intends to leave the employer and union free to use economic weapons against each
other, it does not insulate either the employer or the union from suit arising from their injury of
innocent third parties otherwise actionable in state ct
11) Linn- false and malicious statements during course of labor dispute actionable in state court damages
suit, despite fact that stmts are ULP also
a) Complainants must show the defamation was malicious and prove actual damage
12) Farmer- intentional infliction of emotional distress exception
13) Preemption Trap
a) Golden State Transit- Machinists preemption prevents city of LA from imposing upon employer
the obligation to settle a labor dispute by a specific deadline or risk losing its city license to operate
i) Employer had fed ct damages action against city under §1983 for violating LMRA rights
Enforcement of CBA’s
3) Legal Status of the Collective Agreement
a) §301 of LMRA- suits for violations of K’s btwn an employer and a labor organization representing
employees in an industry affecting commerce may be brought in any district ct in the US, without
respect to the amt in controversy
b) Most enforcement issues are settled by voluntary arbitration
c) Lincoln Mills- fed cts have jurisdiction to enforce collectively bargained arb clauses and to compel
arb of disputes
d) Textron Lycoming- §301 limited to suits for violation of K’s, and not suits seeking to invalidate
them alleging fraudulent inducement
e) Hoosier Cardinal- §301 suits by labor orgs governed by state statutes of limitation
f) Del-Costello- §301 suits by individuals claiming union violated duty of fair rep must be brought
within 10b 6 month period
g) Lion Dry Goods- §301 applies to any K, not just those collectively bargained by majority union
i) Minority K’s can be enforced
h) Steelworkers Trilogy- rules on construction of arbitration clauses
i) United Steelworkers v. Warrior and Gulf-
(1) CBA provided for arb of grievances (excluded matters strictly a function of management)
(a) employer- contracted out work, which resulted in the elimination of a number of jobs
(b) employees laid off filed grievance
(c) employer refused arb based on management exclusion; management decision
(2) Sup Ct- must arbitrate
(a) noted the profoundly fundamental difference btwn labor arb and commercial arb
(i) commercial arbitration is a good idea
(3) CBA's including arbitration clauses are enforceable
(a) they are a good way to solve problems that may arise, in accordance with the desires of
the parties; a good way to give meaning and content to the CBA
(4) underlying issue- whether contracting out work violated the CBA
(a) this is an issue for the arbitrator based on CBA's provision for arb of grievances
(b) *Unless the matter is expressly excluded, all disagreements are subject to grievance and
arbitration
(i) while a clear exclusion of the grievance from arb will lead to a finding that it is not
arbitrable, the broad arb clauses here combined with the unclear exclusion created
an ambiguity (thus, presumption of arbitrability wins)
ii) United Steelworkers v. American Manufacturing
(1) Arb clause covered any disputes as to the meaning of the CBA
(a) injured worker- employer refused to reinstate- refused to arb
(2) Sup Ct ordered arbitration- the company must arbitrate grievances falling within the arb
clause, regardless of how frivolous the claim
(a) Sole issue is whether the party moving for arb is making a claim which on its face is
governed by the CBA (the only thing the Ct decides)
(b) Cts should not decide the issues- only whether it should go to the arb
iii) Enterprise Wheel and Car- standard of review of arb awards
(1) *Rule- arbitration award is not subject to judicial review as long as it derives its essence
from the CBA
(2) even though a ct may find an opinion ambiguous, that is no basis to refuse to enforce
(a) if merely ambiguous, Ct should enforce it
(3) Cts cannot overrule the arb merely bc they might interpret the K differently- narrow scope
of review
iv) AT&T- whether the parties agreed to arbitrate the issue is for the Ct to decide
v) Conclusion:
(1) presumption of arbitrability
(2) role of Ct is extremely limited; if a claim is arguably subject to the arb clause, the cts
should compel arbitration
(3) a vague management's rights exclusion of the disputed subject from arb will NOT bar arb
(4) as long as the decision derives its essence from the agreement, it is not subject to review
i) Public Policy Cases
i) Misco, Inc
(1) company discharged an employee for being in a car with a lit marijuana cigarette, citing
violation of rule against drugs on plant premises
(2) arbitrator upheld the grievance, holding that the company's proof did not establish that the
grievant possessed marijuana on company premises
(3) lower ct- set award aside bc it violated public policy
(4) Holding- Cts do not review claims of factual or legal error made by the arbitrator
(a) arb may not ignore the plain language of the K; decision may not be based on fraud or
dishonesty
(i) silly imprudent fact finding is not going to be overturned
(b) *public policy may not be used as a basis to set aside an arb's award unless that public
policy is explicit and well defined by reference to laws and legal precedent
ii) Class- enforcement of CBA
(1) duty to arbitrate expires with the CBA
(a) but, duty to arbitrate is tied to the underlying grievance (when it occurred)
(2) Arb awards of reinstatement and other remedies are wholly dependent upon the continued
validity of the CBA
(a) if the union is decertified, employees become at-will employees as of the decert date
j) Enforcing the No-Strike Clause
i) Boys Market Injunctions- exception to the general rule of no injunctions (judicially created
exception to Norris-LaGuardia)
(1) Sup Ct- Cts may enjoin a strike over an arbitrable issue even in the absence of a no-strike
clause, if the employer is willing to arbitrate
(a) the effect of this ruling is that the cts may imply the existence of a no-strike clause
where CBA provides for arbitration
(i) *Industrial peace- forcing the use of procedures mandated by the CBA; forces
peaceful resolution of disputes
(2) Buffalo Forge- a sympathy strike may NOT be enjoined, despite no-strike clause
k) The Arbitrator and the NLRB During the Term of the Agreement
i) Sections 7 and 8 afford unions, employers, and employees statutory rights enforced by the
NLRB (charged with preventing “any person from engaging in any ULP”)
(1) the CBA and the act may both be violated (both breach of K and ULP)
ii) Deferral Doctrine- balance preference for arbitration against obligation to enforce the NLRA
(1) Dubo Manufacturing- the filing of ULP charges simultaneously while grievances are
pending results in the NLRB regularly deferring to the contractual resolution method
iii) Collyer Doctrine- where the aggrieved party has not pursued the K dispute resolution
procedures, the NLRB will still defer, provided the grievance procedure can adequately resolve
the dispute
(1) Factors: willingness of the parties to submit to arb; the absence of hostility to employee
statutory rights, the stability of the bargaining relationship and the suitability of collective
bargaining to resolve the dispute
(2) the Bd routinely applies Collyer to unilateral changes, such as subcontracting unit work,
where the issue was whether the K permitted the change (issues are co-extensive)
iv) Speilberg Doctrine- involves situation where the grievance/arb process has run its course, and
the NLRB is asked to defer to the result of the process
(1) Bd will defer to arb awards if:
(a) proceedings appeared to have been fair and regular,
(b) all parties had agreed to be bound, and
(c) the decision of the arb was not clearly repugnant to the policies of the act
(i) repugnancy- palpably wrong
v) Olin Corp- arb need not expressly consider ULP issues, as long as K issues and ULP issues are
fairly parallel, and the award is not susceptible to an interp inconsistent with the act
4) Fair Representation
a) Union has obligation to rep employees fairly
b) Steel v. Louisville & Nashville- union discriminated; Sup Ct found that unions are required to
exercise fairly the power conferred upon them to act as majority rep
c) 2 standards for union conduct:
i) wide latitude given to the union in negotiating K's to permit accommodation of not only
competing demands within the union, but also to address the competing interests of the union
and the employer
ii) administering the K, including the processing of grievances and arb, less latitude is given
d) Ford Motor v. Huffman- a union in negotiation is only required to have good faith and a
legitimate purpose for its actions
i) union had the discretion to make reasonable distinctions among employees
e) Vaca v. Sipes- standard for measuring the union's DFR in grievance processing cases
i) employee on sick leave; got better, but employer would not let him come back
(1) grievance filed, but union did not take it to arbitration
ii) Holding- before an employee can sue his employer under sect 301 for breach of K, the
employee must prove that his attempt to exhaust his contractual remedies was frustrated by
arbitrary, discriminatory, or bad faith conduct on the part of the union
5) Successorship
a) Issue- to what extent does a change in ownership status affect the employer's obligation to bargain
after a change in ownership
b) NLRB v. Burns Security-
i) successor is not required to honor a CBA previously negotiated
(1) but, successor employers must recognize and bargain with the certified union
ii) to determine whether the resulting employer is a Successor Employer: look to the continuity of
business ops, and the continuity of workforce (majority the same)
c) the duty to bargain arises only after a majority of the employees in the successor's workforce
consists of former employees of the predecessor
i) new employer has opp to set the initial terms at which it offers employment to prospective
employees, whether they are from the predecessor or not (UNLESS employer made it clear that
they planned to retain the employees from the beginning)
(1) *But, failing do hire them bc they are unionized can be a violation of 8a3
d) alter ego- a successor is an alter ego if it has the same ownership, business purpose and controlling
parties
i) an alter ego is obligated to honor the previous entities K
e) stock sale- NLRB and some cts have held that there has been no change in the employer (only the
ownership of stock) and require the acquiring owners to step into the shoes of the selling owners
f) Fall River Dyeing- refined Burns
i) a substantial continuity exists when:
(1) business is essentially the same
(2) employees performed the same jobs, same conditions, same product, same customers
ii) determination of majority status is made at the point where all or substantially all of the job
classifications are filled, and normal ops have begun (substantial and rep complement)
(1) *after the first shift had been hired