Professional Documents
Culture Documents
Prof. Pope
1865 – 1914: the industrialization of America; there were corporate empires under the control of just a few men;
urban migration was at its height; organizational efforts among workers started as early as 1927 (in
Philadelphia) to little avail; second waive of organization effort occurred in the 1850’s when the first national
groups were formed and negotiation and arbitration were stressed for the first time; this effort was followed up
by the Knights of Labor (KOL) in the 1880’s, who developed a 3rd level of union organizing - - a confederation
of local and national bodies into one large unit; the (KOL) was an alliance between industrial workers and
farmers and conflicting interests led to the groups quick demise
American Federation of Labor (AFL): 1880 – 1914; formed when the national craft unions combined; Samuel
Gompers was the first AFL President; initially unwilling to surrender jurisdiction to industrial organizations;
sought to represent particular groups of skilled workers within plants and companies; had two major tenants
1) Economic unionism – accepted capitalism and dedicated itself to increasing worker bargaining
power in dealing with management; radical political reforms and the notion of the union as a
political party were rejected; collective bargaining became the primary method for achieving
economic gains; reliance was placed on negotiation to settle disputes and obtain advances
2) Exclusive union jurisdiction – to use collective strength effectively, the AFL sought to have all
workers in a single occupation (or range of jobs) united, and competition for jobs curtailed; the AFL
thus adopted the principle of exclusive jurisdiction = each national (or international) union would
have its own sphere of jurisdiction into which no other union could trespass
Formation of the Congress of Industrial Organizations in 1937 (CIO): other than the enactment of the NLRA,
perhaps the most significant development in labor union history during the 1930’s; consisted of the great mass
production industries which had theretofore been scarcely touched by labor unions; changed the labor
movement as well as the nature and processes of collective bargaining; Founders – John L. Lewis, Sidney
Hillman, David Dubinsky; formed from 8 officers of AFL international unions in 1937; embraced the workers
in entire industries or groups of industries, i.e. United Automobile Workers of America, United Steelworkers of
America, Textile Workers of America, etc.; they sought to penetrate the textile, furniture, food processing, and
chemical plants in the South as well; primarily a movement of unskilled workers (considered craft organizations
inappropriate where work skills were easily acquired and produced no group solidarity); generally pressed for
flat wage increases across the board which led to quicker wage increases for these workers than the skilled;
communist influence
Truce: in 1953, a no-raiding pact was drawn up and approved by 65 AFL affiliates and 29 CIO
affiliates; under its terms, the signatory unions agreed not to attempt to displace another union
and raid its membership in any plant where an ‘established bargaining relationship’ existed;
disputes involving the application of the agreement were referred to arbitration if the parties
could not agree amongst themselves; plans for total unification developed rapidly after that; in
1955, they drafted a constitution and did unify
“Strike”: definition = workers do nothing/just stop working; because they can’t reach agreement with their
employers/are under no contractual obligation to continue work unless happy with agreement (except a moral
one i.e. emergency services); has come to connote responsibility for bad time assigned to the workers;
originates from British sailors ‘striking the colors’ and refusing to serve
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Early Policies Towards Unions –
Prior to Labor Movement: any rules of employment would be enforced upon workers even if they didn’t
know what they were; they only needed to know that there were rules
Early use of criminal sanctions against unions: a conspiracy charge against employees striking for higher
wages was first reported as early as 1806 (Philadelphia Cordwainer’s Case); the court held that the
combination (the union) itself, quite apart from its actions, was illegal.
Elimination of the criminal conspiracy doctrine: Commonwealth v. Hunt (p. 8); the court held that
justifiable objectives validated the union’s attempt to impose a closed shop. ‘Abuse’ – actual or intended –
had to be shown in order to find any union activity unlawful; This ended the era of criminal sanctions
against union organizing activities; conspiracy was unlawful unless it could be justified; but if they didn’t
use any unlawful means or any unlawful objectives, then their group action was justified; conspiracy was a
criminal doctrine and in order to bring it to bear on real life strikers there had to be a jury and the jury h ad
to convict the strikers and rarely in the history of our country has the importance of a jury been so great;
most times they didn’t want to convict strikers and when they did they only assigned minimum penalties
Objectives Test: the legality of union activity depended upon how any particular court chose to construe
union objectives; most decisions were very restrictive of union conduct
Vegelahn v. Guntner (p. 17): workers were trying to keep scabs from taking the jobs they were
striking; at the time of this case, freedom of speech had never been enforced by the court; the
court enjoined picketing or other ‘interference’ with persons on the employer’s premises, holding
that ‘no one can lawfully prevent employers or persons wishing to be employed from the
exercise of their rights’; in dissent, Holmes argued that the needs of workers to organize could
justify even intentional infliction of temporary damage to an employer’s business – that, short of
force or threat of force, organized action such as picketing should be permitted; enjoinable stuff
= 1) use of the patrol to stop others from going into or coming out of the factory; 2)persuasion
when used to influence non-strikers to break existing contracts; 3)use of disguised threats of
personal injury or unlawful harm to scabs or member strike breakers, which results in a battery
Coercion (what is?): this is a social judgment as to what is bad pressure; the variables consulted to determine if
the pressure is bad are diverse and include: 1) physical; 2) moral; 3) emotional; 4) social; 5) economic; etc.
Illegal Objectives Test: Is the union demanding that the employer do something illegal? (i.e. Is the union
asking the employer to fire all black workers?)
Plant v. Woods (p. 23): the court enjoined strikes and picketing to enforce a union demand that
the employers hire only its members, rather than members of a rival union; the court held that the
need for protection of the organizations was not sufficient to justify interference with the
employer’s right to be ‘free of molestation’; in other words, a jurisdictional dispute between
unions where one tries to strike in order to force another one out = unlawful means; furthermore,
the action and threats of the union was a violation of the right of employees to freely dispose of
their labor as they saw fit; in dissent, Holmes argued that the member’s purpose – strengthening
union power before bargaining over wages and working conditions – justified the strike: “Unity
of organization is necessary to make the contest of labor effectual, and (unions) lawfully may
employ in the preparation the means which they might use in the final contest.”
Objectives Test (reprise): Vegelahn & Plant show court divergence on this issue; the dominant trend in
judicial opinions though at the time and also in the present state of the common law in many
jurisdictions is best illustrated by the following line of cases (prone to issue injunctions!)
The United Shoe Machinery Corp. v. Fitzgerald (p. 30): Picketing in support of union demands
for collective bargaining where the employer Π had individual Ks with machinist to work at set
rate for year long duration, Held unlawful under the objectives test.( Π’s Injunction sustained).
Hopkins v. Oxley Stave Co. (p. 30): Court sustains an injunction against Λ Union demands that
Barrel Hooping Co. clients cease purchasing machine hoped barrels, and Λ unions induced
boycott of products packed in such barrels coordinated with state trade assembly b/c Π Barrel
Hooping Co. refused to discontinue use of such machinery. Court held Λ depriving Π and its
customers of their right to freely conduct business, and to deprive the public of the advantages to
Central Metals Products Corp. v. O’Brien (p. 30): Court enjoined strike by Λ sheet metal
workers union that would effect the work of other contractors at a construction site in response to
Π use of carpenter union members to install on that same site certain metal structures, where Π
refuse to assign the installation of those structures to members of the metal workers union. The
court enjoined the strike and threats to strike.
Sherman Anti-Trust Act of 1890: Congress, under pressure to curtail business abuses, declared unlawful
‘every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations…”; violations were punishable as federal
crimes; federal courts could issue injunctions; and persons injured in their business could bring a civil suit
for treble damages; Professor says: now way did Congress intend this to apply to unions (which is how this
Act was initially applied), it was meant for big business (spec. monopolization and restraints of trade), which
were considered harmful to the public interest
United States v. Debs (p. 31): in 1894, the American Railway Union (organized by Eugene
Debs) instituted a strike against the Pullman Company to protest a wage cut – a strike which
spread over a wide area and generated robbery, violence, and property damage – the U.S. Circuit
Court issued an injunction at the request of the Attorney General, invoking the Sherman Anti-
Trust Act; Debs and the ARU violated the injunction and were jailed; the court of appeals
affirmed their convictions/jail terms; the Supreme Court affirmed but did so citing the
Commerce Clause and admonished the strikers for resorting to violence
Note: this left the question of whether the Sherman Act really was meant to be used
against unions open
Loewe v. Lawlor (p. 33): When a hat manufacturer refused to recognize a union, the union
instituted a strike against the manufacturer and organized a nationwide boycott of wholesalers
and retailers who sold the hats. The manufacturer sued the union for treble damages under the
Sherman Act. Held: the Sherman Act applies to combinations of workers. The union’s
objective was to ‘unionize workers employed by all American hat manufacturers and to achieve
this by ‘restraining and destroying’ their interstate trade, by ‘intimidation and threats’ made to
these manufacturers and their customers”. The court declared that the provisions of the Act
were worded broadly enough to include violations by labor orgs. The court also noted that a
proposed amendment to exempt labor orgs from the coverage of the Act had failed. A violation
by the union would be established if the employee’s concerted activity disrupted the flow of
the manufacturer’s product in interstate commerce.
Note: the court held that the Sherman Act applies to labor unions here.
The Clayton Act of 1914: in response to decisions in cases like Loewe, Congress limited the Court’s
interpretation of the Sherman Act by restricting the ability of courts to issue labor injunctions; effects of the
Act = 1) stronger unions; 2) acknowledgement of unions as a real and legitimate force and given
governmental protection; 3) gov’t seized companies that persisted in anti-union tactics; and 4) increased
membership although in only 4 major trades; in response companies created
§ 6: the anti-trust laws do not forbid the existence of labor orgs or prevent them from lawfully carrying
out their legitimate objectives
§ 20: interpreted the above to mean that the Act only applies (and therefore federal injunctions cannot be
issued) to disputes between an employer and its own employees; dissenters argue it is just meant to
address conflicts between classes (employers and employees) in general not between localized disputes
involving such members (and therefore injunctions should have been available for secondary boycotts);
Privity: A relation between parties that is held to be sufficiently close and direct to support a legal claim
on behalf of or against another person with whom this relation exists. Here, the privity is that the parties
to the case must be employer and its employees.
Throughout the same period, the Supreme Court all but destroyed §§ 6 & 20 as it chose to apply one anti-
trust standard to business and another, far more restrictive standard to organized labor:
Duplex Printing Press Co. v. Deering (p. 40): During a strike for union recognition against a
printing press manufacturer, the union organized a secondary boycott of companies doing
business with the manufacturer, including purchasers, trucking co’s, and repair co’s. The boycott
Notes: 1) Possible fallout from secondary boycotts: press users, shippers, trucks, press
repairers, ink producers and shippers, etc. (effect could be exponential); 2) Most of the
unions at the time are exclusionary to: women, minorities, etc.; 3) In Vegelahn: Holmes
(in dissent) says mere pressure, even ostracism is not coercion; 4) individual
liberty/freedom to choose to unionize necessarily means a closed shop free from unions
(ups is union; fedex is non-union), true or false? Generally speaking true, eventually the
shop will move all the way in one direction or the other. Maybe liberty requires some
coercion? Maybe the market (the race to the bottom) demands a certain level of coercion.
Coercion here is of union MEMBERS, who, when they join, pledge allegiance to the
union and its rules/laws. Since union membership was voluntary (which it almost always
is today), the members were simply being pushed to live up to their own free
commitment. If the union was coercing others, they would have a better argument.
Professor says: Judges don’t really understand labor and what it is to cross a boycott/
picket line
Railway Labor Act of 1926: the first peacetime measure to sanction and codify union-management bargaining;
embodied provision which had been negotiated between the railroads and the railway unions in advance;
established a policy of collective bargaining for the railroads; first appearance of “collective action, without
interference, influence or coercion exercised by either party over the self-organization or designation of
representatives by the other”; provisions of the Act prohibited interference with the right of railway employees
to organize and bargain collectively; came out of major strikes (i.e. 1922 railway strike) in the industry
National Railroad Adjustment Board: (compulsory arbitration) established (in 1934) to settle minor
disputes over working conditions and contract interpretation; arbitration of such disputes is compulsory
– an unusual feature in American labor legislation and practices; decisions of this Board were
enforceable in federal court
§2: (duty to negotiate) imposed a duty on both sides to make ‘every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and working conditions’; other provisions included:
Grievances – a mechanism was created to settle minor disputes such as employee grievances
National Mediation Board – established by the Act to assist the parties in collective bargaining;
although it could not impose a settlement, it could encourage the parties to submit the dispute to
arbitration; in 1934 it was given responsibility for conducting elections or employing other methods to
determine the employee’s choice for a union; consisted of 5 members appointed by the President
Emergency Investigative Board – if mediation fails and the parties refuse to submit the dispute to
arbitration, the President is authorized to appoint an ‘emergency’ board to investigate and report if the
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dispute threatens essential transportation service within 30 days; neither party was allowed to change the
conditions out of which the dispute arose for an additional 30 days following the making of the report;
thereafter, the parties were free to resort to economic warfare to settle their differences; this 60 day
cooling off period does not carry over to the NLRB
Coverage – originally covered only railroads and railroad employees; in 1936, the Act was amended to
extend coverage to airlines and airline employees
Constitutionality – Texas &New Orleans R.R. Co. v. Brotherhood of Railway & Steamship Clerks (p.
79) the Court upheld the power of Congress to prohibit interference with self-organizations for the
peaceful settlement of labor disputes; Congress’ power to regulate interstate commerce included the
power to enact legislation to facilitate the amicable adjustment of disputes which threatened interstate
commerce; the Court also noted that it ‘has long been recognized that employees are entitled to organize
for the purpose of securing the redress of grievances and to promote agreements with employers relating
to rates of pay and conditions of work.
Norris-LaGuardia Act of 1932: enacted at the height of the depression (a time of transition for the
Sup. Ct. from conservative to liberal); because of the tension between labor and management and major
frustration with court’s frustration of union goals; designed to promote the recognition of unions by employers
and to encourage collective bargaining of the terms and conditions of employment; passed by a HUGE margin;
almost everyone voted for it; injunctions were being ignored/resisted like crazy leading up to this time and were
proving ineffective; it states its objective in §2 and lists no others; it is the only federal labor statute that has
ever been interpreted broadly by the courts and was clear about its purpose and objectives and was designed just
to comment on labor (not other stuff like the Clayton Act, which was designed to comment on anti-trust laws
but was teased out to comment on labor); guaranteed worker freedom of association and representation;
placed no affirmative obligations on employers to negotiate with unions; rather, it sought to id union
organizing and collective bargaining by changing common law precedents on the union’s role in society;
together with subsequent state enactments, LaGuardia permitted unions to exert effective economic
pressure against employers.
§1: ‘no court shall have jurisdiction to issue any restraining order or temporary or permanent injunction
in a case involving or growing out of a labor dispute…’; wording was clearer here than in the Clayton
Act
§2: identities the national policy sought to be advanced by the Act - “because the individual
unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his
freedom of labor, it is necessary that he have full freedom of association, self-organization, and
designation of representatives of his own choosing, to negotiate the terms and conditions of his
employment, and that he shall be free from the interference, restraint, or coercion of employers in the
designation of such representatives or in self-organization or in other concerted activities for the
purpose of collective bargaining”
§4: On injunctions - limits federal judicial intervention in labor disputes by restricting the power of
federal courts to issue injunctions; federal courts are denied jurisdiction to enjoin any labor dispute
except under other overriding legislation or unless there is violence; labor disputes are broadly defined
as “any controversy concerning terms or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment, regardless of whether or not the disputants stand in the proximate relations of
employer and employee; avoided the problems of the Clayton Act by denying the federal courts
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jurisdiction to issue injunctions rather than prohibiting the issuance of injunctions; prohibits the use of
injunctions for the following specific acts:
a) Worker(s) refusing to work (i.e. strikes)
b) Being in a union
c) Participation in lawsuits
d) Giving publicity to labor disputes or advertising (i.e. picketing) as long as it is non-violent
e) Peaceful assembly
§6: union liability: unions are not liable for acts of their members (i.e. wildcat strikes) unless there is
clear proof of actual ratification of the acts or knowledge that they would occur
§8: the court cannot issue an injunction if the moving party is breaking any law involved in the dispute
and/or has not made every reasonable effort to settle the dispute on its own
§9: no injunctions can be issued without full court fact finding; ever restraining order or injunction
granted in a case involving or growing out of a labor dispute shall include only a prohibition of such
specific act
§10: appeals: must be made available in the circuit court for all injunction orders and the appeals must
be heard with the greatest possible expedition
§13: definition of ‘labor dispute’: defines it such that the court’s decisions under the Sherman and
Clayton Acts are overruled
(a) broad definition meant to cover primary and secondary employers
(b) 1947: Amended to prohibit secondary boycotts
Injunctions for violence: courts could enjoin violence as long s they met the §7 procedural
requirements and does not violate §4.
Cons for injunctions/judicial intervention against unions: all of these appeared after Clayton and
were meant to be addressed by LaGuardia
1) Substantive considerations - the courts could (nor should they) neither adjudicate the
underlying labor controversy nor adopt measures to remedy the causes of strikes and
industrial unrest; as a result, organized labor had beef with certain specific legal doctrines
i. Yellow Dog Contracts – a provision of the employment contract in which the
employee promised not to join a union during the period of his or her
employment; decision upholding these in Hitchman Coal & Coke Co. v.
Mitchell became after the war a method of virtually fastening a closed, non-
union shop on workers by judicial decree; these became widely popular only
to burn itself out via reaction to it (esp. Norris Act) addressed in §3 of NL Act
ii. The Objectives Test Under Clayton: was so severely narrow as to handicap
many organizational activities; but perhaps the sharpest accusation was that
the courts were applying a double standard: one law of combination and
competition for corporate enterprises and another for labor unions;
furthermore unions were held accountable for the acts of a very few members
and even individuals loosely affiliated with the union (so one violent person
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voided the whole union’s efforts) regardless of whether the actions were
allowed/suggested by the union; under normal rules of agency, the union
wouldn’t have been found responsible for such acts
2) Procedural objections – on injunctions
i. in equity, the movant seeks from a chancellor a preliminary injunction accompanied
by documentation of her grievance until both sides can be heard and either a
permanent injunction is issued or the preliminary injunction is lifted; in labor
disputes, only the movant gets to tell her side of the story and an injunction was
issued; this usually killed the momentum of the movement along with protracted
delays before the hearing on the merits (could be up to 30 days); the trial came still
later than that unless it was rendered moot by that time; the appeals process took still
longer; injunctions were often written by lawyers to workingmen who often couldn’t
understand them
ii. the same agents initially hired to protect scab workers often were sworn in a deputies
to impose an injunction;
iii. workers engaged in violence were charged with contempt of court rather than
criminal violations and were often tried by the same judge who had issued the
injunction that was being violated but were also denied a jury trial
(conspiracy/vicarious responsibility)
iv. once an injunction is issued, the union is broken, and the workers have no choice but
to submit to the employer’s will
3) Considerations of judicial administration – labor disputes turned on questions of social
and economic policy which were more suitable issues for legislative rather than judicial
determination; judicial doctrines favored employers which created a distrust of the legal
system among workers
4) Interpretation of the Act – reader could think either a) congress is suggesting that these
re substantive rights to be protected against employer interference or b) that the statute
purports to regulate the equity jurisdiction of the federal courts
Significance today to us: anytime someone is seeking an injunction, we need to establish if NL Act
prohibits the injunction in question; even if its clear that the Act doesn’t prohibit the injunction, you
must figure out why it doesn’t prohibit it; most common way it doesn’t apply to strike and boycott
activity is subsequently enacted statutory provisions (i.e. Taft-Hartley Act)
Burlington Northern RR Co. v. Brotherhood (p. 67): National union striking against Guilford
RR (Maine), and other RRs that did business w/ Guilford. District ct interpreted Norris-
LaGuardia as only covering primary Ers or those substantially aligned. S.Ct. held: Norris-
LaGuardia clearly covered the RRs—policy of the Act has no basis for a substantial alignment
test/theory. This reflects Cong’s intent that Act extends to ALL labor disputes; i.e. including
prohibition of injunctions extended to secondary Ers.
Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc./USSR (p. 633) : Δ refused to handle any
USSR goods in US ports b/c of Soviet invasion of Afghanistan. Held: Δ’s could NOT be
enjoined. This is a labor dispute under Norris-LaGuardia, and there is no exception for political
reasons for labor dispute.
Thornhill v. Alabama (p. 73): π and other Ees picketing outside Er’s business asking non-union
workers not to go to work. Thornhill charged w/ criminal offense of picketing under the state
statute (any picketing = misdemeanor). Held: Under federal Constitution (b/c state action),
statute invalid. Picketing = free exchange of ideas
(1) State can abridge speech in situations w/ imminent and present danger
(2) Does NOT apply to mass picketing, a tort (i.e. effectively blocking ingress and egress).
No mass picketing here.
(a) Today: Picketing limited to 30 seconds to stop ppl. If the exchange is longer than 30
seconds = mass picketing
(3) 1948: Picketing became “speech plus” (i.e. cannot regulate the speech but can regulate
the ‘plus’—the stick holding the sign)
(a) “Plus” – inciting words, signs
(b) Distinguishes between handbilling (speech only) and picketing (speech plus)
The National Industrial Recovery Act of 1935: spawned from the application of the Railway Labor Act to all
trade sectors; and predecessor to the NLRA (below); collapsed because the Supreme Court found it
unconstitutional; its purposes were
Fair Labor Standards – were to be established by raising wages, shortening hours, and eliminating
industrial homework, child labor, and other sweatshop practices
Attempt to Organize Industry – through trade organizations and codes of fair competition that would
eliminate cut-throat competition and so stabilize prices
The Wagner Act aka the National Labor Relations Act of 1935 aka NLRA*: designed to establish and enforce
the right of employees to organize and bargain collectively, and also establish a system for resolving labor
disputes; (* as amended by the Taft-Hartley Act in 1947 and the Landrum-Griffin Act in 1959); enacted under
huge pressure caused by strikes and held constitutional under pressure from sit down strikes; §1 is made as a
statement in the interest of the protection/growth/flow of commerce; it is a means to the protecting the flow of
commerce end; the ability of an Act like this to promote industrial peace, the parties must be able to approach it
on fairly even footing (if balance between labor and management is off, acts like this will prove ineffective)
§1: states the broad policy of the Act – “to eliminate the causes of certain substantial obstructions to the
free flow of commerce by encouraging the practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection”
§7: establishes specific employee rights – the establish a balance of bargaining power between the
employer and the employees; the heart of the NLRA - - goes to employee rights
8(3) prohibits employers from discrimination in hiring, firing, or other employment conditions
because of an employee’s union activity
8(4) prohibits discrimination against employees who testify or file charge with the National
Labor Relations Board (NLRB)
8(5) requires an employer to bargain with the representative selected by the employees
§ 9: Procedure –
9(a) representatives selected by a majority of the Ees in a unit are the exclusive representatives of
all the Ees in unit for purposes of collective bargaining
National Labor Relations Board (NLRB): created to administer and interpret the unfair labor practices
and representation of the NLRA; most cases we look at will involve the NLRB as a party to the case
1) Created -under §2 and §3 and under §10 (which regulates NLRB procedure in unfair labor
practice cases); consisted of 5 members appointed by the President for 5 year terms with the
consent of the Senate - - the adjudicatory arm
2) Unfair labor practice proceedings – the board investigates and prosecutes charges, judges
the merits of each case and fashions remedies - - the prosecutorial arm
3) Enforcement – created under § 10(e) and (f) the board orders are reviewed and enforced by
the Federal Court of Appeals, which were originally authorized to review most questions of
law but their power with respect to findings of fact were restricted to determining whether
the findings were ‘supported by evidence’
4) Elections - §9 gives the board authority to establish procedures for the selection of employee
representatives
a. Selection of representatives – the employee representative is selected by secret ballot
by a majority of employees in an appropriate bargaining unit
b. Exclusive representation – if a union is selected, that union acts as the exclusive
representative for all of the employees in the bargaining unit, for the purpose of
collective bargaining regarding wages, hours, or other conditions of employment
Constitutionality – the Supreme Court held that the NLRA as originally enacted was a valid exercise of
Congress’ power to regulate interstate commerce in NLRB v. Jones & Laughlin Steel Corp. (p. 84)
NLRB v. Jones & Laughlin Steel Corp. (p. 142): tested the constitutionality of the National
Labor Relations Act of 1935 and involved the NLRB’s attempt to prevent Jones & Laughlin
from engaging in ‘unfair labor practices’ by the discriminatory firing of employees for union
activity. Rule: The NLRA lies within the commerce power because D owns mines in two other
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states, operates steamships on the Great Lakes, hold warehouses in 4 states, and sends 75% of its
product out of Pennsylvania. Therefore, a stoppage of its operation would have a substantial
effect on interstate commerce. The ‘current of commerce’ rationale was abandoned here,
which means that it is no longer relevant whether the activity being regulated occurs
before, during, or after the interstate movement. [Majority: Hughes & Roberts; Dissent:
McReynolds, Van Devanter, Sutherland, & Butler]
The Four Horsemen: New Deal historians long blamed these adverse Supreme Court
decisions on the "Four Horsemen of Reaction," meaning Justices Willis Van Devanter,
James C. McReynolds, Pierce Butler and George Sutherland. These justices faced
enormous political pressure from a popular president with commanding majorities in
Congress, yet they stood together against purported New Deal "reform" measures. They
believed they were defending economic liberty.
Note: Justice Roberts changed sides of the argument; now known as the ‘switch in time
that saved nine’
Successes of the Act: Reduced strikes and other forms of industrial unrest for a number of reasons
1) Prohibition of unfair labor practices & legal compulsion to recognize and bargain with
unions
2) Collective bargaining itself tends to reduce strikes and lockouts
a. It enables employers and employees to dig behind their prejudices and exchange their
views to such an extent that on many points they reach agreement while on others
they discover that the area of disagreement is it narrow that it is cheaper to
compromise than to do battle
b. Recognition, experience in bargaining, and the resulting maturity bring a sense of
responsibility to labor unions
c. Because collective bargaining replaces the weakness of the individual in bargaining
and better enables employees to raise wages and improve labor standards, strikes to
secure these objectives tend to be eliminated
d. Collective bargaining substitutes what may be called industrial democracy – joit
consensual determination of wages and other conditions of employment – for the
unilateral and sometimes arbitrary power of the employer
e. Collective bargaining establishes a rule of law; it is the measure of both the
employer’s and the employee’s rights and obligations
Failures of the Act: was only intended to address the most urgent labor disputes of 1935 and left other
problems to state law and/or the future; three major limitations of the Act
1) One the union was organized and the employer accorded it recognition, the function of the
Act was completed
2) The Act did not address misconduct on the part of the unions (which would lead to
amendments to it via the Taft-Hartley Act 1947)
3) The Act left substantive terms and conditions of employment entirely to private negotiation;
it did not fix wages, hours, or other conditions of employment (all reasons it passed
constitution muster though); it did not authorize any administrative tribunal to fix them;
The Taft-Hartley Act of 1947 aka the Labor Management Relations Act: after the enactment of the NLRA,
union membership skyrocketed and labor organizations were extremely active; Congress and the general public
became concerned with the expanding power, influence, and possible corruption of the labor organizers and
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leaders, violence in labor disputes, and the use of closed shops to limit access to jobs by non union members;
the Act amended the NLRA to address these concerns; Congressional policy changed to a position of greater
neutrality rather than one of encouraging union organization and did so by shifting the focus from rights of
employees to rights and duties of both employees and employers; for example, the Act added certain protections
for employer speech and conduct and prohibited certain actions by unions; bitterly opposed by organized labor
and most so-called ‘liberals’; it was vetoed by President Truman and passed over his veto; the labor injunction
was revived in a modified and restricted from which eliminated many abuses; moved the peace keeping role in
labor disputes to the legislature
Established the office of General Counsel, appointed to a 4 year term by the President with the consent
of the Senate; the General Counsel has authority to investigate charges of unfair labor practices, to
decide whether complaints should be issued on the basis of these charges, and to direct the prosecution
of such complaints; she also represents the Board in court proceedings to enforce or review Board
decisions
§7: amended to give employees the right to refrain from engaging in union activities on equal footing
with their right to engaging in union activities
§8: amended to define and prohibit 6 specific union unfair labor practices
8(a)(3): outlaws the closed shop and permits only a limited form of a union shop
8(b)(1) prohibited the restraint or coercion of employees in the exercise of their §7 rights, or the
employer in the selection of representatives for collective bargaining or handling grievances
8(b)(3) established a duty by employee reps to bargain collectively with the employer; failure to
fulfill his duty was established as an unfair labor practice
Closed shops under 8(b)(3): prohibits closed shops and permits union shops as a union
security provision in a collective bargaining agreement
8(b)(4) prohibited certain secondary boycotts and also forbade a union from forcing or requiring
an employer to make specific work assignments during a jurisdictional dispute between rival
unions
Result: made it much more difficult for strong unions to use their organizational muscle
to aid the unionization effort of weaker groups in retail and agricultural sectors, even in
highly unionized regions of the North and West.
8(b)(6) prohibited featherbedding, a practice under which a union forces an employer to pay for
work that is not performed
8(c): provides for free speech by employers and employees as long as it doees not threaten
reprisal or force, or promise a benefit
§9: amended to give employers the right to file a representation petition, and employees the right to
file a decertification petition
§14(b): state right to work laws – amended to permit state to ban ‘agreement requiring membership in a
labor organization as a condition of employment’; 21 states have right-to-work laws or constitutional
provisions which prohibit union-security provisions to varying degrees
§301: suits by and against labor organizations – permits suits for the enforcement of a collective
bargaining agreement to be brought in federal court and controls such matters as venue, jurisdiction,
service of process and the authority of agents to bind unions and employers
§302: prescribed and limits the terms of pension and health and welfare trust funds
The Landrum-Griffin Act of 1959 aka The Labor Management Reporting and Disclosure Act: a response to
concerns over internal union corruption and the denial of individual members’ rights and designed to regulate
the internal affairs of unions and to protect the rights of individual union members and the public; provided
specific requirements for the regulation and reporting of union affairs, restricted picketing and secondary
boycotts, and prohibited hot-cargo clauses; and imposed required filing of extensive information bearing upon
the financial affairs of unions and their officials; this was the last attempt to amend the labor statutes
§8(b)(7): unlawful picketing – prohibits picketing for the purpose of union recognition or organization,
IF another union has already been recognized, or an election has been held in the preceding 12 months,
or if an election petition was not filed within 30 days after the commencement of picketing
§8(b)(4): secondary boycotts – up to now, the Courts had not universally interpreted the prohibitions
against boycotts to include direct pressure by unions on a neutral employer; here the prohibition was
extended to cover ‘threatening, coercing, or restraining any person
§8(e): hot-cargo clauses - clauses under which an employer and labor organization agree that the
employer will not handle, use, sell, transport, or otherwise deal in, the goods or products of another
employer, or do business with another employer - - that particular clause or section of the agreement is
void and unenforceable but the rest of the agreement will be enforced
Voting Rights: workers who had been replaced in the course of an economic strike were expressly
given the right to vote in union elections; this way, employers would be discouraged from provoking a
strike in order to hire non-union replacements and thereby oust the incumbent labor organization; union
members were to be assured a right to vote in elections, to run for union office, and to comment upon
and nominate candidates; every union member was given an equal right to attend membership meetings
and to participate in the voting and deliberations at such meetings
McClellan Committee: during the 1950’s, this select committee of the Senate produced
hearings/evidence of misconduct by the officials for few unions ranging from embezzlement to the
making of sweetheart contracts with employers.
In Summary –
Norris LaGuardia Act (1932) – removed power of federal courts to enjoin union activity (absent fraud or
Taft-Hartley (1947) – Sought to balance union and employer obligations; focused on union unfair labor
practices, and provided alternative to collective bargaining (i.e. mediation, etc.)
Landrum-Griffin (1959) – Focused on union corruption; regulated internal union affairs (‘bill of rights’ for
union members)
On the NLRB –
On Election Campaigns -
The NLRB regulates organizing campaigns on both the unfair labor practice level and the ‘laboratory
conditions’ level. Be sure to analyze employer or union activity on both levels. If the behavior is not serious
enough to constitute an unfair labor practice, does it nevertheless ‘upset laboratory conditions’ and thus require
a new election? And in any question about organizing campaign, look closely for the following activities
and the special factors noted for each:
a) Attempts to win employee votes through ‘captive audience’ speeches, polling, written propaganda, or
conferring economic benefits:
Special factors – Where and when any such speech or polling took place
Whether the written propaganda contains inflammatory racial or ethnic
statements
Whether the economic benefits in question had been regularly scheduled
prior to the organizing campaign
Note: discrimination against employees because of their union activity are rarely overt therefore they must be
shown by circumstantial evidence.
On ULPs -
Jean Country (p. 128): represents the Board’s next attempt to implement §7 rights;
applies to ‘all access cases’; new test designed to weigh the §7 rights of employees against
the property rights of the employer; (leads to complications in “big city rule”)
Lechmere, Inc. v. NLRB (p. 124): Strip mall adjacent to public land. Union organizers
tried flyering the parking lot, but were kicked off by mgmt under Babcock. Then went to
the grassy strip of land to picket and copied license plates to get addresses via DMV. Got
20% of employees’ addresses & sent mailings. After 6 months, only 1 employee signed an
authorization card. Held: Jean Country overruled by reason of Babcock – the balancing test
should not be used in ALL access cases but only if non-employee organizers had no
reasonable access to employees otherwise; employer’s actions prohibiting organizers
were lawful under the NLRA; (1) Generally an employer cannot be compelled to
allow distribution of union literature by non-employee organizers on his property, (2)
except where the location of a plant and the living quarters of the employees place the
Corral 28 Fall ‘05
employees beyond the reach of reasonable union efforts to communicate with the non-
employee organizers. NLRB v. Babcock and Wilcox Co., 35 U.S. 105
a) TEST:
i) Non-employee organizer cannot access employees any other way
ii) Degree of impairment of §7 rights if access denied
iii) Degree of impairment of private property rights if access granted
iv) Availability of reasonable alternative means of access
1) A heavy burden was then placed on the union to establish such isolation
- Inapplicable where non-trespassory access to employees may be
cumbersome or less-than-ideally effective.
2) Not satisfied by mere conjecture or the expression of doubts concerning
the effectiveness of non-trespassory means of communications.
3) In dicta however the Court stated that success or lack there of in winning
over employees may be relevant in determining whether reasonable access
exists.
b) Dissent/Criticism: No language in the statute to define non-Ees v. Ees. Should
strike down the rigid distinction b/t Ees and non-Ees. Also, balancing test only
applies unless NO reasonable access
1) West: S.Ct ignoring labor history in interpreting the NLRA & brings in
outside assumptions on private ppty, etc.
2) Chevron deference issue: S.Ct should defer to the Board when interpreting
the statute.
c) Post-Lechmere: the Supreme Court held that the right of employers to exclude
union organizers from their private property emanates from state common
law, and while this right is not superceded by the NLRA, (likewise) nothing in
the NLRA expressly protects it; thus, for example, broad rights of free speech
protected by a state constitution could override the right of a private
property owner to exclude non-employee union representative from picketing
on employer property and Lechmere would not apply under those circumstances
Tri-County Medical Center, Inc: Off-Duty employee who comes back to the job after
his shift is over to talk to other employees. Board held: An employee is an employee,
not a trespasser, even though he may not have access to the plant at the time.
Dal-Tex Optical Co., Inc. (p. 148): Er said, “Do you want to gamble all these
things? If I am required to bargain, I will bargain with cold-blooded business
basis. You may come out w/a lot less than you have now.” Bd: Er’s
statements were coercive (i.e. illegal threats) and not protected by § 8(c). ULP
here.
f) Implied Promises: Er’s get into trouble by implied promises and indirect
words. (e.g. Er solicits grievances; implied promise that the Er is going to do
something if they find out what is wrong.)
e. Conferring or withholding economic benefits—Employer speech under §8(c)
1) NLRB v. Exchange Parst (p. 179): Two weeks before the election, Er sent a letter listing
all the benefits of working. Gave a new system for increasing the overtime benefits.
Union lost the election
a) Held: Granting benefits = §8(a)(1) violation. “The danger inherent in well-timed
increases in benefits is the suggestion of a fist inside the velvet glove.”
i) This case is about the action, not the speech, of the Er (i.e. the Er actually
granting a benefit of increased wages and vacation time)
ii) Once the union shows up, Er can’t unilaterally change the working
conditions through the organization, election, and bargaining phases.
1) This includes withholding any benefits (e.g. Er gives a raise every year.
Union wants to hold an election. Er cannot stop giving this annual raise.)
b) HYPO: Co. gives wage increases every 3 years. Co. planning a 2002 wage increase
(consistent w/past practice). Union shows up in March 2002 & Er knows they
cannot grant or withhold economic benefit near an election. What should they do?
i) Key: Establish the status quo. If the status quo is dynamic (i.e. changes), need
to show that proposed wage increase is in line w/past practices & dynamic
status quo.
c) HYPO: Er called a mtg prior to election; mtgs had never been given before.
i) This is a § 8(a)(1) violation
ii) Implied promise…This is not a speech, but a change. Here, Ees are given
access to mgmt when not previously given.
iii) Includes implementing “attitude” surveys for the first time
3. Discriminatory discharges—Er ULPs under §8(a)(3)
a) §8(a)(3): “(a) It shall be an unfair labor practice for an employer—(3) by discrimination in
regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization.”
i) Er’s may not discourage or encourage union membership by discrimination in regard to
hiring or tenure of employment, or with respect to any term or condition of employment;
most violations are when Ers discourage membership
ii) To prove unlawful discrimination under §8(a)(3), an improper motive (i.e. intent by the
Er to affect union affiliation or activity on the part of the Ees) must be demonstrated
a. §10(c):“If on preponderance of the testimony taken the Bd shall be of the opinion that any person…engaged
in a ULP, then the Bd shall state its findings of fact and shall issue…an order requiring such person to cease
and desist from such [ULP], and to take such affirmative action including reinstatement w/ or w/o back pay…”
1) Bd has greater discretion in determining remedies + limited judicial review to review remedies—then
discretion in determining liability
b. Common Remedies (Goal: to make the Ees “whole,” i.e. the position they would’ve been in w/o the
discrimination)
1) Cease & Desist Order; (followed by) Post Notice
2) Back Pay-
(a) How to calculate
i) Back pay = Loss wages – interim earnings
ii) Ee also has a duty to mitigate damages (i.e. go out and find substantially similar
work)
3) Reinstatement
a) Phelps Dodge (1941): Applicants who were known union activists denied job b/c of their
union activity. Could they get the reinstatement remedy?
i) Held: Yes, applicants also protected.
ii) Ee still entitled to remedial remedies, even if the Ee obtains
substantially similar employment.
b) This remedy usually doesn’t work b/c comes too long after Ee left employment. Few accept
reinstatement and even fewer are still there 2 years later
c. Extraordinary Remedies
1) Under notice, personal reading by president of the company
2) Mailing cease and desist notice to each Ee
3) Union access on Er’s property
4) Reestablishing “runaway” shop
5) Paying NLRB or union expenses
Corral 36 Fall ‘05
d. Injunctions—§ 10(j)—once a regional director orders a complaint, can get an injunction
1) Ee more apt to accept reinstatement and to stay on the job
2) GC accepts very vew injunctions
3) Labor Law Reform (1978)—sought to make § 10(j) injunctions mandatory for organizing campaigns
—FAILED
e. Hoffman Plastic Compounds (2002): People fired during the organizing campaign. One worker, Castro, takes
the stand and testifies that he is an undocumented worker—he used a false birth certificate to obtain a job.
Issue: Can an undocumented worker get back pay or reinstatement for ULP?
1) US S.Ct: Bd may have expertise under NLRA, but this also involves IRCA (Immigration Reform and
Control Act). Remedy of back pay violates the policy of IRCA. Thus, no right to give any remedies to
undocumented workers.
a) Dissent: No evid to show that Cong intended IRCA to impact the NLRB. Now, no remedy to hire
undocumented workers—will it encourage Ers to hire undocumented workers and violated the NLRB b/c no
sanctions against Ers who hire undocumented workers?
III. Collective Bargaining: once the bargaining unit and the rep have been determined, the bargaining
process must begin; two main themes here are: 1) the duty to bargain; and 2) the importance of the grievance
and arbitration procedure in administering the collective bargaining contract
A. Union as the Exclusive Representative—§9(a): once a union has been selected by a majority of Ees in the
bargaining unit, it has exclusive authority to represent all employees in the unit on matters that are properly the
subject of collective bargaining
1. §9(a): “Representatives designated or selected for the purposes of collective bargaining by the
majority of the Ees in a unit appropriate for such purposes, shall be the exclusive
representatives of all Ees in such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other conditions of employment.”
a) Proviso: Any individual Ee can present grievances to Er, and to have those grievances
addressed so long as they are not inconsistent with the bargaining agreement. Union
representative has a right to be present at any adjustment of grievances
2. J.I. Case Co. v. NLRB (p. 363): Er has individual ks of employment. Union wins election and Er
refuses to bargain. Union charges Er of §8(a)(5) violation for refusing to bargain
a) Issue: What is a CBA?
i) Trade agreement
ii) 3d party beneficiary K—Ees like 3d parties since CBA is signed b/t Er and Union.
Thus, Ees work under the CBA.
b) Issue: What is CBA’s relationship to individual K’s of employment?
i) Individual K’s are subsumed into the CBA. CBA is not a K of employment—it
only sets the overriding provisions of employment. Individual Ees can bargain w/in
this.
ii) In order for Ees to negotiate individual deals, CBA must either be non-existent or, if
it does exist, give express permission to negotiate deals separate and apart from the
individual agreement, or not cover the matters Ees seek to negotiate individually
1) e.g. Professional sports—where CBA sets broad terms w/permission for
individuals to negotiate individual salaries
c) If individuals are in the bargaining unit (and union wins election), Ees w/in the unit are
represented by the union.
i) It is immaterial whether the Ees are members of the union or not; they still cannot
bypass the union to negotiate individual deals absent permission
3. Ers cannot bypass the union; must communicate/deal through them
a) HYPO: In the middle of the strike w/deadlocked negotiations. Co wants to send leaflets to
Corral 37 Fall ‘05
individual Ees to let them know of their position. Can Co. distribute ballots to Ees?
i) No, this is bypassing the union
ii) Ers may be able to communicate via publicity (i.e. publicize position at the bargaining
table)
4. Emporium Capwell Co v. Western Addition Comm. Org (p. 367): Er has a CBA w/provision
prohibiting “employment discrimination.” African-American Ees protested discrimination by
handing out fliers. Ees discharged. Issue: Was the action of the discharged Ees protected by §7?
a) Held: §9(a) supersedes §7
i) Held: if a union has exclusive authority to represent all Ees in the unit, an Ee has no
independent right to bargain with the Er (even if it is concerted).
1) Once Ees lost protection of the Labor Act, they cannot claim a ULP and can be
fired
ii) Ees argue §9(a) proviso (i.e. Any individual Ee can present individual grievances to
the union as long as the union representative is there) but lose because
1) §9(a) not intended to be enforceable—fn 12
2) §9(a) protects the Er by (voluntarily) allowing them to meet w/Ees on
grievances, but if they refuse, it is not a ULP
b) Ees bargaining was not allowed b/c
i) Undermines the union’s strength/power
ii) Want to force the union to represent the minority Ees
iii) Prevent fragmentation by race
c) How to protect [numerical] minorities w/in the union:
i) Construct appropriate bargaining units
ii) 1972 Landham-Griffin: Protects individual rights w/in the union & promotes
democracy w/in a union
iii) Duty of fair representation (“DFR”)
1) Steele v. Louisville & N.R. Co. (p. 378): Union negotiated a k where all black
Ees would be terminated. Ct: Agreement is wrong; union needed to fairly
represent all members in the bargain unit
2) If the union doesn’t represent the Ees properly, then Ees have c/a against the
union for violating DFR
a) But high burden of proof. Ee must prove that union acted arbitrarily,
discriminatorily, and in bad faith
B. Duty to Bargain - §§8(a)(5), 8(b)(3), 8(d): the duty to bargain has a qualitative side and a quantitative side
The Qualitative Side – requires good faith, serious negotiation over mandatory subjects, and sharing of
information needed to make negotiation meaningful.
(1971) Chevron Oil Co. v. NLRB (p. 394): Where a relatively weak union encounters a
relatively strong company the company’s desire to use its advantage to retain as many rights
as possible is not inconsistent with good faith bargaining.
(1981) Atlas Metal Parts Co. v. NLRB (p. 394): An employer is entitled to advance a position
sincerely held, notwithstanding the employer’s having taken a different position at an earlier
time and either party is entitled to stand firm on a position if he reasonably believes that he has
sufficient bargaining strength to force agreement by other parties.
f. NLRB v. A-1 King Size Sandwiches (p. 387): π and Co met 18 times in 11 months. Company
did not make any concessions. Co’s proposals kept expanding Er control over mandatory
subjects of bargaining. Held: Violation of §8(a)(5).
1) Bd can decide that Co violated § 8(a)(5) solely on the content of their proposals
a) Content of the Er’s proposal was so awful that it indicates that the Er had no
sincere desire to reach agreement
Corral 39 Fall ‘05
b) Under these facts, union would have been in a worse position with the agreement
than without it.
2) If there is a strong Co and weak union, sometimes this will NOT be considered bad faith
bargaining.
g. Boulwarism (p. 425): Mr. Bulwar engaged in scientific research to survey their Ees over what
they wanted to develop a firm and fair proposal, which they marketed as their product.
Presented proposal to the union.
1) Held: Violation of §8(a)(5) b/c bad faith bargaining. Going to the table w/o wishing to
change
2) Publicity campaign to Ees ≠ protected by §8(c).
3) Dissent: This is only a matter of economic strength, which is what bargaining is about.
Govt can’t tell Co that they must reach specific proposals
h. Contractual Successorship:
John Wiley & Sons v. Livingston (p. 764): Holding that the disappearance by merger of
a corporate employer which has entered into a collective bargaining agreement with a
union does not automatically terminate all rights of the employees covered by the
agreement. Under appropriate circumstances the successor employer may be required to
arbitrate with the union under the agreement. Appropriate circumstances are where a
succeeding employer’s business, which takes over for a predecessor who had been a party
to a CBA including an arbitration provision, presents a relevant similarity and continuity
of operation across the change in ownership.
The Quantitative Side – provides that certain subjects (wages, hours, and other terms and conditions of
employment) are compulsory and must be bargained about, while other subjects are permissive (or in some
cases, illegal).
The duty to bargain in good faith includes bargaining over the interpretation (as well as the establishment) of a
CBA. Settlement of disputes that arise under CBAs can take 3 basic forms:
1) The parties may reach agreement informally – a supervisor or other management officialmay deal
directly with the Ee and/or the union rep to arrive at a settlement,
2) The issue maybe settled by an arbitrator – provided the matter in question is arbitrable, or
3) The issue may be taken to court when there is an alleged breach of the CBA – i.e. refusal by one of the
parties to arbitrate
Sinclair Refining Co. v. Atkinson (p. 791): Held that when a union is liable for damage
for violation of the no strike clause, its officers and members are not liable for these
damages. Rationale: Based on Section 301(b) of the LMRA b/c the court interpreted it as
a congressional reaction to cases such as Danbury Hatters, (supra). OVERTURNED BY BOYS MARKETS
Complete Auto Transit, Inc. v. Reis (p. 804): Individual employees are not liable for damages resulting
from wildcat strikes—unauthorized by the signatory union—in violation of a no-strike clause in a CBA.
Reasoning: that Section 301(b) of the LMRA indicates congress’ intent to shield individual employees from
liability for damages arising from their breach of the no-strike clause of a CBA, whether or not the union
participated in or authorized the illegality—wildcat strikes.
Carbon Fuel Co. v. United Mine Workers (p. 804): Where local unions call wild-cat strikes not authorized
by the national/international unions the principal unions will not be found liable absent a showing that
they adopted, encouraged or prolonged the strikes or were otherwise responsible by virtue of common
law principles of agency. Rationale: Sections 301(b) and (e) were held to supplant both the narrower test for
union liability under of the Norris Laguardia Act and the broader test of responsibility for employers under
Section 2(2) of the Wagner Act. Also no liability for failure to use reasonable means to control the local unions’
actions in breach of the CBA