G. Berendt Fall 2011 Labor Law Outline I.

The NLRA and NLRB (Assignments 1 & 2)

A. Evolution of Labor Law 1. Generally i. Labor Law = the regulatory scheme of collective bargaining established under the NLRA (Wagner Act of 1935 and as amended by the Taft-Hartley Act of 1947) ii. Relationship b/t employees and employers in the presence of a union iii. Motivation to join a union: strength in numbers in negotiations, protection, economics (to be treated fairly), union will negotiate on basis of seniority, not performance a. Changes employment at will b. Montana is unique because employment is for cause there, not at will iv. Administered by the NLRB instead of by the courts a. Primary forum for adjudication is an administrative tribunal v. Largely federal law states cannot prescribe or affect it vi. Defining and central theme = unionization and collective bargaining vii. Once organized, the union is the single, collective voice for the employees, whether they support the union or not, and they are forbidden to bargain individually with the employer a. Employer must negotiate in good faith for the terms and conditions of employment 2. Pre-NLRA i. 1850s Formation of the first national unions, representing one craft or occupation in different localities ii. 1869 Noble Order of the Knights of Labor a. Merged trade union and political endeavors b. Only admitted the skilled and unskilled workers and farmers but excluded professionals c. Chicago Haymarket Riot ended its popularity iii. 1880s - American Federation of Labor a. Did away with the radicalism of the Knights and focused on a narrower trade-union philosophy that lessened emphasis on social reform through politics and more on building disciplined unions, which thru collective bargaining, would be business-like in improving wages and working conditions b. Began the political philosophy that lasted through 1920s of voluntarism = a commitment to the private ordering of labor relations thru collective bargaining c. 1890s leading labor organization but remained a craft union iv. 1890 United Mine Workers organized the first permanent industrial union 3. At Common Law i. Originally, union activity was held as criminal conspiracy (Philadelphia Cordwainers) ii. Commonwealth v. Hunt ended criminal conspiracy indictments shifted labor cases from criminal to civil courts iii. Holmes Dissent in Vegelahn v. Guntner

G. Berendt Fall 2011 Labor Law Outline a. Policy of allowing free competition justifies intentional inflicting of temporal damage, including interference with business, when it is done as an instrumentality in reaching victory in labor dispute b. To exclude the relationship b/t employers and employees from this competition would be to narrow it too far capitalism is good for the employer is business, it should be allowed and good for employees too (supply and demand in labor relations) c. Conduct done by a group is not unlawful if an individual could do it by himself iv. Anti-trust laws Courts used anti-trust reasoning to attack organized labor amendment to the Clayton Act attempted to free labor from anti-trust arguments but was struck down by the SC th 4. 20 Century Legislation i. Railway Labor Act a. Prohibited interference, influence, or coercion by either party over the self-organization of employees b. Duties imposed: to make/maintain agreements about rates of pay and working conditions, abide by the agreement until settlement procedures are exhausted (negotiation, mediation, voluntary arbitration, and conciliation) before resorting to self-help c. Formed the National Railroad Adjustment Board and the National Mediation Board ii. Norris-LaGuardia Act (1932) a. Congress took away courts jurisdiction over labor exercised authority under Art III to limit jurisdiction i. Taft-Hartley gave it back a little bit in context of K no strike clauses courts can enforce the K violation if union strikes b. Promoted unionization (in response to courts growing hostility toward organized labor), collective bargaining, and concerted activities c. Set limitations on the jurisdiction of federal courts to issue injunctions in labor disputes iii. National Industrial Recovery Act (1933) a. Struck down as violating the delegation doctrine and separation of powers iv. Wagner Act (1935) written by Leon Keyserling from SC a. Original NLRA b. Almost vetoed by FDR Frances Perkins convinced Eleanor R to get FDR not to veto it c. Supplied shield against exercise of employer power to frustrate the organization of employees for collective bargaining d. Declared unfair labor practices of employers that violated basic rights of employees e. Imposed a duty on employee to bargain with the union f. Heavily favored labor organizations g. Formed the NLRB h. Constitutional under NLRB v. Jones & Laughlin Steel effect is

G. Berendt Fall 2011 Labor Law Outline that it legitimized the new branch of government in administrative agencies like the NLRB i. 7 gave employees the right to unionize and collectively organize and provided remedies for violations union was the exclusive bargaining rep to determine wages/hours/benefits j. The War years b/t Wagner and Taft-Hartley introduced arbitration/mediation as primary dispute resolution so that strikes would not interrupt the war effort i. Unions struck anyway leading to a negative reaction to organized labor and a power shift in Congress to become Republican v. Taft-Hartley Act (Labor Management Relations Act) - 1947 a. Vetoed by Truman but Congress overruled veto b. Retained the unfair labor practices for employers in Wagner Act and reaffirmed the endorsement of collective bargaining c. Gave president authority to declare a national emergency dispute to force the union and employer back to bargaining table and stop utilizing self-help tactics i. Truman invoked it in Youngstown Steel to take over steel industry after a strike and SC struck it down d. Added provisions defining unfair labor practices by labor organizations and gave workers the right to refrain i. Appeared to take away the secondary boycott (picketing customers of the employer until the customer no longer is a customer of the employer) e. Increased NLRB members from 3 to 5 and separated its prosecutorial and judicial functions f. Suits in federal courts allowed to enforce collective-bargaining agreements g. Right to Work laws = reaction to compulsory unionization in the collective bargaining agreement (union compulsory clause forces all employees to join the union w/in 30 days) i. 14 left this provision to the states h. 301 exception to the Norris-LaGuardia Act provides that an employer/employees can file in federal court for breach of K vi. Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act) 1959 a. Curbed abuses and improper union activities amended the secondary boycott prohibitions and added prohibition against blackmail picketing (used to hurt the business enough to get recognition by the union) b. Imposed fiduciary responsibility on unions sometimes called the Union Members Bill of Rights i. Fairness and financial disclosure ii. Jimmy Hoffas abuses led to the enactment c. Amended the NLRA to tighten the Acts secondary boycott provisions and the placing of restrictions on organizational and recognition picketing

G. Berendt Fall 2011 Labor Law Outline vii. Health Care Industry Amendments 1974 a. NLRB declined to assert jurisdiction over non-profits or healthcare institutions over the years b. Amendments to the NLRA to direct the NLRB to assert jurisdiction over these entities i. NLRB has no jurisdiction over government entities ii. Notice requirement so hospitals can arrange for care when/if nurses strike viii. Future Legislation: a. EFCA would substitute NLRB election process with a card count certification; include interest arbitration as remedy for stalling negotiation process once union is recognized; includes punitive damages and mandatory injunctive relief as remedies b. Respect Act overturns supervisor cases c. Arbitration Fairness Act pre-dispute arbitration agreements could be used to get around remedies for civil rights violations

B. NLRB
1. Generally i. Administrative procedures and remedies instead of judicial adjudication ii. Precluded private litigation to enforce workers statutory rights iii. Confined the role of the courts iv. Created to administer the statute 2. Jurisdiction i. Primary measure of NLRB jurisdiction is commerce a. 9(c)(1) & 10(a) b. Coextensive with the power of Congress to legislate under the commerce clause (Jones & Laughlin Steel) ii. Extends to: a. Non-retail business b. Office buildings c. Retail enterprises d. Public utilities e. Newspapers f. Radio/telegraph/television/telephone enterprises g. Hotels/motels/residential apartment houses h. Privately operated health care institutions i. Transportation enterprises j. Transit systems k. Taxicab companies l. Associations m. DC enterprises n. National defense o. Private universities and colleges p. Symphony orchestras q. Law firms and legal assistance programs r. Employers that provide social services s. Lawful gambling casinos iii. 14(c) authorizes the Board to refuse jurisdiction over any employer whose

G. Berendt Fall 2011 Labor Law Outline labor dispute is not sufficiently substantial, but the Board cannot refuse a labor dispute over which it would have asserted jurisdiction under the standards of Aug 1 1959 a. No Mans Land If congress gave statutory jurisdiction to an agency then states cant enter, but if NLRB does not assert jurisdiction then those orgs are left in the middle iv. Limited to enterprises whose affect on commerce is substantial and through the definitions of employer and employee in 2(2) and (3) and supervisor in 2(11) a. Excluded from NLRBs reach: agricultural workers, domestics, public employees (federal/state/local governments), fed reserve banks, RR and airlines subject to the Railway Labor Act, independent contractors and supervisors (including most nurses) b. Hospitals: Exclusion of nonprofit hospitals was deleted by the 1974 healthcare amendments today nonprofit hospitals, healthmaintenance orgs, health clinics, nursing homes, and extended-care facilities are covered under 2(14) i. House staff in hospitals (interns, residents, fellows) are statutory employees entitled to protection c. Graduate Students: primarily students functioning in an academic relationship w/their school, not statutory employees entitled to organize (Brown University) i. IL law = if student is workin in department related to studies = student; if not related = employee ii. No NLRA exclusion of students so conflicting decisions by Board d. Public employees: under the Federal Labor Relations Authority (not NLRB) and are forbidden to strike (pg 60-61) e. Religious schools: excluded workers in church-operated schools (Catholic Bishop of Chicago) f. Independent Contractors right of control test and on the basis of the total factual context assessed through agency principles i. Wither the employee has control over how the work gets done or over just the work product ii. If employer controls the manor/result = employee iii. If employer contracts for result but nothing to do with the manor of execution = Independent Contractor g. Agricultural workers i. Excluded since 1935 made sense during that period of time b/c of the recession and farm ownership h. Supervisors i. 2(11) defines supervisor as an individual who exercises independent judgment in performing their employment function, such as directing others, to hire, transfer, suspend, lay off, recall, promote, adjust grievances, etc. that is not merely of a routine or clerical nature ii. Context of nurses: 1. Nurses act on behalf of the employer, not exclusively

G. Berendt Fall 2011 Labor Law Outline on behalf of patients (NLRB v. Health Care) 2. Nurses generally assign tasks to others and often responsibly direct others (NLRB v. Kentucky River) i. Managers i. Non-statutory exclusion of managers employer should have the loyalty of its managers who have authority to commit management resources to set institutional policy or implement policy at the highest levels ii. University faculty: termed managerial so they are excluded from the Act (Yeshiva University) but no hard and fast rule is adopted about faculty members j. Confidential employees i. Excluded even if they are statutory employees under 2(3) ii. Test = whether an employee assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations (labornexus test) iii. Individual must have some connection to personnel and collective bargaining and either have access to materials or be present with those decisions are made iv. Example: secretary taking notes during meeting, person in charge of personnel files 3. Organization i. Function = to prevent and remedy violations of the NLRA (unfair labor practices) and to conduct secret-ballot elections on the question whether employees which to be represented by a union ii. Members are appointed to 5 year terms by the President, subject to Senate confirmation iii. 5 members that sit in 3 member panels iv. Adjudicative and prosecuting functions were separated in the Taft-Hartley Act a. General Counsel oversees prosecuting functions and is appointed by the President with consent from the Senate for a 4 year term b. 3(d) provides that the General Counsel supervises all NLRB attorneys and regional offices and gives GC final authority over the investigation of charges filed by aggrieved persons, issuance of complaints, and prosecution before the Board i. Issuance of complaints is initially controlled by the regional directors and their decisions are subject to review by the GC c. GCs decision not to issue a complaint or to withdraw a complaint is not reviewable by the Board or by the courts but it does have procedures for giving the charging party reasons for refusal and appeals to its office d. GC does not initiate ULP case on its own motion requires a charge to be filed first 4. Procedure i. Any person may file a charge in the regional office for the area where the

G. Berendt Fall 2011 Labor Law Outline ULP occurred ii. 6 month statute of limitations must file w/in 6 months of the violation a. 10(b) provides a 6 month window for the individual to file a charge starting with the point when the claimant discovers or should have discovered the misconduct iii. Employees of the regional office will investigate the charges and discuss them with the parties high % result in settlements before formal litigation before the board (90%ish) iv. Formal proceedings are begun by the issuance of a complaint and setting the time and place of hearing v. A hearing on the complaint is held before an Administrative Law Judge (ALJ) who is appointed by the Board, independent of the Board, and can be removed only for good cause a. The complaint is prosecuted by an attorney from the regional office but the charging party may intervene with own counsel b. Rules of evidence apply (10(b)) c. GC has the burden vi. ALJ files a decision setting forth findings of fact and proposed disposition of the case a. If no exceptions, the Board usually adopts the decision of the ALJ b. If exceptions are filed, then the Board will review the case on the basis of the briefs and w/o oral argument vii. 10(j) and (l) (j) gives NLRB discretion whether to apply for injunction 5. Judicial Review i. NLRB Review: a. Typical remedial order of the NLRB is to cease and desist from the unlawful behavior and post notice of the action in the workplace (and reinstatement with back pay if appropriate) b. ULP order is not self-executing if compliance is not forthcoming, the Board must seek enforcement by petitioning the court of appeals (10(e)) c. Enforcement order entered by the court = injunction and its violation is punishable by an action for contempt ii. Appeals to Federal Courts of Appeals a. Any person aggrieved by a Board order may also seek judicial review in the appeals courts i. 10(f) provides wider choice of forums for review than the Board has to seek enforcement so usually a forum-shopping race to file with a favorable appellate court after decision is handed down b. Charging party cannot maintain a contempt action for violation of the judicially-enforced Board order, only the Board can do that iii. Scope of Review a. 10(e) findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, is conclusive b. The court will uphold the Boards decision if based on facts/substantial evidence and the Boards expertise

G. Berendt Fall 2011 Labor Law Outline c. Courts have less discretion in overturning an ALJ than the Board, whose policy is not to overrule the ALJ credibility determinations unless incorrectness is shown by a clear preponderance of evidence d. In general, NLRBs findings of law are reviewed to determine whether they have a reasonable basis in law and are upheld unless they are irrational or inconsistent with the Act i. Two part test of deference: did Congress directly speak on this issue and if not then is the Boards decision based on a permissible construction of the statute

G. Berendt Fall 2011 Labor Law Outline II.

The Election Process - 8(a)(1) Violations (Assignment 3)

A. 8(a)(1) v. 8(b)(1)(A)
1. 8(a)(1) i. ULP = employer to interfere, restrain, coerce employees ii. Interfere = standing in the doorway iii. Coercion = pulling a gun and threatening iv. Restrain = physically holding you back 2. 8(b)(1)(A) i. ULP = labor organization to restrain, coerce ii. (1)(B) Prohibits unions from coercing the employer in its selection of representatives for collective bargaining iii. Missing element from 8(a) = interference asymmetry of the statute a. Employers have a different standing maintains power and authority whereas the union doesnt so the employer can interfere in ways a union cannot

B. 8(c) and Freedom of Speech Threats v. Predictions

1. Expression of any views/argument/opinion that does not, by its own terms, threaten force or economic reprisal ULP (Golub) i. Volition helps define the line b/t threat and predictions a. Volition = control; prediction on a matter that is outside of employers control is legal; a prediction that involves a matter that the employer does control is more of a threat ii. Threat of reprisal = adverse consequences will be deliberately inflicted in return; more than a mere prediction of adverse consequences iii. Employer is free to tell employees what he reasonably believes will be the likely economic consequences of unionization that are outside his control, as distinguished from threats of economic reprisal taken on his own volition iv. Predictions based on objective facts so allowable v. Hays dissent in Golub = people listen more carefully for implications in employers speeches and are more sensitive to implicit threats vi. Employer is free to communicate to his employees any of his general views about unionism or specific views about a particular union, as lon as they dont contain a threat (Gissel) a. Prediction must be based on objective fact to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization b. If there is any implication that the employer may or may not take action based on his own initiative and for reasons unrelated to economic necessities then it is no longer protected by the 1st Amendment c. Implied threat = statement in the form of a prediction not based on objective facts outside the employers control d. Brinksmanship employers going too far to try to find the line b/t threats and predictions vii. Predictions based on common sense and general experience are adequate protections under 1st Amendment and 8(c) 2. NLRB applies the totality of conduct approach

G. Berendt Fall 2011 Labor Law Outline i. Words and conduct that are so intertwined as to be considered a single coercive act ii. Board does not assess the impact of the conduct 3. Laboratory Conditions General Shoe i. In election proceedings, it is the Boards function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible to determine the uninhibited desires of the employees ii. = Circumstances surrounding an election should be free of pollutants to ensure that the employees have the most freedom to make an informed decision iii. Election can be set aside if the conditions are tainted, even if no ULP is found to have been committed a. Standard is where the misconduct tends to interfere with employees freedom of choice would well have affected the voting b. More restrictive than test of conduct that = 8(a)(1) violation c. Board approaches election objections with a strong presumption that ballots cast accurately reflect employee choice so the burden is heavier to show that the conduct tended to interfere with employee choice. 4. Remedies available for 8(a)(1) violations i. Set aside the election ii. Cease and desist and post notice 5. Captive audience speeches and home campaigning i. Irrespective of 8(a)(1) NLRB says there are certain kinds of captive audience speeches that are objectionable irrespective of the content based on their location, size of the group, position of the speaker in the managerial hierarchy and the tenor of the remarks ii. NLRB will set aside the election

C. Coercion
1. Critical Period for Objectionable Conduct i. Regulates through 9 with laboratory conditions standard ii. Critical period = SOL for objectionable conduct a. Begins with the filing of the petition (by the union) and this is when the laboratory conditions start b. Ends with the holding of a valid election 5 days after the election for it to be validated or objections to be filed 2. Overlapping ULP and Objectionable Conduct i. ULP standard for 8(a)(1) is the tendency to interfere, coerce, threaten ii. OBJ violation of laboratory standard a. OBJs that are not generally ULPs - captive audience speeches, misrepresentations iii. In the overlap, if a ULP occurs during the OBJ period, it is a fortiori (automatically follows) that the ULP is also OBJ 3. Anti-union films i. Generally lawful and unobjectionable under General Shoe, if used in a context free from other unlawful or objectionable conduct 4. Bargaining-from-scratch i. Distinguish b/t situations where remarks can be interpreted either as a threat

G. Berendt Fall 2011 Labor Law Outline to discontinue existing benefits (futility message) from remarks that merely describe bargaining strategy referring to the normal give and take of negotiations to remind employees that unionization is no guarantee if increased benefits ii. Legal: Under the NLRB, we have to bargain in good faith and we intend to and it isnt guaranteed that we can preserve anything we bargain from scratch iii. Futility v. accurate statement of law and facts a. Bargaining might not lead to anything more, not guarantee, may have to reduce benefits = legal b. Illegal = I wont give anything to the union iv. Totality of the circumstances = legal for an employer to say: if you select a union, we have a legal obligation to bargain in good faith which means we have to bargain over wages/hours/conditions of employment and everything you have now is on the table; union can promise everything but employer has to agree; will bargain in good faith but nothing guaranteed a. Illegal = threat that everything they have will be taken away and will retaliate by withdrawing benefits b. Look for a retaliatory message 5. Interrogation i. Coercion can happen w/o threats depending on the circumstances under which employees are addressed about their unionizing activities ii. Case by case totality test guided by the Bourne factors: a. The background, history of employer hostility and discrimination b. The nature of the information sought c. Identity of the questioner d. Place and method of the interrogation e. Truthfulness of the reply iii. Questions gauging nothing more than the numerical support for a union unlawful interrogation iv. Its about the content of the questions a. Intrusive = who here wants to support the union and discuss it with me b. Not intrusive = what can the union give you that the company cant, to a group of employees c. Look for intrusion make a factual distinction based on whether it is intrusive or a reasonable discussion about the pros/cons of unionization so as not to deprive the employees of a healthy debate/discussion 6. Polling i. A poll of employees and their support of a union violates 8(a)(1) if these safeguards are absent after a demand for recognition has been made: (Struksnes test) a. The purpose of the poll is to determine the truth of the unions claim of majority (union has made a demand for recognition gives employer a legitimate reason for the poll) b. This purpose is communicated to the employees c. Assurances against reprisals are given

G. Berendt Fall 2011 Labor Law Outline d. The employees are polled by secret ballot e. The employer has not engaged in ULPs or otherwise created a coercive atmosphere f. Berendts suggested additional factor: NLRB conducts the poll after the petition is filed so employer cannot justify taking one ii. Once an election is pending, polling is likely to be found as interfering with the election 7. Surveillance i. Presumed violative unless employer can come up with a reasonable, objective justification for the surveillance ii. Focus on intrusion and expectation of privacy iii. Is there an impression that the employer is trying to acquire information that he can use to retaliate against the employee or does the employer have a legitimate reason for being there 8. 24-Hour Rule i. Peerless Plywood rule a massed captive audience speech on company property w/in 24 hours of the election automatically violates the laboratory conditions 9. Milchem rule? Campaigning too close to the polling place???

D. Campaign Misrepresentations
1. Generally i. Objectionable conduct, generally not ULP b/c 8(c) protects them ii. Fundamental question of government regulation is who is involved and who should determine the truth or falsity of the statements 2. Original Board position (no longer current law) Hollywood Ceramics i. Election is set aside only where there is 1) a misrepresentation or campaign trickery that involves a substantial departure from the truth 2) at a time which prevents the other party from making an effective reply and 3) that is expected to have a significant impact on the outcome of the election ii. Reversed in Shopping Kart iii. Reinstated by General Knit of CA iv. Problems with this position: empirical research, difficulties administering the test, subjective, inconsistent and discriminatory in application (harder for employers than unions) 3. Getman Goldberg Study i. Promoted elimination of the Hollywood Ceramics doctrine ii. Theorized that election campaign communications play a limited role in the employees ultimate vote 4. Current Law Midland National Life i. Reinstated Shopping Kart and overruled General Knit and Hollywood Ceramics ii. Elections will not be set aside based on the substance of the representation BUT on the deceptive manner in which it was made a. Board no longer inquires into the truth/falsity of the statements if employees can independently evaluate their decision iii. As long as campaign material is what it purports to be (mere propaganda of a particular viewpoint) then its ok iv. Where, due to forgery, no voter could recognize the propaganda for what it is,

G. Berendt Fall 2011 Labor Law Outline then the Board will intervene v. Court reasoned that employees are to be assumed mature individuals who are capable of recognizing propaganda for what it is vi. No longer probes the truth or falsity of the campaign statements but will intervene in cases where a party has used forged documents 5. Racial Propaganda Appeals to Prejudice i. Sewell Doctrine a. Racial propaganda will not be tolerated unless the statements are truthful, temperate, and germane to a partys position and do not deliberately seek to overstress and exacerbate racial feelings by irrelevant and inflammatory appeals b. Objectionable if it is intemperate, untruthful, irrational, inflammatory appeals to base instincts, rather than reason, and irrelevant c. Comments about a unions position on segregation or monetary contributions toward eliminating segregation are ok i. Bancroft case appeal to racial solidarity based on a relevant issue; appeal to racial self-consciousness ok d. As long as the party limits itself to truthfully setting forth another partys position on matters of racial interest, then wont set aside the election

E. Third Party Interference and Agency

1. Apparent Authority i. 2(2) incorporates the common law agency as the test of employer responsibility ii. 2(13) makes apparent authority available to charge a union with the unauthorized acts of its authorized representatives and subjects unions as well as employers to agency principles iii. Apparent authority = employer responsible for actions/statements of supervisor if employees may reasonably believe that the supervisor speaks for management any individual reasonably understood by the workforce to act for management in given circumstances would be an agent of the employer iv. Limitations: employers can limit liability if they direct supervisors not to interfere and promptly tell the employees of such directions and disavow supervisors conduct and promptly communicate such to the employees v. Nonsupervisory employees responsibility is usually not imputed to the employer unless the employee has some special relationship with management or unless management has instigated or condoned the conduct vi. Union liability attempts to impose responsibility on unions for employees who have no position in the union frequently fail absent proof of union authorization or ratification a. The activist employee must ordinarily have functioned as the unions presence in the plant or its conduit to the workforce b. Asymmetry of the statute 2. 3rd Parties i. Outsider conduct generally is not imputed to the employer unless there is a showing that the employer instigated or aided the outside activity or failed to disavow it under circumstances that made such failure adoption

G. Berendt Fall 2011 Labor Law Outline ii. Although not imputed to the company, can still destroy laboratory conditions and warrant setting aside an election

F. Promises of Benefit
1. Fist in a velvet glove NLRB v. Exchange Parts i. Well-timed benefits given before an election are called the fist in the velvet glove b/c employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged ii. Benefit is new and took the employer took the opportunity to assocate itself with the benefit as the source of all benefits iii. Remedy: cease and desist 2. Russell Stover Candies i. Employer must proceed as it would have done had the union not been conducting its campaign 3. The Damned if you do, damned if you dont position remedied by an exception i. A benefit may be postponed provided that the employer makes clear to employees that it will be implemented whether or not they select a union and that the sole purpose of the postponement is to avoid the appearance of influencing the election ii. Could then use it in negotiations should the union win iii. Hypo about dental insurance legal: under advise of counsel, during the pendency of the union election, granting a benefit might violate the NLRA so will hold off 4. Common Employer defenses: i. Regularly scheduled benefit ii. Prior decsion that has been set in motion iii. Ojectively identifiable exigency emergency sitatuion like a competitor taking advantage of the situation 5. Union version under Exchange Parts Savair case i. Fee waiver, limited only to those who sign up with the union before an election unfairly allows the union to buy endorsements and paint a false portrait of employee support and = union bribe a. If the offer stands after the election, then no violation ii. Cant bribe the employees with free gifts a. But if its a trivial thing (pens/pencils/hats) then its ok 6. Employers can link the future to the past in its campaigns i. General promises of an even better future are permitted

G. Berendt Fall 2011 Labor Law Outline III.

Concerted Activity & Access (Assignment 4)

A. Clash of Legitimate Rights & Interests
1. Union/Employee Rights v. Employer Rights i. Employees have 7 rights to pursue collective bargaining and representation (form, join, assist a labor organization) ii. Employers have a legitimate property interest in workplace order and efficiency mostly enforced by no-solicitation policies a. Interests include real property and trespass, equipment, management of business as employer sees fit 2. Employee rights communication at work i. Republic Aviation SC acknowledges NLRB experience, expertise and the resulting power to draw inferences from the facts regarding a tendency to restrain employees concerning 7 rights & approves NLRB adoption of presumptions regarding employer rules restricting employee communication

B. Employee Rights to Communication & NLRB Presumptions

1. Prohibit wearing of union insignia presumptively invalid i. Unless there are special circumstances to rebut the presumption of invalidity a. This exception is narrow and includes circumstances when the display of union insignia and apparel is shown to jeopardize employee safety, exacerbate employee dissension, or unreasonably interfere with a public image the employer, through appearancerules, has sought to establish b. Customer contact (like in retail outlets with uniform requirements) is not in and of itself a special circumstance justifying a total ban on union insignia and nor is a customers displeasure with union insignia c. It makes a difference though if the message is just a small button or provocative message/language ii. Republic Aviation rule 2. Prohibit communications between on-duty employees presumptively valid 3. Prohibit communications among off-duty employees (including breaks and lunch) presumptively invalid i. Board rules are privileged for retail establishments, health care facilities, or other employers on an as needed basis 4. Oral v. Written communication i. Restricting distribution of literature to non-working areas presumptively valid, irrespective of time 5. Working Time v. Working Hours (Our Way) i. Prohibitions of communication while on working time (periods of actual work) = Legal a. The rule must state with reasonable clarity that it does not apply during employees non-work time i.e. only applies during working time ii. Prohibitions of communication while in working hours (from opening to closing of business, includes employees own time such as breaks) = Illegal 6. Special circumstances for retail operations i. Retailers may ban solicitation and distribution at any time during business

G. Berendt Fall 2011 Labor Law Outline hours, even during employees non-working time, on selling floors and in adjacent aisles and corridors, but not in such non-selling areas as public restrooms and restaurants ii. Hospitals: may generally ban all organizing activity, even during employees nonworking time, in patient care areas; including corridors on patients floors but not in visitor-access or patient-access areas 7. New Technology - Email i. Register Guard ii. Email is treated as if it is the use of company property which companies have more compelling interest to prohibit matter is unresolved in federal courts

C. Discriminatory Practices
1. Content or application of no-solicitation rules differential treatment of prounion activity is normally an unfair labor practice i. Beneficent acts exception: Despite some tolerance of an employer who permits occasional charitable solicitation during work hours, where incidents of charitable or beneficent solicitation cannot be characterized as few or isolated the Board will likely find the employers enforcement of a rule against union solicitation to be unlawful discrimination 2. Disparate enforcement i. = An employer with a facially valid no-solicitation rule banning solicitation of any kind discharges employees for union solicitations on work time but during the previous year had allowed work-time non-union solicitations on other occasions 3. Discharge of employee for violating an illegal rule = 8a3 and 8a1 violation 4. Singling out union activity for prohibitions in the body of the rule itself 5. Applying an otherwise valid rule in a discriminatory fashion 6. Application of rule to activities of a similar character i. Unequal treatment of equals is discrimination ii. Discrimination in the enforcement of a no-solicitation policy occurs only if the prohibited groups or activities are comparable to those permitted 7. NLRB current view: save for the limited beneficent acts exception, a lawful restriction on work-time solicitations must be applied in neutral fashion to union activities 8. Proper remedy: 8a1, 8a3, Objectionable conduct if during the critical period D. Employer Property Rights (directed against 3rd parties) 1. NLRB v. Magnavox Union may not waive employees 7 rights to distribute organizational literature on company property through acquiescence to an overly broad no-solicitation rule or in collective bargaining i. But does this rule deprive the employer of its bargain? Probably but employee rights are more important 2. Babcock & Wilcox an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employers notice or order does not discriminate against the union by allowing other distribution i. The employer may not interfere with organization and the Union cannot insist that employer aid in organization

G. Berendt Fall 2011 Labor Law Outline ii. But where the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude from property should yield to the extent needed to permit communication of information on the right to organize a. If the location of a plant and the living quarters of the employees place them beyond reach of union b. Example: company town, resorts, oil drilling stations iii. In application, this rule has been difficult for unions to satisfy that the usual channels have been inadequate 3. Public Access i. Babcock rule applies in situations where organizers use private property, to which the public is not invited, in a manner inconsistent with the propertys intended purpose (Montgomery Ward) 4. Comparative Standards i. NuTone enforcing a valid no-solicitation rule, employer does not have to give the union equal opportunity for expression of views if it uses working time for its anti-union message, while precluding employees from using the same time (not precluded from enforcing its no-solicitation rule) a. Must be in the absence of an unlawfully broad no-solicitation rule or a privileged no-solicitation rule ii. When there is an unlawfully broad or privileged broad (in a retail setting) nosolicitation rule and employer makes a speech to massed employees on working time on company property = ULP when it doesnt afford the union equal time iii. Excelsior List requirement that w/in 7 days after an election has been approved, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all eligible voters 5. 24-Hour Rule i. Employers and unions alike are prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before a scheduled election (Peerless Plywood)

G. Berendt Fall 2011 Labor Law Outline IV. Employer

Support or Domination of Union (Assign. 5)

A. 8(a)(2)
1. Provisions i. Impedes unilateral management efforts to establish cooperative and participatory arrangements for employee involvement in workplace decisionmaking company unions 2. Situations Implicating 8(a)(2) i. Company sponsored team management model ii. Recognition of a minority union (good faith in believing the union not a defense to a 8(a)(2) violation) (ILGWU Bernard Altman) iii. Favoritism of one union over another particularly during a challenging unions campaign to replace incumbent a. i.e. giving incumbent preferential treatment when communicating with employees b. Rule of thumb = proceed as you would have had the other union not been present ignore rival b/c you are under K iv. Domination of the union through support/bribes (sweetheart unions = union whose officials have been bought by the company so it no longer serves interests of employees against employer) v. Labor Management Reporting and Disclosure Act (LMRDA) union member bill of rights and union officers have fiduciary responsibilities 3. Must an employer stay totally neutral when there are 2 unions on the scene? i. Should operate as if 2nd union is not there ii. 8(c) free speech provision allow employer to express a preference (employer has worked will with union A constructive relationship, you have no idea what youll get with union B, easy to make promises but hard to produce, recommend to take what you have and your and companys best interest served with union A) a. Illegal: You have better wages/benefits with Union A, go with Union B and I cant tell you whats going to happen; subtext that employer will not bargain in good faith with Union B 4. Remedies i. Mostly it is cease/desist and post notice, order to withdraw recognition if wrongly supported ii. Remedial election is at discretion of regional director iii. Disestablishment is reserved for most extreme situations 5. Analysis of 8(b)(2) cases i. Is it a labor organization? ii. Yes, was it dominated, supported? iii. Yes, what is the appropriate remedy? 6. 2(5) = definition of a labor organization = exists to deal with employer on terms/conditions of employment i. Deal = a. Cabot Carbon case dealing is confined to bargaining b. Streamway rejected this definition ii. Streamway factors for committees that labor organization: a. Continuous rotation of members b. No employer hostility or anti-union animus

G. Berendt Fall 2011 Labor Law Outline c. Whether the employees/committee considered the committee to resemble a labor organization d. No encouragement of employees in the mistaken belief that a committee is truly representative and affords an agency for collective bargaining e. Employees are free to choose for themselves 7. 8(a)(2)s ban on employer-sponsored forms of employee representation does not outlaw all forms of employee involvement (Streamway) 8. Electromation rejects Streamway i. Core element of a labor organization is that it deals concerning conditions of employment dealing with contemplates a pattern or practice of a bilateral mechanism involving proposals from an employee committee concerning terms and conditions of employment coupled with consideration of those proposals by management in a give and take fashion ii. Does not matter if employer had no anti-union animus iii. purpose = what committee is set up to do iv. motive = hostility/or not toward unions 9. Test for 8(a)(2) violation (Electormation): i. Is the team committee a labor organization under 2(5)? a. Employee participation? b. Purpose to deal with employers? c. Concerning conditions of employment? d. If there is an employee representation committee, does the committee in some way represent the employees? ii. Has the employer dominated or interfered with the formation/administration of the committee or contributed financial or other support a. Focuses on the purpose of the committee and if the purpose is to deal with conditions of employment and if it has unfettered power to determine its own actions and independence (lack of control by employer evidenced by membership on the committee, participation, financial support etc.)

B. Neutrality Agreements
1. Agreement b/t union and employer that employer will remain neutral in any organizing campaign conducted by the union in the future at other plants i. Employer agrees not to resist the unions organizational campaign 2. Dana Corp 3. Do not violate 8(a)(2) as support 4. Do not violate 8(b)(1)(a) denying employees right to a debate

G. Berendt Fall 2011 Labor Law Outline V.

Protected Activity (Assignment 6)

A. Generally
1. 8(a)(3) i. Violation if the employer discriminated against because of 7 activities and that discrimination tended to encourage or discourage union membership ii. Discriminate = treating union different from non-union iii. Hire/tenure of employment = not just discharge/discipline but also promotion, suspension, lay off, recall iv. Encourage or discourage membership in labor organization = mostly actions that discourage membership v. Proviso: employers can agree to and enforce lawful union security clauses in non-right-to-work-states a. In a right-to-work-state, it would be illegal for employer to force an employee into a union 2. 7 i. Right to join/support a union and bargain collectively and any other concerted activity that is for the purpose of collective bargaining/other mutual aid or protection ii. Protected activity can be lost if the activity is abusive 3. Concerted Interobo Doctrine (when there is a union and a K) i. An individuals assertion of a right grounded in a collective-bargaining agreement is recognized as concerted activity and is accorded 7 protection ii. Concerted = activity of employees who have joined together to achieve common goals (City Disposal) iii. BUT even a lone employee, acting in invocation of a right grounded in his collective-bargaining agreement is acting concertedly iv. Requirements: (City Disposal) a. As long as the employees statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and b. The statement/action is reasonably directed toward the enforcement of a collectively bargained right c. Employee not required to use the magic words in invoking an explicit contract provision as long as the assertion was essentially a reference to the provision 4. Protection w/o Union i. Meyers objective standard of concerted activity a. To be concerted, it has to be with or on the authority of other employees, not solely by and on behalf of the employee himself b. Includes those circumstances where individual employees seek to initiate or induce or prepare for group action as well as individual employees bringing truly group complaints to management i. So it can be a single conversation b/t 2 employees ii. It has to at least look toward group action request to join together is protected (Mushroom Transp v. NLRB) ii. A reasonable employee who has been rejected should know that it is unlikely that he/she will achieve concerted activity and may be terminated anyway

G. Berendt Fall 2011 Labor Law Outline iii. Has to be objectively deducted that activity is concerted by the employer 5. Motive i. Unimportant for 8(a)(1) ii. Important for 8(a)(3) need to show intent/motive iii. Unimportant for 8(a)(2) 6. Requirements for 8(a)(3) violation when an employee complains: i. Actual concerted activity (not constructive) a. Actual concerted activity = 2 people in making the complaint or a second person who authorizes the person to complain on their behalf ii. Has to remain protected iii. Employer has to know of the concerted activity iv. Employer must be motivated to retaliate against the employee 7. 7s Mutual Aid or Protection Clause i. The dispute underlying the activity must be connected to the terms and conditions of work a. Whatever is reasonably related to the employees jobs or their status as employees in the plant may be the subject of plant communication/concerted activity (Eastex) ii. 2(3) does not limit employee to employees to a particular employer protects employees when they engage in concerted activity in support of employees/employers other than their own (Eastex) iii. Employees do not loose their protected status when they seek to improve the terms/conditions of employment through channels outside the immediate employee-employer relationship a. Eastex employees could distribute literature about legislation in TX that would incorporate right-to-work into the state constitution b. The scope of the clause includes appeals through administrative, judicial, and legislative forums to protect their interests as employees iv. SC recognized in Eastex that some employee communications may become too attenuated that it breaks the connection to conditions of employment but says that the NLRB should address it case by case v. Its ok if the issue cuts across all labor situations, not the immediate labor relations b/t the employees and employer

B. Loss of Protected Status

1. Employees who engage in concerted activities may lose their 7 & 8 protections if they engage in unprotected activity 2. Test for loss of protected status: (Elk Lumber) i. Whether the activity is so indefensible that it warrants the employer discharging the employees ii. Either an unlawful objective or an improper means may render employee conduct unprotected 3. Partial Strikes/Slowdowns i. Elk Lumber employees slowdown was an improper means to achieve an otherwise lawful objective (to induce employer to increase the hourly rate of pay) ii. Slowdown = partial strike which is usually unprotected b/c the means are improper

G. Berendt Fall 2011 Labor Law Outline iii. Montgomery Ward when an employee agrees to work, agrees to work faithfully, diligently, in good faith a. Shouldnt engage in partial strike if going to strike then strike and not get paid; dont get paid for a job well done when the job is not well done (not good faith) 4. Indefensible i. A presumption that a single concerted refusal to work is protected and that presumption is only rebutted when the stoppage is part of a plan or pattern of intermittent action inconsistent with a genuine strike or genuine performance by the employees of expected work a. If repeated, then indefensible ii. The Acts protection is lost only if job-related concerted activity is unlawful, violent, in breach of contract, or otherwise indefensible Washington Aluminum iii. Spontaneous strike w/o notice by unrepresented employees to protest unsafe working conditions = protected Washington Aluminum iv. One-time refusal to work overtime = protected (Polytech) v. The reasonableness of employees to engage in concerted activities is irrelevant to the determination of whether a labor dispute exists or not 5. Disloyalty & Insubordination i. Disloyalty and insubordination are unprotected as indefensible ii. Disloyalty = attack on product/service, no connection b/t the labor dispute and the attack, failure to disclose the nature of the dispute, location of the conduct, excessive destructive nature of the conduct, although off duty, employees are not striking when they engage in the conduct a. Jefferson Standard leafleting made no reference to a labor dispute, only attacked the product of the broadcasting station; made no reference to wages/hours/terms of employment b. Discharge for cause under 10(c) was valid b/c of the disloyalty 6. Wildcat strikes i. Unauthorized strikes there is a union and the employees take maters into their own hands w/o going through the union ii. Only minority strikes that support union objectives are protected iii. Unauthorized strikes undercut the majority union and the exclusivity concept so they are unprotected (Shop Rite Foods) 7. Vandalism and Plant Seizures i. Unprotected activity 8. Blue Flu i. Police started this kind of strike everyone calls in sick ii. Unprotected b/c police do not have the right to strike iii. Work to rule police give too many parking tickets and people complain to put pressure on the government or work strictly according to the rules a. Unprotected 9. Secondary Boycotts i. Violate 8(b)(4) so unprotected 10. No Strike Clauses & 8(d) Mastro Plastics i. Employees lose protected status for: a. Engaging in a strike during a term of a K with a no-strike clause and

G. Berendt Fall 2011 Labor Law Outline arbitration clause UNLESS the strike is for a serious ULP b. Engaging in a strike w/o giving 8(d)s 60 day notice and waiting for the K to terminate UNLESS the strike is in response to employer ULP ii. 8(d) only applies to economic strikes, not strikes to protest ULP a. If the strike was not to terminate or modify the K but in protest of the ULP, the loss-of-status provision of 8(d) does not apply iii. Under a general no-strike clause, only strikes protesting non-serious employer ULP lose protected status strikes protesting serious ULPs are immune from unspecific no-strike clauses and are protected 11. Employee Violence and Misconduct i. Strikes and picketing create tense situations ii. Employees who leave the workplace that unduly threatens the health and safety of others could lose protected status endangered anyone to the point that harm was foreseeable a. Harm both to people and damage to employers premises or equipment iii. Clear Pine Mouldings objective standard in denying protection to misconduct that reasonably tends to coerce or intimidate verbal threats, even if ineffective would not necessarily be protected a. Did away with the requirement of a physical act for employee to lose protected status b. Test is if conduct/threat reasonably tends to coerce or intimidate c. Resembles tort of assault iv. Thayer Doctrine: (upheld in Kholer) Provocation of employee a. Where an employer who has committed an ULP discharges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employers unlawful acts and the seriousness of the misconduct in determining whether reinstatement would effectuate policies of the Act b. Misconduct that is provoked by the employers ULP is not grounds for discharge employers should not be permitted to benefit from own unlawful acts, even if employee misconduct justifies discipline c. Only serious misconduct during a strike will exclude the striker from the Acts protections v. Prevailing standard is that employees engaged in protected activity cannot be dismissed UNLESS their improprieties are so flagrant, violent or extreme as to render the individual unfit for further service

G. Berendt Fall 2011 Labor Law Outline VI. Reprisals

Against Protected Activity (Assignment 7)

A. 8(a)(3) and 10(c)

1. 8(a)(3) protects against discrimination satisfied if antiunion sentiment or animus was the motivating factor in the challenged employer action and its based on union activity 2. 10(c) NLRB has no authority to reinstate employee who has been terminated for cause i. Cause = requires a system of progressive discipline that is adhered to b/c cant look the other way and then fire the employee for it when employee engages in union activity ii. You can fire an employee for any reason as long as the NLRA is not violated iii. You have to have a system of progressive discipline and adhere to it, not just look away and then fire them for union activity under pretext of other violations a. Cant pick and choose what to allow and not allow (Edward Budd case)

B. Mixed/Dual Motive Cases

1. Where the employer has legitimate and illegitimate reasons for a discharge, must prove that the actual motivation was the illegitimate reason (union or concerted activity) to find a violation 2. Wright Line Test: i. GC has the burden to establish the prima facie case that the protected activity was the substantial/motivating factor behind the discharge ii. Employer may rebut this prima facie case by proving by a preponderance of the evidence that the discharge would have occurred even absent the employees protected conduct 3. Transportation Mngt i. The burden of proving that the employers hostility to the union never shifts but even if that burden is carried, the employer can defend by showing that the decision would have been made anyway (affirms Wright Line) ii. If employee commits misconduct that is so egregious that she loses protected status, Wright Line still applies cannot pick and choose what violations to enforce and what not to enforce

C. Remedies
1. NLRB has broad discretion in crafting remedies 2. Reinstatement i. If employer replaced the employee, the reinstated employee has preferential treatment 3. Back pay i. Narrow situations where NLRB has granted back pay w/o reinstatement 4. Mitigation i. Subtracting interim actual earnings and unearned amounts due to failure of employee to pursue interim employment ii. Incentive for employer to help employees find other work iii. Employer has the burden to show employee did not mitigate damages iv. Employee has legal obligation to mitigate damages but employer carries evidentiary burden

G. Berendt Fall 2011 Labor Law Outline 5. Interest i. % According to IRS scale computed on quarterly basis 6. Other remedies i. Back benefits, retirement credits/contributions, healthcare, vacation benefits 7. Effectiveness of Remedies i. Board orders must be remedial and not punitive

D. Mixed Motive and Salts

1. Salt = plants by the union to get them to unionize from the inside 2. Refusal to hire a salt = violation of 8(a)(3) i. Town & Country a worker can still be an employee under the Act even if a union is paying the worker to organize the employers workforce 3. Wright Line Test adjusted GC must prove: i. That the employer was hiring at the time of the alleged conduct ii. That the applicants had experience or training relevant to the positions for hire and iii. That antiunion animus contributed to the decision not to hire the applicants 4. Remedy: i. Instatement and back pay are appropriate only if employer actually refuses to hire a union applicant (refusal to hire) ii. Refusal to consider cease and desist and rightful place consideration 5. Get around this problem: i. Include in K that employee cant moonlight only work for employer

E. Undocumented workers
1. Back pay to an undocumented alien never authorized to work in the US is foreclosed by federal immigration policy 2. No reinstatement b/c not here legally 3. NLRB has no remedial authority b/c the employees are not entitled to work in the US

F. Motive
1. Unnecessary in an 8(a)(1) violation i. Violation if an employee is discharged for misconduct arising out of a protected activity, despite the employers good faith 2. Necessary in an 8(a)(3) violation i. Unlawful motive can be proven by inference if the consequences are foreseeable wrongdoer is held to be liable for the foreseeable consequences of his/her conduct ii. Employers conduct carries its own indicia of unlawful intent 3. Burnup & Sims i. Once an employer shows a good faith belief tht an employee engaged in misconduct justifying discharge, the GC has the burden of showing that in fact no misconduct occurred, or if it did that it was not sufficient to justify discharge 4. Union caused discrimination i. 8(b)(1)(a) and 8(b)(2) involves union requesting termination of a member ii. Remedies are usually shared b/t the employer and the union iii. Super seniority under a K for union stewards is presumptively valid (Dairylea Coop) but become presumptively invalid when applied to benefits other than layoff and recall situations and when applied to members other

G. Berendt Fall 2011 Labor Law Outline than stewards 5. When 8a1 is violated, doesnt necessarily mean the others are too but if one of the subdivisions is violated then an 8a1 violation naturally follows

G. Total Closing/Partial Closing/Runaway Shops

1. Total Closings i. 8a1 cannot be independently violated (Textile Workers) a. On the face of the statute it looks like employer is violating 8a1 BUT NLRB cant force an employer to stay open employer has private interests in his company ii. 8a3 violation a. No, a total closing cannot violate 8a3 b/c it does not discourage employee membership b/c the employer/employee relationship is destroyed no union membership if no employment b. No statutory employees left when employer shuts down entirely c. Total closing cannot violate 8a3 even if motivated by hostility to the union 2. Partial Closings/Runaway Shops (Darlington Mnfg) i. Partial closing = persons exercising control over a plant that is being closed for anti-union reasons have an interest in another business that they would reap the benefit of the closing, act to close the plant with the purpose of producing that result, and occupy a relationship to the other business which makes it realistically foreseeable that its employees will fear that such business will also be closed if unionized ii. May be illegal if they chill employees desire for unionization in other locations iii. May also violate 8a5 iv. If a partial closing ends the employment relationship (the terminated employees cannot be protected b/c no more relationship) BUT the employees in other plants/locations need to be protected and their desire to unionize might be chilled by employers actions v. Not automatically illegal: Burden under 8a3 of showing anti-union animus is not carried by showing a partial closing still has to show the motivation a. Employer has affirmative defense of an economic reason to close the shop vi. Remedies: a. Terminated employees get back pay and moving expenses if its a runaway shop and preferential hiring in other parts as 3rd party beneficiaries to the vindication of remaining employees rights 3. Announcing a decision to close i. Announcements are protected under 8c free speech but cannot make a threat to close a. Announcement = prediction based on existing facts not in retaliation

G. Berendt Fall 2011 Labor Law Outline VII.

Weapons of Economic Conflict (Assignment 8)

A. Generally (now that the union is chosen)
1. Statute assumes parties will collectively bargain and anticipates coercion (self-help)

B. Strikes/Lockouts
1. Unemployed strikers are employees with respect to 7 rights even if replaced so recall cannot be based on union activity (Mackay Radio) 2. Unions hate Mackay Radio b/c basically allows strikers to be replaced, diminishing the impact of the strike and putting jobs in jeopardy if it is ruled an economic strike (employees not fully protected) 3. Replacements i. Economic Strikes a. Economic strikers may be permanently replaced (Mackay Radio) and employer may grant permanent employment to those replacements not a ULP b. Economic strikers may be temporarily replaced ii. ULP Strikes a. ULP strikers can only be temporarily replaced 4. Strikers Rights i. 7 and 13 give employees the right to strike ii. BUT employers can replace them (Mackay Radio) iii. Strikers REMAIN statutory employees and are protected from acts of discrimination (like during recall) iv. ULPs cannot be permanently replaced (if so then 8a1 and 8a3 violations) v. Economic strikers can be permanently replaced (Mackay Radio) vi. Neither economic nor ULP strikers are entitled to back pay for any period during which they withhold services voluntarily i.e. after a recall vii. Strikers rights to back pay start FROM: the point that employees ask to come back OR the strike is settled and denied reinstatement viii. Before recall rights arise, union must make an unconditional request for reinstatement then employer must act promptly ix. Crossovers are no different from permanent replacement workers (TWA v. Flight Attendants) x. A wrongfully discharged striker is entitled to back pay from the date of the discharge even w/o requesting reinstatement xi. Economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements 1) remain employees; 2) are entitled to full reinstatement upon the departure of replacements unless they have acquired regular and equivalent employment (Laidlaw Doctrine) 5. Dilemma i. Status of the strike (ULP or economic) is not determined until a decision by the board/court could be many years from the time of the strike ii. Employee risk being replaced permanently if they are determined to be economic strikers iii. Employer risk if a ULP strike then have to reinstate employees and pay back pay (violates 8a3 and 8a1 if they fail to hire back the ULP strikers) and

G. Berendt Fall 2011 Labor Law Outline employer would be liable to the replacements it promised would be permanent for K and tort action 6. Conversion i. When the strike begins as an economic strike and then becomes a ULP strike b/c employer committed a ULP after the commencement of the strike ii. Strikers replaced before conversion have the rights of economic strikers and those replaced after conversion have the rights of ULP strikers 7. Lockouts (American Shipbuilding) i. Offensive lockouts are LEGAL employers can lock out employees following an impasse in order to bring economic pressure on employees and the union ii. Do not carry own indicia of unlawful intent just part of the process iii. Not inherently destructive b/c employer is not discouraging union membership, rejecting the union, or trying to destroy it (different from Erie Resistor) iv. Employer CAN lock out employees to win concessions AND hire temporary replacements (Inter-Collegiate Press comparatively slight actions) a. Not inherently destructive because its for the purpose of bargaining with the union b. Hiring permanent employees violation b/c induces people to cross the line to save their jobs

C. Employer Interference with Strike

1. Tests to determine whether the employers solicitation of workers to return to work is lawful AND not in violation of 8a3 for discrimination 2. Super-seniority as a way to entice employees out of the strike i. Erie Resistor inherently destructive; wrongdoer should be held to foresee the possible violative consequences of conduct 3. Test to whether it is 8a3 violation: i. Inherently destructive a. GC carries burden of establishing the prima facie case for 8a3 employers conduct may have its own indicia of unlawful intent if it is foreseeable (Radio Officers) i. No need for subjective intent/smoking gun ii. If it presents evidence of an inherently discriminatory conduct, then satisfies motive b. Burden shifts to employer to provide a legitimate business justification for the actions i. Employer can refuse to reinstate un-replaced strikers for a good reason such as loss of customers but strikers remain statutory employees until they find other employment c. NLRB balances the destruction of rights against the employers legit business reason ii. Characteristics of Inherently Destructive conduct: a. Effects the tenure of all strikers b. Hurts strikers but not non-strikers c. Offers a benefit to abandon the strike* still good law d. Cripples the strike effort e. Renders future bargaining difficult or impossible creating long-term

G. Berendt Fall 2011 Labor Law Outline divisions among employees* still good law iii. Ambiguous (American Shipbuilding) a. Specific evidence of unlawful intent is necessary so ambiguous situations do not violate 8a3 iv. Comparatively Slight a. Conduct has some negative affect and carries its own indicia of unlawful intent b. Burden shifts to employer to provide an LBJ, and if it does then it erases the inference of unlawful intent and no violation c. Different from Inherently destructive b/c no balancing by NLRB d. Example: Carmi case not enough teachers to open school so cant reward the teachers who break the strike by paying them to stay home should pay hourly for the hours at school

D. Union Interference
1. Employees have the right to refrain from a strike but to avoid being fined for not observing as a member, have to resign from the union before you cross 2. Union can then charge you fair share fees as a non-member but cant fine you 3. Union violates 8(b)(1)(A) by enforcing a rule that prevented employees from resigning prior to a strike or during a strike (Patternmakers v. NLRB)

E. Multi-Employer Bargaining Units

1. All employers have the same union 2. When the union strikes one employer, the non-struck member employers can lock out employees and hire temporary replacements 3. Still discourages union membership but is comparatively-slight (as opposed to the lock out in American Shipbuilding that was ambiguous)

G. Berendt Fall 2011 Labor Law Outline VIII.

Exclusive Representative Status (Assignment 9)

A. 9 Election Process
1. Ways to achieve recognized status by a Union i. Election process in section 9 ii. Voluntary recognition based on authorization cards after employer checks iii. After polling or private election iv. Remedial bargaining order 2. Types of Petitions i. RC Request for Certification filed by union ii. RM Request by Management, filed by employer to test a unions initial or continuing claim of majority status iii. RD Request for Decertification filed by employees who no longer want the union iv. UC Unit clarification filed by either union or employer a. Workplaces are not stagnant so when employee categories are created a question arises if the new ones are simply added to the unit or get their own determination thru election v. AC Amendment of certification (name change) vi. UD De-authorization of union security filed by union employees

B. QCR
1. The election process is not self-regulating NLRB cannot initiate one on its own 2. There must be substantial showing of interest by employees that they wish to be represented by a union i. One authorization card starts the QCR ii. Substantial showing = 30% of employees in the unit support the petition and obtain the election iii. The card has to say I want the union has to state on its face that the union will be exclusive representative (single purpose) iv. Unions typically try to get 60-70% support before submitting the QCR v. 50%+1 of voters casting ballots to win the election vi. 50%+1 of employees in the unit for voluntary recognition or a remedial bargaining order

C. Defeating the QCR

1. Balancing of statutory objectives of employee choice and stability in commerce 2. Blocking Charges i. Another union files an 8a2 charge against an employer for supporting the incumbent or other union illegally ii. Blocks the election 3. Contract Bar i. Second union comes in to rival the incumbent ii. Employer naturally prefers the incumbent iii. Bars other petitions of other unions iv. Lasts for up to 3 years a. K for 1 year, lasts 1 year b. K for 2 years, lasts 2 years

G. Berendt Fall 2011 Labor Law Outline c. K for 3 years, lasts 3 years d. K for 4 years, lasts for 3 years v. 30 day window b/t 90 and 60 days before expiration of the existing unions K vi. Then window closes and there is a 60 day insulator period vii. EXCEPTIONS: a. Schism = union breaks off at the highest levels (division of the union) b. Defunctness = union has abandoned the employees c. Rapid expansion or contraction of the work force/unit = the K was signed when the employer hadnt hired all of its employees so subsequent employees shouldnt be deprived of decision rights viii. Intervening Certification when another union wins an election and becomes certified while incumbent unions K is still in effect (American Seating) a. Bargaining with new union is immediate b. Old unions K merely defines the status quo from which to bargain and must be maintained until new K is negotiated c. Old unions K is void in the exclusive bargaining and check off provisions but voidable at the execution of a new K d. IF Union #2 merely files the petition during the OP, then the employer still has obligation to bargain with the incumbent or risk violating 8a5 (switch from Midwest Piping doctrine that allowed employer to place everything on hold until the contest was decided b/t the two unions) (RAC Del Caribe) 4. Election Bar i. Chronologically comes first a. Election bar certification bar K bar with an executed K b. Does not prevent unit clarification ii. Source 9(c)(3) iii. Purpose no election in the unit or subdivision w/in 12 months of a valid election; protects employers/ees from non-stop petitions iv. Duration 12 months from the date of a valid election (no matter who wins) v. Effect petitions raising a QCR filed in this period will be dismissed, unless filed in the last 60 days of the period and the election will not be held until the 12 months expires NO EXCEPTIONS vi. Operates regardless of the outcome of the election vii. Extensions - None 5. Certification Year i. Source NLRB case law ii. Purpose gives a newly certified union and employer a year to bargain and reach agreement undistracted by a possible QCR; stabilizes relationships; employer cant withdraw and another union cant com in iii. Duration applies for 12 months after the certification of a union iv. Effect Any petition filed during the year will be dismissed unless an exception applies (same exceptions as K bar) v. Operates only when union wins election and is certified vi. Extensions may be extended if the employer refuses or fails to bargain in good faith vii. Presumptions:

G. Berendt Fall 2011 Labor Law Outline a. During Union has ir-rebuttable presumption of majority status so an employer cannot withdraw recognition and must bargain or violates 8a5 and 8a1 (usual exceptions of schism, defunctness, rapid fluctuation apply) b. After Union has a rebuttable presumption of majority status employer can show that union did not have majority and withdraw recognition i. Employer doubt that union does not have majority three views: 1. Employer has a good faith doubt by establishing that the # of employees who crossed the picket line = those who do not support union 2. Presume that people who crossed the picket line support the union in same proportion as those before the strike began 3. CURRENT LAW: No presumption attached no significance to the act of crossing the picket line must show by objective basis and preponderance of evidence that union lost majority status (Allentown Mack & Levitz Furniture) a. Rumor is enough to = reasonable doubt ii. Employer can always file an RM if it believes union has lost majority status 6. Voluntary Recognition Bar i. Employer can grant voluntary recognition to a union as long as the majority status is there and not a coerced majority and not assisting one union over the other in violation of 8a2 ii. May recognize before the petition is filed iii. Recognition bar lasts for a reasonable time not to exceed 12 months iv. BEFORE voluntary recognition, employer must give employees 45 days notice and opportunity to change (Dana Corp) a. Neither the election bar nor the K bar will apply unless the employees are giving notice and 45 days to file a dcert petition + 45 days passes w/o filing of a petition 7. Voting Rights i. Temporarily replaced strikers = vote ii. Permanently replaced economic strikers = vote until 12 months after the commencement of the strike (no voting rights if they have taken employment elsewhere or discharged for good cause) iii. Temporary replacements = no voting rights iv. Permanent replacements = vote

D. Appropriate Unit
1. 9 gives NLRB authority to conduct elections for appropriate units i. Unit can be any unit and doesnt have to be the most appropriate, just appropriate 2. Factors considered: i. Extent and type of union organization and the history of collective bargaining of the employer

G. Berendt Fall 2011 Labor Law Outline ii. Nature of the work done iii. Method of payment iv. Supervised by same supervisors v. Location(s) vi. Configuration of labor relations management vii. Desires of the employees themselves 3. 9(b) i. Professional employees cannot be placed in a unit with non-professionals unless expressly consented to ii. Craft units craft severance has been an issue; NLRB cannot decide that any craft unit is inappropriate on ground that a different unit has been established by a prior Board determination iii. Guards prohibition; guards cannot be in same unit as non-guards b/c of potential conflict of interest 4. Globe elections = members are permitted to choose whether they want to be represented and decide by which union it wants to be represented by 5. Hospital units = only 8 appropriate units in hospitals with 3 exceptions: i. Cases that present extraordinary circumstances (too few employees) cases in which nonconforming units already exist ii. Cases in which labor organizations seek to combine two or more of the 8 units 6. Single or Multi-Location Units i. Single location is presumptively appropriate a. Presumption can be overcome by looking at the centralized control of operations/employee interchange b/t facilities/common wages, benefits, terms of employment ii. Accretion (without an election) or self-determination election when new employees are sought to be added to existing unit 7. Multi-employer units i. Employers and unions must consent to the initial formation of the multiemployer unit (after majority representative selected) ii. Rules for unilateral withdrawal (Retail Associates) a. Must be timely before negotiation for a successor agreement starts (if it has started, then it is bilateral and need permission from union and other employers) b. Must be unequivocal relatively permanent c. Impasse with union exception to allow unilateral withdrawal d. Exceptions: company is in dire economic straights and whipsaw strike

E. Authorization Cards
1. Purposes: i. Majority claim of a union seeking voluntary recognition ii. Toward the 30% necessary for a showing of interest to obtain an election iii. For the majority to get a bargaining order in light of an extreme ULP 2. Must be single purpose for the 30% showing of interest purpose, recognition, and for a remedial bargaining order 3. 10% is needed for showing of interest for a second union on the ballot 4. 48 Hour Rule showing of interest must be filed within 48 hours of filing the

G. Berendt Fall 2011 Labor Law Outline petition; if not then it will be dismissed 5. Cards are considered stale after 1 year of filing the petition 6. Authorization cards are used to determine majority status i. NLRB can refuse to count a card if it can be proven that the person who handed out the cards stated that the sole purpose of the card was to obtain an election (and nothing more) and on its face it states that the union will be the exclusive representative single purpose card (Cumberland Shoe doctrine) a. Essentially cancelling out the clear facial meaning of the card by the statements counted ii. Single purpose cards are presumptively valid F. Judicial Review 1. Very little judicial review in representation cases 2. Appellate court review allowed under 9(d) as an indirect method i. Union files an 8a5 petition ii. Employer can raise the representation question as a defense 3. Unions do not have similar way to review 4. Unions can, however, accuse the NLRB of acting outside its section 9 authority, in contravention to statutory mandate/prohibition or deprives employees of a specific right - by, for example, combining professionals and non-professionals in the same unit District Cts review this accusation

G. Berendt Fall 2011 Labor Law Outline IX. Remedial

Bargaining Orders (Assignment 10)

A. Generally
1. Traditional = order to bargain in good faith (to remedy violation of 8a5 and 8a1) 2. Remedial = to remedy hallmark violations i. Hallmark violations = serious conduct in violation of 8a1 and 8a3 ii. Example of hallmark violations = a. Highly coercive b. Resistant to correction by conventional remedies c. Could be expected to have long lasting effects in deterring employees from exercising their 7 rights iii. Discharge of union leaders or substantial number of union supporters, promises of benefits, threats to close iv. No need for 8a5 violation v. Usually based on majority based on cards and substitutes for election process where the employer has made the process impossible 3. An employer can respond to unions demand for recognition w/o committing a ULP: i. Check the cards ii. Refuse to look at the cards iii. Tell union to file an RC petition iv. Could file an RM petition v. Tell the union agent to leave vi. Refuse to meet at all

B. Categories of ULPs
1. Category 1 i. Exceptional cases outrageous and pervasive ULPs ii. Remedy = issue a remedial bargaining order w/o card majority or demand for recognition (Gissel dicta) iii. Non-majority order is controversial some members think it prevents employers from committing such bad ULPs, others think it takes employee choice away iv. No 8a5 violation necessary 2. Category 2 i. Less extraordinary cases marked by les pervasive ULPs that still have a tendency to undermine union majority ii. Remedy = remedial bargaining order where union has a majority and conduct reduced that majority (need majority status) iii. No need for 8a5 violation iv. No need for a request for recognition (SC implied yes in Gissel but B said no) v. Bargaining order will be pre-dated based on the later of 2 dates: a. The date the employer commenced the unlawful conduct or b. The date employer refused to recognize the union 3. Category 3 i. Minor, less extensive ULPs that may be remedied using conventional NLRB orders and by setting aside the election based on objectionable conduct and holding another election

G. Berendt Fall 2011 Labor Law Outline

C. Other Remedies
1. Runaway Shop moving expenses and preferential hiring 2. Partial closing can order partial closure to be re-opened if not unduly burdensome i. Employer has to show the burdensome factor requires a possible collapse of the economic welfare of the company and not just an economic loss

G. Berendt Fall 2011 Labor Law Outline X.

Organizational Picketing (Assignment 11)

A. Generally - 8(b)(7)
1. Expedited investigation by the NLRB under 10(l) and (m) for violations of 8b4 2. Must be recognitional picketing for legality to be considered under this section 3. Three Preliminary Questions: i. Is there picketing at all? a. No outside 8(b)(7) b. Yes continue on c. Hand-billing picketing because picketing requires confrontation and hand-billing is a form of expression ii. Is the picketing for recognition or organizational purposes? a. Yes continue iii. Is it certified or uncertified union picketing? a. Certified entitled to recognition so it can picket and 8(b)(7) doesnt apply b. Uncertified possible 8(b)(7) violation 4. Go through the sub paragraphs in their order

B. 8(b)(7)(A)
1. Violated if the union picketing for recognition that is uncertified and no QCR can be raised for some reason such as a bar 2. There is an incumbent union in place and there is a certification year, contract bar, recognition bar that defeats a QCR 3. If no, continue to (b)

C. 8(b)(7)(B)
1. Violated if picketing for recognition when a valid election has taken place during the preceding 12 months 2. Implements election bar found in 9(c)(3) 3. Prevents a union which has lost an NLRB election from trying to coerce an employer into recognizing that union afer it has been rejected by employees 4. Applies to any other union during the 12 months following a valid election 5. If no, continue to (c)

D. 8(b)(7)(C)
1. Assuming (a) and (b) are not violated, an uncertified union may picket for a reasonable time not to exceed 30 days w/o filing a petition i. Once union files a petition, election must be expedited ii. If union wins, can continue to picket if employer refuses to recognize and bargain with the union iii. If the union loses, continued picketing violates 8(b)(7)(B) because of the election bar 2. Provisos: i. Union can picket > 30 days if it also includes an informational picketing message on the placards a. Informational = truthful advising the public that the employer does not employ union members or have a union K b. Can be in addition to a recognitional message

G. Berendt Fall 2011 Labor Law Outline c. Union can lose this exception if the picketing induces other employees not to pick up or deliver or transport goods or not to perform services i. Include fine print that not trying to deter others from doing business, dispute is with x company

E. Loopholes in 8(b)(7)
1. A union can picket for recognition w/o limitation if it is certified 2. An uncertified union may picket for area standards as long as its careful not to divulge a recognitional objective 3. It may picket for up to 30 days as long as a QCR may be raised and its not within 12 months of a valid election 4. It may picket for over 30 days if it files a petition 5. After filing a petition, it may file blocking charges to extend its picketing 6. It may use the proviso for informational picketing found at the end of (c) 7. If employer commits a ULP during recognition picketing, the union can file a representation petition and ULP charges, delay the election, and continue to picket

F. Area Standards Picketing

1. Not the same as picketing for recognition 2. Sign cant say anything about recognition, just that the company is not on par with the industry 3. Not under 8(b)(7)

G. Berendt Fall 2011 Labor Law Outline XI. Secondary

Boycotts (Assignment 12)

A. Generally - 8(b)(4)
1. Protects neutrals from being needlessly embroiled in disputes not of their making and protects employers from secondary boycotts 2. 8(b)(4)(A) i. Prohibits union corrosion to force an employer to enter into a hot cargo clause or will-not-handle clause ii. Hot cargo clause = agreements where union would take cut in pay if the employer agreed not to enter into contracts with non-union companies iii. 8(e) prohibits un-coerced entering into or implementation of a hot cargo clause 3. 8(b)(4)(B) i. Forbids coercion or threats directed at individuals as well as inducements of concerted boycotts International Rice Milling a. Changed language to any person one employee of a secondary is required, not concerted activity by the secondary employees ii. Congress did not intend to outlaw primary picketing a. Primary picketing = union picketing the primary and not the secondary = LEGAL b. Objective of primary picketing is to exert economic pressure c. Secondary affect of primary picketing is ok iii. Primary Picketing Proviso nothing prohibits primary picketing a. Secondarys employees that wont cross the picket line is an ancillary affect iv. Publicity Proviso typically hand-billing that advises the public that the secondary is doing business with the primary 4. Elements for a violation: i. Improper Act engage in a strike or boycott or induce a strike/boycott a. Threaten or coerce any person engaged in commerce ii. Improper Objective a. Forcing another from doing business with the primary iii. None of the exceptions apply: a. Primary picketing b. Publicity c. Sympathy strikes and their union teamsters telling their members to observe picket lines i. Sympathy strikers have the rights of economic strikers (can be replaced with permanent replacements)

B. Ally Doctrine
1. Neutrals become allies when they perform struck work to aid the primary by lessening the impact of the strike on the primary i. Example: keeping primarys customers serviced during the strike (Royal Typewriter)

C. Common Situs Picketing

1. When the primary is ambulatory and alights in a location that is inhabited by neutral secondary employers (like an office park) 2. Moore Dry Dock Standards to keep from violations:

G. Berendt Fall 2011 Labor Law Outline i. Picket when the primary is located at the secondarys premises ii. At times when the primary is engaged in normal business operations iii. Picket reasonably close to the primary iv. Union discloses that the dispute is with the primary and not the secondary 3. Its ok if the union follows those 4 standards and the secondary employers employees still refuse to do business with primary b/c part of primary picketing consequence 4. Primary must notify union when it moves so union stops picketing when it does cannot entrap the union by not informing them of a move 5. If secondary invites union to enter its premises so it can be closer to the primary and union declines = violation

D. Reserved Gates
1. An employer can reserve a gate that cannot be picketed w/o violating 8(b)(4) (B) by: i. Separate gate must be marked and set apart from other gates for exclusive use of secondary employees ii. Work done by secondary employees must be unrelated to the work normally done by the employer iii. Secondary employers work could not be such that it would have caused a curtailment of the employers normal working operations in the absence of a dispute