Professional Documents
Culture Documents
Class 2 11
3.1 Concerted action 12
NLRB v. City Disposal Systems, Inc. (1984) [] 12
Hispanics United of Buffalo (2012) [fb post protected] 13
Fresh and Easy Neighborhood Market, Inc. (2014) [sex. harassment drawing; seeking asst from coworkers protected]
14
Alstate Maintenance (2019) [not ‘concerted activity’ only ; truly group complaint or TOC] 15
3.2: For mutual aid and protection 15
Eastex, Inc. v. NLRB (sup ct 1978) [newsletter distribution ok; gen political references ok if relevant to employee
interests] 15
Waters of Orchard Park (NLRB 2004) [“whistleblowing” unprotected, only activities related to conditions of employment]
17
Guideline Memorandum Concerning Unfair Labor Practice Cases Involving Political Activity (2008) 18
General Motors LLC (2020) [wright line for abusive conduct] 19
4. Unprotected concerted activity for mutual aid: Misconduct, product disparagement, defamation 19
NLRB v. Local 1229, IBEW (Jefferson Standard) (NLRB 1953) [discharge for disloyalty] 19
Linn v. Plant Guards (sup ct 1966) [nlra doesn’t preempt state libel remedies] 20
Class 3 - Unprotected concerted activity for mutual aid: Misconduct, product disparagement, defamation 25
5. Employee rights in the workplace 25
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) [employees are allowed to solicit for union activity on employer
property as long as it is on the employee’s own time.] 25
Bexar County Performing Arts Center Foundation (Tobin Center), 368 NLRB No. 46 (2019) [no §7 protection for
contractors if not regular/exclusive work & any reasonable alternative] 26
Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020) [strikes down contemporaneous card req for solicitation, bars during
worktime] 28
Saint John’s Health Center, 357 NLRB No. 170 (2010) [insignia restrictions ok if general restrictions] 28
Nutone (NLRB v. United Steelworkers of America) (1958) [employer anti-union solicitation may be ulp (but not in this
case)] 29
Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) [employee email solicitation not protected]30
6. Employee rights to hear from unions 31
Lechmere Inc. v. NLRB, 502 U.S. 527 (1992) [non-employee organizers on employer property protected if inaccessible,
discriminatory] 31
Universtiy of Pittsburgh Medical Center, 368 NLRB No. 2 1-5 through first para. (2019) [overturned Lechmere public
access exception] 32
Kroger Limited Partnership, 368 NLRB No. 64, (2019) [only ‘discrimination’ if discriminating against ‘similar in nature’
activities] 33
Technology Service Solutions, 332 NLRB 1096 (2000) [employee lists not reqd by Lechmere’s ‘inaccessibility’ req even
if quite difficult] 33
NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995) [salts protected] 34
Class 4 - How do employees obtain union representation? Why is an election encased in a piece of litigation? 35
7. Recognition without an election: Bargaining orders and Voluntary recognition 36
NLRB v. Gissel Packing Co. (395 U.S. 575 (1969)) [employer’s duty to bargain is not limited to unions certified by a
Board election] 37
Linden Lumber Div., Summer & Co. v. NLRB (1974) [union’s responsibility to ask for election] 39
International Ladies Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961) [ulp for employer
to recognize union w/o majority support] 40
Majestic Weaving Co., 147 NLRB 859 (1964) [negotiating w non-majority union violates 8a2 - must negotiate with
majority union] 42
Dana Corp. (Dana 1), 351 NLRB 434 (2007) 43
Lamons Gasket Co., 357 NLRB 739 (2011) [recognition bar for 'reasonable period of time'; i.e. 6 m.o to 1 yr (since
reversed by nlrb)] 44
Dana Corp. II, 356 NLRB 256 (2010) [recognition bar] 47
8. Representation case procedure and appropriate units 48
Becker, Democracy in the Workplace, § IIB-C 48
CB 538-46: Representation Elections 49
Yale Decision and Direction of Election (2017), pp. 28-38 50
American Hospital Association v. NLRB, (Specialty Healthcare) 490 U.S. 606 (1991) [restricting to 8 bargaining units
for hospitals ok] 51
PCC Structurals, Inc, 365 NLRB No. 160 (2017) [] 52
Class 5 - Who is an employee, continued? Who is an employer? Why does it matter and can an employee have more
than one? 91
13.1 Students 92
Trustees of Columbia University, 364 NLRB No. 90 (2016) [students common law employees - school has right to
control, performed in exchange for compensation] 92
Northwestern University, 362 NLRB No. 167 [no NLRB jurisdiction for athletes getting scholarships] 94
COVERED EMPLOYERS Error! Bookmark not defined.
Who (or What) is the “Employer”? (Section 2(2)) Error! Bookmark not defined.
13.2 Government 95
NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971) [district exempt “political subdivision” if
created by state, administered by ppl responsible to public officials] 95
Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016) [nlrb jurisdiction + no exemption because not created by
state/accountable to public] 97
13.3 Religious Institutions 98
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501-07 §§ V, VI (1979) [religious school teachers exempt - no
legislative intent to bring these teachers in] 98
Duquesne University v. NLRB, 947 F.3d 824 (D.C. Cir. 2020) [refuses to extend pacific lutheran - new test that univ
must “holds itself out as a religious, be nonprofit, be religiously affiliated”] 100
13.4 Joint Employers 101
Browning Ferris Industries of California, Inc. v. NLRB, 911 F.3d 1195; 29 C.F.R. § 103.40 [joint employer test - must
have “reserved authority” to control, control can be exercised indirectly to establish, & need not show authority exercise
in ‘limited and routine manner’] 101
14: What is a labor organization and why does it matter? 103
Employer Domination, Support, and Interference Error! Bookmark not defined.
Electromation, Inc., 309 NLRB 990 (1982) [‘action committees’ constituted ‘labor organization’ - employee participation,
dealt w employees, concerned w conditions] 103
Crown, Cork, & Seal Co., 334 NLRB 699 (2001) [employee committees managerial, don't 'deal with' employees, thus
not labor organizations] 105
TEAM Act of 1995, S. Rep. No. 389, 104th Cong., 2d Sess. 1-9, 41 proposed amendment (1996)Error! Bookmark not
defined.
New Forms of Labor Organization 106
Restaurant Opportunity Center of New York, NLRB GC Adv. Memo., Cases No. 2-CP-1067, et al. 1-4 (Nov. 30, 2006)
[not labor organization bc employment discrimination claims didn’t establish pattern of dealing ] 107
Note on the LMRDA 108
Class 8 110
15: Implications of majority rule & exclusive representation 110
S: Dick’s Sporting Goods, NLRB GC Adv. Memo., Case 6-CA-34821 (June 22, 2006) [minority union requested
bargaining re:safety/termination -- not violation of NLRA] 110
S; NLRB v. J. Weingarten, Inc., 420 U.S. 251, 252-65 (1975) [ULP for denying union representative for interrogation
re:theft, but no right to bargain] 111
IBM Corp., 341 NLRB 1288 (2004), CB 135-42 [weingarten doesn’t extend to coworkers of non-union employees]
112
Mercy Health Partners, 358 NLRB No. 69 (2012), CB 681-83 [8(a)(5) violation to deal directly with employee re transfer
(if communicated directly, for changing wages/terms/union role, & excluding union)] 114
Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), CB 420-30 [racial
discrimination doesn’t justify sepearate bargaining] 115
Schiller, Forging Rivals: Race, Class, Law, and the Collapse of Post-War Liberalism 116
16. What are the rights of the exclusive representative in relation to the employer? 118
16.1 Right to bargain in good faith: 118
NLRB v. American National Insurance Co., 343 U.S. 395 (1952) [board can’t regulate the substance of bargained for
agreements] 119
Hardesty Co., 336 NLRB 258 (2001) [‘regressive bargaining’ can be bad faith surface bargaining - here: delaying, lack
of legitimate explanation, unreasonable demands] 120
16.2 Right to bargain over mandatory subjects: 120
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964) [must bargain before contracting out union work
(mandatory subject)] 121
First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981); [partial closing not subject to mandatory bargaining
(see textile workers)] 122
Dubuque Packing Co., 303 NLRB 386 (1991) [relocating mandatory subject unless basic change in nature of
employer’s operation, employer establishes work significantly different or labor costs weren’t factor/union wouldn’t have
conceded costs] 123
16.3 Right to Information 124
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 149-54 majority opinion (1956) [Right to information - failing to support claim
re:wages can support bad faith bargaining finding.] 124
16.4 Right to bargain to impasse before unilateral change 125
NLRB v. Katz, 369 U.S. 736 (1962) [Right to bargain to impasse before unilateral change; ulp/8(a)(5) violation to make
changes & circumvent duty to negotiate] 125