Labor Law Outline:Prof. Pope

I. Background and Foundations of Labor Law

1865 – 1914: the industrialization of America; there were corporate empires under the control of just a few men; urban migration was at its height; organizational efforts among workers started as early as 1927 (in Philadelphia) to little avail; second waive of organization effort occurred in the 1850’s when the first national groups were formed and negotiation and arbitration were stressed for the first time; this effort was followed up by the Knights of Labor (KOL) in the 1880’s, who developed a 3rd level of union organizing - - a confederation of local and national bodies into one large unit; the (KOL) was an alliance between industrial workers and farmers and conflicting interests led to the groups quick demise

American Federation of Labor (AFL): 1880 – 1914; formed when the national craft unions combined; Samuel Gompers was the first AFL President; initially unwilling to surrender jurisdiction to industrial organizations; sought to represent particular groups of skilled workers within plants and companies; had two major tenants

1) Economic unionism – accepted capitalism and dedicated itself to increasing worker bargaining power in dealing with management; radical political reforms and the notion of the union as a political party were rejected; collective bargaining became the primary method for achieving economic gains; reliance was placed on negotiation to settle disputes and obtain advances

2) Exclusive union jurisdiction – to use collective strength effectively, the AFL sought to have all workers in a single occupation (or range of jobs) united, and competition for jobs curtailed; the AFL thus adopted the principle of exclusive jurisdiction = each national (or international) union would have its own sphere of jurisdiction into which no other union could trespass

Formation of the Congress of Industrial Organizations in 1937 (CIO): other than the enactment of the NLRA, perhaps the most significant development in labor union history during the 1930’s; consisted of the great mass production industries which had theretofore been scarcely touched by labor unions; changed the labor movement as well as the nature and processes of collective bargaining; Founders – John L. Lewis, Sidney Hillman, David Dubinsky; formed from 8 officers of AFL international unions in 1937; embraced the workers in entire industries or groups of industries, i.e. United Automobile Workers of America, United Steelworkers of America, Textile Workers of America, etc.; they sought to penetrate the textile, furniture, food processing, and chemical plants in the South as well; primarily a movement of unskilled workers (considered craft organizations inappropriate where work skills were easily acquired and produced no group solidarity); generally pressed for flat wage increases across the board which led to quicker wage increases for these workers than the skilled; communist influence

Truce: in 1953, a no-raiding pact was drawn up and approved by 65 AFL affiliates and 29 CIO affiliates; under its terms, the signatory unions agreed not to attempt to displace another union and raid its membership in any plant where an ‘established bargaining relationship’ existed; disputes involving the application of the agreement were referred to arbitration if the parties could not agree amongst themselves; plans for total unification developed rapidly after that; in 1955, they drafted a constitution and did unify

“Strike”: definition = workers do nothing/just stop working; because they can’t reach agreement with their employers/are under no contractual obligation to continue work unless happy with agreement (except a moral one i.e. emergency services); has come to connote responsibility for bad time assigned to the workers; originates from British sailors ‘striking the colors’ and refusing to serveCorral Fall ‘051

Early Policies Towards Unions –

Prior to Labor Movement: any rules of employment would be enforced upon workers even if they didn’t know what they were; they only needed to know that there were rules

At Will Employment Doctrine: 1) Does not apply to public sector employees because

a. U.S. Constitution, property right in your job, & due processb. Civil service rules – can only be fired for good causec. Increasingly union contracts govern this area

2) Does apply to private sector employees- either party can end the arrangement at any time or for any reason except an illegal reason (i.e. union activity, race/gender/religious/age discrimination)

a. Developed in America in the 1880’s (industrial revolution)b. Formed in response to the English system where workers were employed for a one year term

during which time they could not quit3) Statutory Modifications – these don’t alter the underlying employment at will doctrine, they are

just exceptions to it. (Note: from the mid 1970’s, states were also creating common law exceptions to employment at will.)

a. NLRA (1935): Workers have permission to organize in unions and to collectively bargainb. Fair Labor Standards Act (1938): Set 8-hour workday, 40-hour workweek, minimum wagec. Social Security System (1938): Retirement benefits conferred upon retirementd. Workers Comp (1920s-1930s)—[state govt]: Gives workers benefits in exchange for their

right to sue Ers for negligencee. Unemployment Compensation System [state govt]: If laid off w/o good cause, can collect

compensation f. Equal Pay Act (1963): Women to be paid same as men for equal workg. Title VII (1964): Prohibits employment discrimination on basis of race, national origin,

religion, gender.  i) Civil Rights Act also prohibits unions from discriminating on the basis of race

h. Age Discrimination in Employment Act (ADEA): No compulsory retirement; applies to anyone over 40

i. ERISA (1974): Pensionj. Warn statute (1980s): Mandated notice (60 days) for Ees to know about layoffsk. ADA (1990)l. Family and Medical Leave Act (1993): Unpaid leave up to 12 weeks a year for ppl to care of

newborns or family w/ serious medical condition.

Early use of criminal sanctions against unions: a conspiracy charge against employees striking for higher wages was first reported as early as 1806 (Philadelphia Cordwainer’s Case); the court held that the combination (the union) itself, quite apart from its actions, was illegal.

Elimination of the criminal conspiracy doctrine: Commonwealth v. Hunt (p. 8); the court held that justifiable objectives validated the union’s attempt to impose a closed shop. ‘Abuse’ – actual or intended – had to be shown in order to find any union activity unlawful; This ended the era of criminal sanctions against union organizing activities; conspiracy was unlawful unless it could be justified; but if they didn’t use any unlawful means or any unlawful objectives, then their group action was justified; conspiracy was a criminal doctrine and in order to bring it to bear on real life strikers there had to be a jury and the jury h ad to convict the strikers and rarely in the history of our country has the importance of a jury been so great; most times they didn’t want to convict strikers and when they did they only assigned minimum penalties

Corral Fall ‘052

Civil actions/injunctions: during the 1880’s, opponents of labor turned to civil actions against unions – primarily suits to enjoin certain union activities; the courts recognized a general right to advance the interests of workers, but this right was narrowly circumscribed; the activity could not be ‘inimical to the public welfare’ and could not involve the use of force to compel union membership or prevent ‘scabs’ from taking the jobs of striking members

Objectives Test: the legality of union activity depended upon how any particular court chose to construe union objectives; most decisions were very restrictive of union conduct

Vegelahn v. Guntner (p. 17): workers were trying to keep scabs from taking the jobs they were striking; at the time of this case, freedom of speech had never been enforced by the court; the court enjoined picketing or other ‘interference’ with persons on the employer’s premises, holding that ‘no one can lawfully prevent employers or persons wishing to be employed from the exercise of their rights’; in dissent, Holmes argued that the needs of workers to organize could justify even intentional infliction of temporary damage to an employer’s business – that, short of force or threat of force, organized action such as picketing should be permitted; enjoinable stuff = 1) use of the patrol to stop others from going into or coming out of the factory; 2)persuasion when used to influence non-strikers to break existing contracts; 3)use of disguised threats of personal injury or unlawful harm to scabs or member strike breakers, which results in a battery

Coercion (what is?): this is a social judgment as to what is bad pressure; the variables consulted to determine if the pressure is bad are diverse and include: 1) physical; 2) moral; 3) emotional; 4) social; 5) economic; etc.

Illegal Objectives Test: Is the union demanding that the employer do something illegal? (i.e. Is the union asking the employer to fire all black workers?)

Plant v. Woods (p. 23): the court enjoined strikes and picketing to enforce a union demand that the employers hire only its members, rather than members of a rival union; the court held that the need for protection of the organizations was not sufficient to justify interference with the employer’s right to be ‘free of molestation’; in other words, a jurisdictional dispute between unions where one tries to strike in order to force another one out = unlawful means; furthermore, the action and threats of the union was a violation of the right of employees to freely dispose of their labor as they saw fit; in dissent, Holmes argued that the member’s purpose – strengthening union power before bargaining over wages and working conditions – justified the strike: “Unity of organization is necessary to make the contest of labor effectual, and (unions) lawfully may employ in the preparation the means which they might use in the final contest.”

Objectives Test (reprise): Vegelahn & Plant show court divergence on this issue; the dominant trend in judicial opinions though at the time and also in the present state of the common law in many jurisdictions is best illustrated by the following line of cases (prone to issue injunctions!)

The United Shoe Machinery Corp. v. Fitzgerald (p. 30): Picketing in support of union demands for collective bargaining where the employer Π had individual Ks with machinist to work at set rate for year long duration, Held unlawful under the objectives test.( Π’s Injunction sustained).

Hopkins v. Oxley Stave Co. (p. 30): Court sustains an injunction against Λ Union demands that Barrel Hooping Co. clients cease purchasing machine hoped barrels, and Λ unions induced boycott of products packed in such barrels coordinated with state trade assembly b/c Π Barrel Hooping Co. refused to discontinue use of such machinery. Court held Λ depriving Π and its customers of their right to freely conduct business, and to deprive the public of the advantages to

Corral Fall ‘053

be derived from the use of [a cost saving] invention for both Π and customer which lessened human labor to be unlawful objectives.

Central Metals Products Corp. v. O’Brien (p. 30): Court enjoined strike by Λ sheet metal workers union that would effect the work of other contractors at a construction site in response to Π use of carpenter union members to install on that same site certain metal structures, where Π refuse to assign the installation of those structures to members of the metal workers union. The court enjoined the strike and threats to strike.

Sherman Anti-Trust Act of 1890: Congress, under pressure to curtail business abuses, declared unlawful ‘every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations…”; violations were punishable as federal crimes; federal courts could issue injunctions; and persons injured in their business could bring a civil suit for treble damages; Professor says: now way did Congress intend this to apply to unions (which is how this Act was initially applied), it was meant for big business (spec. monopolization and restraints of trade), which were considered harmful to the public interest

United States v. Debs (p. 31): in 1894, the American Railway Union (organized by Eugene Debs) instituted a strike against the Pullman Company to protest a wage cut – a strike which spread over a wide area and generated robbery, violence, and property damage – the U.S. Circuit Court issued an injunction at the request of the Attorney General, invoking the Sherman Anti-Trust Act; Debs and the ARU violated the injunction and were jailed; the court of appeals affirmed their convictions/jail terms; the Supreme Court affirmed but did so citing the Commerce Clause and admonished the strikers for resorting to violence

Note: this left the question of whether the Sherman Act really was meant to be used against unions open

Loewe v. Lawlor (p. 33): When a hat manufacturer refused to recognize a union, the union instituted a strike against the manufacturer and organized a nationwide boycott of wholesalers and retailers who sold the hats. The manufacturer sued the union for treble damages under the Sherman Act. Held: the Sherman Act applies to combinations of workers. The union’s objective was to ‘unionize workers employed by all American hat manufacturers and to achieve this by ‘restraining and destroying’ their interstate trade, by ‘intimidation and threats’ made to these manufacturers and their customers”. The court declared that the provisions of the Act were worded broadly enough to include violations by labor orgs. The court also noted that a proposed amendment to exempt labor orgs from the coverage of the Act had failed. A violation by the union would be established if the employee’s concerted activity disrupted the flow of the manufacturer’s product in interstate commerce.

Note: the court held that the Sherman Act applies to labor unions here.

Pros & Cons of Union Exemption from Sherman Act:Pro -

1) Labor is not a commodity/human beings are not produced for the marketplace; but it is an entity that must be used or lost (i.e. overproduction of food rots in a silo)

2) Lack of organized activity, workers lack bargaining power; employers will dominate and subjugate employees

3) Monopsony: (Adam Smith) if a few employers in a field, they can easily collude to artificially control the market

Corral Fall ‘054

4) Monetary Exchange Asymmetry – where a co. can dispense with an indiv. worker with negligible cost but, for the worker, the loss of the job is super costly

5) Labor is a variable factor in the production process; if you buy a machine, you pay for the machine the cost to make it plus the fair market profit markup on it and the machine will produce what it produces; the price of labor doesn’t have any floor, they can’t take it off the market (they need to live), and labor can produce any number of things and will work as hard as you push it; aka variability of capital

6) Keynesian Economics – if you redistribute wealth to workers, they will spend the money, which will grow the economy

7) Democracy – it is inconsistent with democracy for the many/the laborers to be slaves to the will of a few co.’s

8) There have been (and will continue to be) less strikes/disruptions to the market when co.’s deal with collective bargaining units

Con – 1) If they are not being fair to labor, their employees can quit; the market will fix labor

situations2) Labor can collude to drive up prices and pass greater costs on to the consumer

The Clayton Act of 1914: in response to decisions in cases like Loewe, Congress limited the Court’s interpretation of the Sherman Act by restricting the ability of courts to issue labor injunctions; effects of the Act = 1) stronger unions; 2) acknowledgement of unions as a real and legitimate force and given governmental protection; 3) gov’t seized companies that persisted in anti-union tactics; and 4) increased membership although in only 4 major trades; in response companies created

Company Unions: a way to continue to resist collective bargaining/unions; an employee representation plan or works council, typically instigated, financed and controlled by the employer; was successful for a time; lacking financial strength (apart from employer support) and dependent on employer approval for taking any significant action, company unions nonetheless built up a company esprit de corps and often furnished a bulwark against penetration by an ‘outside union’

Two provisions stand out in particular –

§ 6: the anti-trust laws do not forbid the existence of labor orgs or prevent them from lawfully carrying out their legitimate objectives

§ 20: interpreted the above to mean that the Act only applies (and therefore federal injunctions cannot be issued) to disputes between an employer and its own employees; dissenters argue it is just meant to address conflicts between classes (employers and employees) in general not between localized disputes involving such members (and therefore injunctions should have been available for secondary boycotts); Privity: A relation between parties that is held to be sufficiently close and direct to support a legal claim on behalf of or against another person with whom this relation exists. Here, the privity is that the parties to the case must be employer and its employees.

Throughout the same period, the Supreme Court all but destroyed §§ 6 & 20 as it chose to apply one anti-trust standard to business and another, far more restrictive standard to organized labor:

Duplex Printing Press Co. v. Deering (p. 40): During a strike for union recognition against a printing press manufacturer, the union organized a secondary boycott of companies doing business with the manufacturer, including purchasers, trucking co’s, and repair co’s. The boycott

Corral Fall ‘055

halted the movement of some of the manufacturer’s presses in interstate commerce, and the manufacturer sought an injunction under the Sherman Act. Held: the union’s actions interfered with interstate commerce in violation of the Sherman Act and should be enjoined. The Clayton Act did not forbid injunctions restraining activities against 3rd parties. §6 of the Clayton Act assumes the actions of the union are legitimate and legal but they are not here. Because secondary boycotts were illegal at common law and §20 provides that activities must be ‘lawful’, the Court determined that Congress did not intend to restrict the issuance of injunctions against secondary boycotts. Was not lawful because they were not the P’s employees and actions were violent/threatening.

Notes: 1) Possible fallout from secondary boycotts: press users, shippers, trucks, press repairers, ink producers and shippers, etc. (effect could be exponential); 2) Most of the unions at the time are exclusionary to: women, minorities, etc.; 3) In Vegelahn: Holmes (in dissent) says mere pressure, even ostracism is not coercion; 4) individual liberty/freedom to choose to unionize necessarily means a closed shop free from unions (ups is union; fedex is non-union), true or false? Generally speaking true, eventually the shop will move all the way in one direction or the other. Maybe liberty requires some coercion? Maybe the market (the race to the bottom) demands a certain level of coercion. Coercion here is of union MEMBERS, who, when they join, pledge allegiance to the union and its rules/laws. Since union membership was voluntary (which it almost always is today), the members were simply being pushed to live up to their own free commitment. If the union was coercing others, they would have a better argument. Professor says: Judges don’t really understand labor and what it is to cross a boycott/ picket line

Union Advances (1914 – 1932) -

Railway Labor Act of 1926: the first peacetime measure to sanction and codify union-management bargaining; embodied provision which had been negotiated between the railroads and the railway unions in advance; established a policy of collective bargaining for the railroads; first appearance of “collective action, without interference, influence or coercion exercised by either party over the self-organization or designation of representatives by the other”; provisions of the Act prohibited interference with the right of railway employees to organize and bargain collectively; came out of major strikes (i.e. 1922 railway strike) in the industry

National Railroad Adjustment Board: (compulsory arbitration) established (in 1934) to settle minor disputes over working conditions and contract interpretation; arbitration of such disputes is compulsory – an unusual feature in American labor legislation and practices; decisions of this Board were enforceable in federal court

§2: (duty to negotiate) imposed a duty on both sides to make ‘every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions’; other provisions included:

Grievances – a mechanism was created to settle minor disputes such as employee grievances

National Mediation Board – established by the Act to assist the parties in collective bargaining; although it could not impose a settlement, it could encourage the parties to submit the dispute to arbitration; in 1934 it was given responsibility for conducting elections or employing other methods to determine the employee’s choice for a union; consisted of 5 members appointed by the President

Emergency Investigative Board – if mediation fails and the parties refuse to submit the dispute to arbitration, the President is authorized to appoint an ‘emergency’ board to investigate and report if the

Corral Fall ‘056

dispute threatens essential transportation service within 30 days; neither party was allowed to change the conditions out of which the dispute arose for an additional 30 days following the making of the report; thereafter, the parties were free to resort to economic warfare to settle their differences; this 60 day cooling off period does not carry over to the NLRB

Coverage – originally covered only railroads and railroad employees; in 1936, the Act was amended to extend coverage to airlines and airline employees

Constitutionality – Texas &New Orleans R.R. Co. v. Brotherhood of Railway & Steamship Clerks (p. 79) the Court upheld the power of Congress to prohibit interference with self-organizations for the peaceful settlement of labor disputes; Congress’ power to regulate interstate commerce included the power to enact legislation to facilitate the amicable adjustment of disputes which threatened interstate commerce; the Court also noted that it ‘has long been recognized that employees are entitled to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work.

Norris-LaGuardia Act of 1932: enacted at the height of the depression (a time of transition for the Sup. Ct. from conservative to liberal); because of the tension between labor and management and major frustration with court’s frustration of union goals; designed to promote the recognition of unions by employers and to encourage collective bargaining of the terms and conditions of employment; passed by a HUGE margin; almost everyone voted for it; injunctions were being ignored/resisted like crazy leading up to this time and were proving ineffective; it states its objective in §2 and lists no others; it is the only federal labor statute that has ever been interpreted broadly by the courts and was clear about its purpose and objectives and was designed just to comment on labor (not other stuff like the Clayton Act, which was designed to comment on anti-trust laws but was teased out to comment on labor); guaranteed worker freedom of association and representation; placed no affirmative obligations on employers to negotiate with unions; rather, it sought to id union organizing and collective bargaining by changing common law precedents on the union’s role in society; together with subsequent state enactments, LaGuardia permitted unions to exert effective economic pressure against employers.

§1: ‘no court shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute…’; wording was clearer here than in the Clayton Act

§2: identities the national policy sought to be advanced by the Act - “because the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining”

§3: prohibits yellow dog contracts (see below)

§4: On injunctions - limits federal judicial intervention in labor disputes by restricting the power of federal courts to issue injunctions; federal courts are denied jurisdiction to enjoin any labor dispute except under other overriding legislation or unless there is violence; labor disputes are broadly defined as “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relations of employer and employee; avoided the problems of the Clayton Act by denying the federal courts

Corral Fall ‘057

jurisdiction to issue injunctions rather than prohibiting the issuance of injunctions; prohibits the use of injunctions for the following specific acts:

a) Worker(s) refusing to work (i.e. strikes)b) Being in a unionc) Participation in lawsuitsd) Giving publicity to labor disputes or advertising (i.e. picketing) as long as it is non-violente) Peaceful assembly

§6: union liability: unions are not liable for acts of their members (i.e. wildcat strikes) unless there is clear proof of actual ratification of the acts or knowledge that they would occur

§7: procedural requirements in order for the court to issue an injunction: (a) Need open court hearing(b) Need to demonstrate ‘substantial and irreparable injury’(c) Both sides need notice(d) Police officers must be unable or unwilling to police the labor dispute

§8: the court cannot issue an injunction if the moving party is breaking any law involved in the dispute and/or has not made every reasonable effort to settle the dispute on its own

§9: no injunctions can be issued without full court fact finding; ever restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act§10: appeals: must be made available in the circuit court for all injunction orders and the appeals must be heard with the greatest possible expedition

§13: definition of ‘labor dispute’: defines it such that the court’s decisions under the Sherman and Clayton Acts are overruled

(a) broad definition meant to cover primary and secondary employers(b) 1947: Amended to prohibit secondary boycotts

Injunctions for violence: courts could enjoin violence as long s they met the §7 procedural requirements and does not violate §4.

Cons for injunctions/judicial intervention against unions: all of these appeared after Clayton and were meant to be addressed by LaGuardia

1) Substantive considerations - the courts could (nor should they) neither adjudicate the underlying labor controversy nor adopt measures to remedy the causes of strikes and industrial unrest; as a result, organized labor had beef with certain specific legal doctrines

i. Yellow Dog Contracts – a provision of the employment contract in which the employee promised not to join a union during the period of his or her employment; decision upholding these in Hitchman Coal & Coke Co. v. Mitchell became after the war a method of virtually fastening a closed, non-union shop on workers by judicial decree; these became widely popular only to burn itself out via reaction to it (esp. Norris Act) addressed in §3 of NL Act

ii. The Objectives Test Under Clayton: was so severely narrow as to handicap many organizational activities; but perhaps the sharpest accusation was that the courts were applying a double standard: one law of combination and competition for corporate enterprises and another for labor unions; furthermore unions were held accountable for the acts of a very few members and even individuals loosely affiliated with the union (so one violent person

Corral Fall ‘058

voided the whole union’s efforts) regardless of whether the actions were allowed/suggested by the union; under normal rules of agency, the union wouldn’t have been found responsible for such acts

2) Procedural objections – on injunctionsi. in equity, the movant seeks from a chancellor a preliminary injunction accompanied

by documentation of her grievance until both sides can be heard and either a permanent injunction is issued or the preliminary injunction is lifted; in labor disputes, only the movant gets to tell her side of the story and an injunction was issued; this usually killed the momentum of the movement along with protracted delays before the hearing on the merits (could be up to 30 days); the trial came still later than that unless it was rendered moot by that time; the appeals process took still longer; injunctions were often written by lawyers to workingmen who often couldn’t understand them

ii. the same agents initially hired to protect scab workers often were sworn in a deputies to impose an injunction;

iii. workers engaged in violence were charged with contempt of court rather than criminal violations and were often tried by the same judge who had issued the injunction that was being violated but were also denied a jury trial (conspiracy/vicarious responsibility)

iv. once an injunction is issued, the union is broken, and the workers have no choice but to submit to the employer’s will

3) Considerations of judicial administration – labor disputes turned on questions of social and economic policy which were more suitable issues for legislative rather than judicial determination; judicial doctrines favored employers which created a distrust of the legal system among workers

4) Interpretation of the Act – reader could think either a) congress is suggesting that these re substantive rights to be protected against employer interference or b) that the statute purports to regulate the equity jurisdiction of the federal courts

Significance today to us: anytime someone is seeking an injunction, we need to establish if NL Act prohibits the injunction in question; even if its clear that the Act doesn’t prohibit the injunction, you must figure out why it doesn’t prohibit it; most common way it doesn’t apply to strike and boycott activity is subsequently enacted statutory provisions (i.e. Taft-Hartley Act)

Burlington Northern RR Co. v. Brotherhood (p. 67): National union striking against Guilford RR (Maine), and other RRs that did business w/ Guilford.  District ct interpreted Norris-LaGuardia as only covering primary Ers or those substantially aligned.  S.Ct. held: Norris-LaGuardia clearly covered the RRs—policy of the Act has no basis for a substantial alignment test/theory.  This reflects Cong’s intent that Act extends to ALL labor disputes; i.e. including prohibition of injunctions extended to secondary Ers.

Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc./USSR (p. 633) : Δ  refused to handle any USSR goods in US ports b/c of Soviet invasion of Afghanistan.  Held: Δ’s could NOT be enjoined.  This is a labor dispute under Norris-LaGuardia, and there is no exception for political reasons for labor dispute. 

HYPO: Volunteer attys assigned to serve as public defenders.  Defenders Association decides they’re not getting paid enough, and strike (i.e. refuse to take cases) to increase wages. Can the federal ct issue an injunction?  Held: Yes b/c this violates the antitrust. 

Corral Fall ‘059

Here, attys are independent contractors  (i.e. no Ee-Er relationship), thus, Norris-LaGuardia does not apply. No labor dispute

Thornhill v. Alabama (p. 73): π and other Ees picketing outside Er’s business asking non-union workers not to go to work.  Thornhill charged w/ criminal offense of picketing under the state statute (any picketing = misdemeanor). Held: Under federal Constitution (b/c state action), statute invalid.  Picketing = free exchange of ideas

(1)   State can abridge speech in situations w/ imminent and present danger(2)   Does NOT apply to mass picketing, a tort (i.e. effectively blocking ingress and egress). 

No mass picketing here.  (a)  Today: Picketing limited to 30 seconds to stop ppl.  If the exchange is longer than 30

seconds = mass picketing(3)   1948: Picketing became “speech plus” (i.e. cannot regulate the speech but can regulate

the ‘plus’—the stick holding the sign)(a)  “Plus” – inciting words, signs(b)  Distinguishes between handbilling (speech only) and picketing (speech plus)

The National Industrial Recovery Act of 1935: spawned from the application of the Railway Labor Act to all trade sectors; and predecessor to the NLRA (below); collapsed because the Supreme Court found it unconstitutional; its purposes were

Fair Labor Standards – were to be established by raising wages, shortening hours, and eliminating industrial homework, child labor, and other sweatshop practices

Attempt to Organize Industry – through trade organizations and codes of fair competition that would eliminate cut-throat competition and so stabilize prices

1935 to the Present –

The Wagner Act aka the National Labor Relations Act of 1935 aka NLRA*: designed to establish and enforce the right of employees to organize and bargain collectively, and also establish a system for resolving labor disputes; (* as amended by the Taft-Hartley Act in 1947 and the Landrum-Griffin Act in 1959); enacted under huge pressure caused by strikes and held constitutional under pressure from sit down strikes; §1 is made as a statement in the interest of the protection/growth/flow of commerce; it is a means to the protecting the flow of commerce end; the ability of an Act like this to promote industrial peace, the parties must be able to approach it on fairly even footing (if balance between labor and management is off, acts like this will prove ineffective)

§1: states the broad policy of the Act – “to eliminate the causes of certain substantial obstructions to the free flow of commerce by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection”

§7: establishes specific employee rights – the establish a balance of bargaining power between the employer and the employees; the heart of the NLRA - - goes to employee rights

1) The right to organize2) The right to bargain collectively3) The right to engage in peaceful strikes, picketing, and other concerted activity

Corral Fall ‘0510

§8: prohibits certain employer practices (termed unfair labor practices)- 8(a)(1) prohibits employer interference with, or coercion of employees in the exercise of their §7 rights

Covers such anti-union tactics as: beating up labor organizers, locking out employees to destroy incipient unions, industrial espionage, threats of economic reprisal, and the more subtle techniques of promising or granting economic benefits in order to show that the union has little to offer the employees

8(2) prohibits employer interference or domination of a union (designed to outlaw ‘company unions’, which are employer created and controlled employee organizations)

8(3) prohibits employers from discrimination in hiring, firing, or other employment conditions because of an employee’s union activity

8(4) prohibits discrimination against employees who testify or file charge with the National Labor Relations Board (NLRB)

8(5) requires an employer to bargain with the representative selected by the employees

§ 9: Procedure –

9(a) representatives selected by a majority of the Ees in a unit are the exclusive representatives of all the Ees in unit for purposes of collective bargaining

National Labor Relations Board (NLRB): created to administer and interpret the unfair labor practices and representation of the NLRA; most cases we look at will involve the NLRB as a party to the case

1) Created -under §2 and §3 and under §10 (which regulates NLRB procedure in unfair labor practice cases); consisted of 5 members appointed by the President for 5 year terms with the consent of the Senate - - the adjudicatory arm

2) Unfair labor practice proceedings – the board investigates and prosecutes charges, judges the merits of each case and fashions remedies - - the prosecutorial arm

3) Enforcement – created under § 10(e) and (f) the board orders are reviewed and enforced by the Federal Court of Appeals, which were originally authorized to review most questions of law but their power with respect to findings of fact were restricted to determining whether the findings were ‘supported by evidence’

4) Elections - §9 gives the board authority to establish procedures for the selection of employee representatives

a. Selection of representatives – the employee representative is selected by secret ballot by a majority of employees in an appropriate bargaining unit

b. Exclusive representation – if a union is selected, that union acts as the exclusive representative for all of the employees in the bargaining unit, for the purpose of collective bargaining regarding wages, hours, or other conditions of employment

Constitutionality – the Supreme Court held that the NLRA as originally enacted was a valid exercise of Congress’ power to regulate interstate commerce in NLRB v. Jones & Laughlin Steel Corp. (p. 84)

NLRB v. Jones & Laughlin Steel Corp. (p. 142): tested the constitutionality of the National Labor Relations Act of 1935 and involved the NLRB’s attempt to prevent Jones & Laughlin from engaging in ‘unfair labor practices’ by the discriminatory firing of employees for union activity. Rule: The NLRA lies within the commerce power because D owns mines in two other

Corral Fall ‘0511

states, operates steamships on the Great Lakes, hold warehouses in 4 states, and sends 75% of its product out of Pennsylvania. Therefore, a stoppage of its operation would have a substantial effect on interstate commerce. The ‘current of commerce’ rationale was abandoned here, which means that it is no longer relevant whether the activity being regulated occurs before, during, or after the interstate movement. [Majority: Hughes & Roberts; Dissent: McReynolds, Van Devanter, Sutherland, & Butler]

The Four Horsemen: New Deal historians long blamed these adverse Supreme Court decisions on the "Four Horsemen of Reaction," meaning Justices Willis Van Devanter, James C. McReynolds, Pierce Butler and George Sutherland. These justices faced enormous political pressure from a popular president with commanding majorities in Congress, yet they stood together against purported New Deal "reform" measures. They believed they were defending economic liberty.

Note: Justice Roberts changed sides of the argument; now known as the ‘switch in time that saved nine’

Successes of the Act: Reduced strikes and other forms of industrial unrest for a number of reasons1) Prohibition of unfair labor practices & legal compulsion to recognize and bargain with

unions2) Collective bargaining itself tends to reduce strikes and lockouts

a. It enables employers and employees to dig behind their prejudices and exchange their views to such an extent that on many points they reach agreement while on others they discover that the area of disagreement is it narrow that it is cheaper to compromise than to do battle

b. Recognition, experience in bargaining, and the resulting maturity bring a sense of responsibility to labor unions

c. Because collective bargaining replaces the weakness of the individual in bargaining and better enables employees to raise wages and improve labor standards, strikes to secure these objectives tend to be eliminated

d. Collective bargaining substitutes what may be called industrial democracy – joit consensual determination of wages and other conditions of employment – for the unilateral and sometimes arbitrary power of the employer

e. Collective bargaining establishes a rule of law; it is the measure of both the employer’s and the employee’s rights and obligations

Failures of the Act: was only intended to address the most urgent labor disputes of 1935 and left other problems to state law and/or the future; three major limitations of the Act

1) One the union was organized and the employer accorded it recognition, the function of the Act was completed

2) The Act did not address misconduct on the part of the unions (which would lead to amendments to it via the Taft-Hartley Act 1947)

3) The Act left substantive terms and conditions of employment entirely to private negotiation; it did not fix wages, hours, or other conditions of employment (all reasons it passed constitution muster though); it did not authorize any administrative tribunal to fix them;

For details on the effects/aftermath of the Act, see p. 83 of the book.

The Taft-Hartley Act of 1947 aka the Labor Management Relations Act: after the enactment of the NLRA, union membership skyrocketed and labor organizations were extremely active; Congress and the general public became concerned with the expanding power, influence, and possible corruption of the labor organizers and Corral Fall ‘0512

leaders, violence in labor disputes, and the use of closed shops to limit access to jobs by non union members; the Act amended the NLRA to address these concerns; Congressional policy changed to a position of greater neutrality rather than one of encouraging union organization and did so by shifting the focus from rights of employees to rights and duties of both employees and employers; for example, the Act added certain protections for employer speech and conduct and prohibited certain actions by unions; bitterly opposed by organized labor and most so-called ‘liberals’; it was vetoed by President Truman and passed over his veto; the labor injunction was revived in a modified and restricted from which eliminated many abuses; moved the peace keeping role in labor disputes to the legislature

Established the office of General Counsel, appointed to a 4 year term by the President with the consent of the Senate; the General Counsel has authority to investigate charges of unfair labor practices, to decide whether complaints should be issued on the basis of these charges, and to direct the prosecution of such complaints; she also represents the Board in court proceedings to enforce or review Board decisions

§7: amended to give employees the right to refrain from engaging in union activities on equal footing with their right to engaging in union activities

§8: amended to define and prohibit 6 specific union unfair labor practices

8(a)(3): outlaws the closed shop and permits only a limited form of a union shop

8(b)(1) prohibited the restraint or coercion of employees in the exercise of their §7 rights, or the employer in the selection of representatives for collective bargaining or handling grievances

8(b)(2) prohibited a union from causing an employer to discriminate against an employee in hiring, tenure, or any condition of employment

8(b)(3) established a duty by employee reps to bargain collectively with the employer; failure to fulfill his duty was established as an unfair labor practice

Closed shops under 8(b)(3): prohibits closed shops and permits union shops as a union security provision in a collective bargaining agreement

8(b)(4) prohibited certain secondary boycotts and also forbade a union from forcing or requiring an employer to make specific work assignments during a jurisdictional dispute between rival unions

Result: made it much more difficult for strong unions to use their organizational muscle to aid the unionization effort of weaker groups in retail and agricultural sectors, even in highly unionized regions of the North and West.

8(b)(5) prohibited unions from charging excessive or discriminatory initiation fees

8(b)(6) prohibited featherbedding, a practice under which a union forces an employer to pay for work that is not performed

8(c): provides for free speech by employers and employees as long as it doees not threaten reprisal or force, or promise a benefit

Corral Fall ‘0513

8(d): imposes on the parties a duty to bargain in good faith; regulates the renewal or re-opening of collective bargaining agreements

§9: amended to give employers the right to file a representation petition, and employees the right to file a decertification petition

§14(b): state right to work laws – amended to permit state to ban ‘agreement requiring membership in a labor organization as a condition of employment’; 21 states have right-to-work laws or constitutional provisions which prohibit union-security provisions to varying degrees

§301: suits by and against labor organizations – permits suits for the enforcement of a collective bargaining agreement to be brought in federal court and controls such matters as venue, jurisdiction, service of process and the authority of agents to bind unions and employers

§302: prescribed and limits the terms of pension and health and welfare trust funds

The Landrum-Griffin Act of 1959 aka The Labor Management Reporting and Disclosure Act: a response to concerns over internal union corruption and the denial of individual members’ rights and designed to regulate the internal affairs of unions and to protect the rights of individual union members and the public; provided specific requirements for the regulation and reporting of union affairs, restricted picketing and secondary boycotts, and prohibited hot-cargo clauses; and imposed required filing of extensive information bearing upon the financial affairs of unions and their officials; this was the last attempt to amend the labor statutes

§8(b)(7): unlawful picketing – prohibits picketing for the purpose of union recognition or organization, IF another union has already been recognized, or an election has been held in the preceding 12 months, or if an election petition was not filed within 30 days after the commencement of picketing

§8(b)(4): secondary boycotts – up to now, the Courts had not universally interpreted the prohibitions against boycotts to include direct pressure by unions on a neutral employer; here the prohibition was extended to cover ‘threatening, coercing, or restraining any person

§8(e): hot-cargo clauses - clauses under which an employer and labor organization agree that the employer will not handle, use, sell, transport, or otherwise deal in, the goods or products of another employer, or do business with another employer - - that particular clause or section of the agreement is void and unenforceable but the rest of the agreement will be enforced

Voting Rights: workers who had been replaced in the course of an economic strike were expressly given the right to vote in union elections; this way, employers would be discouraged from provoking a strike in order to hire non-union replacements and thereby oust the incumbent labor organization; union members were to be assured a right to vote in elections, to run for union office, and to comment upon and nominate candidates; every union member was given an equal right to attend membership meetings and to participate in the voting and deliberations at such meetings

McClellan Committee: during the 1950’s, this select committee of the Senate produced hearings/evidence of misconduct by the officials for few unions ranging from embezzlement to the making of sweetheart contracts with employers.

In Summary –

Norris LaGuardia Act (1932) – removed power of federal courts to enjoin union activity (absent fraud or

Corral Fall ‘0514

violence)

NLRA (1935) – Set policy to encourage collective bargaining in labor relations

Taft-Hartley (1947) – Sought to balance union and employer obligations; focused on union unfair labor practices, and provided alternative to collective bargaining (i.e. mediation, etc.)

Landrum-Griffin (1959) – Focused on union corruption; regulated internal union affairs (‘bill of rights’ for union members)

Today, national labor policy can be summarized as follows:

1) Continued production, uninterrupted by strikes and lockouts, is the principle goal.2) The settlement of disputes through peaceful negotiation between employers and employee

representatives is both an end in itself and the basic means for achieving industrial peace. 3) Self-organization is vital to the collective bargaining process and must be accomplished without

employer interference, union coercion, or other unethical practices.4) Restraints on certain labor practices (such as secondary strikes or boycotts, jurisdictional disputes,

and featherbedding) are justified on the theory that the adverse consequences of such activities outweigh their value to labor organizing

5) When strikes that imperil national health or safety occur, every effort short of compulsory arbitration must be used to settle the dispute. (Some state require compulsory arbitration of certain disputes, but this procedure has been attacked as defeating the policy of free, private negotiation and settlement between the parties.)

II. Establishment of the Collective Bargaining Agreement

On the NLRB –

A.     Jurisdiction of the NLRB: 1. Enterprises “affecting commerce”

a.   If interstate activities are only minimal, the NLRB may decline to exercise jurisdiction; in such cases, the Board usually leaves the settlement of disputes to the appropriate state or local agency; but in deciding these cases, the state authority may not reach decision that would undercut the policies of the NLRA; in general, the following factors determine whether an employer or employee falls within NLRB jurisdiction:

1) Is there a ‘labor dispute’ within the meaning of NLRA §2(9) , which reads: “the term ‘labor dispute’ includes any controversy concerning term, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment regardless of whether the disputants stand in the proximate relation of employer and employee. ”

a) Generally, a very broad interpretation has been given to what constitutes a labor dispute within the meaning of the NLRA

2) Does the employer’s business activity fall within the meaning of ‘commerce’ within the meaning of §2(6), which is satisfied if the employer engages in: “trade, traffic, commerce, transportation, or communication among the several states, or between D.C. or any territory of the U.S. and any state or other territory, or between any foreign country and any state, territory, or D.C., or within D.C. or any territory, or between

Corral Fall ‘0515

points in the same state but through any other state or any territory or D.C. or any foreign country.”

3) Or, does the employer’s business activity fall within the meaning of ‘affecting commerce within the meaning of §2(7), which reads: “the term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce of the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” This is a broad Commerce Clause test.

b.  § 14(c): NLRB can decline to assert jurisdiction over any labor dispute involving any class or category of employers but may not narrow it from the position adopted by the Board in cases prior to 1959 (per the Landrum Griffin Act)1) Board does not cover certain areas (e.g. real estate firms)2) As new businesses emerge, the Bd decides whether or not to cover that industry3) Jurisdiction extended to law firms; private colleges/univ (1977); child care centers (late

1970s); social service centers w/ $250k+ (1980); health care industry (1974)c.  In reality, funding limits the NLRB from enforcing the entire law

2.  Statutory and implied exclusions: NLRA must apply to both the employer and the employee in order for the NLRB to assert jurisdictiona.  §2(2) Definition of ‘Employer’ excludes:

1) Any public employer (federal, state, municipal, federal reserve banks)a) But most public Employees allowed to unionize and collectively bargain—but no right

to strike2) Any employer subject to the Railway Labor Act3) Religious schools: the 1st Amendment prevents the NLRB from asserting jurisdiction here unless the religious school conducts operations that are largely secular and not pervaded by a religious mission4) Labor unions and their officers and agents (other than when acting as employers)5) Privately owned companies with municipal function (i.e. school bus services, firefighting

companies, etc.)b.  §2(3) Definition of ‘Employee’, excludes

1) Agricultural laborera) Governed by state law

2) Domestic workers3) Working for family4) Independent Contractor: the distinction between and IC and an ‘employee’ usually turns

on whether the employer has enough management and control over the performance of work done by the worker in question that they may be considered an ‘employee’a) Determined by the “right to control” test

5) Supervisors: the NLRB construes ‘employees’ expansively, while the courts have been more restrictive(a)  § 2(11): “…any individual having authority, in the interest of the employer to hire,

transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, or to adjust their grievances, or effectively to recommend such action…exercise of authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

i) This is problematic in the health care industry where nurses were supervising nurses aides. S.Ct: No statutory basis to not call these people supervisors.  Thus, all nurses became supervisors.

ii) Tension b/t professional employees using independent judgment and employee supervisors

b) Supervisors not prohibited from unionizing—only that employers are free from the duty to deal w/ supervisors re: collective bargaining 

Corral Fall ‘0516

6) Employees subject to Railway Labor Act7) Retirees (implied); employees must be ‘working persons’ 8) Confidential employees (i.e. those employees who have access to/were involved in labor relations (i.e. secretary to the HR mgr) (implied)9) Hospital house staff/residents (implied)

a) Longtime declared as students, not employees -has since changed since NLRB now considers such staff personnel to be more like apprentices (who are covered employees) than mere students

10) Managers—NOT SUPERVISORS (implied)a)  Rationale: Managers are identified w/ the employer & make policy for themb)  Belle Aerospace (1974): Company VP’s –didn’t supervise anyone, but made policiesc)  Yeshiva Univ. (1980): Private university faculty are managers, NOT employees w/in

the meaning of the NLRA; faculty aligned w/mgmt b/c votes on tenure, helping decide the “product” by research, class lectures, curriculum - essentially helping the administrators run the university. 

i)  S.Ct: Left open the possibility that faculty at “immature” universities could be considered mgrs where no joint governance between faculty and administration

c. Definition of ‘Employee’, does not exclude1) Illegal aliens: aliens unlawfully working and residing in the U.S. are ‘employees’ entitled

to the protections of the NLRA2) Job applicants/union organizers: job applicants, even union organizers who apply for jobs to help organize a non-union business from the inside (a tactic commonly referred to as ‘salting’) are considered ‘employees’ covered by the NLRA

-INSERT FLOW CHART FROM P. 36 OF GILBERT’S STUDY GUIDE HERE-

Corral Fall ‘0517

B.  Organization of the NLRB—“two-headed agency”1.  Labor Board (1935)

a. 5 members w/ staggered 5-year terms; may sit with all five or go with as little as 3 in the interest of expediency

b. Landrum-Griffin Act allows the Board to delegate its powers to the Regional Directors for cases involving union representation and de-authorization elections by the Board; such cases allow limited review of the Regional Directors’ decisions

c.  Reflects political changes in the presidency1) Typically, president will appoint one member for each year in office.  Thus, by 3rd year of

presidency, he/she will control 3 of 5 members of the Board2. General Counsel’s Office (1947)

a.  Prosecutor of unfair labor practices under the Boardb.  Regional Offices (where the action really happens)

1) 33 offices2) Decision-making + enforcement delegated to Regional Directors3) Hearings held by Administrative Law Judges

a) Huge implications for judicial review since reviewer is likely to refer to the findings of the ALJ

-INSERT FLOW CHART FROM P. 42 OF GILBERT’S STUDY GUIDE HERE-

C.     Procedures of the NLRB1. Representation cases (“r” cases)

a) Unions organize employees; Need 30% of employees to sign the authorization cardsb) File petition in regional officec) Regional offices determines appropriate bargaining unit

Corral Fall ‘0518

d) Direct the Election (Usually issued 6 weeks after petition)1) Union must get a majority vote to represent the Employees2) Employer wins all ties3) If union loses, no appeal to court

a) Board has complete and final authority in an “r” caseb) BUT, can request the election be set aside based on interference w/employee choice (but not an unfair labor practice). 

4) If union wins, employer is under a duty to bargain w/the uniona) If employer refuses, then union must file an unfair labor practice claim (becomes a “c” case)b) Once the “c” case is decided, the Labor Board issues a final order. The Board’s

decisions in these cases are appeal-able in the appropriate federal court of appeals.

2. Unfair Labor Practices (“c” cases)a) 6 month statute of limitations to file a complaintb) Regional Office

1) Accepts charges2) Investigates charges3) Decides whether to file unfair labor practice complaint (formal complaint) before the

Board4) Settles charges and/or complaints

c) GC’s office (Investigator, prosecutor)1) Decides whether to file unfair labor practice complaints in “novel or complex cases”; this

decision will turn on whether continued prosecution would ‘effectuate the policies of the NLRA’

2) Accepts appeals from Regional Director’s decision NOT to issue complaint. (No review available of GC’s decision not to file an unfair labor practice complaint.)

3) Tries unfair labor practice complaints before the Board (i.e. ALJ)4) May issue complaints but generally does not do so

Attorney’s Fees: if a respondent in an unfair labor practice proceeding can show that the General Counsel was not substantially justified in filing and pursuing the complaint, a court may award attorney’s fees against he NLRB under the Equal Access to Justice ActSettlements by the General Counsel: informal settlement of an unfair labor practice charge by the General Counsel after issuance of a complaint but prior to a hearing is considered a prosecutorial, rather than a judicial, determination and is therefore not subject to judicial review

d) Administrative Law Judge Hearing1) Hears unfair labor practice complaints (at which time the complaining party may

intervene), prosecuted by regional attorney2) Issues findings of fact and recommended decisions

e) If neither party files exception to the immediate report within 20 days, the report typically receives the same weight as a decision by the Board itself; if exceptions are filed, the Board assumes complete control over the case; after reviewing the record and the report, the Board may substitute its own findings and remedial order for those of the ALJ, or it may adopt the findings and remedial order of the ALJ. The Board may then petition the court of appeals for enforcement of its findings (the General Counsel will represent the Board in court) 1) Cannot order the General Counsel to issue a complaint but, it may dismiss complaints if it believes that the policies of the Act would not be served by prosecution

f) Judicial review can be sought be aggrieved party in the Court of Appeals 1) Standards of Review

Corral Fall ‘0519

a) §10(c): The Board must uphold decisions if they are based upon a ‘preponderance of the evidence’; always reviewable de novo on appeal; still, courts give these determinations great weight

b) §10(e & f): Appellate courts must uphold decisions/findings by the Board if the decision are supported by ‘substantial evidence contained in the record as a whole’ 2) Defer to Board on matters of statutory interpretation (Chevron)3) NLRB’s “non-acquiescence doctrine”: Since circuits vary (and often reverse the Board), a circuit decision will be ignored if far from NLRB decision.  Thus, that will become the law of the Circuit so long as the S.Ct. doesn’t take the case. 

a) Board will not change its policy to acquiesce to the Circuit’s reversal unless the S.Ct takes the case

On Election Campaigns -

The NLRB regulates organizing campaigns on both the unfair labor practice level and the ‘laboratory conditions’ level. Be sure to analyze employer or union activity on both levels. If the behavior is not serious enough to constitute an unfair labor practice, does it nevertheless ‘upset laboratory conditions’ and thus require a new election? And in any question about organizing campaign, look closely for the following activities and the special factors noted for each:

a) Attempts to win employee votes through ‘captive audience’ speeches, polling, written propaganda, or conferring economic benefits:

Special factors – Where and when any such speech or polling took placeWhether the written propaganda contains inflammatory racial or ethnic statementsWhether the economic benefits in question had been regularly scheduled prior to the organizing campaign

b) Union attempts to gain access to the employer’s premises for campaigning:Special factors – Whether the premises are private or open to the public

What alternative means of communication are available to the union

c) Employer enforcement of ‘no solicitation’ or ‘no distribution’ rules: Special factors – How consistently such rules have been applied in the past

Whether the employer’s business has special characteristics that would justify more stringent restrictions on solicitation or distribution activities

Note: discrimination against employees because of their union activity are rarely overt therefore they must be shown by circumstantial evidence.

Corral Fall ‘0520

- Insert flow charts from p. 15 and 18 of the Professor’s Series Study Guide Here -

Corral Fall ‘0521

A.   Protection of the right of self-organization/protection against employer interference, restraint, and coercion under §7: “Employees shall have the right to self-organization, for form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities…”

1.  Process of an Organizing Campaigna. Union targets employeesb. Employee committee formed (i.e. union trying to contact employees w/o employer knowing)c. Employee committee trained (how to organize co-workers)d. Card/petition distribution (distributing “authorization cards”—authorize union to act as

employees’ agent to represent employees in collective bargaining)1) Union must get 30% of employees to sign these cards in order to go to the Labor Board to petition for an election2) In reality, union needs 75% of the cards signed in order for the union to prevail in the election (see Linden Lumber on p. 21 below)3) Cumberland Shoe Doctrine: if the card itself is unambiguous (that is, it states that the signer authorizes the union to represent the employee for collective bargaining purposes and not to see an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election i) TEST: to determine if there was union misrepresentation is based on the totality of the circumstances surrounding the alleged case of card solicitation and, if found to add up to an assurance to the card signer that it would be used to force an election

only4) NLRB v. Gissel Packing Co. (p. 312): when an employer has so interfered with the

union’s organizing drive that a fair election seems unlikely, the Er will be ordered to bargain based upon union authorization cards signed by a majority of Ees (provided that the cards “clearly state their purpose on their face”); failure to bargain in this situation would also be an Er ULP

e. File a petition to the Labor Board to request a union election 1) In general, the longer the time is drawn out, the more likely the employer is to gain votes. In other words, it is likely that the ‘undecideds’ will side w/the employers the longer the waiting period between the signing of cards and the election. 

f. Pre-hearing Conference g. Hearingh. Election Day set

1) Usually 6 weeks after petitionPeriod of most intensive activity by employers; employers send out formal letters to the employees (for details on the constraints that apply here, see below “Threats of reprisal or promise of benefit—Employer speech under § 8(c)”

B.  Holding Elections 1.  Preferred over recognition a. NLRB v. Gissel Packing Co. (p. 312): at one time, the Board was willing to issue a bargaining

order, even without a showing of majority support, where the Er’s behavior was so flagrant that it blocked an effective opportunity to generate such support; however, the Board has now concluded that so doing is outside of its discretion;

i) NEW GUIDELINES = two categories of Gissel-type cases where an order (can be both retroactive to the date the Er first refused to bargain as well as prospective from the date of the Board’s order) recognition

1) Category I: (relatively rare) involve ULPs by the Er that are so ‘outrageous and pervasive” as to make a faire and reliable election impossible

2) Category II: (most cases) there are less pervasive actions that nonetheless tend to Corral Fall ‘0522

undermine the majority strength and impede the election process; 8 factor test in these cases to determine if remedial action is necessary

a) The presence of any ‘hallmark’ violations (i.e. plant closures, unlawful discharge of union supporters, threats of job loss, or the granting of significant benefits)

b) The number of employees affected by the violation, either directly or indirectly by dissemination of knowledge of the occurrence among the workforce

c) The size of the bargaining unit, the smaller the unit, the greater the likelihood that the Er’s conduct would be coercived) The identity of the perpetrator of the ULP (i.e. high ranking official v. first- line supervisor)

e) The timing of the ULP f) Direct evidence of an effect upon the majority status of the union g) The likelihood that violations will recur h) Any change in circumstance after the violations such as the passage of time or employee turnover

b. Linden Lumber Co: Held: If the Er has not committed any ULPs that impairs the election process, a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burder of taking the next step in invoking the Board’s election procedure; no obligation on Er to recognize the union or to file for an election. 

1) Still consistent w/Gissel – revives the notion that the Er may have well grounded good faith reasons for distruting authorization cards as a means of establishing a majority of union support; elections as the preferred route

2) Withdrawal due to violence: circuit court have upheld an Er’s withdrawal of recognition when striked involved ‘intolerable levels of violence’

3) Dissent: Fails to recognize the other ways to recognize majority status via the statute (i.e. authorization cards, recognition strike, notifying Er in person, Er-Ee agreement on non-

election method, secret ballot)4) Thus, an election is virtually the only way to get the Bd to recognize them.  5) Practical consequences of Linden Lumber: Union must run 2 election campaigns (card campaign + formal election campaign)

a) Thus, union needs 75% of cards signed to have a shot at winning the election.  unions generally peak at the card campaign

i) Cooper study: Even w/ 90% of the cards, union only wins 66% of the time ii) Undecided voters almost always vote in favor of the Er

c. Determining an Appropriate Bargaining Unit1) §9(b): “Board may designate an appropriate bargaining unit to order a hearing on

whether a representation question exists, to direct an election, and to certify results” - - Board as delegated this authority to the Regional Directors, who’s determinations are reviewable by the Board: i) on alleged departures from official Board precedents; ii) to reconsider important rules or policies; or iii) upon a claim of prejudicial error in determining the facts; such review does not stay the Director’s order unless specifically ordered by the Board to do so

a) Standard: A community of interestb) Important to determine this correctly b/c the bargain unit is the 1) election unit; 2)

economic power unit (i.e. strike unit); 3) bargaining unit (i.e. need to represent interests of a cohesive group at the table.

c) This is one way for the Er to contest the bargaining unit i) e.g. in a chain store, contest whether the bargaining unit is one store or a

Corral Fall ‘0523

regional group of stores ii) Thus, if the Bd decides that the bargain unit is wrong, union’s petition can be dismissed since 30% of total Ees have not signed cards

d) In healthcare, the Bd set bargain units (i.e. all nurses, alll physicians, all profs, all technicians) w/in one Er. 2. §9(c): in the absence of an election - provides that the bargaining representative shall be

the one ‘designated or selected’ by a majority of Ees within an appropriate bargaining unit but provides no specifications on how the representatives must be chosen; §9(c) is the most common method but it is not the only route available to the union; Er may petition the Board for an election or refuse to bargain so long as the Er conduct does not consist of any ULPs

3. Types of elections for bargaining representative, which may be conducted by the Board a) Consent Elections: if both the Er and the proposed rep agree upon I) the bargaining

unit, ii) the employees who are eligible to vote, and iii) when and where the election is to be held, the parties may enter into a consent election agreement; they eliminate the need for a hearing by the Board

b) Contested Elections: if the parties cannot agree upon the 3 described above, a contested election will be held if the various criteria for holding an election exist c) “Globe” Elections: if a particular group of employees could either bargain as a separate unit or be merged into an existing unit, the Board will allow the Ees to choose between the two alternatives, unless there is a pattern or history indicating the appropriate unit

d) Certification Elections: Ers may, and often do, recognize and bargain with unions that prove with authorization cards, membership cards, applications for membership, dues receipts, dues record books, or petitions signed by Ees that the union is authorized by a majority of Ees to act as bargaining representative; in such cases, the union may still seek a certification election; this formality is desirable primarily because a certified union has a 1 year period free from interference by rival unions within which to execute a collective bargaining agreement with the Er

e) De-certification Elections: if Ees contend that the union previously certified is no longer desired by a majority of the Ees or that the Er is recognizing a union that does not represent a majority of the Ees, a decertificaition election may be held; a tie vote results in de-certification; an RD election is one petitioned for by the Ees/an RM election is one petitioned for by the Er; at least 30% of the Ees in a certified unit must contend that the previously certified union no longer is desired by a majority of the Ees in order to petition; an Er must be able to show a good faith reasonable uncertainty about continued majority support for the union to petition f) De-authorization Elections: if Ees with to terminate the authority of the bargaining representative to enter into a union-shop or maintenance-of-membership agreement, they may petition for an election on that issue; a majority of eligible voters must vote for such de-authorization g) Run-off Elections: conducted automatically if two or more unions are on the ballot and non e of the available alternatives (including a choice of no union) receives a majority of the votes cast; run off elections can occur with respect to contested, consent, or ‘globe’ elections, but they are not possible in de-certification or de- authorization elections (where only two alternatives exist) 4. Eligibility of voters: the right to vote in a representation election depends on i) whether

the persons is an Ee within the meaning of the NLRA, ii) whether she is properly included in the bargaining unit for which the election is being held, and iii) whether her job or position gives her a sufficient interest in employment conditions within that unit; absent unusual circumstances, all employees in the appropriate

Corral Fall ‘0524

bargaining unit who were employed ruing the payroll period immediately preceding the date on which the election is order are eligible to vote; a person’s Ee status does not terminate if she is temporarily absent from work during the payroll period in question (i.e. sick leave, vacation, or even laid off if it is expected that the Ee will be recalled to work); can be determined by other factors for seasonal workers, etc.

1) Strikers – employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purpose and provision of the NLRA, in any election conducted with 12 months after the commencement of the strike

a) Rationale: having risked their jobs to get an election, they should not be doubly penalized by being excluded from voting in it

b) Criteria: considered on a case-by-case basis but i) Presumption of Eligibility: the Board will presume that economic

strikers are eligible to vote but this presumption may be rebutted by objective evidence that the striker has ‘abandoned interest’ in the struck job (evidence that the worker has taken another job elsewhere for more money is not enough)

ii) Replacements: Ees hired as permanent replacements for economic strikers may also vote, but those hired as temporary replacements may not vote; permanent/temporary status is a question of law

iii) Closure of Operations: strikers who lose their jobs when an Er decides to close a certain operation are not eligible to vote, at least where such closure is made for valid economic reasons unrelated to the purpose of the strike

5. Requirements for Board action on petitions: ALL MUST BE MET a) The Board must have jurisdiction over the Er’s business, i) Is there a ‘labor dispute’ per §2(9)?

ii) Does the Ers business activity fall within the meaning of ‘commerce per §2(6)? OR

iii) Does the Er’s business activity fall within the meaning of ‘affecting commerce’ per §2(7)? b) The union must rep or claim to rep an appropriate bargaining unit, i) Doesn’t have to be the best or only unit, just has to ensure the Ees in each case ‘the fullest freedom in exercising the rights guaranteed by the NLRA’ ii) Relevant Factors

1) Mutuality of interest – same skills, wages, hours, etc. (most imp) 2) History of collective bargaining – not conclusive

3) Desires of Ees – can be the ‘tie-breaker’ 4) Extent of Ee organization – Board is prohibited from giving this factor determinative weight though iii) Limitations on the Board’s discretion: professionals can’t be lumped in with non-professionals; prior decisions are not binding; company security guards can’t be included; temporary employees can be included

c) There must be evidence that at least 30% of the Ees support the petition, d) There must be no un-remedied ULP involving the parties to the election, e) There must be no prior certifications or elections within the preceding year, f) There must be no existing CBA that would bar the petition, AND i) whenever a petition is filed by employees subject to an exiting CBA, the Regional Director must weigh the need for industrial peace and stability

against the right of Ees to change their bargaining reps; to bar a new election aka the Contract Bar Rule, the CAB must i) precede a rival claim, ii) be fully

Corral Fall ‘0525

executed, and iii) be a written contract covering the usual conditions of employment for a fixed period of time; Hot Cargo Clauses, while clearly illegal, do not remove the contract as a bar to a petition for election

g) There must be no withdrawals of petitions for within the preceding 6 monthsd.  Union Misconduct and Waiver of Fees

1) §8(a)(6): Union ULP to “restrain or coerce” Ees to exercise their §7 rights2) ULP for a union to promise fee waiver [of union dues] if the Ees signed up before the election

a) Rationale: This is bribery and giving a false sense of union supporte. Election Procedures and Judicial Review

1) §10(f): Party may have judicial review if “aggrieved by a final order.” a) Final orders only issued in ULP cases

b) Parties must commit a ULP to obtain judicial review2) §9(d): Record in the representation case is to become a part of the record which is certified to the fed ct app in the ULP case

a) Here, ULP of refusing to bargain will trigger judicial review of a representation case b) Cts rarely overturn a Bd decision in a representation case

On ULPs -

Employer Unfair Labor Practices under §8(a)(1)a.  §8(a)(1) : “(a) It shall be an unfair labor practice for an employer—(1) to interfere with,

restrain, or coerce employees in the exercise of the rights guaranteed in section 7”i) Certain types of employer speech may be prohibited even if they do not contain a

threat of reprisal or a promise of benefit; for example, inflammatory appeals to racial prejudice violate §8(a)(1) and thus are not protected by §8(c)

b.  Employer Interrogation, Surveillance, and Paraphernalia1) Interrogation: an employer’s questioning of employees about union membership or

activities, while not unlawful per se, is subject to very close scrutinya) Ad hoc or individual interrogation by an employer concerning an employee’s union sentiments will be evaluated y the NLRB, considering the ‘totality of the circumstances’; these would include, among other things, the employer’s known attitudes about unions, the type of information sought, the rank or position of the interrogator, the time and location of the inquiry, and the nature of the employee’s reply; if it fails this test, a violation of §8(a)(1) is found i) Rationale: Attempt by employer causes fear of reprisal in the employee’s mind if he replies in favor of unionism; Impinges on his §7 rights.

ii) Presumption that interrogation will have a negative effect on employeesb) Formal Polling: Struksnes Construction Co.; Union organizing on the job, 20 of 26

employees sign cards. Employees make a demand for bargaining. Employer circulated a petition asking employees to sign their own name. Afterwards, only 9 employees agreed to have union representation.  i) Held: Violation of §8(a)(1) because polling interfered w/employees free choice. Ct. of App. remanded, asking Board to make a ruleii) RULE: Polling will violate §8(a)(1) unless: MUST SATISFY ALL PARTS

1) Purpose of the poll is to determine truths of a union’s claim of majority,2) Purpose is communicated to employees,3) Assurance against reprisal have been given,4) The poll is conducted via secret ballot, AND5) Employer must not have engaged in previous unfair labor practices or

otherwise created a ‘coercive atmosphere’Corral Fall ‘0526

iii) Once this rule set, employer almost never polled. Reason: if the employer finds a majority, then the employer is obligated to bargain w/the union without an election (or regardless of the outcome of the election) - - the poll effectively becomes a substitute for the electioniv) If union already filed a petition for election w/the Board, employers may NOT poll. 

1) Narrow window for employer to poll: from time union demands recognition to time employees file for an election

2) Distribution of anti-union campaign items (asking employees to refuse to sign authorization cards): ALWAYS a violation

i) Employer cannot distribute ‘vote no’ buttons, coffee mugs, or other such paraphernalia ii) Such activity has been judged to affect the free choice of employess and to be a potential improper means of identifying which employees support the union

3) Surveillance: ALWAYS a violationa) In such circumstances, a subsequent election lost by the union may be set asideb) There must be proof that the employer caused or authorized the surveillance before it can be found guilty of an unfair labor practice i) Photos/video of employees engaging in union activity (e.g. going to meetings) = unfair labor practice because it is essentially an informal means of polling Exception: employer can take photos of violence on a picket line

Exception: e-mail if employers monitor e-mail all the time, can monitor for union campaign. But if they never monitored e-mail before, cannot start monitoring it once the union campaign begins Distinction: however the Board has held that it is ok for the union to photo/video its members’ activities even though it could fall into wrong hands be used for informal polling anyway

c. Restricting activities on company property – solicitation and distribution rules for the union: the right to organize comes into conflict with an employer’s property rights when organizing activity is conducted on company property; although the Supreme Court has held that an employer must tolerate some inconvenience in this respect to safeguard the employee’s §7 rights (Republic Aviation), the courts and the Board permit the employer to impose certain non-discriminatory restriction on solicitation and distribution of materials during working hours on company premises

1) Republic Aviation (p. 117): Military aircraft manufacturing factory during WWII. [before Taft-Hartley; original Wagner Act]. Employees passing out authorization cards during lunch period; employees fired + employees wearing union buttons.

a) NLRB’s rule on solicitation: rules prohibiting solicitation during the employee’s own time, or the wearing of union insignia, interfere with union organization and are presumptively invalid; an employer may adopt and enforce a rule prohibiting solicitation during working hours, unless the rule was adopted for the purpose of discriminating against the union; but, time outside of work, lunch and breaks are an employee’s time to use as she wishes

i) It was later held in Our Way, Inc. v. NLRB (p. 123) that distribution of literature can be restricted during working time (even employee breaks and lunches so long as they are on the premises, etc.) and in work areas because of the threat of litter and risks to safety and production unless adopted for discriminatory purposes; test is to balance employer’s property rights/right to proper discipline v. employee’s right to organize. Affirmed and made into black letter law in Stoddard-Quirk Mfg. Co. case (cited in question 6 on p.124)

b) Employer must enforce their anti-solicitation rules consistently; otherwise, Corral Fall ‘0527

they may be liable for discriminatory enforcement (violation of §8(a)(3)).c) Peyton Packing Rule/Presumption (footnote 10, p. 120) goes to working and non- working time not places; the Peyton Packing Company rule that says, in effect, that the presumption of illegality of the no-solicitation rule can be overcome only by a showing 'that special circumstances make the rule necessary in order to maintain production or discipline.' There is no requirement that, in the absence of such proof, the burden is then on the general counsel to show that there was a lack of sufficient alternative means of solicitation.

2) Health Care Facilities: Beth Israel Hospital v. NLRB (p. 121): the Supreme Court ruled that Congress did not intend special treatment of health care institutions regarding union solicitation; thus, a hospital cannot bar union distribution or solicitation in public areas (i.e. cafeterias, coffee shops, etc.) unless such activity would disrupt health care operations or disturb patients, and the burden is on the hospital to prove that such a disruption or disturbance would exist; furthermore, there was not another place in the hospital for the union to effectively communicate with the employees a) Note: a hospital can prohibit solicitation in corridors and sitting rooms on floors housing patients or operating rooms even during the employee’s non working time, since it could adversely affect the recovery of patients3) Union Waiver: NLRB v. Magnavox Co. (p. 122): while unions may waive some rights, such as the right to strike, in exchange for management concessions, a union may not waive employee access to information regarding unionization or a change in union representation; thus, a union may not agree to a no-solicitation, no-distribution rule during work hours; such a waiver could be used to freeze out another union or entrench an incumbent union4) Non-employee Access to Company Property:

Babcock/Wilcox (p. 126): Country plant 30 miles outside of town w/long driveway into the plant + parking lot. Issue: can the union organizers come into the parking lot?  S.Ct: No, must protect the private property rights of the employers from trespassing union organizers; the NLRA only applies to employees (not non-employee union organizers) however, §7 may, in certain limited circumstances, restrict an employer’s right to exclude non-employee union organizers from her property.

a) TEST: employers can keep strangers (i.e. non-employees) off of their property unless location is so remote that the union otherwise would not get to contact employees (i.e. employees living on the premises of the employer, logging camps, mountain resort hotels)

Jean Country (p. 128): represents the Board’s next attempt to implement §7 rights;applies to ‘all access cases’; new test designed to weigh the §7 rights of employees against the property rights of the employer; (leads to complications in “big city rule”) 

Lechmere, Inc. v. NLRB (p. 124): Strip mall adjacent to public land.  Union organizers tried flyering the parking lot, but were kicked off by mgmt under Babcock.  Then went to the grassy strip of land to picket and copied license plates to get addresses via DMV. Got 20% of employees’ addresses & sent mailings. After 6 months, only 1 employee signed an authorization card. Held: Jean Country overruled by reason of Babcock – the balancing test should not be used in ALL access cases but only if non-employee organizers had no reasonable access to employees otherwise; employer’s actions prohibiting organizers were lawful under the NLRA; (1) Generally an employer cannot be compelled to allow distribution of union literature by non-employee organizers on his property, (2) except where the location of a plant and the living quarters of the employees place the

Corral Fall ‘0528

employees beyond the reach of reasonable union efforts to communicate with the non-employee organizers. NLRB v. Babcock and Wilcox Co., 35 U.S. 105

a) TEST:i) Non-employee organizer cannot access employees any other wayii) Degree of impairment of §7 rights if access denied

iii) Degree of impairment of private property rights if access granted iv) Availability of reasonable alternative means of access

1) A heavy burden was then placed on the union to establish such isolation - Inapplicable where non-trespassory access to employees may be cumbersome or less-than-ideally effective.

2) Not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of non-trespassory means of communications.

3) In dicta however the Court stated that success or lack there of in winning over employees may be relevant in determining whether reasonable access exists.b) Dissent/Criticism: No language in the statute to define non-Ees v. Ees.  Should strike down the rigid distinction b/t Ees and non-Ees.  Also, balancing test only applies unless NO reasonable access

1) West: S.Ct ignoring labor history in interpreting the NLRA & brings in outside assumptions on private ppty, etc. 

2) Chevron deference issue: S.Ct should defer to the Board when interpreting the statute. 

c) Post-Lechmere: the Supreme Court held that the right of employers to exclude union organizers from their private property emanates from state common law, and while this right is not superceded by the NLRA, (likewise) nothing in the NLRA expressly protects it; thus, for example, broad rights of free speech protected by a state constitution could override the right of a private property owner to exclude non-employee union representative from picketing on employer property and Lechmere would not apply under those circumstances

Tri-County Medical Center, Inc: Off-Duty employee who comes back to the job after his shift is over to talk to other employees. Board held: An employee is an employee, not a trespasser, even though he may not have access to the plant at the time.

d.   Threats of reprisal —Employer speech under §8(c) 1) Issue of Er speech arises when the Er finds out something is going on (usually when cards are getting signed)2) An employer has a right of free speech under the 1st Amendment and this right has been explicitly codified in § 8(c)3) §8(c): “The expressing of any views, argument, or opinion, or the dissemination thereof,

whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.” a) In short, Ers’ speech is ok so long as no threats and no promises b) Statements that are protected by the free speech provisions of §8(c) cannot be used as evidence of some other ULP by the Er (such as bad motives or anti-union animous)  c) But, threats or promise of a benefit IS a ULP b/c they are coercing Ees d) In the absence of either an unlawful broad no-solicitation rule (prohibiting union access to company premises on other than working time) or a privileged no- solicitation rule (broad, but not unlawful because of the character of the business –

Corral Fall ‘0529

typically retail stores), an employer does not commit an unfair labor practice if he makes a pre-election speech on company time and premises to her employees (but not within 24 hours of the scheduled election) and denies the union’s request for an opportunity to rebut e) Coerciveness Test

1) What actions were threatened?2) Were the threats, under all the circumstances (circumstances = the source,

deliberateness, and generality of the threats, etc.), likely to be taken seriously? AND

3) How widely were the threats disseminated?4) Peerless Plywood Co. (p. 139): the Board announced a rule that employers and unions are prohibited from making election speeches during working hours to massed assemblies of employees in the 24 hour period before the scheduled time for the election; meant to outlaw ‘captive audience’ speeches (whether by co. or union) on company time within the 24 hour period prior to an election

a) Remedy: will result in the setting aside of an election victory by the speaker and the ordering of a new election.

b) Exceptions: i) The dissemination of other forms of propaganda and ii) Delivery of campaign speeches on or off company property if, (1) employee attendance is voluntary, and (2) on the employee’s own time.

5) Union Access to Employees:   a) Excelsior Underwear Inc (p. 139): election campaign; union asked for names/ addresses of voters and Er refused. 

b) Held: For all elections, w/in 7 days after the Regional Director has approved of an election or directed an election, the Er must file an election eligibility list of names/addresses of all eligible voters [called the “Excelsior list”]

6) In re General Shoe (p. 147): Speech may not violate §8(a)(1), but still violates the election.

a) Ct develops “laboratory conditions” doctrine: Union elections are like an experiment in a lab. If Ers’ speech is too out of line, will contaminate the lab conditions—i.e. Ees free choice. 

i) Limits certain kinds of speech not rising to the level of a threat or a promise ii) This only applies to the period b/t when the Bd sets the election date and the election held, usually 6 months, when lab conditions must prevail iii) A violation of the “laboratory conditions” ≠ ULP.  Thus, the only remedy is to re-do the election iv) Controversial b/c studies show that this doesn’t make a difference in the election since Ees expect Ers to engage in this type of speech. Studies also show that the “cleaner” the Er was, the more effective the Ers’ campaign against the union was

b) Factual Misrepresentations: Er can lie so long as it’s just a lie; it becomes a problem if it’s close to the election and has a major effect on an election in order for the Board to investigate itc) Sewell Mfg. Co. v. NLRB (p. 169): the Board has held that the Er’s injection of racial prejudice into the election campaign by inflammatory methods required a new election, even though the Er’s statements were not otherwise coercive, because this upset the required ‘laboratory conditions’; prejudice is a powerful emotional force and any deliberate appeal to such prejudice is not intended or calculated to encourage the reasoning faculty i) Exception: some statements with racial overtones will be appropriate (i.e.

Corral Fall ‘0530

information relating to the union’s position on segregation or union financial contributions to civil rights groups) but only if ‘temperate in tone, germane in character, and correct factually”; burden of proof is on the party making the statements; where there is doubt, the message will be held against the party making the statement/propaganda

7) NLRB v. Gissel Packing Co (p. 149): Plant of a parents company in W. Mass. Mid-1960s, plants closing. Er told Ees that they were forgetting the lessons of the past strikes and that a strike would lead to a closing. Also told Ees that they might lose their jobs b/c parent co. had no reason to stay in Mass. “Teamsters are a strike-happy outfit of hoodlums.” Bargaining unit: 14 Ees. Before the campaign, 11 signed cards. After the campaign, union loses, 6-7.

a) S.Ct.: Need to balance Er’s free speech rts v. Ees free choice.  BUT…balancing the rights must take into account the fact that the Ees are economically dependent on their Ers and that via its economic power position, Er statements may influence employee conduct far more than statements outside of the Er-Ee relationship b) Gissel Rule: Er may make a prediction—but prediction must be carefully phrased on basis of (1) objective facts to convey demonstratively (2) probable consequences (3) outside of the Er’s control. 

i) Here, mgmt had control over the closing of the plant.  Thus, conditions of bad consequences are probably w/in the Er’s control.

ii) The court will defer to the board in deciding whether Er’s predictions go over the line

c) EXCEPTION: If a company has made a decision that if the Ees vote in the election to close the entire business → NO ULP.  Er can cease being an Er entirely. 

i) Thus, can tell the Ees that if they vote for the union, you will close the plant.  BUT, need evid to show that the decision was made beforehandii) BUT…if the Ees call your bluff and they vote and you don’t close → ULP

1) This is considered a threatd) Examples of lawful Er speech

i) Attack union’s promise (e.g. “Union cannot guarantee anything, only ask.”)ii) Warning of strikes based on history or the state of the law (e.g. “SEIU has been on 32 strikes.”  OR “Strikers can be replaced and as long as a strikes her gone, we can replace their job.”  [this is not warning that the Ee will be fired, only replaced.])iii) “Union victory can result in a serious harm.”  (Serious harm is only a prediction)iv) “Law allows Ers to replace strikers.”v) “I intend to deal hard with the union”vi) Reciting a history of closing stores for ‘economic’ reasons after successful union organizing, or predicting layoffs and plant closing as a result of unionization, so long as such statements are based on objective facts beyond the employer’s control or reflect decision already made to close down in the event of unionization

e) Examples of unlawful Er speechi) “This is a very serious matter for you and your family. On the day of the election, vote as if your job depends on it.” Threat; violation of § 8(a)(1).ii) “I will close down the shop if you do not do what I tell you to do…”iii) “Should the union win, they will insist on higher prices.” (Violation b/c Er raises the prices, not the union.)iv) Prediction even though sincere, that unionization ‘will or may’ result in

Corral Fall ‘0531

plant closing is coercive, unless the likelihood of closing is capable of objective proof

Distinguish: at the same time, the Court has recognized that an employer has the absolute right to go out of business for any reason – including anti-union hostility (Darlington)

Dal-Tex Optical Co., Inc. (p. 148): Er said, “Do you want to gamble all thesethings?  If I am required to bargain, I will bargain with cold-blooded business basis. You may come out w/a lot less than you have now.”  Bd: Er’s statements were coercive (i.e. illegal threats) and not protected by § 8(c). ULP here.

f) Implied Promises:  Er’s get into trouble by implied promises and indirect words. (e.g. Er solicits grievances; implied promise that the Er is going to do something if they find out what is wrong.)

e. Conferring or withholding economic benefits—Employer speech under §8(c) 1) NLRB v. Exchange Parst (p. 179): Two weeks before the election, Er sent a letter listing all the benefits of working. Gave a new system for increasing the overtime benefits.  Union lost the election

a) Held: Granting benefits = §8(a)(1) violation. “The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove.” i) This case is about the action, not the speech, of the Er (i.e. the Er actually granting a benefit of increased wages and vacation time) ii) Once the union shows up, Er can’t unilaterally change the working

conditions through the organization, election, and bargaining phases. 1) This includes withholding any benefits (e.g. Er gives a raise every year.  Union wants to hold an election.  Er cannot stop giving this annual raise.)

b) HYPO: Co. gives wage increases every 3 years. Co. planning a 2002 wage increase (consistent w/past practice). Union shows up in March 2002 & Er knows they cannot grant or withhold economic benefit near an election. What should they do?

i) Key: Establish the status quo. If the status quo is dynamic (i.e. changes), need to show that proposed wage increase is in line w/past practices & dynamic status quo. 

c) HYPO:  Er called a mtg prior to election; mtgs had never been given before.i) This is a § 8(a)(1) violationii) Implied promise…This is not a speech, but a change.  Here, Ees are given access to mgmt when not previously given.iii) Includes implementing “attitude” surveys for the first time

3. Discriminatory discharges—Er ULPs under §8(a)(3)a) §8(a)(3): “(a) It shall be an unfair labor practice for an employer—(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

i) Er’s may not discourage or encourage union membership by discrimination in regard to hiring or tenure of employment, or with respect to any term or condition of employment; most violations are when Ers discourage membership

ii) To prove unlawful discrimination under §8(a)(3), an improper motive (i.e. intent by the Er to affect union affiliation or activity on the part of the Ees) must be demonstrated

iii) Union may negotiate a union security clause 1) But, if a union security clause is negotiated, every Ee doesn’t actually have to join the union, only need to pay dues

Corral Fall ‘0532

b) Budd Mfg v. NLRB (p. 219): Walter Weigand, Ee, hardly worked at all, brought in women, then became a representative for UAW. Once he started organizing w/the UAW, he was fired. Held: Discharge violated §8(a)(3)

i) Employment at will: Er may discharge an Ee for a good reason, a poor reason, or no reason at all so long as the provisions of the NLRA are not violated; so long as there is no violation of NLRA provisions; an employer violates the Act by discharging an employee because of the employee’s union activities; the employer’s claim that the employee was discharged for an accumulation of offenses was not credible; although the case only involved a §8(a)(3) claim, the discharge violated both §8(a)(3) and §8(a)(1) because of the employer’s discriminatory motive and its intent to discourage union support.ii) HYPO: Upon reinstatement, Walter continues to live a life of leisure on the job.  Company’s response? Can probably force him to work

c) Diff b/t §8(a)(1) and §8(a)(3) violations….i) §8(a)(1): Bd looks @ impact on Ee’s §7 rights v. Er’s interestsii) §8(a)(3): Must prove Er’s motive or intent (i.e. anti-union animous). Burden is on General Counsel to prove:

1) Prima facie case (inference of anti-union motive) a) Ee engaged in “protected” activity that demonstrated Ees’ support for the union b) Er knew of the “protected” activity c) Er took adverse action against the Ee/anti-union animous d) Any other comparative evidence, or any other evidence relevant to prove intent (e.g. the timing of the evid)

iii) Er can rebut the prima facie case in one of two ways: 1) Rebut case, OR

2) Produce evid of a legitimate business reason to prove that the discharge occurred for legitimate business reasons regardless of the Ee’s protected activity

a) This burden shifting is also known as the Wright Line Standard/Rule: the Board here is trying to find the Er’s true motive by shifting the burden of proof onto the Er.

b) End of Wright Line - NLRB v. GATX Logistics, Inc. (p. 225): an appellate court glosses over the effectiveness of the two part Wright Line test reasoning that questions of whether NLRB General Counsel has carried the burden of persuasion will be addressed at the conclusion of the hearing since the answer to this type of question must be based on the record as a whole.

iv) NLRB v. Great Dane Trailers, Inc. (p. 565) - - Proving Motive1) If the Er’s conduct is ‘inherently destructive’ of union membership (i.e. disparate

wage and benefit scales for union and non-union workers), the Board may assume that the Er acted with an anti-union animous and may disregard evidence of a business purpose and find a §8(a)(3) violation without independent proof of motive

2) If the Er’s conduct causes lesser harm: (i.e. refusal to reinstate a validly replaced striker) and the Er presenta a subtational business justification for the conduct, the General Counsel must overcome the Er’s showing with independent evidence of an anti-union animous in order to prove a violation of §8(a)(3) a) Scope of ‘business justification: if the Er’s conduct is not inherently destructive, a good faith interpretation of the collective bargaining contract, even if wrong, can qualify as a business justification b) Circumstantial Evidence: once the employer has presented evidence of a

legitimate and substantial business justification for the conduct in question, Great Dane Trailers permits the General Counsel to establish the Er’s anti-union motive independently through circumstantial evidence;

Corral Fall ‘0533

relevant factors would include: i) Percentage of union members effected by the conduct,

ii) The extent to which the affected Ees were engaged in union activity,iii) The service record and efficiency of such employees,iv) The quantum of employer knowledge of union activity, v) Statements or conduct of the Er showing their state of mind,vi) Disparate treatment of union and non-union employees,

vii) Timing of any employee dismissals, viii) Consistency of reasons given for dismissals, and

ix) Anti-union background of the employer v) Distinction between pretext and mixed motive:

1) In a Pretext Case: the employer asserts a valid business reason for its action, but the evidence shows the reason to be a sham. In reality, the rule or circumstance relied on did not exist, or the Er did not in fact rely on them.

2) In a dual motive case: these cases involve two factors: a) a demonstrable and legitimate business reason, BUT ALSO b) the Er’s hostile reaction to the Ee’s union activity d) Shutting Down, Runaway Shops, and Partial Closings:

i) NLRB v. Adkins Transfer Co. (p. 236): (Department Shut Down) Held: a company may suspend its operations or change its business methods so long as the change is not motivated by the illegal intention to avoid its obligations under the NLRA. The fact that the employees were union members was only incidental, and not the reason for their discharge. The employees were discharged because the union scale was too high for the Er to operate the services dept. profitably. The court found no interference, restraint, or coercion of employees in their right to self-organization or collective bargaining, and no discrimination tending to encourage or discourage union membership.

1) “Runaway Shops”: when the Er’s shop becomes unionized and goes out of business after the unionization and moves shop to non-union area.  a) To make this a §8(a)(3) violation, GC must prove anti-union motive.  Easy for

the Er to argue back that the cost of business arose (i.e. business/economic necessity)

b) (Possible) Exception: Business Necessity – changing the location of a business in not a vilation of the NLRA if dictated by sound economic considerations; this is true even if the move has the effect of thwarting unionization; NLRB and courts of appeal take different stance in these instances with appellate courts more willing to countenance relocation triggered by a worsening economic picture to which the union substantially contributes

ii) Textile Workers Union v. Darlington Mfg. Co. (p. 242): (Shop Shutdown) Textile mill in the south. Ees voted the union in. Millikin shut down the textile mill b/c he hated the union. Ees bring a §8(a)(3) charge to contest the Er’s decision. 1) Held: Case remanded to decide whether this was a total or partial closing. 

a) Total closing of a plant/business will NEVER violate § 8(a)(3) b/c Er then ceases to be an Er under the Act.  i) Bd cannot prohibit to close the entire business ii) Remedies: an Er who closes a plant for reasons found to be discriminatory may be ordered to reopen, unless the Er can show that the re-opening would be unduly burdensome or would threaten the continued viability of the company; b) A partial closing may violate § 8(a)(3) if the GC can prove the motive/purpose of the closing was to chill union activity in other remaining parts of the business and if it was “reasonably foreseeable” that the closing would have that effect 

Corral Fall ‘0534

i) Remedies: the Board has ordered reinstatement of the affected employees in another part of the business, together with back pay and/or ordered the Er to reopen the division 2) TEST: there is a violation of §8(a)(3) when a) The Er has continuing business operations significant enough to afford the Er a benefit from discouraging unionization,

b) Independent evidence exists that the partial closing was done for that reason, AND c) It is reasonably foreseeable that employees at the remaining (continuing) operations will fear for their jobs if they support a union 3) This case hampered by severe delay 

a) e.g. Plant closes, 1956 → S.Ct remands case, 1965 → NLRB award, 1967 → Enforces Bd’s order, 1968 → S.Ct demands cert (ends liability phase), 1969. 

b) Remedy = backpay c) 10-year process on compliance to litigate 550 Ees’ entitlement d) Bd takes 2.5 yrs to write up specifics of the compliance e) 1980, Co settles for $5m. Ees accept the offer—1/3 of them dead.

f) Supervisors 1) Supervisors ≠ Ees w/in meaning of Act.  Thus, supervisor cannot have a §8(a)(3) = claim 2) Discharge of a supervisor will violate the Act (via §8(a)(1)) only if it “directly interferes” w/an Ees exercise of § 7 rights (i.e. their rights of self-organization) 

a) For §8(a)(1) violation, do NOT need to prove motive, only the impact of the ULP b) Thus, the claim essentially belongs to the other Ees b/c the Act is trying to enforce

their rights 3) Since the are often used to commit ULPs because they enjoy no §8(a)(3) protections, supervisors may not be disciplined for:

a)  testifying before the Bd or in processing an Ees grievance b) refusing to commit a ULP c) as pretext for discharging a pro-union crew

g. Exceptions for building and trades industry: §8(f) permits the Er and the Ees to enter a compulsory union agreement before Ees have been hired; it also permits an agreement requiring union membership within 7 (as opposed to the usual 30) days after the beginning of employment, permitting union referral of qualified applicants for job openings, and specifying minimum training or experience qualification for jobs; this does not permit an Er to discriminate against an EE for non-membership in a union if the Er has reasonable cause to believe that membership was not available to the Ee or was terminated for reasons other than non-payment of union dues or initiation fees; these agreements are subject to applicable state laws, a number of which prohibit (or rigorously restrict) compulsory unionism; an agreement prohibiting a contractor-Er from awarding jobs to non-union subcontractors has also been held to violate the Sherman Anti-Trust Act (thereby subjecting the union to damage suits under the anti-trust laws)

Corral Fall ‘0535

-Insert flow chart from p. 82 of Gilbert’s here -

Remedies for ULPs -

a. §10(c):“If on preponderance of the testimony taken the Bd shall be of the opinion that any person…engaged in a ULP, then the Bd shall state its findings of fact and shall issue…an order requiring such person to cease and desist from such [ULP], and to take such affirmative action including reinstatement w/ or w/o back pay…”

1) Bd has greater discretion in determining remedies + limited judicial review to review remedies—then discretion in determining liability

b. Common Remedies (Goal: to make the Ees “whole,” i.e. the position they would’ve been in w/o the discrimination)

1) Cease & Desist Order; (followed by) Post Notice2) Back Pay-

(a) How to calculatei) Back pay = Loss wages – interim earningsii) Ee also has a duty to mitigate damages (i.e. go out and find substantially similar

work)3)   Reinstatement

a) Phelps Dodge (1941): Applicants who were known union activists denied job b/c of their union activity.  Could they get the reinstatement remedy? 

i) Held: Yes, applicants also protected.  ii) Ee still entitled to remedial remedies, even if the Ee obtains substantially similar employment. 

b) This remedy usually doesn’t work b/c comes too long after Ee left employment.  Few accept reinstatement and even fewer are still there 2 years later

c.  Extraordinary Remedies1) Under notice, personal reading by president of the company2) Mailing cease and desist notice to each Ee3) Union access on Er’s property4) Reestablishing “runaway” shop5)   Paying NLRB or union expenses

Corral Fall ‘0536

d. Injunctions—§ 10(j)—once a regional director orders a complaint, can get an injunction1) Ee more apt to accept reinstatement and to stay on the job2) GC accepts very vew injunctions3)   Labor Law Reform (1978)—sought to make § 10(j) injunctions mandatory for organizing campaigns—FAILED

e. Hoffman Plastic Compounds (2002): People fired during the organizing campaign.  One worker, Castro, takes the stand and testifies that he is an undocumented worker—he used a false birth certificate to obtain a job.  Issue: Can an undocumented worker get back pay or reinstatement for ULP?

1) US S.Ct: Bd may have expertise under NLRA, but this also involves IRCA (Immigration Reform and Control Act).  Remedy of back pay violates the policy of IRCA.  Thus, no right to give any remedies to undocumented workers. 

a) Dissent: No evid to show that Cong intended IRCA to impact the NLRB.  Now, no remedy to hire undocumented workers—will it encourage Ers to hire undocumented workers and violated the NLRB b/c no sanctions against Ers who hire undocumented workers?

III. Collective Bargaining: once the bargaining unit and the rep have been determined, the bargaining process must begin; two main themes here are: 1) the duty to bargain; and 2) the importance of the grievance and arbitration procedure in administering the collective bargaining contract

A. Union as the Exclusive Representative—§9(a): once a union has been selected by a majority of Ees in the bargaining unit, it has exclusive authority to represent all employees in the unit on matters that are properly the subject of collective bargaining

1. §9(a): “Representatives designated or selected for the purposes of collective bargaining by the majority of the Ees in a unit appropriate for such purposes, shall be the exclusive representatives of all Ees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” a) Proviso: Any individual Ee can present grievances to Er, and to have those grievances addressed so long as they are not inconsistent with the bargaining agreement.  Union representative has a right to be present at any adjustment of grievances

2. J.I. Case Co. v. NLRB (p. 363): Er has individual ks of employment. Union wins election and Er refuses to bargain. Union charges Er of §8(a)(5) violation for refusing to bargain

a) Issue: What is a CBA? i) Trade agreement ii) 3d party beneficiary K—Ees like 3d parties since CBA is signed b/t Er and Union. Thus, Ees work under the CBA. 

b) Issue: What is CBA’s relationship to individual K’s of employment? i) Individual K’s are subsumed into the CBA. CBA is not a K of employment—it only sets the overriding provisions of employment. Individual Ees can bargain w/in this.  ii) In order for Ees to negotiate individual deals, CBA must either be non-existent or, if it does exist, give express permission to negotiate deals separate and apart from the individual agreement, or not cover the matters Ees seek to negotiate individually 

1) e.g. Professional sports—where CBA sets broad terms w/permission for individuals to negotiate individual salaries

c) If individuals are in the bargaining unit (and union wins election), Ees w/in the unit are represented by the union. 

i) It is immaterial whether the Ees are members of the union or not; they still cannot bypass the union to negotiate individual deals absent permission

3. Ers cannot bypass the union; must communicate/deal through them a) HYPO: In the middle of the strike w/deadlocked negotiations. Co wants to send leaflets to

Corral Fall ‘0537

individual Ees to let them know of their position. Can Co. distribute ballots to Ees? i) No, this is bypassing the union ii) Ers may be able to communicate via publicity (i.e. publicize position at the bargaining table)

4. Emporium Capwell Co v. Western Addition Comm. Org (p. 367): Er has a CBA w/provision prohibiting “employment discrimination.” African-American Ees protested discrimination by handing out fliers. Ees discharged. Issue: Was the action of the discharged Ees protected by §7? 

a) Held: §9(a) supersedes §7 i) Held: if a union has exclusive authority to represent all Ees in the unit, an Ee has no independent right to bargain with the Er (even if it is concerted).

1) Once Ees lost protection of the Labor Act, they cannot claim a ULP and can be fired

ii) Ees argue §9(a) proviso (i.e. Any individual Ee can present individual grievances to the union as long as the union representative is there) but lose because

1) §9(a) not intended to be enforceable—fn 12 2) §9(a) protects the Er by (voluntarily) allowing them to meet w/Ees on grievances, but if they refuse, it is not a ULP

b) Ees bargaining was not allowed b/c i) Undermines the union’s strength/power ii) Want to force the union to represent the minority Ees iii) Prevent fragmentation by race

c) How to protect [numerical] minorities w/in the union: i) Construct appropriate bargaining units ii) 1972 Landham-Griffin: Protects individual rights w/in the union & promotes democracy w/in a union iii) Duty of fair representation (“DFR”)

1) Steele v. Louisville & N.R. Co. (p. 378): Union negotiated a k where all black Ees would be terminated. Ct: Agreement is wrong; union needed to fairly represent all members in the bargain unit 2) If the union doesn’t represent the Ees properly, then Ees have c/a against the union for violating DFR

a) But high burden of proof.  Ee must prove that union acted arbitrarily, discriminatorily, and in bad faith

B. Duty to Bargain - §§8(a)(5), 8(b)(3), 8(d): the duty to bargain has a qualitative side and a quantitative side

The Qualitative Side – requires good faith, serious negotiation over mandatory subjects, and sharing of information needed to make negotiation meaningful.

1. What is “good faith?”a. §8(a)(5): ULP for Er to refuse to bargain in good faith

1) “Good faith” = present intention to have a basis for agreement; Er must have a sincere desire to reach common ground. a) This is evidenced through the Er’s behavior

2) “Surface bargaining” = bad faith; just going through the motions3) “Hard bargaining” = ok; fulfills the requirements of the statute; Er seen as just being tough

b. §8(b)(3): ULP for a union to refuse to bargain in good faithc. §8(d): “…to bargain collectively is the performance of the mutual obligation of the Er and the

representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment…but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

Corral Fall ‘0538

1) Essentially gets parties to the table, then “closes the door” since Bd can never dictate terms of the agreement & can only compel negotiations 2) This duty to bargain continues in effect until the parties reach impasse 3) Does not compel either party to accept any proposal or make any concession

d. To determine whether either party is bargaining in good faith, look at the totality of the circumstances and examine

1) Procedure a) e.g. Insisting on having a stenographer indicates bad faith b/c acting like the parties

are preparing for litigation & no sincere desire to reach an agreement b) Location: If Er asks the union to bargain at a place they know the union won’t go,

e.g. on the Er’s premises during a strike 2) Lack of a counter-proposal: indication of bad faith bargaining in the totality of the circumstances

a) e.g. when the company simply says, “thank you, we understand your position and will get back to you.” b) Most negotiations are by the horse-trading model—i.e. both sides make proposals and go back and forth

3) Content of counter-proposal: a) e.g. We will “never agree to a union-security clause of a dues check off.” 

i) If Er allowed payroll deduction for other charities/entities, can get the Er into trouble under § 8(a)(3) for discrimination

b) Take it or leave it proposals—e.g. of bad faith bargaining for refusing to take counter-proposals. c) Demands that the union drop pending charges

e. Historical Overview: (1960) NLRB v. Cummer-Graham, No strike clauses and Arbitration clauses are not simultaneously required and a party’s request or denial of one while requesting or denying the other is not indicative of a failure to bargain in good faith, if management or labor fail to resolve the matter.

(1960) NLRB v. Herman Sausage (p. 393): If a parties insistence as to a requirement in a labor negotiations is genuinely held, if it is not mere window dressing, it may be maintained forever though it produce a stalemate . . . . The Government through the Board, may not subject the parties to direction either by compulsory arbitration or the more subtle means of determining that the position is inherently unreasonable, unfair, or impracticable, or unsound.

(1971) Chevron Oil Co. v. NLRB (p. 394): Where a relatively weak union encounters a relatively strong company the company’s desire to use its advantage to retain as many rights as possible is not inconsistent with good faith bargaining.

(1981) Atlas Metal Parts Co. v. NLRB (p. 394): An employer is entitled to advance a positionsincerely held, notwithstanding the employer’s having taken a different position at an earliertime and either party is entitled to stand firm on a position if he reasonably believes that he hassufficient bargaining strength to force agreement by other parties.

f. NLRB v. A-1 King Size Sandwiches (p. 387): π and Co met 18 times in 11 months. Company did not make any concessions. Co’s proposals kept expanding Er control over mandatory subjects of bargaining. Held: Violation of §8(a)(5).

1) Bd can decide that Co violated § 8(a)(5) solely on the content of their proposals a) Content of the Er’s proposal was so awful that it indicates that the Er had no sincere desire to reach agreement

Corral Fall ‘0539

b) Under these facts, union would have been in a worse position with the agreement than without it.

2) If there is a strong Co and weak union, sometimes this will NOT be considered bad faith bargaining. 

g. Boulwarism (p. 425): Mr. Bulwar engaged in scientific research to survey their Ees over what they wanted to develop a firm and fair proposal, which they marketed as their product.  Presented proposal to the union.

1) Held: Violation of §8(a)(5) b/c bad faith bargaining. Going to the table w/o wishing to change

2) Publicity campaign to Ees ≠ protected by §8(c).  3) Dissent: This is only a matter of economic strength, which is what bargaining is about.  Govt can’t tell Co that they must reach specific proposals

h. Contractual Successorship: John Wiley & Sons v. Livingston (p. 764): Holding that the disappearance by merger of

a corporate employer which has entered into a collective bargaining agreement with a union does not automatically terminate all rights of the employees covered by the agreement. Under appropriate circumstances the successor employer may be required to arbitrate with the union under the agreement. Appropriate circumstances are where a succeeding employer’s business, which takes over for a predecessor who had been a party to a CBA including an arbitration provision, presents a relevant similarity and continuity

of operation across the change in ownership.

- INSERT CHART FROM P. 113 & 116 OF GILBERTS HERE –

Corral Fall ‘0540

2. Employer’s Duty to Disclose Information (Er & Ee duties exist for the life of the K)a. Duty to make a good-faith proposal includes the Co’s willingness to supply information to the union

1) Governed by a relevancy standard a) NLRB v. Truitt Mfg. Co. (p. 396): Co claimed that they were not able to pay higher wages, so union asked for proof. Held: Any Er who claims they can’t pay

must disclose financial status.  i) Co’s financial info is relevant if the company claims inability to pay wage increase (versus “unwilling to pay”) ii) Financial info is not relevant if the Er’s claim is that what the Ees are seeking exceeds industry standards

iv) This differs in the public sector since this is all public info v) This duty continues through the process of grievance settlement under an existing labor contract per NLRB v. Acme Industrial Co. (p. 397)

b) But Bd can take a case by case approach when dealing with company’s financial info (sensitive); their decision is supposed to be based on a balance between union access to relevant information v. legitimate claims of confidentiality by the Er

2) Union can get the names and addresses of all Ees from the company b/c it is crucial to the union’s ability to carry out functions.  Irrelevant to whether the Co thinks the union only wants to collect dues.

b. Er’s DEFENSES to Union’s request for info 1) Not relevant

2) Too burdensome a) Union must accept the info in the same format that the company keeps it

3) Confidentiality a) Detroit Edison Co. v. NLRB (p. 399): Union to file a grievance on Er’s reliance on aptitude test to give promotions. 10 positions open, but no union Ees promoted and outside workers were hired. Union sought access to the tests (incl. actual questions, Ee answer sheets and scores for each Ee); Co only turned over the test validation study, arguing secrecy of the tests & assurance to Ees that the tests would be confidential & high cost to validate the test

i) Bd: Found §8(a)(5) violation. Ordered Co to turn over test ii) Ct: Bd’s remedy was an abuse of discretion. Feared the possibility that the union would not be able to control the confidential info of the test iii) Here, Ees had a expectation of privacy

b) NJ Bell Telephone: 3 Ees marked tardy. Union asked to see absentee and privacy records. Co refused b/c they had their own privacy protection plan that prohibited info to outside people. Held: This is private information and the union cannot get access—even though the info really wasn’t confidential b/c any Ee could answer the phone.  c) Harrah’s case: Cocktail waitresses discharged b/c of complaints by customers.  Union wants the names of the customers so that they can file a grievance. Held: Casino must release their names b/c no expectations of privacy when you submit a complaint since needs to be a way to litigate the grievance

4) Involves trade secrets3. Partial Strike Activity v. Unilateral Action by the Employer

a. NLRB v. Ins. Agents’ Intl Union (p. 405): Workers in a “work w/o a K” program—in a slow-down (i.e. not participating in special promotions, showing up late) 1) Bd: per se ULP §8(b)(3)

Corral Fall ‘0541

2) S.Ct: Reversed b/c found the Bd was trying to determine the degree of economic power of each side when it was trying to regulate the tactics away from the table— which would ultimately impact the substantive agreement at the table

a) Use of economic tactics is consistent with the duty to bargain in good faith b) Although this is a non-traditional method of using economic power does not mean that they are not engaging in good faith bargaining. 

i) However, slow-down is not a protected activity. Ers could have fired the insurance agents. 

b.  Unilateral change by the Er in mandatory subjects of bargaining, during bargaining = ULP under §8(a)(5).  1) NLRB v. Katz (p. 412): During bargaining, Co unilaterally changed merit increases,

sick-leave, and wage increases. Held: Violation of §8(a)(5). a) Er’s use of its economic power by granting wage increase and changing the sick leave plan = flat refusal to bargain about those issues (i.e. terms and conditions of employment).  b) Er essentially took these issues off of the table. 

c. During the bargaining process, the Er must maintain the status quo—Er cannot make any unilateral changes until the parties reach IMPASSE

1) Impasse = point after long bargaining when no agreement is reached & parties do not want to make any changes

a) Determining impasse requires a case by case, totality of the circumstances (including history of relationship b/t parties, record of what has been said at the table via parties’ notes, importance of the issue) analysis b) Once impasse is reached, the duty to bargain in good faith ends c) BUT impasse is a temporary condition that ends once a party decides that they will change. 

2) After impasse, Er may implement the “last offer”; an employer is permitted to implement his final offer package after an impasse in negotiations has occurred, provided that the impasse is an overall stalemate (Duffy Tool & Stamping, LLC v. NLRB (p. 417)) 3) Thus, it is to the Er’s advantage to reach impasse so that they can make unilateral change

4. Remedies for Failure to Bargain in Good Faith a. Cease and desist order; Posting/reading/mailing of the order b. Order to bargain (in good faith)

i) Contempt sanctions—usually takes 7-8 years to issue + high burden (clear & convincing evidence and willful disregard of the law)

c. Restore the status quo i) e.g. bring Ees back to work (Fibreboard)  ii) MI auto brake parts mfr relocated several operations to KT after the union was certified. Er refused to bargain about relocation decision (§ 8(a)(5) + § 8(a)(3) b/c motivated by anti-union animus). Little change in mfr operations = mandatory subject. 

1) Bd: Required the co to return operations back to MI plant + restore workers d. Extraordinary remedies—reserved for flagrant violators

i) e.g. ordering Co to pay wages of the union members @ bargain table ii) e.g. pay other sides’ litigation costs iii) e.g. ordering party to pay Bd litigation expenses

e. Getting a § 10(j) injunction i) Can mandate the bargaining before the change takes place ii) If the union finds out before the decision, the Bd can enjoin the transfer of work/relocation before it happens

Corral Fall ‘0542

f. Unavailable remedies: i) HK Porter (1970): Er refuses to agree to a checkoff clause to collect union dues.  Bd: Mandated Er to collect the $$

1) Ct: Reversed. Cannot force Er to agree to a particular term of a substantive k term. Freedom of K

ii) Bd cannot dictate any terms of the K 1) Exception: Co and union reach agreement on a package of proposals.  Er then w/draws their proposals.  Bd can find bad faith bargaining & order the Co to sign to what they had already agreed.  2) But this is a very narrow window

3) Union’s recourse: Strike or sign the k w/o the clause in it. iii) Ex-Cell-O Corporation (1970): “Make whole” remedy—e.g. if there is a violation of § 8(a)(5), can the Bd order the Co to pay monetary fine to Ees based on a hypothetical K (i.e. IF the Co had bargained in good faith, this was the agreement we would’ve reached…)?

1) Ct: No, cannot force the Co to agree to a k they didn’t agree to.  2) The “make whole” remedy was a topic of the labor law reform in 1978, but failed.

The Quantitative Side – provides that certain subjects (wages, hours, and other terms and conditions of employment) are compulsory and must be bargained about, while other subjects are permissive (or in some cases, illegal).

1. Subjects of Collective Bargaining—Mandatory v. Permissive: distinction determinesa. Whether parties must talk about the subject at the tableb. Whether info about the mandatory subject must be disclosedc. Whether unilateral action can be takend. Whether parties can use economic force

i) Union can only call a strike over mandatory subjects of bargaining; It is an illegal strike for the union to strike over a permissive subject

2.  Rationale for distinction: If you insist on talking about a permissive topic is really a refusal to talk about a mandatory subject

a. Insisting on a permissive topic = refusal to bargain in good faith on a mandatory topic3. Mandatory subjects of bargaining

a. §8(d): “…wages, hours, and other terms and conditions of employment…”b. Ford Motor Co v. NLRB (p. 446): Ford wanted to raise the prices of in-plant food.  Union protested.  No surrounding restaurants, so impracticable for workers to eat off-site.  Held: This is a ‘term and condition’ of employment, thus, a mandatory subject of bargaining. 

1) Ford should then bargain for a clause that gives them a right to change the food prices.  (Thus, will not need to bargain every time the food prices need to change)

c.  Johnson-Bateman Co. v. Int’l Assoc. of Machinists (p. 447): New drug testing requirement was a mandatory subject of bargaining for Ees to start taking drug tests (but this does not apply to applicants)d. Christmas bonuses. Look @ status quo. If xmas bonuses are a regular practice (and related to terms of employment), it is considered a wage—not a gift.e. On-site child care. Co wanted to close the childcare center. Arguable whether this constitutes a change in social conditions.f.  Fibreboard Paper Products Corp v. NLRB (p. 450): Maintenance Ees in a bargaining unit.  Co decided to contract out the maintenance work to an independent contractor.  Co announces the decision 4 days before the k expired.  Co insisted that this was b/c of economics, but union brings the grievance to the Bd.

Corral Fall ‘0543

1) Held: This is a mandatory bargaining subject.  Whether you have a job = “terms and conditions of employment.”

a) Decision reinforced by industrial practices around the country—contracting out = mandatory bargaining subject.

i) “…that type of claim is grist in the mills of the arbitrators…” b) Co’s decision does not alter the basic operation of the company—only changing the people doing the work & nothing is changed about the jobs c) Issue revolves around the cost of labor (i.e. wage rate).  Cost of labor is an amenable subject of bargaining.  Union deserves a chance to bargain about the wage rates. 

2) Justice Stevens concurrence a) Limit to these facts

i) Views this as substituting one group for another b) BUT IF an item lies at the core of entrepreneurial control (i.e. commitment of investment capital), then it should be excluded from mandatory subjects

i)  e.g. investing in machines or lands are at the core of entrepreneurial control4. Permissive subjects of bargaining: Neither side can compel bargaining about these subjects.  Have both permissive subjects w/in the management’s control and permissive subjects w/in the union’s control

a. Detroit Resilient Floor Decorators: Union wanted Er to join an industry group to promote the business & contribute to its improvement.  Held: Advertisements & joining industry trade group = permissive subject w/in the mgmt’s controlb. First National Maintenance (1981): Maintenance workers for Er, the maintenance company, doing housekeeping for nursing homes in NY.  3/77, union wins elections.  Er asks for fee increase from Greenpark nursing home.  Union makes demand for bargain.  Co gives notice that they are terminating their business w/Greenpark nursing home, and all Ees terminated.

1) Held: Decision to partially close = permissive subject a) NB: Total closing is NEVER a mandatory subject (Darlington).  If Co goes out of

biz, no longer considered an Er 2) Held: Effects of the partial closing = mandatory subject

a) Severance pay b) Health care/COBRA c) Transfer rights/job bidding rights to any remaining jobs d) Notice

i) Thus, bargaining must happen before the place actually closes (i.e. bargaining must happen at a ”meaningful manner and at a meaningful time…”)

3) Apply balancing test: Burden of negotiations v. benefit of the union on bargainingc.  Dubuque Packing: Dubuque was relocating its meat packing plant. Bd: If moving the plant w/ no change in the operations (i.e. keeping the same equipment, same assignment of the work, just moving the work) → will be treated like subcontracting in Fibreboard. 

1) New [complicated] balancing test:a) If the decision is to relocate the plant w/ no change in operations, then the decision to

relocate the plant is a mandatory subjecti) Must assume what the union would be willing to bargain on or make concessions with. e.g. if the decision to relocate is only based on labor costs, likely that it will be mandatory since the union has power to control or negotiate the cost of work. 

(b) If there is a substantial change in the way business is done @ the new location, then the decision to relocate the plant is NOT mandatory.

5. Illegal subjects: ULP to insist upon the inclusion of an illegal provision in the K or to use economic force in support of a demand. 

Corral Fall ‘0544

IV. Strikes, Boycotts, and Picketing: Use of Economic Force

A.   Role of the strike v. Impasse Resolution1. Strike – total stoppage of work or complete w/holding of labor power

a. In general, if the Er is paying the Ee, he can expect a full days work.  Thus, intermittent work stoppage and slowdowns and partial strikes are not protected by the NLRAb. Elk Lumber Co. (p. 545): Although employees have the right to go on a strike [here would be

a sympathy strike], employees may be lawfully discharged for disobedience of the employer’s direction in breach of the their contract, b/c they cannot continue to remain at their positions and accept their given wages, while also selecting what part of their allotted tasks they cared to perform of their own volition, or refuse openly or secretly, to the employers damage, to do other work.

2. No constitutional right to strike for Eesa. Private Ees get right to strike from statutesb. Public Ees get right to strike from state law

1) City Sanitation Workers: S.Ct: Reversed the c/l prohibition that public (i.e. local govt Ees) Ees couldn’t strike. 

a) Exception: “essential” Ees cannot strike3. Procedures

a. §8(d): If CBA is already in effect, need 60 days notice to the other side before the strike.  Must notify a federal mediator w/in 30 days of providing notice to the Er.

b. §8(g): Health care Ees must provide:1) 90 days notice2) Chance for mediators to come in for labor dispute3) 10-day strike notice

c. National Emergencies: Strike can be enjoined if the president believes the strike will imperil national health/safety. Required 60-day cooling off period where the union can’t strike. 

B. Picketing and Constitutional Law1. US Constitution

a. Thornhill v. Alabama (p. 73): Ees on strike.  Picketer told a non-union Ee to go home.  Held: Protected speech since no threats, coercion.  Only disseminating info.

1) Good law for one yearb. 1942: Picketing = “speech plus”

1) Govt can limit picketing in light of state gain of interest 2) Labor pickets ≠ communicate ideas.  Instead, pickets coerce people and are designed to provoke an automatic response to a signal. 

a) “Plus” = signb) Non-speech element (i.e. sign) can justify “incidental” limits to free speech/1st A

c. Teamsters v. Vogt: Picketing = “aspect of communication.”  But can limit or control picketing.  Presence of picket line may induce action & thus, is not just disseminating info. 1) Under constitutional theory, fed and state govt can choose kind of picketing to allow and

prohibita) If picketing for an unlawful purpose, then the 1st A allows prohibition here.b) Recognition picketing is a disfavored form of picketing

2) No blanket ban on picketing—d. In general, free speech will NOT override private property interests

1) Hudgens v. NLRB (p. 603): Ees of Butler Shoe picketing the entire mall b/c the Er would not agree to collective bargaining terms.  Held: Picketing is not protected at malls (lloyd v. tanner)(a) Speech not ordinarily protected on private property

Corral Fall ‘0545

(b) But protected if the private property takes on all/most of characteristics of public towni) Logan Valley (1968): Mall as a central part of town

e. Secondary picketing ≠ protected by the 1st Amendment1) Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc./USSR (p. 633) : Under Taft-Hartley, illegal secondary boycott. 

f. Civil rights picketing1) NAACP v. Claiborne Hardware: Boycott of Miss. town by blacks for 3 years.  Business

owners sued NAACP for damages.  S.Ct: Can have tort damages for violent acts, but NO economic damages from peaceful picketinga) Distinguished from labor picketing since this is a public/political issue, in the heart of

the democratic system.  b) Labor picketing = economic picketing, and govt can regulate the economy

C.  Protected “concerted activity” under the NLRA1. §7: “Ees shall have the right…to engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection…”a. Protects: (1) concerted activity (2) for mutual aid and protection

1) Concerted—Don’t necessarily need the uniona) A Aluminum: Ees walked out b/c plant was too cold.  Held: Concerted activity, even though not directed by the union.  Still protected.  b) Can be “concerted” even if the Ee acts alone—but pursuant to the CBA

i) NLRB v. City Disposal Systems, Inc (p. 515): Truck driver in accident b/c of faultybrakes, so refused to drive the truck.  (Under CBA, no requirement to drive unsafetrucks). S.Ct: Concerted activity b/c acting pursuant to the CBA.  → “constructive”concerted activityii) Called the Interboro doctrine: If Ee asserts a CBA right, then it is concerted activity—even if Ee is acting aloneiii) Ways individual can be in “concerted activity”

1) Trying to gather Ees2) Acting as a representative of @ least one other Ee

b. Primary strikes = concerted + for mutual aid1) Thus, if on a protected strike, still considered an Ee of the Er

2. Hudgens v. NLRB (p. 603): Butler Shoe Ees picket the entire shopping mall to protest collective bargaining negotiations.  2nd issue: Is this protected concerted activity?a. Here: Primary picketingb. Under NLRA, Bd must balance §7 rights of Ees to engage in concerted activity v. property rights of Er/others

1) Here, since primary picketing stronger §7 rights.  Also, property rights are minimal b/c the mall is open to the public.

2) Primary strike picketors are allowed to picket @ Er’s place of business under §7—even if they are on private property inside a mall

3. Problem: Ees want to engage in primary strike activity to Er on 15th floor of a highrise.  Must they stay @ entrance on the ground floor or go up to the 15th floor?

a. 9th Cir: Ok to limit # of pickets in foyer outside of restaurantb. 2nd Cir: No picketing b/c public space is smallc. Also need to act w/in the tort of mass picketing

4. Analytical framework for determining “concerted activity”a.  Concerted activity?

1) Consider: Interboro doctrine2) Also, procedural protection for Ees who work under the CBA

a) Weingarten: Ee, under CBA, requested representation at a disciplinary interview = concerted activity

Corral Fall ‘0546

i) This was not expanded to include non-organized Eesii) West: Irony b/c those w/ least protection are not granted the protection to have the right to have someone go with them.

b) Weingarten expanded to include: informing Ees of the charges against them, right to consult w/ union rep ahead of time. 

b. For mutual aid & protection? 1) Eastex Inc. v. NLRB (p. 529): Ees sought to distribute the union newsletter in nonworking

areas and during nonworking time. Newsletter asks Ees to protest the right to work being incorporated into the TX constitution.a) Held: Topics in the newsletter are for mutual aid and protection, thus, must allow

distribution of the newsletter.  Includes:i) Literature about how to become an Er via stock ownership plansii) Literature about burning hazardous waste (if related to employment)

b) Some topics are too attenuated to fall w/in the mutual aid and protection clause, including:

i) Election day “get out the vote” materialsii) Joining a civic organization

c. Protected by §7? [even if activity is concerted and for mutual aid and protection]1) Some activities are not protected by § 7:

a) If union activity violates § 8(b) b) Calling a premature strike w/o a “cooling off” notice period c) Violations of criminal law (e.g. violence, sabotage of plants, trespassingd) Product disparagement

i) NLRB v. Local 1229, IBEW aka Jefferson Standard Broadcasting Co (p. 539): k ends. Reach impasse.  In off hours, Ees picket (but no strike) & handbill about the labor dispute.  Handbills question the quality of the television shows in Charlotte, but do not discuss the labor dispute. No violenceii) Held: No reinstatement to the Ees.  No ULP committed b/c nothing to do w/ Er-Ee relationship.  iii) Product disparagement = “improper” and disloyal behavior → No protection under §7

D. Control of strikes under state law1. Common Law

a. States have little jx b/c of Garmon preemption doctrine (i.e. Only federal govt, under the NLRA, can determine whether there is a legal or illegal purpose behind the picketing.  Thus, state law cannot determine what is prohibited (i.e. ULP) and what is protected (i.e. primary economic strikes).1) Post-Garmon, states can determine:

a) Areas of peripheral federal labor policyb) Matters “deeply rooted in local feeling and concern”

i) e.g. manner in which people picket—not the purposeb. §527.3: Prohibits ADD HERE

1) Legal to give publicity, communicate info about labor dispute by method not involving fraud, violence, or breach of the peace

2) Amendment (e): Prohibits mass picketing—i.e. having so many people picketing that block ingress or egress. 

2. Anti-Injunction statutea.  §1138.1: Procedural protections of Norris-LaGuardiab.  §1138.2: Ers cannot get labor injunctions if they failed to make every reasonable effort to

settle the dispute1) Kaplan v. CA (1979): Picketing by farm workers under the national agriculture act.  No

Corral Fall ‘0547

violence.  a) CA S.Ct: Can still be enjoined under § 527(e) b/c blocking ingress and egress long

recognized as unlawfuli) Right to picket and rt of Er ≠ exclusive.  Can limit the manner and ## of picketing such that there is no obstruction of access to Er.ii) Rationale: Picketing that blocks access has tendency to lead to violence and is coercive. 

2) Post-Kaplan: If Er sees ppl turning around and going away, will allege that the picket line is preventing access and will ask for an injunction.a) Afterwards, the parties will usually settle the terms of the picketing.  b) Moulders (1977): Is the TRO that orders 2 pickets w/in 20 feet of the entrance +

pickets cannot stop anyone longer than 5 seconds valid?  i) Held: Yes, to avoid mass picketing, injunction justified.  The transmission of information to the public is still allowed.

3) Injunction is only granted where law enforcement agents are unwilling or unable to provide protection. (CA Ct. App. 2000)  If law enforcement agents are summoned, protect from injury and ensures ingress/egress, then no more protection needed. i) Possibly will give unions more opportunity to avoid injunctions

E.  Secondary Boycotts1. Background

a. Term from Ireland—Captain Boycott’s tenants refused to work for him or to sell him food.  b. US History

1) Boycotts prohibited under state c/l 2) Boycotts originally prohibited under federal antitrust law

a) Duplex Printing Press v. Deering (p. 40): Printing press in Michigan, where Ees are trying to organize.  Union picketed NY purchaser of the presses.  Er tried to use antitrust laws to prohibit the secondary boycott.  Held: Cannot use antitrust law against labor unions; thus, secondary boycotts not illegal under federal lawb) 1947: Taft-Hartley prohibits secondary boycotts

i) §8(b)(4)(B): does not directly mention “secondary” boycotts—but prohibits those activities ii) Arose out of the Teamsters Union’s use of secondary activity.  They shut down the trucking lines and forced the union to recognize them—even if the picketing didn’t happen at the primary Er.  Very successful→ Thus, the arguments against secondary boycotts were in the context of union organizing—really ignored the economic pressure/strike context

c) Impact of Taft-Hartley on secondary activity:i) ULP for union to engage in secondary activityii) Implicated § 10(l)—i.e. mandatory injunction for anyone engaged in a ULPiii) Private c/a to Ers to recover damages caused by secondary activity—§ 303

c. Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc./USSR (p. 633) (strike to protest USSR’s invasion of Afghanistan).  Longshoremen in a primary dispute w/ USR by boycotting Allied (importer), Waterman (ship operator), Clark (stevedoring company)

1) Held: This is a labor dispute w/in the meaning of the Norris-LaGuardia.  BUT…this is a labor dispute against secondary Ers2) Cannot enjoin the behavior—unless police can testify that they cannot handle the behavior3) CAN recover damages since this activity is not protected by the first amendment.  § 303 applies. 

a) Rationale: Labor movement cannot speak about non-labor issues.  Cannot use secondary activity to support random political objectives.b) This remedy is stronger than the mandatory injunction under § 10(l), since still need to

Corral Fall ‘0548

go to the Bd and then to Federal Ctd. NLRB v. Denver Bldg & Const. Trades Council (p. 643): Construction sites = “common situs”—i.e. different Ees on one site.  Here, D & L (general contractor); G & P (electrical subcontractor) = nonunion.  All other subcontractors are unionized.  Union pickets the entire site to get rid of G&P. 

1) Held: This is secondary activity under § 8(b)(4)(B).  Union’s dispute is w/ G&P (i.e. primary Er)—not with D&L (i.e. secondary Er). 

2) Purpose of the strike was to put pressure on D&L to stop doing business w/ G&P.3) Rationale: Secondary boycotts are evil b/c they are trying to involve outside, neutral people in the labor dispute

e.  Sailors Union of the Pacific aka Moore Dry Dock Co (p. 639): Phopho came into the dock to get prepared for departure. On ship crew is nonunion; union wants to pressure ship to hire the union.  Sailors union pickets the dock and got ship’s workers to stop working.  Dispute is with the ship’s owner—not with the dock. 

1) Ambulatory situs here.  Held: If there is an ambulatory situs, can follow the site as long as the standards are maintained.  Standards include:a) Picketing is limited to times when P is at Sb) P is in normal business mode at the situsc) Picketing must be reasonably close to the situsd) Picketing signs discloses clearly that the dispute is with the primary Er

2) e.g. Acme supermarket Ees on strike.  Acme gets bread from Bond.  Picketing Acme driver when he picks up the bread.  Stop picketing once the break is loaded.  Held: This is ambulatory situs primary picketing.  Acme strikers can follow the Acme trucks where they go.

a) Union can picket P wherever P goes as long as the Moore stds met3) e.g. Ees at Acme Supermarket are on strike for increased k benefits.  Union has a picket

line at the consumer entrances, Ee entrances, and pickup/loading dock.  Deliverymen from Bond Bakers refuse to cross the picket line or make deliveries.  Held: No violation of §8(b)(4).  Still primary picketing, even though has an incidental secondary effect. 

4) e.g. Acme Ees picket the Acme site, but also at Bond Bakery, labeling Bond ‘unfair’ for continuing attempts to sell its merchandise at Acme.  Violation?  Yes b/c Ees have left P and gone to S.

f. Allied Doctrine: Ees can follow the struck work—i.e. Ees on strike & Er contracts out the work they would ordinarily be doing w/o the strike.  Union can follow the ally.

1) Douds v. Metropolitan Federation of Architects, Engineers, Chemists, & Technicians, Local 231 (p. 641): Architectural firm (P) that subcontracts work to S.  By subcontracting the work during a strike to S, S (i.e. struck work) becomes P. 

2.  Reserved Gate Doctrinea. Reserved Gate System: special gate for each Er on the site. Union can only picket the gate that the contractor uses

1) Union has observers at each gate to make sure each Ee is using the right gate.2) Mgmt needs to monitor the gates so that they can limit/confine the labor dispute3) Construction site (“common site”) where different Ers working on the land

b. Local 761, Int’l Union of Elec. Radio and Mach. Workers, AFL-CIO v. NLRB (p. 646): GE has a large plant that manufactures large appliances. Union represents production maintenance Ees. Union goes on strike for unsettled grievances. Picket all gates. Gate 3-A was designated for independent contractors working on the plant. 

1) Held: Applied the reserved gate doctrine to the manufacturing site.  Even though P owns the entire plant/land, independent contractors are neutral Ers w/ P.  a) Crystal Palace: Large market where one Er owned the market but contracted out smaller stalls. Even though CP owned the entire market, not all gates are P. 

Corral Fall ‘0549

Ownership is not the only thing to be considered.  b) Need to make sure the gate is not a “contaminated gate” –i.e. if the use is not a mixed-use  (i.e. union and non-union Ees going through the gate)

2) Look @ nature of the work to be performed by the independent ksa) Work must be unrelated to normal operations.  b) In order to allow gate 3-A as a secondary gate, the work of the independent contractors must be work unrelated to normal operations.

i) On remand, needed to determine whether general maintenance work was sufficiently unrelated to normal operations

c. Don’t want the normal Er to take advantage of the fact that the Ees are on strike and the place is shut down.  Thus, “work must be of the kind that would not necessitate curtailing operations.”

1) e.g. If P takes advantage of the strike by putting in new machinery (since the plant is shut down anyway), then that becomes a P

d. HYPO: Retail clerks union @ Acme supermarket has called a strike for increased k benefits.  Store continues its operation through supervisors.  Acme constructs a delivery platform @ end of parking lot for its deliveryman.  Is it ok for a group of picketers to station themselves at t he driveway entrance and turn away Bond Bakery delivery trucks?

1) Delivering groceries = normal operations of the store.  Cannot set up a reserve gate for delivery of normal goods in a store. 

e. HYPO: same scenario as above, except the driveway is reserved for Ees of Concrete Constru. Co, which is building a food-service stand for the Ees on break. Ok to picket Concreet Ees?

1) No b/c this is not related to the normal activities of the grocery store. In general, construction ≠ normal operations

a) But, this may change w/ the Wal-Mart superstores w/ a fast-food restaurant on sitef. HYPO: same scenario as above, except that Acme closes its market b/c of the picketing. The next day, Ees of Fashion Interiors appear at the driveway to replace linoleum with carpeting, installing new lighting, and repainting.  Can clerks picket the driveway?

1) Yes, b/c this work would not have happened but for the strike. Er is taking advantage of the strike to do work/repairs that would have ordinarily not been done.

g. HYPO: Burnham oil refinery also produces petroleum coke.  Coker Cookers bundles and loads the coke w/ their own Ees. Northern RR ships the product to the purchasers. Burham has a reserved gate system: #6 is for Coker Cookers, #7 is for independent truckers (who haul the coke), and #8 for Northern RR (which also makes deliveries for unrelated freight). Union has a dispute w/ Coker Cookers, and pickets at Gates 6, 7, 8. Ok?

1) #6: Ok b/c dispute is with them2) #7/#8: Can argue that loading the coke onto trucks is part of the normal part of the operation.  BUT Bd has held that transportation services ≠ normal operation of the business. 

a) Under these facts, probably not b/c Cooker Cookers do not own the entire place.  May have a different outcome if dispute was against Burnham oil

h. HYPO: Union protesting that general contractor doesn’t pay “area standard” wages, and wants to picket a non-union Er.  Can the co designate the rear entrance only for the general contractor (thus, only allowing the union to picket the rear entrance)?  Yes

3.  Consumer Picketinga. §8(b)(4), proviso: “Provided further, That for the purposes of this paragraph (4) only, nothing

contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public…as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution”

Corral Fall ‘0550

1) Thus, §8(b)(4) does not apply to publicity other than picketing that truthfully advises of a labor dispute as long as the publicity does not encourage Ees to stop working for the secondary Er.a) Rationale: Congress concerned about the 1st Ab) Thus, unions can pass out papers at a secondary site, asking the public to boycott the secondary Er—as long as the handbill describes the labor dispute with the primary Er. 

i) e.g. Union protesting Co’s use of non-union construction workers for their warehouse in Woodland.  Union handbills (not picket) Payless advising the public to boycott or to let their mgr know that they do not approve of their labor

practices.  b. NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 aka Tree Fruits (p. 658): Packer and shipper Ees on strike. They pack and ship fruit in WA. Union goes to Safeway stores in Seattle after the store opens and before closes to picket + pass out handbills. Do not disrupt Safeway Ee ingress and egress.  Ask consumers to only stop buying WA state apples. 

1) re: Handbills: Can call for the boycott of the secondary store2) re: Picketing: Ok to only protest the single product—not to boycott Safeway altogether—

called struck product picketing.  a) Exception created to § 8(b)(4) so that it avoids the constitutional questionb) This is not “threatening, straining, or coercive” to Safeway as defined by the statute.  c) This is only asking consumers to use their buying power to put pressure on P (thus, it is primary activity). 

3) Rule from case: Handbills can call for boycott of the secondary store, but picket can only call for the boycott of that particular product

c. NLRB v. Retail Store Employees Union, Local 1001 aka Safeco Title Insurance Co.: 5 title companies sell Safeco insurance.  Union goes out to the title companies and does struck product picketing against Safeco insurance.  Safeco insurance was 90% of the business. 

1) Held: This was the equivalent of total boycott picketing.  If struck product picketing will lead to “substantial ruin or loss of all business,” then picketing is coercive and implicates §8(b)(4)(a) Thus, if no struck product picketing if it will cause the neutral Er to “substantial

ruin or loss of all the business.”2) BUT handbilling is allowed

(a)  Rationale: Handbills are a “reasoned response to an idea.”  Also not as intimidating.  3) Also cannot struck product picket a merged product—i.e. the product the union is on

strike against is merged with the business of the company.a) e.g. Want to protest the makers of grocery bags—cannot picket the grocery bags at the supermarket b/c the bags are merged into the grocery stores’ total business

d.  Edward J. DeBartolo Corp v. Florida Gulf Coast Bldg & Const. Trades Council (p. 671): Part I: Union wants to handbill all entrances to the mall b/c the construction Co is paying substandard wages. Held: Handbilling is not w/in the publicity proviso.  Publicity other than picketing is allowed, whether against P or S.1) Part II: Is this handbilling prohibited under § 8(b)(4)?  Held: No.  Handbills reveal the truthfulness of a labor dispute, are peaceful, and no picketing or patrolling involved.  Not coercive. 

a) First Amendment concerns: Handbilling = pure speech.  Unlike picketing, handbilling is not coercive b/c it relies on its power to communicate with people.i) All handbilling is non-coercive regardless of its substanceii) Diminished the importance of the publicity provisoiii) Essentially, handbilling is protected by the constitution. 

Corral Fall ‘0551

2) Delta Airlines: Ees who cleaned the terminals for Delta Airlines. They handbill the Delta terminals that attack Delta’s safety record, but nothing about the janitorial Ees on strike.  Post-DeBartolo: Not coercive, just speech

a) Under Jefferson Std, could be product disparagement or disloyalty if the Delta Ees were the ones handing out the handbills. Would have been service disparagement if the janitors had criticized the primary Ers business (e.g. by saying the service by the replacement workers sucked)

4. Remedies Against Unions for Violence and Boycottsa. Er’s sanctions against union or Ee b/c of violence

1) Ee discharged or disciplined b/c misconduct is not w/in §7 or §8(a)(1).b. State law

1) Issue injunction 2) Award damages3) Criminal prosecution for violence.  Union liable for violence if they authorize or

subsequently ratify the acts a) Especially if the union officers are involved

c. [if violation of] §8(b)(1)(A):1) Cease and desist order, enforceable by contempt sanction2) Injunction

a) United Mine Workers v. Bagwell: Violence in the mines strike. $52m in fines lodged against the union for violent activity since union fails to observe the injunction. Held: Criminal, not civil, contempt—have a right to a jury trial and need proof beyond a reasonable doubt

i) Huge protection against possible liability3) [if union is trying to enforce its bargain rights], deny a bargain order

d. §303: Labor Management Reporting and Disclosure Act1) Anybody who is damaged by the secondary activity can file for §303 damages.  2) Compensatory damages only 3) Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc./USSR (p. 633): Boycott of USSR goods

lasted 1½ yrs.  Several injunctions issued and some denied under § 10(l).  Businesses filed § 303 damage claims, e.g. Allied Plywood v. Longshoremen, and recovered $8m damage award for lost profits + lost trade opportunities + out of pocket expenses.  

F.  Employer Response to Strike Activity Under the NLRA1. Attempt to get a state court injunction on mass picketing (i.e. to limit ## of picketers, how far

away they stand, etc.)a. Injunctions are part of the psychological warfare of striking/picketing.  Er loses face if they fail.

2. Replacement of Strikersa. NLRB v. Mackay Radio & Telegraph Co (p. 548): Radio-telegraph co in SF. Union bargaining for a CBA.  Union decides to go on strike.  Strike lasts 3 days. Er hired replacement workers from other offices (i.e. transfers) and promised them a permanent job in SF.  Brought 11 transfers and 5 stayed in SF. Thus, @ the end of the strike, there were 6 openings left for reinstatement. 

1) Held: No ULP for hiring permanent replacements, but Er did commit § 8(a)(1) and §8(a)(3) b/c of who got to reinstatement—discriminatory means. 

a)  Strikers are entitled to whatever openings existb) Er must use neutral grounds on choosing which Ees to keep

i) e.g. seniority2) Dicta: Ers can hire replacements during a strike to carry on the business. Also, Er has the right to hire permanent replacements. 

Corral Fall ‘0552

a) Strikers remain Ees by the language of the statute. Even though they are permanently replaced, does not mean that they have been discharged.

b) Irony: If the new Ees are permanent replacements, then the union starts representing those workers since they are technically in the bargaining unit

i) Trend (1980s): To have the replacements file a petition for decertificationii) But, technically, the [former] Ees can still vote on the decertification election since they are still considered Ees, even though they are not currently working

→ But once Ees get substantial employment somewhere else, then they are no longer considered Ees and no longer presented by the union

b. Duty to Bargain during the strike1) Land Air Delivery, Inc. v. NLRB (p. 494): Trucking co w/ teamsters drivers &

independent contractors working together.  13 Ee drivers go on strike.  In the middle of the strike, Er signs new ks w/ independent contractors.  Union offers to return to work.  Er says that there is no work left b/c it has been contracted out entirely.  a) Held: There is a distinction b/t hiring permanent replacements (ok) v. subcontracting (mandatory subject of bargaining).  Thus, Er cannot subcontract w/o bargaining w/ the union.  Duty to bargain during a strike includes a duty to bargain about subcontracting. 

i) Rationale: Subcontracting destroys the bargaining unit b/c they are not Ees of this Er [versus replacing workers which keeps the bargain unit & only changes the people inside of it]

b) Thus, the Er has two options when faced w/ economic strike: permanent replacements or contract work on a temporary basis

c) But if Er makes promises to replacements, then they may have a state law claim if they are replaced once the strikers come backi) Belknap, Inc v. Hale (p. 991): Er hired permanent replacements.  Strike ended.  Union negotiated the reinstatement of the strikers.  But replacements sued the Er on a k theory of wrongful discharge—Er had an express k with the Ees that they would not be laid off, even if the strike ended.

a) This is a ULP by promising the permanent replacements that they would never settle the strike + never be laid off b/c settling the strike is a mandatory topic of bargaining

b) Held: Ees can go fwd w/ wrongful discharge claim—even though Er committed a ULP.  Ers cannot make express promises b/c can have difficulty in state law.

c) nb: Ers can always lay off replacements workers and reinstate the strikers b/c the strikers will trump the replacements based on seniority. 

d) The state law claim arises when the Er makes express promises to the permanent replacements

3. Lockoutsa. Lockout = Er locks the workers out to put pressure on the union to agree to a k

1) Under a lockout, cannot hire permanent replacements—only temporary replacementsb. No express right to a lockout under the NLRA

1) If CBA is in effect, need a 60-day notice to the other party (§ 8(d)(4)).  2) Need to continue working conditions for 60 days. 

c.  Defensive Lockouts1) Buffalo Linen: Multi-Er bargaining unit against one union (like the supermarkets against the union in LA).  Union goes on strike against one Er—whipsaw technique.  Try to bargain k w/ one Er—then go on strike against the next Er and bargain with them.  When this happens, then the Ers will lock the union Ees out. 

a) Defensive lockouts ≠ violate the statuteCorral Fall ‘0553

i) Rationale: Maintains the integrity in multi-Er bargaining2) Seasonal bargaining: When bargain power is greatest at point before the season begins,

e.g. harvest.  In a seasonal industry, Bd/Cts approved locking Ees out so that they could finish negotiating the k before the season rolled around.

d.  Offensive Lockouts1) American Shipbuilding Co. v. NLRB (p. 557): Seasonal business located in the Midwest (where the lakes are frozen in the winter).  Big business = winter –to prepare for the summer. Reached impasse on a bargaining issue.  Er decided to lockout the Ees and lay them off. Ees locked out in August in several cities.  No replacements hired.  New k agreed upon in November (in time for the season). 

a) Held: No ULP.  Since bargaining impasse reached, Er can temporarily shut down the plant and lay off Ees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.i) Offensive lockout—Er’s decision to lock Ees out before the union decides to strike. ii) Does not interfere with the union’s right to strikeiii) Rationale: this lockout is not so inherently destructive of Ees § 7 rights that there is no need to look @ motive. 

a) NLRB v. Erie Resistor Corp (p. 551): Er gave the replacement workers 20+ years of seniority. 

Held: This granting of “super seniority” was so bad, no need to look @ Ee motivation.  Thus, this was an inherent destruction of Ee’s § 7 rights that there is no need to look @ Er motivation.  e.g. of a violation of § 8(a)(3) w/o anti-union motiveb) Thus, American Shipbuilding (p. 557) could change if there was evidence

to show that the lockout was to destroy the union.  c) Here, the evid shows that the Er had been working w/ the union all along + union had a history of strikes

2) Summary of Er’s offensive lockoutsa) MUST HAPPEN AFTER IMPASSEb) CANNOT HIRE PERMANENT REPLACEMENTS

G. The rights of strikers under the NLRA1.  Rights to Reinstatement

a.   General rule: Ers must reinstate strikers who offer to return unless the Er has a legitimate and substantial business reason (e.g. the striker has been replaced).  1) If the striker is not reinstated, he will be placed on a temporary hiring list, and has priority

to be rehired when a position opens upb.   Ees who return to work are considered like replacement workers and cannot be released once

the strikers return1) TWA: Flight attendant strike.  @ end of the strike, strikers want to “bump” the junior Ees

who didn’t honor the strike.  Thus, if using seniority, the strikers should win.  Held: No junior Ees are like replacement workers and cannot be bumped.i) Brennan/Blackmun/Marshall (dissent): Ees taking the work from the strikers—like Mackay.  Under RR Labor Act, TWA shouldn’t have the right to permanently replace. 

2.  Status of Unfair Labor Practices Strikersa.  Laidlaw Corp (p. 569): Economic strike began on January 12.  Massey, Ee, offers to return on January 13.  Told that his job is filled, but even if it were not filled, he would be brought back as a new hire.  January 18: Massey returns as a new hire (i.e. this is NOT reinstatement).  February 11: Union votes and offers to return to work (i.e. end of strike).  Post-February 11: Co offers to hire new Ees.  February 21: Union strikes again b/c of ULP (Co failed to reinstate the strikers and instead hired new Ees—violation of § 8(a)(1) & (3).)

1) re: Reinstatement rights of EesCorral Fall ‘0554

2) re: Conversion to ULP strikea) Key: At what point did the ULPs begin or become a cause for the strike?  (i.e. Ees

striking b/c it was provoked or caused by Er’s ULPs)b) Here, facts are clear when the economic strike ended and the ULP strike began (i.e. February 21)

b. When the character of the strike changes, the rights of strikers change1) Economic strikers

a) Ees can be replacedb) Ees can only collect backpay if there was a vacancy available and Er did not properly reinstate Ee

2) As ULP strikers a) Er has NO RIGHT to permanently replace strikers.  Thus, as soon as Ees are ready to come back to work, the Er must release the temporary replacements b) Ee can have the right to back pay from the date of the strike to the time reinstatedc) ULP strikers have longer voting rights

i) §9(c)(3): “Ees engaged in economic strike who are not entitled to reinstatement shall [not] be eligible to vote …in any election conducted within twelve months after the commencement of the strike…”ii) Thus, ULP strikers can vote after 12 months has passed.iii) Rationale: The Er caused the strike, thus, should make concessions to extend these strikers’ voting rights.

3) BUT Ees can use the right to reinstatement if misconduct happens on the picket line even if they are a ULP striker

a) Misconduct includes: any criminal law violation, physical gesture of misconduct, mere threats unaccompanied by a physical motion

4) Sympathy strikers take on the same status of strikers maintaining that strikec. Key: Union is the one who characterizes the strike since they must declare the strike to the regional officed. Can also have violations of §8(a)(5) for refusal to bargain in good faith during a strike →

During an economic strike, an Er refuses to bargain in good faith, then strike can be converted to §8(a)(5) strike

e.   Cuneo: Bargaining unit of 14 Ees; 11 signed cards Ees make a demand for recognition; co prez refuses.  Union files election petition for recognition at the Regional Office (significant b/c §8(b)(7)—you can strike for recognition for 30 days, unless you file for an election & then you can legally strike until an election has been held. Once the election is held,, then representation picketing is prohibited for one year). Ees on strike for recognition. Company prez tells the Ees that they have 15 minutes to come back to work or else they will be permanently replaced. Next day, Er starts hiring replacements.  Striker Green tries to drive the replacement off of the road; then offers to come back to work.  He is brought back, but is terminated for picket line misconduct.  2 ½ months later, union offers unconditionally to return to work.  No reinstatements until 3 months later, when 2 Ees are reinstated. Once Ees are reinstated, new rules imposed—can’t talk about the union at work and new tardy rules.  1) Possible ULPs

a)  Prez calling Ee into his office & asking him to id who signed the cards + further interrogation

b) Er hiring a Pinkerton guard to observe the picket line and to photograph Ees engaged in peaceful picketing.  i) This is classic surveillance of Ees engaged in lawful activity

c) §8(a)(3): Failure to reinstate despite vacanciesd) §8(a)(3): For only applying the new tardy rule to union members only → discriminatory application

Corral Fall ‘0555

2) Remedies for these ULPsa) Cease and desist order [to stop interrogating, stop surveilling, rescind overly broad no-

solicitation rule, reinstate the economic strikers]b) Ees get backpay from the time the vacancies arosec) Gissel Bargaining Order (b/c there is no election)

i) Since at one point, union had a majorityii) If sequence of ULPs are serious enough such that the possibility of holding a fair election are slight or impossibleiii) Bargaining order can also be retroactive —i.e. back to the date of the demand for recognition

a) Rationale: Any changes to the terms and conditions of employment = unilateral change in violation of the duty to bargain.  Allows union to roll back any conditions of the Ersb) Any unilateral changes → illegal as a violation of §8(a)(5).  c) Also: Creating fictional ULP charges (i.e. §8(a)(5), refusal to recognize and bargain), converts the economic strike to a ULP strike

V. Administering/Enforcing the Collective Bargaining Agreement

The duty to bargain in good faith includes bargaining over the interpretation (as well as the establishment) of aCBA. Settlement of disputes that arise under CBAs can take 3 basic forms:

1) The parties may reach agreement informally – a supervisor or other management officialmay deal directly with the Ee and/or the union rep to arrive at a settlement,

2) The issue maybe settled by an arbitrator – provided the matter in question is arbitrable, or 3) The issue may be taken to court when there is an alleged breach of the CBA – i.e. refusal by one of the

parties to arbitrate

A.   General Info1.  CBA is NOT a labor k; only sets the terms and conditions of employment2.  Under Landrum-Griffin, all Ees are to get a copy of the agreement3.  Model CBA clauses:

a. Union security clause: Requires that all Ees pay dues—not necessarily all have to become membersb. Mgmt rights clause: Gives mgmt power to decide certain conditions of employment, manner of production, etc.c. Title VII clause—prohibiting discriminationd. Seniority clausee. How to post vacancies—usually where skill and ability are relatively equal, seniority will prevailf. Layoff and recall—when replacements are laid off and Ees put back to workg. Ee safetyh. Discipline/causes for discharge—e.g. no discharge except for just causei. No strike and lockout provision—also prohibits sympathy strikes, boycotts, lockout, slowdown

1) Any “local trouble at any time” should be no suspension of work = no-strike provisionj. Grievance and arbitration (see below)

4. Typical private sector term of agreement is 3 yearsa. “Contract bar rule” for elections.  Once the CBA is signed → bar on any other elections. 

1) Can’t have an election to elect a rival union or a de-certification election to get the union out during the life of the CBA

Corral Fall ‘0556

5. In general, only two clauses in typical k are enforceable in court: no strike clause and arbitration of grievances.   All other provisions are enforceable via arbitration .

B. Grievance and arbitration1. General procedure

a. CBA will establish: definition of what constitutes a grievance, the standing of the parties, some time limits to process a grievance, and the scope of the arbitrator’s authorityb. Grievance procedure will have “steps” to attempt to settle the grievance, e.g.

1) b/t immediate supervisor and aggrieved Ee2) b/t production superintendent and union committee3) b/t operations mgr and union committee4) b/t divisional vp and union president5) UNION DECIDES WHAT GOES TO ARBITRATION

c. Unions will search out an arbitrator, via organization like AAAd. If arbitration of a grievance is called for in the CBA, any resort to a strike or other pressure to resolve the disputes, without first using the CBA grievance procedure violates the CBAe. United Steelworkers of America v. Warrior & Gulf Navigation Co. (p. 756) clauses

authorizing the arbitration of disputes involving the ‘interpretation’ or ‘application’ of the CBA are construed very broadly – to cover all disputes other than those explicity withdrawn from the arbitration by the terms of the CBA itself; Doubts should be resolved in favor of coverage—i.e., arbitration.

f. Arbitrators decision is binding1) Arbitrator’s power → only to interpret the k, NOT to decide issues of law (e.g. about

Title VII)i) But, if the CBA has a Title VII clause, it can be arbitableii) But the Ee can still sue separately under Title VII

g. Effect of precedent 1) Participation in arbitration is not a waiver as to subsequent disputes 2) Arbitrators are not bound to follow prior awards, even awards under the same CBA but they generally will where the parties, CBA, and fact situation are the same

2. The NLRB has jurisdiction to resolve unfair labor practices in whatever context they arise; it may happen that a dispute falls within the contractual grievance and arbitration machinery of the CBA also involves an ULP (i.e. work assignment disputes); in this area, the Board may defer arbitration of the dispute

3. The courts, in line with the Board policy, may decline jurisdiction on matters where arbitrable issues are involved too; especially where the CBA contains a mandatory arbitration provision

C. Suits under LMRA §301 for Breach of a Collective Bargaining Agreement1. §301(a): “Suits for violation of contracts b/t an Er and a labor organization representing Ees in

an industry affecting commerce as defined in this Act, or b/t any such labor organizations, may be brought in any district court of the US having jx of the parties…”a. Background/Policy:

1) Norris-LaGuardia sought to get cts out of litigating labor matters.2) But, ambiguous whether CBAs could be enforced by the courts.3) Authors hoped that using the law, instead of strikes, to enforce the CBA would lead to

industrial peace2. §301(b): “…Any such labor organization may sue or be sued as an entity and in behalf of the Ees

whom it represents in the courts of the US.  Any money judgment against a labor organization in a district court of the US shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.”

Corral Fall ‘0557

3. Concurrent jurisdiction in state courts: federal jurisdiction under §301 is not exclusive; state courts have concurrent jurisdiction so that §301 cases may be brought in either federal or state court

a) Federal law applies: state courts must apply federal substantive law to the issues involved b) Exception: state statutes of limitations must apply as there aren’t and fed SOLs4. Textile Workers Union of America v. Lincoln Mills of Alabama (p. 791/792): Union suing in

federal court to get the Er to follow the CBA and to compel arbitration. Union files grievances and Er refuses arbitration; no-strike clause also present.  Issue: Is §301 merely jurisdictional or substantive?a. Held: §7 of the Norris LaGuardia Act does not apply to a suit for specific enforcement of a promise to arbitrate. But the court then held that no injunction could be issued by a federal court to enjoin a strike in violation of a no-strike clause, of a CBA. Rationale:

1) If §301 is jurisdictional, then it is unconstitutional b/c it is trying to give federal courts jurisdiction over k law (i.e. traditionally a state law function)(a) Also, if only k law applied, then cannot get specific performance for b/k –only

damages. Thus, §301 must be creating new law2) Importance of CBA in stopping industrial strife. Specific performance is the most direct

and immediate way of assuring enforcement 3) Held that §301 authorizes federal courts to fashion a body of substantive law (federal

common law) for the enforcement of CBAsb. Substantive law of § 301 = federal law

1) State law is compatible with §301. Any state law will be absorbed by federal law—as the “federal c/l.” 

2) Practical effect: Everything referred to the arbitratorsc. Commerce clause → source for constitutionality of §301d. Norris-LaGuardia does not apply.   It was only to stop enjoining strikes—not specific

performances of CBA.e. Justice Frankfurther (dissent): §301 does not create any substantive rights

1) Attacks notion of judicial inventiveness2) History indicates that courts keep out of the labor disputes. 

5.  Local 174, Teamsters v. Lucas Flour Co. (p. 752): Teamsters union called strike to protest discharge of Ee and invoked the arbitration clause. No-strike clause not present in CBA.a.  Held: § 301 will preempt state law. State ct still has jx, but must apply the federal lawb.  Will imply a no-strike promise by union in exchange for Er’s promise to arbitrate . 

1) This exchange is w/in the “basic policy of national labor legislation to promote the arbitral process as a substitute of economic warfare.”

2) Labor Bd cannot imply the agreement, but the S.Ct can6. Groves v. Ring Screw Works (p. 753): No provision for arbitration, but a limited no-strike clause

(i.e. only as a last resort). Nothing settled, but union refuses to strike. Ees discharged—argue that they were not discharged for causea. Held: Ees are NOT required to strike.  Since there is no arbitration clause, no deferral to arbitration.  Federal courts will not imply an arbitration clause. Thus, federal courts can adjudicate this matter.  b. Federal courts can adjudicate a grievance IF the CBA does NOT have an arbitration clause

7. Steelworkers Trilogy: a. American Manufacturing (p. 753): Ee is disabled and wants to return to work. Er says that he cannot work. CBA has an arbitration agreement w/a no-strike clause. Union sues to compel arbitration.

1) Held: Compels arbitration. Agreement was to submit ALL agreements to arbitration—not only meritorious claims. 

Corral Fall ‘0558

a)  “The courts have no business weighing the merits of the agreement”b) “Function of the courts is very limited when the parties have agreed to submit all

questions of contract interpretation for the arbitrator.”b. Warrior & Gulf Navigation (p. 756): Union grievance over contracting out work. Union sues to compel arbitration. CBA has a no-strike/no-lockout clause & mgmt clause—if dispute is strictly a function of mgmt, then cannot arbitrate it. Arbitration clause read: “Should differences arise or should any ‘local trouble of any kind arise,’ there should be no suspension of work, but process to settle it, culminating in arbitration.”

1) Ct: Broad arbitration clause here. BUT, ct cannot interpret the k; can only decide whether there is an arbitration clause & if so, the dispute must go to an arbitrator. 

c. Enterprise Wheel (p. 775): Arbitrator issued an award and Er doesn’t like it. Cts may NOT review the merits of the arbitrator’s award. As long as the arbitrator had the power to issue the award, then cannot reverse the award. 

d. Summary:1) Funnels §301 to the arbitrator, then the arbitrator has the broad power to interpret the CBA.  2) Fed cts to defer to arbitration3) Policy under §301: If CBA has an arbitration clause, then all doubts decided in favor

of arbitration.  Federal cts CANNOT IMPLY an arbitration clause; the agreement to arbitrate grievances must be expressed in the k.

4) When people sue in federal court to enforce CBA, federal courts should compel arbitration unless specific language excludes arbitration.  Resolve all doubts in favor of arbitration.

5) After arbitration is over, federal courts may not review the merits of arbitration8. Eastern Associated Coal Corp. v. United Mine Workers, District 17 (p. 781): Long-time truck driver flunked a drug test. Arbitrator reinstates Ee on 3 conditions (suspension, drug abuse program, must undergo regular drug tests). Then after passing 4 drug tests, tests positive.  Er discharges him, and case goes to arbitration. Arbitrator then reinstates Ee w/5 [more severe] conditions.  Er brings suit in federal court to vacate the arbitrator’s award on grounds that reinstatement is against public policy. 

a.  Held: Defer to arbitration agreement/award. The arbitrator’s award is part of the CBA.  1)  → b/c the Er agreed to binding arbitration, Er has agreed to allow the arbitrator to decide

the remedy for disciplineb. Violation of public policy:

1) No violation of any regulation or positive law--2) Dept of Transportation’s policy of rehabilitating drug offenders3) IMPLIES that ct may be able to overturn an arbitrator’s award if it was in express

violation of a regulation or statutea) Arbitrators are not bound by public law—only the private law of the CBA itself

i) E.g.: Sexual harassment case, where after-acquired evidence comes forth after discharge. Ee has previously unblemished work record. Arbitrator’s holding: Reinstatement after suspension. Er wants to vacate the order b/c this conduct violates Title VII.  Ct: Further harassment is violated by Title VII, but not reinstatement by harassers. Reinstating harassers is not a violation of law.

a) But, in this case, Co can reinstate Ee for one day and then discharge Ee the next day for the other cases. Co is not bound by the SOL.

b) Union should negotiate protection for women w/the company since women are also in the bargaining unit

c) Women can sue under Title VIIc. NB: unions usually arbitrate discharges b/c they fear suit for violating the duty of fair

representation if they failCorral Fall ‘0559

d. United Paperworkers Union v. Misco (p. 786): Ee found in the car w/another Ee smoking pot. Arbitrator’s holding: Not sure that the joint was really this Ees’1) Ct: Defer to arbitrator2) However, ct can decline to enforce decisions procured by the parties through fraud or

through the arbitrator’s dishonesty9. Litton Financial Printing Division v. NLRB (p. 66): CBA expires in October 1979. Co decides to restructure work and layoff a bunch of Ees. Lay-offs in September 1980. Under expired CBA, must layoff people as skills and ability are equal, by seniority. Union demands arbitration and Er refuses b/c CBA expired. Union also files ULP claim w/Bd for §8(a)(5) and §8(d)—i.e. Co made a unilateral change, the decision not to arbitrate. 

a.  Issue: Is the decision to arbitrate a condition of employment that continues beyond the life of the CBA?

1) Bd: Promise to arbitrate ends w/the k—unless there is an express promise to arbitrate beyond the life of the k. Will not imply this promise

a) Union security, dues check off, and no-strike clauses also end with the kb. 2d Issue: Is there an agreement to arbitrate after the k is expired?

1) Bd: No, layoffs happened nearly one year after the disputes. No promise in the expired agreement to continue to arbitrate issues that come up after the k has expired.

2) Turn on whether the decision to arbitrate “arises under” the k10. In general, federal courts defer to arbitration

a. Exception: Union’s breach of duty of fair representationD.  Use of Injunctions to Enforce a No-Strike Clause v. the Norris-LaGuardia Act

1. Norris LaGuardia: Federal courts cannot enjoin strikes except in small exceptionsa. Brotherhood of R.R. Trainmen v. Chicago River & I R Co. (p. 790): Under RR Labor Act, minor grievances sent to the RR Adjustment Bd (like a private arbitrator).  Ct: Enjoined a strike to enforce the jx of the adjustment Bd & resolve the minor disputes. 

2. Boys Markets, Inc. v. Retail Clerks Union, Local 770 (p. 792): Non-union bargaining workers rearranged merchandise in the frozen food section (i.e. typically union work). Union protested that union members should do the work. Er went to the state court to get an injunction. [State courts not bound by Norris-LaG b/c getting an injunction is a procedure, so state law applies]  Union then removed case to federal ct b/c the case “arose under” federal substantive law. [since §301 is substantive]; the court reasoned that in conferring jurisdiction on federal courts with respect to breaches of the CBA, §301 impliedly repealed the anti-injunction provisions of LaGuardia in this area.

a. Under the current scheme, state courts are ousted of their jurisdiction. BUT, §301 was not intended to strip the state cts of their jx over this matter. 

b. Held: Fed ct can grant injunctive relief under §301 IF1) Grievance is over issue both parties are bound to arbitrate—i.e. arbitrable agreement2) Er should be ordered to arbitrate as a condition of getting the injunction; Er must agree to arbitration3) TEST: MUST MEET ALL FOUR a) A mandatory grievance and arbitration procedure in the CBA – ask yourself: “what is

the underlying issue that the strike is about? What would it take for the strike to end?”, b) A dispute that is arbitrable, c) A likelihood of irreparable harm to the Er if the strike continues, AND d) Injury to the Er that will exceed any harm to the union from being enjoined4) Even if the strike is in response to an ULP, it can still be enjoined

c. Criticisms of the decision 1) Policy: “Obey, then grieve”: a principle of workplace practice which requires that

employees at an employer site comply with an order of the employer or his/her Corral Fall ‘0560

representative regardless if they consider the order violative of provisions in the CBA. After they have complied then may they grieve the order given to resolve its merits or validity under the labor contract. This is so as to avoid the use of extra contractual methods by workers which would be the equivalent of worker self help.( Ford Motor Co. - (Chicago Stamping Plant) v. NLRB (p. 446))

2) Arbitration may come years down the road—if mgmt fails to resolve the grievance3) Can try and bankrupt the union by referring everything to arbitration. Then unions have no

recourse4) Will only work for powerful unions

d.  Limits of Boys Market: Injunction will not be against every strike under the CBA1) Buffalo Forge Co. v. United Steelworkers of America (p. 801): Clerical and technical Ees on strike to negotiate a first-contract. Steelworkers refused to cross the picket line set up by the clerical and tech Ees (i.e. sympathy strike). Er sought an injunction against the steelworkers as a violation of their no-strike clause.

a) Held: No injunction b/c this is not an arbitrable dispute. Underlying issue: clerical and tech workers trying to get a k. This is not arbitrable b/t steelworkers and Er. 

e. Reverse Boys Markets: f. Other remedies for Er [when union on strike in violation of no-strike clause]

1) Self-help: Discharge striking Ees b/c of breach of k is NOT PROTECTED2) Er can sue for damages b/c this is b/k3) BUT Brennan: these are not effective remedies. Need an order for people to return to work.

g. Reverse Boys Markets : union tries to get an injunction against the employer; reverse boy markets are much harder than regular boys markets; union is trying to get a determination before the arbitrator has a chance to rule; union argues that the damages would be irreparable at law so injunction should be issued; employer says the principles of equity are in their favor

Individual and Union Liability under a No-Strike Clause:

Sinclair Refining Co. v. Atkinson (p. 791): Held that when a union is liable for damagefor violation of the no strike clause, its officers and members are not liable for thesedamages. Rationale: Based on Section 301(b) of the LMRA b/c the court interpreted it asa congressional reaction to cases such as Danbury Hatters, (supra). OVERTURNED BY BOYS MARKETS

Complete Auto Transit, Inc. v. Reis (p. 804): Individual employees are not liable for damages resulting from wildcat strikes—unauthorized by the signatory union—in violation of a no-strike clause in a CBA. Reasoning: that Section 301(b) of the LMRA indicates congress’ intent to shield individual employees from liability for damages arising from their breach of the no-strike clause of a CBA, whether or not the union participated in or authorized the illegality—wildcat strikes.

Carbon Fuel Co. v. United Mine Workers (p. 804): Where local unions call wild-cat strikes not authorized by the national/international unions the principal unions will not be found liable absent a showing that they adopted, encouraged or prolonged the strikes or were otherwise responsible by virtue of common law principles of agency. Rationale: Sections 301(b) and (e) were held to supplant both the narrower test for union liability under of the Norris Laguardia Act and the broader test of responsibility for employers under Section 2(2) of the Wagner Act. Also no liability for failure to use reasonable means to control the local unions’ actions in breach of the CBA

Corral Fall ‘0561