A Primer

on American
Labor Law
fourth edition

William B. Gould IV
A Primer on American Labor Law
Other books by William B. Gould IV

Black Workers in White Unions: Job Discrimination in the United States.

Cornell University Press, 1977.
Japan’s Reshaping of American Labor Law. MIT Press, 1984.
Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law.
Greenwood Press, 1985.
Labor Relations in Professional Sports (with Robert C. Berry and Paul
D. Staudohar). Auburn House, 1986.
Agenda for Reform: The Future of Employment Relationships and the
Law. MIT Press, 1993.
Labored Relations: Law, Politics, and the NLRB—A Memoir. MIT
Press, 2000.
Diary of a Contraband: The Civil War Passage of a Black Sailor.
Stanford University Press, 2002.
International Labor Standards: Globalization, Trade, and Public Policy
(with Robert J. Flanagan, ed.). Stanford University Press, 2003.
A Primer on American Labor Law
fourth edition

William B. Gould IV

The MIT Press, Cambridge, Massachusetts, and London, England

For Ed, who always wanted me to write a book that would reach a
large and diverse audience.

( 2004 Massachusetts Institute of Technology

All rights reserved. No part of this book may be reproduced in

any form by any electronic or mechanical means (including
photocopying, recording, or information storage and retrieval)
without permission in writing from the publisher.

This book was set in New Baskerville on 3B2 by Asco Typesetters,

Hong Kong, and was printed and bound in the United States of
America.

Library of Congress Cataloging-in-Publication Data

Gould, William B.
A primer on American labor law / William B. Gould IV.—
4th ed.
p. cm.
Includes bibliographical references and index.
ISBN 0-262-07250-5 (hardcover : alk. paper) —
ISBN 0-262-57218-4 (plk. : alk. paper)
1. Labor laws and legislation—United States. I. Title.
KF3369.G68 2004
344.7301—dc22 2003070610
Contents

Preface to Fourth Edition vii

Preface to Third Edition xi
Preface to Second Edition xvii
Preface xix

1 An Overview 1

2 Industrial Relations and Labor Law before Modern

Legislation 9

3 The National Labor Relations Act 27

4 Unfair Labor Practices 49

5 Establishing the Collective Bargaining Relationship:

Organization and Recognition 65

6 Economic Pressure and Bargaining Tactics in the

Established Relationship 97

7 Remedies and the Labor Reform Bill of 1978 129

8 Dispute Resolution in the Established Relationship

139
 9 The Duty of Fair Representation 169

10 The Public Sector 185

11 Public-Interest Labor Law 197

12 Conclusion 233

Notes 237
Index 375

vi Contents
Preface to Fourth Edition

The period of time between the third and fourth editions

constitutes the longest period between any of the editions
of this book published thus far. Much of the discussion of
the National Labor Relations Act relates to decisions and
policy changes instituted by the National Labor Relations
Board when I was its Chairman, appointed by President
William Jefferson Clinton on June 28, 1993, and confirmed
by the Senate on March 2, 1994. As noted in this fourth
edition, perhaps the most important development during
my tenure was a sharp and unprecedented upsurge in cases
brought under the Board’s injunctive authority set forth in
Section 10( j). The focus on the NLRA in this edition is
also upon a number of important policy decisions issued
during my tenure as well as those submitted to the Board
while I was Chairman, but decided only subsequent to my
departure.
Similarly, there is discussion of Supreme Court decisions
involving the National Labor Relations Act both prior and
subsequent to my tenure. I have chronicled the events pre-
ceding my appointment, between appointment and confir-
mation, and during my four and a half years as Chairman in
Labored Relations: Law, Politics, and the NLRB—A Memoir. In-
sofar as relevant to the work of the National Labor Rela-
tions Act, this fourth edition attempts to chronicle only the
 decisions and policy changes without reference to much of
the political drama surrounding them. For the latter, the
reader can consult Labored Relations.
For the same basic reasons alluded to in earlier editions,
union representation during these past eleven years has
continued to decline to 13.5 percent, 9 percent in the pri-
vate sector and 37.4 percent in the public sector. As was the
case in previous editions, courts of general jurisdiction at
the state level have continued to establish job security rights
as an exception to the principle that the contract of em-
ployment is terminable at will. In the 1990s and at the turn
of the century, however, the courts have begun to address
employer-devised arbitration procedures designed to sub-
stitute that forum for individual claims involving unfair dis-
missals for courts and jury trials. This constitutes one of the
new frontiers of not only judicial decision-making but also
the policy debate in the political arena.
As anticipated in the third edition, the Americans with
Disabilities Act of 1990 became an important area of litiga-
tion. But in virtually all cases, the United States Supreme
Court rejected the positions of plaintiffs. In addition to
cases involving sexual orientation, some of them arising out
of President Clinton’s 1993 ‘‘don’t ask, don’t tell’’ policy
applicable to the military, the number of sexual harass-
ment cases increased enormously, most of them involving
alleged harassment of women by men. Much new law was
made as a result of the Civil Rights Act of 1991 at both the
Supreme Court and Circuit Court of Appeals level. This was
attributable to the 1991 amendments’ provision for com-
pensatory and punitive damages triggered by the 1991 Anita
Hill hearing relating to Justice Clarence Thomas. Some of
the cases involved alleged same-sex harassment. And the
Supreme Court’s 2003 holding that private homosexual
conduct between consenting adults is protected by the
Constitution1 will fuel the campaign to make antidiscrimi-
nation laws fully applicable to gay and lesbian people.
Labor conflicts in the professional sports arena continue
to be an important part of labor-management controversy.
A new comprehensive collective bargaining agreement was

viii Preface to Fourth Edition

 negotiated in football and baseball (though baseball did
endure a substantial strike, unprecedented in length, dur-
ing 1994–1995). The basketball owners successfully insti-
tuted a lockout in 1998–1999, the result of which ushered
in new salary cap restraints as part of the agreement in that
sport. Collective bargaining agreements were negotiated in
women’s professional basketball.
The Curt Flood Act of 1998 made the same antitrust
standards previously applicable to other sports’ labor-
management relations apply to the realm of labor activities
in baseball, but a 1996 Supreme Court decision narrowed
the scope of antitrust law and pronounced the preemi-
nence of labor law in all sports.2 However, in 2002, the Ma-
jor League Baseball Players Association and Major League
Baseball were able to resolve their differences by negotia-
tion unlike the case in 1994–1995 when the sport was deci-
mated by a substantial strike.
An important new frontier has emerged as the result of
globalization and increased focus on human rights and in-
ternational labor standards.3 This is the extraterritorial
application of American statutes to the conduct of corpo-
rations doing business abroad.4 Unions, corporations, and
nongovernmental organizations are the major participants
in this debate which is on the streets (1999 in Seattle is the
most prominent illustration), as well as in the courts.
Finally, in 2002, California became a pioneer by enacting
the first paid-leave statute in the country, following up on
President Clinton’s establishment of unpaid leave a decade
ago through the Family and Medical Leave Act of 1993.
Shortly thereafter, former governor of California Gray Davis
signed into law new legislation providing for mediation
and arbitration for farm workers—they continued to be
excluded from the National Labor Relations Act—when
employees were unable to negotiate a collective bargaining
agreement.
In this fourth edition, I am indebted to Stanford Law
School students Paul Berks ’00, Paul Edenfield ’02, Michael
Meuti ’03, William Adams ’04, and Glenn Truitt ’05; Carrie
Williamson of Boalt Hall School of Law ’03; and Timothy

ix Preface to Fourth Edition

 Snider of Willamette University College of Law ’03 for pro-
viding research assistance. Mr. Adams played a particularly
important and outstanding role in the latter stages of work
on this new edition. I am also grateful to Sarah Preston of
the London School of Economics for both outstanding
research and the typing of this manuscript, and to Kim
Dempsey for typing assistance. Similarly, I am appreciative
of the typing done by Mary Ann Rundell at the final stages
of this fourth edition.

x Preface to Fourth Edition

Preface to Third Edition

There have been numerous developments since the second

edition of this book appeared seven years ago. Inevitably
there is a seemingly endless train of litigation before the
National Labor Relations Board. The Board now appears to
be less ideological and more balanced than at the time of
the second edition and thus its decisions and conduct as of
the end of 1992 are less controversial than was the case
throughout most of the 1980s. Though some of the deci-
sions are significant and thus worthy of attention in this
third edition, the shrinking percentage of employees rep-
resented by unions in the United States—it is now approxi-
mately 15% of the work force—has reduced the Board’s
impact and influence and that of the American labor arbi-
tration system as well.
Deregulation in transportation has produced nonunion
competition for the organized sector, and that in turn ap-
pears to be primarily responsible for more litigation in the
organized sector of those industries. One of the conse-
quences of deregulation is thus the emergence of new pre-
cedent under the Railway Labor Act, which covers both
railroads and airlines.
Nature abhors a vacuum and individual rights—both of
the statutory and common law variety—have continued to
expand for unorganized employees who constitute the vast
 majority of the work force in the United States. Wrongful
discharge litigation is even more important in this arena
than it was at the time of the second edition. Although
there have been important state supreme court decisions in
jurisdictions like California and Michigan which have lim-
ited employee rights and remedies, a new line of authority
—again, emphasizing the relationship between the unorga-
nized and organized sectors—has sanctioned the filing of
wrongful discharge actions under certain circumstances by
employees who are represented by unions and covered by
collective bargaining agreements containing clauses that
provide for the invocation of arbitration procedures. The
complete impact of these decisions has yet to be felt.
Moreover, intertwined with many of the wrongful dis-
charge common law actions are drug and alcohol testing
issues involving dismissals or sometimes simply the institu-
tion of new policies that might lead to dismissals. (Unions
have been active in protecting such individual rights both
under the National Labor Relations Act and the Railway
Labor Act as well as in arbitration.) Although Montana has
enacted a wrongful discharge statute discussed in this new
edition, no state thus far has fashioned a comprehensive
statute in this arena notwithstanding proposals by a Cali-
fornia state bar committee in 1984 (the author was co-
chairman of this committee) as well as more recent ones of
a similar nature emanating from the Uniform Law Com-
missioners. But Congress and the state legislatures have
enacted a series of statutes affecting employment relation-
ships—two of the more prominent being the Workers’
Adjustment and Retraining Notification Act of 1988 and
the Employee Polygraph Protection Act of 1988. The
former law modestly emulates legislation and case law al-
ready in existence in western Europe and Japan which
provides employees with notice, consultation, and other
rights in connection with layoffs triggered by economic
considerations.
But two of the most important legislative ventures have
provided for new forms of protection against discrimina-
tion. The Americans with Disabilities Act of 1990 provides

xii Preface to Third Edition

 far reaching protection against discrimination in employ-
ment for both the physically and mentally handicapped. In
October of 1991, after two years of bitter dispute, a Demo-
cratic Congress and President George Bush agreed upon
amendments to title VII of the Civil Rights Act of 1964 in a
new law, the Civil Rights Act of 1991 (sometimes referred to
as the Danforth-Kennedy Act). This Act was triggered by a
series of Supreme Court decisions in 1989 and 1991 which
interpreted civil rights legislation in a narrow fashion and
the new legislation was a manifestation of Congress’ dis-
agreement with the Court in this arena.
The Civil Rights Act of 1991, however, went beyond re-
versal of Supreme Court decisions. It allowed for applicants
and employees to obtain punitive and compensatory dam-
ages already available in racial discrimination and wrongful
discharge actions in sex, religious, and disability discrimina-
tion cases. Many believe that the debate about the new law
increased the attention given to sexual harassment in the
workplace and the Senate Judiciary Committee hearings
involving the confirmation of Justice Clarence Thomas to
the United States Supreme Court—Justice Thomas was
alleged by Professor Anita Hill to have sexually harassed her
when she was employed by the Equal Employment Oppor-
tunity Commission—triggered the statute’s enactment with
its newly established remedies for sexual harassment as well
as other forms of discrimination.
Although federal legislation and most state laws do not
address the issue, more focus is now being provided to dis-
crimination on the basis of sexual orientation against men
and women who are homosexuals. In California, where the
issue has been particularly prominent, Governor George
Deukmejian and Governor Pete Wilson have vetoed legisla-
tion that would have prohibited this kind of discrimina-
tion in the workplace. (However, in 1992 Governor Wilson
signed into law more legislation that is slightly more limited
than that which he had previously vetoed.) This, like the
kind of discrimination addressed by the 1990 and 1991 fed-
eral statutes, will continue to receive attention throughout
this decade.

xiii Preface to Third Edition

 The Family and Medical Leave Act of 1993, signed into
law by President Clinton on February 5, addresses issues
that possess some relationship to antidiscrimination law. It
provides that employers with fifty or more workers are
obliged to allow employees to have up to twelve weeks of
unpaid, job-protected leave to take care of a newborn or
newly adopted child, to take care of a sick child or parent,
or because of an employee’s own serious health problem.
Under fair employment practices legislation, frequently
such leaves could be obtained only if it could be shown that
the policy was sexually discriminatory.
A particularly interesting development is a consent de-
cree entered into between the United States Department of
Justice and the International Brotherhood of Teamsters
which provided for highly detailed governmental supervi-
sion of union elections as well as substitution of the secret
ballot box direct election procedure for the indirect elec-
tion of national leaders at a convention. Of course many
other labor organizations provide for indirect election of
leaders. But the teamsters’ consent decree should not only
enable reform inside that union and deal with problems of
corruption, but it also may have implications for the labor
movement and encourage secret ballot box internal union
procedures.
While the labor movement has had more than its share of
difficulties in the United States in the past couple of de-
cades, one small but highly visible segment has gone from
success to success. It consists of the unions that represent
professional athletes, particularly the Major League Base-
ball Players Association1 and the National Basketball Players
Association. These unions have negotiated collective bar-
gaining agreements that have facilitated average compensa-
tion in the million dollar range. Even the football players,
without a union since their 1987 strike,2 have been able to
improve their position by virtue of antitrust litigation3 and a
new collective bargaining agreement negotiated early in
1993.
Finally, one of the most important issues in the 1990s and
the early part of the next century is likely to be whether the

xiv Preface to Third Edition

 American industrial relations system can become more co-
operative rather than adversarial. The Board’s 1992 Elec-
tromation, Inc.4 decision is but the first of a number of
decisions dealing with the unlawfulness of employer-assisted
or inspired employee committees that operate in a non-
union environment and sometimes where a union can
exist as exclusive bargaining representative. This will be an
issue that will be discussed both in the courts and in the
Congress.
I am indebted to Sheila Cohen, Barry Deonarine, Timo-
thy S. Gould, and Henry Y. Dinsdale for research conducted
in connection with the third edition, as well as Kathleen
Schneider who has not only typed the manuscript but
played a major role in the technical problems as well as
legal research involved in organizing a newer edition such
as this one. Mr. Dinsdale—a distinguished Canadian labor
lawyer in his own right and a JSD candidate at Stanford—
has been especially helpful in providing me with a number
of memos that have served both to update information pre-
viously presented in the first and second editions and to
address issues covered for the first time in this one.

xv Preface to Third Edition

Preface to Second Edition

There have been a number of significant developments in

labor law since 1982, when the first edition of this book was
published. In industries confronted with deregulation or
with foreign competition, the advent of concession bar-
gaining (coupled, in some instances, with new limitations
on management’s prerogatives) has changed the labor-
management landscape. Numerous decisions—many too
inconsequential to be mentioned in a book such as this—
have been issued by the National Labor Relations Board
(whose composition and outlook changed dramatically be-
fore the end of President Reagan’s first term) and the
Supreme Court. Indeed, the labor movement’s disillusion-
ment with the NLRB prompted AFL-CIO President Lane
Kirkland to opine about the desirability of repealing the
National Labor Relations Act.
The decline of the labor movement to approximately 19
percent of the work force has led to unprecedented soul-
searching on the part of labor.
An interesting by-product of the decline of organized
labor has been the growth in the importance of the rights
of individual employees outside the union environment.
Wrongful-discharge litigation initiated by nonunion em-
ployees has become the most discussed issue in the field of
labor law.
 As I have reflected on the changes for this second edi-
tion, I have found the comments and criticisms of Reinhold
Fahlbeck, Professor of Law at the University of Lund and
the Stockholm School of Economics and Visiting Fellow at
the Stanford Law School, particularly insightful. Professor
Fahlbeck, a Swedish labor lawyer with expertise in American
Labor Law, has been both generous and unrelenting, and I
am most grateful to him.
I am also grateful to Joseph Costello and Elizabeth Smith
of the Stanford Law School for providing material for the
notes, and to Mary Ann Loughram and Maxine Emery for
their skillful typing.

xviii Preface to Second Edition

Preface

The idea of this book grew out of lectures that I gave in the
early 1970s at the AFL-CIO Labor Studies Center in Wash-
ington, DC, and at the University of Illinois Institute of In-
dustrial Relations in Champaign, Illinois. The audiences
were trade unionists (mostly local officers and shop stew-
ards), and the subject was labor law and labor arbitration.
The discussions were lively and the questions stimulating. I
became aware that many people had an institutional incen-
tive to learn about labor law, and I quickly realized that the
existing literature was not reaching them; in fact there re-
ally was no book aimed specifically at such an audience.
This impression was confirmed by a series of talks that I
gave to similar audiences at the Institute for Industrial
Relations at the University of California at Berkeley. My
contact with corporate representatives at some of the insti-
tute’s functions made it clear that both sides of the bar-
gaining table were interested in obtaining a basic outline of
the labor-law system, one that would not be so encyclopedic
as to be intimidating.
In the mid-1970s I began to lecture on American labor
law to labor academics, American-studies specialists, trade
unionists, employers, and government officials in various
countries in Europe, Asia, Africa, and Latin America. In
most of these countries I was asked to recommend a book
 that provided foreigners with an outline of American labor
law. My inability to recommend such a book finally induced
me to write A Primer on American Labor Law. Structured
seminars sponsored by the U.S. Department of State and
the U.S. International Communications Agency in such
countries as India and Brazil and lectures given under the
auspices of the Kyoto American Studies Seminar helped or-
ganize my thinking for this book, as did some of my lectures
to my Labor Law I classes at the Stanford Law School.
There are other books on American labor law that are
more detailed and involved than this one. Readers who wish
to go farther should consult the lengthier volumes aimed
at university students, such as Labor and the Law by Charles
O. Gregory and Harold A. Katz (third edition), or those
written for American academics and lawyers, such as Basic
Text on Labor Law by Robert A. Gorman and The Developing
Labor Law, edited by Charles Morris. Those who desire to
explore employment-discrimination problems further may
wish to consult my Black Workers in White Unions: Job Discrim-
ination in the United States. The most encyclopedic text in this
area is Employment Discrimination Law by Barbara Schlei and
Paul Grossman. The best case book aimed at American law
students as of this writing is Employment Discrimination Law:
Cases and Materials by Arthur B. Smith.
A Primer on American Labor Law is more descriptive than
analytic. It is intended for those who would not otherwise
be exposed to the American labor law system: labor and
management representatives, foreigners, neutral parties
involved in labor dispute resolution and having a special
interest in the United States or industrial relations, general-
practice lawyers who occasionally represent a union or a
company but are not specialists in the field, students of
labor relations and labor law, and even practicing labor-
law specialists who have some interest in a brief compari-
son with foreign systems.
Many people have helped make this book a reality. My
audiences and classes made me think and rethink my mate-
rial and its presentation. William Keogh of the Stanford Law
School, Robert Flanagan of the Stanford Business School,

xx Preface
 and the late Norman Amundsen of the University of Cal-
ifornia’s Institute of Industrial Relations read and com-
mented on my drafts. I am grateful to the Stanford Law
School students who provided valuable research and note
material: Debra Roth, Todd Brower, Alan Reeves, and
Karen Snell. I am particularly appreciative of the work done
by Mr. Reeves, who suggested some textual changes and
shouldered the major burden of the notes. And it would
have been impossible to produce this work without the ex-
tremely valuable and skillful typing and organizational work
of Clarie Kuball and Mary Enright.
The research for this book was supported by the Stanford
Legal Research Fund, which was made possible by a bequest
from the estate of Ira S. Lillick and by gifts from Roderick E.
and Carla A. Hills and other friends of the Stanford Law
School.
Finally, I could not have completed the book without the
patience of my wife, Hilda, and my three sons, Bill, Tim,
and Ed, during my long absences abroad and in my office at
the Stanford Law School.

xxi Preface
 1
An Overview

American labor law and the American industrial relations

system have a symbiotic relationship, and neither can be
understood without reference to the other. This should
come as no surprise; after all law, lawyers, and litigation play
a major role in our society. Our collective bargaining system
has been devised predominantly by labor and management,
however, not by the government and the courts. In fact we
often forget—and foreign observers fail to grasp—that our
most important tool in the resolution of labor disputes is
our private arbitration system, which operates outside the
formal legal system of courts and administrative agencies.
Before examining the history and substance of American
labor law, then, let us begin with their impetus in the
American industrial relations system: organized labor.
As a result of the evolution of the industrial relations
system in the United States, the unions have a remarkably
different attitude toward law than, for instance, those in
Britain. This is not to say that American trade unions do not
have a healthy and often well-founded distrust of lawyers;
one can see this attitude manifested in countless ways. But
the unions are not against the law here. And this is because
the American unions—especially the industrial unions that
emerged during the Great Depression of the 1930s—
obtained political power before industrial power. American
 unions were willing and eager to look to the law as a useful
adjunct to their growth and the achievement of recognition
and bargaining relationships with employers.
Trade unionism came late to the United States. There
were stirrings among American workers toward the end
of the nineteenth century (particularly in the 1880s), first
under the banner of the Knights of Labor which attempted
to organize unskilled as well as skilled workers (a ven-
ture doomed to failure). The second major effort was by
the American Federation of Labor (AFL), initially led by
Samuel Gompers, who espoused an approach to trade
unionism that focused on what labor could achieve at the
bargaining table. The AFL, a central federation to which
various unions were attached, strove to avoid becoming for-
mally affiliated with a political party as the European unions
had. Gompers’s refrain, ‘‘We shall reward labor’s friends
and punish its enemies,’’ reflected a philosophy that in-
volved labor in the political process with political parties but
did not provide for formal affiliation. To this day, how-
ever, the AFL-CIO, the umbrella organization for national
unions, plays an active political role; except in 1972, the
AFL-CIO has supported every Democratic party presidential
candidate since Adlai Stevenson.
At the turn of the century, the power and prestige of
Gompers and of the AFL were being used on the behalf of
skilled craftsmen organized on an occupational basis. The
masses of workers, who had often been shunned by the craft
unions as unorganizable, were not affiliated with major in-
dustrial unions (or with unions of any kind) until the 1930s.
At that juncture new unions, such as the United Auto
Workers, the United Steelworkers, and the United Rubber
Workers, came forward. They sought to organize and rep-
resent production workers and skilled tradesmen under the
umbrella of a new federation, the Congress of Industrial
Organizations (CIO), and they grew with the law. To some
extent their structure was shaped by the law as the National
Labor Relations Board, operating under the National Labor
Relations Act, fashioned units or categories of job classi-
fications, for the purpose of bargaining on an industrial ba-

2 Chapter 1
 sis, that permitted the inclusion of semiskilled and unskilled
workers in the same bargaining unit with tradesmen.1
All of this is in contrast with the history of organized
labor in Britain, where great general unions that orga-
nized workers without regard to job classification or indus-
try reached out to organize the semiskilled and the unskilled
through the ‘‘new unionism’’ of the 1880s. In Britain the
unions had industrial power before political power, and so
they used their position and strength to fend the law off and
to keep it out of their affairs. This was a central thrust of
labor legislation in the first Asquith liberal government, in
which the trade unions had some influence. The Trades
Disputes Act of 1906 was designed to create immunity in the
courts for trade-union activities.2 In the United States a
similar policy of laissez-faire was adopted at the time of the
Norris-LaGuardia Act3 but was quickly abandoned in 1935
with the passage of the National Labor Relations Act, which
provided for the right to engage in collective bargaining.
For better or for worse, to this day the American trade
unions continue to look to the law, and to the National
Labor Relations Board in particular, for sustenance.
Another important feature of the American industrial
relations system is that it is (again, by European standards)
a decentralized bargaining structure. In Europe, particu-
larly on the continent, the pattern is multiemployer or
industry-wide bargaining. In Germany the primary function
of the unions since World War II has been to bargain re-
gional tariffs or agreements establishing a minimum rate for
a geographical area of the country. In Sweden wage bar-
gaining takes place on a centralized basis—initially between
the Central Labor Federation (LO) and the Swedish Em-
ployers Federation—and along industrywide lines with the
involvement of the major industrial unions.4 Industrywide
bargaining is also the rule in Britain, although to a lesser
extent. In all of these countries there is a local organization
to represent employees, but the local entity usually does not
possess nearly as strong a presence or as much contact with
the national trade union as in the United States. In Britain,
shop stewards bargain for pay rates and sometimes for other

3 An Overview
 conditions of employment, often in committees that are in-
dependent of the national trade-union structure. In Ger-
many Betriebsrate (shop committees, or works councils) are
involved by statute in a wide variety of employment deci-
sions and sometimes have veto power over employers’ deci-
sions.5 In recent years German unions, particularly in the
metals industry, have come to play a more substantial role
in the plant and to be more integrated with the system of
works councils as a matter of law. In Sweden there are local
clubs (roughly equivalent to American local unions) that
operate on a plant basis, but many plants are too small to
have one.
In the United States the percentage of eligible workers
who are organized into trade unions is lower than the per-
centages in Europe and Japan.6 Where organization exists,
though, it is clear that a plant-level presence tied to the na-
tional union structure is much stronger in the United States
than in any of the other industrialized countries. The local
union, which has a formal affiliation in its dues-sharing
structure with the national or international union, is often
organized at the plant level. Depending on the number of
members and the amount of dues, some of the officials of
the local, such as the president and the secretary treasurer,
may be employed full-time by the local and paid out of the
workers’ dues. However, in many locals all of the officials
are full-time employees of a company; when they are
involved in negotiations or grievance handling, their wages
may be paid either by the company (the collective bargain-
ing agreement often provides for this) or from the local
union’s treasury.
Most collective bargaining agreements in the United
States are negotiated at the plant level, with the involvement
of the local union. The agreements are relatively detailed
and comprehensive. One of the most important functions
of locals relates to the processing of grievances over an
agreement’s interpretation. Locals are sometimes involved
in the final step of the procedure, arbitration. The local
usually pays the union’s share of the costs of arbitration,
and if the local and the employer are particularly disputa-

4 Chapter 1
 tious, this can be a considerable drain on the local’s trea-
sury. However, because most disputes are resolved at the
lower steps of the process, the local is quite dependent on
members of grievance committees, which are composed of
full-time employees. Similarly the local depends for griev-
ance processing on the shop stewards, who are also full-time
employees involved in a vital function on behalf of the
union.7
Another structural variation arises from the union’s basis
of organization and its organizing rationale. So far we have
only considered locals that are organized on a single-plant
basis. Locals may also be organized on a multiplant or a
multicompany basis (‘‘amalgamated locals’’). More broadly,
they may be affiliated with a national craft, industrial, or
general union. General unions are somewhat exceptional in
the United States; the best example is the International
Brotherhood of Teamsters, the largest American union
(which does, however, have a base in one industry: trans-
portation). Officials of national unions may be involved in
the bargaining of the agreement, but most of the negotiat-
ing staff will be local officials.
Today most unions are affiliated with the merged AFL-
CIO, which was formed in 1955. This federation has a no-
raiding agreement that is binding on its affiliates. The craft
unions play a dominant role in its leadership and policy.
Although the International Brotherhood of Teamsters,
United Mine Workers, International Longshoremen and
Warehousemen (West Coast dock workers) and the United
Auto Workers have been, at various times, outside of the
AFL-CIO, they have all returned to the fold. On the other
hand, the United Brotherhood of Carpenters has with-
drawn from the AFL-CIO and, contrary to the rest of or-
ganized labor except the Teamsters, has been supportive of
the policies of the second Bush Administration of 2001.
Another important aspect of the American system is the
wage consciousness of the trade unions.8 Historically Amer-
ican trade unionism has been hard-hitting in its economic
demands. In part this is thought to be attributable to the
lack of class solidarity among many American workers.

5 An Overview
 Because a labor organization cannot appeal to workers on a
class basis, the appeal must be based on wages and fringe
benefits. This has helped produce what some have called
‘‘business unionism’’ or ‘‘bread-and-butter unionism.’’
Many of the matters handled by labor and management
at the bargaining table in the United States are dealt with
legislatively in Europe. This is particularly true of fringe
benefits, such as vacations and vacation pay, holidays, un-
employment compensation, medical insurance, and hospi-
talization benefits.
Traditionally, protection against dismissal without cause,
and compensation of workers laid off or dismissed because
of plant closure or the contracting out of work, have been
addressed by collective bargaining in the United States. In
Europe ‘‘unfair dismissals,’’ whether for economic reasons
or on disciplinary grounds, are dealt with through legisla-
tion. But recently a number of state courts, following the
lead of the Supreme Court of California,9 have held that
employers cannot dismiss employees without just cause,
arbitrarily, or in bad faith.10 (Chapter 11 contains a more
thorough discussion of this development.) Some states have
enacted legislation regulating plant closures and layoffs at-
tributable to them.11 In Japan, in contrast to both America
and Europe, lifetime employment for ‘‘permanent’’ workers
in large companies has been guaranteed under a system
that is promulgated unilaterally by the companies, outside
the collective bargaining system.12 But Japan’s economic
difficulties in the 1990s eroded this practice to an unprece-
dented extent.
Thus the number of subjects to be discussed and resolved
through collective bargaining is considerably greater in the
United States than in Europe and Japan. Without a welfare
state system like those in Europe, and without paternalism
like that in Japan, American unions must (or should) be
active in their negotiations with management. The appeals
that the unions make to recruit workers cover many items.
The American system encourages unions to push for more
at the bargaining table. It encourages management to in-
stall laborsaving devices to increase productivity (a phe-

6 Chapter 1
 nomenon that seems to have declined in recent years). The
decentralized system of bargaining and the wage-conscious
behavior of unions also encourage American employers to
resist union organizational activities. Accordingly there are
many more organizational and recognition disputes than in
other industrialized countries. Anticipated labor costs and
potential competition problems promote such resistance,
which is in part responsible for the heavy caseload of the
National Labor Relations Board (NLRB). Most of the more
than 25,000 unfair labor practice charges per year13 that
have been processed by the NLRB involve allegations of
discriminatory discipline and discharge of workers, fre-
quently during organizational campaigns. The NLRB is en-
gaged in more litigation than any other federal agency.
In Germany or Scandinavia a dispute can be resolved on
an industrywide basis, and the parties are bound to the so-
lution. But in the United States essentially the same kind of
dispute can come before the NLRB again and again be-
cause different employers and workers see their situation as
slightly different from that considered in an earlier deci-
sion, and they are not bound by any adjudication or deci-
sion on an association or industrywide basis. Moreover
because most of the cases involve discipline or dismissal,
they are essentially questions of fact, and no general rule
can dispose of most of them.
The American industrial relations system has myriad
characteristics. Which of those touched on here are pri-
mary, secondary, and so on, has been debated extensively,
but few would debate that our body of labor law rests firmly
on the system’s fundamental characteristics. How has that
come to be?

7 An Overview
 2
Industrial Relations and Labor Law before Modern
Legislation

In the United States and in Europe the Industrial Revolu-

tion brought competition between employers for distant
markets. This created an environment in which labor was
increasingly treated as a raw material or a commodity, and it
is therefore hardly surprising that a profound sense of dis-
cord was generated between workers and their employers.
This historical development cannot be divorced from any
consideration of industrial relations and labor law in the
United States today.
American and European workers sought to band together
and to protect themselves against the attempts of business
combinations, trusts, and monopolies to reduce labor costs.
The courts in the United States and the parliament in En-
gland, through their ‘‘anticombination’’ statutes, sought to
brand such worker combinations as unlawful conspiracies
in restraint of trade—a restraint that might diminish free
competition between employers. In the United States the
law of conspiracy was criminal law, and indictments were
obtained against combinations of workers trying to raise
wages. The leading case in which the criminal conspiracy
doctrine was applied was the Philadelphia Cordwainers case
of 1806.1
Certain issues raised in the Cordwainers case remain with
us today:
 . How could individuals who had no ‘‘permanent stake’’ in the
business become substantially involved in making decisions
relating to it? As the prosecution said in Cordwainers, ‘‘Will you
permit men to destroy it [business] who have no permanent
stake in the city; men who can pack up their all in a knapsack or
carry them in their pockets to New York or Baltimore?’’
. What is to be the proper and appropriate sphere of interest for
workers? What could be regarded as a management preroga-
tive with which employees could not interfere? Very much
involved in any consideration of this question was the Tory
idea—promoted by America’s first secretary of the treasury,
Alexander Hamilton—that private organizations such as unions
interfered with the rapid increase in manufacturing and there-
fore with national prosperity.
. How could prices of products be set safely if the workers were to
wait until order books were swelled to capacity—when the time
would be propitious—to put pressure on employers for higher
wages? How could commercial contracts be negotiated in distant
markets under such circumstances?
. What was to be done about the emergence of these new combi-
nations of private societies and their pressure on individuals to
comply with the combination’s notion of the collective interest?
As Job Harrison testified in the Cordwainers case, ‘‘If I did not
join the body, no man would sit upon the seat where I worked . . .
nor board or lodge in the same house, nor would they work at all
for the same employer.’’

These were but some of the issues raised in Cordwainers. The

case did not decide definitively whether the combination
itself was an unlawful conspiracy or whether it was neces-
sary to prove that its object was the improvement of wages
and working conditions, but it served as a legal weapon for
employers and thus stultified union growth.
Numerous judicial decisions in the nineteenth century
made efforts by workers to improve their wages and working
conditions through combinations an unlawful criminal con-
spiracy. In 1842 a landmark decision heralded a new judi-
cial approach to the control of union activity. The Supreme
Judicial Court of Massachusetts, in Commonwealth v. Hunt,2
enunciated a test that was to figure in the debate about the
role of the judiciary in labor disputes during the twentieth
century. It rested upon an assessment of tactics, motive, and

10 Chapter 2
 intent. In Hunt the court approved the closed shop, which
requires a worker to join the union prior to employment, as
a lawful objective. Said the Court:
The manifest intent of the association is to induce all those en-
gaged in the same occupation to become members of it. Such a
purpose is not unlawful. It would give them a power which might
be exerted for useful and honorable purposes, or for dangerous
and pernicious ones. If the latter were the real and actual object,
and susceptible of proof, it should have been specially charged.
Such an association might be used to afford each other assistance
in times of poverty, sickness, and distress; or to raise their intellec-
tual, moral, and social conditions; or to make improvement in
their art; or for other proper purposes. Or the association might
be designed for purposes of oppression and injustice. . . . An asso-
ciation may be formed, the declared objects of which are innocent
and laudable, and yet they may have secret articles, or an agree-
ment communicated only to the members, by which they are
banded together for purposes injurious to the peace of society or
to the rights of its members. Such would undoubtedly be a crimi-
nal conspiracy, on proof of the fact, however meritorious and
praiseworthy the declared objects might be.3
Although the Hunt decision was a break from reliance upon
the criminal-conspiracy doctrine a vehicle to thwart union
growth, and although it did not abolish the doctrine, the
court refused to assure that the objectives of workers were
improper. The criminal-conspiracy doctrine began to fall
into disuse. But other legal theories were wed against the
unions.
The rule followed by the courts in the civil arena was the
‘‘prima facie tort’’ doctrine: that the intentional infliction of
economic harm upon another party is a tort, and thus un-
lawful, unless justified by a legitimate purpose. This meant
that a labor union was liable on the face of it in damages for
losses sustained by virtue of a private wrong done to an-
other party (economic pressure through strikes and picket-
ing by the union aimed at an employer).
But was the self-interest of the workers a legitimate pur-
pose, or was a judicial balancing of competing economic
interests (workers, employers, and the public) required? All
too often the courts opted for the latter standard. With no

11 Industrial Relations and Labor Law before Modern Legislation

 defined guidelines to be followed, the courts were able and
willing to use their own social and economic predilections
to determine what constituted ‘‘legitimate purpose.’’ As
Cox, Bok, and Gorman have said, ‘‘On the civil side . . . the
volume of labor litigation sharply increased, and although it
is impossible to reconstruct the legal atmosphere of the
post–Civil War period, it seems fair to say that when the
labor disputes engendered by the conflict over union orga-
nization were taken to the courts, the judges were substan-
tially free, despite the scattered precedents, to create new
law appropriate to the new occasion, guided only by the
vague ‘principles’ which emerged from rulings upon more
familiar situations.’’4
In 1896 the Supreme Judicial Court of Massachusetts
granted an injunction against picketing or ‘‘patrolling’’ be-
cause such conduct had the effect of interfering with free-
dom of contract and the right to employ an individual at
a price agreeable to the parties.5 Such interference with
business, in the court’s view, was a ‘‘private nuisance’’ and,
accordingly, enjoinable. This meant that the judiciary pro-
hibited the unions from patrolling, and that disobedient
individuals could be fined or imprisoned. Justice Oliver
Wendell Holmes, dissenting from the decision, argued that
patrolling did not necessarily carry with it the threat of un-
lawful activity or bodily harm:
There was no proof of any threat or danger of a patrol exceeding
two men, and as of course an injunction is not granted except with
reference to what there is reason to expect in its absence, the
question on that point is whether a patrol of two men should be
enjoined. Again, the defendants are enjoined by the final decree
from intimidating by threats, expressed or implied, of physical
harm to body or property, any person who may be desirous of
entering into the employment of the plaintiff, so far as to prevent
him from entering the same. In order to test the correctness of the
refusal to go further, it must be assumed that the defendants obey
the express prohibition of the decree.6
Moreover Holmes argued against the ‘‘justifiable con-
duct’’ test (that only economic pressure or picketing whose
object is justifiable in the court’s judgment is protected
from an injunction): ‘‘The true grounds of decision are

12 Chapter 2
 considerations of policy and of social advantage, and it
is vain to suppose that solutions can be obtained merely
by logic and general propositions of law which nobody
disputes.’’7
Holmes continued to dissent against the ‘‘prima facie tort’’
doctrine, simultaneously expressing skepticism about the
ability of trade unions to obtain a larger share of wealth
through collective pressure (except at the expense of the
less organized workers).8 This matter continues to generate
considerable controversy,9 but Holmes’s basic theme was
simply that the courts ought not to devise their own policies
in the absence of instructions from elected legislatures.
Meanwhile, as the American Federation of Labor
emerged beyond embryonic form, a new judicial weapon
against the growth of trade unions was developed. Its statu-
tory basis was to be found in the Sherman Antitrust Act of
1890.10 The Sherman Act, a reaction to the abuses of trusts
that had achieved prominence and strength in the wake
of the Industrial Revolution and the westward migration,
had as its rationale the prohibition of conduct suppressing
competition between businesses. Soon after its enactment,
some employers argued that unions and their economic
pressure achieved the same objectives and therefore vio-
lated the statute. Restraint of trade had been attacked by
the courts before the Sherman Act, but the approach taken
was a judicial refusal to enforce contracts that, for instance,
provided for the boycott of an employer departing from
an industry practice or agreement on allocation of markets
or prices. The statutory scheme of the Sherman Act pro-
vided that unlawful conspiracies could be attacked in the
courts.
During the debate about the Sherman Antitrust Act,
Congress had not really addressed the statute’s applicability
to labor. At common law the phrase ‘‘restraint of trade’’ had
meant aggregations, pools, or combinations whose object
was to control the supply and price of products in order to
suppress competition among companies shipping goods
across state lines and thereby establish a monopolistic

13 Industrial Relations and Labor Law before Modern Legislation

 position in the industry. At common law, proving restraint
of trade required evidence of motivation to harm or re-
strain others in the pursuit of their occupations.
The first test of the applicability of antitrust legislation to
labor came before the Supreme Court in 1908 in the case of
Loewe v. Lawlor,11 or Danbury Hatters as it became more pop-
ularly known. This case involved a secondary boycott en-
gaged in by the United Hatters of North America, which
had called a strike against the D.E. Loewe Company for the
purpose of unionizing the company. The union attempted
to get consumers to boycott the company’s hats in vari-
ous states across the country. The union and its allies,
the American Federation of Labor and other affiliates, at-
tempted to boycott not only the company but any person
who patronized the company. Because the union’s efforts
were aimed at parties other than the employer with which
the union had a dispute, the tactics were referred to as
‘‘secondary’’ activities. The Supreme Court concluded that
the antitrust laws applied to labor. Said Chief Justice Mel-
ville Fuller, speaking for the Court: ‘‘The records of Con-
gress show that several efforts were made to exempt, by
legislation, organizations of farmers and laborers from the
operation of the act and that all of these efforts failed, so
that the act remained as we have it before us.’’12
The impact of Danbury Hatters was devastating for orga-
nized labor. The unions, and many others, felt that the
statute had been interpreted improperly, inasmuch as
organized labor was not the focal point of congressional
debate that took place prior to the enactment of antitrust
legislation. Moreover, because the Sherman Antitrust Act
provides for treble damages rather than the actual amount
of the losses incurred (as well as criminal sanctions), the fi-
nal judgment after fourteen years of litigation in Danbury
Hatters awarded a substantial amount of money ($250,000).
What was particularly troublesome about the judgment
was that the members of the union were individually and
personally liable. Though the case was settled in 1917
for slightly over $234,000 and the AFL was able to obtain
$216,000 in voluntary contributions from union members,

14 Chapter 2
 the fact that labor had to ‘‘pass the hat’’ to avoid the fore-
closure of members’ homes made the case unforgettable.
Immediately after the Supreme Court’s decision in Dan-
bury Hatters in 1908, the labor movement began a campaign
to reverse the decision and the applicability of the Sherman
Antitrust Act to trade unions. In 1908 the Democratic Party
promised to amend antitrust legislation so as to reverse the
Court’s decision, and in 1912 it did so again in the follow-
ing language: ‘‘. . . labor organizations and members should
not be regarded as illegal organizations in the restraint of
trade.’’13 After Woodrow Wilson was elected president in
1912, these efforts culminated in the Clayton Antitrust Act
of 1914, which Samuel Gompers immediately characterized
as labor’s Magna Carta and Bill of Rights and the most im-
portant legislation since the abolition of slavery. The two
key provisions of the Clayton Act were found in sections 6
and 20.
Section 6 stated that ‘‘the labor of a human being is not a
commodity or article of commerce. Nothing contained in
the antitrust laws shall be construed to forbid the existence
and operation of labor . . . organizations, instituted for the
purposes of mutual help . . . or to forbid or restrain individ-
ual members of such organizations from lawfully carrying
out the legitimate objects thereof; nor shall such organiza-
tions, or the members thereof, be held or construed to be
illegal combinations or conspiracies in restraint of trade,
under the antitrust laws.’’14 Gompers said that section 6
constituted ‘‘sledgehammer blows to the wrongs and injus-
tices so long inflicted upon the workers,’’ and that ‘‘this
declaration is the industrial Magna Carta upon which the
working people will rear their structure of industrial free-
dom.’’15 But what did section 6 mean? Only one theme
emerged clearly: Antitrust laws were not to be deemed to
forbid the existence and operation of labor organizations,
and therefore, although such organizations are by defini-
tion anticompetitive in that they seek to suppress competi-
tion between workers in the same plants, companies, wider
geographical areas, and ultimately throughout the nation,
they were not to be regarded as illegal.

15 Industrial Relations and Labor Law before Modern Legislation

 Supplementing this approach was section 20 of the Clay-
ton Act, which Gompers had characterized as the ‘‘Bill of
Rights’’ portion. Section 20 stated that no restraining order
or injunction should be granted by any U.S. court in ‘‘any
case between an employer and employees, or between em-
ployers and employees, or between employees, or between
persons employed and persons seeking employment, in-
volving, or growing out of, a dispute concerning terms or
conditions of employment’’ unless a showing of irreparable
injury was made, and there was therefore no adequate rem-
edy at law. A restraining order or an injunction is designed
to force a person or entity to do something. Injunctions
often had been—and still are—designed to force a union
to stop striking, picketing, or engaging in other forms of
economic pressure against the employer. Section 20 also
prohibited injunctions where workers struck, or peacefully
picketed, or urged individuals to cease patronizing ‘‘any
party to such dispute.’’ The language was broad, yet section
20 did not explicitly address the question of what kinds of
union economic pressure were to be appropriate. Because
the statute did not limit restraining orders to disputes be-
tween an employer and its employees, one might assume
that secondary boycotts were not to be regarded as unlaw-
ful. But when the Court did confront this issue, in Duplex
Printing Press Co. v. Deering,16 organized labor and Samuel
Gompers received a rude surprise indeed.
The Supreme Court’s decision in Duplex destroyed most
of the hopes and expectations of organized labor about the
Clayton Antitrust Act. Duplex arose out of a suit for injunc-
tive relief to restrain a secondary boycott against a printing-
press manufacturer in Battle Creek, Michigan, employing
about 200 machinists in the factory in addition to some of-
fice employees and others. The company followed an ‘‘open
shop’’ policy, purportedly refusing to discriminate against
either union or nonunion men. The union, which had as its
goals a closed shop in which only union members could be
employed, the eight-hour day, and the union scale of wages,
called a strike at the factory. When only a few of the workers
joined in the union’s efforts, the union attempted to boy-

16 Chapter 2
 cott the company’s products by warning customers that it
would be better for them not to purchase from the com-
pany, threatening customers with sympathetic strikes, and
inciting the employees of customers to strike against their
employers. It also notified repair shops not to do repair
work on Duplex presses and threatened union men with the
loss of their union cards if they assisted in the installation of
Duplex presses. The Duplex company brought an antitrust
action against the union for unlawful restraint of trade.
The Court stated that a distinction between a primary
and a secondary boycott was material to the question of
whether union conduct was immunized by virtue of the
Clayton Act. The Court first examined section 6 and stated
the following:
The section assumes the normal objects of a labor organization to
be legitimate, and declares that nothing in the antitrust laws shall
be construed to forbid the existence and operation of such orga-
nizations, or to forbid their members from lawfully carrying out
their legitimate objects; and that such an organization shall not be
held in itself—merely because of its existence and operation—to
be an illegal combination or conspiracy in restraint of trade. But
there is nothing in the section to exempt such an organization or
its members from accountability where it or they depart from its
normal and legitimate objects and engage in an actual combina-
tion of conspiracy in restraint of trade.17
The Court then focused on section 20 of the Clayton Act,
noting that the provision specifically forbade the issuance of
restraining orders or injunctions in U.S. courts where there
was a labor dispute between an ‘‘employer and employees’’
and that the first paragraph’s prohibition of orders in such
circumstances ‘‘unless necessary to prevent irreparable in-
jury to property, or to a property right’’ where there was no
adequate remedy of law (that is to say, where the wronged
party could not be adequately compensated through dam-
ages) was merely ‘‘declaratory of the law as it stood be-
fore.’’18 Said the Court: ‘‘The first paragraph merely puts
into statutory form familiar restrictions upon the granting
of injunctions already established and of general applica-
tion in the equity practice of the courts of the United
States.’’19 The Court noted that the second paragraph

17 Industrial Relations and Labor Law before Modern Legislation

 referred to cases where the parties were ‘‘standing in proxi-
mate relation to a controversy’’ of the kind designated in
the first paragraph. Noting that the majority of the circuit
courts of appeals had previously concluded that the words
‘‘employers and employees’’ should be treated as referring
to ‘‘the business class or clan to which the parties litigant
respectively belong,’’ the Court nevertheless concluded that
any construction of the statute that would preclude em-
ployer relief where union secondary activity was involved
against employers ‘‘wholly unconnected’’ with the Battle
Creek factory was a statutory construction ‘‘altogether inad-
missible.’’20 With a somewhat selective glance at legislative
history, the Court rejected the ‘‘views and motives of indi-
vidual members’’ of Congress and relied on committee
reports that it recognized were not ‘‘explicitly’’ addressed to
the question of whether secondary as well as primary boy-
cotts were to be permitted. Significantly, the Court made
clear its condemnation of the damage done to ‘‘many inno-
cent people’’—secondary employees and employees who
were ‘‘far remote’’ from the ‘‘original’’ dispute.21
Justice Louis Brandeis, in a strong dissent in which he was
joined by two other justices (including Holmes), stated that
the contest between the Machinists’ Union and the com-
pany involved ‘‘vitally the interest of every person whose
cooperation is sought.’’ Said Brandeis: ‘‘May not all with a
common interest join in refusing to expend their labor
upon articles whose very production constitutes an attack
upon their standard of living and the institution which they
are convinced supports it? Applying common-law principles
the answer should, in my opinion, be: ‘Yes, if as a matter of
fact those who so cooperate have a common interest.’’’22
Brandeis noted that ‘‘centralization in the control of busi-
ness brought its corresponding centralization in the organi-
zation of workingmen,’’ and that a single employer might
threaten the ‘‘standing’’ of the entire labor organization
and its members. When it did so, said the dissent, ‘‘the
union, in order to protect itself, would naturally refuse to
work on his materials wherever found.’’23 Addressing the
antitrust-law question, Brandeis noted that the Clayton Act

18 Chapter 2
 was the ‘‘fruit of unceasing agitation, which extended over
more than twenty years and was designed to equalize before
the law the position of workingman and employer as indus-
trial combatants.’’24 The dissenting opinion noted that use
of the ‘‘malicious combination’’ doctrine, which had made
actionable trade union activity that judges had deemed
harmful and therefore unlawful.
The ideas of the proponents of new legislation had been
‘‘fairly crystallized’’ by 1914, said Justice Brandeis, and the
principal theme that had emerged was a desire to remove
the judiciary from involvement in labor disputes and con-
sequent determinations based on their own social and eco-
nomic viewpoints. Part and parcel of this view was that
workers had suffered as a result of judicial involvement and
that considerable confusion about the demarcation line be-
tween lawful and unlawful union conduct had ensued.
Brandeis then noted that the Clayton Act had not referred
to employers and employees in the employ of the same em-
ployer, and that under strict technical construction the
statute could have no application to disputes between em-
ployers of labor and workingmen, ‘‘since the very acts to
which it applies sever the continuity of the legal relation-
ship.’’25 That is, if a work stoppage was commenced, the
striker was no longer in the employ of the company and
could be replaced. Thus, under a technical statutory inter-
pretation, primary strikers who had a dispute with no one
other than their own employers could be excluded from the
act’s protection.
In conclusion, Justice Brandeis noted that although his
view of the law was that each party could conduct an indus-
trial struggle in its own self-interest, no ‘‘constitutional or
moral sanction [should be ready to attach] to that right.’’26
The overriding theme of the dissent was that the intent of
Congress had been to remove the judges from defining
what constituted ‘‘self-interest’’ and therefore appropriate
action.
Organized labor’s hopes were once again dashed by the
majority opinion in Duplex. Indeed, the implications of
Duplex were even more devastating than those of Danbury

19 Industrial Relations and Labor Law before Modern Legislation

 Hatters. In the first place, the Clayton amendments now
provided employers as well as the U.S. government with the
authority to sue for injunctive relief against unlawful labor
disputes. This posed a considerable problem toward the
end of the 1920s. Second, Duplex and its progeny repre-
sented the apogee of the ‘‘unlawful objectives’’ test. Justice
Brandeis’s concerns that judicial involvement meant that
the judicially imposed social and economic predilections of
a proentrepreneur judiciary were soon to be realized. And
the result of Duplex clearly was that the language of section
20 of Clayton was mere surplusage at best.
The difficulties of applying the ‘‘unlawful objectives’’ test
articulated in Duplex, the opportunity for judicial bias, and
the artificial nature of judicially fashioned boundary lines
became apparent in Coronado Coal Company v. United Mine
Workers.27 The opinion was written by Chief Justice Taft.
Evidence established that a strike had been prompted by
the ‘‘keen competition’’ between nonunion employers and
employers that had bargaining relationships with the union,
and the Court concluded that this demonstrated an unlaw-
ful attempt to prevent the manufacture and production of
goods and to restrain control of their supply entering into
interstate commerce. Consequently the Court held that
where a union was engaged in a primary or local strike
against an employer, unlawful intent within the meaning of
antitrust laws could be demonstrated through specific evi-
dence because the restraints on trade were ‘‘indirect.’’ How-
ever, where the union activity was secondary inasmuch as
employers whose employees were not directly involved in
the dispute itself were the subject of pressure, the restraint
was direct and unlawful intent could be inferred from the
economic tactic.
The road was thus open to the very kind of judicial med-
dling and abuses that had created ‘‘unceasing agitation’’ of
the kind described by Justice Brandeis. Particularly ominous
in this regard was the above-noted availability of injunctive
relief to employers (as well as the government) by virtue of
the 1914 Clayton statute. Employers used this tool with
increasing frequency in the 1920s, encouraged by the sym-

20 Chapter 2
 pathetic response of the judiciary. Frankfurter and Greene
have chronicled the many abuses that came to be associated
with this aspect of the judicial process in their classic book
The Labor Injunction. What follows here is a brief summary of
their study and the comments of other scholars.
Employers filed motions for injunctive relief, or orders
requiring organizations and industries to do certain things
whenever strikes or picketing occurred at plant premises.
(Generally the economic pressure was for the purpose of
securing organization or some collective bargaining rela-
tionship.) The basis for obtaining such relief was not
testimony and exhibits in a formal proceeding where wit-
nesses could be subjected to cross-examination as well as
examination but generalized affidavits that were simply
altered in minor respects to suit the details of the case.
Moreover injunctive relief was usually sought and obtained
on an ex parte basis; the union’s attorney was generally not
present.
Generalized orders fashioned by the courts prohibited
any individual from striking and picketing on the grounds
that irreparable harm (harm that could not be compen-
sated through a damage award) would be caused to his or
her employer. In this connection, the courts often formu-
lated a doctrine of vicarious responsibility under which the
union could be held liable for the acts of any individual
without regard to any showing of relationship between the
union and the individual’s conduct. Moreover, since most
motions for injunctive relief were aimed at enjoining union
efforts that were effective in the sense that they were likely
to inflict immediate harm upon the employer, the motions
were obtained expeditiously. The injunction would be in
the form of a temporary restraining order. A temporary
restraining order, which can be dissolved after a period of
time or converted into a permanent injunction restraining
the strike, was rarely if ever reversed at the time that the
permanent injunction was sought. But the significant ele-
ment of restraint was not only the failure to reverse but the
granting of the injunction without thorough fact-finding. As
Felix Frankfurter and Nathan Greene said:

21 Industrial Relations and Labor Law before Modern Legislation

 The injunction cannot preserve the so-called status quo; the situa-
tion does not remain in equilibrium awaiting judgment upon full
knowledge. The suspension of activities affects only the strikers;
the employer resumes his efforts to defeat the strike, and resumes
them free from the interdicted interferences. Moreover, the sus-
pension of strike activities, even temporarily, may defeat the strike
for practical purposes and foredoom its resumption, even if the
injunction is later lifted. Choice is not between irreparable damage
to one side and compensable damage to the other. The law’s co-
nundrum is which side should bear the risk of unavoidable ir-
reparable damage. Improvident denial of the injunction may be
irreparable to the complainant; improvident issue of the injunc-
tion may be irreparable to the defendant. For this situation the
ordinary mechanics of the provisional injunction proceedings are
plainly inadequate. Judicial error is too costly to either side of a
labor dispute to permit perfunctory determination of the crucial
issues; even in the first instance, it must be searching. The neces-
sity of finding the facts quickly from sources vague, embittered and
partisan, colored at the start by the passionate intensities of a labor
controversy, calls at best for rare judicial qualities. It becomes an
impossible assignment when judges rely upon the complaint and
the affidavits of interested or professional witnesses, untested by
the safeguards of common law trials—personal appearance of wit-
nesses, confrontation and cross-examination.28

Beyond these problems was the fact that judges, without

the presence of juries, often imposed contempt penalties in
the same cases in which they had issued the injunction ini-
tially. (Contempt penalties—sometimes fines, sometimes
imprisonment—are imposed by the courts on parties who
disobey or are contemptuous of the court’s orders.) Con-
tempt problems arose regularly, sometimes because of lia-
bility that was imputed to the union by conduct of other
parties through the ‘‘vicarious responsibility’’ doctrine.
All of this created an environment in which respect for
the law and the judiciary, a critical prerequisite for a func-
tioning modern democracy, was increasingly undermined.
The concerns expressed by Justices Brandeis and Holmes in
previous opinions became increasingly vexatious after the
Duplex decision and the increased popularity of the labor
injunction. Again, partly because of the efforts of Frank-
furter and Greene, Congress was lobbied to reform the
law. Again, the proponents of reform were successful in ob-

22 Chapter 2
 taining legislation. But this time the legislative package was
different.
In the Norris-LaGuardia Act of 1932, Congress attempted
to learn from the past and to speak more unambiguously,
and to protect the statute against a Duplex-type interpreta-
tion. This objective was to be accomplished in a number of
ways, foremost among them the broad declaration that ju-
risdiction was to be denied to the federal courts in certain
kinds of labor disputes. Section 1 stated that no federal
court would have ‘‘jurisdiction to issue any restraining order
or temporary or permanent injunction in a case involving
or growing out of a labor dispute, except in a strict confor-
mity with the provisions of this Act.’’29 Section 13 went on to
attempt to reverse the impact of Duplex’s narrow definition
of ‘‘labor dispute.’’ The new provision referred to nearly
every kind of labor dispute,30 and quite clearly secondary
stoppages were included within the definition. Section 4,
operating with the definitions provided by section 13, stated
that in any case growing out of the labor dispute the federal
courts were precluded from issuing any injunctions except
where violence or fraud was involved. Even where violence
or fraud was involved, an order restraining such a stoppage
was to be available only after a hearing had been conducted
and a finding of facts set forth—and the hearing was to be
conducted with examination and cross-examination rather
than with the kinds of affidavits to which the federal courts
had become accustomed prior to 1932. Although temporary
ex parte orders could still be allowed, they were made per-
missible for a period of time not to exceed five days and on
showing of ‘‘substantial and irreparable injury’’ to the em-
ployer’s property as well as the posting of a bond. The right
to trial by jury was provided in connection with contempt
cases, and the prohibitions contained in the injunction were
required to be specific in defining the conduct forbidden as
well as the parties who were affected by the order, thus pre-
sumably diminishing the number of cases that might go into
such contempt proceedings.
Additionally the Norris-LaGuardia Act addressed an issue
that had been a matter of controversy for some time in the

23 Industrial Relations and Labor Law before Modern Legislation

 United States. The ‘‘yellow dog’’ contract, through which
employers required workers to stay out of unions as a con-
dition of employment, was declared to be contrary to the
public policy of the United States and thus unenforceable
in any federal court. The Norris-LaGuardia approach to the
‘‘yellow dog’’ contract reflects the statute’s general philoso-
phy. Though the law promoted the doctrine of freedom of
association for all workers as a matter of public policy, it
contained no machinery for implementing this freedom.
Norris-LaGuardia was a laissez-faire approach to industrial
relations, a strongly worded series of instructions to the
federal courts to keep their hands off labor disputes be-
cause they had made a mess of things by intervening in the
past. Their handling of labor disputes had been inexpert
and insensitive to the concerns and expectations of workers
in an industrialized society. The act represented a strong
warning to the courts not to engage in dubious statutory in-
terpretation so as to avoid what appeared to be the intent
of Congress—a tactic in which many thought the Court
had engaged in Duplex. The theme of this statutory ap-
proach, denial of jurisdiction to the courts, was consistent
with laissez-faire.
One major problem was left unresolved by Norris-
LaGuardia, and another was soon to appear. The first
involved the question of what impact, if any, Norris-
LaGuardia had upon criminal prosecutions and damage
actions pursued by employers or the government under an-
titrust legislation. The remedies, as well as injunctions, were
available under the antitrust statues, but Norris-LaGuardia
explicitly addressed the issue of injunctive relief alone. The
second question related to the basic inequality between
capital and labor in the United States in the early 1930s.
Was it enough to simply reverse Duplex and deny the federal
courts jurisdiction in labor disputes? Would it not be neces-
sary to provide protection for organized labor, which had
been confronted with company-dominated and company-
assisted unions, company spies, the blacklisting of union
members, surveillance, and other forms of harassment

24 Chapter 2
 as well as the dismissal of union organizers who were
employees?
The Supreme Court dealt with the first of these two
problems in United States v. Hutcheson, which dealt with a
government criminal prosecution against a union that had
been engaged in a jurisdictional dispute over work assign-
ments with another union. Justice Frankfurter, speaking for
the Court, concluded that the Norris-LaGuardia prohibi-
tions had broader scope than the denial of jurisdiction to
federal courts in connection with injunctions. Said the
Court:
The Norris-LaGuardia Act removed the fetters upon trade union
activities, which according to judicial construction [section] 20 of
the Clayton Act had left untouched, by still further narrowing the
circumstances under which the federal courts could grant injunc-
tions in labor disputes. More especially, the Act explicitly formu-
lated the ‘‘public policy of the United States’’ in regard to the
industrial conflict, and by its light established that the allowable
area of union activity was not to be restricted, as it had been in the
Duplex case, to an immediate employer-employee relation. There-
fore, whether trade union conduct constitutes a violation of the
Sherman Law is to be determined only by reading the Sherman
Law and [section] 20 of the Clayton Act and the Norris-LaGuardia
act as a harmonizing text of outlawry of labor conduct.31
The Court further stated that the relationship between
Norris-LaGuardia and Clayton had to be understood in its
historical context and not read as a ‘‘tightly drawn amend-
ment to a technically phrased tax provision.’’32 Accordingly,
the statutes were to be regarded as ‘‘interlacing’’ and part of
one body of federal labor law. Therefore, where the courts
were denied jurisdiction in labor disputes for the purpose
of injunctive relief, they were also restricted in connection
with criminal prosecutions and damage actions designed
to suppress the kinds of union activity at which Norris-
LaGuardia was aimed.
What then was the range of activity that would be im-
mune from antitrust law? The test, said the Court, was one
of self-interest. In vivid contrast to the position taken in Du-
plex and some of its antecedents, the Court was at pains to
state that what was to be regarded as ‘‘licit and the illicit’’

25 Industrial Relations and Labor Law before Modern Legislation

 had no relationship to the ‘‘wisdom or unwisdom, the
rightness or wrongness, the selfishness or unselfishness of
the end of which the particular union activities are the
means.’’33 The Court stated that so long as the union acted
in self-interest and did not combine with nonlabor groups,
union activity could not be prohibited. The problem of
antitrust liability for unions that combine with nonlabor
groups for certain objectives remains a major issue in
American labor law, but Hutcheson is significant because of
the freedom it provides to trade unions to engage in strikes,
picketing, and boycotts.
The second major break with the past took place three
years after the passage of Norris-LaGuardia. The enactment
of the National Labor Relations Act, which created a na-
tional administrative agency to conduct representation
elections to determine whether a union could represent
employees as exclusive bargaining representative and to de-
termine whether certain unfair labor practice violations had
been engaged in, was an event of vast significance for
American industrial relations. This marked the end of a
brief interlude of laissez-faire toward labor relations as re-
flected in the Norris-LaGuardia Act.

26 Chapter 2
 3
The National Labor Relations Act

The National Labor Relations Act of 1935 forms the basis of

legal regulation of collective bargaining in the private sec-
tor. Other statutes, such as the Fair Labor Standards Act
of 1938, provide substantive guarantees for individual em-
ployees who work for employers engaged in interstate com-
merce and a ‘‘floor’’ below which workers should not fall.1
In the case of the FLSA, minimum wages and maximum
hours are provided. The minimum wage became $5.15 per
hour in 1997.2 The Walsh-Healy Act3 and the Davis-Bacon
Act4 provide minimum conditions for employees of govern-
ment contractors. The past few years have seen a substan-
tial rise in litigation claiming violation of maximum hour
standards.5 In 2003, in the face of fierce resistance from
organized labor, the Bush Administration supported two
significant changes to the Fair Labor Standards Act’s provi-
sions regarding overtime compensation. Only one of these
efforts has been successful. The first proposal would permit
employers to offer employees compensatory time in lieu of
traditional overtime pay that is calculated at a rate of 1.5
times an employee’s hourly wage.6 While this legislation
cleared a House committee, the Republican leadership
withdrew it from consideration on the House floor because
it did not have sufficient votes to pass.7 Additionally, the
Bush Administration has sought to reclassify up to eight
 million white-collar workers such that they would no longer
be eligible for overtime protections under the FLSA.8 How-
ever, this reclassification effort, which the House initially
approved in July 2003,9 suffered multiple legislative set-
backs10 before being enacted in early 2004.
During the 1970s other federal legislation (referred to in
chapter 11) was enacted. State legislatures have enacted
their own laws in this area, and sometimes their minimum
wage is in excess of federal requirements.11 In contrast to
regulation in the wage arena, the United States has very lit-
tle law relating to vacations. Thirty-two of the 50 states have
no statutory vacation law whatsoever,12 and there is none at
the federal level. This lack of mandatory vacation varies
greatly from Europe, where countries such as Germany (24
days per year) and France (up to 30 days per year) require
employers to provide extensive paid vacation leave.
Prior to the National Labor Relations Act, Congress had
already provided for collective bargaining in the railroad
industry through the Railway Labor Act of 1926.13 Further-
more the National Labor Board (under the auspices of the
National Industry Recovery Act,14 the pre-NLRA National
Labor Relations Board, and an executive order of the pres-
ident) had been conducting elections, albeit under statu-
tory machinery that was unenforceable after the Supreme
Court’s holding that the NIRA was unconstitutional.15
The constitutional basis for the National Labor Relations
Act is the commerce clause of the U.S. Constitution: article
I, section 8. This provision allows Congress to enact legisla-
tion when it regulates commerce between the various states
of the union. The constitutional theory upon which the
statute is predicated is that statutory regulation of labor and
management is necessary to diminish industrial strife that
could disrupt interstate commerce. The Supreme Court, at
the time of the NLRA, had struck down a number of the
Roosevelt administration’s laws providing social and eco-
nomic reform. But by a 5–4 vote, in NLRB v. Jones & Laugh-
lin Steel Corp.,16 it upheld the constitutionality of the act. This
came at a time when the Roosevelt administration was at-
tempting to expand the Court in order to change the drift of

28 Chapter 3
 its decisions. Chief Justice Hughes joined the majority of the
Court in Jones & Laughlin in declaring the statute constitu-
tional. His previous involvement on the other side of similar
issues prompted wags to say ‘‘A switch in time saves nine.’’
Whatever Hughes’s motivation, the Court accepted the
constitutional theory that Congress could regulate labor
relations so as to avoid interference with the shipment of
goods across state lines. Ironically, as so often happens in
connection with great social movements, when expectations
are on the rise, once the statute was passed the amount of
industrial strife increased significantly.17 Yet it is fair to say
that, over more than sixty-nine years, the Board’s work has
contributed substantially to the promotion of industrial
peace in the United States.
The particular significance of the NLRA (which in 1935
was called the Wagner Act after its principal author, Senator
Robert Wagner of New York) was that it provided for regu-
lation of some labor disputes by an expert agency—the
National Labor Relations Board—whose principal head-
quarters were and are in Washington, DC. Congress
had departed from the laissez-faire philosophy of Norris-
LaGuardia, but it could not be said to be reviving traditional
outside involvement and the potential for abuses associated
with antitrust laws and the labor injunction—although the
courts now had appellate jurisdiction over the Board.
The NLRB was one of a number of administrative
agencies established under New Deal legislation promoted
by the Roosevelt administration. The Wagner Act provided
that employees were to be protected in their free choice to
protest working conditions they deemed unfair, to organize
into unions and select representatives, and to oblige man-
agement to bargain in good faith with the union that rep-
resented a majority of the workers in an appropriate group
or unit. As noted earlier, these rights were to be enforced
through representational elections in which the majority
would vote on which (if any) labor organization would rep-
resent them and through unfair labor practice machinery
through which the NLRB interprets the statute to deter-
mine whether management or labor has engaged in unfair

29 The National Labor Relations Act

 practices. (Labor unions’ unfair labor practices were added
to the law through the Taft-Hartley amendments in 1947.)
In contrast with the administrative agencies that preceded
it, the focus of the new board was on the development of a
body of case law that would govern large portions of the re-
lationship between labor and management.
Orders issued by the NLRB (often referred to as the ‘‘La-
bor Board’’ or just the ‘‘Board’’) are not self-enforcing. En-
forcement of the Board’s orders is obtained through the
circuit courts of appeals. There are twelve such tribunals in
the United States, and they are just below the Supreme
Court in the judicial pyramid. In the event that labor or
management does not comply with an order enforced in
the court, contempt proceedings (which can result in civil
and criminal penalties, although the latter are rarely in-
voked) take place before the circuit court and not the
Board.
Just as the Great Depression promoted the idea of self-
organization among workers, both as a balance against big
business18 and as a form of industrial democracy, so also the
outbreak of strikes at the end of World War II—when the
pent-up demands of labor manifested themselves in indus-
trial warfare that disrupted a number of key industries—
helped create an environment conducive to limitations on
the rights of unions. Changes in the National Labor Rela-
tions Act were enacted through the Taft-Hartley amend-
ments. In addition to the rules relating to appropriate units,
the organization of the National Labor Relations Board and
the unfair labor practice provisions were altered.

The National Labor Relations Board

The Board, which had been one entity, was split into two
separate sections by the Taft-Hartley amendments. On one
side, there is a five-member board with its principal offices
in Washington, DC (the ‘‘judicial’’ side of the Board). On
the other side, also with its principal offices in Washington,
is the ‘‘prosecutorial’’ side of the Board, which is headed
by the General Counsel. (It cannot be regarded as prose-
cutorial in the strict sense of the word because it cannot

30 Chapter 3
 seek criminal penalties or sanctions.) The two offices were
separated because it was thought to be unfair and inconsis-
tent with due process to have the same party investigate and
adjudicate. Quite obviously, when one party has already
completed its investigation and made a decision to proceed
with an unfair labor practice proceeding, that party may be
less than completely objective in subsequent adjudication of
the case.
The members of the Board and the General Counsel are
appointed by the president with the advice and consent
of the Senate. Officials on both sides—prosecutorial and
judicial—work together in connection with the Board’s
functions relating to representational matters, including
the establishment of appropriate units and the conduct of
elections.
The Taft-Hartley amendments, which imposed a variety
of legal obligations upon unions, created a split between
the General Counsel and the Board for unfair labor prac-
tice cases because the authors felt that employers had been
denied due process by a pro-union Board acting as prose-
cutor, judge, and jury. If the hearing is held before the
prosecutor who investigated and who has a stake in obtain-
ing the conviction, fairness has been denied the accused.
This sense that the pendulum had swung too far toward
labor in the period between 1935 and 1947 pervades other
amendments that were made to the statute in 1947 and
1959.

Preemption and Primary Jurisdiction for the NLRB

In the Wagner Act and the Taft-Hartley amendments, Con-
gress intended to define carefully the role of the courts
and the NLRB in labor relations. The amendments make it
clear that collective bargaining agreements are contracts
enforceable in court but that most allegations of unfair
labor practices may be heard only by the Board and ulti-
mately by the federal courts.
Unions and employers can pursue allegations of breach
of contract in state or federal courts. Before the enact-
ment of the Taft-Hartley amendments, it was difficult for

31 The National Labor Relations Act

 employers to sue unions in state courts for breach of con-
tract because in many states the collective bargaining agree-
ment was regarded as a ‘‘gentlemen’s agreement’’ and not a
court-enforceable contract, and because often the court
insisted that unions, as voluntary unincorporated associa-
tions, be sued in the name of each individual member,
which was difficult in practice. Ironically, although the stat-
utory provision that made collective bargaining agreements
enforceable in the federal courts was prompted by Con-
gress’s concern that unions were acting irresponsibly and
often in violation of their collectively negotiated contract
provisions, the fact is that the unions have made consider-
able use of this provision of the law by insisting successfully
that recalcitrant or unwilling employers proceed to arbitra-
tion where there is a dispute over the meaning of the col-
lective bargaining agreement.19 Most of the actions relating
to the enforcement of agreements have been brought by
the unions—principally because they are actions to compel
arbitration or to enforce an arbitrator’s award.20
The peculiar federalist system of the United States is
the wellspring of the doctrines of preemption and primary
jurisdiction, which are applied in the National Labor Rela-
tions Act’s unfair labor practice provisions. Congress’s in-
tention to create an expert agency for labor matters is
apparent in the NLRB General Counsel’s broad discretion
over whether to issue an unfair labor practice complaint21
(and thus whether a hearing on the issue will be held) and
in the exclusion of the courts as a forum for initiating unfair
labor practice cases.
Where Congress has the constitutional authority to legis-
late, the federal law may be supreme—and state jurisdiction
may be ousted completely—where Congress chooses. The
supremacy of federal law springs from article VI of the U.S.
Constitution. The courts have fashioned a doctrine of pre-
emption that is based on the Supremacy Clause and the
Commerce Clause.22 Whenever Congress has legislated in
detail, the courts consider whether Congress intended to
deprive the states of jurisdiction in the particular field (as
the courts put it, whether Congress intended to ‘‘occupy the

32 Chapter 3
 field’’).23 The reason for the doctrines of preemption and
occupation of the field is that conflicting interpretations of
a law by state courts may frustrate the objective of the na-
tional legislation. That is, even if the state courts interpret
the very same National Labor Relations Act that Congress
enacted, they may interpret it in a different way than the
Board would.
Accordingly the Supreme Court has held that whenever
the subject matter involved in a labor controversy is ‘‘argu-
ably’’ protected by section 7 of the NLRA or prohibited
by the unfair-labor-practice provision applicable to both
unions and employers in section 8, federal and state courts
are deprived of jurisdiction.24 In applying the doctrine of
preemption to the NLRA, the Supreme Court has stated
that usually the Board has primary jurisdiction to determine
the question of whether the subject matter involved in a la-
bor controversy is protected or prohibited by the NLRA be-
fore the courts intervene.25 This is because the Board is the
expert agency entrusted with special responsibility to inter-
pret the statute, and if the courts were to step in without the
benefit of the Board’s interpretation, their exercise of ju-
risdiction and interpretation of the statute and national la-
bor policy could cause mischief for the uniform federal
scheme Congress intended to apply in labor-management
relations.
To be sure, there are exceptions to the preemption doc-
trine. For instance, where a suit is brought for breach of
collective bargaining agreements, the state retains jurisdic-
tion even where the subject matter also involves an unfair
labor practice. Cases involving the duty of fair representa-
tion are another exception to the rule. Moreover a series of
Supreme Court decisions26 have permitted the states to as-
sume jurisdiction where actions are brought alleging libel27
or harm suffered under statutes designed to protect an
individual’s emotional injury,28 or trespass by union orga-
nizers seeking to impart their message to employees or to
the public on private premises,29 or violence or a threat to
peaceful order. The Court has also inferred congressional
intent to confer regulatory authority upon the states when

33 The National Labor Relations Act

 federal statutes provide some room for state action on the
subject matter in question.30
Recent decisions have cast some doubt on the continued
viability of the strong pro-preemption posture taken by the
Supreme Court in labor cases.31 This trend is manifested in
a 1993 unanimous Supreme Court ruling that a state au-
thority, when acting as the owner of a construction project,
may enforce a private collective bargaining agreement ne-
gotiated by private parties.32 However, one can still safely
say that the states have been limited in dealing with labor
controversies involving the portion of the private sector that
is covered by the NLRA and the portion of those cases over
which the Board has chosen to assume jurisdiction under its
authority to regulate employers and unions involved in in-
terstate commerce.33 As a result of the 1959 amendments to
the NLRA, the Board cannot decline jurisdiction over any
cases over which it would have assumed jurisdiction under
the standards as of August 1, 1959.34
Although the Board’s jurisdiction over commerce is
broad,35 it does not extend to foreign crews employed by
foreign ships operating under flags of convenience,36 inas-
much as there must be an affirmative intention by Congress
to regulate such employers given the delicate consideration
of international relations involved. However, the Supreme
Court has approved the NLRB’s assertion of jurisdiction
over foreign flag vessels where the dispute between labor
and management focused upon wages paid to American
residents who did not serve as members of the crew but
rather performed casual longshore work.37 Similarly, where
the International Longshoremen’s Association refused to
load or unload cargo destined for or originating in the So-
viet Union, in protest against that country’s invasion of Af-
ghanistan, the dispute was held to be in ‘‘commerce’’ and
within the NLRB’s jurisdiction.38 Unresolved is the question
of whether the Board may assert jurisdiction over secondary
boycott activities engaged in America in concert with Japa-
nese unions where the activity is in Japan itself.39
The significance of the two doctrines of preemption and
primary jurisdiction for the Board in connection with the

34 Chapter 3
 General Counsel’s authority is enormous. The doctrines
make it difficult for a substantial number of cases to be
heard on their merits in an open hearing. In part, the dis-
inclination of a substantial number of Americans to protest
this state of affairs is attributable to the preference by labor
and management representatives (especially the former)
for the supposed expertise of the Board and the unease
many Americans have about judicial competence in labor
matters, given the historical experience.40 The irony here is
that the preemption doctrine has expanded because the
Taft-Hartley amendments broadened the Board’s jurisdic-
tion. Thus statutory provisions aimed at restricting labor
have deprived what was in many instances a more hostile
state judiciary of jurisdiction over labor—jurisdiction that
could be devoted to restraining strikes, picketing, and other
actions through damages and criminal prosecution.

Who Is Covered by the NLRA?

The coverage provided by the National Labor Relations Act
is narrow.41 Public employees at the federal, state, and local
levels are excluded, as are agricultural workers, domestic
servants, and supervisory employees. Sometimes the enter-
prises of the Indian Tribes have been found to be excluded
from the coverage of the Act on the ground that the asser-
tion of jurisdiction would interfere with the tribe’s powers
of internal sovereignty.42
This exclusion does not mean that it is illegal for such
workers to engage in collective bargaining. Indeed collec-
tive bargaining for public employees and legislation at the
federal, state, and local levels protecting the right of the
workers to join unions has become part of the American
labor landscape. For example, although most states do not
protect the right of farm workers to engage in collective
bargaining, California has a comprehensive statute that is in
many respects superior to the NLRA in the protection it
affords to workers.43
There is no logical basis for the exclusion of the workers
referred to above. Essentially their exclusion from the
NLRA’s protection relates simply to the fact that they had

35 The National Labor Relations Act

 little political clout when the legislation was enacted. Amer-
ican labor law has traditionally excluded large groups of
workers from its coverage.44
Recently, the Board has reversed precedent and stopped
excluding two categories of workers when it recognized that
medical interns and residents45 along with graduate as-
sistants at private universities are statutory employees.46 In
response to the latter holding, unions have sought to rep-
resent teaching and research assistants at numerous uni-
versities, including Brown, Columbia, Cornell, and Tufts.47
Additionally, it is well established that illegal aliens are
employees within the Act’s meaning; so are nonresident
aliens who are here lawfully.48 In A.P.R.A. Fuel Buyers Group,
Inc.,49 the Board held that as statutory employees, undocu-
mented workers are entitled to the full range of remedies,
including back pay. However, in Hoffman Plastic Compounds
the Court has held that such workers are not entitled to
back pay because it would operate as a magnet to undercut
immigration laws.50 The Court’s reasoning seems to apply
to most labor legislation except where the statute contem-
plates monetary remedies for failure to pay where the work
has actually been performed.51
Additionally certain workers besides those mentioned
above are excluded from the definition of ‘‘employee’’
within the meaning of the Act; for example, independent
contractors are specifically excluded by section 2(3).52 The
Taft-Hartley amendments 53 have also specifically excluded
supervisors from statutory coverage. Nonetheless, some em-
ployer conduct involving union or secondary activity is pro-
tected under the Act.54 The Board held that charge nurses
who assigned registered nurses as a routine clerical matter
were not supervisors.55 But a 5–4 majority of the Supreme
Court, echoing an earlier ruling on supervisory status for
such employees56 held that such functions made the em-
ployees supervisors,57 notwithstanding the sweeping exclu-
sion that that decision signifies for professional employees
whose professional judgment involves them in some direc-
tion of others.58 Meanwhile, the Board has held that tem-
porary workers, included within the ambit of the Act where

36 Chapter 3
 their term of employment is indefinite, are not excluded
from the statutory election process simply because they are
referred to an employer by a supplier employer.59
Because the First Amendment to the Constitution pro-
vides for a separation of church and state, the Supreme
Court has held that lay teachers of religious and secular
subjects are not covered by the NLRA in the absence of an
explicit indication by Congress that it intended to give the
NLRB jurisdiction over such individuals.60 Although the
statute does not provide explicit exclusionary language, the
Supreme Court, in NLRB v. Bell Aerospace Company,61 has
held that managerial employees who formulate and imple-
ment company policy are also excluded from the bargain-
ing unit. Such employees of course are not eligible to vote
in NLRB-conducted elections.
In 1980 the Supreme Court held that at least under
certain circumstances, faculty members in universities are
properly excluded from the definition of ‘‘employee’’ be-
cause they are managerial employees.62 The Court’s rea-
soning, expressed by Justice Powell’s majority opinion, is
based on a presumed identity of interest between the fac-
ulty and the administration. The decision, like Bell Aerospace,
was by a vote of 5–4. One of the majority opinion’s defi-
ciencies is that it overlooks the frequent clashes of interests
between faculties and administrations. Another problem is
the failure to recognize that labor can be involved in both
confrontation and cooperation, as the UAW’s recent inter-
est in having workers on auto manufacturers’ boards vividly
demonstrates. This inability of the Court to perceive the
need of a union or any society to have a collective bargain-
ing model that promotes cooperation is disturbing indeed.
On the other hand, a unanimous Court, confronted with
an old union-organizing tactic63 adopted more recently by
construction unions, has held that paid union organizers
who are employed with a firm are protected ( just as are all
other employees) against employer retaliation and unlawful
conduct under the statute.64 However, the Board has strug-
gled with the question of statutory relief for such individ-
uals, particularly when they are applicants.65

37 The National Labor Relations Act

Access to the Law’s Protection
What benefits are provided by the National Labor Relations
Act for workers who are covered by it? In the first place
workers, as well as labor organizations and employers, may
file a petition with the NLRB requesting an election to de-
termine whether a particular labor organization represents
the majority of workers within an appropriate group of
employees. Such an election is conducted by secret vote,
and ballots are generally cast at the plant where the workers
are employed. More than half of the workers who vote in
the Board-conducted election must vote for the union if the
employer is to be required to bargain with it.66
Although in some countries organizations seeking to rep-
resent workers must register and be screened, no such situ-
ation exists in the United States. However, in order for a
labor union to file a petition requesting representation and
to impose bargaining obligations upon management, it
must be a ‘‘labor organization’’ as defined in the NLRA: an
organization ‘‘of any kind, or any agency or employee rep-
resentation committee or plan, in which employees partici-
pate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or con-
ditions of work.’’67 So as to provide the greatest scope for
freedom of association under the statute, this provision has
been interpreted liberally to permit a wide variety of orga-
nizations to obtain the benefits of the statute. There is no
requirement of involvement in any particular industry or
company, and the collective bargaining experience of an-
other (perhaps larger) labor organization does not freeze
out an organization that may seek to represent workers in
the same industry.68
But the statutory scheme is designed to confer exclusivity
on a labor organization. That is, once an organization re-
ceives majority support in an appropriate unit, the em-
ployer is under a statutory obligation to bargain with no
other organization for the workers in that unit. All workers
covered by or included in the unit, whether they are mem-

38 Chapter 3
 bers of the union or not, have their wages, hours, and
working conditions regulated by the collective bargaining
agreement between the union and employer unless the
contract between labor and management states otherwise.
In professional sports, where contracts allow for bargaining
between employers and individual players, there are good
examples of such special contracts between labor and man-
agement. Stars, such as the now retired Fred Lynn, the Red
Sox erstwhile centerfielder who pioneered new contracts
with the California Angels, and Baltimore Orioles, the De-
troit Tigers, and San Diego Padres, are now dwarfed finan-
cially by multimillionaires like pitcher Randy Johnson,
outfielders Barry Bonds and Sammy Sosa, and Shortstop
Derek Jeter—the leaders among many now able to com-
mand handsome salaries on the basis of individual bargain-
ing.69 The recent agreements negotiated for fireballing Red
Sox ace Pedro Martinez in 1997 and the quarter of a billion
contract by Texas Ranger shortstop Alex Rodriguez has
attracted even more attention! In 2002, the Major League
Baseball Players Association and Major League Baseball
negotiated a new collective bargaining agreement that
could restrain a further escalation of player salaries through
the imposition of a tax on clubs with high payrolls.70
The collective bargain itself will, in many circumstances,
provide for a wide range of benefits to be negotiated in an
individual contract of employment; the wage or salary is
one such benefit. But the situation in professional sports
is not representative of most collective bargaining in which
wages as well as other benefits and conditions are shaped
by unions and employers on an almost totally bilateral basis.
And even in sports it is the collective agreement that
sets minimum salaries and addresses the question of when
players become free agents so that they may bargain with
other teams. Indeed the union representing soccer players
in North America has had authority under its collective
agreement to veto individual contracts. The National Foot-
ball League Players’ Association has proposed (without
success) collective negotiation of maximum as well as

39 The National Labor Relations Act

 minimum salaries. But the National Basketball Players’
Association has agreed to a salary ‘‘cap’’ or limit that each
club cannot exceed. The National Basketball Association
was successful in imposing a more restrictive cap upon its
players as a result of a lengthy lockout, which eliminated a
substantial portion of the 1998–1999 season. Also players’
unions have become concerned about, and sought to regu-
late, some of the practices of agents who represent athletes.

Appropriate Unit
What is an appropriate unit of workers? An appropriate unit
is to be established by the NLRB among a group of workers
who have a ‘‘community of interest’’ with one another.
The principal forum for collective bargaining in the United
States is an appropriate unit of workers established at the
plant. But the statute and numerous decisions of the Board
and the courts make it clear that an appropriate unit can be
established at the company level and sometimes—where
there is consent on both sides—on a multiemployer or
industrywide basis.
The principal considerations that the Board and the
courts use in determining what constitutes an appropriate
unit are the following:
. whether the employees are under common supervision,
. whether the employer’s bookkeeping relating to employee con-
cerns, payment of wages, and other benefits is organized on a
plant, a multiplant, or a multicompany basis,
. on what basis the employees have communicated or bargained in
the past,
. whether the employees have contact with one another at the
workplace and whether, for instance, they clock in and clock out
at the same location,
. if there is a dispute relating to whether the unit is appropriately
multiplant in scope, the extent to which employees are trans-
ferred between plants (temporarily or otherwise),
. similarity in the type of work performed,
. similarities in wages, hours, and working conditions, and
. the desires of the employees.

40 Chapter 3
 Though the last point can be considered along with the
others, the Taft-Hartley amendments make it clear that the
NLRB cannot declare an appropriate unit by considering
the workers’ wishes alone.71
Often the question of what constitutes an appropriate
unit is a difficult one. Very often the union will want a small
unit. For instance, if a chain has five restaurants in the same
city, the union will undoubtedly try to establish a unit in one
or two of them because it can channel a great deal of effort
into organizing a small group of employees (which can then
serve as a ‘‘building block’’ for organizing others). Another
reason for the union’s desire to establish a smaller unit is its
reliance upon secrecy to ward off a counterattack by the
employer. Secrecy is less likely to be realized if the union
tries to organize all of the chain’s facilities in the city simul-
taneously. In such circumstances the employer generally
wants the broader unit because of his or her interest in
uniformity of practices and conditions of employment in all
the facilities. Not only does this make administration easier,
but also it tends to minimize the potential for discord and
discontent among employees who might complain about
differences in benefits and conditions which they perceive
as putting them in an inferior position. Also the employer
generally favors a broader unit for the very same reasons
that the union favors a small unit: The union will have more
difficulty trying to reach a larger number of employees, and
the employer’s campaign to undercut the union is more
likely to succeed under such circumstances. The sooner the
employer finds out about the campaign, the better he or
she is able to thwart the union’s organizing efforts. As the
Supreme Court has said, ‘‘virtually every Board decision
concerning an appropriate bargaining unit—e.g., the
proper size of the unit—favors one side or the other.’’72
Before the Taft-Hartley amendments, where the factors
were roughly equal and where the union desired the
smaller unit, the Board would accede to the union’s wishes
on the ground that if a broader unit than that petitioned
for was to be established as the appropriate unit, collective
bargaining would probably not exist for the employees at

41 The National Labor Relations Act

 all. This would be so not only because the union would be
unlikely to win an election among employees in all of an
employer’s facilities but also because it would be unlikely
that an election would ever be held. Under the administra-
tive rules of the NLRB, for an election to take place, 30
percent of the employees within the appropriate unit must
indicate that they want an election held to determine
whether collective bargaining will exist. This is called the
‘‘showing of interest.’’ If (to take our example) the appro-
priate unit is one or two of the chain’s restaurants, it is likely
that an election will be held because the union’s organiza-
tional efforts will have reached a substantial number of the
employees and will have persuaded a number of them to
sign petitions or authorization cards indicating their inter-
est in the union or in a Board-conducted election. If the
unit is a larger one, it will be unlikely that an election will be
held at all because less than 30 percent of the workers will
support an election. Today the NLRA precludes the Board
from fashioning an appropriate unit on the grounds that
the union has organized the employees in that particular
area. The statute says that ‘‘the extent that the employees
have organized shall not be controlling.’’ However, the ex-
tent of organization may still be taken into account along
with the other factors mentioned.73
Although the Board has relied upon the extent of orga-
nization in conjunction with other factors to establish a unit
at one location in a multilocation industry as presumptively
appropriate,74 recently it has established large units in uni-
versities75 and hospitals.76 The larger the unit, the more
difficult a union organizational effort is likely to be.
The upsurge in the prison population has required the
Board to include ‘‘work release’’ employees in broader
units.77 Another unit issue that has been litigated relates to
whether ‘‘on-air programmers’’ who appear before the mi-
crophone in the broadcast industry—announcers and disc
jockeys—constitute a separate unit for the purpose of bar-
gaining. The Board has held that such employees should be
within a separate unit because they ‘‘constitute a homoge-
neous, readily identifiable cohesive group’’ by virtue of their

42 Chapter 3
 talent, which separates them from other employees—that
is, ‘‘voice, diction and personality.’’78 But in a case involv-
ing a northern California radio station featuring modern
jazz, KJAZ Broadcasting Company,79 the Board held that
there is no ‘‘recognized distinction’’ where ‘‘on the air pro-
grammers do not share a substantial community of interest
separate and apart from other employees of the Employer.’’
Said the Board: ‘‘In its commitment to the jazz idiom,
the Employer has historically hired only employees with
an in-depth knowledge of jazz, a ‘talent’ shared by all its
employees.’’80
Ever since the passage of the National Labor Relations
Act there have been conflicts between craft and industrial
unions about the unit for representation. (In the early days
of the Act, such disputes arose out of the fact that manage-
ment often favored craft unions because they were regarded
as more conservative.) The problem is particularly trouble-
some in the United States because there are large numbers
of both craft and industrial unions. In contrast, Britain and
Australia are plagued with jurisdictional stoppages caused
by proliferation of craft unions, and in Germany and Scan-
dinavia industrial unions are dominant.
In the United States craft unions are able to survive where
the appropriate unit is fashioned on an occupational basis.
Conversely, a broader unit is more to the liking of the big
industrial unions. Where the question of craft or industrial
unit is extremely close, the desires of the employees are to
govern according to the rarely used ‘‘globe election pro-
cess,’’ which pools votes into two units when the smaller or
craft group provides a majority vote for the union seeking
two units.81 If those pooled votes give that union a majority
of the voters, it is certified; if there is no majority, the Board
orders a runoff election between the highest vote getters.
Another issue that arises quite frequently relates to ‘‘craft
severance,’’ the extent to which a class of skilled workers
may opt out of an appropriate unit that includes semiskilled
and unskilled workers. Prior to 1947 in most such cases the
NLRB did not permit workers to separate themselves from
the broad group. The Taft-Hartley amendments reversed

43 The National Labor Relations Act

 this position, and the Board cannot now regard a craft as
inappropriate for bargaining on the grounds that a differ-
ent unit had been established previously. Today the Board
determines whether craftsmen will be granted a separate
unit on the basis of the following factors:
. whether the proposed unit consists of a ‘‘distinct and homoge-
neous group of skilled journeymen craftsmen’’ who are ‘‘per-
forming the functions of their craft on a nonrepetitive basis’’ or
are located in a functionally distinct department ‘‘where a tradi-
tion of separate representation exists’’;
. the history of collective bargaining and the potential for collec-
tive bargaining if the history is continued;
. the
extent to which the employees who wish to opt out have
maintained a separate identity for themselves;
. the pattern of collective bargaining in the industry generally;
. the degree of integration of the employer’s production pro-
cesses; and
. the extent to which the union seeking to represent the skilled
workers has experience in representing the particular craft
involved.

The criteria above provide some notion of the kinds of

problems that are involved in determining what constitutes
an appropriate unit. They should also provide a bit of an
appreciation of the changes that took place through the
Taft-Hartley amendments, which were designed to protect
employees against unions that sometimes run afoul of these
interests. Particularly the Taft-Hartley amendments were
concerned with protecting the interests of skilled trades
against industrial unions that (at least in the tradesmen’s
view) did not always adequately take their interests into
account.
Though the Act provides that an appropriate unit is to
be established ‘‘in each case,’’ the Supreme Court has ap-
proved of the exercise of broad rule-making authority by
the Labor Board in connection with its establishment of
eight bargaining units in acute care hospitals.82 Said Justice
Stevens for a unanimous Court: ‘‘The requirement that the
Board exercise its discretion in every disputed case [involv-

44 Chapter 3
 ing an appropriate unit] cannot fairly or logically be read
to command the Board to exercise standardless discretion
in each case.’’83 The practical effect of the Court’s holding
is to expedite the administrative process at a very critical
stage of representative selection by workers to avoid delay
which can dissipate interest in collective bargaining. Gen-
eralized rule making allows for avoidance of detailed ad
hoc appropriate unit determination which produces delays.
Yet attempts by the Board in the 1990s to utilize rule
making in election cases that badly needed expedition and
streamlining encountered enormous and successful politi-
cal resistance.84

Holding an Election
After the appropriate unit has been found, if there is a 30
percent showing of interest the regional director in the
NLRB field office orders an election. At a prehearing con-
ference the regional director attempts to resolve the unit
issue and the question of who is eligible to vote without a
full hearing. If he or she is successful, a consent agreement
is signed by all parties.
There are two kinds of consent agreements. One provides
that the regional director’s decision on all challenges to
ballots and to the conduct of the election is final and bind-
ing; the other permits the parties to appeal such matters to
the Board in Washington. Sometimes all employees eligible
to vote are named in the agreement.
If there is no agreement, a hearing will be held on the
unit and eligibility issues. Theoretically this is not supposed
to be an adversary or court-style proceeding, but sometimes
the participating lawyers (as well as lay people) make it that
way. Sometimes a second or third labor organization (be-
sides the one that filed the petition) will be present and will
file a motion to intervene. Any union that can show that it
has signed up one employee as a supporter may be on the
ballot at the election. If the second or third union (any
number of unions may intervene) has a 10 percent showing
of interest, it may participate fully in the hearing. If no

45 The National Labor Relations Act

 union or the ‘‘No’’ vote has a majority, a runoff is held with
the two highest votegetters on the ballot.
Within seven days of the regional director’s decision to
order an election or approve the consent agreement for the
election, the employer must file with the NLRB three copies
of a list of the names and addresses of all employees in the
unit.85 One copy is sent to the union so that it may commu-
nicate with employees during the campaign.
Elections are generally held on the employer’s premises.
If the union objects, the election is held elsewhere. A rep-
resentative of the NLRB supervises the conduct of the elec-
tion,86 and all parties are entitled to have observers.
In the 1990s the Board conducted a greater number of
elections by postal ballot, doubling the number of such
elections. For instance, the Board held that mail ballots
should be provided where on-call employees would have
difficulty voting at a precise time because of the irregular
nature of their work,87 where strikers were not able to par-
ticipate in a vote on plant premises because of their refusal
to cross a picket line,88 where scattered shifts were varied,89
where workers were working out of a number of different
locations,90 and where laid off workers were away from
plant premises.91 The Board refused to order such an elec-
tion where the employer’s facility was approximately 80
miles away from the Board’s office, making an election on
plant premises a drain upon NLRB financial resources,92
and in 1998 codified these rules.93
Objections to the conduct of the election by the unions
or the employer or disputes about the eligibility of voters
that might affect the election’s outcome must be filed with
the regional director within five days of the election.94 The
regional director will investigate but need not hold a hear-
ing to determine the validity of the objections unless a party
challenging the election shows through specific evidence
relating to specific individuals material issues of fact suffi-
cient to support a prima facie showing of objectionable
conduct.95 If the objections are found to be valid, the elec-
tion will be set aside and another will be held.

46 Chapter 3
 Objections are the preferred method for resolving dis-
putes about election conduct. The filing of an unfair labor
practice charge ‘‘blocks’’ resolution of the representation
issue, delaying the election and the above-described proce-
dures until the unfair labor practice issue is resolved.96 The
theory is that absent resolution of the unfair labor practice
issues, the potential for interference with employees’ free-
dom of choice exists.
The central theme of these procedures is the employees’
freedom of choice. Employees must exercise that choice
free of workplace pressures from the union or the em-
ployer. It is hoped that the choice will be an informed one.
The goal is to realize majority rule in an expeditious and
informal manner. Accordingly, except where the NLRB di-
rectly contradicts the language of the NLRA,97 its decisions
on representation issues are not reviewable in the federal
courts. But, as a practical matter, an employer (but not a
labor organization) may obtain review of the NLRB’s rep-
resentation decision by refusing to bargain with a union
that has been certified, thus triggering an unfair labor prac-
tice proceeding.98

47 The National Labor Relations Act

 4
Unfair Labor Practices

As we saw in chapter 3, neither the members of the Na-

tional Labor Relations Board, nor the judicial side of the
Board, nor the courts can adjudicate unfair labor practices
unless the NLRB General Counsel determines that a com-
plaint should be issued. But labor law decisions are made
almost every working day of the year in unfair labor practice
proceedings (and, to a lesser extent, in representation elec-
tions). Some of these decisions are very important and pre-
cedent setting.
What are ‘‘unfair labor practices?’’ As noted earlier, both
employers and labor organizations may engage in such
practices. Employers’ unfair labor practices were written
into the law in 1935 and have remained unchanged. An
employer is prohibited from interfering with, restraining,
or coercing employees in any way in connection with their
right to engage in concerted activities, to protest working
conditions, and to join labor organizations for the purpose
of collective bargaining (or to refrain from any of these
things). The union may not restrain or coerce workers in
the exercise of their rights protected under the statute (the
language here is slightly less ambitious than that applied to
employers). Surveillance of union activities, use of union
‘‘spies,’’ interrogation of employees about union activities,
threatening employees for being involved in the union, and
 promising benefits if employees desist from union activity
are among the prohibited employer actions.1 Indeed in
1980 the NLRB held that an employer may not lawfully
‘‘initiate questioning about employees’ union sentiments
even where the employees are open and known union sup-
porters and the inquiries are unaccompanied by threats or
promises.’’2 However, in 1984 the Board, characterizing its
earlier position as a per se condemnation of interrogation
inconsistent with Board precedent,3 held that such an ap-
proach ‘‘ignored the reality of the workplace’’ and that
interrogations could be viewed as unlawful only with refer-
ence to ‘‘all of the circumstances.’’4
The rules relating to employer conduct regarding inqui-
ries about union support applied to relationships between
employers and incumbent unions, as well as the unorga-
nized workplace. In a 5–4 decision authored by Justice
Thurgood Marshall,5 the Court has held that the Board’s
position, which does not presume lack of union support
because the strikebreakers have taken the jobs of the strik-
ers, is an appropriate reading of the Act. This decision was
joined in by Chief Justice William Rehnquist who expressed
the view that an employer should be allowed to poll em-
ployees with regard to their support for the union.6 The
Board’s view as expressed in Texas Petrochemicals Corp.7 is
that employers can only legitimately poll workers about
their continued support for an incumbent union if they
have ‘‘reasonable doubt’’ about the union’s majority status.
The Board noted that in determining whether an employer
may petition the Board for the decertification of an incum-
bent union or whether it may withdraw recognition from a
union altogether,8 it will apply the same standards applica-
ble to a poll.9 Appropriate notice of the poll must be given
to the employees because of the potential for a ‘‘. . . blitz-
krieg effort [through which] an employer could rid itself of
a low profile, majority union.’’10 The Supreme Court has
affirmed this Board position11 by a 5–4 vote. But, again by a
5–4 vote, the Court had held that the Board cannot dis-
regard employee statements expressing hostility to unions
made in the job interview in assessing lack of majority sup-

50 Chapter 4
 port.12 Subsequent to the Court’s ruling, the Board has held
that an employer can only prevail in unfair labor practice
litigation arising out of its unilateral withdraw of recogni-
tion of an incumbent union where it can show that the
union has in fact actually lost majority status. If the em-
ployer invokes the electoral process by filing a representa-
tion election it may be triggered where the employer ‘‘. . .
demonstrat[es] good faith reasonable uncertainty (rather
than disbelief ) as to unions’ continuing majority status.’’13
Although the Supreme Court has yet to resolve the inter-
rogation issue that is enmeshed with the case law on polling,
it has held in NLRB v. Exchange Parts Co.14 that the bestowal
of benefits during a union organizational campaign is un-
lawful. Said the Court: ‘‘The danger inherent in well-timed
increases in benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the source
from which future benefits must flow and which may dry up
if it is not obliged.’’15 Similarly an NLRB election may be set
aside and a new election ordered where a union waives its
initiation fees for those who sign up with the union before
the election.16 In contrast, the Board has held that union-
initiated employment litigation is not an unlawful benefit.17
Further, union or employer reimbursement for travel ex-
penses to a Board election is lawful.18
The Court of Appeals for the District of Columbia has
cast doubt on the compatibility of Exchange Parts with the
realities of the modern workplace.19 But that, of course, is a
matter for the Supreme Court or Congress alone—not the
Court of Appeals!
At the same time employers have both a constitutional
and a statutory right of free speech, although they may not
use it to coerce employees or to dissuade them from union
affiliation through the promise of benefits. But it is fre-
quently impossible for the NLRB to determine whether an
employer’s statement—such as ‘‘if the union wins the elec-
tion, its demands will require me to close the plant’’—is co-
ercive or merely an economic prophecy about which the
workers should be informed before making an intelligent

51 Unfair Labor Practices

 decision. What is an economic prophecy to a tough truck
driver in Detroit may be coercive to a textile mill worker in
South Carolina.20
Neither may an employer provide financial assistance to a
labor organization.21 If the NLRB finds that an employer
has done so, it must issue an order to cease and desist.22
Yet these provisions, enacted at the time that the Wagner
Act regarded a labor-management system as naturally adver-
sarial rather than cooperative, have posed considerable
problems in recent years. In Electromation, Inc.,23 the Board
held that it was unlawful for an employer to constitute a so-
called action committee. The Board held that if the em-
ployee committee, in this case the action committee, (1)
provided for employee participation, (2) had a purpose to
deal with employers, (3) concerned itself with conditions of
employment that were the statutory subjects, and (4) in-
volved a committee or plan that was in some way represen-
tative of the employees, then the Board would be called
upon to determine whether unlawful domination or assis-
tance existed. In this case the Board found unlawful ‘‘domi-
nation’’ because it was the employer’s idea to create the
action committee, the employer drafted the goals of the
committee and the employer provided financial assistance
for it. But the decision left open the question of whether
other committees that focus upon ‘‘quality’’ or ‘‘efficiency’’
might be lawful. Moreover it did not address the question of
so-called cooperative efforts where a union is already on the
scene as exclusive bargaining representative.24
Notwithstanding a flexible interpretation of the statute
designed to promote employee participation in the 1990s,25
the Republican Congress passed the TEAM Act promoting
employee participation without employee autonomy—and
the bill was vetoed by President Bill Clinton.26 Subsequently
the Board held that an employee committee could not be
deemed a ‘‘labor organization’’—a statutory prerequisite
for the finding of a violation—where there was no potential
for there to be dealings between employees and the em-
ployer even though the committee was making ‘‘recom-
mendations to management which presumably would lead

52 Chapter 4
 to discussions and negotiations.’’27 Relying upon 1970s pre-
cedent,28 the Board was of the view that both employees
and employer possessed managerial authority inasmuch as
‘‘management has delegated to the committees in issue the
authority to operate the plant within certain parameters.’’29
Here, as with other unfair labor practices, the NLRB also
orders the party that has acted unlawfully to post notices at
its premises in conspicuous places so that the matter will be
brought to the attention of the employees.30 The notices
are posted almost automatically in the United States, but in
Japan this is done much less often (although that country
has unfair labor practices provisions in its law by virtue of
the 1945 American occupation). In Japan the posting of a
notice seems to be more unacceptable or harmful to an
employer’s reputation.
An American employer may not assist in the creation of a
labor organization or in its attempt to gain recognition. If
the NLRB finds that an employer has done so, it may order
that the employer withdraw recognition from the organi-
zation, or even that the organization be ‘‘disestablished’’
(completely eliminated).31
An employer may not discriminate in connection with
working conditions against workers because of their union
membership or lack thereof. However, a union may negoti-
ate with an employer a collective bargaining agreement that
includes a ‘‘union security clause’’ requiring that workers
pay periodic dues and initiation fees as a condition of em-
ployment. If a worker refuses the union’s request to pay, he
or she may be dismissed from employment (unless the
worker’s objection is religious). This form of union security
agreement is frequently referred to as a ‘‘union shop’’ or
‘‘agency shop’’—as distinguished from a ‘‘closed shop,’’
which requires that a worker become a union member prior
to being hired. The closed shop was outlawed by the Taft-
Hartley amendments.32 States may prohibit the negotiation
of any such union security agreements, and twenty-two of
them have enacted ‘‘right-to-work’’ legislation accomplish-
ing this objective.33 (Some regard ‘‘right-to-work’’ as a mis-
nomer; the legislation does not provide for any right to

53 Unfair Labor Practices

 work, but it does protect workers who do not wish to pay
union dues from dismissal.)
In no situation is a union security agreement imposed by
law. Where there is no right-to-work legislation, labor and
management are free to enter voluntarily into such agree-
ments. The unions have argued, with a good deal of per-
suasiveness, that such agreements are necessary inasmuch
as the union has a duty of fair representation to bargain for
all employees in the bargaining unit regardless of their
union affiliation or lack thereof. Workers who do not have
to pay dues receive the same benefits as those who do,
and therefore have a financial advantage over dues-paying
workers. The unions refer to such workers as ‘‘free riders.’’
Other countries have grappled with this problem. In
Britain the Trade Union and Labor Relations Act of 1976
provided that an employee could be dismissed pursuant to a
closed-shop agreement unless the worker had religious
objections. However, the Employment Act of 1980 broad-
ened the grounds for objection to conscience or deeply
held personal conviction. (In the United States a 1980
amendment to the NLRA also provides for religious ob-
jections, and it seems possible that the law may be in-
terpreted to protect personally held ‘‘religious or moral
convictions.’’)34 An employee could also refuse to join if he
or she held a job classification prior to the closed shop and
refused to join thereafter. Finally, 80 percent of the workers
had to approve a closed shop entered into after August 15,
1980. (In the United States a majority of workers may vote
to ‘‘deauthorize’’ a union security agreement and thus pro-
hibit its negotiation by the union.) The Employment Act of
1982 provided that where ballots were conducted for the
first time on August 15, 1980, or thereafter, the dismissal of
a worker under a closed-shop agreement would be unfair
where support for the agreement of 80 percent of employ-
ees entitled to vote or 85 percent of those voting had not
been evidenced within the past five years. The 1982 statute
also protected employees who have been ‘‘unreasonably’’
excluded or expelled from membership against dismissal
under a closed shop agreement. But the Employment Acts

54 Chapter 4
 of 1988 and 1990 have made it unlawful to either refuse to
hire an applicant or dismiss a worker because of union
membership, thus outlawing the closed and union shops in
Britain altogether.
The closed shop is unlawful in Germany and France—in
the former country this is due to constitutional guarantees
of liberty. In Sweden, although it is lawful, most unions and
employers do not appear to require membership as a con-
dition of employment.
In the United States other unfair labor practice provisions
prohibit the employer from retaliating against a worker who
has cooperated with the NLRB or testified in an NLRB
hearing. And, finally, the employer is obliged to bargain in
good faith with a union that has been designated by a ma-
jority of the employees in an appropriate unit as their ex-
clusive bargaining agent. The difficult concept of good faith
is described in more detail below.
The Taft-Hartley amendments have imposed unfair labor
practice restrictions on unions as well as employers. As
noted earlier, the union may not ‘‘restrain and coerce’’ em-
ployees. Therefore a union may not lawfully engage in vio-
lence, disorder, or mass picketing that interferes with the
movement of employees or the public into and out of the
employer’s property or premises. Of course the states and
localities may prosecute criminal conduct, and to a limited
extent, the federal government is the prosecutor (e.g., in
cases of violence committed in connection with extortion35
and other criminal acts).36
A union may not cause an employer to discriminate
against a worker merely because he or she is not a union
member. (Outside of the union security context, this situa-
tion generally arises in connection with a union’s en-
couraging an employer to discriminate against workers of
another rival union.)37
A union is obliged to bargain with an employer in good
faith. The proponents of the Taft-Hartley amendments
were concerned that certain strong unions had adopted a
‘‘take it or leave it’’ attitude in their dealings with employers.
A number of unions would simply come to the bargaining

55 Unfair Labor Practices

 table and present the area contract (the contract negotiated
with most employers in the area). Where the employer was
small and without economic power, the union expected no
discussion or negotiation. Sometimes a union would simply
throw a proposed contract on the table and tell the em-
ployer to sign it. The obligation of unions as well as
employers to bargain was intended to cure this problem.
Unions are also obliged not to engage in ‘‘secondary boy-
cotting.’’ A secondary boycott (frequently accompanied
by picketing) is intended to force a second or secondary
employer to refrain from doing business with a primary
employer with whom the union has a dispute over, for in-
stance, recognition, wages, or conditions of employment.
Like the union-shop–closed-shop issue, the issue of second-
ary boycotts is deeply divisive. Free societies want to protect
both solidarity and innocent third parties. In Britain the
Employment Act of 1980 made union officials and members
liable to damage suits where employees engage in picketing
at establishments or locations where they are not employed.
The 1982 act made unions themselves liable for injunctive
relief or damages where the conduct was authorized or
endorsed by a responsible person. But the Employment Act
of 1990 amended the 1982 statute so as to make trade
unions liable in damage actions for acts of all of their offi-
cials, including shop stewards and committees, unless the
union effectively repudiates them. The Blair Labor govern-
ment has left such matters unaltered.38
Secondary economic pressure of any kind can create lia-
bility unless it is targeted at supplies going to or from the
business with the dispute, or unless the struck work is trans-
ferred to a second employer. In the United States, when
secondary boycott charges are filed, the NLRB is obliged to
give them investigative priority. If the regional office finds
cause to believe that the statute’s secondary boycott provi-
sions are being violated, it must immediately petition the
federal district court for a temporary injunction against the
violation. Additionally a party may file suit for damages
caused by a secondary boycott. In essence, then, three pro-
ceedings can take place: an administrative proceeding of

56 Chapter 4
 the kind described above that would normally take place in
an unfair labor practice matter, a petition for injunctive re-
lief in federal district court, or a suit for damages.
The 1959 Landrum-Griffin amendments39 to the National
Labor Relations Act prohibit the negotiation of ‘‘hot cargo’’
clauses in labor contracts, which allow workers to refuse to
handle goods that are ‘‘hot’’ (produced by an employer
with whom the union has a dispute). Again the idea is that
the union ought not to involve an innocent or neutral em-
ployer in a dispute with which that employer has nothing to
do. Subcontracting clauses in labor contracts that preclude
an employer from contracting out work to nonunion
employees are made illegal by this provision. However, la-
bor and management may negotiate contract clauses that
forbid subcontracting to employers who provide inferior
conditions of employment to their employees if the object
of the contractual provision is to preserve work for the bar-
gaining unit’s members,40 and there are provisos in the
statute that give the unions more strength in the clothing
and construction industries because of the economic pecu-
liarities of those industries.41 In this situation no provision is
made for damage suits as in secondary boycott cases. Simi-
larly there is no provision for temporary injunctive relief,
since what is involved is not a work stoppage or picketing
but only the existence of an unlawful contract clause.
Another major unfair labor practice protection under the
Landrum-Griffin amendments outlaws organizational or re-
organizational picketing to secure recognition for the union
without the preferred method of selection through a secret
ballot vote—or, more specifically, without the support of a
majority of workers in the appropriate unit. This procedure
was enacted in reaction to the use of ‘‘blackmail’’ picket-
ing to pressure an employer to recognize a union without
any consultation with the workers. Congress found that
some unions (particularly the International Brotherhood
of Teamsters) would often picket a firm (particularly one
whose work force was composed of racial minorities), force
the employer’s recognition, and negotiate an agreement
without the workers’ interests at heart. The objective was

57 Unfair Labor Practices

 simply to get workers to authorize payroll deductions for
union dues.42 The workers would never hear from the
union, and the working conditions (usually substandard)
would not change.
Work stoppages arising out of jurisdictional disputes be-
tween unions over the same work are unlawful. If labor and
management have not negotiated procedures to resolve
such a conflict,43 the NLRB is empowered to do so.44 As is
the case with secondary boycotts, the employer may sue the
union in court without utilizing the NLRB’s administrative
procedures.

The Statute of Limitations

Section 10(b) of the National Labor Relations Act states
that the NLRB cannot issue a complaint if the alleged un-
fair labor practice occurred more than six months before
the filing of a charge with the Board.45 This provision also is
part of the Taft-Hartley amendments, and in 1960 the Su-
preme Court held that maintenance of an agreement con-
taining a union security clause bargained by a minority
union46 was barred by the Act’s statute of limitations where
the agreement had been executed more than six months in
advance of the charge.47 The decision has not ended litiga-
tion on this subject. In 1984 the Board held that it will
‘‘henceforth focus on the date of the alleged unlawful act,
rather than on the date its consequences become effective,
in deciding whether the period for filing a charge under
Section 10(b) has expired.’’ Furthermore ‘‘[w]here a final
adverse employment decision is made and communicated
to an employee—whether the decision is nonrenewal of
an employment contract, termination, or other alleged dis-
crimination—the employee is in a position to file an un-
fair labor practice charge and must do so within 6 months
of that time rather than wait until the consequences of the
act become most painful.’’48 Similarly section 10(b) bars a
charge where a party has ‘‘notice of a clear and unequivocal
contract repudiation. . . .’’ At that point, the moment of re-
pudiation, the unfair refusal to bargain occurs and the le-
gality of the refusal ‘‘. . . depends on the evidence that the

58 Chapter 4
 parties muster as to the repudiator’s right to take that
action at that time.’’49

Filing and Prosecution with the NLRB

Any person can file a charge alleging that a union, or an
employer, or one of its agents has engaged in an unfair
labor practice within the meaning of the National Labor
Relations Act. The NLRB, through its representatives of the
General Counsel at regional offices throughout the United
States, will generally provide such a party with a form in
which to set forth the allegation of a violation of the law. A
worker may fill out the form in the regional office, often
with the assistance of Board officials.
Once the charge is filed, the regional director, acting un-
der the authority of the General Counsel, will investigate to
determine whether there is cause to believe that the law has
been violated. If there is found to be cause, a complaint will
be issued at the local level;50 otherwise, the charge will be
dismissed (although generally an attempt will be made to
induce the charging employee to withdraw the charge or
to resolve it through some form of informal settlement).
Between 80 and 90 percent of the charges filed with the
NLRB are resolved through some form of settlement or
withdrawal51 —most often at the stage when the investiga-
tion has been completed but before anything has taken
place subsequent to the decision to issue a complaint. In-
deed, in fiscal year 1999, 86.6 percent of all cases viewed by
the Board as meritorious were settled. If the charge is dis-
missed, the charging party may appeal the decision to the
General Counsel in Washington. However, it is rare for a
charging party to prevail in Washington—and quite fre-
quently Washington officials had been directly involved in
the initial decision to dismiss the charge. If the charge is
dismissed, normally that is the end of the matter unless the
charge raises some issue on which the individual can file
an action in court, such as an allegation that the union
breached its duty to represent all its employees within
the bargaining unit fairly, or that the employer violated
the collective bargaining agreement. Such allegations

59 Unfair Labor Practices

 frequently raise issues that are separate and apart from the
question of whether a party has committed an unfair labor
practice under the National Labor Relations Act.
Theoretically, if there is a conflict in testimony or a ques-
tion of credibility, the General Counsel should not resolve
the factual issue administratively and dismiss the charge.
This kind of issue should be resolved in an open hearing
subsequent to the issuance of a complaint by the General
Counsel. However, in many cases private parties (particu-
larly unions) allege that the General Counsel resolves con-
flicts of fact administratively and makes it impossible for the
matter to be considered in a full hearing, where the exami-
nation and cross-examination of witnesses might reveal the
truth more effectively.
The General Counsel, as can be seen, has broad discre-
tion. Indeed the courts have thus far held that the General
Counsel has plenary authority to determine whether an un-
fair labor practice complaint should be issued52 —that is to
say, even arbitrary conduct by the General Counsel cannot
be reversed by the courts. The Supreme Court has yet to
consider this issue.
The issuance of a complaint triggers a hearing before an
administrative law judge (they were previously called ‘‘trial
examiners’’ but insisted on a more exalted title). These
judges, with offices in Washington, San Francisco, New York,
and Atlanta, are representatives of the judicial side of the
NLRB. They are independent, although they are supposed
to follow the precedent and authorities that are decided by
the five-person Board.
A hearing is held before the administrative law judge at
which the General Counsel’s lawyers represent the charging
party, and the employer or union charged with the violation
appears as a ‘‘respondent.’’ In 1995 the Board initiated on
an experimental basis an administrative law judge reform
that provided for the assignment of a judge under certain
circumstances to conduct settlement negotiations, so long
as the parties agreed to the procedure. It was made perma-
nent in 1996.53

60 Chapter 4
 Sometimes the charging party will be represented by his
or her own lawyer, and it is now established that the charg-
ing party is a party to the litigation with the same rights and
privileges possessed by the General Counsel and the re-
spondent.54 The Board has also given administrative law
judges discretionary authority to appoint interpreters in
unfair labor practice proceedings and to require the Board
to pay the costs.55 The hearing generally takes place in one
of the regional NLRB offices. Although the rules of evi-
dence used in the federal district courts apply, the hearing
is often more informal than the normal courtroom pro-
ceeding. The administrative law judges, like the Board
members, are not really judges in the sense that they possess
self-enforcing authority and do not wear robes. Although
lawyers always represent the Board and usually represent
the respondent as well, there is no requirement that one be
a lawyer to appear and argue before the administrative law
judge or the Board. Very often a union that is the charging
party represented by the General Counsel will send a local
official or a shop steward to represent its interests, and quite
frequently the union’s interests are represented more than
adequately by such individuals.
The hearing generally takes place on consecutive days
without interruption. Generally the notice of hearing states
that the hearing is to take place on a designated date, and
on each day thereafter until the matter is completed. After
the matter is completed, the parties submit briefs to the ad-
ministrative law judge, and he or she then renders a deci-
sion (which is in fact a recommended order). Another
reform instituted in 1996 allowed administrative law judges
to have the discretion to ‘‘hear oral argument in lieu of
briefs,’’ to read their decision into the record, and to issue
them either as bench decisions at the hearing or within 72
hours of the conclusion of the hearing.56 (In the 1990s the
Board heard oral argument in an unprecedented number
of instances.)57 If there are no exceptions or appeals to be
taken from the decision of the administrative law judge
within twenty days of its issuance, the decision is adopted

61 Unfair Labor Practices

 by the five-member Board in Washington. If exceptions
are filed, the transcript, briefs, and other relevant docu-
ments are sent to the Board in Washington for consider-
ation and decision. Only about 4 percent of all unfair
labor practice charges reach the Board in Washington for a
decision.
Although oral argument by the lawyers and other repre-
sentatives is permitted (in addition to the presentation of
evidence through witnesses and exhibits), the five-member
Board in Washington rarely hears oral argument. Most of
its decisions are based solely on the papers submitted to it
subsequent to the decision of the administrative law judge.
Most of the cases involve factual issues relating to alleged
discriminatory discharges and dismissals of workers. There
is no way that the Board can evaluate these matters more
effectively, from a transcript and briefs, than the adminis-
trative law judge who actually saw the witnesses, observed
their demeanor, and made resolutions relating to credibil-
ity. In the vast majority of cases, the administrative law
judge’s decisions are approved by the Board in their en-
tirety or with only slight modification. The problem here is
that a considerable amount of time is consumed by the
Board at this stage.
Most cases are decided by three of the Board’s five mem-
bers. The record of the case is filed in the executive secre-
tary’s office, and the case is then assigned on a rotation
basis. One member is assigned the case. Three members are
simultaneously designated to serve on the panel consider-
ing the case, and a legal assistant is assigned. Ultimately the
Board member and his or her Chief Counsel will become
involved in the drafting of the decision, but generally the
three representatives of the Board meet first. At this meet-
ing a decision will be made as to whether the Administrative
Law Judge’s decision should be affirmed, affirmed in part,
or reversed. If an opinion must be drafted, it will then be
put together in the office of the Board member to whom
the case was assigned initially. (Often, when the Board
affirms the administrative law judge’s decision, the opin-

62 Chapter 4
 ion will simply state that fact; this is called a ‘‘short form’’
opinion.)
If any Board member thinks a case is important, it will be
discussed and considered at a weekly meeting of the mem-
bers. A vote is taken and an opinion (sometimes a dissent-
ing opinion as well) is written and circulated. In recent
years the language used by various Board members where
there has been a disagreement on important cases has been
rather biting and sharp—at least when one compares it with
the language used by the courts.

The Appellate Procedure

Because the NLRB is an administrative agency and not a
court, its orders are not self-enforcing. Generally the Board
issues an order that the respondent cease and desist from
engaging in unlawful conduct. When workers have been
discriminatorially discharged, back pay will be awarded.
Sometimes respondents will be required to remedy their
violations.
Once a decision by the Board has been rendered, one of
two things happens. If the Board determines that the re-
spondent is unwilling to comply with the decision, it must
file a petition in the court of appeals for the district where
the case arose.58 This court is the appellate level immedi-
ately below the Supreme Court. Because of the increasing
caseload, there are often delays at this stage of the process
as well. It is often months before the Board is able to file a
petition for enforcement, and in many circuits a consider-
able period of time will elapse before the court has an op-
portunity to hear the case. The respondent or the charging
party, if it wishes, may file a petition for a review or an ap-
peal. Subsequent to the decision of the court of appeals, a
petition for a writ of certiorari or review may be filed with the
United States Supreme Court. An overwhelming number of
these petitions are not granted. One can readily understand
why this is so; approximately 8,000 petitions are filed each
year, and the Supreme Court has the time to hear only
around 80 of these cases.59

63 Unfair Labor Practices

Summary
We now have most of the general framework of the Na-
tional Labor Relations Act, as amended in 1947, and we
have also touched on some court rulings and later legisla-
tive amendments. Among the subjects covered have been
the constitutional basis of the NLRA; the organization of
the NLRB and the roles of the Board, the General Counsel,
and the regional offices; the jurisdictions of the courts and
the NLRB; the extent of the NLRA’s coverage; the defini-
tion of ‘‘labor organization’’ and the concept of exclusivity;
the definition of ‘‘appropriate bargaining unit’’; the elec-
tion procedure; the definition of ‘‘unfair labor practice’’ for
employer and union activities; and the handling of unfair
labor practice charges. As we turn to the establishing of
the collective bargaining relationship and to the law’s ap-
plication in that process and in the life of the established
relationship, we will be fleshing out the skeleton. The one
piece of the structure that we have not yet touched on—
remedies—will be better understood afterward.

64 Chapter 4
 5
Establishing the Collective Bargaining Relationship:
Organization and Recognition

This chapter addresses the problems that arise when a

union attempts to establish itself as the exclusive bargaining
agent for an appropriate unit of workers.1 It deals with the
tactics labor uses and the restraints the law places upon it.
(Of course no precise line can be drawn between the legal
tactics that are available to labor and management in the
organizational context and those that may be used once the
collective bargaining relationship has been established. Ac-
cordingly the reader should keep the basic concepts and
principles discussed here in mind when reading the suc-
ceeding chapters.)

Recruitment and Organization

In an organizational campaign, unions and employers are
concerned with union attempts to surmount obstacles to
communication with workers, union efforts to protect union
adherents in the workplace, the tactics that may be em-
ployed, and the circumstances under which recognition can
be compelled. Unions recruiting workers will generally
make contact with a small group of potential union adher-
ents. At the early stages of a union effort this contact may be
made secretly, to make it less likely that the employer will
counter-attack with antiunion communications or unlawful
reprisals.
 The names, addresses, and telephone numbers of em-
ployees in the unit are important to the union for this pur-
pose, but the NLRB requires the employer to make them
available only at a much later stage, after the regional di-
rector has ordered an election.2 Often this is too late. But
the Board has rejected the view that employees whose con-
tact was not face-to-face but rather through computers were
entitled to such information at an earlier stage.3 The union
needs the information early in the campaign, when secrecy
is desirable—long before it seeks access to company prop-
erty or files a petition. The competing interest is the privacy
of the employee who does not want to be bothered by so-
licitation, letters, and telephone calls.
Sophisticated full-time organizers are often used,4 and
literature on other union-negotiated contracts is sometimes
distributed. Sometimes the union will send the employer a
list of workers who have signed cards authorizing the union
to represent them or indicating the worker’s support for an
NLRB election. (This will be done where the union believes
that management will be less likely to retaliate against union
supporters if it is unable to plead ignorance of their iden-
tities.) Where union adherents at a small plant are vocal
and management imposes disciplinary sanctions upon them,
the NLRB will sometimes infer management’s knowledge
of individual workers’ support for the union even though
such knowledge cannot be proved. Under this ‘‘small plant’’
doctrine, unlawful motive can be inferred.5

Exclusivity and the Obligation to Bargain

Fundamental to an understanding of the rules relating to
organizational disputes (and of American labor law gener-
ally) are the principles that underlie the doctrine of exclu-
sivity as it has been defined by the Supreme Court. The
essential concern of the courts has been that the collective
interest should govern over individual advantages once the
majority of workers in an appropriate unit have designated
the union as their bargaining representative. In large part
this rule exists because individual contracts could serve as
an obstacle to organization and permit employers to ‘‘divide

66 Chapter 5
 and conquer.’’ Accordingly, the Court held, in J.I. Case Co.
v. NLRB,6 that individual contracts of employment cannot
be utilized by an employer as a basis for precluding nego-
tiations with the union on the same subject matter. The
Court held that an individual hiring contract was ‘‘sub-
sidiary’’ to the terms of a collective bargaining agreement,
and that therefore such a contract cannot waive any of the
agreement’s benefits ‘‘any more than a shipper can contract
away the benefit of filed tariffs, the insurer the benefit of
standard provisions, or the utility customer the benefit of
legally established rates.’’7 Wherever there was no obliga-
tion to bargain with a union, an individual contract could
be entered into or relied upon. But, said the Court:
Individual contracts, no matter what the circumstances that justify
their execution or what their terms, may not be availed of to defeat
or delay the procedures prescribed by the National Labor Rela-
tions Act looking to collective bargaining, nor to exclude the con-
tracting employee from a duly ascertained bargaining unit; nor
may they be used to forestall bargaining or to limit or condition
the terms of the collective agreement. . . .
We are not called upon to say that under no circumstances can
an individual enforce an agreement more advantageous than a
collective agreement, but we find the mere possibility that such
agreements might be made no ground for holding generally that
individual contracts may survive or surmount collective ones. The
practice and philosophy of collective bargaining looks with suspi-
cion on such advantages. Of course, where there is great variation
in circumstances of employment or capacity of employees, it is
possible for the collective bargain to prescribe only minimum rates
or maximum hours or expressly to leave certain areas open to
individual bargaining. But except as so provided, advantages to
individuals may prove as disruptive of industrial peace as disad-
vantages. They are a fruitful way of interfering with organization
and choice of representatives; increased compensation, if individ-
ually deserved, is often earned at the cost of breaking down some
other standard thought to be for the welfare of the group, and al-
ways creates the suspicion of being paid at the long range expense
of the group as a whole. Such discriminations not infrequently
amount to unfair labor practices. The workman is free, if he values
his own bargaining position more than that of the group, to vote
against representation; but the majority rules, and if it collectivizes
the employment bargain, individual advantages or favors will gen-
erally in practice go in as a contribution to the collective result.8

67 Establishing the Collective Bargaining Relationship

 Of course there are special groups of employees, such as
entertainers, professional athletes, and even university pro-
fessors, who do not fit into the mold of the normal collec-
tive bargaining process.

Discriminatory Discipline and Dismissal

The very first problem a union confronts in an organiza-
tional campaign is how to protect employees who are dis-
missed or disciplined. The obvious approach for a union
organizer faced with this problem is to file an unfair labor
practice charge with the NLRB. But how does a union or
an employee prove that the employer has discriminated
against the worker because of union activity or other pro-
tected activity? The Supreme Court has never squarely
addressed or resolved the question of what kind of evi-
dence must be adduced in order to make out discriminatory
intent.
The classic case arose in the Court of Appeals for the
Third Circuit and involved the problems of one Walter
Weigand. As the court said, the case of Walter Weigand was
‘‘extraordinary’’:
If ever a workman deserved summary discharge, it was he. He was
under the influence of liquor while on duty. He came to work
when he chose and he left the plant and his shift as he pleased. In
fact, a foreman on one occasion was agreeably surprised to find
Weigand at work and commented upon it. . . . He brought a woman
(apparently generally known as the ‘‘Duchess’’) to the rear of the
plant yard and introduced some of the employees to her. He took
another employee to visit her and when this man got too drunk to
be able to go home, punched his time card for him and put him
on the table in the representatives’ meeting room in the plant in
order to sleep off his intoxication. Weigand’s immediate superiors
demanded again and again that he be discharged, but each time
higher officials intervened on Weigand’s behalf because as was
naively stated he was a ‘‘representative’’ (in an organization that
was unlawfully ‘‘dominated’’). . . .9
When Weigand joined the CIO-affiliated union, he was
discharged. The NLRB and the court found that the dis-
charge was due to union activity, despite the employer’s
contention that it was based on accumulated offenses.

68 Chapter 5
 Thus Weigand was ordered reinstated. (Some courts have
awarded back pay to such individuals but refused to rein-
state them10 —and the Board and the courts have taken the
view that where postdischarge conduct is indefensible, the
Act’s remedial protection is not available for the purpose of
reinstatement.)11
The Supreme Court has addressed the troublesome issue
of mixed motives (i.e., when the employer has both valid
and unlawful reasons for dismissal) in both free-speech and
NLRA cases. The Court has held than an employer, once
confronted with a showing that constitutionally protected
conduct in the form of free speech played a ‘‘substantial’’
role in the decision not to rehire, could still show by a pre-
ponderance of evidence that it would have reached the
same decision in the absence of the exercise of protected
conduct.12 The test is whether the employer would have
dismissed or not hired ‘‘but for’’ the speech, where the
speech was the ‘‘primary reason for the dismissal or refusal
to rehire.’’13 I have criticized this decision as unduly re-
strictive in the context of First Amendment litigation, and
my judgment is that the same is true in connection with
any attempt to apply it to NLRA cases.14 Quite frequently
the employer has more than one reason for a dismissal. The
Court’s recent rulings make it difficult for an employee
with a less than unblemished record to succeed in such
cases.
Nonetheless, the NLRB adopted the Supreme Court’s test
in First Amendment cases for purposes of the NLRA in
Wright Line:15 ‘‘. . . we shall require that the General Counsel
make a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘motivating factor’ in the
employer’s decision. Once this is established, the burden
will shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct.’’16 The NLRB stressed that the General
Counsel still has the burden of producing the preponder-
ance of evidence to establish a violation—the burden that
the General Counsel assumes in any unfair labor practice

69 Establishing the Collective Bargaining Relationship

 proceeding before the Board. As a practical matter, how-
ever, the slight burden that is thrust upon the General
Counsel as part of the prima facie case and the explicit bur-
den on the company to come forward with reasons for the
action may give the General Counsel access to important
information at an early point in the hearing and thus a
competitive advantage that he or she would not otherwise
enjoy.
The Supreme Court unanimously affirmed the Board’s
position in NLRB v. Transportation Management Corp.17 Jus-
tice Byron White, the author of the Court’s opinion, specif-
ically approved of the Board’s burden-shifting rules relating
to the employer’s obligation to produce evidence subse-
quent to a showing that illegal conduct was a substantial or
motivating factor in the treatment of the worker. Said the
Court:
The employer is a wrongdoer; he has acted out of a motive that is
declared illegitimate by the statute. It is fair that he bear the risk
that the influence of legal and illegal motives cannot be separated,
because he knowingly created the risk and because the risk was
created not by innocent activity but by his own wrongdoing.18
The Court stated that the proviso in section 10(c) of the
Taft-Hartley Act that seems to separate (and thus put out of
the law’s reach) discharges ‘‘for cause’’ from those inter-
dicted by the statute has no applicability to mixed-motive
cases. Said the Court:
The ‘‘for cause’’ proviso was not meant to apply to cases in which
both legitimate and illegitimate causes contributed to the dis-
charge. . . . The amendment was sparked by a concern over the
Board’s perceived practice of inferring from the fact that some-
one was active in a union that he was fired because of anti-
union animus even though the worker had been guilty of gross
misconduct.19
Where employer conduct is ‘‘inherently destructive’’ of
employees’ self-organization rights, no proof of an anti-
union discriminatory intent is necessary to establish that the
law has been violated.20 In some circumstances the focus
will be on the impact of the employer’s conduct on the
employee.21

70 Chapter 5
Union Access to Company Property
One of the major problems a union is confronted with in an
organizational campaign is how to communicate with the
employees it seeks to organize. The leading case in this re-
gard is Republic Aviation Corp. v. NLRB,22 in which the em-
ployer had prohibited all solicitation in the factory or offices
on company property. An employee who had been warned
of the rule solicited union membership in the plant by
passing out application cards to employees during his own
free time on the lunch break. He was dismissed. Three
other employees were dismissed for wearing UAW-CIO caps
and union steward buttons in the plant after being re-
quested to remove them. The NLRB found that the dis-
missal of the workers, and also the rule itself, constituted
unfair labor practices, and that therefore the employer’s
conduct had improperly interfered with the employees
right to ‘‘organize mutual aid without employer interfer-
ence.’’23 The special problem posed in this case was that
there was no evidence that the plant’s location made solici-
tation away from company property ineffective in reaching
prospective union members. Thus the employer contended
that the union could communicate elsewhere without in-
terfering with the company’s property rights. However, the
Supreme Court approved the NLRB’s conclusion that
the employer had no business justification for precluding
the activity outside of work hours and that such a rule could
therefore be presumed to be an ‘‘unreasonable impediment
to self-organization’’ and unnecessary in connection with
the maintenance of production or discipline.24
A number of basic issues involving employee activity and
the promulgation of rules by the employer have plagued
the Board for years. The Board had concluded that em-
ployer promulgated rules prohibiting solicitation and distri-
bution of literature during ‘‘working time’’—even when
promulgated in conjunction with prohibition against activ-
ity during ‘‘working hours’’—were presumptively invalid
because of their ambiguity;25 that is, the worker would not
know of his or her right to engage in union activity during
paid lunch breaks and rest periods. In 1984 the Board, with

71 Establishing the Collective Bargaining Relationship

 Member Don Zimmerman dissenting, overruled this deci-
sion and held that rules couched in terms of ‘‘working
time’’ are lawful.26 The Board’s view was that the meaning
of ‘‘working time’’ and ‘‘working hours’’ within the context
of no-solicitation rules had ‘‘attained substantial under-
standing,’’ and that ‘‘many unions and employers had fash-
ioned their instructions, policies and rules’’ so as to make
clear the availability of paid rest periods for union activity.27
A majority of the Board has also held that no-solicitation
rules that make an exception for charitable solicitation are
not per se invalid.28 Disparate enforcement of such a rule,
in contrast to a ‘‘small number of isolated beneficent acts’’29
or ‘‘an employer’s toleration of isolated beneficent solicita-
tion,’’30 can run afoul of the law.
A few years after Republic Aviation, when the Supreme
Court considered the access of nonemployee union orga-
nizers to company property, it looked at the matter quite
differently—even though the employees’ right to commu-
nicate, albeit with more expert outside assistance, was
involved. In this context the Court did consider the avail-
ability of alternate avenues of communication to be rele-
vant.31 In this case the NLRB had noted that other means of
communication (the mail, telephones, etc.), as well as the
homes of the workers, were open to the union. The Court,
which found that the situation did not involve workers who
were isolated from communication attempts or who lived
on company property,32 stated:
. . . when the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate with them
through the usual channels, the right to exclude from property has
been required to yield to the extent needed to permit communi-
cation of information on the right to organize.
. . . no . . . obligation [similar to that owed to the employees in
connection with their right to solicit during nonworking hours on
company property] is owed nonemployee organizers. Their access
to company property is governed by a different consideration. The
right of self-organization depends in some measure on the ability
of employees to learn the advantages of self-organization from
others. Consequently, if the location of a plant and the living
quarters of the employees place the employees beyond the reach

72 Chapter 5
 of reasonable union efforts to communicate with them, the em-
ployer must allow the union to approach his employees on his
property. No such conditions are shown in these records.33
However, as the Supreme Court noted in another context,
‘‘The place of work is a place uniquely appropriate for dis-
semination of views concerning the bargaining representa-
tive and the various options open to the employees.’’34
In 1978 the Supreme Court concluded that the right of
workers to distribute literature on nonworking portions of
the employer’s property extends to disputes that involve
neither organizational nor bargaining disputes.35 The Court
held that the distribution of the union newsletter express-
ing opposition to a state’s right-to-work law and to a presi-
dential veto of an increase in the minimum wage fell within
the ‘‘right to engage in other concerted activities for the
purpose of . . . mutual aid or protection’’ protected by sec-
tion 7 of the NLRA. On the other hand, ‘‘purely political
tracts’’ are unprotected, even though the election of politi-
cal candidates, for instance, can have an effect on employ-
ment conditions.36
Another group of cases involving union access to com-
pany property has to do with ‘‘quasi-public’’ property or
facilities (those generally open to customers or the public).
In Central Hardware Co. v. NLRB 37 the Supreme Court was
confronted with a rule prohibiting nonemployees from
soliciting in the parking lots of retail establishments. The
NLRB held that this prohibition was overly broad and vio-
lated the NLRA. In this case the Board relied on a Court
decision that a shopping center was the functional equiva-
lent of a business district, in which First Amendment rights
can normally be asserted. But the Court, in an opinion
written by Justice Lewis Powell, ruled that this decision had
no applicability to the NLRA.38 The Court characterized the
principle involved in the issue of the access of nonemployee
union organizers to employers’ property as follows:
This principle requires a ‘‘yielding’’ of property rights only in the
context of an organization campaign. Moreover, the allowed in-
trusion on property rights is limited to that necessary to facilitate
the exercise of employees’ [section] 7 rights. After the requisite

73 Establishing the Collective Bargaining Relationship

 need for access to the employer’s property has been shown, the
access is limited to (i) union organizers; (ii) prescribed nonwork-
ing areas of the employer’s premises and (iii) the duration of or-
ganization activity. In short, the principle of accommodation . . . is
limited to labor organization campaigns, and the yielding of prop-
erty rights it may require is both temporary and minimal.39
The Court sated that precedent relative to ‘‘large’’ shopping
centers was not applicable to every private property open to
the public. Said the Court: ‘‘Such an argument could be
made with respect to almost every retail and service estab-
lishment in the country, regardless of size and location.’’40
Accordingly Powell concluded that the Board and appellate
court had erred in relying on the shopping-center prece-
dent to establish protection for union access.
The next important case was Hudgens v. NLRB,41 which
concerned a group of union members who, while engaged
in peaceful primary picketing within a privately owned
shopping center, had been threatened with arrest for crim-
inal trespass. Preliminarily Justice Potter Stewart, speak-
ing for the Court, noted that the rights and liabilities of
the parties in this case were ‘‘dependent exclusively’’ upon
the National Labor Relations Act and not upon the First
Amendment. This arbitrary determination eliminated any
potential for confusion arising out of inconsistency between
constitutional and statutory standards. The Court noted
that early decisions involving access to company property
had involved a determination of what the ‘‘proper accom-
modation’’ would be in a given case.
The Court stated that there were differences among some
of the earlier decisions that involved organizational activity
carried on by nonemployees on the employers’ property.
The Court pointed to three such differences and remanded
the case to the NLRB. Said the Court: ‘‘The context of the
[section] 7 activity in the present case was different in sev-
eral respects which may or may not be relevant in striking
the proper balance. First, it involves the lawful economic
strike activity rather than organizational activity. . . . Second,
the [section] 7 activity here was carried on by Butler’s
employees (albeit not employees of its shopping center

74 Chapter 5
 store), not by outsiders. . . . Third, the property interests
impinged upon in this case were not those of the employer
against whom the [section] 7 activity was directed, but of
another.’’42
Upon remand the NLRB took the position that economic
activity of the kind involved in Hudgens warranted ‘‘at least
equal deference’’ as organizational picketing. The Board
further took the position that the pickets were entitled to at
least as much protection as nonemployee organizers in
some of the cases that had appeared before the Court pre-
viously. But the Board noted that the messages of orga-
nizational campaigns and economic strikes were aimed at
different audiences. In Hudgens the pickets were attempting
to communicate with the public that would do business with
the employer as well as with the employees who had not
joined the strike. Said the Board:
One difference between organizational campaigns as opposed to
economic strike situations is that in the former the section 7 rights
being protected are those of the intended audience (the employ-
ees sought to be organized), and in the latter the section 7 rights
are those of the persons attempting to communicate with their in-
tended audience, the public as well as the employees. A further
distinction between organizational and economic strike activity
becomes apparent when the focus shifts to the characteristics of
the audience at which the section 7 activity in question is directed.
In an organizational campaign, the group of employees whose
support the union seeks is specific and often is accessible by means
of communication other than direct entry of the union organizers
onto the employer’s property, such as meeting employees on the
street, home visits, letters, and telephone calls.43
The NLRB noted that the general public was the ‘‘more
important component of the audience’’ and that often the
mass media were not ‘‘reasonable’’ means for publicizing a
labor dispute. With regard to the Court’s statement that the
property rights impinged upon were not those of the em-
ployer against whom the picketing was aimed, the Board
noted that the property, although privately owned, was
open to the public and was the equivalent of sidewalks,
which are normally public property. In this regard the
Board, which since Hudgens had extended those principles

75 Establishing the Collective Bargaining Relationship

 to property such as the interiors of private banks, seems to
have been reviving a First Amendment approach that the
Supreme Court had used in connection with picketing on
private property in shopping centers.44 Moreover the Court
may have given union activity on employer property more
protection by concluding that the states may expand the
right to distribute literature (and presumably to picket) at a
shopping center, despite the owner’s constitutional interest
in his property, under circumstances where access would be
denied under federal law.45
Hudgens has spawned litigation about union access that
has come back to the Supreme Court and may do so yet
again. The NLRB, with the approval of the Ninth Circuit
Court, has held that a union’s picketing of the forty-sixth
floor of a bank (in an economic dispute) with protected by
the NLRA;46 communication there was regarded as more
effective by both the Board and the Ninth Circuit Court.
But in another case, one involving organizational solicita-
tion and the employer’s refusal to supply employees’ names
and addresses, the Fourth Circuit Court reversed the
Board’s holding that the union had no other effective al-
ternative. The court characterized the union’s efforts as
‘‘lackadaisical.’’47
The Board has attempted to fashion rules relating to
nonemployee organizer access to private property,48 one
such failed effort being the Jean Country49 decision. In this
case the Board held that the availability of reasonable alter-
native means of access to private property is a factor that
must be considered in each access case. This does not mean
that in each case the evidence must establish that the union
actually attempted to use reasonable alternatives but rather
that objectively the evidence must establish that ‘‘reasonably
effective alternative means [access to private property] were
unavailable in the circumstances.’’50 The Board stated that
it would be the ‘‘exceptional case where the use of news-
papers, radio and television will be feasible alternatives to
direct contact.’’51 Section 7 rights, which are ‘‘central’’ in
the spectrum established in Hudgens, are the right to orga-
nize and to protest unfair labor practices. In addition to the

76 Chapter 5
 nature of the right ‘‘. . . the identity of the employer to
which the right is directly related (e.g., the employer with
whom a union has a primary dispute), the relationship of
the employer or other target to the property to which access
is sought, the identity of the audience to which communi-
cations concerning the Section 7 right are directed, and the
manner in which the activity related to that right is carried
out.’’ Factors to be taken into account in assessing property
rights are ‘‘. . . the use to which the property is put, the
restrictions, if any, that are imposed on public access to the
property, and the property’s relative size and openness.’’
The Board stated that ‘‘quasi-public traits tend to lessen the
private nature of the property because it is apparent that
the public is extended a broad invitation to come on the
property, and not necessarily with the specific purpose of
purchasing a particular product or service.’’52 Relevant fac-
tors on alternative means of communication include ‘‘. . .
the desirability of avoiding the enmeshment of neutrals
in labor disputes, the safety of attempting communica-
tions at alternative public sites, the burden and expense of
nontrespassory communication alternatives, and, most sig-
nificantly, the extent to which the exclusive use of the non-
trespassory alternatives would dilute the effectiveness of the
message.’’53
However, in a far-reaching opinion, the Supreme Court
in Lechmere v. NLRB, by 6–3 vote, has reversed the Jean
Country rule and its balanced protection for nonemployee
organizers.54 Stated Justice Thomas for the majority: ‘‘By its
plain terms . . . the NLRA confers rights only on employees,
not on unions or their nonemployee organizers.’’55 The
Court’s view in Lechmere was that only where access to em-
ployees outside an employer’s property was ‘‘infeasible’’ did
it become necessary to balance employee and employer’s
rights—and that infeasibility could be established only as a
narrow exception to the general rule, namely where em-
ployees were located in isolated facilities such as logging
camps, mining camps, and mountain resort hotels. There,
said the Court, employees might be ‘‘. . . isolated from ordi-
nary flow of information that characterizes our society.’’56

77 Establishing the Collective Bargaining Relationship

 Particularly instructive was the Court’s view of what could
constitute alternative means of communication. Said Justice
Thomas, ‘‘. . . signs (displayed for example from the public
grassy strip adjoining . . . [the employer’s] parking lot) would
have informed the employees about the union’s organiza-
tional efforts.’’57 The Court was of the view that a contrary
rule would be aimed at providing success for the unions,
not access to employees.
In the wake of Jean Country, secondary handbilling which
is aimed at following the struck product to a secondary situs
has had been held to be protected.58 But the Court of
Appeals for the Ninth Circuit has held that because the
exception applying to nonemployee organizers who are at-
tempting to reach employees is a narrow one, no access to
private property may be provided where union organizers
are trying to advertise their dispute to customers.59 How-
ever, it would appear that the reasoning of Lechmere is ap-
plicable to the ways in which nonemployee organizers
would reach employees and not customers and that there-
fore the Board’s pre-Lechmere rules might remain valid as
they applied to the public or customers. Nonetheless, the
Court’s hostility to union access on private property sup-
ports the Ninth Circuit’s view in Sparks Nugget.60
Aside from isolated facilities such as those described by
Justice Clarence Thomas, the only circumstances in which
nonemployee organizers appear now to have access to pri-
vate property are where the property is governmental or
of a governmental nature,61 or where the employer has
allowed other organizations—other than the employer
itself 62 —to have access.63 The NLRB has held the Lechmere
requires that the same presumption of union access apply
where the union is attempting to reach the public rather
than employees.64
Despite the doctrine of preemption, unions may encoun-
ter still other obstacles to access from state criminal-trespass
statutes. Thus the role of the states is double-edged, for the
Supreme Court has held (in a divided vote) that criminal-
trespass statutes may be used by owners against union or-
ganizers. Generally the American doctrine of preemption,

78 Chapter 5
 because of the supremacy of federal law, deprives the states
of authority to act in areas such as labor-management rela-
tions where Congress has legislated extensively.65 But in
cases of trespass the owner may call on the police or other
law-enforcement authorities for assistance—possibly even if
the NLRB were to rule that union organizers have the right
to be on the property in question.66 Since the Board’s ad-
ministrative process generally moves less quickly than state
courts, the employer may prevail regardless of how firmly
the union activities are protected by the National Labor
Relations Act unless the Board enjoins the state court
proceedings.
In 1991 the Board held that once the General Counsel
issues a complaint67 on a Jean Country theory, a state court
proceeding is preempted by federal law68 and thus may be
enjoined. These decisions remain intact under Lechmere
notwithstanding its repudiation of the former decision.69
The impact of course is far more limited than it was prior to
1992.
Even though most of the prominent litigation on orga-
nizers’ access involves nonemployees, there remain a con-
siderable number of areas for dispute involving solicitation
of employees by employees and the right of employees to
distribute literature. As we have seen, there is a presump-
tion of illegality when an employer bans solicitation by
employees outside of their working hours. However, this
presumption does not apply in the case of retail department
stores. There the employer may prohibit all solicitation in
the selling area during working and nonworking hours.70
Similar broad nonsolicitation rules are permitted in restau-
rants and fast-food outlets.71 After the NLRA was amended
to include nonprofit health-care institutions,72 the full
NLRB ruled unanimously that a broad nonsolicitation rule
was presumptively invalid ‘‘in areas other than immediate
patient care areas such as lounges and cafeterias.’’73 The
Supreme Court approved of solicitation in hospital cafe-
terias and coffee shops;74 it was not persuaded by the argu-
ment that, since the public and patients were admitted to
the cafeteria of the hospital, the rule for restaurants should

79 Establishing the Collective Bargaining Relationship

 apply. The main function of a hospital is patient care and
therapy, not the serving of cafeteria food, and the cafeteria
is a natural gathering place for employees and can be used
for solicitation with little interference with patient care.
Thus the balancing of employees’ rights to organize and
employers’ rights to maintain discipline here favors allow-
ing a presumption that a ban on solicitation in the cafeteria
is illegal. However, in a later case the Supreme Court re-
fused to extend this principle to sitting rooms and corri-
dors, and expressed serious doubts that the presumption of
illegality applied with respect to those areas.75
Although it appears that employees do not possess a stat-
utory right to post union notices on bulletin boards,76 an
employer may not deny employees the right to post union
notices while permitting other noncompany information to
appear.77 This practice constitutes unlawful discrimination.
Finally, it is important to note that the NLRB has held
that nonemployee organizers may have access to company
property to respond to an employer’s speech made to a
‘‘captive audience’’ of workers during work hours where the
employer has a legitimate but very broad nonsolicitation
rule.78 In these circumstances the Board found a glaring
imbalance in opportunities for organizational communica-
tion and an interference with the right to organize.

Organizational Picketing
For the union, burdens as well as benefits attend organiza-
tional picketing. In the 1960 Curtis Bros. decision79 the Su-
preme Court, speaking through Justice William Brennan,
held that an attempt by a trade union representing a mi-
nority of the workers to impose a bargaining obligation on
an employer through picketing was not an unfair labor
practice within the meaning of the Taft-Hartley amend-
ments. The argument of the employer and the NLRB be-
fore the Court was that the picketing inevitably violated the
free choice of employees to join or refrain from union
activity, which is protected by the NLRA. The Court, refer-
ring to some of the constitutional cases that have protected
picketing, noted that ‘‘in the sensitive area of peaceful pick-

80 Chapter 5
 eting Congress has dealt explicitly with isolated evils which
experience has established flow from such picketing.’’80 Ac-
cordingly the Court was unwilling to find a basis for statu-
tory violation in the absence of the ‘‘clearest indication in
the legislative history’’ of the statute.81
Amendments passed by Congress in 1959 purported to
regulate organizational picketing in certain key respects.
The idea was to permit the NLRB to enjoin picketing aimed
at subverting a valid collective bargaining relationship al-
ready entered into with another union and organizational
picketing aimed at reversing a union’s defeat at the ballot
box within twelve months of the election. The most compli-
cated of these picketing regulations in this respect is section
8(b)(7)(C),82 which limits picketing aimed at obtaining
recognition to a ‘‘reasonable period of time’’ not to exceed
thirty days. Informational picketing is exempted from the
statutory prohibition unless it has the effect of interfering
with deliveries. An expeditious election is held without the
usual showing of interest prerequisite and without an ad-
ministrative hearing about an appropriate unit because of
the need for prompt relief. Picketing and strikes can cause
irreparable harm to an employer.
The NLRB and the courts have taken the position that
area-wage-standard picketing (picketing protesting wages
and working conditions that are inferior to those offered by
comparable employers in the geographic labor market) is
not prohibited by the NLRA, and recent Board decisions
have affirmatively protected employees who engage in such
picketing from discipline and discharge under the Jean
Country doctrine.83 Picketing, although it may not be en-
gaged in for an unreasonable period of time with a view to-
ward obtaining recognition through economic pressure
rather than the ballot box, may be engaged in if it is infor-
mational in nature. Where picketing, despite unlawful rec-
ognitional intent, is simply an attempt to advertise a dispute
to the public, the Board cannot find an unfair labor prac-
tice unless there is more than isolated interference with
deliveries. This rule has meant that a union, with competent

81 Establishing the Collective Bargaining Relationship

 counsel, can easily escape the organizational-picketing pro-
visions of the NLRA unless the picketing proves disruptive.
There are two particular difficulties with the restrictions
on organizational picketing. On the one hand, Congress
was deeply concerned with prohibiting ‘‘blackmail’’ picket-
ing, which was often engaged in by labor. On the other
hand, organizational picketing occurs in a significant num-
ber of legitimate situations, particularly in the South and in
rural areas where the union has a genuine concern with the
plight of workers who need protection. Employers’ coun-
terattacks against organizational drives, sometimes involving
unlawful tactics, frequently make it difficult for a union to
demonstrate majority support through the ballot box. Un-
der such circumstances picketing to dissuade employees
from working and others from doing business with the em-
ployer may be a legitimate weapon.
Moreover the Supreme Court has attempted to establish a
demarcation line between different kinds of picketing that
occur in organizational efforts. The Court has seen ‘‘public-
ity’’ picketing as the kind of expression of thought that is
protected by the First Amendment.84 However, ‘‘signal’’
picketing, which is not only aimed at employees but also
designed to produce an immediate response on the part of
union members who are subject to union disciplinary sanc-
tions, is deemed to be conduct that can be controlled and
regulated by Congress and sometimes the states.85 Specifi-
cally the ‘‘informational picketing’’ proviso is meant to pro-
tect ‘‘publicity’’ picketing against government prohibition,
even though it might be part of a union effort to secure
recognition without an NLRB-approved election. The
thinking of Congress was that an unduly broad prohibition
against organizational picketing might not only be bad pol-
icy (because of the legitimate situation referred to above)
but might also be constitutionally deficient.

Secondary Picketing
Secondary picketing is another tactic that has created legal
difficulties for the trade-union movement. If the union is
successful, the primary target of the boycott is more likely to

82 Chapter 5
 settle on the union’s terms or to recognize the union if the
dispute has a recognitional objective. Such disputes can
arise both where a union has recognitional objectives and
where there is an established relationship with the primary
employer and the dispute is about wages, hours, and work-
ing conditions.
As noted above, the Norris-LaGuardia Act reversed the
common-law view of secondary boycotts and their illegality
that had been accepted by the Supreme Court. But Con-
gress, through the 1947 Taft-Hartley amendments, revived
the secondary-boycott prohibitions both for the purposes
of NLRB administrative hearings and for the purposes of
damage suits in federal and state courts, though it did not
do so in connection with disputes arising under the Railway
Labor Act.86 The Board, as with organizational picketing, is
obligated to give investigative priority to unfair labor prac-
tice charges involving secondary picketing and is mandated
to proceed directly in a federal district court to obtain an
injunction if the regional attorney in the NLRB field office
has reasonable cause to believe that a violation is being
committed. Additionally secondary economic pressure un-
dertaken by virtue of a so-called most-favored-nation agree-
ment obligating the union to get the same or better from
the secondary target than have been obtained from the pri-
mary target, can still constitute a conspiracy in violation of
antitrust law.87
The NLRA then is designed to protect third parties who
are innocent or wholly unconcerned with the dispute in
question. But who is an innocent party? Who is wholly un-
concerned? In a sense even the general public has an inter-
est if it will pay less for an employer’s goods if the union
loses a strike. On the other hand, many employers who have
commercial relationships with the primary target of a strike
have absolutely nothing to do with the dispute, and there-
fore it would seem unfair to involve them.
As written, the NLRA purports to prohibit economic
pressure—or the threat thereof 88 —aimed at bringing
about a cessation of business between the primary employer
and other employers. Literally this might mean that a

83 Establishing the Collective Bargaining Relationship

 union-established picket line at the primary employer’s
premises that was intended to dissuade the importation of
strikebreakers by another company to perform the striking
workers’ jobs would be unlawful because the object would
be to obtain a cessation of business between the primary
employer and the company importing the strikebreakers.
However, the Supreme Court has not read the statute that
way.89 The first exception to the literal language of the stat-
ute is based on the ‘‘ally’’ doctrine, which has permitted
workers to picket a secondary employer when the union is
pursuing work that would have been performed by the pri-
mary employer’s workers before the strike but has been
farmed out to the secondary employer.90
Organizational disputes can affect more than one em-
ployer and thus create secondary problems in other con-
texts. The 1959 amendments make unlawful collective
bargaining agreements containing ‘‘hot cargo’’ clauses
(which, as mentioned above, permit employees to refuse to
handle goods produced by an employer with whom the
union has a dispute—e.g., one whose products do not carry
a union label) or subcontracting clauses (which preclude
contracting out work to a nonunion employer).91 The rea-
son is that such contractual provisions have a secondary
objective: to influence the labor relations policies by orga-
nizing workers through a third innocent party, the em-
ployer who has signed the contract. On the other hand,
subcontracting clauses that preserve the bargaining unit’s
work (e.g., agreements that prohibit subcontracting work to
employers who provide substandard working conditions)
are lawful.92
However, the Supreme Court held in the landmark case
of NLRB v. Denver Building Trades 93 that, where an object of
picketing is to interfere with the secondary employer and
its employees and their relationship with the primary em-
ployer, a violation of the statute can be made out. This
case arose in the context of ‘‘common situs’’ picketing and
multiemployer construction facilities, where a picket line at
the primary employer’s facilities would necessarily affect
the secondary employees by attempting to persuade all em-

84 Chapter 5
 ployees to refuse to work. This would place great pressure
on the primary employer to accede to union demands and
would stand a good chance of success—particularly because
employee response in the construction industry is likely to
be automatic and triggered by a ‘‘signal.’’94 The difficulty in
reconciling Denver Building Trades with the ally doctrine and
the Court’s subsequent holding that common situs picket-
ing at an industrial establishment where the employer
maintains separate gates for outside contractors does not
violate the statute95 has created an anomaly that is inequi-
table for building-trades workers. On an number of occa-
sions (most recently in 1977)96 this has led the AFL-CIO
Building Trades Department to press for legislation that
would reverse Denver Building Trades and permit common
situs picketing. The concern of the building trades in this
regard has increased in recent years as nonunion construc-
tion work has spread, but every effort on their part has been
unsuccessful. Even when both houses of Congress passed a
common situs bill, President Gerald Ford vetoed it.97 The
prevailing view has accepted the employer’s position that if
Denver Building Trades were to be reversed, unions would
have considerable power to organize an entire building site
by involving employers (other subcontractors) who have no
interest in the dispute.
It would appear as though the construction unions have
another advantage not possessed by other labor organiza-
tions: Congress exempted the construction industry, along
with the clothing industry, from the secondary-boycott
prohibitions contained in the statute’s treatment of ‘‘hot
cargo’’ clauses. However, the Supreme Court seems to have
said that the construction industry proviso does not im-
munize from the secondary-boycott prohibitions all union
picketing intended to obtain an agreement under which the
general contractor could subcontract work to employers
who had signed contracts with the picketing union.98 In
Woelke & Romero Framing, Inc. v. NLRB,99 the Court indi-
cated that some kind of collective bargaining relationship
between the picketing union and the contractor was a pre-
requisite to the protection of the construction industry

85 Establishing the Collective Bargaining Relationship

 proviso, and it left open for future resolution the question
of whether the union could seek a clause limiting the sub-
contracting of work to unionized subcontractors to one
particular job site or to a geographic area, such as a county,
within the union’s jurisdiction. The Court unanimously
held that a construction union may lawfully seek and nego-
tiate such a clause for a geographic area.100 The Court held
that where there is a collective bargaining relationship be-
tween a union and a contractor, demonstrating the union’s
interest in organizing that employer’s employees, a subcon-
tracting clause is lawful under the construction industry
proviso—even though such a clause induces ‘‘top-down
organizing’’ (organizing by pressure from other employers
rather than through union recruitment), which Congress
regarded as an evil when it enacted the secondary-boycott
prohibitions.
The Court stated that the proviso was intended not only
to avoid jobsite friction between union and nonunion
workers but also to mitigate the impact of Denver Building
Trades. Said Justice Marshall, speaking for the Court:
. . . we believe that Congress endorsed subcontracting agreements
obtained in the context of a collective-bargaining relationship—
and decided to accept whatever top-down pressure such clauses
might entail. Congress concluded that the community of interests
on the construction jobsite justified the top-down organizational
consequences that might attend the protection of legitimate col-
lective bargaining objectives.101

Another part of the secondary-boycott issue relates to

secondary consumer picketing (picketing to dissuade the
public from patronizing retail establishments rather than to
dissuade employees from working). The Supreme Court has
construed the statute to permit peaceful secondary picket-
ing that addresses the primary dispute. However, as is the
case with so many secondary-picketing problems, the prop-
osition is more easily stated in the abstract than applied to
concrete situations. In the Tree Fruits case102 the union had
called a strike against fruit packers and warehousemen who
were doing business in Yakima, Washington. The struck
firms sold their apples to the Safeway chain of retail stores

86 Chapter 5
 in and about Seattle. The union instituted a consumer boy-
cott of the apples and placed pickets in front of a number
of the stores in that city. The pickets distributed handbills
and wore placards that said ‘‘To the Consumer: Non-union
Washington State apples are being sold at this store. Please
do not purchase such apples. Thank you. Teamsters Local
760, Yakima, Washington.’’103 The Supreme Court held that
not all secondary consumer picketing was prohibited by the
statute, and that Congress had legislated against ‘‘isolated
evils.’’ Conceding that the public might not read picket
signs and handbills aimed explicitly at the primary em-
ployer, the Court held that where the union’s appeal was
‘‘closely confined to the primary dispute’’ the secondary-
boycott prohibitions were not violated.104
This Supreme Court ruling on secondary consumer pick-
eting is difficult to apply to economically dependent or
captive secondary employers who purchase only from the
primary employer. Examples of this are gasoline stations
and exclusive franchise dealers of major automobile com-
panies. It is impossible for the union to confine its appeal to
the primary employer in a way that will not be aimed at the
entire structure of the secondary employer in this situation.
At Safeway it was different because the Yakima apples were
only one of many products the company was handling. A
divided Court held that where the picketed secondary em-
ployer is economically dependent upon the primary em-
ployer, the union violates the statute’s secondary-boycott
prohibitions by engaging in consumer picketing because
the secondary employer cannot shift to another product (a
possibility that was open to Safeway).105 The Court theo-
rized that the only possible response by the secondary em-
ployer is to shut down, even though some such employers
might be able to obtain new products or business rela-
tionships. Thus the picketing would necessarily bring a
neutral party into a dispute in which it is not involved—the
very abuse at which the secondary-boycott prohibitions are
aimed.
The Court rejected the contention that First Amendment
protection was invaded by Congress inasmuch as the statute

87 Establishing the Collective Bargaining Relationship

 is aimed at unlawful objectives, namely spreading ‘‘labor
discord by coercing a neutral party to join the fray.’’106 Jus-
tice Stevens, in a concurring opinion, characterized the
activity at issue as signal picketing: ‘‘The statutory ban in
this case affects only that aspect of the union’s effort to
communicate its views that calls for an automatic response
to a signal rather than a reasoned response to an idea.’’107
Subsequently a unanimous Supreme Court spoke approv-
ingly of Justice Stevens’s characterization of consumer
picketing as signal picketing.108 The Court’s simultaneous
bestowal of First Amendment protection on a civil-rights
boycott is puzzling and troublesome.109
Meanwhile, a unanimous Court, speaking through Justice
White, has held that peaceful handbilling without picketing
or patrolling protesting the existence of substandard wages
is not a violation of the Act.110 To rule otherwise, said the
Court, would pose ‘‘serious questions of the validity of [the
secondary-boycott prohibitions in the statute] under the
First Amendment.’’111 The Court drew a sharp distinction
between picketing and leafletting. Said the Court with re-
gard to the latter activity:
That a labor union is the leafletter and that a labor dispute was
involved does not foreclose this analysis. We do not suggest that
communications by labor unions are never of the commercial
speech variety and thereby entitled to a lesser degree of Constitu-
tional protection. The handbills involved here, however, do not
appear to be typical commercial speech such as advertising the
price of a product or arguing its merits, for they pressed the benefits of
unionism to the community and the dangers of inadequate wages to the
economy and the standard of living of the populace. Of course, com-
mercial speech itself is protected by the First Amendment . . .112

Compulsory Recognition of a Union

In a number of relationships, the union establishes majority
status and recognition without certification by presenting to
the employer authorization cards indicating that a majority
of the employees in an appropriate unit desire to be repre-
sented by the union. Prior to the 1947 amendments, the
NLRB permitted unions to be certified for the purpose of
representing employees on the basis of authorization cards

88 Chapter 5
 and petitions as well as electoral victories. (Certification by
the Board obligates the employer to bargain for specific
job classifications for a unit and protects the union from
challenge by rivals.) The 1947 amendments eliminated
certification through any method other than an election
conducted by the Board. (Unions, employees, and the
employer—where a demand is made upon it—may petition
the board for an election.) But can a union obtain legally
binding recognition from the employer without a Board
election and certification on the basis of authorization cards
or petitions? This was the issue presented to the Supreme
Court in NLRB v. Gissel.113 The Court found that legislative
history relating to the Taft-Hartley amendments did not
preclude union recognition on the basis of authorization
cards without certification. Although the Court noted that
the election process possessed an ‘‘acknowledged superior-
ity,’’ it held that authorization cards were not ‘‘inherently
unreliable.’’114 Indeed the Court stated that cards ‘‘may be
the most effective—perhaps the only—way of assuring em-
ployee choice’’ where unfair labor practices had made it
impossible to test employees’ free choice through the ballot
box.115
But the Court left open a number of questions in Gissel.
Does an employer have an obligation to recognize the
union on the basis of authorization cards where it has not
committed independent unfair labor practices that would
taint the electoral process? Must the employer, if it wishes to
protect itself, petition the NLRB (as it is permitted to do by
the Taft-Hartley amendments)116 for an election? In 1974
the Court held by a 5–4 vote that even where the union
presents authorization cards indicating that a majority of
the employees support the union and where that support is
also manifested through a refusal to cross a union picket
line, the employer is not acting in ‘‘bad faith’’ by refusing to
recognize the union.117 It is the union that has the burden
of taking the next step and invoking the electoral process.
Another unresolved issue is related to the question of
when recognition may be thrust upon an employer that has
engaged in extensive or egregious unfair labor practices.

89 Establishing the Collective Bargaining Relationship

 Under such circumstances Gissel makes it clear that the
union could obtain recognition on the basis of authoriza-
tion cards where it has a majority. But suppose the unfair
labor practices make it impossible for the union to collect a
majority and (more specifically) that the union alleges that
but for the employer’s unfair labor practices it would have
obtained a majority of the cards, or that there is a reason-
able likelihood that the union would have obtained major-
ity status. The employer in this situation would profit from
its wrongdoing by engaging in more effective illegality—
by nipping the union organizational drive in the bud
before it is able to establish itself. Two courts of appeals
have held that recognition may be imposed upon an em-
ployer under such circumstances.118 The issue has not yet
come to the Supreme Court. In one of the two aforemen-
tioned cases, United Dairy Farmers’ Cooperative Association,119
the Board split in three different directions on this issue.
None of the Board members who participated in United
Dairy Farmers’ Cooperative Association are serving on the Board
today.
Member Penello took the position that a nonmajority
union could not obtain a bargaining order under Gissel
under the NLRA.120 Members John Truesdale and Betty
Murphy held that the statute contemplated such an order,
but only when there was no ‘‘reasonable likelihood of ever
holding a [fair] election.’’121 Chairman John Fanning and
Member Howard Jenkins took the position that a majority
bargaining order could be imposed where the Board had
initially attempted to determine majority status through an
election and where there was ‘‘very good probability that,
had employee sentiment been allowed to emerge, it should
have favored the union.’’
It was in this posture that the Third Circuit Court of
Appeals heard the matter late in 1980 and held that the
Board does have remedial authority to impose a non-
majority bargaining order where ‘‘outrageous’’ and ‘‘perva-
sive’’ unfair labor practices have been committed.122 Judge
A. Leon Higginbotham, writing for a unanimous panel,123
noted that the court had not squarely answered this ques-

90 Chapter 5
 tion in Gissel. But careful restrictions on the employer’s be-
havior during Board-conducted elections, said the court,
were necessary, ‘‘since the employer has disproportionate
economic power.’’124 Said the Third Circuit Court:
The rationale for selecting bargaining representatives by certifica-
tion election evaporates . . . when the employer has committed
such serious unfair labor practices that the laboratory conditions
of the past election, as well as any election in the immediate fu-
ture, are destroyed. In these circumstances, because of the em-
ployer’s attempt to undermine employee free choice, the goal of a
free uninhibited certification election simply cannot be attained
regardless of the reparative actions which may be attempted by the
Board. Other means to protect employees must be pursued.125
Judge Higginbotham properly noted that Gissel was a
remedy case and that, although both an election and evi-
dence of majority support through authorization cards
would have been preferable to the imposition of a bargain-
ing order where no majority order had been evident, the
failure to recognize remedial authority for the Board under
the circumstances would have undermined the statutory
goal of majority choice. Said Judge Higginbotham: ‘‘Unions
which would have attained a majority in a free and un-
coerced election if the employer had not committed unfair
labor practices would be deprived of recognition merely
because of the employer’s illegal conduct. . . . The absence
of such authority might create incentives for employers to
engage in illegal prophylactic action with the purpose of
preventing the attainment of a card majority.’’126 Accord-
ingly the court held that the Board had the remedial au-
thority to issue a bargaining order where the practices were
so outrageous and pervasive that there was ‘‘no reason-
able possibility that a free and uncoerced election could
be held.’’127 The court specifically avoided the question of
whether the Board had the authority where there was no
reasonable possibility that the union would have obtained a
majority but for the action of the employer, stating that a
‘‘reasonable possibility’’ existed in United Dairy because, al-
though the employer had committed ‘‘numerous flagrant
and serious violations,’’ the union had lost by only two

91 Establishing the Collective Bargaining Relationship

 votes.128 Quite clearly the closeness of the vote will be an
important factor to take into account.
Subsequently the Board squarely accepted the propriety
of minority bargaining orders and the views of Chairman
Fanning and Member Jenkins.129 The Board recited a
number of circumstances that prompted the fashioning of
such an order: the ‘‘extreme gravity’’ of the violation; ‘‘mass
communication’’ to all employees from all levels of the cor-
porate hierarchy; and repetition and timing of unlawful
conduct, which exacerbated their long-term coercive im-
pact.’’ The Board also noted that 46 percent of the employ-
ees in the unit has signed authorization cards.
However, a divided Court of Appeals for the District of
Columbia, with Judge Patricia Wald dissenting, refused en-
forcement of the Board’s order130 on the ground that Con-
gress had not intended minority bargaining orders to be
within the Board’s discretion and that, where Congress had
intended to sanction minority bargaining, as in the con-
struction industry, it had done so explicitly. Meanwhile the
Board reversed itself in 1984 in Gourmet Food, Inc.131 In
reaching a conclusion opposite to the one reached two
years before, the Board provided this rationale:
We seriously question . . . whether a nonmajority bargaining order,
in practice, is an effective remedy. The bargaining environment
established at the Board’s instigation alone does not replicate that
which arises from employees’ impetus. What is lacking is the le-
verage normally possessed by exclusive bargaining representatives
that derives from unions’ and employers’ knowledge that a major-
ity of employees at one time, in some form, united in their support
for a union and may do so again in support of bargaining de-
mands. To gain that leverage, employees may be called on to
demonstrate active support for a representative in a far more open
way than a secret-ballot election. Accordingly, in imposing a rep-
resentative on employees, the Board may be changing only the
sphere of employees’ choice. And yet the Board can be no more
certain that, in this new sphere of employee choice, employees can
more freely exercise their choice without regard to any lingering
effects of massive unfair labor practices than it can be if a new
election is directed after the Board has applied traditional as well
as appropriate extraordinary remedies. The Board can be certain,
however, of the possibility that it is forcing a majority of employees

92 Chapter 5
 who do not have an interest in participating in the collective-
bargaining process into that process and, potentially and con-
sequently, into desired terms and conditions of employment
negotiated by an unchosen representative. Given these policy con-
siderations we do not believe we would ever be justified in granting
a nonmajority bargaining order remedy.132
Different rules apply in the building and construction in-
dustry by virtue of amendments to the Landrum-Griffin Act
of 1959. These amendments make lawful pre-hire agree-
ments not based upon majority support as well as union se-
curity provisions in them that require a membership as a
condition of employment subsequent to seven days of the
employees initial hire date.133 The reason for this provision
relates to the fact that the construction industry provides so
much work that is temporary in nature, thus posing diffi-
culties in establishing majority status at a particular work-
site. In John Deklewa & Sons, Inc.,134 the Board held that
an employer may not unilaterally repudiate an agreement
negotiated with a minority building and construction union
possessing only minority support. Said the Board:
When parties enter into an 8(f ) [construction industry] agree-
ment, they will be required . . . to comply with that agreement un-
less the employees vote, in a Board-conducted election, to reject
(decertify) or change their bargaining representative. Neither
employers nor unions who are parties to [such] . . . agreements will
be free unilaterally to repudiate such agreements. During its term,
[construction industry agreements will not act as a bar to a repre-
sentation petition filed under the Act] . . . single employer units
will normally be appropriate.135
In recent years, the unions have utilized so-called neu-
trality agreements as a vehicle to organize employees with-
out NLRB intervention through the representation process.
These agreements have taken a wide variety of forms, e.g.,
providing the union access to company property to which
it would not be legally entitled, obliging employers to rec-
ognize unions on the basis of card checks or privately
supervised elections,136 or negotiating an agreement with-
out majority status, the ratification of which is conditioned
upon the union obtaining majority status137 —and, in so
doing, have spawned a wide variety of legal issues.138

93 Establishing the Collective Bargaining Relationship

 Sometimes unions have obtained legislation mandating
such agreements in one form or another. The enforce-
ability of neutrality agreements also arises when local or
state statutes mandate neutrality when an employer receives
funding from a particular government entity or when it
enters into a contractual relationship with that employer.
In Chamber of Commerce v. Lockyer,139 the NRLA has been
deemed to preempt a California statute that prohibited the
use of state funds or property to assist, promote or deter
union organizing.140 The court relied on two principal
Supreme Court–preemption holdings to conclude that
the statute was ‘‘preempted because it regulates employer
speech about union organizing under specified circum-
stances, even though Congress intended free debate.’’141
Meanwhile, it is possible that other state statutes such as
those enacted in New York and New Jersey may be impli-
cated by this and other similar rulings.142
Where employers and unions agree to neutrality in card-
check provisions, there is a question of whether unlawful
assistance has been provided to a union.143 The NLRB
General Counsel adds that no violation has occurred if an
employer only enters into a neutrality agreement with one
of two competing unions where the second union refuses
‘‘to enter into the same commitments/waivers of its rights
that [the first union] had made. . . .’’144 The implication is
that if both unions are willing to agree to a neutrality
agreement and the employer only enters an agreement with
one, a statutory violation may be found.145
Suppose a union obtains recognition on the basis of cer-
tification through an election or authorization cards, but
the majority of the workers change their mind and the em-
ployer relies on this to refuse to recognize the union. The
courts have held that an employer has an obligation to
continue to recognize the union for a ‘‘reasonable period of
time’’ and that where the union has been certified that rea-
sonable period of time is for the period of the certification
(one year).146 Where the union has been recognized on the
basis of authorization cards, petitions, or whatever, the em-
ployer also has an obligation to continue recognition for a

94 Chapter 5
 reasonable period of time—but sometimes the Board has
held that this period can elapse before the passage of one
year.147
If a union negotiates a collective bargaining agreement
with an employer after recognition, another union cannot
step in and attempt to obtain recognition for itself. In the
first place, if both unions are affiliated with the AFL-CIO,
the union that raids the other may be held by the feder-
ation’s ‘‘umpire’’ to have violated the AFL-CIO’s No Raid-
ing Pact.148 In any event a contract negotiated between the
parties is a bar to such recognition, and thus, where a union
files a petition for representation with the Board and a valid
collective bargaining agreement has been negotiated, the
Board will dismiss the petition on the grounds that the
contract bars it. The contract is a bar where it is signed by
all parties—even if it is not embodied in a formal docu-
ment.149 Prior notification is required where the contract
itself requires it.150 The contract must cover workers in an
appropriate unit.151 Where there is a significant change in
the identity of a contracting party, the contract is not a
bar.152 The contract bar has a duration of three years or the
period of the collective bargaining agreement, whichever is
shorter.153 Between ninety and sixty days prior to the expi-
ration of the contract, a petition may be filed challenging
the incumbent union’s position as exclusive representative;
such a petition will be regarded as timely. If it is not filed by
sixty days prior to the expiration of the agreement, it will
not be regarded as timely. The purpose is to permit the
parties to resolve their differences through collective bar-
gaining without any distractions. This is why a petition can-
not be filed at this time. During this sixty-day period, and
independent of contract obligations, neither the union nor
the employer may engage in strikes, lockouts, or any other
form of economic pressure. Likewise the statute, indepen-
dent of any contract obligations that the parties assume,
requires labor and management to give notice of their in-
tent to modify or terminate the agreement to the mediation
agencies at the beginning of the sixty-day period.

95 Establishing the Collective Bargaining Relationship

Conclusion
The law promotes the right of workers to organize, but it
tempers that concern with recognition of other principles
that sometimes collide with it: free choice for employees
(generally expressed through the ballot box), the circum-
vention of such choice through economic pressure on
employers, and employers’ property rights.

96 Chapter 5
 6
Economic Pressure and Bargaining Tactics in
the Established Relationship

The National Labor Relations Act has a dual purpose, and

its dual concerns are often at odds with one another. On
the one hand, the statute is concerned with protecting trade
unions and their members against antiunion discrimina-
tion. Quite frequently the NLRB and the courts will pre-
sume antiunion discrimination, even though there is no
proof that the employer was motivated in its conduct by
antiunion considerations. The underlying concern is that
certain tactics may have the effect of destroying the union
entirely and thus destroying the collective bargaining pro-
cess. Accordingly one concern is to prop up trade unions
and, by so doing, to save the collective bargaining process
when it is imperiled. But simultaneously the NLRA attempts
to promote the collective bargaining process as a wide-
open, robust relationship in which the parties should have
the widest latitude in bargaining tactics, pressure, and eco-
nomic weaponry. The underlying concern is that if the
NLRB and the courts try to regulate bargaining tactics, they
will be regulating the substance of the collective bargaining
process and ultimately the substance of the collective bar-
gaining agreement itself. Nowhere is this concern—which is
often at odds with the need to preserve free trade unions
and the collective bargaining process—more clearly seen
 than in the landmark Insurance Agents decision,1 which
involved a work slowdown by the union.
In Insurance Agents the employer argued that the slow-
down was itself an unfair labor practice—specifically an un-
lawful refusal to bargain, inasmuch as the tactic tends to
preclude discussion—and that the union ought to be pro-
hibited from engaging in it. The Supreme Court rejected
this argument and took the position that economic pressure
that might serve as an irritant rather than as a promoter of
dialogue was an essential ingredient in the collective bar-
gaining process. Said the Court:
It must be realized that collective bargaining, under a system
where the government does not attempt to control the results
of negotiations, cannot be equated with an academic collective
search for truth—or even with what might be thought to be the
ideal of one. The parties—even granting the modification of views
that may come from a realization of economic interdependence—
still proceed from contrary, and to an extent antagonistic, view-
points and concepts of self-interest. The system has not reached
the ideal of the philosophic notion that perfect understanding
among people would lead to perfect agreement among them on
values. The presence of economic weapons in reserve and their
actual exercise on occasion by the parties, is part and parcel of the
system that the Wagner and Taft-Hartley Acts have recognized.
Abstract logical analysis might find inconsistency between the
command of the statute to negotiate toward an agreement in good
faith and the legitimacy of the use of economic weapons, fre-
quently having the most serious effect upon individual workers and
productive enterprises, to induce one party to come to the terms
desired by the other. But the truth of the matter is that at the
present statutory stage of our national labor relations policy, the
two factors—necessity for good-faith bargaining between parties,
and the availability of economic pressure devices to each to make
the other party incline to agree on one’s terms—exist side by
side.2

Accordingly, within limits, the success and strength of

one party ought not to matter in determining whether a
statutory violation has been committed.

98 Chapter 6
Protected and Unprotected Activities
Section 7 of the NLRA affirmatively protects a wide variety
of employee pressures and protests aimed at the employer.
Insurance Agents simply dealt with the question of whether
particularly irritating slowdowns constituted a refusal to bar-
gain. It did not address the question of whether the activity
engaged in was ‘‘protected activity’’ within the meaning of
the Act.
If an activity is protected, employees are immunized from
discipline or discharge for engaging in the activity. If it is
prohibited, the NLRB may obtain a cease-and-desist order
through its own administrative process against the conduct,
and may eventually enforce it through a petition to the cir-
cuit court of appeals. Activity that is neither protected nor
prohibited is in a ‘‘no-man’s land’’; employees may be dis-
missed or disciplined for engaging in it.
For an activity to be protected, it must be ‘‘concerted.’’
Though it seems clear that employees’ protests must be
aimed at group concerns, the courts and the NLRB are di-
vided on the question of whether one employee can engage
in such conduct.3 The Court of Appeals for the Sixth Cir-
cuit approved the Board’s rule that an employee’s pre-
sentation of job-related grievances aimed at getting the
employer to comply with laws or regulations is protected
concerted activity.4 But the Board has reversed itself, con-
cluding that ‘‘it will no longer be sufficient for the General
Counsel to set out the subject matter that is of alleged con-
cern to a theoretical group and expect to establish concert
of action thereby.’’5
Meanwhile, in NLRB v. City Disposal System,6 the Supreme
Court has held that a single employee—in this case one
refusing to drive an allegedly unsafe truck—is engaged in
concerted activity when the worker invokes a right con-
tained in a collective bargaining agreement. Said Justice
Brennan, writing for a 5–4 majority: ‘‘. . . an honest and
reasonable invocation of a collectively bargained right con-
stitutes concerted activity, regardless of whether the em-
ployee turns out to have been correct in his belief that his

99 Economic Pressure and Bargaining Tactics in the Established Relationship

 right was violated.’’7 The tension between City Disposal and
the Board’s position on concerted activities may require the
Court to intervene.8
The Supreme Court held in the Weingarten case that an
employee who calls on a union representative to assist in a
disciplinary interview is engaged in concerted activity.9 But
this does not mean that an employer is precluded from
repeating questions to employees, as might be the case in a
more adversarial form.10 Moreover the Board has held that
reinstatement and back pay are not appropriate remedies
for such statutory violations.11 Initially the Board extended
Weingarten to nonunionized establishments.12 But the courts
divided on the issue,13 the Board subsequently reversed
itself14 —and then reversed itself again!15
In the 1990s the Board was called upon to address the
lawfulness of employee handbook provisions that required
certain employee decorum, the unions alleging that such
regulations violate the statute. A diverse cacophony of ap-
proaches has left the issue unclear.16
The NLRB has relied on First Amendment cases protect-
ing free speech against libel actions17 as a basis for protect-
ing employees’ complaints against employers, even though
such complaints may promote ‘‘discord’’ and ‘‘strife.’’18 This
is because labor-management controversy, even when it oc-
curs within the context of an established relationship and
involves collective bargaining and grievance processing,19
may be just as ‘‘bitter and extreme’’ as it is in an organiza-
tional setting where union recognition is at issue.20 The
Board has invalidated employers’ rules prohibiting the dis-
tribution of ‘‘scurrilous’’ literature21 and has held that em-
ployees’ complaints that are protected are not rendered
unprotected because they involve ‘‘animal exuberance’’ or
‘‘impulsive behavior.’’22 They are not even unprotected
when the employee accuses the boss of having an affair with
someone.23
These cases involve a balancing process. Perhaps the most
controversial cases in which employee or union conduct
has been found unprotected are the ‘‘disloyalty’’ cases. The
leading one is NLRB v. Local Union No. 1229, IBEW,24 in

100 Chapter 6
 which the Supreme Court, over the sharp dissent of Jus-
tices Felix Frankfurter, William Douglas, and Hugo Black,
held that the distribution of handbills that contained a
‘‘vitriolic attack on the quality of the company’s television
broadcasts’’ by nonstriking employees, but did not refer to
the labor-management controversy, was unprotected. The
Board subsequently extended this rule to conclude that dis-
paragement of a company’s product was unprotected even
when the employees were on strike.25 However, though the
Court of Appeals for the District of Columbia has con-
cluded that participation in a boycott of an employer is in-
consistent with the ‘‘duty of loyalty,’’26 boycott signs in or on
employees’ cars on company property have been held to be
protected.27 On the other hand, employees who use ‘‘vulgar
shop talk’’ more than others when engaged in concerted
protest (especially in discussions with management officials)
were held to be engaged in unprotected conduct.28
The Court of Appeals for the Eighth Circuit has held that
employees’ questions and statements that interrupted a
captive-audience meeting because they were a ‘‘challenge
and deliberate defiance, repeatedly asserted before assem-
bled employees’’29 were unprotected. The Board has also
held that it was lawful for Michigan Bell Telephone Com-
pany to require employees—in the midst of collective
bargaining—to remove sweatshirts containing the slogan
‘‘Ma Bell is a Cheap Mother.’’30 That slogan is unprotected
when it is displayed on company property because it is con-
sidered obscene. In the same vein, the Court of Appeals for
the Fifth Circuit has held, in NLRB v. Mini-togs,31 that an
employee who referred to the distributors of an anti-union
flyer as ‘‘f– – – – –g whores’’ was engaged in unprotected
activity because of her profanity as well as the fact that
the statement was not part of concerted conduct, engaged
in with other employees. But when a radical trade unionist
employed by the Inland Steel Company was fired for pro-
testing company conduct while wearing a shirt emblazoned
with ‘‘Inland Sucks,’’ the Board held that his dismissal was
not lawful inasmuch as the employer had not relied on the
shirt as a basis for his termination.32

101 Economic Pressure and Bargaining Tactics in the Established Relationship

 The Board has held that an employer violated the Act
when it prohibited its employees from displaying various
union slogans including the statement ‘‘permanently re-
place Fites,’’ Fites being the President of the company in
question.33 Speech by both unions, employees, and em-
ployers can give rise to statutory problems under the NLRA.
For instance, frequently there are questions involving racial
issues in the election campaign.34 In one election case, a
union campaign handbill included a statement by a dis-
charged unit employee concerning a sexual harassment
investigation in the company that ‘‘black folk have been
wrongly touched by whites for over 300 years’’ and such
speech was held to be permissible.35 Similarly, the promise
of legal services to protect union recruits in employment
litigation is not inappropriate.36 Company banners display-
ing the names of plants in which the union had represented
employees and that had been closed were held to be be-
yond free speech protection in a 2–1 ruling.37
One other area of contention involves the extent to
which the conduct of supervisors, who are excluded from
the NLRA’s coverage, can be characterized as protected
activity. The Court of Appeals for the Ninth Circuit, in
reversing an NLRB order protecting supervisory activity,
noted that supervisory conduct has been held protected
when a supervisor is dismissed or disciplined for refusing to
commit an unfair labor practice, when a supervisor is dis-
missed or disciplined for testifying before the NLRB, and
when a supervisor is dismissed or disciplined as a pretext for
dismissing pro-union employees working under him.38 The
court refused to accept the Board’s position that supervisors
should be reinstated with back pay when the employer’s
policy might have a coercive impact on the rank and file
in the bargaining unit. The court reasoned that remedies
for the employees are enough. On the other hand, how-
ever, the Court of Appeals for the Third Circuit has held
that the Board may order reinstatement of a supervisor
who was fired in retaliation for her relatives’ participation
in a union organization campaign.39

102 Chapter 6
 Faced with a case in which supervisors and employees had
been dismissed because of a letter sent to the company
president criticizing a manager, the Court of Appeals for
the First Circuit held, in an opinion written by Judge Ste-
phen Breyer, that the activity had to involve employees and
their conditions of work to be protected.40 In these cases
involving the question of whether supervisors’ conduct is
protected, the Board’s position had been that the activity
must be part of the concern and needs of employees in
order for the Board and the courts to respond affirmatively
and to conclude that the employer has violated the statute.
However, the Board has now narrowed the scope of protec-
tion afforded supervisors. In Parker-Robb Chevrolet 41 it said:
. . . although we recognize that the discharge of a supervisor for
engaging in union or concerted activity almost invariably has a
secondary or incidental effect on employees, we believe that, when
a supervisor is discharged either because he or she engaged in
union or concerted activity or because the discharge is contempo-
raneous with the unlawful discharge of statutory employees, or
both, this incidental or secondary effect on the employees is insuf-
ficient to warrant an exception to the general statutory provision
excluding supervisors from the protection of the Act. Thus, it is
irrelevant that an employer may have hoped or even expected,
that its decision to terminate a supervisor for his union or con-
certed activity would cause employees to reconsider, and perhaps
abandon, their own concerted or union activity. No matter what
the employer’s subjective hope or expectation that circumstance
cannot change the character of its otherwise lawful conduct.
. . . The discharge of supervisors is unlawful when it interferes
with the right of employees to exercise their rights under Section 7
of the Act, as when they give testimony adverse to their employers’
interest or when they refuse to commit unfair labor practices. The
discharge of supervisors as a result of their participation in union
or concerted activity—either by themselves or when allied with
rank-and-file employees—is not unlawful for the simple reason
that employees, but not supervisors, have rights protected by the
Act.42

Of course the mere fact that the employer has the right
to dismiss workers for unprotected activity (in the case of
economic pressure, for instance) does not mean that it will
happen. Dismissal or discipline might be counterproductive

103 Economic Pressure and Bargaining Tactics in the Established Relationship

 in the sense of producing more industrial warfare and not
less.
What is protected economic pressure within the meaning
of the NLRA? The Supreme Court has held that walkouts,
with or without the presence of the union, are protected
activity regardless of the judges’ view about the wisdom
of the action.43 However, strikes in breach of grievance-
arbitration and no-strike clauses negotiated by labor and
management are unprotected.44 But a no-strike obliga-
tional clause does not apply to a strike undertaken when a
reopener in the contract between the parties allows them to
bargain as they would when the contract expires—unless
the parties themselves specifically prohibit strikes in such an
instance.45
Slowdowns are unprotected because, in the view of the
courts, such action is an attempt to require the employer to
accept the employees on their own terms of employment.46
However, the concerted refusal to work overtime is pro-
tected activity unless employees ‘‘. . . repeatedly refuse to
perform mandatory overtime . . . because that conduct con-
stitutes a recurring or intermittent strike, which amounts to
employees unilaterally determining conditions of work.’’47
Violent strikes and the kinds of sit-ins or plant occupations
that took place in the 1930s are similarly unprotected.48

The Strike
Striking in itself is protected activity, although unauthorized
or wildcat stoppages are unprotected because they derogate
the status of the exclusive bargaining agent, who is sup-
posed to speak on behalf of all employees within the ap-
propriate unit. This includes dissident groups as well as
those who are in accord with the union’s policy.49 Strikes in
accord with union policy have been defined as authorized
or ratified, and thus they are protected within the meaning
of the NLRA where the Board and the courts determine
that the objective of the strikers is in accord with the policy
of the union.50
Section 13 specifically states that nothing in the NLRA
is intended to interfere with the right to strike. However,

104 Chapter 6
 there are a number of limitations on the right, and one of
them is set out in the Taft-Hartley amendments’ prohibition
of strikes during emergencies affecting the nation’s safety
and health.51 In such a situation the amendments authorize
the appointment of a board of inquiry by the president
to investigate the dispute but not to make recommenda-
tions. (Taft believed that the pressure to accept the recom-
mendation would be so great that the parties would be
compelled to accept it, and that this would amount to com-
pulsory arbitration, which has traditionally been anathema
to both labor and management in the United States.)52
Subsequent to the board of inquiry’s submission of a report
to the president, the attorney general is authorized to seek
an eighty-day injunction in federal district court, and fifteen
days prior to the expiration of the eighty-day period the
workers vote on the employer’s last offer.
At the time of the Taft-Hartley amendments, the theory
was that workers would accept offers that their militant and
unreasonable union leaders were unable or unwilling to
accept.53 That theory has proved remarkably incorrect, in-
asmuch as every single last offer has been voted down (es-
sentially because it is more likely to be the rank-and-file
workers who are pushing the union leaders to be more ag-
gressive and the union leaders who are urging restraint).
Also any vote conducted by an outside agency (in this case,
the NLRB) is likely to become a confrontation between
the union and the employer and a vote over whether the
workers support their union. Invariably in these situations
they do. Finally, workers know very well that there is really
no such thing as a last offer—especially when it is given
to the workers in public. Accordingly this portion of the
emergency strike provisions has not worked out very well.
During the 1978 coal strike, when the president invoked
Taft-Hartley’s procedures, the district judge assigned to
hear the case refused to make the injunction permanent
because it had been disobeyed and because the government
seemed less than enthusiastic about monitoring its enforce-
ment. In the most recent use of these procedures—the
2002 Longshore lockout—the issuance of an injunction54

105 Economic Pressure and Bargaining Tactics in the Established Relationship

 seems to have produced a collective bargaining agree-
ment.55 At the same time, it must be acknowledged that
there are few situations where a dispute has not been
resolved, when Taft-Hartley was invoked, without resort to
other legislation or procedures.
Given that section 13 speaks of a right to strike that is not
to be impaired by anything in the NLRA, the layman might
think that the right to strike is somehow constitutional. A
limited constitutional right to strike exists in France and
Sweden, and some contend that the constitution of Japan,
which protects the ‘‘right of workers to organize and to
bargain and act collectively,’’ accomplishes the same objec-
tive. In the United States, however, the Supreme Court has
refused to hold that a right to strike can be inferred from
the Constitution.56 The difficulty with the protection af-
forded by statute is that ever since its 1938 decision in NLRB
v. Mackay Radio & Telegraph Company 57 the Supreme Court
has held that, although striking is protected conduct, em-
ployers may permanently replace striking employees with
strikebreakers. In other words, even though an employer
may not discharge or discipline workers for engaging in a
strike, the employer, in order to keep production going and
the plant open, has a business justification for permanently
ousting strikers through the recruitment of strikebreakers,
and thus may just as effectively deprive employees of their
job security as would be the case if they were dismissed
or disciplined for striking. (The House of Representatives
voted to reverse Mackay in 1991, but the Senate filibustered
the bill to death in 1992. During the 1992 campaign, Presi-
dent Bill Clinton supported this legislation, and it was rein-
troduced in 1993, but no action was taken. At the same
time, President Clinton issued an executive order prohibit-
ing the use of economic replacements for government
contractors, but the Court of Appeals for the District of
Columbia declared it unlawful.)58
One particularly pernicious consequence of Mackay is
that it provides employers with an opportunity to rid them-
selves not only of workers and pension obligations but also
of the union itself. The employer, it must be remembered,

106 Chapter 6
 is entitled by the Taft-Hartley amendments to file a peti-
tion for an NLRB election when there is a question about
whether there should be union representation. When a
number of workers are replaced, the employer’s petition is
filed on the ground that the workers involved in the deci-
sion to select the union are no longer in the work force. But
the Supreme Court, by 5–4 vote, has held that an employer
is not legally entitled to claim that it has a reasonable
basis for doubting a union’s majority support on the ground
that strike replacements can be presumed to oppose the
union.59
For twelve years after the Taft-Hartley amendments the
Board refused to permit permanently replaced economic
strikers to vote in the election, but the 1959 amendments to
the statute permit such strikers to vote until twelve months
after the commencement of the strike.60 To a limited ex-
tent, this has mitigated some effects of the harsh Mackay
doctrine.
In fairness it must be said that a growing number of limi-
tations have been imposed upon the Mackay doctrine.
Where the strike is caused in part by an employer’s unfair
labor practices, the employees are entitled to reinstatement.
If after the commission of the unfair labor practices and the
strike the employees offer unconditionally to return to
work, they may be entitled to back pay as well.61 And even in
an economic strike, such as that which occurred in Mackay,
the Supreme Court has held (in a decision that is difficult to
reconcile with Mackay) that an employer may not offer extra
seniority to strikebreakers—even if the employer can show
that such an offer was necessary to keep production going.62
The Court’s conclusion is based on the fact that the
use of such ‘‘superseniority’’ as a vehicle to counterattack
against the strike would greatly diminish, if not destroy, the
strike weapon itself. Though the Court refused to reassess
its Mackay decision that replacements may be hired, it was
hard put to distinguish the two cases. Nevertheless, it did
so on the following grounds: that superseniority affects
the tenure of all strikers, whereas replacements only affect
those workers who are actually replaced; that superseniority

107 Economic Pressure and Bargaining Tactics in the Established Relationship

 necessarily operates to the detriment of those who engage
in the strike as opposed to nonstrikers; that superseniority is
an offer of an individual benefit to induce employees to
abandon the strike, and promises of benefits by employers
are generally viewed as unlawful; that the use of new re-
placements with superseniority would deal a crippling blow
to the strike effort; and that future bargaining would be-
come difficult for the union because of the built-in tension
between those employees who had superseniority and those
who did not.
Though the Supreme Court has frequently used the Na-
tional Labor Relations Act as a basis for interpreting the
Railway Labor Act,63 the 1985 United Airlines strike, in
which the company bestowed superseniority on strikebreak-
ing pilots, highlights the fact that the statutes have been
interpreted differently.64 However, the Court of Appeals for
the Seventh and Eleventh Circuits seem to have outlawed
such conduct under the Railway Labor Act.65 Meanwhile,
the Supreme Court, in Trans World Airlines Inc. v. Indepen-
dent Federation of Flight Attendants,66 applied the Mackay rule
to an RLA dispute where the employer refused to lay off
junior replacements in order to reinstate more senior full-
time strikers at the conclusion of the strike. Deregulation
seems to have promoted the growth of unfair labor practice
litigation in the airline industry.
Further limitations were placed on the Mackay doctrine
by the Supreme Court’s subsequent holding that an em-
ployer is required to offer reemployment to strikers who
have been replaced when new jobs are made available by
expansion or turnover.67 The Court has noted that section
2(3) of the NLRA provides that an individual whose work
has ceased as a consequence of a labor dispute continues to
be an employee within the meaning of the Act until he or
she has obtained regular and substantially equivalent em-
ployment.68 In contrast, the union does not have the abso-
lute right to obtain replacement workers’ home addresses.69
The strikers who have been replaced have preferential
access to jobs when their replacements depart,70 and the
NLRB has held that no time limit may be placed on the

108 Chapter 6
 obligation of the employer to reinstate such workers71 —
although the Court of Appeals for the Seventh Circuit held
that strikers may not displace replacements who have been
laid off.72
Curiously, an employer may offer to pay or provide bene-
fits for replacement workers that are superior or inferior to
the package provided and offer made to striking employ-
ees.73 The Clinton Board held to this principle in 1998.74
A new dimension has been added to the issue of strikes by
the institution of wrongful discharge actions—predicated
upon breach of contract or misrepresentation—by replace-
ments who have been dismissed to make way for employees
returning from strikes. In Belknap, Inc. v. Hale,75 the Court
held by a 6–3 vote that such damage actions may be main-
tained in state court where an NLRB settlement neces-
sitated termination of replacements because of its provision
for the reinstatement of strikers. Justice White, speaking for
five members of the Court,76 rejected the argument that
such actions are preempted because they interfere with
the ‘‘free play of economic forces’’77 on the settlement of
labor disputes that is promoted by federal labor policy. Jus-
tice Brennan, dissenting with Justice Marshall and Justice
Powell, was of the view that the employer’s right to replace,
fashioned in Mackay, was ‘‘burdened’’ by such actions, and
that the Court, by stating that strikers could be permanently
replaced by replacements given ‘‘conditional’’ offers of em-
ployment, was shaping the balance of power between labor
and management—a matter left to federal labor law.78 The
decision would seem to make the resolution of strikes over
alleged unfair labor practices far more difficult.

The Lockout
What of the employer’s rights? What may the employer
do to utilize its own economic weaponry and protect its
bargaining position? In American Ship Building Company v.
NLRB79 the Supreme Court held that under certain cir-
cumstances lockouts by employers are lawful under the
NLRA. Until the American Ship Building decision it had been
generally assumed that a lockout was unlawful unless an

109 Economic Pressure and Bargaining Tactics in the Established Relationship

 employer, confronted with a stoppage at a time when it
would have perishable goods and thus would suffer irrepa-
rable harm, used the lockout at an earlier period so as to
shift the economic burden to the strikers and make it less
likely that a cessation of work would occur at a time that
would be disastrous to the employer80 or unless a company
that was part of an employer association locked out its em-
ployees in response to an attempt by the union to divide
and conquer the association by striking against one em-
ployer at a time (called ‘‘whipsawing’’).
In a way American Ship Building is consistent with the same
general theme. The employer was confronted with a bar-
gaining history in which the union had struck on a number
of occasions in the past and appeared to be deliberately
delaying negotiations during a slack period so that it could
bring economic pressure to bear at a time when the em-
ployer needed to deliver goods and was thus weak and vul-
nerable. Said the Court:
Although the unions had given assurances that there would be
no strike, past bargaining history was thought to justify continu-
ing apprehension that the unions would fail to make good their
assurances. It was further found that the employer’s primary pur-
pose in locking out its employees was to avert peculiarly harmful
economic consequences which would be imposed upon it and
its customers if a strike were called either while a ship was in the
yard during the shipping season or later when the yard was fully
occupied.81
Accordingly the Court took the position that the lockout
may be utilized by management to protect its collective bar-
gaining position. In American Ship Building there was no evi-
dence that the employer was hostile to the employees’
interest in organizing for the purpose of collective bargain-
ing or that the lockout was used to ‘‘discipline’’ them for
engaging in the bargaining process. Thus the Court noted
that it could not be said that the employer’s intention was
to ‘‘destroy or frustrate the process of collective bargaining’’
or that there was no indication that the union would be
diminished in its capacity to represent the employees in the
unit.

110 Chapter 6
 The Court, in American Ship Building, spoke of the lockout
and the strike as ‘‘correlative’’ in terms of statutory usage.
But it seems questionable whether American Ship Building
and the right of employers to lock out can apply where the
bargaining relationship is not so well established as it was in
that case—particularly in a first-contract situation where the
parties are dealing with one another for the first time and
the relationship is not as mature as the one in American Ship
Building. Moreover the employer had a legitimate appre-
hension based on the union’s previous behavior. It would
have been placed in a very difficult position if it had been
confronted with a strike during its boom period. In effect it
was transferring the economic burden of the dispute to the
employees. As in Insurance Agents the Court took what might
be characterized as a ‘‘freedom of contract’’ position, per-
mitting the collective bargaining process to operate in a
robust and open-ended fashion and allowing both parties
to use economic pressure to resolve their differences.
But how far can the scales be tipped in favor of the em-
ployer? The Board has held that a employer may lockout
union represented employees in response to so-called ‘‘in-
side game’’ tactics, i.e. refusals to work voluntary overtime
and so-called ‘‘work to rule’’ tactics designed to interfere
with prompt work performance.82 May the employer but-
tress its right to lock out through the use of temporary or
permanent replacements? Where a group of employers in a
multiemployer association are ‘‘whipsawed’’ by one union,
all employers not struck have the right to lock out, for some
of the same considerations present in American Ship Build-
ing. They have the right to shift the economic burden to the
strikers at a time propitious to the employers.83 Rather than
permit the union to establish a pattern through a minimal
economic burden imposed upon its own members who
continue to work in most of the plants and to pick the
employers off by pressuring them one by one, a substantial
burden is thrust upon the resources of the union and the
employees because of employer unity. The Court has held
that, in the multiemployer lockout situation, temporary
replacements may be utilized to keep production going.84

111 Economic Pressure and Bargaining Tactics in the Established Relationship

 Until the mid-1980s the appellate courts had not been
sympathetic to the view that temporary replacements could
be utilized in the American Ship Building context where the
union has not officially struck any employer,85 but the
Board, with circuit court approval, has held that the use of
temporary replacements is lawful ‘‘in light of American Ship
Building, [because] there no longer exists any meaningful
distinction as to effects between lawful ‘offensive’ and lawful
‘defensive’ economic weaponry.’’86 Apparently the theory
of the earlier cases is that there is no substantial and legiti-
mate business justification. But it is difficult to distinguish
this sort of case—and indeed even that of permanent
replacements in a lockout context—from the basic theme
of American Ship Building and Insurance Agents. Notwith-
standing a Board ruling condemning such conduct, the
Court of Appeals for the District of Columbia has held that
an employer may use even permanent replacements where
there is a offensive American Shipbuilding type lockout.87
The idea in the Supreme Court cases was that the collec-
tive bargaining process can be used by both sides so long as
it is not used in a manner that appears to be intended to
have the effect of destroying the process. The test in all of
these cases should be whether the union in the collective
bargaining process continues to function despite the em-
ployer’s tactics. This carries a certain risk, and it is difficult
to articulate with precision the parameters of union and
employer economic pressure under such a test. But, given
the Court’s concern with minimum interference with bar-
gaining tactics on the theory that therein lies the road to
regulation of the substance of the collective bargaining
agreement, there is little choice. Accordingly it would seem
appropriate in all of these cases involving strikes and lock-
outs to see whether the union is able to function as a col-
lective bargaining representative in the wake of employer
tactics: Does it collect dues? Is it able to negotiate a union
security agreement requiring collection of dues as a condi-
tion of employment, and thereby to establish a relatively
secure position for itself ? Does it continue to process griev-
ances? Is it able to exert economic pressure subsequent to

112 Chapter 6
 the lockout or the replacement of strikers? All of these
factors would appear to be valid for the Court and the
Board to look to in future litigation.88 But the case law is
so confused that it becomes impossible to determine how
far the balance may be tipped or how extreme the eco-
nomic tactic may be before the statute can be said to have
been violated.

The Duty to Bargain in Good Faith

Thus far we have dealt with the economic weaponry each
party may bring to bear during the collective bargaining
process. Labor and management employ such tactics on
behalf of their demands. But what demands may be made
by each side, and under what circumstances? All of this goes
to the question of whether the union or the employer is
lawfully bargaining in ‘‘good faith’’ as the statute requires.
What is good-faith bargaining? When the Wagner Act was
being debated in 1935, Senator Walsh, the chairman of the
Senate Labor Committee, stated that the question of how a
party (at the time of the Wagner Act only an employer)
would discharge its obligations to bargain under the statute
was a relatively simple one. The Board would take the par-
ties by the hand to the conference room in which negotia-
tions were to take place. It would see that the parties were
properly seated and would close the door so that negotia-
tions could commence.89 The difficulty is that this relatively
simple picture painted by Senator Walsh in 1935 has be-
come far more complicated. The Board has increasingly
found itself pushing open the door and becoming involved
in the discussions and the tactics of the parties while the
process moves forward. Although the Board has been care-
ful to state that a proposal by one side does not necessitate a
counter-proposal by the other, some response is required as
a test of good faith. Neither side may engage in discussion
that is simply ‘‘surface bargaining.’’90 Neither party is re-
quired to enter into a contract. Good-faith bargaining is an
attempt to consummate an agreement. However, the other
party may be so obstinate, or its demands may be so unac-
ceptable, that it becomes impossible to negotiate a contract.

113 Economic Pressure and Bargaining Tactics in the Established Relationship

 In NLRB v. American National Insurance Company91 the Su-
preme Court had held that management could insist on
bargaining on the basis of a ‘‘management prerogatives’’
clause under which the union was ousted from involve-
ment with important conditions of employment and under
which such matters as discipline and work schedules were
nonarbitrable—that is, management’s position with regard
to these areas would always prevail. The Court stated that
the Board could not ‘‘directly or indirectly compel conces-
sions or otherwise sit in judgment upon the substantive
terms of collective bargaining agreements.’’92 The Court
rejected the Board’s position that an employer was obli-
gated to establish ongoing bargaining during the term of
the collective agreement on these subjects.
American National Insurance dramatizes the fundamental
difference between the American and German systems. In
Germany involvement by the Betriebsrat in a whole range of
employer decisions affecting employment conditions is
explicitly provided for by law. The statutory approach does
not contemplate the idea that such rights as the right to
veto hiring and firing decisions pending Labor Court, or
conciliation determinations, or the right to have worker
directors will be waived. The weakest Betriebsrat cannot be
induced or required to relinquish any statutory right that it
chooses to assert. The American approach contains an anti-
thetical assumption; the weak must fend for themselves in
obtaining some little portion of the lion’s share. Generally
the American statute guarantees little to the weak.

Mandatory Subjects of Bargaining

The above generalization must be qualified, for there are
other cases that cut in a direction opposite to the freedom-
of-contract line of authority in Insurance Agents and American
Ship Building (which promotes a wide-open use of economic
pressure) and that involve the NLRB and the courts in ex-
tensive regulation of subject matter at the bargaining table.
To repeat, the Supreme Court—within limits—has per-
mitted the parties to ‘‘take their gloves of ’’ and to exert
whatever economic pressure is at their disposal. Yet there is

114 Chapter 6
 a concern that either side could completely subvert the col-
lective bargaining process through a refusal to discuss sub-
ject matter that is important to both workers and employers.
This is why the statute prohibits the termination or modi-
fication of an agreement93 until it expires by its own
terms (although the Supreme Court permitted the bank-
ruptcy law to override this obligation for financially belea-
guered employers94 —a holding that was later modified by
statute).95
The Supreme Court, in the landmark Borg-Warner case,96
held that there are three categories of subject matter that
might be raised by the representatives of the union or the
employer at the bargaining table: mandatory, nonmanda-
tory, and illegal subjects of bargaining. Until an impasse is
reached, the employer may not unilaterally change condi-
tions of employment97 because this would preclude or limit
both sides in negotiations about unresolved items, and
thus it is inconsistent with the concept of good-faith bar-
gaining. (It is the permanence of the change that pre-
cludes good-faith bargaining.) In order for the unilateral
change to be unlawful, it must be ‘‘material, substantial, and
significant.’’98
With regard to mandatory subjects, both sides have an
obligation to bargain to the point of impasse—but on some
issues such as the implementation of merit pay proposals,
which would give the employer carte blanche over wage
increases without regard to time, standards, and criteria, the
obligation to bargain without making unilateral changes
continues beyond impasse.99 This does not mean that the
parties must be deadlocked on all issues or items but rather
that they must be deadlocked in the negotiations gener-
ally.100 ‘‘If either negotiating party remains willing to move
further toward an agreement, an impasse cannot exist: The
parties’ perception regarding the progress of the nego-
tiations is of central importance to the Board’s impasse
inquiry.’’101
Under the NLRA the party that refuses to bargain on
mandatory subjects to the point of impasse is unlawfully
refusing to bargain. The significance of such an unlawful

115 Economic Pressure and Bargaining Tactics in the Established Relationship

 refusal, in this context and others, is not merely that the
Board will issue a ‘‘cease-and-desist’’ order aimed at reme-
dying the parties’ bargaining behavior. Rather it lies in the
possibility that a strike ensuing as a result of such bargain-
ing behavior would be an unfair-labor-practice strike and
that therefore, in contrast to economic strikers who may be
replaced, the workers would be entitled to reinstatement
and possibly to back pay.102 Accordingly the Borg-Warner
rule can alter considerably the balance of power in a strike
deemed to have been caused by the employer’s posture at
the bargaining table.
A nonmandatory subject is ‘‘permissive.’’ That is to say,
either party may raise the subject at the bargaining table for
the purpose of discussion. It is perfectly lawful to discuss
such an issue. However, when a party insists upon a position
in such an area to the point of impasse, an unlawful refusal
takes place under the Act. The purpose of the rule—which
is extremely difficult to implement—is to exclude frivolous
subjects from the bargaining table and to infer bad faith on
the part of the party that clogs the table with such subjects.
(Illegal subjects may not be discussed at all.) The Court of
Appeals for the First Circuit has said in order for the subject
to be mandatory, it must bear a ‘‘‘direct, significant rela-
tionship to . . . terms or conditions of employment,’ rather
than a ‘remote or incidental relationship.’’’103 For instance,
a union’s insistence upon the employer’s attendance at the
annual union picnic to the point of impasse might be said
to have little if anything to do with conditions of employ-
ment within the meaning of the Act.
The Board has held that an employer’s insistence upon a
proposal that would prohibit attempts by the union to in-
fluence funding sources was permissive and nonmandatory
because it attempted to
. . . govern employee activities which might occur outside the work-
place and outside the employment relationship. Furthermore . . .
[the employer was seeking to] . . . determine the Union’s position
on a political issue. Neither objective is directly related to the
employees’ terms and conditions of employment [and therefore
the subject is permissive].104

116 Chapter 6
 Thus, for instance, if the employer insisted to the point of
impasse that the union limit its attempts to influence fund-
ing sources or, to take the earlier examples, not hold a pic-
nic, or that the union elect its officers in a particular way,
one would assume that the subject matter was so remote
from labor-management problems as to be in bad faith.
Some mandatory subjects of bargaining are layoffs and
recalls, sick leave, incentive pay, paid holidays, vacation
schedules, hours of work, work rules relating to shifts of
work105 and such fringe benefits as cost-of-living adjust-
ments and profit-sharing plans. The union has a right to
bargain over the installation and continued use of surveil-
lance cameras in the workplace.106 Interest arbitration pro-
viding for arbitral resolution of future contract terms is a
nonmandatory subject of bargaining because it substitutes
a third party for labor and management, the appropriate
parties in the collective bargaining process.107 But the issues
are not always so simple. For instance, an employer may in-
sist to the point of impasse over a proposal to give seniority
credit to unit employees hired after a layoff from an affili-
ated hospital, notwithstanding the fact that it causes ‘‘dis-
comfort to the union and engender[s] a sense of grievance
and dissatisfaction amongst the incumbent employees.’’108
The facts of Borg-Warner, and other decisions in its wake,
make it clear that the issues are complex.
In Borg-Warner the employer had insisted upon a ‘‘ballot’’
clause calling for a secret prestrike vote by all union and
nonunion employees within the bargaining unit on the em-
ployer’s last offer. The employer also insisted upon a ‘‘rec-
ognition’’ clause that excluded as a party to the contract the
international union, which had been certified by the Board
as the employees’ exclusive bargaining agent. The Supreme
Court found the employer’s bargaining position with regard
to both matters unlawful, inasmuch as it had insisted upon
what the Court characterized as nonmandatory or permis-
sive subjects of bargaining to the point of impasse.
It might be said that the Borg-Warner Corporation was
subverting one of the basic statutory procedures, and the
role of the Board, in designating an exclusive bargaining

117 Economic Pressure and Bargaining Tactics in the Established Relationship

 agent. Accordingly the Court’s holding that the recognition
clause was a nonmandatory subject of bargaining is some-
what understandable.109 But the ballot clause is a little more
difficult. Suppose an employer is concerned about the ex-
tent to which production has been interrupted by a union
that he or she regards as strike-happy, and believes there is
some basis for assuming that employees are out of sympathy
with the union’s behavior. Quite clearly the employer could
insist upon a clause that would preclude employees from
striking altogether, at least during the term of the agree-
ment. Why can the employer not insist upon a ballot-box
clause to achieve the same purpose?
The answer is by no means clear. The Court’s rationale
rests upon the notion that the prestrike ballot is an attempt
to interfere with the union’s internal political process and,
as such, substantially modifies the collective bargaining sys-
tem provided for in the NLRA by weakening the indepen-
dence of the representative chosen by the employees.110
Said the Court: ‘‘It enables the employer, in effect, to
deal with its employees rather than with their statutory
representative.’’111
The difficulties here are enormous. First, although the
Board and the courts have taken the position that the par-
ties need not be deadlocked on all issues in order for there
to be an impasse, the fact is that it is sometimes powerless to
make the assessment—and, as we have already seen, the
consequences for either the union or the employer can be
significant.
Second, it could be argued that involvement in the de-
termination as to what constitutes a mandatory or non-
mandatory subject of bargaining within the meaning of
the Act is an indirect method of regulating the substance of
the collective bargaining agreement. This is contrary to the
statutory philosophy. But the counterargument is that the
substance of the agreement is not being regulated—only
the extent to which the subject matter may be discussed or
negotiated.
A third area of contention relates to the way in which
collective bargaining is to be conducted. Borg-Warner in-

118 Chapter 6
 volves the Board in establishing the details of the parties’
ground rules. This is less important in the United States
than in Japan, where litigation can arise out of manage-
ment’s insistence that it is not obligated to bargain because
of provocative union conduct such as abusive name-calling,
imprisonment of the boss in his own office or factory, or the
wearing of armbands.112 The closest American analogue is
a refusal by management to bargain with a union because
of the violent behavior of a union leader.113 The Supreme
Court has held that an employer is obliged to bargain with
a lawfully recognized union that is seeking new affiliation
without taking a vote among the nonunion employees as
well as the union members in the bargaining unit.114 Justice
Brennan said for the Court that a contrary rule would
give ‘‘. . . the employer the power to veto an independent
union’s decision to affiliate, thereby allowing the employer
to interfere directly with union decisionmaking that Con-
gress intended to insulate from outside interference.’’115
The need for unions to merge in order to redress the im-
balance between conglomerates and unions makes this an
important issue in labor law. Generally the employees are
entitled to select as a union representative anyone they
would like to have represent them.116 Closely related to this
kind of issue is the demand by one side that a court stenog-
rapher be present at bargaining sessions. The Board and
the courts have rejected this view and held that the subject
is nonmandatory in that a stenographer’s presence might
inhibit the free flow of discussion.117 The goal of retaining a
completely accurate record, as in an adjudicative proceed-
ing, is a subordinate one.
The fourth major problem in this area is the difficulty of
defining what is mandatory and what is nonmandatory. In
a case involving an employer’s subcontracting of mainte-
nance work previously performed by employees in the bar-
gaining unit, the Supreme Court attempted to come to grips
with this issue.118 The Court identified three governing
considerations in its conclusion that the subject was man-
datory. The first was whether the subject matter was within
the ‘‘literal definition’’ of ‘‘conditions of employment.’’

119 Economic Pressure and Bargaining Tactics in the Established Relationship

 Since workers’ jobs were affected by the subcontracting, it
was not difficult to reach the conclusion that their con-
ditions of employment were being affected. The second
consideration was whether industrial peace was likely to be
promoted through the negotiation of the issue. Of course
one might say that, since the party proposing a particular
subject is likely to feel less aggrieved in the event that it is
able to discuss it thoroughly, it is more likely that
a peaceable settlement would be reached. But this would
permit any party to put any subject on the table. Third, the
Court stated that the practice in the industry was important.
Since many unions and employers had negotiated clauses
and collective bargaining agreements providing for limita-
tions or prohibitions on subcontracting, it was thought that
this factor weighed in favor of making subcontracting a
mandatory subject of bargaining. But the Court was doing
what it had said in some of its ‘‘freedom of contract’’ cases it
would never do: impose upon union and employers a pro-
crustean rule based on practices that might well have
evolved in different industries under totally different cir-
cumstances. It might be said that if some unions and some
employers wished to bargain seriously about subcontracting
and to incorporate clauses in their collective bargaining
agreement, they should be free to do so, and that those who
did not wish to do so would be allowed to go their own way.
The response of the Court and the Board to this idea was
that whatever is dictated by the refusal-to-bargain cases, it is
not a requirement to include a particular subject within the
collective bargaining agreement.
There are many problems with the last of the three crite-
ria explained in the preceding paragraph, but some of the
language in the subcontracting case and in its progeny in-
dicates how difficult the first criterion is in actual applica-
tion. The Supreme Court, and Justice Stewart in a special
concurring opinion, were at pains to emphasize that the
Board cannot modify the free-enterprise economy through
its interpretation of labor legislation in defining what con-
stitutes a mandatory subject of bargaining. As Stewart said:

120 Chapter 6
 This kind of subcontracting falls short of such larger entrepre-
neurial questions as what shall be produced, how capital shall be
invested in fixed assets, or what the basic scope of the enterprise
shall be. In my view, the Court’s decision in this case has nothing
to do with whether any aspects of those larger issues could under
any circumstances be considered subjects of compulsory collective
bargaining under the present law.119
Justice Stewart’s concurring opinion is not very clear
about the demarcation line between mandatory and non-
mandatory subjects of bargaining, but the Court has relied
on his thinking in attempting to draw lines. Said Justice
Harry Blackmun in an opinion issued in 1981:
Some management decisions, such as choice of advertising and
promotion, product type and design, and financing arrangements,
have only an indirect and attenuated impact on the employment
relationship. See Fibreboard, 379 U.S. at 223 (Stewart, J., concur-
ring). Other management decisions, such as the order of succes-
sion of layoffs and recalls, production quotas, and work rules, are
almost exclusively ‘‘an aspect of the relationship’’ between em-
ployer and employee. . . . The present case concerns a third type of
management decision, one that had a direct impact on employ-
ment, since jobs were inexorably eliminated by the termination,
but had as its focus only the economic profitability of the contract
[between a maintenance company and a nursing home] . . . a con-
cern under these facts wholly apart from the employment rela-
tionship. This decision, involving a change in the scope and
direction of the enterprise, is akin to the decision whether to be in
business at all, ‘‘not in [itself ] primarily about conditions of em-
ployment, though the effect of the decision may be necessarily
to terminate employment.’’ . . . At the same time, this decision
touches on a matter of central and pressing concern to the union
and its member employees: the possibility of continued employ-
ment and the retention of the employees’ very jobs.120
It seems clear that any complete closing of a business is
a managerial prerogative that is beyond the scope of any
portion of the NLRA121 at least where the business is not
sold as a going concern. The appellate courts have generally
held that partial closings were similarly outside the reach of
refusal-to-bargain charges by unions.122 However, both the
Second and Third Circuit Courts of Appeals began to fash-
ion limitations on managerial freedom in this area.123 In an

121 Economic Pressure and Bargaining Tactics in the Established Relationship

 opinion authored by Judge Morris Lasker for the Second
Circuit, that court stated the following:
We believe that the determination whether to impose a duty to
bargain should not depend on the relative injury to the employer
and the employees, but rather on the relative merits of the argu-
ments put forth as to those classic considerations of whether the
purposes of the statute are furthered by the decision to impose a
duty to bargain in a particular case.
Accordingly the presumption that the employer has an
obligation to bargain over a decision partially to close the
business may be rebutted by showing that the purposes of
the statute will not be furthered by imposition of a duty to
bargain. Without an attempt to enumerate all those in-
stances in which the presumption may be rebutted, a few
examples may be noted for purposes of illustration. The
employer might overcome the presumption by demonstrat-
ing that bargaining over the decision would be futile, since
the purposes of the statute would not be served by ordering
the parties to bargain when it is clear that the employer’s
decision cannot be changed. Other relevant considerations
would be that the closing was due to emergency financial
circumstances, or that the custom of the industry, shown by
the absence of such an obligation from typical collective
bargaining agreements, is not to bargain over such deci-
sions. The presumption might also be rebutted if it could be
demonstrated that forcing the employer to bargain would
endanger the vitality of the entire business, so that the pur-
poses of the statute would not be furthered by mandating
bargaining to benefit some employees to the potential det-
riment of the remainder. This might be a particularly sig-
nificant point if the number to be laid off was small and the
number of the remainder was large.124
The Supreme Court categorically rejected this position by
a vote of 7–2. In an opinion authored by Justice Blackmun
the Court, expressing concern that the Second Circuit’s
standards were not sufficiently precise and would unneces-
sarily expose employers to back-pay liability, concluded that
‘‘the harm likely to be done to an employer’s need to oper-

122 Chapter 6
 ate freely in deciding whether to shut down part of its
business purely for economic reasons outweighs the incre-
mental benefit that might be gained through the union’s
participation in making the decision.’’125 The Court rea-
soned that it was unlikely that the union could induce the
employer to change its mind and that delay would harm
management’s interests in speed, flexibility, and secrecy.
The decision to partially close therefore is not itself a man-
datory subject of bargaining, but the ‘‘effects’’ of the deci-
sion (severance payments, relocation allowances, retraining,
and the like) are.126 The Court has left open the question
of whether management decisions on plant relocations,
plant sales, automation, and types of subcontracting not
covered by the previous Supreme Court decision referred to
above are mandatory subjects.
Initially the Board, while sometimes limiting the thrust of
First National Maintenance,127 generally interpreted it so as
to require the union to show that labor costs are the reason
for the employer’s decision.128 But in Dubuque Packing
Co., Inc.:129 the Board adumbrated a test for determining
whether an employer’s relocation decision is a mandatory
subject of bargaining. The Board held that if the relocation
was ‘‘unaccompanied by basic change in the nature of the
employer’s operation,’’ the General Counsel establishes a
prima facie violation, and the burden shifts to the employer
to establish that the work performed at the new location
varies ‘‘significantly’’ from the work performed at the for-
mer plant—or that labor costs were not a factor and that
even if they were a factor, labor cost concessions could not
have changed the employer’s decision.130 In connection
with the last mentioned consideration, the Board said:
. . . an employer would have no bargaining obligation if it showed
that, although labor costs were a consideration in the decision
to relocate unit work, it would not remain at the present plant
because, for example, the costs for modernization of equipment
or environmental controls were greater than any labor cost con-
cessions the union could offer. On the other hand, an em-
ployer would have a bargaining obligation if the union could and
would offer concessions that approximate, meet, or exceed the

123 Economic Pressure and Bargaining Tactics in the Established Relationship

 anticipated costs or benefits that prompted the relocation deci-
sion, since the decision then would be amenable to resolution
through the bargaining process.131
However, the elaborate test articulated in Dubuque does
not apply to contracting out of work that does not affect the
scope or direction of the enterprise132 —that is to say, a vio-
lation will be found more easily under circumstances where
the scope or direction of the enterprise is not at issue. Nor
did the Dubuque test apply to the employer’s obligation to
bargain before, for instance, instituting a decision to lay off
workers.133
Meanwhile in Milwaukee Spring I 134 the Board seemed to
fashion a route by which the potential implications of First
National Maintenance could be circumvented, holding that
layoffs due to the relocation of a plant constituted a repu-
diation of the contract provision that sets forth the wage
rates. This important decision was reversed by a new Board
majority in 1984.135
Frequently there is litigation about the duty to bargain
during the term of the contract and the employer’s right to
refuse to do so when it has negotiated a ‘‘zipper clause’’
which, in the employer’s view, zips up all future obligations
regarding negotiations. A party to a collective bargaining
agreement may lawfully require midterm negotiation over
mandatory subjects not ‘‘contained in’’ the agreement.136
But when a party has acquiesced during negotiations in the
exclusion of a mandatory subject by effectively ‘‘agreeing to
disagree’’ on the issue, and the matter is not incorporated
in the contract, midterm bargaining on the subject cannot
be required.137 For the zipper clause to waive a duty to bar-
gain, it must do so clearly and unequivocally.138 Said the
Board:
In general, a zipper clause is an agreement by the parties to pre-
clude further bargaining during the term of the contract. If the
zipper clause contains clear and unmistakable language to that ef-
fect, the result will be that neither party can force the other party
to bargain, during the term of the contract, about matters encom-
passed by the clause. That is, the zipper clause will ‘‘shield,’’ from a
refusal to bargain charge, the party to whom such a bargaining

124 Chapter 6
 demand is made. Similarly, under such a clause, neither party can
unilaterally institute, during the term of contract, a proposal con-
cerning a matter encompassed by the clause. That is, the zipper
clause cannot be used as a ‘‘sword’’ to accomplish a change from
the status quo.139

Plant Closing Legislation

In 1988 Congress, notwithstanding President Reagan’s op-
position, enacted the Workers Adjustment Retraining and
Notification Act.140 The Act obliges employers who have
more than 100 employees (excluding part-time employees)
or who have more than 100 employees who work at least
4,000 hours per week (excluding overtime) to provide
sixty-days notice to employees or their representatives in
connection with plant closures and mass layoffs.141 Addi-
tionally thirteen states have enacted their own plant closing
legislation.142

Take-It-or-Leave-It Bargaining: Boulwarism

Other difficult refusal-to-bargain charges involve ‘‘Boulwar-
ism’’ (a term derived from the name of General Electric’s
vice president for labor relations). In essence this was a
policy that required the employer to announce its final po-
sition at the outset of bargaining. The employer’s idea here
is that a tortured process of give and take in which the em-
ployer is excoriated for its obstinacy and unreasonable-
ness and gradually brought down to a modified position
only enhances the prestige of the union and diminishes
that of the employer. The position of the General Electric
Company—which created and refined Boulwarism—was
that it would provide a firm and fair offer to its workers, and
that it would announce to the employees what was going on
in the collective bargaining so that the workers would not
have to rely on the union’s characterization of the discus-
sions.143 In some respects this resembles the union conduct
that prompted the Taft-Hartley Congress to impose the duty
to bargain on unions. Unions, it is to be recalled, often
threw the contract on the table and told small employers to
‘‘take it or leave it.’’ Here, however, General Electric took

125 Economic Pressure and Bargaining Tactics in the Established Relationship

 the position that external factors, such as a change in the
economy, could alter the company’s position. The prevail-
ing view is that the mere announcement of the employer’s
final offer at the commencement of negotiations is not per
se an unfair labor practice. Good-faith bargaining does not
require the parties to make proposals and counterpropos-
als; it merely requires good-faith intent to consummate an
agreement. However, the courts have said that it is appro-
priate to take into account other conduct of the employer
which, along with tactics such as Boulwarism, may be con-
sidered as a basis for inferring bad faith under the totality of
circumstances.
Unlawful surface bargaining engaged in with an intent
not to consummate a collective bargaining agreement can-
not be found on the basis of whether a particular proposal
is ‘‘acceptable’’ or ‘‘unacceptable.’’144 Said the Board in an-
other case:
In determining whether a party has bargained in good faith, mak-
ing a genuine effort to reach agreement, we will seldom find direct
evidence of a party’s intent to frustrate the bargaining process.
Rather, we must look at all of its conduct, but away from the bar-
gaining table and at the table, including the substance of the pro-
posals on which the party has insisted. . . . Such an examination is
not intended to measure the intrinsic worth of the proposals, but
instead to determine whether, in combination and by the manner
in which they are urged, they evince a mindset open to agreement
or one that is opposed to true give-and-take.145
The 1990s witnessed a number of important cases involv-
ing tactics. In one case,146 the Board held that an employer
could lawfully use an alternative bargaining proposal as a
bargaining tactic to obtain acceptance of its last offer by
insisting that if the union did not accept it, it would submit
a new and less attractive offer. Similarly, a majority of the
Board held that so-called regressive bargaining or insistence
upon terms which are less generous than those contained in
previous offers or positions tentatively accepted was not, per
se, evidence of bad faith bargaining.147
Again, freedom-of-contract cases such as Insurance Agents
and American Ship Building, which are consistent with the

126 Chapter 6
 General Electric ‘‘totality-of-conduct’’ approach, provide for
the use of tactics that (at least in the short run) seem to
discourage genuine dialogue. On the other hand, the Su-
preme Court has held that employers have an obligation
to open their books and disclose financial data when they
plead an inability to pay in collective bargaining,148 in the
interest of genuine dialogue between parties truly con-
cerned with reaching a settlement. This decision, which
regulates conduct and tactics, is aimed at establishing col-
lective bargaining that will concentrate on the economic
conditions confronting the employer. However, it has been
circumvented by managements not asserting an inability to
pay, even if that is the basis for their negotiating posture.
Only employers lacking competent labor counsel fail to rely
upon other considerations, such as wage comparability. The
inclination to rely on the totality of circumstances (in these
cases, on whether management pleads poverty) shows the
courts’ unwillingness to regulate too much. Only employers
in unusual industries, such as baseball, have difficulty with
the NLRA’s disclosure requirements. Because there are no
comparable wage scales to be cited in baseball, it was diffi-
cult for the owners to say that their position in the 1981
negotiations was based on anything other than their view
that the industry was imperiled economically.
Moreover the Board and the courts have established an
arbitrary demarcation between a position based on inability
to pay and that which is predicated upon competitive pres-
sures from other employers. Judge Richard Posner has
written: ‘‘a company has stated that the test is whether the
company is unable to pay.’’ Said the court:
. . . a company can survive, certainly in the short run and often in
the long run, even though it is paying higher wages than its com-
petitors. The company may have some other cost advantage; its
competitors may price above their costs; the market may be ex-
panding rapidly. The company will grow less rapidly than if its
costs were lower and may stagnate or decline, but it need not die.
There is thus no contradiction in a company’s stating, on the one
hand, that it is profitable and, on the other hand, that its costs are
higher than its competitors’ and it wants to reduce them.149

127 Economic Pressure and Bargaining Tactics in the Established Relationship

 On remand, the Board has stated that the test is whether an
employer’s position is based upon an inability to pay during
the life of the contract.150 The Court of Appeals for the
District of Columbia, noting the Board’s shift from its pre-
vious position,151 has concurred.152
Two comments are in order here about the duty-to-
bargain concept generally and the General Electric case in
particular. The first is that again the schizoid tendencies in
the National Labor Relations Act come to the forefront. On
the one hand, there is a reluctance to interfere with tactics
—again the concern is that this will lead to regulation of the
substance of the collective bargaining agreement. At the
same time it is quite obvious that the General Electric
Company was attempting to denigrate the union, to make it
an ineffective bargaining agent, and perhaps ultimately to
eliminate it altogether as a bargaining agent. The employ-
ees would get the message that the union could not alter
the employer’s basic view of what constituted a fair and firm
offer and would soon begin to ask themselves why they had
joined the union at all. Surely this was the basic objective
of GE’s strategy. The law tries to ride two difficult horses:
preservation of the collective bargaining process (which
argues for condemnation of Boulwarism) and freedom of
contract (which eschews regulation).
Another basic problem with Boulwarism is the elusiveness
of the remedy. The courts, unwilling to condemn the tactic
itself, elect to rely on totality of conduct. The next time
around in the bargaining process, the employer simply
changes one tactic and the question of whether the totality
of circumstances warrants a finding of bad faith requires
another round of adjudication. To put it another way, the
likelihood of a contempt sanction for misconduct is ex-
tremely remote given the lack of precision involved in any
order. All of this leads to the next chapter, which is con-
cerned with remedies.

128 Chapter 6
 7
Remedies and the Labor Reform Bill of 1978

The principal reasons for the considerable focus on rem-

edies and the emergence of proposals for labor-law reform
in the Labor Reform Bill of 1978 were the increased case-
load of the National Labor Relations Board and the strain
that caseload has placed on an administrative statutory
scheme that was already convoluted and tortuous. As Chair-
man John Fanning of the NLRB said in testimony before
the House Committee on Education and Labor:
In 1957, when I was first appointed to the Board, the agency
processed a total of 16,000 cases and the Board issued 353 deci-
sions in contested unfair labor practice cases. In the current fis-
cal year (1972) we will receive more than 52,000 cases and we
expect to issue 1,121 such decisions. In fiscal year 1978 we esti-
mate that 57,000 cases will be filed with the agency and we ex-
pect to issue 1,242 decisions. In fiscal year 1979 the number of
cases will amount to 61,000, and our published decisions will
number 1,400.1

This has delayed the administrative process. A worker dis-

missed for union activity during an organizational campaign
may not obtain the remedies provided by the statute until
long after they are meaningful. The worker’s losses in the
interim can never be adequately remedied by the law. As
the House Committee on Education and Labor said: ‘‘The
committee heard testimony about workers who had their
 homes foreclosed and cars repossessed while waiting an ul-
timately favorable disposition of their case. Clearly, in addi-
tion to failing to deter violations of the act, remedies under
existing law also fail to compensate the victims of such ille-
gal conduct.’’2

Remedies Mean Compensation

One reason for the difficulties with the NLRA is the Su-
preme Court’s holding that the Act is designed to perform a
remedial function and that punitive sanctions may not be
imposed for violations.3 This translates into the proposition
that if an employee receives more than he or she had lost,
the remedy is punitive rather than remedial.4 In line with
this approach the Act provides that interim earnings or
those that would have been obtained with ‘‘reasonable dili-
gence’’ be deducted from any back pay the employee
receives from the employer (unemployment compensation
and social-welfare benefits are not deducted, for public-
policy reasons).5 This means that back-pay hearings often
take place after an unfair labor practice proceeding, and in
such hearings detailed testimony is taken about the kinds of
work at which the worker was employed after the commis-
sion of the unfair labor practice, or whether the worker was
available in the relevant labor market.6 Often litigation over
the question of what is the relevant labor market adds to the
delay.
The problem here is that the worker is exasperated with
the mere award of back pay and in future situations will be
unlikely to engage in protected activity. A dismissed worker
may not even make use of the remedies the Board provides.
As one study has noted, the number of employees accepting
reinstatement was found to equal only 5 percent of all per-
sons discriminatorily discharged where reinstatement was
not offered until six months after the violation.7 As the con-
servative journal Business Week noted, when an appeal is
taken to the court subsequent to an NLRB proceeding the
process can stretch for so long that the ‘‘worker is finan-
cially and emotionally exhausted.’’8

130 Chapter 7
The Collective Interest
Even more troublesome is the impact that all of this can
have on a union’s general organizational activity. Union
adherents who have not been disciplined for union activity
will quickly get the message. If they are found out or retali-
ated against for their union activity, they will suffer similar
consequences and will wait a considerable period of time
before obtaining a remedy even if they are able to prove
unlawful employer conduct. If the remedy is reinstatement,
it may simply put them back to work in an uncongenial en-
vironment. Back pay will come only after litigation about
what work they actually held or (even more vexatious) what
work they could have obtained with reasonable diligence.
The effect of all of this will be to encourage workers to es-
chew union activity and to thus kill an organizational cam-
paign. Under such circumstances the employer is perceived
as merely paying a license fee for dismissing workers unlaw-
fully, and pays out considerably less than would have been
provided in wages, fringe benefits, and other improved con-
ditions of employment by a collective bargaining agreement
—benefits that might have been negotiated had a union
come on the scene.

Delays
A dramatic example of the legal abuses here concerns J.P.
Stevens & Co., which according to NLRB data supplied
during Representative Frank Thompson’s Oversight Hear-
ings in 1975 had at that time ninety-six different unfair
labor practice cases pending before the Board, in addition
to having violated the NLRA on many occasions.9 The same
hearings showed similar management misbehavior in San
Francisco, a union stronghold, where some corporation
attorneys had attained new levels of sophistication in
achieving delay.10
With each edition of this book, the amount of time it
takes for a complaint to wind its way through the Board’s
adjudicative process grows ever longer. While the median
time from filing an unfair labor practice charge to the issu-
ance of a complaint by the General Counsel was a rather

131 Remedies and the Labor Reform Bill of 1978

 lengthy 45 days in 1989, the most recent figures available
from 1999 show that the period has almost doubled to 89
days. Another 168 days are consumed from the issuance of
the complaint to the close of the hearing before the ad-
ministrative law judge (compared with 133 days in 1989 and
85 days in 1983). Then, another 97 days elapses before the
administrative law judge issues a decision. Finally, the me-
dian interval between this decision and a decision by the
Board is 461 days. Thus, a grueling 747 days (versus 738
days in 1989, 627 days in 1983, and 358 in 1975) pass be-
tween the filing of the initial charge and the Board’s deci-
sion. Of course, this does not include the time for an appeal
to reach the Court of Appeals seeking enforcement or re-
view. One logical explanation for the increased delay would
be an increased number of unfair labor practice charges
filed with the Board; however, the opposite is true. In 1999
27,450 unfair labor practices charges were filed, a decrease
of nearly 5,000 yearly charges since 1989.11
While the overall time that it takes a complaint to pro-
ceed through the Board’s procedures has increased, the 97
days between the close of a hearing and the administrative
law judge’s decision is significantly less than the 153 days
that it took in 1989. This dramatic decline may be attributed
to various reforms that the Board instituted to streamline
the administrative law judges’ duties.12 In September 1994,
the Board established time targets to decrease the period it
took for judges to issue decisions after the close of a trial or
after the submission of briefs. Similarly, under the bench
decision rule, judges now have discretion to decide at the
end of the trial that they will hear oral arguments instead of
requiring written briefs, and they can then read their deci-
sions into the record.13
However, somewhat paradoxically, even though the me-
dian time that it takes for a charge to result in a Board de-
cision has consistently increased, the Board’s total backlog
of cases declined during the mid-1990s.14 Receding from a
high-water mark of 1,647 cases pending before the Board in
February 1984, in 1995 the backlog reached its lowest level
since records have been kept (366). This reduction in back-

132 Chapter 7
 logged cases is attributable to additional reforms that the
Board instituted under my Chairmanship. First, in Decem-
ber 1994, the Board instituted a ‘‘speed team’’ case han-
dling process when the Board adopts the administrative law
judges’ recommended order. In such cases, staff members
orally present the case to a Board Member and, after dis-
cussion, write an opinion within a few days while the case
is still fresh in the Member’s mind. Second, in November
1996, the Board implemented a ‘‘Super Panel’’ system for
processing certain cases carefully preselected by the Execu-
tive Secretary. Under the system, a panel of three Board
Members meets each week to hear cases that involve issues
that lend themselves to a quick resolution without written
analysis by each Member’s staff. This more rapid procedure,
which generally involves application of settled Board prece-
dent, avoids the notorious delays mentioned above and
reduces the amount of staff time devoted to these straight-
forward cases. Unfortunately, even with the administrative
changes, severe budgetary cuts and Board members’ leth-
argy caused the number of backlogged cases to increase
through the remainder of my term, totaling 701 in August
1998.
Another delay comes in connection with representation
proceedings before the Board after the filing of an election
petition. Though not as severe as the delays following the
filing of unfair labor practice charges, in 1999, it took 33
days from the filing of a representation petition until the
Regional Director issued a decision ordering an election.
Though this figure has declined from 44 days in 1989, em-
ployees still must wait for the election to actually occur and
for its results to be certified.15 While parties could avoid this
delay by having a so-called consent election after agreeing
on the procedure, there are about half as many regional-
director and Board-consent elections as those that take
place subsequent to litigation and a hearing.

Subversion of Election Outcomes by Employers

A third variation on the same basic theme are cases where a
majority of employees voting have cast their ballots for the

133 Remedies and the Labor Reform Bill of 1978

 union as their exclusive representative but the employer
refuses to bargain with the union on the ground that the
unit is inappropriate or that ineligible employees had voted.
When an employer refuses to bargain with a union that has
been certified by the Board as exclusive representative, the
union files an unfair labor practice charge, the General
Counsel issues a complaint, and a hearing is held before an
administrative law judge. The record in the representation
hearing is incorporated in the unfair labor practice record.
The administrative law judge, relying upon what had al-
ready been decided by the Board, finds that the employer
has unlawfully refused to bargain with the union, and this
is affirmed by the Board. Then the employer appeals to the
circuit court of appeals and, in some instances, petitions for
certiorari to the Supreme Court. Between three and five
years later, subsequent to the certification, the employer is
ordered to bargain with the union. But meanwhile the im-
proved wages, fringe benefits, and other conditions of em-
ployment that might have been negotiated have been lost to
the employees. Moreover the employees, frustrated by the
lack of collective bargaining and confronted with the em-
ployer’s legally defensible position16 that it cannot bargain
with the union while the representation issue is pending in
the courts, have achieved nothing, while unorganized em-
ployees have forged ahead. The lesson for the employees is
that a vote for the union has made life more difficult for
them.
In the Ex-Cell-O decision17 the NLRB held that a remedy
providing the employees with benefits lost during the in-
terim period (a ‘‘make-whole’’ remedy) would have been an
impermissible imposition of contract terms upon the parties
and thus was beyond the Board’s remedial authority. The
Board, however, has fashioned remedies including litiga-
tion expenses in cases where the violation was ‘‘clear and
flagrant.’’18

Expediting the Administrative Process

The Labor Reform Bill of 1978 attempted to cope with
many of the problems described above. Inasmuch as the

134 Chapter 7
 principal problem was delay, it provided for ‘‘summary
affirmance’’ of administrative law judges’ decisions by the
National Labor Relations Board. Since most issues are ones
of fact (i.e., of whether the management representative or
the employee is telling the truth about the basis for disci-
pline or discharge), the administrative law judge is presum-
ably in the best position to make such a decision; the Board
could never assess credibility or demeanor on the basis of a
dry transcript. Approximately 74 percent of all contested
cases taken to the Board subsequent to the administrative
law judge’s decision are adopted without any modification
or minor clarification—a ‘‘short form’’ adoption. More than
80 percent of administrative law judges’ positions are af-
firmed by the Board. Accordingly the Labor Reform Bill
would have provided that one party could petition for sum-
mary affirmance on the ground that the issue was essentially
fact and not law or a novel issue of law.
The Board now has the authority to seek relief from the
federal district court where a delay would produce irrepa-
rable harm to the charging party. Section 10( j) of the
NLRA authorizes the Board to obtain temporary injunctive
relief to preserve the status quo as it was prior to the unfair
labor practice pending hearings before the agency.19 In
the case of a discharge this would require reinstatement of
the worker pending appeal. However, the Board has not
been particularly successful in convincing the federal courts
that such relief is appropriate—indeed it has been argued,
sometimes with a good deal of merit, that the Board has
been excessively cautious in seeking such relief. (In fairness
to the Board, it should be pointed out that delay is built into
its own internal process by the statute; concurrence of the
five-member Board must be sought subsequent to a decision
by the General Counsel to seek such relief. This stands in
sharp contrast to section 10(1) of the Act,20 which man-
dates the regional attorney—without the involvement of the
General Counsel in Washington or the full Board—to seek
injunctive relief in connection with certain kinds of union
unfair labor practices.)21

135 Remedies and the Labor Reform Bill of 1978

 That said, the Board’s use of Section 10( j) injunctions
increased dramatically during the mid-1990s, as the Board
sought to send a signal to both employers and unions that
it would take prompt action where the passage of time
would render traditional remedies ineffective.22 Most sig-
nificantly, in 1995, the Board sought—and won—injunctive
relief against unfair labor practices committed by Major
League Baseball, which ultimately resulted in the end of the
players’ strike. However, the surge subsided after its peak in
1995, when the Board sought 104 injunctions, and the
Board only sought 28 in 1999.23
The Labor Reform Bill would have encouraged both the
Board and the courts to seek and fashion temporary in-
junctive relief by providing criteria under which the courts
could issue injunctions. For instance, the bill was intended
to make possible injunctions against discharges where the
union had not negotiated its first contract. Accordingly the
desire was to promote collective bargaining when it was
most vulnerable to complete undermining through unlaw-
ful management conduct. Another useful proposal here
would have been to allow the Board to seek injunctive relief
at the regional level so as to expedite the Board’s own in-
ternal process, just as the regional office has such authority
in connection with certain unfair union practices referred
to above.
All of these proposals were attempts to cope with delays
in the administrative process that dimmed the prospect of
collective bargaining even where the union had the alle-
giance of a majority of the workers. But there still re-
mained the problem of effective remedies. The Labor
Reform Bill would have provided for the awarding of more
than back pay to dismissed workers. The House favored
double back pay and no deduction for interim earnings; the
Senate, more modestly, would have provided for one and
a half times the amount of back pay. Similar remedies
are available in different forms in the antitrust and equal-
employment-opportunity fields. (The provision in some of
the reform proposals for compensation to be awarded au-

136 Chapter 7
 tomatically, rather than only where employer conduct had
been malicious or deliberate, may have been a flaw.)
Another concern over the Labor Reform bill was that
more comprehensive relief in the form of double or one-
and-one-half damages would not deter wrongdoing but
would simply represent a more expensive ‘‘license.’’ Ac-
cordingly it was proposed that any party found by the Board
to have willfully violated Board orders would be barred,
upon authorization by the secretary of labor, from partici-
pating in federal contracts for three years. This weapon is
currently available in connection with equal employment
opportunity, but the record of law enforcement in that area
has not been particularly good.24 Government, which wants
to have its contracts with private employers fulfilled, gen-
erally seems able to find a basis for moving ahead with
the future contracts rather than canceling, debarring, or
whatever.
Finally, the Labor Reform Bill would have reversed the
Ex-Cell-O decision, in which the NLRB refused to provide
‘‘make-whole’’ relief for employees where employers re-
fused to bargain with a certified union and utilized the ap-
pellate process. As noted above, the only remedy is a court
order obligating the employer to bargain—years after the
initial obligation. The bill provided that in cases where the
employer had unlawfully refused to bargain for an initial
contract, employees would be awarded compensation for
the delay in bargaining. The workers would receive an
amount based on the average wage settlements negotiated
by workers at plants where collective bargaining had pro-
ceeded lawfully, and would receive wages and fringe bene-
fits retroactively from the time of the unlawful refusal to
bargain until bargaining was commenced.
Still a recidivist employer might well not be affected by
any of these remedies where a union was attempting to ob-
tain a first contract. In a final analysis, the only effective
remedy for a union is one that puts it in a position to obtain
a collective bargaining agreement. It is the inability to get
a first contract that, more than anything else, has stimu-
lated demands for reform of the present laws.25 In 1975,

137 Remedies and the Labor Reform Bill of 1978

 during hearings before the House Subcommittee on Labor-
Management Relations, Jack Crowley, president of the San
Francisco Labor Council, concurred in this view: ‘‘If the
union wins an election, then there should be some sanction
imposed upon the employer, if the employer has delayed
the case at any stage of the proceeding. Such a sanction
could include the awarding by the Board of benefits to the
employees represented by the union that are consistent
with the contracts that the union has in the geographical
area in the identical or similar industry in which the indi-
vidual employer is involved.’’26 One difficulty with this kind
of approach is that both unions and employers are less than
enthusiastic about anything that smacks of compulsory ar-
bitration in the wage or economic area—even though some
unions recognize that this is the only effective remedy in
many cases. In a number of Canadian provinces—Ontario,
Quebec, British Columbia, Newfoundland, and Manitoba—
such objections have not been allowed to override the prov-
inces’ experiment with first-contract arbitration as a remedy
for unfair labor practices.
The Labor Reform Bill was defeated in 1978. (More ac-
curately it was not voted upon on its merits because of a fil-
ibuster in the Senate.) Of course there were considerable
arguments put forward by the employers on the merits. The
most formidable of these was that severe remedies would be
counterproductive in that they would create fewer settle-
ments and more numerous and longer delays. There would
be more of an incentive to litigate because the cost of set-
tlement would be greater, and thus there would be more
cases, hearings, and delays.
The problem of delay and ineffective remedies remains
an important one in labor-relations law. It is sure to be ad-
dressed in the years to come. By the mid-1980s, however,
the labor movement’s failure to obtain reform and its frus-
tration with the Reagan Board prompted the AFL-CIO’s
President Lane Kirkland to promote the idea that the Na-
tional Labor Relations Act ought to be repealed.27

138 Chapter 7
 8
Dispute Resolution in the Established Relationship

Dispute-resolution machinery, whether it is devised by pri-

vate parties or imposed by legislation, generally focuses on
two quite different problems. The first relates to disputes
that arise during the term of the collective bargaining
agreement, usually involving its interpretation. These are
called ‘‘rights’’ disputes; the question is what resolution
should be made where the parties disagree as to the appli-
cation or interpretation of the agreement. The second area
is ‘‘interest’’ disputes; that is, disputes that arise over the
terms of the new collective bargaining agreement (gener-
ally after the expiration of the old one). These disputes,
frequently resolved under guidelines or criteria established
by the parties or by legislation, generally concern wages and
other economic issues that go right to the core of the bar-
gaining relationship. The mode of dispute resolution can
vary. In the United States we have generally utilized media-
tion, fact finding, or arbitration. Mediation involves the
intervention of a third party, appointed by labor and man-
agement or by government, whose role it is to attempt to get
the parties to resolve their differences amicably. The medi-
ator has no authority to do anything—even to make rec-
ommendations to the parties as to how the matter should be
resolved. Mediators often play innovative and important
roles in the resolution of disputes, although sometimes they
 simply carry coffee from the labor side to the management
side. But the third party’s function is to clarify the issues,
appeal to the parties’ reasoning processes by using the arts
of persuasion, and (when specifically authorized by the
parties) to make recommendations to them. The mediator
must have the parties’ confidence. They must be able to
entrust their secrets and confidences to the mediator, with-
out fear that this information will be leaked to the other
side. A skillful mediator is able to make use of such infor-
mation in making suggestions, structuring the dialogue, or
formulating proposals.
Fact-finding differs from mediation in the sense that fact-
finders not only may investigate the dispute but may make
public recommendations for its resolution. The theory is
that pressure is placed upon the party who resists the rec-
ommendations to come to terms because the public or
those interested in the dispute will exert pressure upon
whichever side is more obstinate. Usually we tend to associ-
ate the use of mediation and fact-finding with interest dis-
putes relating to the terms of a new contract, but this is not
always the case. Both mediation and fact-finding can be and
are used in connection with grievance or rights disputes.
When we speak of arbitration in the United States, we
generally mean private, voluntary negotiations conducted
with the mutual consent of the parties—a pattern that con-
tradicts the general impression that foreigners have of the
American system as written into and governed by law. (The
Railway Labor Act, which covers airline and railway workers,
and some state laws relating to public-sector disputes man-
date arbitration, and interest disputes in the public sector
have assumed great importance in recent years.) Arbitra-
tion in the United States is encouraged by the National La-
bor Relations Act and by Supreme Court decisions handed
down since the early 1960s. However, the practice of arbi-
tration developed prior to and in some circumstances in
spite of the law, since in some jurisdictions arbitration
agreements were considered void as against public policy.
Jealous courts did not wish to have their jurisdictions
undermined.

140 Chapter 8
 Arbitration began in the United States before the turn of
the century, appeared in 1903 in the form of the ‘‘umpire’’
system of the Anthracite Coal Commission, was accepted by
the hosiery and clothing industries in the form of the ‘‘im-
partial chairman’’ system in the 1920s, and was well on its
way even prior to the Wagner Act of 1935. It gained greater
impetus through the War Labor Board, which, operating
under the emergency conditions of World War II, encour-
aged, nurtured, and in some instances imposed no-strike
obligations and arbitration machinery. All of this was well in
advance of Taft-Hartley, which merely ratified a trend the
parties had evolved for themselves.

Arbitration Defined
Arbitration is quite different from mediation, which also
involves third-party intervention. In the United States and
in other countries it means a decision-making process,
although many arbitrators rely upon mediatory skills as
well. Indeed the use of mediation was a prominent char-
acteristic of both the ‘‘impartial chairman’’ system and
some of the permanent umpireships that existed during
the 1940s. In the final analysis, however, a decision or
award can be issued by the third party. This is the signifi-
cance of arbitration as opposed to other modes of dispute
resolution.
Interest arbitration is a relatively rare phenomenon in the
United States.1 However, as collective bargaining has ex-
tended itself into the public sector, where striking has been
considered less acceptable, interest arbitration has become
popular as a substitute for strikes. The Postal Reorganiza-
tion Act’s provision for interest arbitration in the Postal
Service was utilized in 1984 when a Board of Arbitrators,
chaired by Dr. Clark Kerr, rendered the first arbitration
award ever rendered at the federal level.2
Moreover an increasing number of jurisdictions have be-
gun to use ‘‘final-offer’’ arbitration, under which the arbi-
trator is required to select one of the two parties’ last
offers.3 Some of these states make the same provision for
police, and some for municipal employees or even public

141 Dispute Resolution in the Established Relationship

 employees generally. Twenty-four jurisdictions have passed
statutes providing for some form of binding interest arbi-
tration.4 Final-offer arbitration is designed to force both
sides to be reasonable and thus to avoid one of the major
objections to interest arbitration (particularly when it is
compulsory): that it will erode the collective bargaining
process and keep both sides from compromising out of fear
that the arbitrator will ‘‘cut the baby in half.’’ This fear
inhibits the give and take and the flexibility that are pre-
requisites to collective bargaining, because those who com-
promised would feel that they had sacrificed their position
with the arbitrator. Because of the uncertainty about whose
offer will be selected, both sides are induced to be reason-
able and compromise. Final-offer arbitration has been used
in salary disputes in baseball. It also has been suggested as
the procedure to be used in Taft-Hartley and Railway Labor
Act emergency disputes.5
By 1976 the steel industry seemed to have adopted inter-
est arbitration through its negotiation of the Experimental
Steel Negotiating Agreement,6 but it appears as though the
parties have now discarded this approach. The theory in an
industry such as steel is that the prospect of a strike prompts
present and potential customers to buy from foreign pro-
ducers, particularly the Germans and the Japanese. Once
customers are motivated to buy elsewhere they often be-
come permanent customers. The assurance that a dispute
will be resolved through arbitration and not a strike is likely
to hold customers who would otherwise be lost.
But it is grievance or rights arbitration involving disputes
during the term of the agreement that is the most impor-
tant aspect of the American experience. More than 95
percent of collective bargaining agreements negotiated be-
tween labor and management in the United States contain
arbitration clauses, and all but 1 percent permit one of the
two sides to obtain arbitration during the term of the con-
tract without obtaining an agreement from the other side to
arbitrate the particular dispute in question. To be sure, there
are exceptions to this pattern. In the National Trucking
Agreement there is no provision for arbitration. In the con-

142 Chapter 8
 struction industry only 70 percent of the agreements con-
tain arbitration clauses, and it appears that arbitration is
used less than in manufacturing, even where it is provided
for by contract.
At this point it is important to distinguish between differ-
ent modes of arbitration. Most arbitration in the United
States is ad hoc; that is, an arbitrator is selected to hear a
particular dispute during the term of the contract. At one
time it was thought that permanent umpireships, with one
individual or a rotating list of individuals chosen for the
term of the agreement to resolve disputes, were going to be
the wave of the future. However, despite the apparent de-
sirability of an arbitrator who is not a stranger to the indus-
try or company and is therefore presumably more expert,
only 12 percent of arbitration clauses provide for perma-
nent umpireship in recent years.
Where there is ad hoc arbitration, the arbitrators are
often chosen from lists prepared by the Federal Mediation
and Conciliation Service (an autonomous governmental
mediation unit) and the American Arbitration Association
(a nonprofit organization that provides arbitration services
to private parties throughout the country). Sometimes state
mediation agencies that are analogues or counterparts to
the Federal Mediation and Conciliation Service perform the
same function. No one really knows how much arbitration
takes place in the United States, since most arbitrations ap-
pear to arise out of private communications between the
parties and the individual arbitrators.
Most of the more experienced arbitrators are among
the 600-plus members of a professional association called
the National Academy of Arbitrators, who are chosen on the
basis of the number of cases they have heard and the
reports of the parties who have appeared before them or
heard about them. Since the early 1970s there have existed
programs for the recruiting and training of new arbitrators
who will be acceptable to both labor and management.
These programs have been promoted by universities, the
American Arbitration Association, and the American Bar
Association.

143 Dispute Resolution in the Established Relationship

The Advantages of Arbitration
Why do Americans use arbitration rather than the courts to
resolve their disputes? There are five principal reasons. The
first is that the system, for the most part, has been a volun-
tary one, devised by the parties to deal with their own prob-
lems. The American system is intended to fit the parties’
own peculiar needs; this is the reason for its rich diversity
and the difficulty of making generalizations about it. When
one understands this, some of the difficulties of determin-
ing what constitutes a mandatory subject of bargaining un-
der the Borg-Warner line of cases become more apparent.
The system is by no means uniform, although the parties
are interested in what their counterparts are doing in
other industries and often appear to emulate what is done
elsewhere.
Second, in most relationships grievance-arbitration ma-
chinery resolves problems before arbitration has to be in-
voked as a last resort. Most contracts provide for three to
five steps in which discussions take place between increas-
ingly high-ranking labor and management representatives
without outside involvement. At these steps attempts are
made to resolve differences on an informal basis (in the first
instance, between an employee and/or a union steward and
the line manager) and to clarify what is in dispute. This as-
pect of the process is not always informal and free of trou-
ble. In litigation arising under the National Labor Relations
Act’s unfair labor practice machinery, the Supreme Court
held that an employer’s denial of an employee’s request
that her union representative be present at an investigation
interview violated the statute.7 However, the NLRB has lim-
ited the scope of the Court’s decision through its holding
that there is no statutory right to union representation
where the employer has already reached ‘‘a final, binding
decision to impose certain discipline on the employee prior
to the interview.’’8 Of course the parties may handle this
matter differently under the provisions in their collective
bargaining agreement if they wish to do so.
A third reason for the acceptance of arbitration is its
relative informality. The principle of stare decisis, which

144 Chapter 8
 American courts use to bind the court to legal doctrines
established in the past, is not applicable to arbitration pro-
ceedings.9 In other words, what another arbitrator has pre-
viously decided where the same facts are in evidence may be
persuasive authority, a second arbitrator has discretion to
consider the matter anew. At the same time arbitrators will
often adhere to the ‘‘law of the shop’’ in the form of past
practices, settlements, or arbitration awards in the plant in
which the dispute arose. Lawyers are present in an increas-
ing number of instances, and each party is always repre-
sented, exhibits are generally introduced, and generally
there are witnesses (who need not be sworn but are in many
instances, and who may be examined and cross-examined).
However, arbitrators do not follow judicial rules on the ad-
missibility of testimony and other evidence. Greater formal-
ity may be a sign of a less mature relationship, though not
always. Transcription by a court stenographer generally im-
plies formality, but it may well be worthwhile—particularly
if many facts are in dispute, if many witnesses contradict
one another, or if complex contract interpretations are
involved.
Fourth, the principal attraction of arbitration for both
sides is that it is more expeditious than litigation (although
the American system has recently developed some deficien-
cies: delay, expense, and difficulty in coping with employ-
ment discrimination). Finally, to some extent arbitration
serves as a substitute for the right to strike for a period of
time. This is a major part of the legal theory that has
developed in the area. Although the American system
has by no means eliminated unauthorized stoppages in
breach of contract, it has reduced the inclination to strike
—particularly in discipline and discharge disputes, where
workers know that an impartial arbitrator will determine
cases on merit. Unions with negotiated peace machinery
rarely make the strike weapon the mode of dispute resolu-
tion in the first resort, even when no-strike clauses permit
them to strike after an exhaustion of procedures over cer-
tain subject matters.

145 Dispute Resolution in the Established Relationship

Other Attractions of Arbitration
For the union two of the main attractions of the arbitration
process are the ability to have a built-in planned dismissal
machinery that protects workers against arbitrary actions by
the employer and the removal of the union from the inevi-
table political crossfire in disputes over who should be pro-
moted or transferred to a particular job. Since seniority is
all important and promotion is at the heart of a good num-
ber of grievances, the union is removed from the political
battle by defending a relatively objective standard before
the employer and, if necessary, the arbitrator.
For the employer it is particularly significant that arbitra-
tion usually guarantees an uninterrupted period of indus-
trial peace. Moreover, although employers are required in
many instances to consult with the union under the duty-
to-bargain provision of the National Labor Relations Act
before engaging in unilateral changes in working condi-
tions,10 the assumption behind the arbitration process is
that management decides first and that the union chal-
lenges the employer’s authority through the grievance
machinery.

The Arbitration Process

The hearing is usually held on the company’s premises,
since that is where the parties are and where most of the
witnesses will be found. If the union wants neutral ground,
usually that can be arranged. Quite frequently the hearing
takes place in a motel or hotel of the parties’ choosing. I
have sometimes held hearings at the Stanford Law School
and other institutions where I have taught.
The hearing usually begins with each side summarizing its
position and with the formulation of a submission to indi-
cate what issue is in dispute. Sometimes the parties can take
the better part of a day or even more on this submission,
and it becomes necessary to move on to the evidence in the
hope that the issue will become clearer as more is learned
about the case. Most arbitrators will suggest that the parties
allow the arbitrator to define the dispute in the event that

146 Chapter 8
 they are unable to define it themselves; invariably they will
agree to this.
As mentioned above, there are exhibits, examinations,
and cross-examinations. Often a transcript is not taken,
and the arbitrator takes his or her own notes on the testi-
mony. A stenographer makes it easier for the arbitrator;
on the other hand, nothing can boost the financial cost of
arbitration more quickly for the parties than the presence
of a court stenographer to take down and transcribe the
proceedings.
When the hearing is concluded, the parties sometimes
submit briefs, and the arbitrator retires to his or her office
to write an opinion and make an award. Although an opin-
ion is not required under American law, the practice is to
write one, and the parties would be deeply concerned if the
arbitrator issued an award without an opinion.
On the West Coast docks, among other places, labor and
management rely on bench awards (awards that must be
rendered orally or in a short period of time, and are some-
times limited in length) in walkouts over safety disputes.
When notified by one party that a dispute is in progress, the
arbitrator goes to the docks, listens to the arguments, and
issues an award. Though the parties on the docks are enti-
tled to get an opinion in writing, they generally do not ask
for one. Bench awards are becoming more common beyond
the West Coast docks, and their use is sometimes specified
in contracts.
The arbitration process has been satisfactory to most of
the parties that have used it. Although appeals may be taken
to the courts, generally the parties adhere to the arbitrator’s
award without recourse to the judicial process. In this at-
mosphere it is not the least bit surprising that the arbitra-
tor is paid by the parties. The fee and the costs are usually
split equally, although sometimes the loser pays all, some-
times the company pays all (regardless of the outcome),
and sometimes a different allocation is agreed upon (usu-
ally with the company paying the greater percentage).
These obligations are covered by the contract.

147 Dispute Resolution in the Established Relationship

The Subject Matter of Disputes
The kinds of disputes likely to come before arbitrators in
grievance matters involve a wide variety of issues. Most
prominent are dismissals, discipline, and questions relating
seniority to promotions or layoffs. Disputes over job clas-
sifications, what kind of work is to be performed, and
whether employers can contract out work previously per-
formed by the bargaining unit’s employees are all grist for
the arbitrator’s mill. Contrary to foreign belief, the process
is not excessively legalistic, although it has had tendencies
in that direction in recent years. Contract interpretation is
usually involved, but there is much more than that. Great
scope is left to the arbitrator, who must determine whether
a worker has been dismissed for ‘‘just cause’’ within the
meaning of the collective agreement. A good deal of com-
mon sense, rather than a technical knowledge of labor law,
is a prerequisite for functioning as a competent arbitrator.

The Limitations of Arbitration

There are considerable problems with grievance arbitration
in the United States. William J. Usery, former federal medi-
ation and conciliation director and secretary of labor, has
noted that one out of three strikes takes place during the
term of an agreement11 —although it is not clear to what
extent these stoppages are in fact in defiance of arbitration
and no-strike machinery or to what extent the machinery is
deficient.
Moreover the arbitration process has had considerable
difficulty in coping with employment discrimination.12 This
is not altogether surprising, since unions and employers—
who control grievance arbitration—are often the parties
accused of discrimination. The courts have not treated em-
ployment discrimination arbitration in the same manner as
other types of arbitration. This is important because an in-
creasing number of arbitrations involve allegations of race,
sex, national origin, and religious discrimination.
Quite frequently the arbitrators who are identified with a
position favoring fair employment practices are civil-rights
activists not chosen by the parties. In addition very few

148 Chapter 8
 arbitrators are members of minorities or are women. The
National Academy of Arbitrators, whose membership is in-
volved in important and prestigious arbitrations (but by
no means a significant percentage of all the hearings that
take place in this country), has a very small number of mi-
nority and women members. In important employment-
discrimination arbitrations, as well as other kinds of cases
that go to third-party neutrals, unions and employers may
not be willing to select an arbitrator who is not a member
of the Academy. Of course this statistical absence is by no
means dispositive of the question of whether arbitration can
cope with employment discrimination. The federal judi-
ciary, in the early years of the Civil Rights Act of 1964,13 was
of considerable assistance in providing an expansive inter-
pretation of the statute, which benefited minorities and
women, yet until 1977 there were very few minority mem-
bers or women on the federal bench. (The number is still
small.)
But the problem is that arbitrators, whatever their race or
sex, must necessarily be responsive to the interests of those
who appoint them—labor and management—and not nec-
essarily to those of third parties who have no direct in-
volvement in either the selection of or word-of-mouth
recommendations for future cases. Arbitrators, like other
people, are not often likely to bite the hand that feeds
them, and they can be counted on to respond to the parties’
conscious and subconscious expectations about standards
to be applied in finding contract violations and in fashion-
ing remedies.14 An additional problem is that arbitrators
are often unaware of the requirements of employment-
discrimination law, which is usually made relevant to the
arbitration by virtue of the fact that the no-discrimination
clause obligates the parties not to violate the law.
Finally, because unions and employers control the arbi-
tration process, they are not generally sympathetic to third-
party representation when it is demanded by minority
members and women who feel that the union would not
be vigorous enough in pursuing their interests. Invariably
third-party representation or a representative or counsel

149 Dispute Resolution in the Established Relationship

 of the employees’ choosing has been rejected where it
has been inconsistent with the position of labor and
management.15

The Role of Courts

Although the law is on the periphery of some aspects of the
labor arbitration process, it nevertheless is important. Ex-
cept under the Railway Labor Act and in states with legisla-
tion requiring arbitration in public-sector disputes, the law
becomes involved only where the parties voluntarily negoti-
ate agreements. In the former situation arbitration is some-
times mandated, but generally it is for the parties to decide.
The landmark decisions relating to the law of arbitra-
tion are Textile Workers Union v. Lincoln Mills 16 and the Steel-
workers Trilogy.17 What is particularly ironic about the Lincoln
Mills decision and some of the Taft-Hartley amendments,
which have promoted the arbitration process (a process the
unions were generally interested in achieving), is that those
amendments were passed out of a concern for the disci-
plining of unruly and troublesome trade unions that were
thought to be unfaithful to no-strike clauses they had nego-
tiated. Because unions are voluntary unincorporated associ-
ations at common law, many state jurisdictions held that a
union could be sued only in the names of its individual
members—a considerable task. This was made even more
difficult when a union had members outside of the state
jurisdiction in which it was being sued. Traditionally the
problems involved with ‘‘serving’’ out-of-state defendants
(putting them on notice of the suit, a requirement of due
process) have given rise to a good deal of litigation.18
Section 301 of the National Labor Relations Act was de-
signed to change this. It made collective bargaining agree-
ments enforceable in the federal courts. After disposing of
some constitutional problems with the statute,19 Justice
Douglas, speaking for a majority of the Court in Lincoln
Mills, concluded that arbitration clauses were enforceable
in the federal courts inasmuch as they were the quid pro
quo for no-strike agreements. The Norris-LaGuardia Act,

150 Chapter 8
 which barred injunctions in labor disputes, was held to be
inapplicable because arbitration did not involve problems
that were ‘‘part and parcel’’ of the abuses that had given rise
to the Norris-LaGuardia Act.20 Congress, said the Court,
had intended to promote the arbitration process, and had
done so through Taft-Hartley. (Indeed the Court subse-
quently held that although the parties may explicitly con-
tract for a process of economic warfare to resolve their
disputes, judicial review, even where there is no arbitration
clause providing for a private system of adjudication, is
preferable to the use of strikes, lockouts, and other forms of
economic pressure.)21
But Lincoln Mills raised more questions than it answered.
What was to be the role of the judiciary with respect to ar-
bitration; would the courts interject themselves into the
arbitration process and thus usurp the role accorded to
arbitrators by labor and management? Would state courts
preserve their jurisdiction in breach-of-contract cases, and
thus in arbitration disputes, even though Taft-Hartley gave
to the federal courts jurisdiction—that is, would the state
courts be ousted by the doctrine of preemption? Would
employers be able to sue for violations of collectively nego-
tiated no-strike clauses despite the bar against injunctions in
labor disputes contained in Norris-LaGuardia, or were such
violations again ‘‘part and parcel’’ of the abuses at which
Norris-LaGuardia was aimed? Could individuals maintain
suits for violations of collective bargaining agreements, and
to what extent could they bypass the union in so doing?
The Court answered the first of these questions in the
landmark Steelworkers Trilogy cases. The issue confronted in
those cases related to the circumstances under which the
judiciary would order the parties to go to arbitration and
the extent to which the courts could review the arbitrator’s
award. The Court, again with Justice Douglas speaking for
a substantial majority, concluded that Taft-Hartley’s public
policy promoting arbitration22 required that all doubts
about whether the dispute was arbitrable should be resolved
by the courts in favor of arbitrability. Moreover the court

151 Dispute Resolution in the Established Relationship

 concluded that an arbitrators’s award could not be reversed
by the Court unless it manifested clear infidelity to the con-
tract. And though most arbitrators write opinions, as the
parties expect, the Court stated that an opinion is not nec-
essary as a matter of federal labor law.
The Court’s reasoning drew upon the judicial experience
with arbitration—best represented by the New York Court
of Appeals decision in the Cutler-Hammer case,23 which had
involved the judiciary in the interpretation of collective bar-
gaining agreements (the very function the arbitrator was
commissioned by the parties to perform). The Supreme
Court noted that courts, under the guise of determining
arbitrability issues, had become involved in interpretations
of collective bargaining agreements or the merits of the
underlying grievance. For instance, in the first of the Steel-
workers Trilogy cases24 the issue was whether the company
had properly subcontracted work outside the bargaining
unit under the collective bargaining agreement. But an ex-
amination of the question of whether a subcontracting dis-
pute was arbitrable necessarily focused on a number of
considerations that an arbitrator would consider in deter-
mining the merits of the underlying grievance issue of
whether the company had the right to contract out work
under the agreement: bargaining history, past practice be-
tween the parties, and the like. A detailed examination of
the merits of the arbitrability issue would send the courts
down a slippery slope at whose bottom they might become
ensnared in the merits of the dispute itself; by so doing,
they would deprive the parties of their bargain that the ar-
bitrator would have jurisdiction over such matters.
The Court concluded that all doubts should be resolved
in favor of arbitrability and that a detailed examination of
the arbitrability issue should be avoided for the reasons
stated. The Court also noted that the processing of frivolous
grievances has a therapeutic effect on the relationship be-
tween labor and management and gives each employee a
‘‘day in court.’’ Additionally Justice Douglas noted that
the parties, through negotiating an arbitration clause in
their contract, had bargained for the arbitrator’s expertise.

152 Chapter 8
 (Some arbitrators would hardly recognize themselves from
Douglas’s glowing characterization of their abilities; how-
ever, the arbitrator’s expertise is an important theme in the
Steelworkers Trilogy rationale.) As Justice Douglas wrote:
The labor arbitrator’s source of law is not confined to the express
provisions of the contract, as the industrial common law—the
practices of the industry and the shop—is equally a part of the
collective bargaining agreement although not expressed in it. The
labor arbitrator is usually chosen because of the parties’ confi-
dence in his knowledge of the common law of the shop and their
trust in his personal judgment to bring to bear considerations
which are not expressed in the contract as criteria for judgment.
The parties expect that his judgment of a particular grievance
will reflect not only what the contract says but, insofar as the col-
lective bargaining agreement permits, such factors as the effect
upon productivity of a particular result, its consequence to the
morale of the shop, his judgment whether tensions will be height-
ened or diminished. For the parties’ objective in using the arbitra-
tion process is primarily to further their goal of uninterrupted
production under the agreement, to make the agreement serve
their specialized needs. The ablest judge cannot be expected to
bring the same experience and competence to bear upon the
determination of a grievance, because he cannot be similarly in-
formed.25
The Court was also influenced by the argument that arbi-
tration of labor disputes is essentially different from com-
mercial arbitration involving business relationships and
other matters. The Court stated that the collective bargain-
ing agreement is ‘‘more than a contract’’; it is a ‘‘general-
ized code to govern a myriad of cases which the draftsman
cannot wholly anticipate.’’26 The Court’s view was that the
mature labor agreement contained manifold ambiguities
and gaps because of the nature of the agreement. In es-
sence, since the law compels the parties to bargain with one
another and imposes a relationship (if not the contract it-
self ) upon the parties, it can be called a ‘‘shotgun mar-
riage’’ dictated by economic force or law. In such a situation
more than the usual number of unforeseen contingencies
and ambiguities remain to plague the parties. Sometimes
the parties will be aware of the problem and yet recognize
that it makes more sense to submit a dispute to an effective

153 Dispute Resolution in the Established Relationship

 resolution process because of the cost of disagreement at a
particular time.
The Court said that collective bargaining is an effort to
‘‘erect a system of industrial self-government,’’27 that the
compulsion to reach agreement and the ‘‘breadth of the
matters covered, as well as the need for a fairly concise and
reliable instrument,’’ produce a relatively peculiar contract
for which the arbitration process is available to the parties
in the event of the disagreement about interpretation.
However, the Court has said that where there is no arbitra-
tion procedure and the parties are left to their own devices
in the form of economic pressure such as strikes and lock-
outs, the availability of such weaponry does not preclude
judicial enforcement.28
Thus all doubts about arbitrability, said the Court, should
be resolved in favor of arbitration. Subsequently the Court,
in a sweeping opinion authored by Justice White, con-
cluded that unless the parties ‘‘clearly and unmistakable
provide otherwise, the question of whether the parties
agreed to arbitrate is to be decided by the court, not the
arbitrator.’’29
Arbitration awards fashioned by arbitrators are enforce-
able in federal or state court in the absence of manifest in-
fidelity to the contract itself 30 or to some ‘‘explicit public
policy,’’ which ‘‘must be well defined and dominant, and is
to be ascertained by reference to the laws and legal prece-
dents, not from general considerations of supposed public
interests.’’31 In yet another arbitration opinion authored by
Justice White, the Court avoided the question posed by the
union that a court may only refuse to enforce an award
where the award itself violates a statute, a regulation, or
‘‘other manifestation of positive law’’ or would compel em-
ployer violation of the law. Rather the Court declined to
sanction broad judicial discretion to set aside awards as
against public policy.32 Said the Court:
. . . at the very least, an alleged public policy must be properly
framed under the approach set out in [precedent] and the viola-
tion of such a policy must be clearly shown if an award is not to be
enforced.33

154 Chapter 8
 Subsequently, the Court, in an opinion authored by Jus-
tice Stephen Breyer, held that the public policy defense
must mandate a discharge of a worker who tested positive
for drugs. Said the Court: ‘‘We hesitate to infer a public
policy in this area that goes beyond the careful and detailed
scheme Congress and the Secretary have created [by fed-
eral regulations].’’34 But what of the other problems? For
instance, could the employer obtain injunctive relief for
violation of the no-strike clause despite the broad prohi-
bitions of the Norris-LaGuardia Act?

The No-Strike Clause

The Supreme Court first answered the preceding question
negatively in the Sinclair decision in 1962. Justice Black, a
strong proponent of the literal use of language in the con-
stitutional area of First Amendment litigation, noted that
Norris-LaGuardia was a bar to the issuance of injunctions
for employers—even though unions could obtain injunc-
tions in the form of motions to compel arbitration clauses.
Eight years later, however, the Supreme Court reversed Sin-
clair in the landmark Boys Market decision.35
In Boys Market a 5–2 majority concluded that injunctions
against violations of no-strike clauses could be issued by the
federal courts where the underlying grievance that had
given rise to the controversy, over which the strike was tak-
ing place, was itself arbitrable under the collective bar-
gaining agreement. The Court’s rationale rested upon a
number of considerations. The first was that state court
jurisdictions still remained available to parties seeking en-
forcement of labor contracts and that, in states where there
were no ‘‘baby Norris-LaGuardia Acts,’’ employers were free
to sue for injunctive relief in state courts. The problem in-
sofar as injunctive relief against no-strike violations was that
employers had an incentive to proceed in state courts, even
though federal labor law applied there as well as in the fed-
eral courts. In other words, in the interest of uniformity it
seemed undesirable to have an employer-initiated action
moved from state to federal court. This created, said the
Court in Boys Market, ‘‘an anomalous situation which, in our

155 Dispute Resolution in the Established Relationship

 view, makes urgent the reconsideration of Sinclair.’’36 With
the removal from the state to the federal courts, the states
were ousted from jurisdiction that they had possessed in
breach-of-contract cases prior to the enactment of the
Taft-Hartley amendments—even though Supreme Court
authority had said that state-court jurisdiction should sup-
plement that of the federal courts. As the Supreme Court
said in Boys Market:
It is ironic indeed that the very provision that Congress clearly in-
tended to provide additional remedies for breach of collective
bargaining agreements has been employed to displace previously
existing state remedies. We are not at liberty thus to depart from
the clearly expressed congressional policy to the contrary.37

The Court, as it said in commenting on Sinclair, was con-

fronted with a dilemma. On the one hand, the availability of
state-court jurisdiction in labor injunction cases involving
violations of no-strike clauses made the state judiciary the
preferred forum for labor-contract interpretation where
federal law was to apply. On the other hand, the availability
of removal from the state court subsequent to the exercise
of jurisdiction deprived the states of preexisting remedies
for breach of contract by unions—even though the statute
had been aimed, in particular, at union behavior that was
inconsistent with its no-strike obligations.
A second reason the Court found Sinclair less than satis-
factory was because it was inconsistent with the basic federal
labor policy recognized in both Lincoln Mills and Steelworkers
Trilogy: that the no-strike obligation was the quid pro quo
for an undertaking by the employer to submit grievances to
the process of arbitration. Said the Court:
Any incentive for employers to enter into such an arrangement
is necessarily dissipated if the principal and most expeditious
method by which the no-strike obligation can be enforced is elim-
inated. While it is of course true, as respondent contends, that
other avenues of redress, such as action for damages, would re-
main open to an aggrieved employer, an award of damages after a
dispute has been settled is no substitute for an immediate halt to
an illegal strike. Furthermore, an action for damages prosecuted
during or after a labor dispute would only tend to aggravate in-

156 Chapter 8
 dustrial strife and delay an early resolution of the difficulties be-
tween employer and union.38
Third, the Court rejected the argument that Norris-
LaGuardia was a bar to an injunction because it and Taft-
Hartley were aimed at a different problem. The Court
noted that a considerable number of union strikes and
picketing activities were enjoined and that a substantial
number of abuses were being committed by the federal
courts in this connection. But the Court noted that the la-
bor organizations had grown in strength and ‘‘developed
toward maturity’’ and that therefore Congress, in fashioning
a national labor policy under Taft-Hartley, had shifted from
‘‘protection of the nascent labor movement to the en-
couragement of collective bargaining and to administrative
techniques for the peaceful resolution of industrial dis-
putes.’’39 An appropriate accommodation between the com-
peting policies of Taft-Hartley (which reflected the new
approach) and Norris-LaGuardia (which barred injunctions
in labor disputes) was to permit injunctions for violations of
no-strike clauses where the underlying grievance was arbi-
trable. Said the Court: ‘‘The Norris-LaGuardia Act was re-
sponsive to a situation totally different from that which
exists today.’’40
After the Boys Market decision, the Court concluded in a
controversial opinion by Justice White that injunctive relief
was not available in the context of sympathy strikes where
it was claimed that such strikes violated the no-strike provi-
sion. The dubious reasoning41 was that there was no un-
derlying grievance that was susceptible to the arbitration
process. However, the question of whether a sympathy
strike itself violates the no-strike clause can under many
collective bargaining agreements be resolved in the arbitra-
tion process. Accordingly the issuance of an injunction
pending the outcome of this matter is, as Justice John Paul
Stevens’ dissent in this subsequent case makes clear, just as
vital as it is in the Boys Market context.
Finally, as the Court noted in Boys Market, damage awards
may be obtained against the union for a no-strike violation

157 Dispute Resolution in the Established Relationship

 —even on the basis of a broad arbitration clause from
which a no-strike obligation may be inferred.42 However,
damage actions in courts often are stayed pending arbitra-
tion of the issue, and employers do not consider arbitrators
as sympathetic on this issue as the judiciary.43 And the
Court has held that in the case of wildcat strikes in which
the contract is violated and in which the union is not in-
volved, there is no affirmative obligation (unless the con-
tract provides otherwise) for an international union to urge
the local to comply with the agreement.44 Moreover the
Court has held that union representatives may not be sued
as individuals when they have initiated or authorized a
strike45 and that individual rank-and-file employees may not
be sued for violating a contract when they engage in a wild-
cat strike.46 But the question of what responsibility the local
union had to urge its members to return to work, as well as
the question as to whether the local union can be held lia-
ble on a ‘‘mass action’’ theory that imputes liability to the
union on the basis that the rank and file will not act spon-
taneously without some kind of encouragement from the
leadership, has not been addressed by the Court.47 The Su-
preme Court did rule (unanimously) that employers may
not selectively impose harsher discipline upon union offi-
cials than upon rank-and-file employees for a violation of a
no-strike clause,48 but the Court did not rule on the ques-
tion of whether selective sanctions may be imposed upon
union officials where they have played a ‘‘leadership’’ role
in the strike.49

The NLRB and Arbitration

The National Labor Relations Board has also facilitated the
arbitration process through careful use of its own jurisdic-
tion. For instance, it has held that in unfair labor practice
proceedings it will not reverse an arbitrator’s award where
the arbitration proceedings were fair and regular on their
face, where the issues raised before the Board were raised
before the arbitrator, where the arbitrator’s award was not
‘‘repugnant’’ to the public policy of the National Labor Re-
lations Act, and where the unfair labor practice issue had

158 Chapter 8
 been addressed by the arbitrator in some form.50 The Board
has held that the arbitrator will be deemed to have ‘‘ade-
quately considered the unfair labor practice if (1) the con-
tractual issue is factually parallel to the unfair labor practice
issue, and (2) the arbitrator was presented generally with
the facts relevant to resolving the unfair labor practice.’’51
Said the Board:
. . . we would not require an arbitrator’s award to be totally consis-
tent with Board precedent. Unless the award is ‘‘palpably wrong,’’
i.e., unless the arbitrator’s decision is not susceptible to an inter-
pretation consistent with the Act, we will defer.52

Under certain circumstances the Board has held that

it will stay its hand and refuse to process an unfair labor
practice charge while it is pending before the arbitrator.53
Numerous exceptions to the latter proposition have devel-
oped.54 Meanwhile the Board has reverted to a policy of
more pristine deferral.55

Successor Employers
In Wiley v. Livingston the Supreme Court held that ‘‘the dis-
appearance 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, and that, in appropriate circum-
stances . . . the successor employer may be required to arbi-
trate with the union under the agreement.’’56 The question
of successorship is determined by a number of factors—
namely whether the business of both employers is essen-
tially the same, whether employees of the new enterprise
are doing the same jobs in the same working conditions
under the supervisors, and whether the new entity has the
same production process, produces the same products, and
has the same body of customers. Said the Court in estab-
lishing the test in Fall River Dyeing & Finishing Corp. v. NLRB:
[the] . . . emphasis on the employees’ perspective furthers the Act’s
policy of industrial peace. If the employees find themselves in es-
sentially the same jobs after the employer transition and if their
legitimate expectations in continued representations by their
union are thwarted, their dissatisfaction may lead to labor unrest.57

159 Dispute Resolution in the Established Relationship

 Accordingly, as the Court has noted:
. . . to a substantial extent the applicability of [successorship] . . .
rests in the hands of the successor. If the new employer makes a
conscious decision to maintain generally the same business and to
hire a majority of its employees from the predecessor, then the
bargaining obligation of §8(a)(5) is activated.58
A mere decline in jobs and job classifications with a
smaller management hierarchy will not undermine a find-
ing of successorship.59 However, the Court has held that al-
though a successor employer has a duty to recognize the
union of the predecessor, the NLRB cannot impose the la-
bor contract upon the successor employer60 because to do
so would contradict the Court’s instruction to the Board to
eschew the imposition of contract terms upon labor and
management.61 In a third case the Court limited the thrust
of Wiley by holding that it applies only where there is sub-
stantial continuity in the work force.62

The Individual Employee

Shortly after the Steelworkers Trilogy the Supreme Court held
that individuals may sue in federal and state court for viola-
tions of collective bargaining agreements; however, the rule
has been carefully circumscribed in a number of respects.
In the first place the grievance-arbitration machinery must
be exhausted prior to the initiation of a lawsuit.63 But even
more formidable are the barriers that exist by virtue of
the Court’s decision in Vaca v. Sipes,64 a leading duty-of-
fair-representation case. Since many of the issues in Vaca
dramatize the tensions between individual and collective
interests, they are more properly described in the next
chapter.
But the question of union and company liability where
the union declines to take the grievance to arbitration and
where the employee shows—as he must if he is to prevail—
that the union has violated its duty-of-fair-representation
obligation and that the employer has breached the collec-
tive bargaining agreement is more appropriately addressed
here.

160 Chapter 8
 In Bowen v. U.S. Postal Service,65 a 5–4 majority of the
Court held that the union is liable in damages to a dis-
charged employee where the failure to take the grievance
to arbitration has increased the employer’s liability to the
employee for breach of contract. Because of the consider-
able period of time between the potential date of reinstate-
ment in the event of an arbitration and the court trial of a
case involving duty of fair representation and breach of
contract, the practical impact of Bowen is to impose most of
the damage liability upon unions rather than employers.
This is what prompted Justice White to state in his dissent
that:
The union’s breach, even if totally unrelated to the employer’s
decision to terminate the employee, now serves to insulate the
employer from further backpay liability, as of the hypothetical ar-
bitration date, even though the employer, unlike the union, can
stop backpay accretion at any moment it desires, simply by rein-
stating the discharged employee.66

Arbitration and Employment Discrimination

To what extent have the rules evolved in the Steelworkers
Trilogy litigation been applied to employment-discrimination
cases? In Alexander v. Gardner-Denver,67 the Supreme Court
held that a final arbitration award did not preclude an in-
dividual from suing to redress employment discrimination.
The Court, speaking through Justice Powell, stated that
since such a lawsuit in the courts was filed under the Civil
Rights Act of 1964, the individual employee was relying on
independent statutory rights accorded by Congress and not
on contractual rights contained in the collective bargaining
agreement that would be at issue in an arbitration proceed-
ing. The Court nevertheless stressed the importance of vol-
untary conciliation as well as arbitration as a means to
resolve such matters—a particularly important consider-
ation, given the substantial backlog of employment discrim-
ination cases before administrative agencies and the courts.
The Supreme Court, while rejecting a policy of deference to
arbitration awards, concluded that the award could be ‘‘ad-
mitted as evidence and accorded such weight as the Court

161 Dispute Resolution in the Established Relationship

 deems appropriate.’’68 The Court added the following in a
footnote:
We adopt no standards as to the weight to be accorded an arbitral
decision, since this must be determined in the court’s discretion
with regard to the facts and circumstances of each case. Rele-
vant factors include the existence of provisions in the collective-
bargaining agreement that conform substantially with Title VII,
the degree of procedural fairness in the arbitral forum, adequacy
of the record with respect to the issue of discrimination, and the
special competence of particular arbitrators. Where an arbitral
determination gives full consideration to an employee’s Title VII
rights, a court may accord it great weight. This is especially true
where the issue is solely one of fact, specifically addressed by the
parties, and decided by the arbitrator on the basis of an adequate
record.69
This footnote has prompted some parties to negotiate
special arbitration procedures addressed to particular
problems of employment discrimination,70 which are con-
siderably different from the ordinary grievance that comes
to arbitration.

Arbitration and Welfare or Minimum-Standards Legislation

In 1981 the Supreme Court, in a 7–2 opinion authored by
Justice Brennan, extended the Gardner-Denver holding to
the Fair Labor Standards Act of 1938.71 The Court held that
arbitration awards should not be deferred to where the
statute in question provides minimum substantive guaran-
tees to individual workers. The Court expressed concern
that individual rights might be sacrificed by the union,
which acts in the collective interest under legislation pro-
moting collective bargaining and majority rule.
This approach has produced the same result in a case
where a public employer unsuccessfully relied on an em-
ployee’s defeat in an arbitration proceeding where the em-
ployee alleged that there was ‘‘no proper cause’’ for his
discharge and that the discharge had been instituted be-
cause of his exercise of the constitutionally protected rights
of freedom of speech, freedom of association, and freedom
to petition the government for redress of grievances.72 The
Court’s reasoning applies to statutes such as the Employee

162 Chapter 8
 Retirement Income Security Act of 1974 and the Occupa-
tional Safety and Health Act of 1970, and it was thought to
have meant that courts will not defer to arbitration awards
rendered where the plaintiffs sue under those statutes—
although the awards might be given ‘‘great weight,’’ as in
Gardner-Denver.

Arbitration Agreements
In 1991 the Court, in Gilmer v. Interstate/Johnson Lane Corp.,73
held that a dismissed employee suing under the Age Dis-
crimination in Employment Act of 196774 could be sub-
jected to compulsory arbitration pursuant to an arbitration
agreement contained in a securities registration applica-
tion. Although the Federal Arbitration Act of 1925, under
which the suit was brought, excludes ‘‘contracts of em-
ployment,’’ the Court stated that the issue of whether arbi-
tration clauses contained in such agreements could be
enforced was not presented because the arbitration at issue
was contained in the dismissed employee’s securities regis-
tration application which was a contract with the securities
exchange and not the employer. The Court, speaking
though Justice White in a 7–2 majority,75 concluded that a
number of aspects of arbitration which the Court has found
to be deficient in Gardner-Denver and its progeny did not
constitute barriers to enforcement of arbitration here. The
Court said that there was no ‘‘inherent inconsistency’’ be-
tween the policies of antidiscrimination laws relating to age
discrimination and arbitration of such claims. Moreover the
Court rejected arguments that such arbitration would be
biased in favor of employers and that discovery would be
inadequate, stressing the fact that arbitrators are not bound
by formal rules of evidence—a characteristic applicable to
all labor arbitration proceedings. Rejecting the contention
that enforcement of arbitration agreements would further
inequality of bargaining power between employers and em-
ployees, the Court said: ‘‘Mere inequality in bargaining
power, however, is not a sufficient reason to hold that arbi-
tration agreements are never enforceable in the employ-
ment context.’’76

163 Dispute Resolution in the Established Relationship

 The Gilmer decision distinguished Gardner-Denver and its
progeny on the ground that those cases did not involve the
issue of the enforceability of an arbitration agreement over
statutory claims but rather the
. . . quite different issue whether arbitration of contract-based
claims precluded subsequent judicial resolution of statutory
claims. Since the employees there had not agreed to arbitrate their
statutory claims, and the labor arbitrators were not authorized to
resolve such claims, the arbitration in those cases understandably
was held not to preclude subsequent statutory actions.77
The second distinction drawn by the Court was that those
cases involved situations where employees were represented
by unions in arbitration proceedings. Thus the tension
present there between collective representation and indi-
vidual statutory rights was not applicable to a case involving
the relationship of an individual with the employer with-
out the involvement of the union. Finally, the Court noted
that the Federal Arbitration Act, which reflects a liberal
federal policy promoting arbitration of grievances, was not
involved in the prior cases.
These considerations, notwithstanding the Court’s refusal
to reach the question of whether a contract of employment
can be enforced under the Arbitration Act, indicated that
Gilmer may have substantially limited the impact of Gardner-
Denver. In the first place, since most of the American work
force is nonunion, Gilmer meant that the Court’s comments
about the inadequacy of arbitration as it relates to statutory
claims in Gardner-Denver has little or no applicability outside
the organized sector of the economy. Though the Federal
Arbitration Act promotes arbitration, so does the National
Labor Relations Act which was involved in Gardner-Denver.
The Court’s treatment of Gardner-Denver suggested that its
reasoning would have significant import for antidiscrimina-
tion and other statutory claims, that Gardner-Denver had
been substantially limited and indeed reversed in the non-
union sector, and that wrongful discharge actions (referred
to in chapter 11) were effectively precluded by application
form agreements if employers chose to opt for arbitration
as opposed to the courts.

164 Chapter 8
 A series of Supreme Court decisions since Gilmer have
shed more light on arbitration of individual employee cases.
For instance, in Wright v. Universal Maritime Service Corp.,78
the Court held that a waiver of a unionized employee’s right
to pursue statutory discrimination claims must be contained
in a collective bargaining agreement and the waiver must
be clear and unmistakable. Subsequently, within the context
of an individual employment claim, the Supreme Court
addressed in the Circuit City case an issue left unanswered in
Gilmer and held that the Federal Arbitration Act makes pre-
employment mandatory arbitration agreements enforceable
in federal courts, subject to state law of contract and arbi-
tration claims.79 In the Armendariz case,80 the California Su-
preme Court has invoked a number of factors to determine
whether an agreement is unconscionable.
Subsequent decisions at both the federal and state level
have attempted to apply these factors.81 An arbitration
agreement has been held not to be procedurally uncon-
scionable where the employee has a meaningful opportu-
nity to opt out.82 The Supreme Court has held in EEOC v.
Waffle House 83 that whatever agreement exists between an
individual employee and an employer, the EEOC may still
bring an action in federal court to enforce federal law. Said
the Court, ‘‘It goes without saying that a contract cannot
bind a nonparty. Accordingly, the proarbitration goals of
the [Federal Arbitration Act] do not require the agency to
relinquish its statutory authority if it has not agreed to do
so.’’84
A deeply divided Court of Appeals for the Ninth Circuit
has held that Circuit City means that compulsory arbitration
of discrimination claims is not precluded.85 Judge Harry
Pregerson, in dissent, concluded that Circuit City simply held
that nontransportation workers who consent in advance to
arbitration can later be held to that agreement under the
Federal Arbitration Act, and not that an employer may
compel employees as a condition of employment to enter
into such agreements.86
The rise of such employment contracts and individual
employee arbitration after Circuit City and its progeny has

165 Dispute Resolution in the Established Relationship

 spawned legislative debate. In December 2000, the National
Conference on Uniform State Laws adopted a revised Uni-
form Arbitration Act (UAA) that, while retaining a rec-
ognition of predispute arbitration as enforceable, requires
arbitrators to disclose financial or personal interests that
might affect their impartiality and permits the award of pu-
nitive damages and attorneys fees where a court would do
so.87 California, in a series of laws enacted in 2001 and
2002, has required the disclosure of conflicts of interest and
prohibited ‘‘loser-pays’’ policies obligating a nonprevailing
party in an arbitration to pay fees and costs. However, Gov-
ernor Gray Davis vetoed a bill that would have made it an
unlawful employment practice to require an employee to
waive any rights and procedures under Fair Employment
Practice & Housing legislation, which would have made
unenforceable any predispute agreement that would have
violated this prohibition.88

Arbitration in the Public Sector

Finally, there is the matter of public-sector arbitration. In
the grievance-arbitration area it appears as though the Steel-
workers Trilogy has not been followed by state courts in a
number of jurisdictions.89 But what is particularly interest-
ing is the use of arbitration in the public sector as a means
to resolve interest disputes. There has been a decline in in-
terest on the part of some public-employee unions in the
right to strike and an increased emphasis on arbitration.
Seventeen jurisdictions90 have adopted some form of arbi-
tration procedures for police and fire unions, and Iowa,
Wisconsin, Connecticut, and the city of New York are ex-
amples of jurisdictions that have extended arbitration to
other municipal employees as well. (In Iowa all state em-
ployees are covered.)91 Although a number of states have
passed ‘‘experimental’’ statutes, no jurisdiction has repealed
an arbitration law and returned to another procedure such
as fact-finding.
The critical question with regard to arbitration statutes is
whether the procedures tend to stultify or chill the collec-
tive bargaining process and induce the parties to rely on

166 Chapter 8
 arbitration rather than negotiations. Thomas Kochan has
found that during the first decade of public-sector bargain-
ing ‘‘a higher percentage of cases have reached impasse
under both conventional arbitration and final-offer arbitra-
tion than under fact-finding procedures,’’ that there was
overdependence on arbitration ‘‘in a number of jurisdic-
tions operating under both fact-finding and arbitration,’’
and that in general ‘‘large jurisdictions tend to rely heavily
on whatever dispute resolution is available.’’92 This last ob-
servation should come as no surprise; although interest ar-
bitration in the United States may be in its formative stage,
and although there are problems with grievance arbitration,
the institution, its rules, and its practice are well established.

167 Dispute Resolution in the Established Relationship

 9
The Duty of Fair Representation

The duty of fair representation, under which a union as ex-

clusive bargaining agent has an obligation to deal fairly on
behalf of all of a bargaining unit’s employees (union and
nonunion), has been inferred from the NLRA’s grant of
authority to the union to negotiate on behalf of all workers.
That other nations do not have the exclusivity concept and
all its consequences makes this kind of litigation peculiar to
the United States.
In 1944 the Supreme Court held that the failure of a
union to meet its duty of fair representation constituted
a violation of federal labor law, and the NLRB subse-
quently held that it constituted an unfair labor practice as
well.1
The duty of fair representation is . . . akin to the duty owed by
other fiduciaries to their beneficiaries . . . some Members of the
Court have analogized the duty a union owes to the employees it
represents to the duty a trustee owes to trust beneficiaries . . .
others have likened the relationship between union and employee
to that between attorney and client . . . the fair representation duty
also parallels the responsibilities of corporate officers and direc-
tors towards shareholders. Just as these fiduciaries owe their bene-
ficiaries a duty of care as well as a duty of loyalty, a union owes
employees a duty to represent them adequately as well as honestly
and in good faith.2
 In Vaca v. Sipes, the Court held that the federal courts
as well as the Board had jurisdiction over duty-of-fair-
representation cases. However, unless the collective bar-
gaining agreement authorizes the individual to take his
grievance to arbitration, the union maintains control of the
grievance and may determine whether to initiate arbitra-
tion. The Court held that the individual employee has no
‘‘absolute right’’ to initiate arbitration and that the indus-
trial self-government that had been created by the parties
would be harmed by a contrary rule. At the same time the
Court concluded that an employee could attack the union’s
failure to process the grievance if its actions toward an em-
ployee in the bargaining unit were ‘‘arbitrary, discrimina-
tory, or in bad faith.’’3 It is difficult to determine what the
Court meant by these words. Whether a union’s simple fail-
ure to process a grievance because it was lost or forgotten
constitutes a failure to meet the duty of fair representation
is unresolved,4 but it certainly presents a difficulty for the
employee whose grievance is meritorious. In Vaca the Court
gave the union some discretion because a contrary rule
would involve the courts in second-guessing union deci-
sions. Just as the courts do not want to be second-guessing
arbitrators, they wish to apply the same policy to the man-
ner in which matters are dealt with at lower levels of the
grievance machinery, which are even more important in
industrial self-government. Moreover, because the duty
applies to contract negotiations as well as administration5
‘‘. . . a settlement is not irrational simply because it turns
out in retrospect to have been a bad settlement.’’6
However, the Court held by a 5–4 vote that an individual
union member does not have an obligation to utilize in-
ternal union procedures and remedies prior to filing suit
where the union cannot contractually reactivate the griev-
ance in the event that it was in error in not processing it.7 It
is not entirely clear whether the individual has a right to
participate in the arbitration hearing. Thus far it appears as
though the union may exclude the employee without vio-
lating its duty of fair representation,8 although some au-
thority casts some doubt on this.9 Some judges appear to

170 Chapter 9
 accept the view that a union has a duty to fairly represent
the claims of junior workers competing against their more
senior colleagues for the same jobs where the contract con-
templates selection of employees for job vacancies on the
basis of both seniority and qualifications. Unions generally
support the concept of seniority as a basis for determining
preference in promotions, transfers, and layoffs, and some-
times the collective bargaining agreement reflects this phi-
losophy. In the steel industry a junior employee must be
‘‘head and shoulders’’ above a senior worker in qualifica-
tions in order to be selected. But more often there is a more
complex interplay between seniority and qualifications set
forth in the labor contract. If the view that unions have a
duty to present the claims of the junior employee under
such circumstances carries the day, the effect will be bur-
densome for the unions and revolutionary for industrial
relations.
If the union has breached its duty of fair representation
in handling the grievance at the arbitration, the employer
may be liable to relitigation of an arbitration award despite
the preference expressed in the Steelworkers Trilogy for the
finality of arbitration awards. For instance, in dealing with
an arbitration case in which employees dismissed for dis-
honesty had brought to the tribunal’s attention evidence
that the union had failed to present, the Court noted that
the employer had initiated the discharges. Even though the
employer was not responsible for the failure to present evi-
dence, an award tainted by the union’s failure to represent
fairly was invalid.10 Said Justice White, speaking for the
Court: ‘‘. . . enforcement of the finality provision where the
arbitrator has erred is conditioned upon the union’s having
satisfied its statutory duty fairly to represent the employee in
connection with the arbitration proceedings . . . a wrong-
fully discharged employee would be left without a job and
without a fair opportunity to secure an adequate remedy.’’11
For a while the Court’s 1981 holding that a relatively
short statute of limitations would apply to duty-of-fair-
representation suits attacking arbitration awards12 seemed
sure to bar many otherwise valid claims. Now the statute

171 The Duty of Fair Representation

 of limitations is six months—the Court rejected a briefer
period, partly because of the time it takes an employee
‘‘unsophisticated in collective-bargaining matters’’ to ‘‘eval-
uate the adequacy of the union’s representation, to retain
counsel, to investigate substantial matters that were not at
issue in the arbitration proceeding, and to frame his suit.’’13
In the Marquez decision,14 the Supreme Court has held
that the union does not violate its duty of representation
when it fails to disclose in the language of the collective
bargaining agreement itself a requirement that ‘‘member-
ship’’ as condition of employment in a union security clause
does not mean full membership, but rather only the re-
quirement to pay periodic dues and initiation fees.15 Ten-
sions and conflicts with this decision and some of the
holdings described in the next section are obvious.

Union Security Agreements and Union Discipline

The issue of union security agreements and an employee’s
obligations to the union with respect to union membership
has broad implications in American labor law. In NLRB v.
The General Motors Corp16 the Court held that except for
religious objectors (who may pay an equivalent sum else-
where by virtue of a 1980 amendment to the statute), the
worker’s only obligation is to pay dues and initiation fees—
although many lawyers, trade unionists, corporate officials,
and workers believe that more is required under the law.
The obligation to pay arises thirty days after employment
(seven days in the construction industry, because of the
temporary nature of the work). This rule bears directly on
the extent to which unions may discipline members under
the National Labor Relations Act.
The leading case on this question is NLRB v. Allis-Chalmers
Mfg. Co.17 in which the Court held by 5–4 vote that a union
may fine strikebreakers who cross picket lines by virtue of its
role as exclusive bargaining agent. The Court has taken the
position that ‘‘reasonable discipline’’ of members who vio-
late union rules is necessary to protect the union against
erosion of its status as exclusive agent. However, the Court
indicated that the extent of a union’s disciplinary authority

172 Chapter 9
 could vary depending upon the extent to which workers
had voluntarily assumed membership obligations beyond
those requiring the payment of dues and initiation fees.
The Court noted that in Allis-Chalmers the workers who had
been fined had attended union meetings at which a secret
strike vote was taken, pledged allegiance to the union’s
constitution, taken the oath of full membership, and fully
participated in the proceedings leading to the strike. The
Court indicated that if such voluntary union activity were
not present, the union might well have run afoul of the law
by imposing fines upon the workers. The difficulty here is
that few, if any, workers know that they are not obligated to
do more in a union than pay initiation fees and dues. So
quite frequently collective bargaining agreements obligate
them to assume membership obligations as a condition of
employment, without reference to the fact that this is lim-
ited by law. The rule established in Allis-Chalmers seems un-
fair to individual employees, at least in this respect.
Subsequent to the Allis-Chalmers decision the Court held
that a union may not fine a worker for something he or she
did after resigning from the union. Although the Court ini-
tially hinted that unions might lawfully impose obligations
and limitations upon the right to resign,18 in 1985 it held by
a 5–4 vote that the Board’s conclusion that a union could
not lawfully prohibit a member from resigning was appro-
priate.19 Specifically the Court held that a union’s fining
employees who had resigned from the union during a strike
could be regarded as an unfair labor practice and that this
conclusion was a reasonable interpretation of the statute.
Said the Court:
Because the closed shop was outlawed by the Taft-Hartley Act . . . it
is not surprising that Congress thought it unnecessary explicitly
to preserve the right to resign. . . . The Board reasonably has con-
cluded [that the union fine] ‘‘restrains or coerces’’ employees . . .
and is inconsistent with the congressional policy of voluntary
unionism.20

Finally, who decides on the reasonableness of the amount

of a fine levied by a union? Although for a while there
was considerable debate about whether the Board had

173 The Duty of Fair Representation

 jurisdiction to invalidate ‘‘unreasonable’’ fines, the Supreme
Court has made it clear that this question is to be resolved
by the state courts and not by the NLRB.21

Exclusion from Union Membership and Responsibilities

There is no right under American labor law to be admitted
to a union. However, exclusion from membership or activ-
ities on the basis of race, sex, color, religion, or national
origin is violative of title VII of the Civil Rights Act of 1964.
Although members of a union must pay dues where a union
security agreement has been negotiated, they may not be
compelled to pay dues that would be used for political pur-
poses if they believe that such payment would violate their
First Amendment right to free speech.22 (This is discussed
below in the section entitled ‘‘Unions and the Political
Process.’’)

The Landrum-Griffin Bill of Rights

The Labor Management Reporting and Disclosure Act
of 1959 (often referred to as the Landrum-Griffin Act) con-
tains a bill of rights for union members,23 largely pro-
cedural in nature, which emerged from the McClellan
hearings in which considerable union corruption and other
forms of abuse were exposed. Title I of the Landrum Griffin
Act declared the right of every union member to equal
protection, freedom of speech and assembly, reasonable
and uniform dues, and freedom to sue unions and their
officers.
In United Steelworkers v. Sadlowski,24 which involved a hard-
fought campaign for the presidency of the Steelworkers,
the Supreme Court, in a 5–4 decision, held that a union
constitution’s ‘‘outsider rule’’ prohibiting solicitation of
or financial assistance from nonmembers for election
campaigns or election-related litigation did not violate
Landrum-Griffin’s provisions for free speech and the right
to sue. Said Justice Marshall, speaking for the majority: ‘‘. . .
we do not believe that [the Landrum-Griffin Act] should be
read as incorporating the entire body of First Amendment
law, so that the scope of protections afforded by the statute

174 Chapter 9
 coincides with the protections afforded by the Constitu-
tion.’’25 Justice White, in a sharply worded dissent, stressed
the imbalance in strength between union incumbents and
challengers: ‘‘. . . leadership is not only determined to dis-
courage opposition; it also has at its disposal all of the ad-
vantages for doing so, including the facilities of the union.
Those leaders have normally appointed the union staff, the
bureaucracy that makes the union run.’’26 Concluding that
the outsider rule was inconsistent with the Act’s legislative
history, the dissenters noted that ‘‘Congress intended to
help the members help solve these very difficulties by guar-
anteeing them the right to run for office and to have free
and open elections in the American tradition.’’27
The other shoe dropped in Finnegan v. Leu,28 where the
Court held that ‘‘rank and file union members—not union
officers or employees’’29 —are protected by the Act against a
retaliatory discharge by the union for the exercise of free
speech. The Court’s assessment of legislative history led it
to the conclusion that Congress did not intend to regu-
late union patronage. The Court left open the question
‘‘whether a different result might obtain in a case involving
nonpolicymaking and nonconfidential employees,’’30 but it
seemed to ignore the difficulties for dissidents engendered
by a decision that makes the bureaucracy more subordinate
to the leadership.
In 1989 the Court held that the removal of an elected
business agent, in retaliation for statements that he made at
a union meeting in opposition to a dues increase sought
by the union trustee, violated the Act.31 The Court, in Jus-
tice Marshall’s opinion, distinguished Finnegan on the
ground that where elected officials are involved or retali-
ated against, union members are denied the representatives
of their choice. Moreover, said the Court, ‘‘. . . the potential
chilling effect on Title I free speech rights is more pro-
nounced when elected officials are discharged. Not only is
the fired official likely to be chilled in the exercise of his
own free speech rights, but so are the members who voted
for him.’’32

175 The Duty of Fair Representation

 Even where a union may discipline an employee in con-
nection with a reasonable rule in the union’s constitution,
procedural due process as required by section 101(a)(5) of
Landrum-Griffin obligates the union to provide the mem-
ber with adequate notice of charges, reasonable time to
prepare a defense, and a full and fair hearing. In this con-
nection and in others, the 1959 statute guarantees the rights
only to union members, not to all employees represented by
the union.
Contrary to public impression, the Landrum-Griffin Act
does not guarantee members the right to ratify a union
contract. However, union members have a right to equal
protection, which can be modified only by reasonable rules
and regulations. A union may limit eligibility to vote in
contract ratifications to members in good standing.33 Simi-
larly ‘‘moonlighters’’ have been denied the right to vote
because they have no ‘‘vital interest’’ in the outcome.34 But
in Local 6885 v. American Postal Workers 35 Judge Abner
Mikva, speaking for the Court of Appeals for the District
of Columbia, concluded that it was denial of equal pro-
tection to preclude ratification of the contract by a
non-mail-processing local union when other members of
mail-processing locals had been accorded such rights. One
court has held that the members have the right to a
‘‘meaningful vote’’ in the sense that they are entitled to
‘‘adequate notice and information regarding the subject
matter and nature of the vote.’’36 Thus, for instance, the
1984 ratification of the Teamsters-United Parcel Agree-
ment was deemed unlawful because emergency member-
ship meetings had been called on short notice, members
had not known that a new contract was being negotiated,
and many members had been away on summer vacation.37
But the Court of Appeals for the Ninth Circuit, in
an opinion authored by Judge Stephen Reinhardt—
confronting the question of whether both the equal rights
and the freedom of speech protections afforded members
under Landrum-Griffin require union leaders to make a full
disclosure of all the terms and provisions of the collective
bargaining agreement prior to submitting the agreement

176 Chapter 9
 to union membership before ratification—has held to the
contrary.38 Absent a contractual obligation in the union’s
constitutional bylaws, which would provide members with
a contract or duty of fair representation action,39 said the
court, contract approval constitutes an internal union affair.
Said the court in addressing the failure of union leadership
to disclose:
We recognize that the conduct at issue here perpetuated, indeed
exacerbated, the customary information gap between the leader-
ship of the union and its rank-and-file members. However, un-
equal access to information is as inherent in the structure of the
collective bargaining system, as it is in our larger democratic sys-
tem. . . . Union leaders, by virtue of their status as collective bar-
gaining representatives, necessarily possess more information
about the progress and projected outcome of collective bargaining
than union members. At the time of a ratification vote, the officials
will inevitably know more about the final terms of the new agree-
ment than the rank-and-file members. This would be the case even
were we to require advance distribution of the entire agreement
(in this case, over 140 pages). Information concerning discus-
sions or informal understandings regarding the intended or actual
meaning of ambiguous provisions is of critical importance in
implementing union-management agreements. That information
would not be available to rank-and-file members in any event. To
attempt to ensure equal information for negotiators and members
alike would be wholly unrealistic.40
Rejecting the argument that this decision could be charac-
terized as supporting the principle that union democracy is
‘‘unimportant’’ or that federal labor law accords unions vir-
tually unlimited power to define internal policies and pro-
cedures by fiat, the court argued that its decision was to the
contrary and did not in any way interfere with federal labor
policies that are designed to induce union leadership to
adhere to the promises made to their members. The Ninth
Circuit concluded that Congress’s ‘‘. . . decision to leave the
determination of whether and how contract ratification
votes must be conducted to the unions reflects an under-
standing of the complexities of the contract negotiation
process.’’41
In an opinion authored by Judge Richard Cudahy for the
Court of Appeals for the Seventh Circuit, the court held

177 The Duty of Fair Representation

 that secret oral negotiations between union officials and
employer representatives that modified the terms of the
collective bargaining agreement that had been submitted to
the membership for ratification, without any notice that it
would be conditioned by additional terms, was a breach of
the contract entered into between the union and its mem-
bers.42 Said the court, ‘‘To avert industrial strife, collective
bargaining agreements must be more secure than garden
variety contracts. Accordingly, we hold that national labor
policy forbids introduction of prior or contemporaneous
secret agreements to contradict fundamental terms of a
ratified collective bargaining contract.’’43 Judge Frank East-
erbrook dissented, emphasizing the importance of ‘‘flexi-
bility’’ in industrial relations. Said the dissent:
Collective bargaining agreements are relational contracts. They do
not settle all important terms; rather they establish a framework
within which the parties compose their differences. . . .
. . . the majority makes it clear that enforceability depends on
who wins and who loses ex post. Negotiators need to know while they
are dickering which agreements will be enforced and which not;
people at the bargaining table in January 1983 cannot wait for a
court in September 1991 to tell them which deals are sufficiently
unimportant, and which turn out sufficiently favorable to the
workers, to be enforced.44

Trusteeships
The Landrum-Griffin Act is also aimed at limiting the cir-
cumstances under which the unions may impose trustee-
ships, an administrative device whereby dissident local
unions could be controlled and their treasuries raided by
national and international union officials. Careful standards
are established relating to circumstances under which the
imposition of administration of trusteeships may be estab-
lished, and information must be filed with the secretary of
labor.45

Union Elections
The Landrum-Griffin Act provides that members have the
right to elect their officials and guarantees the right to an
election every three years.46 Some trade unions use the bal-

178 Chapter 9
 lot box and some use conventions to elect their national
officials. Those unions that have relied on the direct
vote seem to have had the greatest amount of internal de-
bate and controversy—for example, there have been hard-
fought elections in the United Steelworkers of America, the
International Union of Electrical Radio and Machine
Workers and the International Brotherhood of Teamsters.
On the other hand, the United Auto Workers, a democratic
union that has established a Public Review Board to review
charges by union members against officialdom, elects its
national officers at a convention, and there has never been
a substantial vote against the incumbents.
Much of the litigation over union elections relates to
unions’ eligibility requirements for candidates. The Su-
preme Court had struck down union bylaws limiting the
right to run for major elective offices to union members
who hold or previously held elective office under circum-
stances where the effect was to disqualify 93 percent of
members for office. Similarly attendance rules requiring
that a member who seeks local union office must have
attended at least half of the regular meetings for three years
previous to the election have been held unlawful where only
23 of 600 members would have been eligible. The Court has
held that the antidemocratic effect of such rules is inconsis-
tent with the Landrum-Griffin provision that ‘‘every mem-
ber in good standing shall be eligible to be a candidate and
to hold office . . . subject . . . to reasonable qualifications
uniformly imposed.’’47
Although the secretary of labor is the only party who may
file suit challenging an intraunion election that has already
been held, the Supreme Court held in Trbovich v. United
Mine Workers48 that an aggrieved member may intervene in
the suit. Although the secretary of labor assumes the mantle
of the union member’s lawyer, the Court acknowledged
that the member might have ‘‘a valid complaint’’ about the
performance of his or her lawyer and therefore ought to be
able to intervene to present evidence and arguments in
support of the secretary’s complaint.

179 The Duty of Fair Representation

 The Court has held that union members may not institute
actions where the remedy sought is the invalidation of an
election already conducted.49 Only the secretary of labor
may bring such actions. But where the relief sought is ‘‘less
intrusive’’ the individual may bring the action without the
secretary.
Not only must members have a fair opportunity to run for
office as a prerequisite to an appropriate election, they must
also have an opportunity to reach the members. This means
that the union must honor a reasonable request to distrib-
ute campaign literature at a candidate’s expense and that
no monies received from dues or similar kinds of levies may
be used to promote any person’s candidacy. According to
the Supreme Court in International Organization of Masters,
Mates & Pilots v. Brown,50 a court must evaluate the reason-
ableness of a candidate’s request. Said the Court:
A broad interpretation of the candidate’s right to distribute litera-
ture commenting on the positions advocated in the union press is
consistent with the statute’s basic purpose.
. . . Here, in particular, a preconvention mailing would not place
any burden on the Union because the candidate must assume the
cost of the mailing. Moreover, in union elections, as in political
elections, it is fair to assume that more, rather than less, free-
dom in the exchange of views will contribute to the democratic
process. . . .
The concern about discrimination among individual candidates
is surely satisfied by a rule that allows any candidate access to the
membership before the convention as well as by a rule that denies
all candidates such access. Indeed, arguably opening the chan-
nels of communication to all candidates as soon as possible better
serves the interest in leveling the playing field because it offsets the
inherent advantage that incumbents and their allies may possess
through their control of the union press and the electoral list
during the four years in which they have been in office.51
Employers are precluded from contributing financial
support to candidates for union office. Literature, if dis-
tributed at a reduced rate for one candidate, must be
distributed at a reduced rate for all. If one candidate is
allowed to copy membership lists, all candidates must have
the same opportunity. These privileges must be extended
equally.

180 Chapter 9
Union Corruption and the Teamsters
Actually the most ambitious electoral reform of any labor
union has been undertaken pursuant to a consent decree
entered into in 1989 between the International Brother-
hood of Teamsters and the U.S. Department of Justice. The
decree followed an unsuccessful challenge to the 1986 elec-
tion by the Teamsters for a Democratic Union (TDU), an
unincorporated association comprised of Teamster mem-
bers whose stated purpose was to reform and democratize
the IBT.52 Suit was commenced against the Teamsters by the
Justice Department under the Racketeering and Corrup-
tion Act (RICO).53 The consent decree provided for court-
appointed officers who would oversee certain Teamster
operations, particularly the supervision and certification of
the results of the International Brotherhood of Teamsters’
1991 elections. An administrator decides all disciplinary or
trusteeship cases and has the right to veto any union ex-
penditures, appointments, or contracts other than collective
bargaining agreements.
Prior to the consent decree, all convention delegates
were chosen through regular local union elections, and the
convention selected the principal officers of the union: the
general president, the general secretary-treasurer and six-
teen vice presidents. Under the 1989 consent decree all of
these offices were elected by direct rank and file secret bal-
loting in 1991. The major dissident candidate, Ron Cary
of New York, was elected President of the union with his
slate on the executive board. The changes initiated and the
actual results of the election appeared to herald a new era
of more democratically responsive leadership in the union
which had been notorious for undemocratic procedures
and corruption in the past. Under the consent decree an
independent review board was established with the power to
investigate and discipline corruption within the union. One
member of the board was appointed by the attorney gen-
eral, one by the union, and the third by the agreement of
the first two appointees.
Notwithstanding the promise of these changes, shortly
after the successful resolution of the United Parcel Service

181 The Duty of Fair Representation

 dispute by the Teamsters leadership in 1997,54 the reelec-
tion of Ron Carey was set aside and he was disqualified to
run again.55 Subsequently, the Court of Appeals for the
Second Circuit held that the United States government,
rather than the Teamsters, must bear the costs of re-
running the 1996 Teamsters election that was set aside,56
and the Teamsters under the leadership of James R. Hoffa
were allowed to proceed with less supervision.57

Unions and the Political Process

Political activity is another area of tension between unions
and individual union members. One must recall Gompers’
statement that labor would reward its friends and punish its
enemies. Though the unions are not attached to a political
party, they are very much involved in the political process.
Unions have established special political arms to support
those who are friendly to organized labor’s position on a
wide variety of issues.
It is, however, a crime for any labor organization to
‘‘make a contribution or expenditure in connection with
any election at which Presidential and Vice-Presidential
electors or a Senator or Representative in . . . Congress
ought to be voted for’’ or in connection with a related pri-
mary convention. Such activity is prohibited by section 304
of the Taft-Hartley Act.
Under the Federal Election Campaign Act of 1971, as
amended, unions and corporations may use their monies
in connection with the election of federal candidates for
the purpose of sending political messages to their own
members or shareholders, for conducting nonpartisan reg-
istration and get-out-the-vote campaigns directed at such
groups, and as seed money to solicit contributions to a
union or corporate political action committee. Any direct
contribution by labor unions to the treasuries of federal
political candidates is prohibited.58 None of the above-
described prohibitions has any bearing on union contribu-
tions to state campaigns.
A nonunion member, compelled to pay dues under a
union security provision in the collective bargaining agree-

182 Chapter 9
 ment, may object to having his or her dues money used on
behalf of certain candidates or political programs, but a
union may spend dues as it wishes for purposes germane to
collective bargaining. What is relevant to collective bargain-
ing and what is relevant to the political process have been a
subject of considerable debate.59 In Communications Workers
v. Beck60 the Court held that these principles, initially estab-
lished under the Railway Labor Act and in the public sec-
tor,61 apply equally to employees covered by the National
Labor Relations Act. In 1992 President Bush issued an ex-
ecutive order requiring federal contractors to notify non-
union members of their right to object to dues spent for
purposes other than collective bargaining, contract admin-
istration, and grievance adjustment.62 However, President
Clinton rescinded this order soon after assuming office.63
Now, however, the second President Bush has issued a new
executive order providing for the same procedures as did
his father.64
Because of the Beck decision, these rules have had a more
substantial impact. The Board has held that a union must
notify employees of their Beck right to object to the expen-
diture of dues at the time that they become an employee or
a nonmember if the nonmember did not receive initial no-
tice.65 As noted above, while notice is required, the Marquez
decision makes clear that such notice need not be con-
tained in the collective bargaining agreement itself. And
the notice must inform employees of their right to resign
membership as well, and, thus, to become a nonmember
employee who can object.66
Unions have been encouraged by the Supreme Court
to devise their own internal rebate procedures in connec-
tion with this problem, and the United Auto Workers and
the Brotherhood of Railway Clerks have done so. The
UAW has provided that a dissenting member may allocate
a portion of his or her dues to be used in support of
‘‘nonpartisan ideological community groups.’’ In a unani-
mous opinion authored by Justice White, the Court held
that a rebate procedure was legally inadequate.67 Said the
Court:

183 The Duty of Fair Representation

 . . . there are readily available alternatives, such as advance reduc-
tion of dues and/or interest-bearing escrow accounts, that place
only the slightest additional burden, if any, on the union. Given
the existence of acceptable alternatives, the union cannot be
allowed to commit dissenters’ funds to improper uses even tempo-
rarily. A rebate scheme reduces but does not eliminate the statu-
tory violation.68
Moreover adequate information about union expenditures
—not simply reference to the fact that nonmembers would
not be required to pay a percentage designated by the
union as nongermane—is required,69 as well as a ‘‘. . . rea-
sonably prompt decision by an impartial decisionmaker.’’70
In the first of these two decisions the Court established
the proposition that the spending of dues money on litiga-
tion or on organizational campaigns not related to the bar-
gaining unit was not ‘‘germane’’ to collective bargaining.71
A divided Court has held that public employee union lob-
bying or other political activities ‘‘unrelated’’ to contract
modification or implementation as well as efforts to secure
funds for public education in the state—which might assist
the negotiation of salaries for teachers—are not germane.72
The Clinton and Bush executive orders as well as the Beck
decision made union involvement in the political process
and the expenditure of dues for such purposes a central
issue in the 1990s. Justice Frankfurter’s perceptive dissent-
ing commentary about American labor’s deep historical
involvement with politics and legislation seems to have been
lost in the distant haze.73

184 Chapter 9
 10
The Public Sector

In recent years state and local legislation on the subjects of

collective bargaining and labor in the public sector have
grown considerably.1 Forty-one of the states have some form
of fairly comprehensive legislation protecting the right
of public employees to organize and bargain collectively.
(Some states provide that the public employer need only
‘‘meet and confer’’ with the union, but the practical result is
often similar to that under the duty to bargain.)2 The same
trend is present at the federal level for federal employees,
although federal employees still may not negotiate wages.
Congress replaced an executive order originally promul-
gated by President John F. Kennedy with the Civil Service
Reform Act of 1970.3 The Postal Reorganization Act of
19704 created an independent establishment within the ex-
ecutive branch. Postal employees are subject to the Na-
tional Labor Relations Act and the Landrum-Griffin Act, but
prohibitions against federal strikes apply to them, and
therefore the Postal Reorganization Act contains its own
dispute-resolution procedures. Striking federal employees
can be punished with felony charges and dismissal.
Public employees have a right to union membership that
is protected by the right of freedom of association under
the First Amendment.5 However, the Supreme Court has
balanced this right against the government’s interest in
 regulating the speech and conduct of its employees, an in-
terest that differs significantly from any interest in regulat-
ing the speech of all citizens.6 The means used to advance
an important governmental interest must be those least re-
strictive of constitutional rights.7 The balance between the
constitutional right to union membership8 and various im-
portant government interests is not always clear. For ex-
ample, police and firefighters share in the right to join
unions,9 but whether they may be restricted in the kind of
labor organization with which they may affiliate has not
been definitively resolved.10 Moreover the right of public
employees to bargain collectively, let alone the right to
strike,11 is not protected by the Constitution. But a majority
of the Supreme Court of California has supported the view
that the right to strike enjoys some degree of constitutional
protection in that state.12
The Supreme Court has held that a state may constitu-
tionally prohibit union representation of workers in the
processing of their grievances13 —a less ambitious objective
than that of constitutional protection for the collective bar-
gaining process itself. From this proposition, courts have
refused to extend constitutional protection to the collec-
tive bargaining process itself.14 Moreover exclusivity is lim-
ited. The Court has also held that teachers other than
union representatives have a constitutional right to speak
at open schoolboard meetings.15 The Supreme Court has
held that a minority union can be constitutionally denied
access to teachers’ mailboxes and the interschool deliv-
ery system16 because of the Constitution’s free-speech and
equal-protection guarantees, despite the statutory right of
minority unions or dissident employees not to be denied
the right to communicate in the private sector under the
NLRA.17 Justice White, writing for a 5–4 majority, reasoned
that the state has a legitimate interest in furthering the ef-
fectiveness of representation. Since the Court also noted
the absence of a showing that ‘‘permission has been granted
as a matter of course to all who seek to distribute material’’
as a basis for its decision, the Court of Appeals for the Fifth
Circuit has concluded that the minority union has a right to

186 Chapter 10
 access when the mail system is open to all employee orga-
nizations ‘‘without distinction.’’18 In 1984 the Court, again
deferring to the state’s interest in providing the exclusive
bargaining representative with communication opportuni-
ties, held that the exclusion of nonmembers from ‘‘meet
and confer’’ sessions on employment-related matters, which
are not subject to mandatory collective bargaining, was
constitutional.19
Another line of cases involving constitutional rights for
public employees arises out of wrongful discharge.20 In
1985 the Court, speaking through Justice White, held that
the Due Process Clause of the Constitution mandates that
some pretermination process must be accorded public em-
ployees, who can be dismissed only for cause. The Court
noted that the need for ‘‘some form of pretermination
hearing’’ was evident from a balancing of the competing
interests at stake, i.e., ‘‘the private interest in retaining em-
ployment, the governmental interests in the expeditious
removal of unsatisfactory employees and the avoidance of
administrative burdens, and the risk of an erroneous termi-
nation.’’21 The Court has also held that not only are public
employers precluded under the First Amendment from dis-
charging employees for nonsupport of the political party in
power,22 but the principle also applies to hiring, promotion,
transfer, and recall after layoff.23
Legislation creating the Department of Homeland Secu-
rity has cut back on collective bargaining rights normally
enjoyed by some federal employees. In late 2002, after
months of debate in the Senate, President Bush and his
supporters were ultimately successful in creating a Depart-
ment of Homeland Security free from many normal civil-
service constraints, including the ability for its employees’ to
engage in collective bargaining. After a devastating setback
in the November 2002 mid-term elections, Democrats were
forced to agree to the Republicans’ demands that the Pres-
ident should have the ability to exempt unionized workers
from having collective bargaining rights in the name of na-
tional security. The only minor concessions that the Demo-
crats obtained were a requirement for a few weeks of

187 The Public Sector

 mediation over new personnel rules (though the President
is still free to make the ultimate decision) and a require-
ment that the collective bargaining exemption will lapse in
four years without presidential reauthorization.24 Since
signing this legislation, President George W. Bush has ex-
empted 56,000 airport security screeners, and, though pur-
suant to different legislation, 1,000 employees at National
Imagery and Mapping Agency also have lost their collective
bargaining rights.25
Privatization of government services poses another threat
to public sector union advances. The second Bush Admin-
istration announced its intent to move toward privatization
in 2002.26
But nonetheless, public-employee unionism has grown by
leaps and bounds since the mid-1960s. Before that time
the organization of public employees into unions lagged
behind organization in the private sector for a number of
reasons.
First, the legal concept of sovereignty translated itself into
the idea that government was supreme and that public em-
ployees had no rights that could be asserted against their
employer.
A second idea, very much related to the first, was that
elected officials could not delegate their responsibility to
others. Collective bargaining and arbitration therefore were
considered inconsistent with the democratic process and
with the idea that officials were responsible to the voters
and not to trade unionists. Moreover some of the benefits
associated with labor organizations in the private sector,
such as grievance-arbitration machinery, were not apparent
until the 1950s and 1960s, and public employees were not
dissatisfied with their position. But the turmoil of the 1960s,
a perceived gap between benefits in the public and private
sectors, and increased attention to the public sector by a
trade-union movement in search of arenas in which it could
recoup its membership losses among private employees
contributed to substantial changes. A surge of unionization
has taken place in the public sector. Between 1966 and 1976
the American Federation of Teachers and the American

188 Chapter 10
 Federation of State, County, and Municipal Employees in-
creased their membership by 257 and 167 percent, respec-
tively. (Their memberships are now approximately 875,000
and well over 1,000,000.) The National Education Associa-
tion, which like the Teamsters is not affiliated with the AFL-
CIO, has a membership of 2,700,000.
Despite all this there continues to be controversy about
collective bargaining in the public sector and about
whether the growth of such bargaining ought to be pro-
tected by a labor law similar in content to the National
Labor Relations Act. One major argument against the ap-
plicability of private sector labor law to the public sector is
that the economics are different. It has been contended
that the private sector is based on a market economy that
has no applicability to the public sector (the Taylor re-
port,27 which was written in advance of New York’s labor
legislation, expounded this theme). Proponents of this
theory have stated that the constraints in the public sector
are political; as noted above, the argument is that those who
make the decisions to levy taxes and raise revenues are
penalized or rewarded through the democratic process.
Very much related to this argument is the fact that the
employment-benefit relationship or tradeoff that exists in
the private sector is not present in the public sector. In the
private sector trade unions are restrained from making
wage demands because of the discipline of the market (the
loss of jobs that would be attributable to increased benefits
and to the flow of work to nonunionized employers). Also,
as employers are confronted with higher labor costs, they
have a greater inducement to automate. Third, it is con-
tended that public employers have less of a monopsony
power than private employers because employees (particu-
larly in cities) are able to compete effectively for employ-
ment in both public and private sectors.28 Accordingly,
proceeds this argument, public employees have more
strength than their private-sector counterparts in dealing
with employers. Fourth, it is argued that public employees
are in a superior position because of Civil Service legis-
lation, which traditionally has provided a much greater

189 The Public Sector

 measure of job security than was available with unionized or
nonunionized private employers. However, the security en-
joyed by the public sector has been undermined recently by
two factors. One is the emergence of arbitration clauses,
which protect private employees against dismissal and disci-
pline except where the employer has just cause for impos-
ing the penalty. The second is that since the early 1970s
public employers have been all too willing to respond, as
most private employers do, when confronted with increased
economic demands: by laying off workers to reduce the
budget. To some extent this undercuts the argument that
market forces do not come into play in the public sector.
Moreover the tendency of many employers to contract out
work previously performed by public employees resembles
the behavior in the private sector. Many public employers
have begun to contract out garbage collection, just as pri-
vate employers have contracted out janitorial services.29
In the public sector those who bargain with the unions—
the executive branch of the government—must rely on
appropriations committees in the legislative branch to im-
plement any arrangements that are made. (This problem
does not exist at the federal level because federal public-
employee unions still may not bargain about wages.) In col-
lective bargaining it is generally desirable, if not vital, for
the parties representing each side to be able to speak with
authority for their constituents. Inasmuch as the public em-
ployers are fragmented, this poses practical problems in
connection with collective bargaining in the public sector
and makes the process more difficult.
Another difference between the public and private sec-
tors is that the line between supervisory and other em-
ployees is more confused than it is in the private sector.
One of the direct results of this confusion is that there is
more of a demand for supervisory unions and sometimes
for unions that include supervisory and other employees
under the same umbrella.30 This causes problems for em-
ployers relating to the loyalty of employees who in the pri-
vate sector might be regarded as management or lower-level
management.

190 Chapter 10
 The most frequently cited difference between private and
public sectors is that unions in the public sector can bring
pressure on their employers through the political process. It
is certainly true that in recent years some unions have fre-
quently used legislatures to obtain, for instance, increases
in pension benefits that were under negotiation at the bar-
gaining table. The argument is that the public employer is
put at a disadvantage with respect to the public employees’
union in a way that does not exist in the private sector.
However, it must be said that private employees’ unions also
may (and often try to) improve their economic benefits
through legislative activity. Private-sector unions are also
deeply involved in the American political process.
Many of the issues raised at the bargaining table by public
employees’ unions affect the public as well as the workers. A
union’s demand that police officers confronted with disci-
pline or discharge be exempted from appearing before a
public review board might be viewed very differently by
union leaders and by black and Hispanic leaders in New
York, Chicago, or San Francisco. The same is true of de-
mands made by teachers’ unions about curriculum content.
This is not to suggest that such matters are inappropriate
for the bargaining table. But matters such as these and
whether Detroit police should be required to live in that
city,31 and whether San Jose police can wear firearms,32
raise issues that obviously affect the public directly and
therefore must be considered away from the negotiating
table. At the same time, however, traditional issues such as
the entitlement of federal employees to expenses incurred
in negotiations under the Civil Service Reform Act have
prompted the Court to note that, although ‘‘Congress un-
questionably intended to strengthen the position of federal
unions and to make the collective bargaining process a
more effective instrument of the public interest than it had
been under the Executive Order regime,’’33 the basic as-
sumption about an adversarial relationship applies to the
public sector as well as the private sector.
The most difficult public-sector issue in the United States
relates to whether public employees should have the right

191 The Public Sector

 to strike. The federal government and most of the states
prohibit striking by common law or statute. However, an
increasing minority of jurisdictions (Hawaii, Pennsylvania,
Vermont, Alaska, and Minnesota have been the leaders) has
permitted a limited right to strike to be incorporated into
statute.34 These statutes generally permit workers other
than police, firefighters, and prison guards to strike, some-
times only after the utilization of impasse procedures de-
signed to resolve disputes over new contract terms. And the
Supreme Court of California has articulated the following
standard: ‘‘. . . strikes by public employees are not unlawful
at common law unless or until it is clearly demonstrated that
such a strike creates a substantial and imminent threat to
the health and safety of the public.’’ ‘‘This standard,’’ said
the Court, ‘‘allows exceptions in certain essential areas
of public employment (e.g., the prohibitions against fire-
fighters and law enforcement personnel) and also requires
the courts to determine on a case-by-case basis whether the
public interest overrides the basic right to strike.’’35
The argument on behalf of public-sector striking is that
it is impossible for the collective bargaining process to
operate without the possibility of strikes. Unless the em-
ployer faces the prospect of inconvenience or injury, there
is no inducement to compromise or negotiate seriously
about wages, hours, and working conditions. Moreover it is
pointed out that the line between the private and the public
sector is a difficult one to draw sharply. For instance, during
the 1966 transit strike in New York, public employees on
one bus line were prohibited from striking by state labor
legislation, but employees on another line, operating on
nearby streets, were protected in their right to strike be-
cause they were employed by private operators or public
utilities covered by the NLRA. It is anomalous and inequi-
table to impose different rules on employees performing
the same tasks in connection with an issue so vital to em-
ployees and the employer.
One argument that cuts in the other direction is that the
line between the industries that are essential (where strikes
should be prohibited) and those that are not (where strikes

192 Chapter 10
 should be allowed) is difficult to draw. Most observers seem
to accept the view that police and firefighters should not
have the right to strike, but there is little consensus about
other jobs. There is considerable controversy about the
propriety of strikes in public education. Does it affect the
health and security of the community for teachers to strike?
Most would say that a few days lost from school would not
matter much, but what if a strike goes on longer? Gener-
ally the longer children are home from school, the more
parents begin to perceive school services as essential, inde-
pendent of the value of education. The fact that often both
parents are working would seem to increase their concern
about teachers’ strikes.
Another problem is that where one group of workers has
another process by which to resolve a dispute, such as com-
pulsory arbitration, a generous award may have the effect
of eating up all revenues available for wage increases for
others. Indeed there are many instances where a generous
arbitration award has encouraged strikes by workers forbid-
den to strike. The opponents of the right to strike for public
employees often state that when one draws a line between
essential and nonessential services, one is basically granting
the right to strike where it would not hurt the employer and
prohibiting it where it would. For example, since lawn care
is a nonessential service, the gardener who mows the gover-
nor’s lawn should be able to assert the right to strike.36 But
doesn’t this simply give the worker the strike weapon when
he or she has no muscle and therefore cannot make ade-
quate use of it?
Opponents of the right to strike for public employees
have also focused on the fact that public-sector labor rela-
tions, particularly at the municipal level, involve a number
of different unions. Generally multiunion industries are
‘‘sick’’ industries in terms of industrial relations. Classic
examples of this proposition outside the public sector are
the newspaper, printing, and maritime industries. If a right
to strike is granted to one union, how will other unions that
are prohibited from striking react to picket lines in front of
a municipal government’s facilities? In the United States

193 The Public Sector

 there is a long-standing tradition for workers to refuse to
cross a picket line. Will not the right to strike for certain
employees produce, at least under certain circumstances,
general strikes?
The biggest argument for the right to strike in the public
sector is that strikes are taking place. Hardly a month passes
without a strike or another form of economic pressure in
the public sector in some state. Granting the right to strike
on a limited basis would bring the law into accord with re-
ality, since the right to strike exists on a de facto basis.
Under the present circumstances the imposition of fines
and contempt penalties on strikers may produce a lack of
respect for law and the judiciary. There is already consider-
able evidence of judicial reluctance to declare strikes un-
lawful, even where statute or common law makes them so.
Even decertification, employed against the air traffic con-
trollers as a penalty for their unlawful strike in 1981, does
not always work.
The debate has shifted to substitutes for striking. Fore-
most among these is fact-finding. The supposed virtue of
fact-finding is that a judicial type of proceeding is estab-
lished that issues a formal report with recommendations.
The theory is that the unreasonable party will have the
weight of public pressure against it and will yield or modify
its position. This is said to be especially true in the public
sector, where parties are presumably more sensitive to those
who pay taxes and cast votes.
A substantial number of jurisdictions provide for fact-
finding, and indeed this is now one of the options made
available in the federal sector.37 But fact-finding has not al-
ways worked out as well as anticipated. Even though the
resolution of public-employee disputes is the public’s busi-
ness and one could therefore assume that the public would
be interested in the report, it is often said that little atten-
tion is given to the report by the news media. Thus the op-
portunity to galvanize support for the recommendations
and place pressure on the resisting party is minimized.
Moreover, rather than moving one of the parties to a dif-
ferent position, the report often hardens the parties’ posi-

194 Chapter 10
 tions and makes it less likely that they will be able to resolve
their dispute. (This seems to run contrary to the concerns
that Senator Robert Taft expressed in the Taft-Hartley
amendments.) Once the report has been issued, the party
that perceives itself as the winning one will take no less than
what the report provides for. Quite frequently the party that
has lost and is excoriated by the fact-finders simply hardens
its own position. As the debate becomes more public, the
parties begin to posture for their respective audiences and
constituencies.38
Finally, fact-finding does not provide for finality. A bind-
ing arbitration award does not permit a dispute to go on
after the procedures have been exhausted. This, as well as
other factors, has induced an increasing number of juris-
dictions to adopt compulsory-arbitration provisions in the
public sector.

195 The Public Sector

 11
Public-Interest Labor Law

Five developments since the advent of modern labor legis-

lation that are important to workers, unions, and employers
—although they do not directly involve the balance of
power between unions and their members—are the Em-
ployee Retirement Income Security Act (ERISA), the Oc-
cupational Safety and Health Act of 1970, employment
discrimination law (especially title VII of the Civil Rights
Act of 1964), the common law of wrongful discharge
in most of the fifty states of the Union, and issues relating
to drug and alcohol testing and sometimes smoking as
well.

The Employee Retirement Income Security Act

ERISA is the first comprehensive pension labor law enacted
by Congress, although section 302(c)(5) of the National
Labor Relations Act provides for the establishment of fi-
nancial trust funds for the benefit of employees.1 ERISA
does not require the establishment of a pension plan, but
it does require disclosure and reporting of financial and
other information through the establishment of standards
of ‘‘conduct, responsibility, and obligation for fiduciaries
of employee benefit plans.’’2 It is administered by the De-
partment of Labor and the Internal Revenue Service. The
 full extent of coverage and protection under the statute is
beyond the scope of this chapter, but some of its elements
should be mentioned.
ERISA established mandatory vesting requirements for
workers so that they receive some entitlement to pension
funds before they reach retirement age. Additionally it
restricts a plan’s power to deprive a union member of all
prior service that may be unvested. ERISA does not provide
for the transferability of pensions from one company to
another (often referred to as ‘‘portability’’). This is a par-
ticularly important deficiency, given the mobility of the
American worker. However, in the Multiemployer Pension
Plan Amendment Act of 1980, amending ERISA, Congress
strengthened the solvency and stability of multiemployer
pension funds by circumscribing employers’ withdrawals
from them.3
ERISA provides that all ‘‘nonforfeitable’’ benefits must be
paid. In Nachman v. Pension Benefit Guaranty Corp.,4 a major-
ity of the Supreme Court held that a plan that imposed no
condition on the benefits to be paid created vested benefits
in the event of a plant closure. However, the Court has held
that the level of benefit offsets attributable to an employee’s
receipt of a worker’s compensation award is ‘‘forfeitable.’’5
In the same case the Court held that state law that is in-
consistent with ERISA on the issue of level of benefit
and offset is preempted by the federal statute. The District
of Columbia Workers’ Compensation Equity Amendment
Act which obliged employers to provide health benefits
to employees eligible for workers’ compensation benefits
only if the employer was already providing health bene-
fits under a different plan was deemed to be preempted
by ERISA by the Court of Appeals for the District of
Columbia.6
The Court, in Ingersoll-Rand Co. v. McClendon,7 has held
that a state common law wrongful discharge action insti-
tuted to protest a dismissal that was allegedly attributable to
the employer’s plan to avoid contributing or paying benefits
under the employee plan was preempted by ERISA.

198 Chapter 11
The Occupational Safety and Health Act
The Occupational Safety and Health Act of 1970 was
enacted, as the Supreme Court has said, ‘‘for the purpose of
ensuring safe and healthful working conditions for every
working man and woman in the nation.’’8
Near the end of his second term, President Clinton issued
an executive order protecting workers from job-related,
repetitive-stress injuries. However, when the second Bush
Administration came into office in 2001, the Congress dis-
approved OSHA regulations on ergonomics pursuant to the
Congressional Review Act of 1996 authorizing Congress to
repeal major rules issued by the executive branch with the
approval of the President. The Bush Administration then
purported to fashion so-called ‘‘voluntary’’ guidelines.9
Though other federal agencies may exercise jurisdiction
over health and safety matters pursuant to their own statu-
tory authority, the Supreme Court has held that OSHA
trumps the United States Coast Guard authority over an oil
and gas exploration barge where the latter’s regulations did
not address the specific health and safety risks posed by
such a barge.10
The Court has held that the secretary of labor, in fash-
ioning regulations dealing with particular toxic materials or
harmful physical agents, must show that an exposure limit
is ‘‘reasonably necessary or appropriate to provide safe and
healthful employment.’’11 But a major problem to be ham-
mered out in the courts during the coming years is how
significant a risk must be to warrant regulation under this
act. The Court has stated that the statute does not guaran-
tee a risk-free workplace,12 but the Occupational Safety and
Health Administration (OSHA) has not taken that position.
Even though the risks are often uncertain because of lack of
scientific evidence, OSHA must provide some explanation
for its determination that regulation is necessary.
A critical issue involved in the interpretation of the stat-
ute is whether the Secretary of Labor is required to balance
the benefits to the workers against the cost of the required
charges to the employer.13 OSHA has always taken the

199 Public-Interest Labor Law

 position that costs must be taken into account as regula-
tions are formulated. But although OSHA has appropri-
ately regarded the requirements of economic feasibility as a
barrier to the imposition of a cost burden that would crip-
ple or eliminate an industry, the disproportionate burden
on particular plants that may be older, smaller, or less com-
petitive cannot be equated with infeasibility. The Court of
Appeals for the District of Columbia has said that ‘‘even if a
few firms are forced to shut down, the standard is not nec-
essarily economically infeasible.’’14 On another occasion the
same court said the following: ‘‘It would appear to be con-
sistent with the purpose of the Act to envisage the economic
demise of an employer who has lagged behind the rest of
the industry in protecting the health and safety of employ-
ees and is consequently financially unable to comply with
new standards as quickly as other employers.’’15 And in 1981
the Supreme Court, by a 5–3 vote, held in the ‘‘Brown lung’’
case16 that a cost-benefit analysis is not contemplated by the
statute. Said Justice Brennan, writing for the majority:
Congress itself defined the basic relationship between costs and
benefits by placing the ‘‘benefit’’ of worker health above all other
considerations save those making attainment of this ‘‘benefit’’
unachievable. Any standard based on a balancing of costs and
benefits by the Secretary that strikes a different balance than that
struck by Congress would be inconsistent with the command set
forth [in statutory provisions]. Thus, cost-benefit analysis by OSHA
is not required by the statute because feasibility analysis is.17
The problems of enforcing the Occupational Safety and
Health Act are considerable. The secretary of labor can-
not unilaterally shut down a plant when the operations
are unsafe or hazardous to workers.18 Where an employer
resists on-site inspection, the Supreme Court has held that
the Constitution requires the secretary of labor to obtain a
warrant before an inspection;19 this provides the opportu-
nity for a coverup. The secretary of labor has argued un-
successfully that a worker has the implied right to enforce
the statute through a lawsuit because the government can-
not cope with the large number of complaints that have
been filed.20

200 Chapter 11
 Ordinarily the penalty for a violation of the statute is
$1,000, but in the case of ‘‘nonserious’’ violations a penalty
is discretionary. In the case of willful or repeated violations
the penalty can go up to $10,000, but the courts are divided
on the question of what number of infractions constitutes
repetition and on whether a serious infraction must be both
repeated and willful.21
What can workers do for themselves with regard to
health and safety? Under the National Labor Relations Act,
workers have the right to engage in walkouts aimed at pro-
testing conditions they deem unsafe.22 A walkout triggered
by conditions that can be objectively characterized as ab-
normally dangerous cannot violate a union-negotiated no-
strike clause in a labor contract.23 And the Court approved
interpretive regulations put forth by Secretary of Labor Ray
Marshall that permit workers to refuse to work where an
employee is ordered by an employer to work under condi-
tions that the employee reasonably believes pose an immi-
nent risk of death or serious bodily injury and where the
employee has reason to believe that there is not sufficient
time or opportunity either to seek effective redress from the
employer or to apprise OSHA of the danger.24 A proposal
that pay be provided to employees on strike under such cir-
cumstances was rejected by Congress.25
In Gade v. National Solid Waste Management Association26
a divided Supreme Court, in an opinion authored by Jus-
tice Sandra Day O’Connor, held that state regulation of
occupational safety and health issues that have not been
approved by the secretary of labor and for which a federal
standard is in effect is impliedly preempted as in conflict
with the Occupational Safety and Health Act. The Court
came to this conclusion notwithstanding the fact that it was
aimed at protecting both the workers and the public and
thus had a ‘‘dual impact.’’ Said the Court:
. . . a state law requirement that directly, substantially and specifi-
cally regulates occupational safety and health is an occupational
safety and health standard within the meaning of the Act. That
such a law may also have a nonoccupational impact does not
render it any less of an occupational standard for purposes of

201 Public-Interest Labor Law

 pre-emption analysis. If the State wishes to enact a dual impact law
that regulates an occupational safety or health issue for which a
federal standard is in effect, §18 of the Act requires that the State
submit a plan for the approval of the Secretary.27

Employment Discrimination Law

Probably the most litigated area of ‘‘public-interest labor
law’’ is employment discrimination. The most comprehen-
sive legislation is title VII of the Civil Rights Act of 1964,
which established the Equal Employment Opportunity
Commission and which prohibits discrimination in em-
ployment on account of race, color, sex, national origin, or
religion.
The EEOC, initially provided with authority to investigate
and to attempt to conciliate allegations of discrimination,
has since 1972 had the power to sue defendants in federal
district court for alleged discrimination subsequent to re-
sort to the administrative process.28 It now has jurisdiction
and authority over virtually every kind of discrimination
in employment.29 In 1991 the Court held that the statute
does not apply extraterritorially to regulate employment
practices of American employers who employ U.S. citizens
abroad.30 But Congress reversed that decision through the
Civil Rights Act of 1991.31 Although the EEOC (and the
Justice Department for the public sector) has responsi-
bility for most employment discrimination problems aris-
ing under title VII and related civil-rights legislation,
private plaintiffs have carried the primary burden of law
enforcement—particularly in the early days of litigation,
before the EEOC had authority to sue in the courts to es-
tablish violations and provide for relief.
A series of Supreme Court decisions issued in 1989, which
substantially limited the scope of title VII (discussed be-
low),32 prompted Congress to amend the Act through the
Civil Rights Act of 1991.33 Shortly after so doing, the circuit
courts of appeal split on the question of the retroactivity of
the Act to the decisions of 1989, which had been reversed
or limited.34 In 1994, however, the Supreme Court resolved
the issue, holding conclusively that ‘‘the punitive damages

202 Chapter 11
 provision of the Civil Rights Act of 1991 does not apply to
conduct occurring before November 21, 1991, the date on
which the law became effective.’’35

Proving Discrimination
The Courts have held that statistics showing the absence or
disproportionate exclusion of minority members or women
from a plant or a job classification establish a prima facie
case of discrimination.36 This puts the burden on the other
side to explain why there are so few of a group that alleges
discrimination. Statistics may be used in class actions, in
which liability is established for large numbers of people
throughout the plant or enterprise, or in individual suits,
where one or a relatively small number of workers seeks to
show discrimination.37
Probably the most important case in this field is Griggs
v. Duke Power Co.,38 in which a unanimous Supreme Court
held that it is not necessary to show an intent to discrimi-
nate in order to prove a violation of employment discrimi-
nation law. In Griggs the employer’s written examinations
and educational requirements had the effect of making it
impossible for the African-Americans in a plant to have up-
ward mobility. A disproportionate exclusion, unless justified
by a business necessity for the procedure, was found to es-
tablish a violation of law.39
Griggs, which had not been fully applied to the employ-
ment discrimination disputes in the public sector40 (or
indeed to other antidiscrimination statutes in the private
sector),41 has had enormous implications for the develop-
ment of law in this area. For instance, although title VII
allows employers to apply ‘‘bona fide occupational qualifica-
tions’’ in denying one sex access to a job, the Supreme
Court has held height and weight qualifications that dis-
proportionately exclude women from being prison guards
invalid on the ground that this allowance was meant to
be ‘‘an extremely narrow exception to’’ the statute’s broad
prohibitions against sex discrimination.42
In Diaz v. Pan American World Airlines43 the Court of Ap-
peals for the Fifth Circuit rejected the employers insistence

203 Public-Interest Labor Law

 upon employing only females as flight attendants, notwith-
standing the claim that this served the legitimate business
objective of providing psychological support for male pas-
sengers involved in the stressful experience of flight. Said
the court: ‘‘[D]iscrimination based on sex is valid only when
the essence of the business operation would be undermined
by not hiring members of one sex exclusively.’’44 One court
has held that the employment of female registered nurses
involved in the care of obstetrical patients is a bona fide
occupational qualification.45 Said the court:
Giving respect to deep-seated feeling of personal privacy involving
one’s own genital area is quite a different matter from catering to
the desire of some male airline passenger to have . . . an attractive
stewardess.46
The Court of Appeals for the Second Circuit has held
that the privacy interest of female prison inmates does
not extend to protection against being viewed while sleep-
ing by male guards so long as suitable sleepwear was pro-
vided.47 But a divided Seventh Circuit, in a case where
privacy rights were not involved, held that the employment
of female guards for female prisoners was valid because of
the authorities’ view that this was necessary to the rehabili-
tation of the female inmates, notwithstanding the absence
of objective evidence or empirical studies supporting this
proposition.48
In age discrimination cases, where the bona fide occupa-
tional qualification process is also applicable, the Court has
said the following:
The restrictive language of the statute and the consistent inter-
pretation of the administrative agencies charged with enforcing
the statute convince us that, like its Title VII counterpart, the
BFOQ exception was in fact meant to be an extremely narrow ex-
ception to the general prohibition of age discrimination. . . .49
In 1989 the Court, in Wards Cove Packing Co. v. Atonio,50
held that an employer’s business necessity burden was one
of establishing that the challenged practice ‘‘in a significant
way [serves] . . . the legitimate employment goals of the em-
ployer.’’51 The Court held that the employer’s burden of

204 Chapter 11
 proof with respect to a ‘‘legitimate business justification de-
fense’’ is one of production and not persuasion.52 Particu-
larly troubling was the Court’s view that, notwithstanding
the fact that employers would have the most access to in-
formation regarding their practices, the plaintiff, in estab-
lishing its prima facie case, was required to demonstrate
that a specific ‘‘or particular employment practice . . . [had]
created the disparate impact under attack.’’53 The Civil
Rights Act of 1991 provides that this burden need not be
met where the employer’s decision-making process is not
‘‘. . . capable of separation for analysis.’’54 The employer’s
burden is to demonstrate that the ‘‘. . . challenged practice
is job related for the position in question and consistent
with business necessity.’’55
In individual cases in which allegations of intentionally
disparate treatment are made, a prima facie case for dis-
crimination is relatively easy to establish,56 but the burden
of rebuttal for the defendant is far less burdensome than
for the defendant in a Griggs case, who must prove business
necessity.57 The Court of Appeals for the Eleventh Circuit
has held that an employer rebuttal based upon subjective
evidence imposed a burden more substantial than would
otherwise be applicable.58 The same holds true where the
prima facie case of discrimination consists of direct evi-
dence of discrimination, not an inference.59 Further, in St.
Mary’s Honor Center v. Hicks,60 the Supreme Court has held
that where the plaintiff establishes a prima facie case of dis-
crimination by the preponderance of the evidence, an em-
ployer may satisfy its burden of production by a legitimate,
nondiscriminatory reason for its action. The Court further
held that the employee always retains the burden of proof
even if the court disbelieves the employer’s proffer. Thus in
individual cases of discrimination the ultimate burden is on
the plaintiff to show that the employer-defendant’s conduct
was a ‘‘pretext’’ for discrimination.
In a second of the 1989 employment discrimination
Supreme Court decisions, Price Waterhouse v. Hopkins,61 a
divided Court62 held that an employer that has allowed a
‘‘. . . discriminatory impulse to play a motivating part in an

205 Public-Interest Labor Law

 employment decision . . .’’ must prove through a prepon-
derance of evidence that it would have made the same de-
cision in the absence of discrimination. Again, through the
Civil Rights Act of 1991, Congress reversed the Court. The
statute now allows the mixed motive only to limit the rem-
edy and not liability. Mixed motive liability may be estab-
lished through circumstantial evidence—direct evidence of
discrimination is not a requirement in such cases.63 Where
the same action would have been taken in the absence of
the impermissible motivating factor, the court may grant
declaratory relief, injunctive relief, attorney’s fees and
costs, but not damages or an order providing for admission,
reinstatement, hiring, or promotion of an employee or
applicant.64

Bona Fide Seniority Systems

Another defense against discriminatory conduct relates to
the existence of bona fide seniority systems, which if
negotiated by an employer and a union are not rendered
violative of the antidiscrimination provisions of title VII.
But what constitutes a bona fide seniority system? Initially
the appellate courts (at the level immediately below the
U.S. Supreme Court) held that the seniority systems that
were neutral and nondiscriminatory on their face violated
the statute when they carried forward the effects of past
discrimination—even discrimination that antedated the
effective date of the statute, July 2, 1965. That is, where
blacks, Mexican-Americans, or women had been locked into
low-level jobs through discriminatory hiring patterns, or
through departmental seniority systems that have made it
impossible for employees to bid for available high-level jobs
on the basis of seniority accumulated in low-level jobs, past
discrimination embodied within the present system had ef-
fectively thwarted their upward mobility.
However, in a 7–2 vote the Supreme Court held in Inter-
national Brotherhood of Teamsters v. The United States65 that
pre–July 2, 1965, conduct could not be remedied under any
circumstances and that seniority credits based on time spent
in low-level jobs during that period could not be accorded

206 Chapter 11
 to minorities or women. More significant, employees who
have been frozen into low-level jobs must establish that
they have been discriminated against as individuals even
subsequent to a finding of liability against the employer
or the labor organization for a pattern of across-the-board
discrimination. Although employees who have filed appli-
cations for vacant jobs under such circumstances are
presumed to have been discriminated against, and the de-
fendant carries the burden of establishing that there was no
discrimination, proceedings to determine whether individ-
uals are entitled to seniority and back pay before either a
judge or a specially appointed master can consume a con-
siderable amount of time. Hundreds and sometimes thou-
sands of employees or applicants may be involved.66 As a
practical matter, once liability is established in a pattern- or
practice-of-discrimination case, there is a tremendous in-
centive for the plaintiff to settle. Plaintiffs in employment-
discrimination cases do not generally have the resources
(financial and otherwise) possessed by the defendants, and
settlements all too often provide them with less than they
would be entitled to in adjudicated proceedings.
In another 1989 decision, this one dealing with senior-
ity, the Court, in an opinion authored by Justice Antonin
Scalia, held that a seniority system that was facially non-
discriminatory but that was alleged to be rooted in a
discriminatory impact attributable to intentional discrimi-
nation could not be complained of by women workers be-
cause the statutory limitations for a timely claim related to
the negotiation of the agreement itself and not its sub-
sequent application.67 Justice Marshall with whom Justice
Brennan and Justice Blackmun joined, dissented. Said the
Court:
There is no doubt, of course, that a facially discriminatory seniority
system (one that treats similarly situated employees differently)
can be challenged at any time, and that even a facially neutral sys-
tem, if it is adopted with unlawful discriminatory motive, can be
challenged within the prescribed period after adoption. But allow-
ing a facially neutral system to be challenged, and entitlements
under it to be altered, many years after its adoption would disrupt

207 Public-Interest Labor Law

 those valid reliance interests [the bona fide seniority proviso] was
meant to protect.68
But this decision was also reversed by Congress through the
Civil Rights Act of 1991 which now states that whether the
seniority system is facially discriminatory or not, it is the
‘‘application of the seniority system’’ that triggers the limi-
tations within which a timely charge must be filed.69
In a rather curious decision, not involving seniority itself,
the Court of Appeals for the Seventh Circuit has held
in EEOC v. Pipefitters Association Local 597 70 that an ‘‘. . .
asserted symmetry between employer and union [to remedy
racial harassment] is spurious . . . [because] [t]he company,
not the union, controls the workplace. . . .’’71 The court, in
an opinion authored by Judge Richard Posner, concluded
that since ‘‘[m]ost people don’t take active measures to
combat discrimination,’’ their inaction cannot be equated
with discrimination.72 The court concluded that the refusal
to pursue racial grievances constitutes a ‘‘tenuous theory
of discrimination.’’73 As the dissent noted, this opinion
appears to be incorrect as a matter of employment discrim-
ination law—particularly where ‘‘. . . the union enjoys sig-
nificant control over working conditions and has the power
to correct workplace inequities. . . .’’74

Sex Discrimination
Although the pressure for the passage of fair-employment
practices legislation emerged from the struggle for the
rights of blacks, concern with sex discrimination (which al-
most inadvertently found its way into the language of title
VII)75 has increased considerably since the late 1970s. Ex-
cept in cases involving a failure to provide equal pay for
equal work—a practice prohibited by the Equal Pay Act of
196376 —women are exclusively reliant on title VII, on state
fair-employment practices statutes (which often mirror the
federal statute),77 and on an Executive Order that not
only prohibits discrimination by government contractors
but explicitly requires affirmative action in recruitment and
promotion without the necessity of finding discrimination.78

208 Chapter 11
 Reconstruction legislation, the most prominent of which is
the Civil Rights Act of 1866,79 prohibits discrimination on
the basis of race in addition to title VII. (The impact of the
Civil Rights Act of 1866 was substantially limited by yet
another 1989 Supreme Court ruling,80 but this also was
reversed by the Civil Rights Act of 1991.)81 The significance
of this is that women, unlike blacks, must meet some of the
procedural statutory requirements contained in title VII
(e.g., the finding that the employer-defendant is involved
in interstate commerce, or the filing of an administrative
charge within 180 days) if they do not choose to rely exclu-
sively on an executive order or a state statute.82
Sex-discrimination cases present other problems not
posed by racial cases. For instance, the Supreme Court
was called upon to determine whether an all-inclusive dis-
ability benefits plan that failed to include pregnancy-related
disabilities violated the statute. A majority of the Court
answered in the negative,83 but Congress reversed this
judgment through new legislation in 1978.84 Subsequent to
the 1978 statute, the Court held that an employer’s health-
insurance plan that covered medical expenses of employ-
ees’ spouses but limited pregnancy-related expenses of male
employees’ spouses discriminated against male workers, in
violation of title VII.85
Prior to President Clinton’s election to the White House
in 1992, President George Bush vetoed family leave leg-
islation twice.86 The Family and Medical Leave Act of
1993, signed into law by President Clinton on February 5,
addresses issues that possess some relationship to antidis-
crimination law.87 It provides that employers with fifty or
more workers are obliged to allow employees to have up to
twelve weeks of unpaid, job-protected leave to take care of a
newborn or newly adopted child, to take care of a sick child
or parent, or because of an employee’s own serious health
problem.88 Under fair employment practices legislation,
frequently such leaves could be obtained only if it could
be shown that the policy was sexually discriminatory. Pro-
tection at the state level is now prevalent, with some seven-
teen states and the District of Columbia having enacted

209 Public-Interest Labor Law

 comprehensive family leave legislation that exceeds the
federal statute in some way.89
The Court has held that requiring women to make larger
pension contributions because actuarily as a group they live
longer is violative of title VII. The Court conceded that
women as a group may be subsidized without such a re-
quirement,90 but emphasized that individual women would
be discriminated against. Using the same reasoning, the
Court has held that retirement benefits offered employees
from one of a number of insurance companies requiring
sex-based differentials in contributions are unlawful when
they too are based on actuarial tables.91 However, the Court
also concluded that benefits derived from contributions
made prior to the date of the decision ( July 6, 1983) could
be calculated on the basis of the previous sex-discriminatory
insurance terms. Five years later the Court held that em-
ployer liability for pension plans offering discriminatory
payment options commences at the same date and employ-
ees who retired before July 6, 1983, are not entitled to a
readjustment benefits payment structure.92
Another major issue is that raised by ‘‘sex-plus’’ cases
(cases involving issues associated with sex). The most
prominent of these is Martin-Marietta,93 in which an
employer had refused to employ women who had pre-
school-age children but had not imposed the same condi-
tion on men. In Martin-Marietta the Supreme Court held
that the imposition of a dual standard for men and women
is discriminatory under title VII. However, disparate stan-
dards for men and women based on other considerations,
such as grooming or length of hair, have generally not
been viewed as unlawful.94 The Court of Appeals for the
Fifth Circuit held that an employer may properly require
English-speaking Mexican-Americans not to speak Spanish
in front of customers whose primary language is English,
even though there is testimony that this policy reflected the
rampant societal discrimination against Hispanics in this
country.95 This case is similar to the ‘‘sex-plus’’ cases in that
it tends to make possible harm or ostracism of one group,

210 Chapter 11
 although the policy is not based on immutable character-
istics such as race, sex, and national origin.
Two developing areas in sex-discrimination law are sexual
harassment and comparable worth. Sexual-harassment cases
involve situations where supervisors or superiors (generally
male) require sexual favors as a condition of employment
or maintain a work environment in which women are made
to feel ostracized for reasons having to do with sex. The
Supreme Court has held that title VII prohibits discrimina-
tion based upon sex which has created a hostile or abusive
work environment.96 In an opinion authored by Chief Jus-
tice (then Justice) Rehnquist, the Court stated that the ‘‘. . .
correct inquiry is whether respondent by her conduct indi-
cated that the alleged sexual advances were unwelcome, not
whether her participation in them was voluntary.’’97 Said
the Court:
While ‘‘voluntariness’’ in the sense of consent is not a defense
to such a claim, it does not follow that a complainant’s sexually
provocative speech or dress is irrelevant as a matter of law in
determining whether he or she found particular sexual advances
unwelcome. To the contrary, such evidence is obviously relevant.98
The Court also found that employers are not ‘‘always auto-
matically liable for sexual harassment by their supervisors,’’
though ‘‘absence of notice to an employer does not neces-
sarily insulate that employer from liability.’’99 The Court of
Appeals for the Ninth Circuit has held that in determining
whether the showing with regard to the severity or serious-
ness of harassing conduct is sufficiently pervasive or fre-
quent, the matter must be examined from the
. . . focus of the perspective of the victim . . . a complete under-
standing of the victim’s view requires, among other things, an
analysis of the different perspectives of men and women. Conduct
that many men consider unobjectionable may offend many women
. . . in order to shield employers from having to accommodate the
idiosyncratic concerns of the rare hyper-sensitive employee, we
hold that a female plaintiff states a prima facie case of hostile envi-
ronment sexual harassment when she alleges conduct which a
reasonable woman would consider sufficiently severe or pervasive
to alter the conditions of employment and create an abusive
working environment.100

211 Public-Interest Labor Law

 The Ninth Circuit has also held, in an opinion authored
by Judge Cynthia Hall, that while counseling may be suffi-
cient as a first resort to remedying sexual harassment, the
employer must ‘‘. . . take . . . disciplinary measures’’ against
the offender.101
The Anita Hill-Clarence Thomas hearing, relating the
latter’s appointment to the Supreme Court in October
1991, dramatized the absence of an effective remedy for
women complaining of sexual harassment who have not
been dismissed or denied an employment opportunity in
conjunction with such conduct.102 The Civil Rights Act
of 1991 moved to alter the situation by providing for com-
pensatory and punitive damages in addition to back pay,
interest on back pay, or other relief authorized by the 1964
statute but provided a cap for such recovery depending
upon the number of employees employed.103
The 1991 Amendments seem to have had an effect. Sex-
ual harassment charges filed with the EEOC have risen dra-
matically since Fiscal Year 1992, though they have remained
stable since 1995. The decisions in the federal courts of
appeal mirror this trend.104 Indeed, the Court has been
called on to establish guidelines relating to proof of dis-
crimination in this area.105 The number of sexual harass-
ment claims filed by males has also risen, beginning with 9.1
percent of all sexual harassment claims in fiscal year 1992
and ascending to 13.7 percent in fiscal year 2001. In 1998,
the Supreme Court held in Oncale v. Sunbowner Offshore
Services, Inc.,106 with Justice Scalia speaking for a unanimous
bench,107 that such a claim may be entertained when the
harasser and the harassed employee are of the same sex.
The Court noted that ‘‘harassing conduct need not be
motivated by sexual desire’’ but ‘‘general hostility’’ toward a
certain sex is sufficient.108 Anticipating the problems that
can arise out of ‘‘innocuous difference in ways men and
women routinely interact with members of the same sex
and of the opposite sex’’ in the ‘‘social context’’ relating to
such, the Court said: ‘‘A professional football player’s work-
ing environment is not severely or pervasively abusive, for

212 Chapter 11
 example, if the coach smacks him on the buttocks as he
heads onto the field—even if the same behavior would rea-
sonably be experienced by the coach’s secretary (male or
female) back at the office.’’109 This line of authority has
drawn the courts closer to the issue of discrimination based
on sexual orientation issue discussed below. The Court of
Appeals for the Ninth Circuit has held that the 1989 ruling
of the Supreme Court110 that held that women could not
be discriminated against because they did not adhere to
sexual stereotypes ‘‘applies with equal force to a man who is
discriminated against for acting too femine.’’111 In a far
reaching opinion by Judge William Fletcher for a majority
of the same Court of Appeals, the court emphasized the fact
that Oncale established the proposition that a ‘‘cause of
action could not be defeated based on the fact that [a male]
. . . was tormented by other men’’ and that discrimination
need not be made out in relation to the opposite sex, but
that it was ‘‘enough to show that he suffered discrimina-
tion in comparison to other men.’’112 The key consideration is
whether the conduct is both sexual and discriminatory.
The comparable-worth cases are the sleeping giant of sex
discrimination. Plaintiffs seek to impose liability on the basis
of discriminatory wage differentials where the work is not
equal or similar but where the wage gap between male and
female employees is discriminatory. The Supreme Court,
by a 5–4 vote, has taken a tentative step in this direction
by interdicting intentional wage discrimination.113 Noting
that plaintiffs alleged that women were not paid in accor-
dance with their job evaluations whereas men were, Justice
Brennan, writing for the majority, stated the following:
[The suit] does not require a court to make its own subjective as-
sessment of the value of male and female guard jobs, to attempt by
statistical technique or other methods to quantify the effect of sex
discrimination on the wage rates.
We do not decide in this case the precise contours of lawsuits
challenging sex discrimination in compensation under title VII. It
is sufficient to note that [the] claims of discriminatory undercom-
pensation are not barred . . . merely because [the women] do not
perform work equal to that of the male jail guards.114

213 Public-Interest Labor Law

 Finally, the Court dealt with an issue of great conse-
quence in United Auto Workers v. Johnson Controls, Inc.,115
namely whether an employer can exclude fertile female
employees from certain jobs because of its concern for the
health of the fetus that the women might conceive. The
Court held that the bias in the policy was ‘‘obvious’’ because
‘‘[f ]ertile men, but not fertile women, are given a choice as
to whether they wish to risk their reproductive health for a
particular job.’’116 The Court held that regardless of moti-
vation, where the disparate treatment was facially explicit,
the policy can only be justified if the gender-based discrim-
ination was predicated upon a bona fide occupational qual-
ification. The Court, in the majority opinion authored by
Justice Blackmun, noted that concern for a woman’s ‘‘exist-
ing or potential offspring historically has been the excuse
for denying women equal employment opportunities.’’117
Said the Court, expressing a disagreement with the concur-
ring opinion’s view that such policies could be lawful where
there were ‘‘substantial safety risks to third parties’’:
It is no more appropriate for the courts than it is for individ-
ual employers to decide whether a woman’s reproductive role
is more important to herself and her family than her economic
role. Congress has left this choice to the woman as hers to
make.118

Sexual Orientation Discrimination

Twelve states and the District of Columbia ban discrimina-
tion on the basis of sexual orientation in public and private
employment. They are: California, Connecticut, Hawaii,
Maryland, Massachusetts, Minnesota, Nevada, New Hamp-
shire, New Jersey, Rhode Island, Vermont, and Wisconsin.
Additionally, ten states prohibit such discrimination only in
the public sector. (A majority of the public sector statutes
are enacted through executive or administrative order.)
Further, at least 232 localities prohibit discrimination based
on sexual orientation.119 While legislative bills have been
introduced in Illinois, the governor has vetoed them. Prior
to the enactment of legislation prohibiting sexual orienta-
tion discrimination in California in 1992, both Governor

214 Chapter 11
 George Deukmejian and Governor Pete Wilson vetoed such
legislation.120 The Supreme Court’s decision holding that
the prohibition of private homosexual conduct between
consenting adults is unconstitutional121 will enhance the
likelihood of a federal ban against such discrimination.
In Gay Law Students Association v. Pacific Telephone and
Telegraph Co.122 the Supreme Court of California held that
homosexuality is the equivalent of political activity or affili-
ation within the meaning of that state’s labor code which
prohibits discrimination in this area. A California lower
court has held that this decision has applicability to dis-
crimination in the workplace.123 Dismissal of a homosexual
employee in California has resulted in a $5.3 million dam-
age award.124 The horror of AIDS during past decades has
created new discrimination problems for homosexuals and
is responsible for the special regulations relating to food
handling described below in connection with the Americans
with Disabilities Act of 1990.
Finally, the Court of Appeals for the Ninth Circuit has
held that the denial of security clearance through individu-
alized determinations that treat homosexual conduct, but
not heterosexual conduct, as a negative factor is unconsti-
tutional discrimination against gays.125
President Clinton’s well-publicized ‘‘Don’t Ask/Don’t
Tell’’ (DADT) policy has been upheld as constitutional by
four circuit courts of appeal.126 However, in Holmes v. Cali-
fornia National Guard,127 a California Court held that the
same policy was unconstitutional under the California Con-
stitution’s guarantee of free speech and equal protection.128

Accommodations of Religious Observances

The Court has sustained the constitutionality of title VII’s
exemption of religious organizations from the prohibition
against the discrimination in employment on the basis of
religion and held that the provision does not violate the
Establishment Clause of the First Amendment in the sense
that it would impermissibly entangle Church and State.129
The Court held that Congress could appropriately minimize
governmental interference in the decision-making process

215 Public-Interest Labor Law

 in religion. At the same time, as Judge William Fletcher has
noted, religious institutions may not shield themselves from
antidiscrimination law where their conduct is not bound up
with their religious principles.130
Another question arising under title VII relates to reli-
gious discrimination and the extent to which employees
can be required to work during a period of time when their
religion forbids work. A majority of the Supreme Court has
held that the imposition of more than a de minimis cost
upon an employer under such circumstances does not make
out a violation of title VII.131 Specifically it found that the
proviso in the 1972 amendments to title VII that requires
an employer to accommodate employees’ religious obser-
vances or practices ‘‘without undue hardship on the con-
duct of the employer’s business’’ is not violated under such
circumstances.
In a similar vein the Court concluded that a military pro-
hibition against the wearing of yarmulkes by chaplains is
constitutional,132 a determination reversed by Congress. In
an equally controversial decision, Employment Division v.
Smith,133 an opinion authored by Justice Scalia for a 6–3
majority,134 the Court concluded that a state’s denial of
unemployment compensation benefits to employees dis-
charged for ingesting peyote for sacramental purposes at a
ceremony of the Native American Church did not violate
the Free Exercise Clause of the First Amendment to the
Constitution. Studiously avoiding the point that a state’s
prohibition of the drinking of alcohol might run up against
Christian sacramental traditions relating to wine, the Court
said:
To make an individual’s obligation to obey such a law contingent
upon the law’s coincidence with his religious beliefs, except where
the State’s interest is ‘‘compelling’’—permitting him, by virtue of
his beliefs, ‘‘to become a law unto himself ’’ . . . contradicts both
constitutional tradition and common sense.135
Contrarily, the Court has held that sincerely held reli-
gious beliefs that require a worker not to work on the Sab-
bath pursuant to the beliefs of the Seventh Day Adventist
Church,136 or where the worker is engaged in similar con-

216 Chapter 11
 duct but is not a member of an established sect or
church,137 or where the beliefs which impel the worker to
refuse assignments to particular work are not held by the
church itself138 are not a basis for denying unemployment
compensation benefits under the Constitution.

Protection for Individuals with Disabilities

Similarly for two decades accommodations have been re-
quired to be made to physical and mental handicaps under
the government’s contract-compliance program, which is
administered (as are all such efforts) by the Department
of Labor’s Office of Federal Contract Compliance Programs
pursuant to the Rehabilitation Act of 1973.139 More recently
Congress enacted the Americans with Disabilities Act of
1990.140
This statute provides for both prohibitions against dis-
crimination because of disabilities in connection with pub-
lic facilities as well as in the employment relationship.
With regard to the latter, the law, which became effective in
1992, prohibits employers from discriminating against a
‘‘qualified individual with a disability.’’ An individual with
a disability is defined as one who possessed a physical or
mental impairment that substantially limits one or more
major life activities, a record of such an impairment or one
who is regarded as having such an impairment. Specifically
excluded from such a definition is homosexuality, bisex-
uality, transvestites, transsexuals, pedophiles, exhibitionists,
voyeurists, and gender identity disorders not resulting from
physical impairments. Also excluded are compulsive gam-
blers, kleptomaniacs, pyromaniacs, and those who are cur-
rently engaged in the use of illegal drugs. Employers may
hold alcoholics to the same qualifications and job perfor-
mance standards as other employees, even if their unsat-
isfactory performance is related to alcoholism.
It is unclear whether such so-called voluntary behavior
as smoking or obesity is within this statute’s definition of
disability. Similarly unresolved are issues relating to so-
called predictive disabilities, such as lower back problems
which could cause a disability in the future. An employer

217 Public-Interest Labor Law

 must make a reasonable accommodation to the disability,
although the employer need not act where an accommoda-
tion requires undue hardship, defined as significant diffi-
culty and expense.
The Court has held that the seniority system ordinarily
precludes an assignment in violation of it, unless there are
‘‘special circumstances surrounding the particular case that
demonstrates the assignment is nonetheless reasonable.’’141
In a somewhat analogous provision that requires accom-
modations unless the entity can demonstrate that making
such modifications would ‘‘fundamentally alter the nature’’
of such accommodations, the Court has held that failure to
provide a golf cart for a participant in a professional golf
tournament is unlawful discrimination because the ‘‘walk-
ing rule’’ is ‘‘not an essential attribute of the game itself.’’142
The secretary of health and human services is required
to publish a list of infectious and communicable diseases
that can be transmitted through the handling of food and
employees who have such diseases may be transferred if the
danger to public health and safety cannot be eliminated by
some other reasonable accommodation. The obvious focus
here is AIDS, even though there is no current evidence to
the effect that AIDS can be transmitted through the han-
dling of food or beverages.
In a series of decisions, the Supreme Court has applied
the statute in a cautious and sometimes restrictive matter.
Illustrative of the former is the Court’s holding that the
employer utilizes business necessity in refusing to employ
an individual who could cause harm to himself as well as
to others.143 The Court has also held that the definition
of ‘‘disability’’ must take into consideration medical or
other corrective devices that mitigate an individual’s im-
pairment.144 In an unanimous ruling the Court has held
that an individual claiming disability because of her carpal
tunel syndrome and other related impairments did not suf-
fer from a disability within the meaning of the Act, unless
the impairment limits ‘‘major life activity’’ that are ‘‘of
central importance to daily life.’’145 Said Justice O’Connor,
writing for the Court: ‘‘In order for performing manual

218 Chapter 11
 tasks to fit into [the major life activities] category—a cate-
gory that includes such basic abilities as walking, seeing, and
hearing—the manual tasks in question must be central to
daily life. If each of the tasks included in the major life
activity of performing manual tasks does not independently
qualify as a major life activity, then together they must do
so.’’146
Most recently, the Court has held that it will apply
common-law principles of control to determine whether an
individual counts toward the fifteen ‘‘employees’’ required
for the ADA to cover a particular employer.147
The remedial scheme for employment discrimination
cases set forth in both the Civil Rights Act of 1964 and the
Civil Rights Act of 1991 applies to the Americans with Dis-
abilities Act of 1990. That is to say, punitive and compensa-
tory damages are available as well as more traditional relief,
although such damages are capped. The EEOC has juris-
diction over disability claims of discrimination.
Three years before the passage of ADA statute, the Su-
preme Court held that an employee with a physical impair-
ment resulting from the contagious disease of tuberculosis
may be considered to be disabled within the meaning of the
Rehabilitation Act.148

Age Discrimination
The Age Discrimination in Employment Act of 1967,149
over which the EEOC also has jurisdiction now, prohibits
discrimination against workers between 40 and 70 on ac-
count of age. Discrimination on the basis of years of service
designed to deprive an employee of pension benefits is not
age discrimination.150 However, the denial of benefits to
workers forty and over in favor of older workers may violate
the statute.151 But, a prima facie case of discrimination can-
not be made out where the job or benefit sought by an
older worker has been received by a younger over-forty
worker.152 Either the EEOC or private plaintiffs may bring
an action for damages suffered, and for additional monies if
the violation was willful. Willful discrimination exists where
‘‘. . . the employer either knew or showed reckless disregard

219 Public-Interest Labor Law

 for the matter of whether its conduct was prohibited by the
statute—applies to all disparate treatment cases under the
ADEA. Once a ‘willful’ violation has been shown, the em-
ployee need not additionally demonstrate that the employ-
er’s conduct was outrageous, or provide direct evidence of
the employer’s motivation, or prove that age was the pre-
dominant rather than a determinative factor in the employ-
ment decision.’’153 Except for executives in high policy
positions and university faculty members (this exemption
has been phased out as of 1993), retirement programs that
force retirement before 70 are unlawful.154 The Supreme
Court has held that a provision of the Missouri Constitution
requiring appointed state judges to retire at age 70 does
not violate either the ADEA or the Equal Protection Clause
of the Constitution.155 A difficulty here is that age, like dis-
ability, may affect the ability of people to function. But
according to Business Week, ‘‘few [employers] complained
about incompetent old workers, and only a small fraction of
older people have opted to keep working anyway.’’156
A major issue in this area is whether the Griggs standard
of disparate impact liability applies.157 Six circuit courts
of appeal have held that disparate impact claims cannot
be maintained under the ADEA because (1) the statutory
language differs from Title VII and permits differentiation
based upon ‘‘reasonable factors other than age’’; (2) the
Equal Pay Act possesses similar language and disparate im-
pact claims have not been allowed there; (3) the Secretary
of Labor’s initial report that prompted the ADEA indicates
that the Act was designed to redress only ‘‘arbitrary’’ dis-
crimination; (4) the dicta of the Court suggests that dispa-
rate impact theory is not allowed.158 On the other hand,
three circuits have approved of disparate impact claims be-
cause (1) the ADEA’s purpose is the same as Title VII, in as
much as it attempts to eliminate stigmatizing stereotypes;
(2) the language differences between Title VII and the
ADEA relate to the business necessity defense and not the
Court’s general liability; (3) the Equal Pay Act defense is
not limited to intentional discrimination but is based on

220 Chapter 11
 ‘‘reasonableness’’ standard that goes beyond this standard;
(4) the Court has left the matter open.159
In yet another 1989 ruling by the high court, it was held
that although the Act allows discriminatory benefits under a
bona fide employee benefits plan unless it is a substitute for
age discrimination, a benefits scheme adopted prior to the
Act could not be used as a subterfuge by the employer try-
ing to avoid it.160 Again, Congress overturned this ruling
through a separate statute, the 1990 Older Workers Benefit
and Protection Act, which now holds that a bona fide em-
ployee benefits plan is one where the actual payment made
or cost incurred to an older worker was no less than that
made for a younger worker.161

Remedies
As noted above, the Civil Rights Act of 1991 has amended
Title VII so as to provide for capped punitive and compen-
satory damages in connection with all discrimination pro-
hibited by that statute. The Court has clarified that under
Title VII an employer need not commit egregious or outra-
geous discrimination to warrant punitive damages; rather,
such damages are available when an employer violates the
statute while perceiving a risk that its actions are illegal.162
The most formidable problem in employment discrimi-
nation cases is that of remedies. The Supreme Court held in
Albemarle Paper Co. v. Moody163 that once liability is estab-
lished by virtue of a class action or government-initiated
pattern-of-practice employment discrimination case, the
presumption is that back pay and other forms of equitable
relief are to be awarded.164 Prior to the Civil Rights Act of
1991, the courts held that punitive and apparently compen-
satory damages cannot be awarded under title VII,165 but
the Supreme Court had stated in dicta that punitive damages
are awardable under the Civil Rights Act of 1866,166 and a
number of circuit courts have upheld this.167 In California,
the legislature, overturning a contrary Supreme Court of
California ruling,168 has held that a state agency may award
both punitive and compensatory damages.169

221 Public-Interest Labor Law

 The rationale for damage awards is not simply com-
pensation but also the fact that they have a prophylactic
effect on illegal conduct and wrongdoing. Employers and
labor organizations170 confronted with employment discri-
mination litigation began to have a very serious incentive
to remedy the problem once federal courts held that class
actions on this issue involving large numbers of workers
could be maintained in federal courts and that back pay was
to be awarded. At that point defendants became quite
interested in settling litigation and obtaining waivers against
future damage claims. (The latter practice has given rise to
considerable litigation to determine whether the individuals
solicited have knowingly and voluntarily waived their right
to sue.)171
The federal and state governments have imposed such
requirements on government contracts with judicial ap-
proval.172 The Supreme Court’s important Bakke decision
indicated that some forms of race-conscious remedies for
past discrimination are appropriate, but did not say much
more.173 The Court held in the Weber case174 that volunta-
rily negotiated affirmative-action programs in the private
sector that include quotas are compatible with civil-rights
legislation.
Then in 1986, in Wygant v. Jackson Board of Education,175
the Court held 5–4 that a layoff provision in a collective
bargaining agreement not grounded in the finding of prior
discrimination that sought to maintain racial balance in the
work force was unconstitutional. Justice Powell’s opinion
seemed to focus upon the idea that loss of existing jobs,
where based upon racial considerations, was particularly
intrusive as compared to the denial of future employment
opportunities.
Then, six weeks later, the Court approved race-conscious
remedies in conjunction with title VII, holding that the
Act does not limit courts the grant of relief only to actual
victims of discrimination but rather that a defendant’s his-
tory of egregious racial discrimination and its attempt to
evade remedial orders warranted the establishment of nu-
merical goals for union membership in order to increase

222 Chapter 11
 minority membership in the union and the apprentice-
ship program.176 The Court also held that a district court
could enter a race-conscious consent decree embodying an
agreement providing for a promotion plan that benefited
minority individuals who were not actual victims of discrim-
ination.177 Subsequently the high tribunal approved a dis-
trict court order designed to remedy unconstitutional racial
discrimination that would promote one qualified black po-
lice officer for every white police officer if the work force
composition was less than 25 percent black.178
In the third of the major employment voluntary
affirmative-action cases—Johnson v. Transportation Agency,
Santa Clara County179 —the Court validated a plan making
promotions for positions within traditionally segregated
job classifications in which women had been significantly
underrepresented where the agency was authorized to
consider as one factor the sex of a qualified applicant.
The Court, Justice Brennan writing, held that a ‘‘mani-
fest imbalance’’—the test used to validate race-conscious
affirmative-action in traditionally segregated job classifica-
tion in Weber—could trigger the basis for an appropriate
sex-conscious affirmative-action plan. The Court concluded
that the prima facie standard in title VII cases was not
required in the cases involving statistical imbalance in affir-
mative action. Said the Court:
[such a standard] . . . could inappropriately create a significant
disincentive for employers to adopt an affirmative action plan. . . .
A corporation concerned with maximizing return on investment,
for instance, is hardly likely to adopt a plan if in order to do so it
must compile evidence that could be used to subject it to a color-
able Title VII suit.180
Notwithstanding the approval given to race-conscious
plans in virtually all but one of the cases noted above, in
1989 the Court held that an affirmative action program
requiring prime contractors awarded city construction
contracts to subcontract at least 30 percent of the dollar
amount of each contract to minority contractors was un-
constitutional on the ground that the city of Richmond
failed to demonstrate a compelling governmental interest

223 Public-Interest Labor Law

 justifying the plan and that it was not narrowly tailored to
remedy the effects of prior discrimination.181 On the other
hand, a year later a 5–4 majority concluded that minority
preference policies of the Federal Communications Com-
mission did not violate equal protection principles.182 De-
spite the Court’s recent decisions in higher education, the
future of affirmative action is problematical at best. Noth-
ing illustrates this more vividly than Justice (then Judge)
Thomas’ opinion in which he held an FCC policy providing
extra credit to a woman on the ground of gender to be
inconsistent with the constitutional right to equal protec-
tion under the law and was thus unconstitutional.183 Chief
Judge Mikva dissented vigorously on the ground that the
standards established were inconsistent with Metro Broad-
casting and inconsistent with the principles of deference to
Congress.184 Subsequently, in 1995, Justice Thomas’ posi-
tion was also in the majority when a divided Court made it
more difficult to establish race-conscious policies in the
context of government contracts by applying strict scrutiny
to government policies mandating such action.185

The Eleventh Amendment: Constitutional Barrier

While several federal employment laws continue to apply to
the States,186 the Court has held that the Eleventh Amend-
ment’s embodiment of sovereign immunity187 affects the
ability of state employees to vindicate their rights under
such laws.188 In the first major decision, Alden v. Maine,189
a Court divided 5–4 held that the Eleventh Amendment
and principles of state sovereignty derived from the Tenth
Amendment preclude a private suit by employees against a
State for money damages in state court where the plaintiff
relies on a federal law enacted pursuant to Congress’ power
under Article I.
In the next of these cases, Kimel v. Board of Regents,190
the Court held that Congress did not validly abrogate the
States’ immunity when it enacted the Age Discrimination in
Employment Act (ADEA). The Court held that the ADEA
was not ‘‘appropriate legislation’’ under Section Five of the
Fourteenth Amendment, and that, therefore, Congress

224 Chapter 11
 could not make States amenable to private suits under it.
The Court’s reasoning was that Congress had not compiled
a legislative history of constitutional violations by the States
that necessitated the requirements and remedies set forth
by the ADEA. Subsequently,191 the Court held that the
Americans with Disabilities Act (ADA) did not survive scru-
tiny under the Eleventh Amendment, as, again, there was
no record of state discrimination against disabled individu-
als, which would have provided evidence of constitutional
violations. This was so, in part, because any rational dis-
crimination against the disabled is constitutional. Most
recently, however, the Court held that Congress success-
fully abrogated the States’ immunity from private suits
when it enacted the Family and Medical Leave Act of 1993
(FMLA).192 Thus, state employees may sue a nonconsenting
State for money damages under the FMLA without fear that
the State will assert an Eleventh Amendment defense. The
application of these decisions to statutes like the Equal Pay
Act of 1963 and the disparate impact provisions of Title VII
of the Civil Rights Act remain unresolved.
Again, the authority of the federal government is not at
issue in these cases, but, rather, it is the ability of the federal
government to legislate rights for state employees in private
actions that is at issue. This line of authority has cast a
shadow over the rights of state employees through federal
employment legislation, which has grown substantially over
the past three decades.

Wrongful Discharge
American common law has traditionally recognized that
employment relationships are terminable at the will of
either party, absent a contractual commitment to the con-
trary.193 Several federal and state statutes referred to earlier
have limited the applicability of this doctrine, protecting
employees from discharge because of race, religion, sex,
national origin, age, or union activity. Despite these protec-
tions, employers, until very recently, had considerable free-
dom in deciding whether or not to discharge a nonunion
employee. Since the late 1970s, however, an increasing

225 Public-Interest Labor Law

 number of jurisdictions have recognized a cause of action
for wrongful discharge or termination. The state courts,
rather than the legislatures, are responsible for this devel-
opment. Representative of the reasoning that has imposed
implied contractual obligations upon employers in their
dealings with individual employees is that of the New Jersey
Supreme Court in 1985:
Our courts will not allow an employer to offer attractive induce-
ments and benefits to the work force and then withdraw them
when it chooses, no matter how sincere its belief that they are not
enforceable. . . . Job security is the assurance that one’s livelihood,
one’s family future will not be destroyed arbitrarily; it can be cut
off only ‘‘for good cause,’’ fairly determined. Hoffman-La Roche’s
commitment here was to what working men and women engaged
as their most basic advance. It was a commitment that gave workers
protection against arbitrary termination.194
A cause of action for wrongful termination does not rest
only on contractual theories. It is based on any of three
exceptions to the doctrine of employment at will:
. Discharges that are contrary to public policy—namely dismissals
instituted because the employee refuses to act unlawfully, or be-
cause the employee performs a public obligation (e.g., serving
on a jury), or in retaliation for the exercises of statutory right
(e.g., free speech).195
. Discharges that breach implied contract of employment arising
from a handbook, a policy, or some other representation.196
. Discharges that breach an implied covenant of good faith and
fair dealing.197
Through late-2002, some forty-two states and the District of
Columbia recognize a common law public policy exception
to the doctrine of employment at will,198 35 states and the
District of Columbia have held that binding contracts of
employment are implied by handbooks and other repre-
sentations,199 and 11 states have recognized an implied cov-
enant of good faith and fair dealing.200
California courts have been the most active in apply-
ing these exceptions. In Tameny v. Atlantic Richfield 201 the
California Supreme Court held that an employer ‘‘contra-
vene[d] the dictates of public policy’’ when he discharged

226 Chapter 11
 an employee for refusing to take part in a price-fixing con-
spiracy. In Pugh v. See’s Candies,202 an appellate court found
that an employer had made an implied promise not to
terminate an employee, based on the duration of the em-
ployee’s employment, his promotions and commenda-
tions, assurances he received from the employer, and the
employer’s acknowledged personnel policies.
There are a number of developments that have emerged
in the wake of the above-noted case law. The first is
demonstrated by the Supreme Court of California’s impor-
tant 1988 decision of Foley v. Interactive Data Corp.203 While
the Court approved an implied contract theory such as
that employed in Pugh, it concluded that the duty of an
employee to disclose information to the employer about
alleged embezzlement by his or her supervisor served only
a private interest of the employer and therefore was not
within the public-policy exception.204 The Court added that
a covenant of good faith and fair dealing rooted in tort
rather than contract could not be found in common law
apparently because it would permit juries to fashion exces-
sive damage awards, which would lead to uncertainty in
business relationships in a climate not conducive to sound
commercial bargains. Foley, along with a subsequent deci-
sion providing that workers’ compensation statutes preempt
some wrongful discharge causes of action based upon the
tort of intentional infliction of emotional distress,205 has
diminished the impact of the early case law.
A second area of change has been triggered by em-
ployer attempts to insert so-called at-will clauses in applica-
tion forms, a special application agreement, or the contract
of employment with incumbent employees. These at-will
clauses purport to allow employers to dismiss the worker
regardless of the employer’s conduct, or representations
that have been made to the employee in written or oral
form, implied or explicit. Sometimes the judiciary has pro-
ceeded warily in enforcing such agreements.206 The Su-
preme Court of Wyoming has established fairly rigorous
standards relating to the enforcement of a disclaimer that
an employee handbook or manual is not a contract.207

227 Public-Interest Labor Law

 In the 1990s, employers frequently modified contractual
obligations that the courts had imposed through employee
handbooks and manuals. A central question is whether the
employer may unilaterally modify a handbook which con-
stituted an implied-in-fact contract without additional con-
sideration or benefit to the employee. A sharply divided
California Supreme Court has held that as a matter of con-
tract law, an employer could modify its employee handbook
providing for job security in the absence of a ‘‘change that
will materially affect [the employer’s] . . . business plan
achievement’’208 —set forth in the contract itself as a basis
for modification. The California Supreme Court held that
an ‘‘employer may terminate a written employment security
policy that contains a specified condition, if the condition
is one of indefinite duration and the employer makes the
change after reasonable time, on reasonable notice, and
without interfering with the employees’ vested benefits.’’209
Chief Justice Ronald M. George, in dissent, stated that the
required condition had not been met and that therefore
the employer could not make modifications without pro-
viding additional consideration. Moreover, the dissent con-
cluded that any modification must provide additional
benefits to the employees.210
Fourteen jurisdictions permit unilateral modifications
of handbooks without additional consideration—though of
the fourteen, only ten jurisdictions have resolved the matter
through their highest courts.211 Five jurisdictions do not
permit modification—four of the jurisdictions speaking
through their highest courts.212
Employers have been emboldened and required both
applicants and employees to enter into arbitration agree-
ments to resolve the propriety of dismissals by the Supreme
Court’s Circuit City 213 decision allowing for the enforcement
of such clauses in the discrimination area so as to avoid
jury trials that could result in punitive and compensatory
damages.
A third development in this area relates to the relation-
ship between wrongful-discharge litigation and grievance-
arbitration machinery in collective bargaining agreements.

228 Chapter 11
 In 1988 a unanimous Supreme Court—having previously
held that wrongful discharge actions were preempted where
they involved an application or an interpretation of a col-
lective bargaining agreement214 —held that even where the
same factual considerations would be addressed in a griev-
ance under the agreement, as well as by the court consider-
ing a retaliatory wrongful discharge claim predicated upon
public policy, a state court could retain jurisdiction over the
discharge claim ‘‘. . . when adjudication of . . . [substantive
rights a state provides to workers] does not depend upon
the interpretation of such agreements.’’215 This is an area of
law in which there will be disputes and litigation.
Finally, there has been much discussion about legislation
that would provide the employee with more access to a
tribunal and, since punitive as well as compensatory dam-
ages are available in the public policy and some of the con-
tract cases, would limit the employer’s liability. Some states
have enacted legislation protecting ‘‘whistle-blowers,’’216
but—with the arguable exception of Montana217 —no states
have enacted comprehensive legislation dealing with unfair
dismissal.218

Drug and Alcohol Problems

Employee privacy is protected by the Constitutions of both
Alaska219 and California.220 In California protection is
afforded whether governmental conduct is involved or not.
Additionally ‘‘[t]he common law recognizes various causes
of action relating to the right to privacy. One of those is the
tort of intrusion on seclusion.’’221
The U.S. Supreme Court has held that a standard of
reasonableness governs public employer intrusions on
constitutionally protected policy interests of government
employees but, in so holding, avoided the question of
whether individualized suspicion of a particular employee is
an essential element of the standard of reasonableness un-
der the Fourth Amendment’s protection against unreason-
able searches and seizures.222 A balancing process has
evolved in the Fourth Amendment cases similar in some

229 Public-Interest Labor Law

 respects to the employee privacy cases that have taken place
in the wrongful discharge context.
The Supreme Court has held that drug testing of railway
workers, so as to permit an examination of employee be-
havior subsequent to certain train accidents in which they
were involved, constitutes a search within the meaning of
the Fourth Amendment that is reasonable without the need
for a warrant.223 Said Justice Anthony Kennedy writing for
the majority of the Court: ‘‘A requirement of particularized
suspicion of drug or alcohol use would seriously impede an
employer’s ability to obtain this information, despite its ob-
vious importance.’’224
In a more far-reaching holding, National Treasure Employ-
ees Union v. Von Raab,225 the Court held that the Fourth
Amendment was not violated by the U.S. Customs Service
where it required a urinalysis test from employees who
sought transfer or promotion to certain positions. Accord-
ingly these cases have established the proposition that drug
testing performed by private employers under compulsion
of governmental regulation subjects such conduct to the
Fourth Amendment’s scrutiny. Second, the collection and
testing of urine constitutes an intrusion upon privacy that
may be balanced against governmental needs that under
certain circumstances do not require a warrant.
In light of Von Raab—which did not involve random test-
ing that ‘‘. . . may increase employee anxiety and the inva-
sion of subjective expectations of privacy’’226 —where there
was no showing of a drug problem among the employees
affected by testing, the Court of Appeals for the Ninth Cir-
cuit has had no difficulty sustaining random unannounced
drug testing of airline employees, where ‘‘. . . a number of
pilots and other airline crew members have received treat-
ment for cocaine overdoses or addictions’’227 and there
were drug problems in connection with other employees as
well as drugs present in the bodies of pilots in two airplane
crashes. The same court has applied this test and upheld
random testing involving commercial truck drivers in
light of the ‘‘. . . concern for safety and deterrence [which
exceeds] the governmental interests found compelling in

230 Chapter 11
 . . . earlier cases.’’228 A divided Court of Appeals for the
Seventh Circuit has held that an Illinois racing board rule
requiring jockeys and other participants in horse races
in Illinois to submit to random drug testing which is not
founded on any individualized suspicion of wrongdoing, is
constitutional.229 In a most far-reaching decision the Court
of Appeals for the District of Columbia has upheld a man-
datory drug urinalysis program for all Department of Jus-
tice applicants tentatively selected for employment.230
In a second case involving the railroad industry, the
Court has held that an employer’s claim that the collective
bargaining agreement gives it discretion to make changes
in working conditions without prior negotiations, where
the changes involved the administration of drug tests, con-
stituted a minor dispute that is subject to the compulsory
and binding arbitration provisions of the Railway Labor
Act and thus made it impossible for the union to bargain
initially about the matter or to bring economic pressure
to bear as it would in connection with a so-called ‘‘major’’
dispute.231 Conversely, however, in Johnson-Bateman Co.,232
the National Labor Relations Board held that drug and al-
cohol testing of incumbent employees is a mandatory sub-
ject of bargaining within the meaning of the Act. The Board
has declined to oblige the employer to bargain about the
testing of applicants,233 notwithstanding the fact that it
must bargain with regard to antidiscrimination clauses and
related conditions of employment and their relationship to
applicants.234
In an important decision in which the drug and alcohol
cases have been cited, the Board has held that an employer
is mandated to bargain with a union about a no-smoking
ban.235 The Board has concluded that a ban on smoking at
an employer’s premises during working hours is a manda-
tory subject of bargaining, regardless of whether the bar-
gaining representative seeks to obtain such a ban or to limit
it or eliminate it. Once the collective bargaining agree-
ment is negotiated, the courts of appeals are divided on the
question of whether a union may obtain a preliminary in-
junction against the unilateral imposition of an employer’s

231 Public-Interest Labor Law

 drug and alcohol testing program pending arbitration of
the union’s grievance.236

Conclusion
Pensions, health and safety, employment discrimination,
drug and alcohol testing, and wrongful-discharge litigation
have become the new frontier of labor law. Unlike the law
relating to labor-management relations (principally the Na-
tional Labor Relations Act), they directly affect the substan-
tive terms of the employment relationship. More legislation
and case law in this area promises to be with us in the
future. It is possible that it already dwarfs more traditional
labor law as the twenty-first century unfolds.

232 Chapter 11
 12
Conclusion

The system of American labor law and industrial relations

has strengths and deficiencies. Because American society
is litigious and dynamic, and because labor law will evolve
and change in the coming years, the deficiencies may
receive greater attention. The area of public-interest labor
law will continue to grow rapidly. It may be that the legal
struggle against discrimination will convince the courts and
legislatures that protection against arbitrary treatment by
employers for all workers is good policy and good law.1
The difficulty thus far has been that neither labor nor busi-
ness has had an adequate incentive to promote legal safe-
guards for unorganized workers who are not protected
by union-negotiated collective bargaining agreements. The
developments alluded to in Chapter 11 which provide new
protections for individual employees by virtue of both com-
mon law and statutes, promised to fashion new innovations
in the workplace, notwithstanding the isolated indifference
of the organized sector of the economy.
More changes may result from the willingness of unions
to accept seats on corporate boards, as has been done in the
automobile industry. This is bound to promote reexami-
nation of the adversary-relationship model so accepted,
until recently, by labor and management in this country—
 the view expressed by the Supreme Court in Insurance Agents
that collective bargaining is not some ‘‘academic search for
truth.’’2 The current economic climate, inextricably linked
as it is to the scarcity of and uncertainty about critical
resources, has focused American attention on means of
achieving cooperation as an adjunct to, if not a substitute
for, conflict. The success of Germany and Japan in this area
may be of interest to Americans.
The search for cooperation will bring attempts to apply
the experience gained in grievance arbitration to interest
disputes about new contract terms. The controversy about
public-sector striking has encouraged such efforts. It is quite
possible that the developments in the public sector will have
substantial impact on the private sector.
Finally, one must take note of an important matter that
has not been discussed in this book at all: incomes policy.
The decentralized nature of the American system makes
any incomes policy, voluntary or otherwise, difficult to ad-
minister. It would be particularly arduous to implement
such policies through national legislation, for local unions
are in the cockpit in most wage negotiations. Although
a number of industrial unions negotiate national pacts,
decentralization places incomes policy in a totally different
perspective than in the European countries, which suffer
from ‘‘wage drift’’ (the increase of payments above na-
tionally negotiated norms). It is difficult enough for the
international unions of the United States (let alone the
AFL-CIO, which has been the principal party to debates and
discussions on the subject since the early 1970s) to deliver
any bargain or social contract, because of their remoteness
from wage negotiations. Moreover the decline of unions
means that a wage explosion is not an issue as of this writ-
ing. But this is an issue that will not go away. Productivity
problems, increased labor costs, inflation, and the need to
be competitive internationally mean that proposals to dees-
calate leapfrogging wage demand—particularly in declining
industries—will continue to be made.3

234 Chapter 12
 The purpose here has been to describe the labor law
system briefly and clearly, with some references to the pat-
tern of industrial relations. One hopes that this will fur-
ther understanding among workers, unions, business, and
government, and that this in turn will promote—in the
spirit of the law—a working environment in which the
standard of living will be improved and industrial peace
fostered.

235 Conclusion
Notes

Preface to Fourth Edition

1. Lawrence v. Texas, ___ U.S. ___, 123 S.Ct. 2472 (2003).
2. Brown v. Professional Football, 518 U.S. 231 (1996). Cf. William
B. Gould IV, ‘‘Baseball and Globalization: The Game Played and
Heard and Watched ‘Round the World (with Apologies to Soccer
and Bobby Thomson),’’ 8 Ind. J. Global Legal Stud. 85 (2000).
3. Robert J. Flanagan and William B. Gould IV, eds., International
Labor Standards: Globalization, Trade, and Public Policy (Stanford
University Press, 2003).
4. Doe I v. Unocal, Nos. 00-56603 et al., 2002 WL 31063976 (9th Cir.
Sept. 18, 2002), vacated by and rehearing en banc granted by 2003 WL
359787 (9th Cir. Feb. 14, 2003).

Preface to Third Edition

1. The Association was successful in obtaining relief against collu-
sion engaged in by the owners toward player free agency for the
1985, 1986, and 1987 championship season. See Major League Base-
ball Players Association and the Twenty-six Major League Baseball Clubs
Panel Decision No. 76 (Roberts, Chairman, September 21, 1987);
Major League Baseball Players Association and the 26 Major League
Baseball Clubs, Grievance No. 87-3 (Nicolau, Chairman, August 31,
1988); Major League Baseball Players Association and the Twenty-Six
Major League Clubs, Grievance 88-1 (Nicolau, Chairman, July 18,
1990).
 2. The football owners were found by the National Labor Rela-
tions Board to have engaged in illegal conduct during the 1987
strike. National Football League Management Council, 309 NLRB 78
(1992).
3. See Oates, ‘‘NFL’s Free Agency System Rejected in Antitrust
Case,’’ Los Angeles Times, September 11, 1992, p. A1. Cf. McNeil v.
The National Football League, 764 F.Supp. 1351 (D. Minn. 1991);
Jackson v. National Football League, 802 F.Supp. 226 (D. Minn. 1992).

4. 309 NLRB 990 (1992).

Preface
1. W. Gould, ‘‘Mistaken Opposition to the N.L.R.B.,’’ The New York
Times, June 20, 1985, at 31.

2. This took the form of an AFL-CIO report, ‘‘The Changing Situ-

ation of Workers and Their Unions: A Report by the AFL-CIO
Committee on the Evolution of Work’’ (February 1985). See W.
Gould, ‘‘Labor Takes Look at Itself, Finds Unsettling Things,’’ Los
Angeles Times, March 29, 1985, pt. 11, at 7.

Chapter 1
1. American Can Co., 13 NLRB 1252 (1939).

2. Edw. 7, ch. 47.

3. Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1932), 29 USC §§101–
15 (2000).
4. T. C. Johnston, Collective Bargaining in Sweden (1962).

5. Works Constitution Act of 1952, Bundesgesetzblatt, Teil 1, 681.

6. In 2001, the percentage of union members in the workforce was
13.5 percent in the United States; 20.7 percent in Japan; 24.5 per-
cent in Australia; 29.1 percent in the United Kingdom; and 32.2
percent in Canada. See generally J. Dunlop and W. Galenson,
Labor in the Twentieth Century (1978). The decline has been going
on for some period of time. See, for instance, W. Serrin, ‘‘Union
Membership Falls Sharply; Decline Expected to Be Permanent,’’
The New York Times, May 31, 1983, at 1.

7. L. Sayles and G. Strauss, The Local Union (1953).

8. S. Perlman, A Theory of Labor Movement (1928).
9. Tameny v. The Atlantic Richfield Co., 27 Cal. 3d 167 (1980).

238 Notes to Pages xiv–6

 10. See generally ‘‘Protecting At Will Employees against Wrongful
Discharge: The Duty to Terminate Only in Good Faith’’ (com-
ment), 98 Harv. L. Rev. 1816 (1980); ‘‘Implied Contract Rights to
Job Security’’ (note), 26 Stan. L. Rev. 335 (1974), C. Summers,
‘‘Individual Protection against Unjust Dismissal: Time for a Stat-
ute,’’ 62 Va. L. Rev. 481 (1976).
11. Fourteen states have plant-closing legislation: California, Con-
necticut, Hawaii, Kansas, Maine, Maryland, Massachusetts, Michi-
gan, Minnesota, Montana, Oregon, South Carolina, Tennessee,
and Wisconsin. ‘‘Plant Closings,’’ 9A IERM (BNA) §§507:101–119
( June 2002).

12. See generally W. Gould, Japan’s Reshaping of American Labor

Law, at 94–116 (1984).
13. See Sixty-fourth Annual Report of NLRB, Fiscal Year 1999,
at 163. Figures for the years 1960–76 are collected in H.R. Rep.
No. 95-637, 95th Cong., 1st Sess. 26 (1977) (chart 3). A four-year
decline in the case load now appears to have reversed. See Shinoff,
‘‘The NLRB Tests Labor and Vice versa: Union Organizing and
Federal Board’s Case Load Both Increasing,’’ San Francisco Exam-
iner, December 12, 1985, at A-7.

Chapter 2
1. Commonwealth v. Pullis (The Philadelphia Cordwainer’s Case),
Mayor’s Court of Philadelphia (1806). See J. Commons, Documen-
tary History of American Society 59 (1910).
2. 45 Mass. (4 Met.) 111 (1842).

3. Id. at 129.
4. A. Cox, D. Bok, and R. Gorman, Cases and Materials on Labor Law
(85h ed., 1976). The point has been made that not only was the
law repressive but that union conduct was subdued by the union
leadership’s view of the law. See W. Forbath, Law and the Shaping of
the American Labor Movement (1991).
5. Vegelahn v. Gunther, 167 Mass. 92, 44 N.E. 1077 (1896).

6. 44 N.E. at 1080.
7. Id.
8. Id. at 1081.

9. A. Rees, The Economics of Trade Unions (3d ed., 1989).

239 Notes to Pages 6–13

 10. 26 Stat. 209 (1890), as amended 15 USC §1–7 (2000).

11. 208 U.S. 274 (1908).

12. Id. at 301.
13. A. Mason, Organized Labor and the Law (1969), p. 170.
14. Clayton Antitrust Act 6, 38 Stat. 730 (1914), as amended 15
USC §15, 17, 26 (2000), 29 USC §52 (2000).
15. S. Gompers, ‘‘The Charter of Industrial Freedom-Labor Provi-
sions of the Clayton Anti-trust Law,’’ 21 Federationist 971 (1914).

16. 254 U.S. 443 (1921).

17. Id. at 469.
18. Id. at 470.

19. Id.
20. Id. at 471.
21. Id. at 477, 478.

22. Id. at 481 (Brandeis, J. dissenting).

23. Id. at 482 (Brandeis, J. dissenting).
24. Id. at 484 (Brandeis, J. dissenting).

25. Id. at 488 (Brandeis, J. dissenting).

26. Id. (Brandeis, J. dissenting).
27. 268 U.S. 295 (1925).

28. F. Frankfurter and N. Greene, The Labor Injunction (1930),

p. 201.
29. Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 USC §101–15
(2000).

30. Norris-LaGuardia 13(c): ‘‘The term ‘labor dispute’ includes

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 relation of employer and
employee.’’
31. 312 U.S. 219, 231 (1941).

240 Notes to Pages 13–25

 32. Id. at 235.

33. Id. at 232.

Chapter 3
1. 29 USC §20 et seq. (2000). As in Jones & Laughlin, with regard
to the NLRA the Court upheld the constitutionality of the FLSA
in United States v. Darby, 312 U.S. 100 (1941). Initially, however, the
Court held that the FLSA could not be applied constitutionally to
state and local governments in National League of Cities v. Usery, 426
U.S. 833 (1976). But the Court reversed that decision by 5–4 vote
in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985). But see Chapter 11, notes 187–192 for enforceability of the
FLSA against states.

2. While the law provides for a special subminimum rate for teen-
agers, it appears that a number of employers in industries, like fast-
food restaurants, which traditionally recruit young employees, are
not able to attract acceptable workers at such a rate. Uchilles,
‘‘Employers Shun Sub-minimum Range,’’ The New York Times, De-
cember 31, 1990, p. 1. S. Nasar, ‘‘Forging New Insight on Minimum
Wages and Jobs,’’ The New York Times, June 29, 1992, p. C1, col. 3.
See L. Katz and A. Krueger, ‘‘The Effect of the Minimum Wage on
the Fast-Food Industry,’’ 46 Indus. Lab. Rel. Rev. 6 (1992).
3. 40 USC §276a (2000).

4. 41 USC §35–45 (2000).

5. For recent articles on wage violations, see generally ‘‘Analysis:
Attorneys Explore Reasons for Surge in Wage and Hour Class
Lawsuits, Offer Strategies.’’ 171 LRRM 272 (2003); Steven Green-
house, ‘‘Suits Say Wal-Mart Forces Workers to Toil Off the Clock,’’
The New York Times, June 25, 2002, at A1; Michael Orey, ‘‘Lawsuits
Abound from Workers Seeking Overtime Pay,’’ Wall Street Journal,
May 30, 2002, at B1; Steven Greenhouse, ‘‘U.S. Jury Cites Unpaid
Work at Wal-Mart,’’ The New York Times, Dec. 20, 2002, at A20.
6. In the 108th Congress, legislation was introduced in both the
House of Representatives and the Senate to amend the Fair Labor
Standards Act to provide a voluntary program of compensatory
time in lieu of direct compensation for hours of overtime worked.
In the House, Representative Judy Biggert (R-IL) sponsored H.R.
1119, the Family Time Flexibility Act. Similar legislation in the
Senate, S.B. 317, the Family Time and Workplace Flexibility Act,
which Senator Judd Gregg (R-NH) introduced, has yet to receive
a hearing in the Committee on Health, Education, Labor and
Pensions.

241 Notes to Pages 25–27

 7. See Sheryl Gay Stolberg, ‘‘Compensatory Time Bill Retracted in
House,’’ The New York Times, June 6, 2003, at A22.
8. The substance of this proposal is from a Department of Labor
report. See United States Department of Labor, Employment
Standards Administration, Wage and Hour Division, ‘‘Defining
and Delimiting the Exemptions for Executive, Administrative, Pro-
fessional, Outside Sales, and Computer Employees; Proposed Rule,
29 C.F.R. Part 541’’ (2003). The Economic Policy Institute has
prepared a nonpartisan review of this proposal, which opponents
often cite as evidence of its potential to harm millions of workers.
See Ross Eisenbrey and Jared Bernstein, ‘‘Eliminating the Right to
Overtime Pay: Department of Labor Proposal Means Lower Pay,
Longer Hours for Millions of Workers,’’ Economic Policy Institute
Briefing Paper, June 26, 2003, available at http://www.opinet.org/
content.cfm/briefingpapers_flsa_ jun03 (last accessed Oct. 10,
2003).
9. See Carl Hulse, ‘‘House Defeats Democrats’ Bid to Thwart New
Overtime Rules,’’ The New York Times, July 11, 2003, at A11.

10. See Sheryl Gay Stolberg, ‘‘Senate Democrats, with Republican

Help, Block Administration’s New Overtime Rules,’’ The New York
Times, Sept. 11, 2003, at A17; Sheryl Gay Stolberg, ‘‘House Rebuffs
the White House over Rules to Limit Overtime Pay,’’ The New York
Times, Oct. 3, 2003, at A22 (noting, however, that the nonbinding
vote is merely symbolic because whether the overtime provision is
ultimately included in the labor spending bill depends on action
by the House and Senate conferees).
11. States with minimum wage rates in excess of the federal rate
are: Alaska, California, Connecticut, Delaware, District of Colum-
bia, Hawaii, Maine, Massachusetts, Oregon, Rhode Island, Ver-
mont, and Washington. Below the federal rate are Kansas ($2.65),
New Mexico ($4.25), and Ohio ($3.35). Alabama, Arizona, Florida,
Louisiana, Mississippi, South Carolina, and Tennessee have no
minimum wage at all.
Additionally, 112 local governments have living-wage ordinances
that tie wage and/or benefits to government contract eligibility or
government financial aid. These localities include St. Louis, St.
Paul, Minneapolis, Boston, Oakland, Denver, Chicago, New Or-
leans, and New York City.
12. The following states have enacted legislation requiring that
terminated employees receive accrued but unused vacation pay:
California, Colorado, Hawaii (public employees), Kentucky, Loui-
siana, Maine, Massachusetts, Michigan, Minnesota, New Hamp-

242 Notes to Pages 27–28

 shire, North Dakota, Ohio (state employees), Rhode Island, South
Carolina, Tennessee, Utah (state employees), and West Virginia.
The North Carolina Wage and Hour Office has similarly inter-
preted its statute. In addition, several states protect employee
entitlement to vacation in the event that they are required to per-
form military or jury duty; see, for example, Alabama and Arizona.
Though not explicitly authorized by statute, courts in Indiana and
the District of Columbia require that terminated employees re-
ceive accrued but unused vacation pay.
13. 44 Stat. 577 (1926), as amended 45 USC §151 et seq. (2000).
14. 48 Stat. 195 (1933).

15. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
16. 301 U.S. 1 (1937). For an excellent treatment of the early de-
velopment of the NLRB, see J. Gross, The Making of the National
Labor Relations Board: A Study in Economics, Politics and the Law. vol. 1
(1974).
17. W. Galenson, The CIO Challenge to the AFL (1960).
18. L. Keyserling, ‘‘The Wagner Act: Its Origin and Current Sig-
nificance,’’ 29 Geo. Wash. L. Rev. 199 (1960).
19. Textile Workers’ Union v. Lincoln Mills, 353 U.S. 448 (1957).
20. United Steelworkers v. American Manufacturing Co., 363 U.S. 564
(1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.
574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363
U.S. 593 (1960); W. Gould, ‘‘On Labor Injunctions, Unions, and
the Judges: The Boys Market Case,’’ 1970 S.Ct. Rev. 215; B. Aaron.
‘‘Arbitration in the Federal Courts,’’ 9 UCLA L. Rev. 360 (1962).
W. Gould, ‘‘Judicial Review of Labor Arbitration Awards—Thirty
Years of the Steelworkers Trilogy: The Aftermath of AT&T and
Misco,’’ 64 Notre Dame L. Rev. 464 (1989). The courts have not
given the enforcement of labor contracts extraterritorial scope.
Labor Union of Pico Korea Ltd. v. Pico Products, Inc., 968 F.2d 191 (2d
Cir. 1992).
21. NLRB v. United Food and Commercial Workers Union, Local 23, 484
U.S. 112 (1987). The Court speaking through Justice Brennan re-
ferred to the General Counsel’s ‘‘concededly unreviewable discre-
tion to file a complaint . . .’’ and held that any General Counsel
function that can be characterized as ‘‘prosecutorial’’ is not subject
to review by any other entity under the Act. See also NLRB v. Sears,
Roebuck & Co., 421 U.S. 132 (1975).

243 Notes to Pages 28–32

 22. Section 8: ‘‘The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several States,
and with the Indian Tribes. . . .’’
23. The occupation-of-the-field test is vividly exemplified in
Oregon–Washington Railroad & Nav. Co. v. Washington, 270 U.S. 87
(1926). In this case the Court struck down the Washington plant-
quarantine regulation. Congress had precluded state action be-
cause a previous congressional statute on the same subject was of
such immensity as to indicate that Congress intended to occupy
the field. Cf. Mintz v. Baldwin, 289 U.S. 346 (1933), which upheld a
New York statute on the grounds that congressional legislation was
specific as to ground that it would not cover.
24. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245
(1959).

25. But there are exceptions: (1) ‘‘It is true that we have allowed
the States to grant compensation for the consequences, as defined
by the traditional law of torts, of conduct marked by violence
and imminent threats to the public order . . .’’; International Union,
United Automobile, Aircraft and Agricultural Implement Workers, etc. v.
Russell, 356 U.S. 634 (1958); (2) United Construction Workers v. La-
burnum Const. Corp., 347 U.S. 656 (1954); (3) We have also allowed
the states to enjoin such conduct. State jurisdiction has prevailed
in these situations because the compelling state interest, in the
scheme of our federalism, in the maintenance of domestic peace is
not overridden to the absence of clearly expressed congressional
direction. We recognize the opinion in United Construction Workers,
etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 835, 98 L.
Ed. 1025, found support in the fact that the state remedy had no
federal counterpart. But the decision was determined, as is dem-
onstrated by the question to which review was restricted, by the
‘‘type of conduct’’ involved, that is, by ‘‘intimidation and threats of
violence.’’ Id. at 247–48.
26. For example, Metropolitan Life Insurance Co. v. Massachusetts,
471 U.S. 724 (1985); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S.
1 (1987); New York Telephone Co. v. New York State Dept of Labor, 440
U.S. 519 (1979); Amalgamated Association of Street, Electric Railway &
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971); International
Association of Machinists v. Gonzales, 356 U.S. 617 (1958); But see
Lodge 76, International Association of Machinists v. Wisconsin Employ-
ment Relations Commission, 427 U.S. 132 (1976). In Golden State
Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986), the Court
held that the refusal to renew a corporation’s taxicab franchise
after the company’s drivers went on strike was a policy inconsistent

244 Notes to Pages 32–33

 with the federal Act inasmuch as ‘‘. . . the bargaining process was
thwarted when the city in effect imposed a positive durational limit
on the exercise of economic self-help.’’ Id. at 615. Indeed, because
a 6–3 majority of the Court concluded that the state’s action
was ‘‘akin to a rule that denies either sovereign the authority to
abridge a personal liberty,’’ the city was suable for compensatory
damages for its conduct. Golden State Transit Corp. v. City of Los
Angeles, 493 U.S. 103 (1989). The theory of Golden State has been
deemed inapplicable to the regulation of pollutants coincidental
to a strike. International Paper Co. v. Town of Jay, 928 F.2d 480 (1st
Cir. 1991).

27. Linn v. Plant Guard Workers, 383 U.S. 53 (1966).

28. Farmer v. United Brotherhood of Carpenters, 430 U.S. 290 (1977).
29. Sears, Roebuck & Co. v. San Diego County District Council of Car-
penters, 436 U.S. 180 (1978).
30. Brown v. Hotel Employees, Local 54, 468 U.S. 491 (1984). Al-
though the state courts are not deprived of jurisdiction where
arbitration clauses in labor contracts are at issue, the federal labor
law of contract preempts tort law based upon a violation of the
collective agreement if resolution of the claim is dependent upon
the meaning of a collective bargaining agreement. Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202 (1985). In Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399 (1988), a unanimous Court, speaking
through Justice Stevens, held that an employee covered by a col-
lective bargaining agreement and a just cause clause relating to
discharge could nonetheless enforce her state law remedy for
retaliatory discharge: ‘‘In other words, even if dispute resolution
pursuant to a collective-bargaining agreement, on the one hand,
and state law, on the other, would require addressing precisely the
same set of facts, as long as the state-law claim can be resolved
without interpreting the agreement itself, the claim is ‘indepen-
dent’ of the agreement for section 301 pre-emption purposes.’’ A
complaint filed in state court pleading a breach of a contract of
employment guaranteeing continued employment is not necessar-
ily preempted by virtue of the defendant’s assertion that the inter-
pretation of the collective bargaining agreement is required to
resolve the controversy and therefore is not removable to fed-
eral court. Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Said the
Court: ‘‘. . . individual employment contracts are not inevitably
superseded by any subsequent collective agreement covering an
individual employee, and claims based upon them may arise under
state law.’’ Id. at 396. Other state law tort claims attempting to im-
pose a duty of care upon trade unions that administer collective

245 Notes to Pages 33–34

 bargaining agreements have been regarded as preempted. Inter-
national Brotherhood of Electrical Workers, AFL-CIO v. Hechler, 481 U.S.
851 (1987); United Steelworkers of America v. Rawson, 495 U.S. 362
(1990). However, a preemption argument entered against an
employee’s claim for intentional infliction of emotional distress
arising out of an employer’s alleged retaliation for reporting of
nuclear safety violations is not preempted by federal whistleblow-
ing legislation. English v. General Electric Co., 496 U.S. 72 (1990).
Similarly, a joint refusal to accept a truck that was allegedly over-
loaded was not concerted action within the meaning of Section 7
and, therefore, a claim for wrongful discharge was not subject to
Garmon preemption. Williams v. Watkins Motor Lines, Inc., 310 F.3d
170 (8th Cir. 2002). See also In re Bentz Metal Products Co., 253 F.3d
283 (7th Cir. 2001); Kimbro v. Pepsico, 215 F.3d 723 (7th Cir. 2000);
Niehaus v. Greyhound Lines, 173 F.3d 1207 (9th Cir. 1999); Foy v.
Pratt & Whitney Group, 127 F.3d 229 (2d Cir. 1997); Albertson’s v.
Carrigan, 982 F.2d 1478 (10th Cir. 1993); Barbieri v. United Tech-
nologies Corp., 771 A.2d 915 (Conn. 2001). Compare Aguilera v. Pir-
elli Armstrong Tire, 223 F.3d 1010 (9th Cir. 2000).
31. See notes 23, 25, and 26 supra and note 32 infra.
32. See Building and Construction Trades Council v. Associated Build-
ing and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218
(1993). See also Associated Builders v. Baca, 769 F.Supp. 1537 (N.D.
Cal. 1991). In both of these cases state policies were designed
to promote a master labor agreement between the state and a
council of construction unions. In the second case a prevailing
wages local ordinance was deemed to be preempted because of its
intrusiveness upon the bargaining process. But see Dillingham Con-
struction N.A., Inc. v. County of Sonoma, 190 F.3d 1034 (9th Cir.
1999), where the Ninth Circuit held that the California prevailing
wage law requiring prevailing wages to apprenticeship employees
was not preempted. Accord Roundout Electric, Inc. v. NYS Dept. of
Labor, 335 F.3d 162 (2d Cir. 2003). The logic of the Supreme
Court’s holding has been held applicable to other project labor
agreements in Associated General Contractors v. Metropolitan Water
District, 159 F.3d 1178 (9th Cir. 1998) and in Colfax Corp v. Illinois
State Toll Highway Authority, 79 F.3d 631 (7th Cir. 1996). Cf. Wiscon-
sin Department of Industry, Labor and Human Relations v. Gould, Inc.,
475 U.S. 282 (1986); New England Health Care Employees Union v.
Rowland, 204 F. Supp. 2d 336 (D. Conn. 2002); Associated Builders
& Contractors of Rhode Island, Inc. v. City of Providence, 108 F.Supp.
2d 73 (D.R.I. 2000), both distinguishing the Court’s Boston Harbor
anti-preemption holding. As with the controversy over union

246 Notes to Page 34

 expenditures for political purposes, President Bush’s attempt to
exclude unionized contractors from federal projects was reversed
by President Clinton. See Kelly, ‘‘President Moves in Favor of La-
bor,’’ The New York Times, February 3, 1993, at A12. The second
President Bush then reversed President Clinton’s reversal of the
first President Bush, and this was upheld as constitutional. Building
& Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C. Cir.
2002).

33. Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957), Polish
National Alliance v. NLRB, 322 U.S. 643 (1944). In 1983 the Court
adopted a strong preemption stand when concluding that a super-
visor could not sue a union for alleged interference with employ-
ment because the state court would have to decide whether the
union conduct was coercive or noncoercive. Local 926, Operating
Engineers v. Jones, 440 U.S. 669 (1983).
34. ‘‘The Board, in its discretion, may, by rule of decision or by
published rules adopted pursuant to the Administrative Procedure
Act, decline to assert jurisdiction over any labor dispute involving
any class or category of employers, where, in the opinion of the
Board, the effect of such labor dispute on commerce is not suffi-
ciently substantial to warrant the exercise of its jurisdiction: pro-
vided, that the Board shall not decline to assert jurisdiction over
any labor dispute over which it would assert jurisdiction under
the standards prevailing upon August 1, 1959.’’ NLRA 14(c)(1).
29 USC §164(c)(1) (2000). Though it has been argued by some
that freezing the Board’s jurisdictional yardstick is a major factor
in its backlog of cases, this does not appear to be accurate. See
R. Flanagan, The Litigation Explosion (1987). Notwithstanding the
amendments and their legislative history, some members of the
104th and the 105th Congresses thought that the Board could de-
cline jurisdiction on its own initiative. See William B. Gould IV,
Labored Relations: Law, Politics, and the NLRB—A Memoir (2000), at
203.
35. NLRB v. Fainblatt, 306 U.S. 601, 605–607 (1939); NLRB v. Reli-
ance Fuel Oil Corp., 371 U.S. 224 (1963).
36. McCulloch v. Sociedad Nacional de Marineros de Honduras, 872
U.S. 10 (1963). Accord, Benz v. Compania Naviera Hidalgo, S.A.,
353 U.S. 138 (1957); Incres Steam Ship Co. v. International Maritime
Workers Union, 372 U.S. 24 (1963); Windward Shipping (London)
Limited, et al. v. American Radio Association, AFL-CIO, et al., 415 U.S.
104 (1974); American Radio Association, AFL-CIO, et al. v. Mobile
Steamship Association, Inc., 419 U.S. 215 (1974).

247 Notes to Page 34

 37. International Longshoremen’s Local 1416, AFL-CIO v. Ariadne
Shipping Co. Ltd., et al., 397 U.S. 195 (1970).
38. The Board so held in Allied International, Inc., 257 NLRB 1075
(1981). This view was confirmed by the Supreme Court in Interna-
tional Longshoremen’s Association v. Allied International Inc., 456 U.S.
212 (1982).
39. International Longshoreman’s Ass’n, 323 NLRB 1029, 1034 (1997)
(Chairman Gould, dissenting).

40. This preference contrasts with those of individual employees

and minority-group organizations (e.g., the NAACP), which do not
have the involvement in the appointment of Board members and
the General Counsel, that labor and management organizations
such as the AFL-CIO, the Chambers of Commerce, and the Na-
tional Association of Manufacturers possess.

41. A minor extension of coverage occurred in 1974 to include

the employees of nonprofit health-care institutions. Act of July 26,
1974, Pub. L. No. 93860, 88 Stat. 895 amended the definition of
‘‘employer’’ in 29 USC §152(2) (2000) to give this effect.

42. Fort Apache Timber Co., 226 NLRB 503 (1976); Southern Indiana
Health Council, 290 NLRB 436 (1988). But see Sac & Fox Industries,
Ltd., 307 NLRB 241 (1992) (rejecting application of Fort Apache
and Southern Indiana, and asserting jurisdiction over an off-reser-
vation commercial facility that was wholly owned and controlled by
an Indian tribe); Yukon Kuskokwim Health Corporation, 328 NLRB
761 (1999) (applying Sac & Fox, and holding that the NLRA cov-
ered employees of a hospital whose board of directors was elected
by Alaskan Native tribes, but was located on federal property);
NLRB v. Chapa de Indian Health Corp., 316 F.3d 995 (9th Cir. 2003)
(concluding that the NLRA applies to a ‘‘tribal organization’’ that
operates outpatient healthcare facilities on non-Indian land). Cf.
NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2000).

43. Agricultural Labor Relations Act of 1975, Cal. Labor Code

1140 et seq. (West Supp. 1980). See H. Levy, ‘‘The Agricultural
Labor Relations Act of 1975,’’ 15 Santa Clara L. Rev. 783 (1975). In
fact, California has recently strengthened that law to impose man-
datory mediation where contract negotiations between agricultural
workers and growers have deadlocked. See Gregg Jones, ‘‘A Big
Win for Farm Workers,’’ Los Angeles Times, Oct. 1, 2002, at 1. There
is considerable litigation about what constitutes an agricultural
employee who is exempted from coverage by the National Labor
Relations Act. See Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996)

248 Notes to Pages 34–35

 where a 5–4 majority held that workers involved in chicken pro-
cessing were ‘‘employees’’ within the meaning of the Act.
44. D. Bok, ‘‘Reflections on the Distinctive Character of American
Labor Laws,’’ 84 Harv. L. Rev. 1394 (1971). At one point the Board
would not take jurisdiction over employees of government con-
tractors on the theory that their ability to bargain collectively was
substantially constrained by the public employer. This is no longer
the case. See Management Training Corp., 317 NLRB 1355 (1995);
Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997)
enforcing 321 NLRB 58 (1996); Pikesville United Methodist Hospital
v. United Steelworkers, 109 F.3d 1146 (6th Cir. 1997) enforcing 318
NLRB 1107 (1995). Some of the Board’s rulings addressing the
demarcation line between government and the private sector are
more tortuous and less clear. See Oklahoma Zoological Trust, 325
NLRB 171 (1997) (Chairman Gould, dissenting); Enrichment Ser-
vices, Inc., 325 NLRB 818 (1998) (Chairman Gould, concurring).
Other jurisdiction issues addressed the horseracing industry, Dela-
ware Park, 325 NLRB 156 (1997) (Chairman Gould concurring in
the result, but noting that jurisdiction should have been asserted);
the Railway Labor Act, Federal Express Corp., 317 NLRB 1155 (1995)
(Chairman Gould dissenting); Federal Express Corp., 323 NLRB
871 (1997) (Chairman Gould concurring for institutional rea-
sons); United Parcel Service, Inc., 318 NLRB 778 (1995) (Chairman
Gould concurring), enforced 92 F.3d 1221 (D.C. Cir. 1996); Service
Master Aviation Services, 325 NLRB 786 (1998) (Chairman Gould
dissenting).
45. Boston Medical Center, 330 NLRB 152 (1999).
46. New York University, 332 NLRB 1205 (2000).

47. However, only New York University graduate assistants are

currently covered by a collective bargaining agreement. In fact,
this area of law is quite unsettled, as the ballots from represen-
tation elections at Brown and Columbia have not been counted
pending review of the universities’ claims that New York University
should be overruled or, in the alternative, that their teaching re-
quirement for graduation sufficiently distinguishes them from that
decision. See ‘‘NLRB Grants Review of Decisions Involving Gradu-
ate TAs at Columbia, Brown Universities,’’ 61 Daily Lab. Rep.
(BNA), A-5. March 29, 2002.
48. Sure Tan Inc. v. NLRB, 467 U.S. 883 (1984); NLRB v. Actors’
Equity Assn., 644 F.2d 939 (2d Cir. 1981).
49. 320 NLRB 408 (1995), enforced A.P.R.A. Fuel Buyers Group, Inc.
v. NLRB, 134 F.3d 50 (2d Cir. 1997).

249 Notes to Pages 35–36

 50. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

51. See Flores v. Amigon, 233 F.Supp. 2d 462 (E.D.N.Y. 2002); Singh
v. Jutla, 214 F.Supp. 2d 1056 (N.D. Cal. 2002); Flores v. Albertsons,
Inc., 2002 WL 1163623 (C.D. Cal. 2002); Liu v. Donna Karan Inter-
national, Inc., 2002 WL 1300260 (S.D.N.Y. 2002). See also Patel v.
Quality Inn South, 846 F.2d 700 (11th Cir. 1988) (holding that
undocumented workers may maintain an action for unpaid wages
and damages under the Fair Labor Standards Act). But at least one
court has recently recognized that immigration law prevents such
awards under the FLSA. See Renteria v. Italia Foods, Inc., 2003 WL
21995190 (N.D. Ill. 2003).

52. NLRA §2 (3), 29 USC §152 (11) (2000). Independent con-

tractors were excluded under the Taft-Hartley amendments. NLRB
v. Hearst Publications, Inc., 322 U.S. 111 (1944). Cf. Elite Limousine
Plus, Inc., 324 NLRB 992 (1997); Union Square Theatre Management,
326 NLRB 70, 72 (1998) (Chairman Gould, dissenting).
53. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947).
54. Parker-Robb Chevrolet, 262 NLRB 402 (1982), aff ’d. sub nom.
Automobile Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 888 (D.C.
Cir. 1998). See also General Security Services Corporation, 326 NLRB
312, 314 (1998) (Chairman Gould concurring).

55. Providence Hospital, 320 NLRB 717 (1996), enforced 121 F.3d
548 (9th Cir. 1997); Ten Broeck Commons, 320 NLRB 806 (1996).
56. NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571
(1994).
57. NLRB v. Kentucky River Community Care, Inc. 532 U.S. 706
(2001).

58. Mississippi Power & Light Co., 328 NLRB 965 (1999). Kentucky
River also seems to be inconsistent with not only Mississippi Power &
Light but also my concurring and dissenting opinion in Legal Aid
Society, 324 NLRB 796 (1997).

59. M.B. Sturgis, 331 NLRB 1298 (2000) (decided along with Jeff-
boat Division); Tree of Life, Inc., 336 NLRB 872 (2001). Temporary
workers have been deemed entitled to the same benefits as their
permanent counterparts in Vizcaino v. Microscoft Corp., 97 F.3d
1187 (9th Cir. 1996); Cf. ‘‘Ninth Circuit Finds That Misclassified
Employees Are Eligible for Federally Regulated Employee Bene-
fits,’’ 111 Harv. L. Rev. 609 (1997).

250 Notes to Pages 36–37

 60. NLRB v. The Catholic Bishop of Chicago, 440 U.S. 490 (1979).
This doctrine has been extended to commercial operations in
Faith Center-WHCT Channel 18, 261 NLRB 106 (1982). But the ap-
pellate courts have rejected attacks on the Board’s jurisdiction
over nursing homes with religious connections. NLRB v. St. Louis
Christian Home, 663 F.2d 60 (8th Cir. 1981); Tressler Lutheran Home
v. NLRB, 677 F.2d 302 (3d Cir. 1982). The Court of Appeals for the
Second Circuit has held that the New York State Labor Relations
Board may constitutionally assert jurisdiction over lay teachers in
church-operated schools. Catholic High School Association v. Culvert,
753 F.2d 1161 (2d Cir. 1985); Christ The King Regional High School
v. Culvert, 815 F.2d 219 (2d Cir. 1987). See also St. Elizabeth Hospital
v. NLRB, 715 F.2d 1193 (11th Cir. 1983) (religious atmosphere of
hospital was secondary to promises of health-care services, involve-
ment of NLRB in collective bargaining mediation was constitu-
tional); NLRB v. Kemmerer Village, Inc., 907 F.2d 661 (7th Cir. 1990)
(a nonprofit corporation that operated a foster home that was
controlled by two presbyteries within the Presbyterian Church did
not fall within the ‘‘religious organization’’ exemption of the
NLRB); Denver Post of the National Society of Volunteers of America v.
NLRB, 732 F.2d 769 (10th Cir. 1984) (the VOA programs were not
pervasively religious in character and they functioned in a secular
fashion, especially since counselors were not required to have any
particular religious background or training); Volunteers of America–
Minnesota Bar None Boys Ranch v. NLRB, 752 F.2d 345 (8th Cir.
1985) (NLRB’s assertion of jurisdiction does not violate the con-
stitution where the center has as its primary purpose the care of
children, not propagation of the faith); NLRB v. Hanna Boys Center,
940 F.2d 1295 (9th Cir. 1991) (NLRB was acting within its jurisdic-
tion when ruling on a labor dispute involving a church-owned
school’s nonteaching employees); Volunteers of America, Los Angeles
v. NLRB, 777 F.2d 1386 (9th Cir. 1985) (NLRB properly asserted
jurisdiction over the alcohol center inasmuch as the program is
carried out in a secular fashion); Casa Italiana Language School, 326
NLRB 40 (1998) (claiming jurisdiction over a school that is located
adjacent to the Holy Rosary Roman Catholic Church in Washing-
ton, D.C., after finding that its mission is to teach Italian and not to
proselytize).
The Board has also asserted jurisdiction over a nonprofit cor-
poration formed by the Roman Catholic Archdiocese of New York
that provides cleaning and maintenance services to churches,
schools, and seminaries associated with the Archdiocese. Ecclesias-
tical Maintenance Service, Inc., 325 NLRB 629 (1998). In doing so,
the Board distinguished Riverside Church in the City of New York, 309
NLRB 806 (1992), where the Board refused to assert jurisdiction

251 Notes to Page 37

 over employees that did not spend a substantial part of their work
time in activities related to commercial operations.
The Court of Appeals for the First Circuit has held that the
principles of Catholic Bishop are applicable to a religious university
that describes itself as a ‘‘Catholic-oriented civil institution’’ gov-
erned by a board of trustees, a majority of whom must be the
members of the Dominican order. Universidad Central de Bayamon
v. NLRB, 793 F.2d 383 (1st Cir. 1985). More recently, the Court
of Appeals for the District of Columbia held that the Board vio-
lated Catholic Bishops’ principles when it inquired into a university’s
religious character by analyzing its mission and primary purpose.
The court then articulated a three-part test, which holds that an
employer is exempt from the Board’s jurisdiction as a religion-
affiliated institution when: (1) it holds itself out to students,
faculty, and community as providing a religious educational envi-
ronment; (2) it is a nonprofit organization; and (3) it is religiously
affiliated. University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir.
2002).

61. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Nonmanagerial
‘‘confidential’’ employees are also excluded when they are en-
gaged in labor relations functions; NLRB v. Hendricks County Rural
Electric Membership Corp., 454 U.S. 170 (1982). The Board may ex-
clude from bargaining units close relatives of owner-managers of
a closely held corporation without a finding that such employees
possess special job-related privileges. NLRB v. Action Automotive,
Inc., 469 U.S. 490 (1985). Children and the spouse of the employer
are not ‘‘employees’’ under the Act. ‘‘In the context of corpora-
tions, the Board has limited the . . . exclusion to the children or
spouses of an individual with at least a 50% ownership interest’’ Id.
at 497, n.7.
62. NLRB v. Yeshiva University, 444 U.S. 627 (1980).

63. Black v. Cutter Laboratories, 351 U.S. 292 (1956).

64. NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995). Rem-
edies for Town & Country violations have occupied much of the
Board’s attention. See, e.g., FES (A Division of Thermo Power), 331
NLRB 9 (2000), enforced 301 F.3d 83 (3d Cir. 2002); Ferguson
Electric Co., 330 NLRB 514 (2000), enforced 242 F.3d 426 (2d Cir.
2001).
65. See e.g., In re Aneco, Inc., 333 NLRB 691 (2001), enforced in
part 285 F.3d 326 (4th Cir. 2002); Hartman Bros. Heating & Air-
Conditioning, Inc., 332 NLRB 1343 (2000), enforced 280 F.3d 1110
(7th Cir. 2002); Ferguson Electric Co., Inc., 330 NLRB 514 (2000),

252 Notes to Page 37

 enforced 242 F.3d 426 (2d Cir. 2001). The Board has held that
employees who are not capable or qualified to perform the work
could nonetheless receive reinstatement and have back pay adju-
dicated in compliance. Eldeco, Inc., 321 NLRB 857 (1996) (Chair-
man Gould dissenting at 857 n.4).

66. The Board so held in RCA Mfg. Co., 2 NLRB 159 (1936). The
circuit courts agreed. See, for example, New York Handkerchief Mfg.
Co. v. NLRB, 114 F.2d 144 (7th Cir. 1940); NLRB v. Deutsch Co., 265
F.2d 478 (9th Cir. 1959) (citing cases from Fifth and Seventh Cir-
cuits and from the Board).
67. NLRA §2 (5), 29 USC §152 (5) (2000). A union may be dis-
qualified as a labor organization if supervisors play an active and
leadership role in the union. See Sierra Vista Hospital, Inc., 241
NLRB 681 (1979); Bausch & Lomb Optical Co., 108 NLRB 1555
(1954); Highland Hospital v. NLRB, 861 F.2d 56 (2d Cir. 1988). By
virtue of 9(b)(3) of the Act, unions that have—or are affiliated
with labor organizations that have—guard and nonguard mem-
bers may not be certified by the Board. Over the strong dissent of
member Zimmerman, the Board placed more stringent limitations
upon the representative functions of such ‘‘mixed’’ unions. See
The University of Chicago, 272 NLRB 873 (1984); Wells Fargo Armored
Service Corporation, 270 NLRB 787 (1984), enforcement granted sub
nom. Teamsters Local, 807 v. NLRB, 775 F.2d 5 (2d Cir. 1985). ‘‘The
evils that Congress sought to prevent include not only the domi-
nation of guard unions by non-guard unions, but also the potential
of conflict of loyalty on the part of an employer’s supposedly most
faithful and trustworthy employees when encountering demands
by another union with whom they shared some relations . . . the
Board has previously emphasized that a realistic potential for con-
flict of loyalty precludes certification of a guard union.’’ NLRB v.
Brinks, Inc. of Florida, 843 F.2d 448, 452 (11th Cir. 1988).

68. NLRA §9(b)(2) states in part: ‘‘The Board shall not . . . decide
that any craft unit is inappropriate for such purposes on the
ground that a different unit has been established by a prior Board
determination. . . .’’ See also American Potash & Chemical Corp., 107
NLRB 1418, 1422 (1954). (‘‘It is not the province of this Board
to dictate the course and pattern of labor organization in our vast
industrial complex.’’) But see Mallinckrodt Chemical Works, 162
NLRB 367 (1966) (in which the Board overruled American Potash
and reinstated history and existing patterns of collective bargain-
ing as factors relevant to the determination of the appropriate
bargaining unit) and General Motors Corp. (Cadillac Motor Car Div.),
120 NLRB 1215 (1958) (in which the Board, relying on the
long bargaining history of exclusive UAW representation on a

253 Notes to Pages 37–38

 multiplant, national basis, denied severance of single-plant units as
too narrow in scope and thus inappropriate).
69. See generally R. Berry and W. Gould, ‘‘A Long Deep Drive to
Collective Bargaining: Of Players, Owners, Brawls, and Strikes,’’ 31
Case W. Res. L. Rev. 685 (1981); R. Berry et al., Labor Relations in
Professional Sports (1986); W. Gould, ‘‘Players and Owners Mix It
Up,’’ 8 California Lawyer 56 (August 1988).
70. See Murray Chass, ‘‘Negotiating Tone Helped Lead to Deal,’’
The New York Times, Sept. 1, 2002, at 15. The specter of contraction
as a backdrop to the negotiations had not been encouraging. Wil-
liam B. Gould IV, ‘‘Taking about Baseball: Slugging It Out,’’ San
Francisco Chronicle, Dec. 2, 2001, at D5. For an excellent discussion
of contemporary baseball economics and the impact of the new
collective bargaining agreement see Andrew S. Zimbalist, ‘‘May the
Best Team Win: Baseball Economics and Public Policy,’’ (Brook-
ings Institution Press, 2003).
71. Labor-Management Relations Act, Pub. L. No. 101, 80th
Cong., 1st Sess. (1947) 61 Stat. 186, 29 USC §149(b)(5) et seq.
(2000).
72. NLRB v. Action Automotive, Inc., 469 U.S. 490 (1985).
73. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438 (1965). The
Board has held that an appropriate unit (there may be more than
one) in multilocation industries is presumptively a single location.
See Sav-On Drugs, Inc., 138 NLRB 1032 (1962), Frisch’s Big Boy III–
Mar, Inc., 147 NLRB 551 (1964) enf. denied, 356 F.2d 895 (7th Cir.
1966); F. W. Woolworth Co.; 144 NLRB 807 (1968); Dixie Belle Mills,
Inc., 139 NLRB 629 (1962); Metropolitan Life Ins. Co., 156 NLRB
1408 (1966); Wyandotte Savings Bank, 245 NLRB 1002 (1979); and
Bowie Hall Trucking, Inc., 290 NLRB 41 (1988).
74. See cases cited in note 66 supra. Where new employees or
jobs are added, it is possible for them to be declared part of an
existing unit, as an accretion to it, without a new election. See
Judge Winter’s discussion of this principle in NLRB v. Stevens Ford,
Inc., 773 F.2d 468, 472–74 (2d Cir. 1985). The policy is ‘‘restric-
tive’’ designed to apply to ‘‘new groups of employees’’ added sub-
sequent to certification or recognition of the collective agreement.
United Parcel Services Inc., 303 NLRB 326 (1991); Dennison Manu-
facturing Co., 296 NLRB 1034 (1989); Compact Video Services, 284
NLRB 1108 (1987). Disputed employees must possess ‘‘little or no
separate group identity’’ and ‘‘overwhelming community of inter-
est’’ with workers in the original organized unit. Safeway Stores, 256
NLRB 918 (1981). In determining whether this ‘‘community of in-

254 Notes to Pages 38–42

 terest’’ exists the Board now applies a common twelve-factor test.
The Baltimore Sun Company v. NLRB, 257 F.3d 419 (4th Cir. 2001).
See also Sara Lee Bakery Group, Inc. v. NLRB, 296 F.3d 292 (4th Cir.
2002). The converse of the accretion issue is a spin-off where
employers attempt to argue that a new facility is sufficiently dis-
similar to justify nonunion status. Rice Food Markets, Inc., 255 NLRB
884 (1981); NLRB v. Coca-Cola Bottling Co., 936 F.2d 122 (2d Cir.
1991) said Judge Kaufman in Coca-Cola Bottling Co. on behalf of the
Second Circuit:
For purposes of legal analysis in labor disputes over the composition of
bargaining units, the most significant distinction between an accretion
and a spin-off lies in allocation of the burden of proof. As the Board
noted in Rice Food Markets . . . any party attempting to circumvent for-
mal procedures for expansion or contraction of the bargaining unit
bears a heavy burden of proving the legitimacy of such action.
If, for example, a union argues that a job site is an accretion to a pre-
existing operation and, therefore, that its employees automatically
should be considered party to an existing collective-bargaining agree-
ment, the Board will require the union to establish that the new group
of employees is so similar to the original that accretion into the exist-
ing bargaining unit is appropriate. This is to prevent the danger the
Board foresees of such action denying workers an opportunity to ratify
their representation.
Conversely, in cases such as the present one, where an employer
establishes an adjunct worksite and attempts to staff it with non-union
workers, though its pre-existing work force is organized, the Board
will look to that employer to establish sufficient justification [dissimi-
larity from the remainder of the bargaining unit] for its actions. (Id. at
126.)
But see Perry Broadcasting Inc., 300 NLRB 1140 (1990); Gitano
Group, Inc., 308 NLRB 1172 (1992).
75. President and Fellows of Harvard College, 269 NLRB 821 (1984).

76. St. Francis Hospital, 271 NLRB 948 (1984). A large unit has
been fashioned for hotels. ACL Corporation, 273 NLRB 87 (1984).
77. In Speedrack Products Group Limited, 325 NLRB 609 (1998), a
case on remand from the United States Court of Appeals for the
District of Columbia Circuit, the Board reconsidered its earlier
decision, reported at 320 NLRB 627 (1995), in which a majority
had held that work-release inmates did not share a community of
interest with the regular ‘‘free-world’’ unit employees, and were
ineligible to vote. Chairman Gould dissented from that earlier de-
cision, stating that he would find the work-release employees eligi-
ble under the Board’s decisions in Winett-Simmonds Engineers, Inc.,
164 NLRB 611 (1967), and Georgia Pacific Corp., 201 NLRB 760
(1973), which represent the Board’s determination that whether

255 Notes to Page 42

 work-release employees share a community of interest with their
fellow employees depends on their status while in the employment
relationship and not on the ultimate control they may be subjected
to at other times. In remanding the case to the Board, the D.C.
Circuit agreed with Chairman Gould’s dissenting opinion, finding
that ‘‘work-release employees were ‘completely integrated’ into
Speedrack’s workforce,’’ and ‘‘[t]hus under Winsett-Simmonds and
the Board’s other cases, Speedrack’s employees appear to share
a community of interest and to be eligible to vote in the represen-
tation election.’’ Speedrack Products Group, Ltd. v. NLRB, 114 F.3d
1276, 1282 (1997). In accepting the remand, the Board stated
that it had reconsidered its original determination regarding the
work-release employees and, in agreement with Chairman Gould’s
dissent in the underlying representation case, decided to apply
Winsett-Simmonds to find that the work-release employees share a
sufficient community of interest with the unit employees.
78. Hampton Roads Broadcasting Corp. (WCH), 100 NLRB 238, 239
(1952).

79. 272 NLRB 196 (1984). Member Zimmerman dissented.

80. Id. at 197. But see Perry Broadcasting, Inc., 300 NLRB 1140
(1990) where the Board held that KJAZ was ‘‘distinguishable’’ as
a ‘‘. . . narrow exception to the long-recognized distinction for
bargaining purposes between on-air and off-air employees.’’ Id. at
1141. Said the Board: ‘‘the principal factor that distinguishes this
case from KJAZ is the much more limited role that sales employees
have in producing commercials.’’ Id.
81. The Globe Machine and Stamping Co., 3 NLRB 294 (1937).

82. American Hospital Association v. NLRB, 499 U.S. 606 (1991).

83. Id. at 612.
84. For example, in 1995, the Board issued a Notice of Pro-
posed Rulemaking that articulated the factors—consistent with
precedent—that it would use to determine the appropriateness of
bargaining units for unrepresented employees at a single facility.
59 Fed. Reg. 50146 (September 28, 1995). This rule sought to ex-
pedite election petitions by eliminating the often lengthy and rep-
etitious adjudication that irreparably delays the election process.
However, this neutral rule encountered opposition from employer
groups and some members of Congress. As a result, Congress
attached a rider to appropriations bills for fiscal years 1996–1998
that prohibited the expenditure of funds ‘‘in any way’’ to promul-

256 Notes to Pages 42–45

 gate a final rule. Consequently, the Board withdrew the proposed
rule. 63 Fed. Reg. 8890 (February 23, 1998).
85. The Board first required this in Excelsior Underwear, Inc., 156
NLRB 1236 (1966). This decision was approved by the Supreme
Court in NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). How-
ever, the Court of Appeals for the Seventh Circuit has concluded
that such a rule for federal employees under the Civil Service Re-
form Act is an unlawful invasion of privacy. United States Dept. of
the Navy v. Federal Labor Relations Authority, 975 F.2d 30 (7th Cir.
1992). Accord, Federal Labor Relations Authority v. United States Dept.
of Defense, 984 F.2d 370 (10th Cir. 1993), which provides citations
setting forth the position of all the circuits. Contra, Federal Labor
Relations Authority v. United States Dept. of Defense, 975 F.2d 1105 (5th
Cir. 1992); Federal Labor Relations Authority v. United States Dept. of the
Navy, 966 F.2d 747 (3d Cir. 1992); Federal Labor Relations Authority
v. United States Dept. of the Navy, 958 F.2d 1490 (9th Cir. 1992).
Further, in The Glass Depot, Inc., 318 NLRB 766 (1995), the
Board held that whenever a ‘‘representative complement’’ had
voted, that acts of nature, such as snowstorms, would not result in a
re-run election. I concurred with the result but stated that, as with
political elections, the ballot should not be upset because a snow-
storm prevented some employees from casting their ballots. Id. at
767.
86. Both sides may have observers of the election, the provision
for observers constituting a material term of a stipulated election
agreement. But the parties may waive their right to observers, Best
Products Co., 269 NLRB 578 (1984). For instance, the fact that an
observer arrived late was deemed to constitute a waiver of the right
to an observer. Inland Waters Pollution Control, Inc., 306 NLRB 342
(1992). Where an employer is about to relocate shortly after an
election and employees have been offered jobs at the new situs, the
Board can order an election at the old location prior to the move.
NLRB v. AAA Alternator Rebuilders, Inc., 980 F.2d 1395 (11th Cir.
1993).

87. Shepard Convention Services, Inc., 314 NLRB 689 (1994), en-
forcement denied 85 F.3d 671 (D.C. Cir. 1996).
88. Lone Star Northwest, Case 36-RD-1434, review granted April 17,
1994 (remanded after employer agreed to stipulate to a mail ballot
for the eligible strikers); Diamond Walnut Growers, 326 NLRB 28
(1998).
89. Reynolds Wheels Int’l., 323 NLRB 1062 (1997).

257 Notes to Pages 45–46

 90. London’s Farm Dairy, 323 NLRB 1057 (1997).

91. Sitka Sound Seafoods, 327 NLRB 250 (1998).

92. Willamette Industries, Inc., 322 NLRB 856 (1998). See Chairman
Gould’s concurring opinion at page 856.
93. San Diego Gas & Electric, 325 NLRB 1143 (1998). The dis-
senters, Members Hurtgen and Brame, decried the use of postal
ballots, in part, because they made employer captive audience anti-
union campaigning less effective. For a response to this concern,
see Chairman Gould’s concurring opinion at pages 1148–1149.
94. There are also disputes about the marking of the ballot itself.
For example, in Bishop Mugavero Center, 322 NLRB 209 (1996), the
Board upheld the Regional Director’s recommendation that a bal-
lot marked with an ‘‘X’’ in the ‘‘No’’ box and a diagonal line in the
‘‘Yes’’ box should be considered void. The majority relied upon
‘‘well-established Board precedent’’ that finds that a ballot is void
where a voter marks both boxes and the voter’s intent cannot be
ascertained from other markings. Id. at 209. Chairman Gould dis-
sented on the ground that the ‘‘No’’ box had a completed mark
and that, therefore, the voter intended to register a ‘‘No’’ vote
rather than a ‘‘meaningless gesture of indecision.’’ Id. The United
States Court of Appeals for the Ninth Circuit has indicated its
agreement with Chairman Gould’s position in Bishop Mugavero. In
TCI West, Inc. v. NLRB, 145 F.3d 1113 (9th Cir. 1998), the court
refused to enforce TCI West, Inc., 322 NLRB 928 (1997), and
agreed with Chairman Gould’s dissenting opinion in the underly-
ing representation case by finding that the voter clearly intended
to cast a ‘‘No’’ vote where the ballot was marked with one incom-
plete line in the ‘‘Yes’’ box and a dark, obviously emphasized,
complete ‘‘X’’ in the ‘‘No’’ box. See also Daimler-Chrysler Corp., 338
NLRB No. 148 (2003) (counting as a ‘‘Yes’’ vote where a voter
clearly marked the ‘‘Yes’’ box but also included a question mark
next to that marking).
95. NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932 (7th Cir.
1983); NLRB v. J-Wood\ A Tappan Div., 720 F.2d 309 (3d Cir. 1983);
NLRB v. Service America Corp., 841 F.2d 191 (7th Cir. 1988).
96. Todd Shipyards Corp., 5 NLRB 20, 25 (1988); Edwin J. Schlacter
Meat Co., 100 NLRB 1171 (1952).

97. Leedom v. Kyne, 358 U.S. 184 (1958); Boire v. Greyhound Corp.,
376 U.S. 473 (1964).

258 Notes to Pages 46–47

 98. See generally American Federation of Labor v. NLRB, 308 U.S.
401 (1940). See also Raley’s, Inc. v. NLRB, 725 F.2d 1204 (9th Cir.
1984), and ACL Corp., 273 NLRB 87, 91 (Member Zimmerman
dissenting).

Chapter 4
1. With respect to spies, see NLRB v. Fansteel Metallurgical Corp.,
306 U.S. 240, 251 (1939). The Court of Appeals for the Third Cir-
cuit has taken the position that photographing peaceful employee
or union demonstrations is not per se unlawful surveillance but
must be considered in light of all the circumstances. U.S. Steel Corp.
v. NLRB, 682 F.2d 98 (3rd Cir. 1982). But see Kallman v. NLRB, 640
F.2d 1094 (9th Cir. 1981); NLRB v. Colonial Haven Nursing Home,
542 F.2d 691 (7th Cir. 1976); Flambeau Plastics Corp., 167 NLRB
735 (1967) enforced 501 F.2d 128 (7th Cir. 1968); Captain Nemo’s,
258 NLRB 57 (1981); Cutting, Inc., 255 NLRB 534 (1981). The
policy of the Board concerning interrogation is that, absent un-
usual circumstances, polling of employees is a violation unless cer-
tain specified criteria are met. Struksnes Construction Co., 165 NLRB
1062, 1063 (1967). The Second Circuit has refused to enforce this
policy, preferring the Board’s own earlier view that the question
was whether the interrogation was coercive in the totality of cir-
cumstances. NLRB v. Lorben Corp., 345 F.2d 346 (2d Cir. 1965).
The Court of Appeals for the Ninth Circuit has applied these rules
to postrecognition disputes about majority status. Promises and
threats are distinguished from objective predictions in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969); Weather Tamer v. NLRB,
676 F.2d 483 (11th Cir. 1982). Where an employer interrogates
employees to verify a union’s claim of majority status or to prepare
a defense for an unfair labor practice trial, the employer must
communicate the purpose of the interrogation, assure the worker
that no reprisals will take place, and obtain the worker’s participa-
tion voluntarily. Moreover the questioning must take place in a
context ‘‘free from employer hostility to union activity,’’ and the
employer must not ‘‘pry into’’ other union activities. See Johnnie’s
Poultry Co., 146 NLRB 770 (1964).

2. PPG Industries, Inc., 251 NLRB 1146 (1980).

3. Blue Flash Express, 109 NLRB 591 (1954).
4. Rossmore House, 269 NLRB 1174 (1984) enforced sub nom. Hotel
Employees Local 2 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The
Board has held Rossmore applicable to ‘‘open’’ union sympathizers
because the employee wears a union button. Premier Rubber Co., 272

259 Notes to Pages 47–50

 NLRB 466 (1984). The circuit courts are split between the posi-
tions taken in PPG Industries, Inc. and Rossmore House. See Midwest
Stock Exchange v. NLRB, 635 F.2d 1255 (7th Cir. 1980); Graham
Architectural Products v. NLRB, 697 F.2d 534 (3d Cir. 1983); TRW–
United Greenfield Division v. NLRB, 637 F.2d 410 (5th Cir. 1981);
Hotel Employees Local 2 v. NLRB, supra.
5. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990).
6. Id. at 797.

7. 296 NLRB 1057 (1989) enforced in part 923 F.2d 398 (5th Cir.
1991). As the Board noted in this opinion which issued before
Curtin Matheson and Chief Justice Rehnquist’s concurring opinion,
a number of the circuit courts of appeal have expressed disagree-
ment with the Board’s position. See NLRB v. A.W. Thompson, Inc.,
651 F.2d 1141 (5th Cir. 1981); Thomas Industries v. NLRB, 687 F.2d
863 (6th Cir. 1982); Forbidden City Restaurant v. NLRB, 736 F.2d
1295 (9th Cir. 1984).
8. United States Gypsum Co., 157 NLRB 652 (1966).
9. The position of the circuit courts which disagree with the Board
is that it is anomalous to apply the same standard to the cir-
cumstances under which an employer may withdraw recognition
to a procedure, namely polling which is designed to determine
whether an employer can withdraw recognition.
10. Texas Petrochemicals v. NLRB, 923 F.2d 398, 403 (5th Cir. 1991).
11. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359
(1998).
12. Justice Breyer in dissent, said:
The Board in effect has said that an employee statement made during a
job interview with an employer who has expressed an interest in a nonunionized
work force will often tell us precisely nothing about that employee’s true
feelings. That Board conclusion represents an exercise of the kind
of discretionary authority that Congress placed squarely within the
Board’s administrative and fact-finding powers and responsibilities. Id.
at 393.

13. Levitz Furniture Company of the Pacific, Inc., 333 NLRB 717
(2001).
14. 375 U.S. 405 (1964). See Jackson and Heller, ‘‘Promises and
Grants of Benefits under the National Labor Relations Act,’’ 131
U. Pa. L. Rev. 1 (1982). It is an unfair labor practice for an em-
ployer to withhold wage increases or accrued benefits because of

260 Notes to Pages 50–51

 union activities and so to advise employees. On the other hand, it
is not unlawful for an employer to avoid paying benefits until the
election is completed and to announce this to the workers so as to
avoid the appearance of election interference. But it is often diffi-
cult to distinguish between these two situations. See, for example,
Centre Engineering, 253 NLRB 419 (1980); Brunswick Food & Drug,
284 NLRB 663 (1987); Colortech Corp., 286 NLRB 476 (1987); Toys-
R-Us, Inc. 300 NLRB 188 (1990). An employer is required to pro-
ceed with an expected wage or benefit adjustment regardless of
the presence or absence of a union. Atlantic Forest Products, 282
NLRB 855 (1987); Retlaw Broadcasting Co., 302 NLRB 381 (1991).
Where the employer states that if the union wins the election,
there will be ‘‘bargaining from ground zero’’ or ‘‘bargaining from
scratch,’’ section 8(a)(1) is violated if the employees are left with
the impression that they will lose existing benefits and that what
they will receive ultimately will depend upon what the union can
induce the employer to restore. On the other hand, if it is made
clear that any reduction will flow from the normal give and take of
negotiations with the union, the statement is lawful. Taylor-Dunn
Mfg. Co., 252 NLRB 799 (1980) enf ’d 810 F.2d 638 (9th Cir. 1982);
Telex Communications, 294 NLRB 1136 (1989); Kenrich Petrochemicals,
294 NLRB 519 (1989); S.E. Nichols, Inc. 284 NLRB 556 (1987); Lear-
Siegler Management Service Corp. 306 NLRB 393 (1992); Shaw’s
Supermarkets v. NLRB, 884 F.2d 34 (1st Cir. 1989). Where the em-
ployer states that wage and benefit programs would be ‘‘frozen,’’
the Board has viewed this statement as meaning that the wage
and benefit programs would not change. Mantrose-Haeuser Co., 306
NLRB 377 (1992).

15. 375 U.S. at 409.

16. NLRB v. Savair Mfg., 414 U.S. 270 (1973). The union must be
careful to repudiate previous unlawful conduct in this regard when
it forumlates a new policy. K.D.I., Inc. v. NLRB, 829 F.2d 5 (6th
Cir. 1987). However, where a waiver of initiation fees and a lower-
than-usual dues structure are open to all employees, regardless of
whether they support or vote for the union, the union’s conduct is
lawful. See, for example, NLRB v. Whitney Museum of American Art,
636 F.2d 19 (2d Cir. 1980). Similarly lawful is a union’s insistence
that employees pay initiation fees and dues before the organiza-
tional campaign commences; Hickory Springs Mfg. Co. v. NLRB, 645
F.2d 506 (5th Cir. 1980). Similarly a promise that the union will
reduce initiation fees if the union wins the election is lawful be-
cause there is no improper inducement to sign authorization cards
or to join the union. Molded Acoustical Products, 280 NLRB 1394

261 Notes to Page 51

 (1986), enfd. 815 F.2d 934 (3d Cir. 1987); DeJana Industries, Inc.,
305 NLRB 294 (1991).
17. Novotel New York, 321 NLRB 624 (1996). Contra Nestle Ice Cream
Co. v. NLRB, 46 F.3d 578 (6th Cir. 1995); Freund Baking Co. v.
NLRB, 165 F.3d 928 (D.C. Cir. 1999).

18. Skyline Distributors v. NLRB, 99 F.3d 403 (D.C. Cir. 1996).

19. See Arizona Public Service Co., 325 NLRB 723 (1998); Good Shep-
herd Home, 321 NLRB 426 (1996); Sunrise Rehabilitation Hospital, 320
NLRB 212 (1995); see especially Kalin Construction Co., Inc., 321
NLRB 649 (1996).
20. A. Cox, Law and the National Labor Policy (1960). A company
statement that an employer would lose its consumer base if union-
ized constitutes employer free speech. NLRB v. Pentre Electric, 998
F.2d 363 (6th Cir. 1993). Campaigns designed to promote preju-
dice have been held to be unlawful by the Board. Sewell Mfg. Co.,
138 NLRB 66 (1962). A new standard is advocated in Shepherd
Tissue, Inc. 326 NLRB 369 (1998) (Chairman Gould concurring).
Cf. NLRB v. Foundry Division of Alcon Industries, 260 F.3d 631
(6th Cir. 2001); NLRB v. Flambeau Airmold, 178 F.3d 705 (4th Cir.
1999).
21. 29 USC §158(a)(2) (2000) is the relevant provision. There is
considerable debate about how expansively this provision should
be interpreted. See Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d
165 (7th Cir. 1955); NLRB v. Scott & Fetzer, 691 F.2d 288 (6th Cir.
1982); W. Gould, Japan’s Reshaping of American Labor Law 95–99
(1984). For another view, see Note, ‘‘Collective Bargaining as an
Industrial System: An Argument against Judicial Revision of Sec-
tion 8(a)(2) of the National Labor Relations Act,’’ 96 Harv. L. Rev.
1664 (1983). On the use of company time and property by an
incumbent union and the question of unlawful assistance see, for
example, Base Wyandotte Corp., 274 NLRB 978 (1985); Coamo Knit-
ting Mills, 150 NLRB 579, 582 (1964); Elias Mallouk Realty Corp., 265
NLRB 1225, 1236 (1982); Duquesne University of the Holy Ghost, 198
NLRB 891 (1971); Summer Products, 189 NLRB 826, 828 (1971);
Longchamps, Inc., 205 NLRB 1025, 1026 (1973). See Sockell ‘‘The
Legality of Employee-Participation Programs in Unionized Firms,’’
37 Indus. Lab. Rel. Rev. 541 (1984).

22. 29 USC §160(c) (2000) provides in part that when it finds a

person to be engaged in an unfair labor practice ‘‘the Board . . .
shall issue an order requiring such person to cease and desist from
such unfair labor practices, and take such affirmative action . . . as
will effectuate the policies of this subchapter. . . .’’ See, for exam-

262 Notes to Pages 51–52

 ple, NLRB v. Getlan Iron Works, Inc., 377 F.2d 894, 896 (2d Cir.
1967).
23. 309 NLRB 990 (1992). The Supreme Court has addressed the
question of employer domination and assistance—but never in
the context of genuine employee participation programs. See, for
instance, Pennsylvania Greyhound Lines, 1 NLRB 1 (1935), enforce-
ment denied in part 91 F.2d 178 (3d Cir. 1937) rev’d 303 U.S. 261
(1938); NLRB v. Newport News Shipbuilding Co., 308 U.S. 241 (1939);
NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). A closely related
issue is whether the employer may provide any money or any other
thing of value, conduct that is prohibited by section 302(a) to
union representatives in the collective bargaining process. The Act
is designed to prohibit bribery and extortion schemes between
employers and union officials. But at the same time union repre-
sentatives often retain rights to return to the establishment and
to obtain pensions when they retire. The issue arising in section
302(a) cases is whether compensation to the employee or former
employee who is a union representative exists ‘‘by reason of ’’ the
services of the employee or for some other reason. See National
Fuel Gas Distribution Corporation, 308 NLRB 841 (1992); BASF
Wyandotte Corp., 274 NLRB 978 (1985), enforced 798 F.2d 849 (5th
Cir. 1986); Trailways Lines v. Joint Council, 785 F.2d 101 (3d Cir.
1986); Toth v. USX Corp., 883 F.2d 1297 (7th Cir. 1989).
24. It has done so in E. I. Dupont de Nemours & Co., 311 NLRB 893
(1993).
25. See Keeler Brass Automotive Group, 317 NLRB 1110 (1995)
(finding that the Keeler Brass Grievance Committee was a ‘‘labor
organization’’ and that the employer dominated the committee’s
reformation and administration); Chicago Rawhide Mfg. Co. v.
NLRB, 221 F.2d 165 (7th Cir. 1995) (holding, contrary to the
Board, that evidence of the employer’s involvement with an em-
ployee committee that subsequently became the employees’ ex-
clusive bargaining representative did not constitute an unfair labor
practice); Vons Grocery Company, 320 NLRB 53 (1995) (finding that
the employer’s quality circle group was not a ‘‘labor organization’’
because it was generally devoted to operational matters); Webcor
Packaging, Inc., 319 NLRB 1203 (1995), enfd. in part, 118 F.3d
1115 (6th Cir. 1997) (holding that an employer’s Plant Council
was a ‘‘labor organization’’ because it partly existed to respond to
and modify management’s proposed changes in working con-
ditions subject to management’s subsequent approval, and that the
employer unlawfully dominated it by restricting its agenda and
choosing its members); Stoody Co., 320 NLRB 18 (1995) (holding
that an employee Handbook Committee that the employer created

263 Notes to Page 52

 and financially supported was not a ‘‘labor organization’’ because
it did not engage in a pattern of ‘‘dealing with’’ the employer on
working conditions); Dillon Stores, 319 NLRB 1245 (1995) (holding
that an employer’s Associates’ Committees, comprised of hourly
employees elected by their coworkers who met quarterly with
management to discuss a variety of work-related activities was a
‘‘labor organization,’’ and that the employer violated the Act by
dominating, interfering with, and contributing support to it); Reno
Hilton, 319 NLRB 1154 (1995) (holding that the employer’s quality
action teams were ‘‘labor organizations’’ because they made rec-
ommendations on numerous work-related matters including safety
issues, staffing levels, work times, and paid sick days, and that the
employer thoroughly dominated and interfered with their forma-
tion and administration).

26. The Teamwork for Employees and Managers Act (TEAM Act)
that emerged from the 104th Congress attempted to amend the
NLRA to permit employers to establish, assist, maintain, or partici-
pate in an organization or entity in which employees participate, to
at least the same extent practicable as do representatives of man-
agement. To qualify for this §8(a)(2) exception, the organization
or entity must address matters of mutual interest (including, but
not limited to, issues of quality, productivity, efficiency, and safety
and health), but it may not have, claim, or seek authority to (1)
be the exclusive bargaining representative of the employees, or
(2) negotiate, enter into, or amend collective bargaining agree-
ments. The Act was also expressly inapplicable in any unionized
workplace.
President Clinton vetoed the legislation on July 30, 1996.
While proclaiming his support for ‘‘labor-management coopera-
tion within the broad parameters allowed under current law,’’ the
President’s veto message stated his belief that the NLRB—not
Congress—should ‘‘clarify the broad legal boundaries of the labor-
management teamwork.’’ Clinton further stated his belief that the
Act would not promote cooperation, but instead would undermine
collective bargaining by ‘‘allowing employers to establish company
unions where no union currently exists and permitting company
dominated unions where employees are in the process of deter-
mining whether to be represented by a union.’’ Congressional Rec-
ord, July 30, 1996, at H8816.
27. Crown Cork & Seal Co., 334 NLRB 699 (2001). Congressman
John Boehner, apparently unaware of the Board precedent from
the 1970s upon which the decision was based, said that ‘‘this land-
mark ruling’’ would ‘‘. . . allow for the growth of employee involve-
ment, which will, in turn, lead to a sea of change in the structuring

264 Notes to Pages 52–53

 of the employer-employee relationship.’’ Congressional Record, July
26, 2001, at H1448.
28. General Foods, 231 NLRB 1232 (1977).
29. Crown Cork & Seal Co., 334 NLRB at 701.
30. Second Annual Report of the National Labor Relations Board
‘‘The statute clearly calls for the posting of notices as part of
the enforcement procedures of the NLRB. The NLRB is charged
with serving the public interest to enforce labor relations rights
which are public, not private rights.’’ NLRB v. Hiney Printing
Co., 733 F.2d 1170, 1171 (6th Cir. 1984). See generally W. Gould,
Japan’s Reshaping American Labor Law 68–69 (1984); K. K. Sugeno,
Japanese Employment and Labor Law (2002).
31. H.J. Heinz Co. v. NLRB, 311 U.S. 514, 522–23 (1941) (Board
may order disestablishment if continued existence of a union is
an obstacle to the employees’ right of self-organization); NLRB
v. Pennsylvania Greyhound Lines, 303 U.S. 261 (1938) (Board has
power to require an employer to withdraw recognition from a
union that it sponsors and dominates, and may sometimes order
disestablishment); NLRB v. Metropolitan Alloys Corp., 624 F.2d 743
(6th Cir. 1980) (disestablishment ‘‘clearly the appropriate rem-
edy’’ when the union is a ‘‘company-created sham’’). However,
when an employer had assisted in the formation of a union but
no longer dominated it ‘‘the Board did not err in failing to order
disestablishment.’’ International Union of United Brewery Workers v.
NLRB, 298 F.2d 297, 300 (D.C. Cir. 1961). Until the 1947 Taft-
Hartley amendments the Board disestablished a company union if
it was unaffiliated with a national union, but it cannot fashion a
remedy on this basis now. See Carpenter Steel Co., 76 NLRB 670
(1948).
32. However, the lawfulness of the exclusive hiring hall frequently
establishes a de facto closed shop. Local 357 Teamsters v. NLRB, 365
U.S. 667 (1961). However, the Court of Appeals for the District of
Columbia has compelled the Board to reexamine its definition of a
valid referral system for which the union may collect a fee. Pitts-
burgh Press Co. v. NLRB, 977 F.2d 652 (D.C. Cir. 1992).
33. Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa,
Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina,
North Dakota, Oklahoma, South Carolina, South Dakota, Tennes-
see, Texas, Utah, Virginia, and Wyoming. The Court of Appeals for
the District of Columbia has held that a union violates federal
labor law when it insists upon a contract clause assessing nonunion
employees for the costs of union representation in a right-to-work

265 Notes to Page 53

 state. Judge Mikva dissented. Plumbers Local Union 141 v. NLRB, 675
F.2d 1257 (D.C. Cir. 1982). See also Oil, Chemical & Atomic Workers
Int’l Union v. Mobil Oil Corp., 426 U.S. 407 (1976); Retail Clerks v.
Schermerhorn, 373 U.S. 746 (1963). Cf. NLRB v. Office and Professional
Employees International Union, Local 2, 902 F.2d 1164 (4th Cir. 1990)
(union may not insist upon new initiation fee for a bargaining unit
employee who in a right-to-work state had quit the union but who
then transferred to a non-right-to-work state).

34. Pub. L. No. 96-593 (December 24, 1980). Service Employees

International Union, Local 6, Case No. 19-CB-5151, Advice Memo-
randa of the NLRB General Counsel, 117 LRRM 1508 (September
27, 1984). In Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990), the
court held that this provision of the statute is facially uncon-
stitutional in violation of the Establishment Clause of the First
Amendment to the Constitution because it distinguishes between a
‘‘bona fide religion, body, or sect’’ that has ‘‘historically held con-
scientious objections to joining or financially supporting labor
organizations’’ and other organizations.

35. United States v. Enmons, 410 U.S. 396 (1973).

36. United States v. Thorodarson, 646 F.2d 1323 (9th Cir. 1981). The
Racketeer Influenced Corruption Organizations (RICO) statute
was passed by Congress in 1970 as part of the Organized Crime
Control Act (OCCA), Title IX, Pub. L. No. 91-452, 84 Stat. 941
(1970), current version at 18 USC §§1961–1968 (2000). RICO was
used against the International Brotherhood of Teamsters by the
Department of Justice in an action widely heralded as producing
more democratic procedures and elections at the national level
of that union. See United States v. International Brotherhood of Team-
sters, 708 F.Supp. 1388 (S.D.N.Y. 1989). The statute provides for
both civil and criminal sanctions and in connection with the for-
mer private plaintiffs may bring actions seeking treble damages
and attorneys’ fees for the use of RICO vis-à-vis the various kinds of
union activity; see, for instance, Yellow Bus Lines, Inc. v. Drivers,
Chauffeurs & Helpers Local Union 639, 839 F.2d 782 (D.C. Cir.) cert.
denied 488 U.S. 926 (1988), vacated, 492 U.S. 914 (1989), on re-
mand, 883 F.2d 132 (D.C. Cir. 1989) (reissuing same decision as
839 F.2d 782), rev’d on rehearing, 913 F.2d 948 (D.C. Cir. 1990)
(en banc), cert. denied, 111 S.Ct. 2839 (1991); United States v. Local
560, 974 F.2d 315 (3d Cir. 1992); Brennan v. Chestnut, 973 F.2d 644
(8th Cir. 1992). See generally Roukis and Charnov, ‘‘The RICO
Statute: Implications for Organized Labor,’’ 36 Lab. L. J. 281
(1985); Goldberg, ‘‘Cleaning the Labor’s House: Institutional Re-
form Litigation in the Labor Movement,’’ 1989 Duke L. J. 903.
Unions as well as employers are now using RICO in connection

266 Notes to Pages 53–55

 with alleged racketeering in labor disputes. See generally Note,
‘‘Weeding RICO out of Garden Variety Labor Disputes,’’ 92 Co-
lumbia L. Rev. 103 (1992).
37. Laborers Union Local No. 324, Laborers International Union of
North America, 318 NLRB 589 (1995), enforcement denied 106
F.3d 918 (9th Cir. 1997) (holding that the adoption and main-
tenance of the no-solicitation, no-distribution rule designed to
preclude the distribution of dissident union material by threat-
ening to have the dissident candidate for union office arrested and
removed from the hiring hall is a statutory violation under Section
8(b)(1)(A)).

38. K. D. Ewing, Employment Rights at Work: Reviewing the Employment

Relations Act 1999 (2001).
39. Pub. L. No. 257, 86th Cong., 1st Sess. (1959). This provision
has its origins in the so-called Sand Door loophole to the second-
ary boycott provisions that, while they prohibited strikes and other
concerted activity to enforce ‘‘hot cargo’’ agreements, permitted
employers and unions to voluntarily enter into such agreements.
See Local 1976, United Brotherhood of Carpenters and Joiners of America
v. NLRB, 357 U.S. 93 (1958) [hereinafter Sand Door].
40. National Woodwork Manufacturers Assoc. v. NLRB, 386 U.S. 612
(1967); Truck Drivers Union, Local 413 v. NLRB, 334 F.2d, 539 (D.C.
Cir. 1964). See also Local 32B-32J, SEIU v. NLRB, 68 F.3d 490 (D.C.
Cir. 1995).

41. 29 USC §158(e) (garment industry) and 158(f ) (2000) (con-

struction industry). However, a divided Board has held that antid-
ual shop clauses prohibiting ‘‘double breasting’’ on the creation
of a separate nonunion company in the construction industry
are unlawful. Ernest Alessio Construction Company 310 NLRB 1023
(1993). However, a 2–1 majority of the Board held that such a
clause was a primary work preservation clause outside of the con-
struction industry context and thus lawful. Manganaro Corp., 321
NLRB 158 (1996).
42. Restrictions on payments by employers to labor organizations
‘‘shall not be applicable . . . with respect to money deducted from
the wages of employees in payment of membership dues in a labor
organization: Provided, that the employer has received from each
employee, on whose account such deductions are made, a written
assignment which shall not be irrevocable for a period of more
than one year, or beyond the termination date of the applicable
collective agreement, whichever occurs sooner. . . .’’ 29 USC
§186(c) (2000). The checkoff clause, under which union dues are

267 Notes to Pages 55–58

 directly deducted from the employee’s paycheck, is an adjunct to
the union security clause, though its status is treated differently as
a matter of federal labor law. Hacienda Hotel, Inc., 331 NLRB 665
(2000).
43. NLRB v. Plasterers’ Union Local 79, 404 U.S. 116 (1971). See
generally ‘‘The Employer as a Necessary Party to Voluntary Settle-
ment of Work Assignment Disputes under Section Lo(k) of the
NLRA’’ (comment), 38 U. Chi. L. Rev. 889 (1971).

44. NLRB v. Radio and Television Broadcast Engineers Union, Local

1212, 364 U.S. 573 (1961).
45. 29 USC §160(b) (2000).

46. This is an unfair labor practice, just as a recognition agree-

ment according a minority union exclusive representation status is
an unfair labor practice in that it coerces the majority of employ-
ees. ILGWU v. NLRB, 366 U.S. 781 (1961).
47. Local Lodge No. 1424, International Association of Machinists v.
NLRB, 362 U.S. 411 (1960) [hereinafter Bryan Manufacturing].
48. United States Postal Service Marina Mail, 271 NLRB 397, 400
(1984). The Board, Member Zimmerman dissenting, purported to
apply principles established in the area of employment discrimi-
nation and tenure denied. Delaware State College v. Ricks, 449 U.S.
250 (1980); Chardon v. Fernandez, 454 U.S. 6 (1981).
49. A&L Underground, 302 NLRB 467 (1991). Accord, Chambers-
burg County Market, 293 NLRB 654 (1989); Chemung Contracting
Corp., 291 NLRB 773 (1988); Desks, Inc., 295 NLRB No. 1 (1989);
Teamsters Local 43 v. NLRB, 825 F.2d 608 (1st Cir. 1987); ACF
Industries, 234 NLRB 1063 (1978), enforced as modified 596 F.2d
1334 (8th Cir. 1979).
50. Rules and Regulation of the NLRB (Procedure) 29 CFR 101.8
(1979).
51. At one point the Board emphasized the ‘‘public interest in
the vindication of statutory rights,’’ Clearhaven Nursing Home, 236
NLRB 853, 854 (1978). I have held the view that this scrutiny
of private settlements entered into is excessively rigid and dis-
courages voluntary settlements and informal relationships. See W.
Gould, Japan’s Reshaping of American Labor Law 54–55 (1984). More
recently the Board in Independent Stave Co., 287 NLRB 740 (1987)
has looked at the following factors in determining whether the
Board should approve a nonboard settlement: (1) whether the
parties, union, or employer, and any of the individual discrim-

268 Notes to Pages 58–59

 inatees have agreed to be bound by the settlement and the posi-
tion taken by the Counsel regarding settlement; (2) whether the
settlement is reasonable in light of the nature of the violations
alleged, the risks inherent in litigation and the stage of litigation;
(3) whether there has been any fraud, coercion, or duress by any
of the parties in reaching the settlement; (4) whether the respon-
dent charged with an unfair labor practice has engaged in a history
of violations of the Act or has breached previous settlement
agreements resolving unfair labor practice disputes. For applica-
tion of these standards, see, for example, Service Merchandise, Inc.,
299 NLRB 1132 (1990); Aratex Services, Inc., 300 NLRB 115 (1990);
Amstar Sugar Corp., 301 NLRB 764 (1991). See also Flint Iceland
Arenas, 325 NLRB 318, 321 (1998) (Chairman Gould, dissenting)
(disagreeing with the majority’s rejection of a settlement agree-
ment based on Independent Stave, and noting that the Board should
be encouraging voluntary negotiation of settlements that operate
to limit protracted and often unnecessary litigation, especially
in this case where the union disclaimed interest in the proceed-
ings and backpay provided a sufficient remedy). Cf. Smith’s Food &
Drug Centers, Inc., 320 NLRB 844, 847 (1996) (Chairman Gould,
concurring) (advocating that the Board should refrain from inter-
fering with an employer’s good-faith voluntary recognition of a
union and other representation disputes because intervention
delays collective bargaining and ‘‘[t]he establishment of a success-
ful collective-bargaining relationship is best accomplished by
the parties themselves—the employer, the union, and the unit
employees.’’); Douglas-Randall, Inc., 320 NLRB 431 (1995) (sus-
taining the dismissal of a decertification petition when a settle-
ment agreement subsequently provided a bargaining provision
with the incumbent union). Settlements approved by the Board
or non-Board settlements are not covered by this criteria and thus
are less likely to give rise to disputes about the validity of releases
through which a party agrees not to file unfair labor practice
charges. See, for example, Coca-Cola Bottling of Los Angeles, 243
NLRB 501 (1979); First National Supermarkets, Inc., 302 NLRB 727
(1991).
52. Rosenbloom, ‘‘A New Look at the General Counsel’s Unre-
viewable Discretion Not to Issue a Complaint under the NLRA,’’
86 Yale L. J. 1349 (1977). The leading case which establishes this
proposition in dicta is NLRB v. Food and Commercial Workers, Local
23, 484 U.S. 112 (1987). See also NLRB v. Sears, Roebuck & Co., 421
U.S. 132 (1975); United Electrical Contractors v. Ordman, 366 F.2d 776
(2d Cir. 1966); International Association of Machinists and Aerospace
Workers, AFL-CIO v. Lubbers, 681 F.2d 598 (9th Cir. 1982).

269 Notes to Pages 59–60

 53. ‘‘Where feasible, a judge other than the trial judge may be
assigned to a case to conduct settlement negotiations, as long as
the parties agree to participate. Through July 1998, settlement
judges were assigned in 319 cases; settlements were achieved in
197 or just about 62 percent of those cases. In the two full years
following implementation of the rule, judges increased their set-
tlements by about 15 percent over those in the two years prior to
the rule—from an average of 572 settlements annually to an aver-
age of 718.’’ Four-and-one-half Year Report By William B. Gould IV,
Chairman, National Labor Relations Board (1994–1998), at 8.
54. ‘‘He has the right to appear at the hearing in person or by
counsel and to call, examine and cross-examine witnesses. 29 CFR:
§§[sic]102.38 and 101.10 (b)(2). He is entitled to a review of an
adverse Board decision by the court of appeals, 29 USCA 160(f ).’’
Kellwood Co. v. NLRB, 411 F.2d 493, 499–500 (8th Cir. 1968).
Charging parties who are wholly successful before the Board may
intervene in review proceeding by the court of appeals; Interna-
tional Union, Local 283 v. Scofield, 382 U.S. 205 (1965). However, in
injunctive proceedings under 29 USC §160(e) (2000) the charging
party may appear by counsel and present any relevant testimony
but may not initiate an appeal nor intervene as a party; Solien
v. Miscellaneous Drivers & Helpers U., Local No. 610, 440 F.2d 124,
130–211 (8th Cir.).
55. George Joseph Orchard Siding, Inc., 325 NLRB 252 (1998). Cf.
Domsey Trading Corp., 325 NLRB 429 (1998) (the employer can be
forced to bear the cost of an interpreter for its witness in back pay
cases where the only issue is interim earnings and mitigation of
damages).

56. ‘‘From February 1995 through July 1998, NLRB judges issued
102 bench decisions. In the first six months of fiscal 1998,
about seven percent of the total decisions issued by judges were
bench decisions. Overall, only 49 percent of bench decisions were
appealed—a figure much lower than the roughly 70 percent rate
at which written judges’ decisions are appealed. Moreover, out of
the 65 bench decisions which have been decided by the Board or
which have been adopted pro forma by the Board, only seven or
10.8 percent have gone for decision to the court of appeals.’’ Four-
and-one-half Year Report, supra, at 8–9.
57. ‘‘Believing that the Board had not held enough oral argu-
ments in the past, I thought they would bring us some of the
advantages of rule making (i.e., participation by outsiders as ami-
cus [friends of the court]). The Board would benefit through the
oral argument itself, as well as through the filing of briefs, and the

270 Notes to Pages 60–61

 industrial relations community would gain a greater sense of in-
clusion. This proved to be an overly optimistic perception and, in
the political environment of 1995 and beyond, utterly naı̈ve.’’ Wil-
liam B. Gould IV, Labored Relations: Law, Politics, and the NLRB—A
Memoir (2000), at 175.

58. ‘‘The Board shall have the power to petition a court of appeals
of the United States . . . within any circuit . . . wherein the unfair
labor practice in question occurred or wherein such person resides
or transacts business, for the enforcement of such order and for
the appropriate temporary relief or restraining order, and shall
file in the court the record in the proceedings. . . .’’ NLRA §10(e);
29 USC §160(e) (2000). While the statute vests the Board with this
authority, the Board has delegated these powers to the General
Counsel since at least 1955. Recently, however, the Board has
begun to cut back on the General Counsel’s enforcement powers,
requiring that all appeals court briefs and pleadings be reviewed
by the Board’s solicitor one week before they are to be heard in
court. See Labor Relations Yearbook (BNA) 230 (1983). There is
also frequent controversy about whether an appeal should go to
the Court of Appeals for the District of Columbia (the location
of the Board) or one of the other circuits where the unfair labor
practice occurred. See remarks by Abner J. Mikva, ‘‘Court Shop-
pers: And They’re Off and Running,’’ Annual Luncheon of Sec-
tion of Labor and Employment Law, American Bar Association,
August 12, 1981 (unpublished). In Universal Camera Corp. v. NLRB,
340 U.S. 474 (1951), the Court held that judicial review of Board
orders should be based on the ‘‘record considered as a whole’’ and
that the courts of appeals should defer to Board decisions unless
they ‘‘cannot conscientiously find that the evidence supporting the
decision is substantial.’’
59. See generally, www.supremecourtus.gov, Supreme Court of the
United States.

Chapter 5
1. Even when an exclusive bargaining agent has been chosen, the
law says that ‘‘any individual employee or a group of employees
shall have the right at any time to present grievances to their em-
ployer and to have such grievances adjusted, without the interven-
tion of the bargaining representative, as long as the adjustment is
not inconsistent with the terms of a collective bargaining contract
or agreement then in effect: Provided further, that the bargaining
representative has been given opportunity to be present.’’ 29 USC
§159(a) (2000).

271 Notes to Pages 61–65

 2. The Board so ruled in Excelsior Underwear, Inc., 156 NLRB 1236
(1966). Seven justices approved of the rule in NLRB v. Wyman-
Gordon Co., 394 U.S. 759 (1969) (Fortas, J. for the court, and Black,
J. concurring). A wide variety of defects have plagued the Board in
administering and implementing Excelsior. In North Macon Health
Care Facility, 315 NLRB 359 (1994), the Board held that full names
and not mere initials were required, and in Fountainview Care Cen-
ter, 323 NLRB 990 (1997) (Chairman Gould concurring at 990), it
was held that bad faith or gross negligence is not required to con-
clude that a failure to comply with Excelsior is objectionable. Inac-
curate addresses serve as a basis for setting aside a close election
even though a corrected list is belatedly provided. Mod Interiors,
Inc., 324 NLRB 164 (1997). Accord, American Biomed Ambulette, Inc.,
325 NLRB 911, 911 (1998) (Chairman Gould concurring at 911).
See also Thiele Industries, Inc., 325 NLRB 1122 (1998) (Chairman
Gould concurring at 1123), where the Board stressed that an in-
formed electorate is the objective. Contra, Bear Truss, Inc., 325
NLRB 1162 (1998), where the Board concluded, over Chairman
Gould’s dissent at 1162, that an election need not be set aside
where the employer submitted ten inaccurate addresses out of 142
eligible voters and where the vote was 67 for and 69 against the
union.
3. Technology Service Solutions, 324 NLRB 298 (1997), Chairman
Gould concurring but addressing a view that the majority refused
to, i.e. the right of union officials to discuss organization with
employees within the unit where employee efforts were ‘‘severely
hampered because, due to the Respondent’s unusual operating
structure, unit employees are so dispersed and little known to each
other that they are effectively deprived of both their right to dis-
cuss organization among themselves and their right to learn the
advantages of self-organization from union representatives.’’ Id.
at 302. When a full Board ultimately considered the issue on the
merits the result was the same. Technology Services Solutions, 332
NLRB 1096 (2000), as modified by 334 NLRB 116 (2001).

4. See NLRB v. S&H Grossinger’s, Inc., 372 F.2d 26, 29 (2d Cir.
1967). For some of the general problems see W. B. Gould, ‘‘Taft-
Hartley Revisited: The Contrariety of the Collective Bargaining
Agreement and the Plight of the Unorganized,’’ 13 Lab. L. J. 348
(1962). For the status of paid full-time union organizers, see,
NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995).
5. Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959); Allied Letter-
craft Co., Inc., 273 NLRB 612 (1984). For evidence of the doctrine’s
current validity, see In re La Gloria Oil & Gas Co., 337 NLRB No.
177 (2002).

272 Notes to Page 66

 6. 321 U.S. 322 (1944).

7. Id. at 336.
8. Id. at 337–39.
9. Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86, 90 (3d Cir.
1943).

10. For example, NLRB v. Jacob E. Decker & Sons, 636 F.2d 129 (5th
Cir. 1981); NLRB v. Big Three Welding Equipment Company, 359 F.2d
77 (5th Cir. 1966).

11. Precise Window Manufacturing, Inc. v. NLRB, 963 F.2d 1105 (8th
Cir. 1992); NLRB v. Collier, 553 F.2d 425 (5th Cir. 1977); Bin-Dicator
Co., 356 F.2d 201 (6th Cir. 1966); Family Nursing Home & Rehabili-
tation Ctr., Inc., 295 NLRB 923 (1989).
12. Mt. Healthy City School District Board of Education v. Doyle, 429
U.S. 274 (1977).

13. Givhan v. Western Line Consolidated School District, 439 U.S. 410
(1979).
14. W. Gould, ‘‘The Supreme Court and Labor Law: The October
1978 Term,’’ 21 Ariz. L. Rev. 621, 622–625 (1979).

15. 251 NLRB 1083 (1980); NLRB v. Great Dane Trailers, Inc., 388
U.S. 26 (1967).
16. 251 NLRB 1083 (1980). A majority of the Board does not
accept the proposition that the tests should simply apply to the
remedy issued against the employer. Paper Mart, 319 NLRB 9
(1995) (Chairman Gould concurring at 12).

17. 462 U.S. 393 (1983).

18. Id. at 403.
19. Id. at 401 n.6.

20. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), American
Ship Building Co. v. NLRB, 380 U.S. 300 (1965), Radio Officers’ Union
v. NLRB, 347 U.S. 17 (1954); Local 357, Teamsters v. NLRB, 65 U.S.
667 (1961). One of a wide variety of issues relating to discrimina-
tion is whether the award of superseniority to union stewards is
lawful. See, for example, NLRB v. Milk Drivers & Dairy Employees,
Local 338, 531 F.2d 1162 (2d Cir. 1976); United Electrical Radio &
Machine Workers of America, Local 623 (Limpco), 230 NLRB 406
(1977) enforced sub nom. D’Amico v. NLRB, 582 F.2d 820 (3d Cir.
1978); Gulton Electro-Voice, Inc., 266 NLRB 406, enforced sub nom.

273 Notes to Pages 67–70

 Local 900, International Union of Electrical, Radio & Machine Workers
v. NLRB, 727 F.2d 1184 (D.C. Cir. 1984); NLRB v. Niagara Machine
& Tool Workers, 746 F.2d 143 (2d Cir. 1984); (2d Cir. 1984); Local
1384, UAW v. NLRB, 756 F.2d 482 (7th Cir. 1985); NLRB v. Harvey
Hubble, Inc., 767 F.2d 1100 (4th Cir. 1985); NLRB v. Wayne Corp.,
776 F.2d 745 (7th Cir. 1985); WPIX, Inc. v. NLRB, 870 F.2d 858 (2d
Cir. 1989); NLRB v. Joy Technologies, Inc., 990 F.2d 104 (3d Cir.
1993).

21. NLRB v. Burnup and Sims, Inc., 379 U.S. 21 (1964). In this
decision the Supreme Court held that an employer’s good-faith
discharge of employees engaged in protected activities whom he
mistakenly believed in good faith to have engaged in misconduct
was a violation of the Act. Even if the employee is not engaged in
protected activities the discharge may still be unlawful where the
employer is ‘‘. . . aware that a union organizing campaign is under-
way . . . [because] the employer’s action has the same potential
deterrent effect on other employees. . . .’’ Ideal Dyeing & Finishing
Co., Inc. 300 NLRB 303 (1990); accord, Teledyne Industries, Inc., 295
NLRB 161 (1989). Teledyne Industries, Inc., 295 NLRB 161 (1989),
enforced 911 F.2d 1214 (6th Cir. 1990). For recent cases applying
Burnup & Sims, see Webco Industries, Inc. v. NLRB, 217 F.3d 1306
(10th Cir. 2000); Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24 (D.C.
Cir. 1998); Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733 (4th Cir.
1998).

22. 324 U.S. 793 (1945); W. B. Gould, ‘‘The Question of Union

Activity on Company Property,’’ 18 Vand. L. Rev. 73 (1964); W. B.
Gould, ‘‘Union Organizational Rights and the Concept of Quasi-
public Property,’’ 49 Minn. L. Rev. 505 (1965). The new and
contemporary Republic Aviation issue is whether the principles
established apply to the right of employees to use e-mail for pro-
tected and concerted activities. The Board has answered in the af-
firmative. Timekeeping Systems, Inc., 323 NLRB 244 (1997); Office of
the General Counsel Case Nos. 12 CA-18446 et al. (Feb. 23, 1998).
See generally, Susan Robfogel, ‘‘Electronic Communications and
the NLRA: Union Access and Employer Rights,’’ 16 Labor Lawyer
231 (2000). In 2001, both houses of the California legislature
passed SB 147, subsequently vetoed by the governor, that would
have prohibited an employer from secretly monitoring the elec-
tronic mail of other computer records generated by an employer.
The California Supreme Court has held that e-mails critical of
corporate employment practices do not constitute the tort of tres-
pass to chattels. See Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003).
23. 324 U.S. at 802–803 and 802 n.8.

274 Notes to Pages 70–71

 24. Id. at 803 n.10.

25. T.R.W. Bearings, 257 NLRB 442 (1981).

26. Our Way, Inc., 268 NLRB 394 (1984). Noting that the Fair La-
bor Standards Act requires employers to count breaks of less than
twenty minutes duration as hours worked for minimum and over-
time purposes and that employees are generally paid for this time,
the Board has taken the view that employees will understand that
such breaks are not encompassed by the term ‘‘work time’’ in a
no-solicitation or distribution rule of the employer. Jay Metals, Inc.,
308 NLRB 167 (1992).
27. 268 NLRB at 395. The Board, Member Zimmerman’s dis-
sent notwithstanding, was of the view that, until T.R.W. Bearings,
‘‘working time’’ rules were presumptively lawful. The Board relied
upon Essex International, 211 NLRB 749 (1974).

28. Hammary Manufacturing Corp., 265 NLRB 57 (1982); Saint Vin-

cent’s Hospital, 265 NLRB 38 (1982). For recent Board decisions
that indicate the exception’s continuing validity, see In re Fleming
Companies, Inc., 336 NLRB 192 (2001); Woodland Clinic, 331 NLRB
735 (2000); Four B Corp., 325 NLRB 186 (1997).
29. 265 NLRB at 58, n.4; Serv-Air, Inc. v. NLRB, 395 F.2d 557 (10th
Cir. 1968).

30. Emerson Electric Co., U.S. Electrical Motor Division, 187 NLRB 294
(1970). Employee rights have had more difficult sledding where
the employer itself solicits or distributes literature during working
time. Generally, this is not a violation of the statute. NLRB v. United
Steelworkers of America (Nutone, Inc.), 357 U.S. 357 (1957); Beverly
Enterprises—Hawaii, d/b/a Hale Nani Rehabilitation & Nursing Center,
326 NLRB 335 (1998) (Chairman Gould dissenting at 361).
31. NLRB v. Babcock and Wilcox Co., 351 U.S. 105, 112 (1956). The
rule relating to nonemployee access under the California Agricul-
tural Labor Relations Act appears to be more liberal. See Agricul-
tural Labor Relations Board v. Superior Court, 16 Cal. 3d 392 (1976).
32. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 107, n.1 (1956).
The Court of Appeals for the Eleventh Circuit has held in Southern
Services, Inc. v. NLRB, 954 F.2d 700 (11th Cir. 1992) that where an
employer and its subcontractor prohibit employee distribution of
literature during nonworking time, the rules of Republic Aviation
Corp. and not Babcock & Wilcox apply. Said the court:
. . . the modern practice of subcontracting for services does not auto-
matically curtail section 7 rights. Nor does the conduct of distributing

275 Notes to Pages 71–72

 union literature transform the status of a subcontract employee such
as Copeland [the employee in question] from that of a business invitee
to that of a mere trespasser . . . When the relationship situates the sub-
contract employee’s workplace continuously and exclusively upon the
contracting employer’s premises, the contracting employer’s rules
purporting to restrict that subcontract employee’s right to distribute
union literature among other employees of the subcontractor must
satisfy the test of Republic Aviation. Our holding is narrow. We do
not intend [as the employer’s] . . . apparently fear, to extend distribu-
tion rights to casual visitors on [the subcontractor’s] . . . property or
to the host of other business invitees who enter there, such as fire-
men, policemen, auditors, and utility workers. The rule we announce
applies to subcontract employees whose continuous and exclusive
workplace is on [the subcontractor’s] . . . premises, and affects only
their right to distribute union literature to their fellow subcontract
employees in non-working areas during non-working time. (Id. at
704–05.)

33. 351 U.S. at 112–13.

34. NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974).

35. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
36. See Local 174, International Union, UAW v. NLRB, 645 F.2d
1151 (D.C. Cir. 1981), in which distributing literature on company
property was held unprotected when ‘‘the principal thrust of the
leaflet was to induce employees to vote for specific candidates, not
to educate them on political issues relevant to their employment
conditions.’’ Id. at 1154. Compare Fun Striders, Inc. v. NLRB, 686
F.2d 659 (9th Cir. 1981). See Motorola, Inc., 305 NLRB 580 (1991)
where the Board held that the distribution to employees of litera-
ture prepared by the Citizens Advocating the Protection of Privacy
as an appeal to legislators to protect the employees interests was
protected under Eastex. This was part of an effort to pass a city
ordinance banning mandatory drug testing in the workplace and
concerned the employees’ working conditions because they faced
the implementation of mandatory drug testing and the possibility
of discharge or discipline for refusing to be tested. Running for
union office has been regarded as unprotected conduct. Office and
Professional Employees International Union, AFL-CIO v. NLRB, 981
F.2d 76 (2d Cir. 1992).
37. 406 U.S. 535 (1972).
38. Id. at 545.
39. Id. at 544–45.

40. Id. at 547.

276 Notes to Pages 72–74

 41. 424 U.S. 507 (1976).

42. Id. at 521–22, footnote omitted.

43. Scott Hudgens, 230 NLRB 414 (1977).
44. Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S.
308 (1968), overruled in Hudgens, 424 U.S. 507, 518 (1976).

45. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). Only

New Jersey has followed the lead of California in extending free
speech protections to privately owned shopping centers. New Jersey
Coalition against War in the Middle East v. J.M.B. Realty Corp., 650
A.2d 757, 138 N.J. 326 (1994). Moreover, California itself has
appeared to limit ‘‘state action’’ situations. Golden Gateway Center v.
Golden Gateway Tenants Ass’n, 26 Cal.4th 1013, 111 Cal.Rptr.2d 336
(2001). Intermediate positions have been adopted by Massachu-
setts and Colorado. Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d
590, 388 Mass. 83 (1983); Bock v. Westminster Mall Co., 819 P.2d 55
(CO 1991). The dominant view is that free speech rights do not
extend to private property. IOWA: City of West Des Moines v. Engler,
641 N.W.2d 803 (2002) (finding that its state constitution’s free
speech protections are coextensive with the First Amendment);
NEVADA: S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243 (2001) (co-
extensive with the First Amendment); OREGON: Stranahan v. Fred
Meyer, Inc., 11 P.3d 228, 331 Or. 38 (2000) (refusing to require
private property owner to permit signature solicitation for a ballot
initiative under state constitution’s initiative section, but declining
to analyze issue under the more general free speech provision);
GEORGIA: Cahill v. Cobb Place Associates, 519 S.E.2d 449, 271 Ga. 322
(1999) (coextensive with First Amendment); MINNESOTA: State v.
Wicklund, 589 N.W.2d 793 (Minn. 1999) (coextensive with First
Amendment); OHIO: Eastwood Mall v. Slanco, 626 N.E.2d 59, 68
Ohio St. 3d 221 (1994) (coextensive with First Amendment); MON-
TANA: Helena v. Krautter, 852 P.2d 636, 258 Mont. 361 (1993) (coex-
tensive with First Amendment); SOUTH CAROLINA: Charleston Joint
Venture v. McPherson, 417 S.E.2d 544, 308 S.C. 145 (1992) (coex-
tensive with First Amendment); ILLINOIS: People v. DiGuida, 604
N.E.2d 336, 152 Ill.2d 104 (1992) (finding that the private prop-
erty in question failed the state action requirement); HAWAII: Estes
v. Kapiolani Women’s & Children’s Medical Center, 787 P.2d 216, 71
Haw. 190 (1990) (coextensive with First Amendment); WASHINGTON:
Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d
1282, 113 Wash.2d 413 (1989) (failed state action requirement);
ARIZONA: Fiesta Mall Venture v. Mecham Recall Committee, 767 P.2d 719,
159 Ariz. 371 (1988) (failed state action requirement); WISCONSIN:
Jacobs v. Major, 407 N.W.2d 832, 139 Wis.2d 492 (1987) (failed state

277 Notes to Pages 74–76

 action requirement); PENNSYLVANIA: Western Pennsylvania Socialist
Workers 1982 Campaign v. Connecticut General Life Insurance Co.,
515 A.2d 1331, 512 Pa. 23 (1986) (finding that state constitution’s
free speech provision provides greater protection than the First
Amendment, but not permitting it to trump other state constitu-
tional protections for private property absent legislation); MICHI-
GAN: Woodland v. Michigan Citizens Lobby, 378 N.W.2d 337, 423 Mich.
188 (1985) (failed state action requirement); NEW YORK: SHAD Alli-
ance v. Smith Haven Mall, 488 N.E.2d 1211, 66 N.Y.2d 496 (1985)
(failed state action requirement); CONNECTICUT: Cologne v. Westfarms
Ass’n, 469 A.2d 1201, 192 Conn. 48 (1984) (failed state action re-
quirement); NORTH CAROLINA: State v. Felmet, 273 S.E.2d 708, 302
N.C. 173 (1981) (providing no extended discussion or rationale).
46. Seattle First National Bank, 243 NLRB 898 (1979), modified, 651
F.2d 1272 (9th Cir. 1980); see also Grant Food Store Markets v. NLRB,
241 NLRB 727 (1979), rev’d., 633 F.2d 18 (6th Cir. 1980). Subse-
quent to these initial decisions under the authority of Jean Country,
291 NLRB 11 (1988), discussed infra, the Board over the emphatic
dissent of Member Johansen, held picketing unprotected since the
audience could be reached effectively outside the building. 40–41
Realty Associates, 288 NLRB 200 (1988), affirmed mem. sub nom.
Amalgamated Dental Union Local 32-A v. NLRB, 867 F.2d 1423 (2d
Cir. 1988). See, however, where the employees and customers have
been more difficult to reach because of the absence of a single
entrance to the building the picket activity has been viewed by the
Board as protected. Little & Co., 296 NLRB 691 (1989); see also
Polly Drummond Thriftway, 292 NLRB 331 (1989), enforced. 882
F.2d 512 (3d Cir. 1989).

47. Hutzler Bros. v. NLRB, 630 F.2d 1012 (4th Cir. 1980).
48. Fairmont Hotel, 282 NLRB 139 (1986).
49. 291 NLRB 11 (1988).

50. Id. at 13.

51. Id.
52. Id. at 16.

53. Id.
54. Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
55. Id. at 532.

56. Id. at 540. See Nabors Alaska Drilling, 325 NLRB 574 (1998)
(holding that the employer violated Section 8(a)(1) when it inter-

278 Notes to Pages 76–77

 fered with an election by denying union representatives access to
employees who worked on its remote Alaskan oil drilling rigs and,
thus, ordering second representation election).
57. Lechmere, 502 U.S. at 540. Distribution of literature by off-duty
employees on company property is protected under Section 7.
Tri-County Medical Center, 222 NLRB 1089 (1976); E.R. Carpenter,
284 NLRB 273 (1987); Orange Memorial Hospital, 285 NLRB 1099
(1987); St. Luke’s Hospital, 300 NLRB 836 (1990); NLRB v. Pizza
Crust Co., 862 F.2d 49 (3d Cir. 1988); NLRB v. Ohio Masonic Home,
892 F.2d 449 (6th Cir. 1989); Sahara Tahoe Corp., 292 NLRB 812
(1989).

58. Sentry Markets, Inc., 296 NLRB 40 (1989), enforced 914 F.2d
113 (7th Cir. 1990). See also, The Red Stores, Inc., 296 NLRB 450
(1989). Area wage standard activity, a form of consumer publicity,
while viewed as protected activity because of the union’s legitimate
interest in protecting the wage standards of its members who
are employed by competitors of the employer that is picketed or
handbilled, ‘‘. . . falls [nonetheless] at a relatively weak point along
the continuum of possible activities protected by Section 7.’’ Id.
at 453. Chairman Stephens expressed the view in a concurring
opinion that ‘‘Section 7 does not extend to the protection of
appeals against ownership of companies by persons of foreign
nationalities, at least where there is no claim that workers are
being discriminated against or otherwise mistreated or that jobs
are being exported.’’ Id. at 545. But the Board has not subscribed
to Chairman Stephen’s view. When a union engages in union or-
ganizational activities, access has been granted to an offshore oil
platform. See McDermott Marine Construction, 305 NLRB 617 (1991).
Accord, Laborer’s Local Union No. 24 v. NLRB, 904 F.2d 715 (D.C.
Cir. 1990).
59. Sparks Nugget, Inc., v. NLRB, 968 F.2d 991 (9th Cir. 1992).

60. But employees may solicit nonemployees. Stanford Hospital v.

NLRB, 325 F.3d 334, vacated 2003 U.S. App. LEXIS 9506 (D.C. Cir.
2003).

61. International Society for Krishna Consciousness, Inc. v. Lee, 60

USLW 4749 (1992). While the Krishna decision does not apply to
labor, First Amendment rights were first held applicable to union
activity in Thomas v. Collins, 323 U.S. 516 (1945). The Supreme
Court in Watchtower Bible & Tract Society of New York, Inc., v. Village
of Stratton, 536 U.S. 150 (2002), has held that a locality may not
prohibit door-to-door advocacy in connection with religious and
political speech. The Court has thus far avoided resolution of the

279 Notes to Pages 77–78

 constitutional protection to be afforded corporate free speech
where individuals sue for unfair and deceptive practices alleging
false statements or material omissions of fact. Nike, Inc. v. Marc
Kasky, ___ U.S. ___, 123 S. Ct. 2554 (2003) (per curiam opinion
dismissing writ of certiorari as improvidently granted). See National
Treasury Employees Union v. King, 798 F.Supp. 780 (D.D.C. 1992).
62. Sparks Nugget, 968 F.2d at 997–98. See especially, Reisbeck Food
Markets, Inc., 315 NLRB 940 (1994), petition for review granted
and cross-petitions for enforcement denied, unpublished memo-
randum decision, 91 F.3d 132 (4th Cir. 1996); Dow Jones and Com-
pany, Inc., 318 NLRB 574 (1995); Cleveland Real Estate Partners, 316
NLRB 158 (1995), enforcement denied 95 F.3d 457 (6th Cir.
1996); Four B Corp. d/b/a Price Chopper, 325 NLRB 186 (1997),
enforced 163 F.3d 1177 (10th Cir. 1998).

63. Davis Supermarkets, Inc., 306 NLRB 426 (1992); New Jersey Bell
Telephone Co., 308 NLRB 277 (1992); Susquehanna United Super, Inc.,
308 NLRB 201 (1992). The Court of Appeals for the Sixth Circuit
has denied nonemployee union organizers access to retail estab-
lishments in which an imbalance in communication flows was pre-
viously presumed to exist. Oakwood Hospital v. NLRB, 983 F.2d 698
(6th Cir. 1993).

64. Makro Inc., and Renaissance Properties Co., d/b/a Loehmann’s

Plaza, 316 NLRB 109 (1995) (Chairman Gould concurring at 114),
rev. denied sub nom. UFCW Local No. 880 v. NLRB, 74 F.3d 2992
(D.C. Cir. 1996); Leslie Homes Inc., 316 NLRB 123 (1995) (Chair-
man Gould concurring at 131), rev. denied sub. nom. Metropolitan
Dist. Council United Brotherhood of Carpenters & Joiners v. NLRB, 68
F.3d 71 (3d Cir. 1995).

65. San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959).
66. Sears, Roebuck & Co. v. San Diego County District Council of Car-
penters, 436 U.S. 180, 198–207 (1978).
67. In Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), the
Court held that an unfair labor practice may not be found on a
basis of the employer’s initiation of a state court proceeding on
which it has a reasonable basis for filing. But the Court held that
its holding was inapplicable to preemption cases in which the
states lack jurisdiction. In ILA v. Davis, 476 U.S. 380 (1986), the
Court held that preemption could not be presumed on the basis of
a mere filing of a charge without putting forth ‘‘enough evidence
to enable the court to find that the Board reasonably could uphold
a claim based upon such an interpretation.’’ Id. at 395. Prior to the

280 Notes to Pages 78–79

 issuance of a complaint, the filing of a lawsuit can only be the basis
of an unfair labor practice violation where independent evidence
of a retaliatory or unlawful purpose is proved. And under Bill
Johnson’s itself, a 5–4 majority of the Court has concluded that re-
taliatory motives cannot be inferred from the filing of an unmer-
itorious but nonbaseless suit. BE & K Construction Co. v. NLRB, 536
U.S. 516 (2002).
68. Makro, Inc., 305 NLRB 663 (1991). There is an affirmative
obligation to terminate the lawsuit which is designed to enjoin the
picketing. Oakwood Hospital, 305 NLRB 680 (1991). The Makro
decision applies to criminal charges as well. Johnson & Hardin Co.,
305 NLRB 690 (1991), enf. denied 49 F.3d 237 (6th Cir. 1995).
69. New Jersey Bell Telephone Co., 308 NLRB 277, 281 (1992).
70. Marshall Field & Co., 98 NLRB 88 (1952), enforced as modi-
fied, Marshall Field & Co. v. NLRB, 200 F.2d 375 (7th Cir. 1953);
May Department Stores Co., 59 NLRB 976 (1944), enforced as modi-
fied, 154 F.2d 533 (8th Cir. 1946); Goldblatt Bros., Inc., 77 NLRB
1262 (1948); Montgomery Ward & Co., Inc. v. NLRB, 692 F.2d 1115
(7th Cir. 1982); Montgomery Ward & Co. v. NLRB, 782 F.2d 389 (6th
Cir. 1984); Ameron Automotive Center, a Division of the Kelly-Springfield
Tire Co., 265 NLRB 511 (1982); F.W. Woolworth Company d/b/a
Woolco Division, 265 NLRB 511 (1982); Hughes Properties, Inc. d/b/a
Harolds Club, 267 NLRB 1167 (1985), enforced 758 F.2d 1320 (9th
Cir. 1985). Cf. Farm Fresh, Inc., 326 NLRB 997 (1998), rev. granted
222 F.3d 1030 (D.C. Cir.), on remand 332 NLRB 1424 (2000).
71. Marriott Corp., 223 NLRB 978 (1976); Bankers Club, Inc., 218
NLRB 22 (1975); McDonald’s Corp., 205 NLRB 404 (1973); see
generally Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978); Times
Publishing Co. v. NLRB, 605 F.2d 847 (5th Cir. 1979).
72. See supra note 1, chapter 3.
73. St. John’s Hospital and School of Nursing, Inc., 222 NLRB 1150
(1976).
74. Beth Israel Hospital v. NLRB, 437 U.S. 483, 495 (1978). In Man-
chester Health Center v. NLRB, 861 F.2d 50 (2d. Cir. 1988), the court
held that a rule which was part of a strike settlement subsequent
to a ‘‘bitter and divisive strike’’ could properly limit discussion of
union affairs to nonpatient areas bearing nonwork done because
(1) there was not a competing labor organization for which there
could be made a claim that the antisolicitation rule was designed
to suppress its activities; (2) the rules were not discriminatory,
applied evenhandedly to strikers and nonstrikers; (3) the rule

281 Notes to Page 79

 applied to other forms of discussion about controversial matters in
the presence of patients.
75. NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979). The wearing
of union insignia or a button as a statutory section 7 right has fre-
quently conflicted with dress codes. Holladay Park Hospital and Ore-
gon Nurses Association, Inc., 262 NLRB 26 (1982); Pay’n Save Corp. v.
NLRB, 641 F.2d 697 (9th Cir. 1981); NLRB v. Harrah’s Club, 337
F.2d 177 (9th Cir. 1964); Davison-Paxor Co. v. NLRB, 462 F.2d 364
(5th Cir. 1972); Midstate Telephone Corp. v. NLRB, 706 F.2d 401 (2d
Cir. 1983); Southern California Edison Company, 274 NLRB 1121
(1985); Mt. Clemens General Hospital v. NLRB, 328 F.3d 837 (6th Cir.
2003); USF Red Star, Inc., 339 NLRB No. 54 (2003).
76. Cashway Lumber, Inc., 202 NLRB 380 (1973).
77. Vincent’s Steak House, 216 NLRB 647 (1975); Helton v. NLRB,
658 F.2d 583 (D.C. Cir. 1981); Container Corporation of America,
244 NLRB 318 (1979), enforced in part sub nom. NLRB v. Con-
tainer Corporation of America, 649 F.2d 1213 (6th Cir. 1981); NLRB v.
Honeywell Inc., 722 F.2d 405 (8th Cir. 1983); ITT McDonnel and
Miller, 267 NLRB 1093 (1983); Roadway Express, Inc. v. NLRB, 831
F.2d 1285 (6th Cir. 1987). Apparently literature that might not be
tolerated as a union insignia can be protected when it is displayed
on a bulletin board. Southern Bell Telephone Company, 276 NLRB
1053 (1985).
78. May Department Store, 136 NLRB 797 (1962), enforcement
denied, 316 F.2d 797 (6th Cir. 1962). But the Sixth Circuit did find
an imbalance where there were also unfair labor practices in
Montgomery Ward and Co. v. NLRB, 339 F.2d 889 (6th Cir. 1965).

79. NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362
U.S. 274 (1960).
80. Id. at 284.
81. Id.

82. 29 USC §158(b)(7) (2000) provides that it shall be an unfair

labor practice for a labor organization or its agents to picket or
cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor organization as the
representative of his or her employees, or forcing or requiring the
employees of an employer to accept or select such labor organiza-
tion as their collective bargaining representative, unless such labor

282 Notes to Pages 79–81

 organization is currently certified as the representative of such
employees:
a. where the employer has lawfully recognized in accordance with this
subchapter any other organization and a question concerning repre-
sentation may not appropriately be raised under section 159(c) of this
title,
b. where within the preceding twelve months a valid election under
section 159(c) has been conducted, or
c. where such picketing has been conducted without a petition under
section 159(c) of this title being filed within a reasonable period of
time not to exceed thirty days from the commencement of such pick-
eting: Provided, That when such a petition has been filed the Board
shall forthwith, without regard to the provisions of section 159(c) (1)
of this title or the absence of a showing of substantial interest on the
part of the labor organization, direct an election in such a unit as the
Board finds to be appropriate and shall certify the results thereof:
Provided further, That nothing in this subparagraph (c) shall be con-
strued to prohibit picketing or other publicity for the purpose of
truthfully advising the public (including consumers) that an employer
does not employ members of, or have a contract with, a labor organi-
zation, unless an effect of such picketing is to induce any individual
employed by any other person in the course of his employment, not
to pick up, deliver, or transport any goods or not to perform any ser-
vices. Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
subsection.

83. For example, Giant Food Markets, Inc., 241 NLRB 727 enforce-
ment denied, 633 F.2d 18 (6th Cir. 1980); cf. O’Neil’s Market v.
NLRB, 95 F.3d 733 (8th Cir. 1996) to the effect that a bona fide
attempt to investigate area wage standards must be made; see also
International Hod Carriers, Local No. 41 (Calumet Contractors Associa-
tion), 133 NLRB 512 (1961) and Houston Building and Construction
Trades Council (‘‘Claude Everett Construction’’), 136 NLRB 321 (1962).
The union has a duty to investigate substandard wages and con-
ditions to make the area wage standard picketing claim. NLRB v.
Great Scot, 39 F.3d 678 (6th Cir. 1994). The Supreme Court has had
to address difficult problems involving an uncertified union’s
picket line in the construction industry prior to its establishment
of majority status. See NLRB v. Local 103, Iron Workers, 434 U.S. 335
(1978).
84. Thornhill v. Alabama, 310 U.S. 88 (1940).

85. International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., 354

U.S. 284 (1957). The Court there discussed earlier cases, including
Building Service Employees v. Gazzam, 339 U.S. 532 (1950), Interna-
tional Brotherhood of Teamsters v. Hanke, 339 U.S. 470 (1950) and

283 Notes to Pages 81–82

 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). The dis-
tinction is discussed in A. Cox, ‘‘Strikes, Picketing, and the Con-
stitution,’’ 4 Vand. L. Rev. 574, 591–602 (1950–51). Picketing in
furtherance of an unlawful objective is not protected by the First
Amendment. See, most recently, NLRB v. Retail Store Employees’
Union, 447 U.S. 607, 616 (1980); Carvel Corporation, 273 NLRB 516
(1984). But see Miller v. United Food and Commercial Workers Union,
Local 498, 708 F.2d 467 (9th Cir. 1983); Johansen v. San Diego County
Council of Carpenters, 745 F.2d 1289 (9th Cir. 1984).
86. Burlington Northern Railroad Co. v. Brotherhood of Maintenance of
Way Employes, 481 U.S. 429 (1987). In Burlington, Justice Brennan,
speaking for a unanimous Court, said:
The historical background of the Norris-LaGuardia Act thus reveals
that Congress intended to preclude courts from enjoining secondary
as well as primary activity, and that the railroads were to be treated no
differently from other industries in this regard. (Id. at 439)

87. Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616
(1975); Cf. United Mine Workers v. Pennington, 381 U.S. 657 (1965).

88. As Judge Reinhardt’s opinion in NLRB v. Ironworkers Local 433,

850 F.2d 551, 556–7 (9th Cir. 1988) notes, there are no magic
incantations of phrases or words that constitute sufficient evidence
to establish the threat of economic pressure.
89. NLRB v. International Rice Milling Co., 341 U.S. 665 (1951). Cf.
NLRB v. Local 825, Operating Engineers, 400 U.S. 297 (1971). Sec-
ondary activity may be inferred from the type of tactic employed,
such as a ‘‘shop in’’ or ‘‘affinity group shopping.’’ Pye v. Teamsters
Local 122, 61 F.3d 1013 (1st Cir. 1995). An appeal to engage in a
stoppage must be found. See Warshawsky & Company, 325 NLRB
748, 748 (1998) (Chairman Gould concurring), enforcement
denied 182 F.3d 948 (D.C. Cir. 1999), stating that there must be
more evidence to support such an appeal than a ‘‘nod, wink, and a
smile. In the final analysis, a finding of a violation must be based
on something more than the mere fact that the employee ceased
work in response to the respondent’s conduct.’’ The Board has
held, as a matter of first impression, that a union did not violate
the statute by threatening to picket, picketing, and leafleting a
neutral employer because an object of those actions was to enforce
the union’s certification by the Board. United Food & Commercial
Workers, Local No. 1996, 336 NLRB 421 (2001).
90. NLRB v. Business Machines and Office Appliance Mechanics Con-
ference Board, Local 459 IUE (‘‘Royal Typewriter’’), 228 F.2d 553 (2d
Cir. 1955); Douds v. Metropolitan Federation of Architects, 75 F.Supp.

284 Notes to Pages 82–84

 672 (S.D.N.Y. 1948). Sometimes the ally doctrine issues involve
the question of whether two companies are in fact one employer
given common ownership and interrelationship of operations.
See, for example, Boich Mining Co., 301 NLRB 872 (1991).
91. See supra note 39, chapter 4.

92. The Court has held that a valid work-preservation objective

may exist even where technological innovation makes it impossi-
ble for the union to pursue the identical work performed in the
past by bargaining-unit members. See NLRB v. International Long-
shoremen’s Union, AFL-CIO, 447 U.S. 490 (1980) [hereinafter ILA I];
NLRB v. International Longshoremen’s Association, AFL-CIO, 473 U.S.
61 (1985) [hereinafter ILA II]. Similar problems arise under the
Taft-Hartley Amendments as well where, for instance, unions
picket to reinstate an employer-employee relationship, where the
employer now deals with independent contractors, notwithstand-
ing the fact that independent contractors are not covered by the
Act. Chipman Freight Services, Inc. v. NLRB, 843 F.2d 1224 (9th Cir.
1988); Production Workers, Local 707 v. NLRB, 793 F.2d 323 (D.C.
Cir. 1986); Military Traffic Management Command, 288 NLRB 1224
(1988). However, secondary pressure cannot be aimed at self-
employed individuals or independent contractors for the purpose
of imposing compulsory membership upon them even if the object
is to have them remain union members. Local 812, International
Brotherhood of Teamsters v. NLRB, 947 F.2d 1034 (2d Cir. 1991).

93. 341 U.S. 675 (1951).

94. Id. at 690.
95. Local 761, International Union of Electrical, Radio and Machine
Workers, AFL-CIO v. NLRB, 366 U.S. 667 (1961). A reserved gate
may be improperly ‘‘tainted’’ if used by employees of the primary
employer in more than a de minimis fashion. See Mautz & Oren, Inc.
v. Teamsters, Shelvers & Helpers Union, Local 279, 882 F.2d 1117 (7th
Cir. 1989). In Oil Workers Local 1-591 (Burlington Northern Railroad),
325 NLRB 324 (1998), the Board, over the dissent of Members Fox
and Liebman, held that the union, which was engaged in a labor
dispute with a subcontractor working on the premises of a neutral
refinery, violated Section 8(b)(4)(B) by picketing at the refinery
gate reserved for the neutral railroad that transported the prod-
uct of the neutral refinery. See concurring opinion of Chairman
Gould at 330.
96. The bill (H.R. 4250) was approved by the House Education
and Labor Committee; 94 Labor Relations Reporter No. 23, p. 1
(March 21, 1977). The full House defeated the bill on March 23 by

285 Notes to Pages 84–85

 a vote of 217–205; Id. no. 25, p. 1 (March 28, 1977). See also J.F.
Hoff Electric Co. v. NLRB, 642 F.2d 1266 (D.C. Cir. 1980). See espe-
cially the standards for common situs picketing set forth in Moore
Dry Dock, 92 NLRB 547 (1950).
97. The veto occurred on January 5, 1976 (Bureau of National
Affairs, Labor Relations Yearbook 8, 1976).
98. Connell Constr. Co. v. Plumbers Local 100, 421 U.S. 616 (1975).
The obverse of the Connell question—namely whether unions can
complain under the antitrust law against employer conspiracies to
boycott unionized contractors—was answered negatively in an 8–1
decision of the Court. Associated General Contractors of California, Inc.
v. California State Council of Carpenters, 459 U.S. 519 (1983).
99. 456 U.S. 645 (1982). See also Indeck Energy Services, 325 NLRB
1084 (1998) (Chairman Gould concurring at 1087).

100. 456 U.S. at 600. The Court stated that the top-down effect was
‘‘limited’’ in a number of ways by other provisions of the NLRA:
(1) prohibitions against recognitional picketing, (2) the right of
employees to challenge a construction union’s representative sta-
tus despite a valid pre-hire agreement, (3) prohibitions against
discrimination against nonunion members in the hiring hall, (4)
the Denver Building Trades protection of employees employed by
nonunion contractors.
101. Id. at 663–64.
102. NLRB v. Fruit and Vegetable Packers, Local 760 (‘‘Tree Fruits’’),
377 U.S. 58 (1964).
103. Id. at 61 n.3. See NLRB v. Servette, Inc., 377 U.S. 46 (1964); 129
U. Pa. L. Rev. 221 (1981).

104. 377 U.S. at 72. See also Carey v. Brown, 447 U.S. 455 (1980).
105. NLRB v. Retail Store Emp. Union Local 1001, 447 U.S. 607
(1980).
106. Id. at 616. The Court acted upon the earliest NLRA second-
ary boycott case in which First Amendment arguments had been
rejected. Electrical Workers v. NLRB, 341 U.S. 694, 705 (1951).
107. 447 U.S. at 619 (Stevens J., concurring).

108. International Longshoremen’s Ass’n v. Allied International, 456

U.S. 212, 226–27 n.26 (1982). Compare Coastal Stevedoring Co., 323
NLRB 1029 (1997), remanded at Longshoremen ILA Assn. v. NLRB,
56 F.3d 205 (D.C. Cir. 1995), where a Board majority found that

286 Notes to Pages 85–88

 the court opinion precluded a finding that Japanese unions were
the agents of an American union under any theory of agency. See
Chairman Gould dissenting at 1031.
109. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). See gen-
erally Harper, ‘‘The Consumer’s Emerging Right to Boycott:
NAACP v. Claiborne Hardware and Its Implications for American
Labor Law,’’ 93 Yale L. J. 409 (1984).
110. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Trades
Council, 485 U.S. 568 (1988).
111. Id. at 575. Earlier the constitutional issues were avoided in
Edward J. DeBartolo v. NLRB, 463 U.S. 147 (1983). On remand,
the Board has applied the ‘‘struck product’’ analysis utilized by the
Supreme Court in secondary consumer picketing cases. The Ed-
ward J. DeBartolo Corp., 273 NLRB 1431 (1985); see generally Service
Employees, Local 399 v. NLRB, 723 F.2d 746 (9th Cir. 1984); Gold-
man, ‘‘The First Amendment and Nonpicketing Labor Publicity
under Section 8(b)(4)(ii)(B) of the National Labor Relations
Act,’’ 36 Vand. L. Rev. 1469 (1983).

112. 485 U.S. at 576. (Emphasis supplied.)

113. 395 U.S. 575 (1969).
114. Id. at 602. The Fourth Circuit had found the cards to be
inherently unreliable. See Id. at 585. Employees are presumed
to have designated the union as their bargaining agent where the
authorization card so states unless oral misrepresentations clearly
cancel the language on the card. A single purpose authorization
card remains valid for bargaining order purposes even if the solic-
itor orally represents that the purpose is to obtain an election. The
Board has taken the position that ambiguous cards, which state
that the union will represent the signer in ‘‘collective bargaining’’
and that the ‘‘purpose’’ of the card is to obtain an election, will not
establish a basis for a Gissel bargaining order. Nissan Research and
Development, Inc., 296 NLRB 598 (1989), Member Craycraft dis-
senting at 600. But some of the circuits have accepted dual pur-
pose cards in support of a bargaining order. See NLRB v. Fosdal
Electric, 367 F.2d 784 (7th Cir. 1966); Auto Workers v. NLRB, 366
F.2d 702 (D.C. Cir. 1966); NLRB v. C.J. Glasgow Co., 356 F.2d 476
(7th Cir. 1966); Sahara Datsun v. NLR, 811 F.2d 317 (9th Cir.
1987); NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359 (9th
Cir. 1981). The Board, over Member Dennis’s dissent, will not use
or rely upon English-language cards for Spanish speakers. Superior
Container, Inc., 276 NLRB 521 (1985). But see NLRB v. American Art
Industries, 415 F.2d 1223 (5th Cir. 1969).

287 Notes to Pages 88–89

 115. 395 U.S. at 602. Rather, determination of whether a Gissel
order is necessary rests on consideration of both the nature and
pervasiveness of the employer’s misconduct as well as the amount
of turnover. Where the Board finds that a practice is particularly
pervasive or enduring, it need make only minimal findings that the
effects have not been dissipated by subsequent employee turnover.
Conversely, where the practices at issue are not especially pervasive
or permanent in nature, the Board needs to make careful deter-
minations respecting the effect of subsequent employee turnover.
Amazing Stores, Inc. v. NLRB, 887 F.2d 328 (D.C. Cir. 1989); Power,
Inc. v. NLRB, 40 F.3d 409 (D.C. Cir. 1994). The same circuit has
held that the Board must explain why traditional remedies and a
rerun election will not effectuate the purposes of the Act and
provide specific findings. Overnight Transportation Co. v. NLRB, 280
F.3d 417 (4th Cir. 2002); Vincent Industrial Plastics v. NLRB, 240
F.3d 325 (D.C. Cir. 2000); Skyline Distributors v. NLRB, 99 F.3d 403
(D.C. Cir. 1996); Avecor, Inc. v. NLRB, 931 F.2d 924 (D.C. Cir.
1991); Somerset Welding & Steel, Inc. v. NLRB, 987 F.2d 777 (D.C.
Cir. 1993). Mere turnover is not a basis for elimination of the duty
to bargain. Scepter, Inc. v. NLRB, 280 F.3d 1053 (D.C. Cir. 2002).
But many circuits have taken the position that considerable turn-
over with substantial passage of time and changed circumstances
at the plant can be a basis for a representation election and not
a Gissel bargaining order. Overnight Transportation Co. v. NLRB, 280
F.3d 417, 435–36 (4th Cir. 2002); HarperCollins San Francisco v.
NLRB, 79 F.3d 1324 (2d Cir. 1996); NLRB v. Cell Agric. Mfg. Co., 41
F.3d 389 (8th Cir. 1994); Somerset Welding & Steel, Inc. v. NLRB, 987
F.2d 777 (D.C. Cir. 1993). Impact Industries, Inc. v. NLRB, 847 F.2d
379 (7th Cir. 1988); Montgomery Ward & Co., Inc. v. NLRB, 904 F.2d
1156 (7th Cir. 1990); NLRB v. Koenig Iron Works, Inc., 856 F.2d 1
(2d Cir. 1988). But delay and turnover will not work against the
Gissel order where ordering another election would ‘‘. . . merely by
sending the parties back to the Board’s glacial processes with no
assurance that years from now a certification based upon a second
election will not be challenged on exactly the same grounds . . .
[we strive to] marginally reduce the incentives of employers to
take advantage of the Board’s inexcusably slow processes.’’ NLRB
v. Star Color Plate Service, 843 F.2d 1507 (2d Cir. 1988). See also
NLRB v. U.S.A. Polymer Corp., 272 F.3d 289 (5th Cir. 2001). Where
an employer voluntarily grants recognition to one union and
another union subsequently files a petition for an election based
upon support prior to the grant of recognition, the petition is
barred unless the petitioning union demonstrates that it had a 30-
percent showing of interest at the time of the other union’s rec-
ognition. Smith’s Food & Drug Centers, Inc., 320 NLRB 844 (1996)

288 Notes to Page 89

 (see especially Chairman Gould’s concurring opinion at 847).
Compare In re Seattle Baseball Club, 335 NLRB 393 (2001). Accord
Scott ex. rel. NLRB v. Stephen Dunn & Assoc., 241 F.3d 652 (9th Cir.
2001), where the court held that: (1) a district court has the au-
thority to issue an interim bargaining order under §10( j), and (2)
the potential wasted resources resulting from the collective bar-
gaining process are not sufficient to ‘‘balance the hardships’’ in an
employer’s favor and thereby defeat an interim bargaining order,
where it is likely that the result of the unfair practice charge will be
the issuance of a Gissel bargaining order.
116. 29 USC §159(c)(1)(B) (2000). See Gissel, 395 U.S. at 594–95.
Where an employer voluntarily recognizes a union, it waives its
right to insist upon an election. NLRB v. Creative Food Design Ltd.,
852 F.2d 1295 (D.C. Cir. 1988).

117. Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301
(1974).
118. United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d 1054
(3d Cir. 1980). J.P. Stevens & Co., Gulutan Div. v. NLRB, 441 F.2d
514 (5th Cir. 1971). Where two unions are competing, the Board
has regarded the cards as unreliable; Midwest Piping & Supply Co.,
63 NLRB 1060 (1945). However, the Board has modified Midwest
Piping so that an employer is obliged to bargain with an incumbent
union despite the filing of a rival union representation petition,
RCA Del Caribe, Inc., 262 NLRB 963 (1982). Moreover unlawful
company assistance will not be equated with company recognition
of a rival union in an initial organizational context before a valid
election petition has been filed and where the recognized union’s
majority is uncoerced and unassisted.

119. 242 NLRB 1026 (1979). See also ‘‘United Dairy Farmers Co-
operative Association: NLRB Bargaining Orders in the Absence of
a Clear Showing of a Pro-union Majority’’ (comment), 80 Colum.
L. Rev. 840 (1980). The discussion of this case is taken from W.
Gould, ‘‘Recent Developments under the National Labor Act: The
Board and the Circuit Courts,’’ 14 U.C. Davis L. Rev. 497 (1981).

120. 242 NLRB 1026 (1979).

121. Id.
122. United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d at
1066.
123. The Third Circuit has also had occasion to deal with the Gissel
bargaining order problem in a case where the union did not hold

289 Notes to Pages 89–90

 a majority of authorization cards: NLRB v. K&K Gourmet Meats,
Inc., 640 F.2d 460 (3d. Cir. 1981). See also NLRB v. Unit Train Sales,
636 F.2d 1121 (6th Cir. 1980).
124. 633 F.2d at 1066.
125. Id. at 1067.

126. Id. at 1068.

127. Id. at 1069.
128. Id. at 1069, n.16. On remand, Chairman Fanning and Mem-
ber Jenkins adhered to their original view that the Board possesses
the requisite authority to fashion a bargaining order. Member
Zimmerman, without expressing a view, acceded to the Third Cir-
cuit view; United Dairy Farmers, 257 NLRB 772 (1981).
129. Conair Corp., 261 NLRB 1189 (1982).
130. Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983).

131. 270 NLRB 578 (1984). The opportunity to reverse Gourmet

Food in the 1990s presented itself in Nabors Alaska Drilling, Inc., 325
NLRB 574, 574 (1998) (Chairman Gould dissenting in part). But it
was not utilized.

132. 270 NLRB at 586–87.

133. Section (8)(f ) states that it is not an unfair labor practice to
conclude an agreement in the building and construction industry
with a labor organization because (1) majority status ‘‘. . . has not
been established under the provisions of section 8 of this Act prior
to the making of such an agreement or (2) such agreement
requires, as a condition of employment, membership in such labor
organization after the seventh day following the beginning of such
employment or the effective date of the agreement, whichever is
later . . . .’’
134. 282 NLRB 1375 (1987) enforced 843 F.2d 770 (3d Cir. 1988).
Cf. Comtel Systems Technology, Inc., 305 NLRB 287 (1991). The
Courts of Appeals for the First, Seventh, Eighth, Ninth, and Tenth
Circuits have adopted Deklewa as a reasonable construction of
the Act. See NLRB v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384,
1393–95 (10th Cir. 1992) (en banc); C.E.K. Indus. Mechanical-
Contractors, Inc. v. NLRB, 921 F.2d 350, 357 (1st Cir. 1990); NLRB v.
Bufco Corp., 899 F.2d 608, 609, 611 (7th Cir. 1990); NLRB v. W.L.
Miller Co., 871 F.2d 745, 748 (8th Cir. 1989); Mesa Verde Constr. Co.
v. Northern California Dist. Council of Laborers, 861 F.2d 1124, 1129–

290 Notes to Pages 90–93

 34 (9th Cir. 1988) (en banc). The Fourth Circuit has not adopted
Deklewa. Industrial TurnAround Corp. v. NLRB, 115 F.3d 248
(4th Cir. 1997). The Fifth Circuit, in United Brotherhood of Carpenters
and Joiners Local Union 953 v. Mar-Len of Louisiana, Inc., 906 F.2d
200 (5th Cir. 1990), declined to decide ‘‘whether the NLRB’s
present interpretation of §8(f ), announced in Deklewa, is the con-
trolling law in this circuit.’’ Id. at 203. The courts of appeals have
taken a variety of positions on what constitutes proof of majority
status or that the parties have established majority status or agreed
to its subsequent recognition. See, for instance, NLRB v. Oklahoma
Installation Co., 219 F.3d 1160 (10th Cir. 2000); NLRB v. Triple C
Maintenance, 219 F.3d 1147 (10th Cir. 2000).
135. 282 NLRB at 1385 (footnotes omitted). A recently expired
construction industry agreement will serve as an adequate show-
ing of interest or surrogate for the normal 30 percent require-
ment. Stockton Roofing Co., 305 NLRB 719 (1991). An employer may
not file a representation petition when confronted with a union
demand that it sign a section 8(f ) agreement because such an
agreement provides for no presumption of majority status subse-
quent to its expiration. PSM Steel Construction, Inc., 309 NLRB 1302
(1992); Albuquerque Insulation Contractor, 256 NLRB 61 (1981).

136. Card check and similar procedures have become increasingly

popular. In fact, AFL-CIO Secretary-Treasurer Richard Tromka
has said that in 2002 only 20 percent of new union members were
organized through NLRB-conducted elections. See ‘‘Unions: La-
bor Needs to Find New Approaches in Order to Stem Decline,
Academics Agree,’’ 81 Daily Lab. Rep. C-1 (BNA), Apr. 28, 2003.
While Chairman of the NLRB, I noted that while a union will save
time if it avoids the Board’s slow election process, ‘‘many employ-
ers won’t recognize unions without the compulsion of law.’’ Frank
Swoboda, ‘‘To the AFL-CIO, There’s No Place Like Home,’’ Wash-
ington Post, March 16, 1997, at H1.
137. But Majestic Weaving Co., Inc., 147 NLRB 859, 864 (1964), en-
forcement denied on other grounds 355 F.2d 854 (2d Cir. 1966),
arguably precludes such agreements.
138. See generally, Adrienne C. Eaton and Jill Kriesky, Union
Organizing under Neutrality & Card Check Agreements, 55 Indus. &
Lab. Rel. Rev. 42 (2001); Roger C. Hartley, Non-Legislative Labor
Law Reform and Pre-Recognition Labor Neutrality Agreements: The Newest
Civil Rights Movement, 22 Berkeley J. Emp. & Lab. L. 369, 401
(2001); George N. Davies, Neutrality Agreements: Basic Principles of
Enforcement and Available Rememdies, 16 Lab. Law. 215 (2000).

291 Notes to Page 93

 139. 255 F.Supp.2d 1199 (C.D. Cal. 2002), pending appeal (9th
Cir. 03-55169. 03-55166).
140. California Assembly Bill 1889 (2002), sought to amend Cal.
Govt. Code §§16645 et seq.
141. Lockyer, 225 F.Supp.2d at 1205. The court relies on §8(c),
which ‘‘manifests a congressional intent to encourage free debate
on issues dividing labor and management.’’ Id. at 1204 (quoting
Linn v. United Plant Guard Workers, 383 U.S. 53, 62 (1966)). The
court relied upon both San Diego Building Trades Council v. Garmon,
359 U.S. 236, 243–44 (1959), and Machinists v. Wisconsin Employ-
ment Relations Commission, 427 U.S. 132, 138 (1976).

142. See ‘‘NLRB Asks New York, New Jersey Officials to Explain
Their Labor Neutrality Laws,’’ 236 Daily Lab. Rep. (BNA) A-1
(Dec. 9, 2002). See ‘‘NLRB 3-2 Authorizes General Counsel to
Oppose California Labor Neutrality Law,’’ 105 Daily Lab. Rep.
(BNA) A-9 ( June 2, 2003); Cf. Roger C. Hartley, ‘‘Preemption’s
Market Participant Immunity—A Constitutional Interpretation:
Implications of Living Wage and Labor Peace Policies,’’ 5 U. Pa. J.
Lab. & Emp. L. 229, 248–49 (2003); Cynthia L. Eastlund, ‘‘The
Ossification of American Labor Law,’’ 102 Colum. L. Rev. 1527,
1569–79 (2002).

143. The Board has held that a union’s proposed neutrality

agreement is not a demand for recognition which will trigger
an NLRB election. In re Brylane, L.P., 338 NLRB No. 65, 2002 WL
31674875 (2002); see generally Andrew M. Kramer, Lee E. Miller,
and Leonard Bierman, Neutrality Agreements: The New Frontier in
Labor Relations—Fair Play or Foul, 23 B.C.L. Rev. 39, 63–72 (1981);
see also Goodless Electric Co., 332 NLRB No. 96 Slip op. at 4 (2000),
vacated 337 NLRB No. 190 (2002); Tweedle Litho, Inc., 337 NLRB
No. 102 (2002) and particularly Verizon Information Systems, 335
NLRB No. 44 (2001) where the Board dismissed a petition for
election because of a pending arbitration over the appropriate
scope of the bargaining unit that was occurring pursuant to the
parties’ ‘‘Memorandum of Agreement Regarding Neutrality and
Card Check Recognition.’’
144. Riverside Community Hospital, Case 21-CA-35537, Advice Mem-
orandum dated July 8, 2003.

145. Neutrality agreements are enforceable in the courts where

they do not interfere with the NLRB representation process.
See, e.g., SEIU v. St. Vincent Medical Center, ___ F.3d ___, 2003 WL
22155042 (9th Cir. 2003); United Ass’n, Local 342 v. Valley Eng’rs,
975 F.2d 611, 614 (9th Cir. 1992); Hotel and Restaurant Employees

292 Notes to Page 94

 Union Local 317 v. J.P. Morgan Hotel, 996 F.2d 561 (2d Cir. 1993);
New York Health and Human Services Union v. NYU Hospitals Center,
___ F.3d ___, 173 L.R.R.M. 2211, 2003 WL 22073034, at *2 (2d Cir.
2003); AK Steel Corp., v. United Steelworkers, 163 F.3d 403, 406 (6th
Cir. 1998). See also UAW v. Dana, Corp., 278 F.3d 548 (6th Cir.
2002) (holding that an employer’s voluntary agreement with a
union where the employer agreed to silence itself did not violate
federal labor policy).

146. The presumption of majority status during the one year cer-
tification period is irrebuttable. Brooks v. NLRB, 348 U.S. 96 (1954).
The Board has held that an employer has no right to withdraw
recognition from a union on the basis of an antiunion petition
circulated and presented to the employer during the certification
year, even if the withdrawal takes place after the certification year
ends. Chelsea Industries, Inc., 331 NLRB 1648 (2000).
147. Indeed the Board has held that four weeks of bargaining and
less than three months of recognition was a reasonable period of
time after which majority status could be questioned. Tajon, Inc.,
269 NLRB 327 (1984). See also Brennan’s Cadillac, Inc., 231 NLRB
225 (1977) (3 months adequate; two members dissenting). Cf.
Vantran Elec. Corp., 231 NLRB 1014 (1977) (4 12 months inadequate;
one member dissenting), enforcement denied, 580 F.2d 921 (7th
Cir. 1978). In MGM Grand Hotel Inc., 329 NLRB 464 (1999), a
majority of the Board, over the dissent of Member Hurtgen and
Member Brame, held that under the circumstances of the case
eleven months was not a reasonable period of time. After a rea-
sonable period of time has elapsed, a good-faith doubt about the
incumbent union’s majority status may be manifested through ei-
ther a good-faith doubt that the union possesses majority status or
actual evidence of lack of majority status. Levitz Furniture Co. of the
Pacific, Inc., 333 NLRB No. 105 (2001). The Board has held that an
affirmative bargaining order is the standard appropriate remedy
for the restoration of the status quo after an employer’s unlawful
withdrawal of recognition from an incumbent union and a sub-
sequent refusal to bargain. Caterair International, 322 NLRB 64
(1996), remanded at 222 F.3d 1114 (D.C. Cir. 1994), cert. denied
115 S.Ct. 575 (1994). And in Lee Lumber and Building Material Corp.,
322 NLRB 175 (1996) aff ’d. in part and remanded in part, 117
F.3d 1454 (D.C. Cir. 1997), the Board held that some unfair labor
practices taint evidence of a union’s subsequent loss of majority
support.

148. AFL-CIO No-Raiding Pact. There are problems in bring-

ing together all parties in one proceeding. See Transportation-
Communication Employees Union v. Union Pacific Railroad, 385 U.S.

293 Notes to Pages 94–95

 157 (1966); Columbia Broadcasting System v. American Recording v.
Broadcasting Association, 414 F.2d 1326 (2d Cir. 1969).
149. Appalachian Shale Products Co., 121 NLRB 1160 (1958).
150. Id.
151. Id.

152. Hershey Chocolate Corp., 121 NLRB 90 (1958); General Extrusion

Co., 121 NLRB 1165 (1958).
153. General Cable Corp., 189 NLRB 1123 (1962), set the maximum
time at three years. The Board has refused to extend the period in
which a contract acts as a bar to a representation petition from
three to four years, despite my contention that there has been a
significant increase in the number of paper industry contracts with
a duration of at least four years. Dobbs International Services, Inc., 323
NLRB 1159, 1159 (1997) (Chairman Gould dissenting). American
Seating Corp., 106 NLRB 250 (1950) had set the bar at the lesser
period of the agreement and a permitted maximum period (then
two years).

Chapter 6
1. NLRB v. Insurance Agents’ International Union, 361 U.S. 477
(1960).
2. Id. at 488–89.
3. Two of the leading cases taking opposite sides are Anchortank,
Inc. v. NLRB, 618 F.2d 1158 (5th Cir. 1980) and Ontario Knife v.
NLRB, 687 F.2d 840 (2d Cir. 1980). These and other decisions are
discussed in W. Gould, ‘‘Recent Developments under the National
Labor Relations Act: The Board and the Circuit Courts,’’ 14 U.C.
Davis L. Rev. 497 (1981). See generally A. Cox, ‘‘The Right to
Engage in Concerted Activities,’’ 26 Ind. L. J. 819 (1951).

4. The Board’s rule is set forth in Alleluia Cushion Company, 221

NLRB 999 (1975). The Sixth Circuit approved the rule in NLRB v.
Lloyd A. Fry Co., 651 F.2d 442 (6th Cir. 1981). But see Krispy Kreme
Doughnut Corp. v. NW, 685 F.2d 804 (4th Cir. 1980).
5. Meyers Industries, Inc., 268 NLRB 493, 497 (1984), remanded sub
nom. Price v. NLRB, 755 F.2d 941 (D.C. Cir. 1985). The Second
Circuit has been less patient with the Board. Ewing v. NLRB, 732
F.2d 1117 (2d Cir. 1985). See also JMC Transport, Inc. v. NLRB,
272 NLRB 545 (6th Cir. 1985). Application of the Meyers Industries
rule is set forth in Access Control Systems, 270 NLRB 823 (1984);

294 Notes to Pages 95–99

 Mannington Mills, Inc., 272 NLRB 176 (1984); Bearden and Company
d/b/a, D.A. Collins Refractories, 272 NLRB 1215 (1984). The Meyers
Industries approach was adhered to in the 1990s in Myth, Inc., d/b/a
Pikes Peak Pain Program, 326 NLRB 126 (1998) (Chairman Gould
dissenting at 326). The employees must be employees of the em-
ployer and not another company. Alldata Corp. v. NLRB, 245 F.3d
803 (D.C. Cir. 2001).
6. 465 U.S. 822 (1984).

7. Id. at 840.
8. ABF Freight Systems, Inc., 271 NLRB 35 (1984).
9. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). However, a mi-
nority union representative does not have the right to represent
employees even in the railway industry. Landers v. National Railroad
Passenger Corp., 485 U.S. 652 (1988). The Justice Department vio-
lated federal public sector law by not permitting an employee to
have a union representative present when he was questioned by
GAO investigators. Department of Justice v. Federal Labor Relations
Authority, 266 F.3d 1228 (D.C. Cir. 2001).

10. New Jersey Bell Telephone Co., 308 NLRB 277 (1992).
11. Taracorp Industries, A Division of Taracorp, Inc., 278 NLRB 376
(1984). In Consolidated Edison, 323 NLRB 910 (1997), the Board
held that while the employer violated its employees’ Weingarten
rights of four employees over a four year period, it refused to
order a unit-wide remedy because there was no evidence that the
employer ‘‘carefully crafted a knowingly unlawful policy’’ of pre-
cluding union representation during investigatory interviews.
12. Materials Research Corp., 262 NLRB 1010 (1982).

13. E.I. du Pont de Nemours v. NLRB, 707 F.2d 1076 (9th Cir. 1983);
ITT Corporation v. NLRB, 719 F.2d 851 (6th Cir. 1983); E.I. du Pont
de Nemours v. NLRB, 724 F.2d 1061 (3d Cir. 1988).
14. Sears, Roebuck & Co., 274 NLRB 230 (1985). Cf. Taracorp Indus-
tries, supra note 11. The Court of Appeals for the Third Circuit
followed the Board’s reversal in Slaughter v. NLRB, 876 F.2d 11 (3d
Cir. 1989). The Court of Appeals for the Fifth Circuit has reached
this result in connection with the Railway Labor Act. Johnson v.
Express One International, 944 F.2d 247 (5th Cir. 1991).
15. Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000),
enforced in relevant part, 268 F.3d 1095 (D.C. Cir. 2002).

295 Notes to Pages 99–100

 16. Eg., Lafayette Park Hotel, 326 NLRB 824 (1998), (Chairman
Gould concurring and dissenting), enforced 203 F.3d 52 (D.C. Cir.
1999); University Medical Center, 335 NLRB 1318 (2001).
17. New York Times v. Sullivan, 376 U.S. 254 (1964); Letter Carriers v.
Austin, 448 U.S. 264 (1974); NLRB v. Greyhound Lines, Inc., 660 F.2d
854 (8th Cir. 1981). To some extent, public sector employees enjoy
First Amendment protection against employer retaliation for free
speech. Pickering v. Board of Education, 391 U.S. 563 (1968); Perry v.
Sindermann, 408 U.S. 593 (1972); Mt. Healthy City Board of Education
v. Doyle, 429 U.S. 274 (1977). A 5–4 majority of the Court has held
protected against discharge an employee who was dismissed for
stating the following when an attempt was made upon the life of
President Reagan in 1981: ‘‘If they go for him again, I hope they
get him.’’ Rankin v. McPherson, 483 U.S. 378 (1987). Said Justice
Marshall for the majority: ‘‘The burden of caution employees bear
with respect to the words they speak will vary with the extent of
authority and public accountability the employee’s role entails.
Where, as here, an employee serves no confidential, policymaking,
or public contact role, the danger to the agency’s successful func-
tion from that employee’s private speech is minimal.’’ Id. at 390.
But see also Connick v. Myers, 461 U.S. 188 (1988) and United States
v. National Treasury Employees Union, 513 U.S. 454 (1995), leaving
both job-related and non-job-related speech constitutionally
unprotected. The Pickering test applies even where, for instance,
school teachers advocate pedophilia—though such speech is also
unprotected. Melzer v. Board of Education, 336 F.3d 185 (2d Cir.
2003). Compare, however, protection afforded speech attacking
harassment, favoritism, nepotism, discrimination, and the allega-
tion that union-busting can cause workplace violence. Johnson v.
Ganim, 342 F.3d 105 (2d Cir. 2003).
18. Jeannette Corporation v. NLRB, 582 F.2d 916 (3d Cir. 1976).

19. For example, NLRB v. Red Top, Inc., 455 F.2d 721 (8th Cir.
1972); Bettcher Mfg. Corp., 76 NLRB 526 (1948).
20. Linn v. Plant Guard Workers, 883 U.S. 58, 58 (1966). However,
an employer may institute a well-founded libel and business inter-
ference action that has a reasonable basis in state law regardless
of retaliatory motive under the First Amendment and the Board
may not enjoin the action. Bill Johnson’s Restaurant v. NLRB, 461
U.S. 731 (1983). Summary dismissal of a state court action will
provide the basis for a finding of unlawful retaliatory conduct.
Phoenix Newspapers, 294 NLRB 47 (1989); H.W. Barss Co., Inc., 296
NLRB 1286 (1989). A union’s good-faith filing of criminal charges
against a company president can constitute protected union activ-

296 Notes to Page 100

 ity undertaken to vindicate section 7 rights to be free from physical
coercion and intimidation. Spartan Equipment Co., Inc., 297 NLRB
19 (1989). Contrarily, a divided Court has concluded that unions
are not liable under Reconstruction statutes to deprive nonunion
workers of First Amendment rights through violent behavior. Car-
penters Local 610 v. Scott, 463 U.S. 825 (1983). The Court of Appeals
for the Fifth Circuit has held that the Board’s exclusive jurisdiction
preempts the Civil Rights Act of 1871 actions aimed at obtaining
free elections. Hobbs v. Hawkins, 968 F.2d 471 (5th Cir. 1992).
21. Great Lakes Steel, 236 NLRB 1033 (1978). Accord, Samsonite
Corporation, 206 NLRB 848 (1978).

22. ‘‘Animal exuberance,’’ referred to in NLRB v. Illinois Tool Work,

153 F.2d 811, 815–16 (7th Cir. 1946), is taken from the Supreme
Court’s language in Milk Wagon Drivers v. Meadowmoor Dairies, Inc.,
812 U.S. 287, 293 (1941). In NLRB v. Thor Power Tool Company, 351
F.2d 584, 587 (7th Cir. 1965), the court stated that employees are
permitted ‘‘some way for impulsive behavior which must be bal-
anced against the employer’s right to maintain order and respect.’’

23. Tyler Business Services, Inc., 256 NLRB 567 (1981), enforcement
denied, 680 F.2d 838 (4th Cir. 1982). Where employee concerted
activity consists of joining together to protest the malicious work-
place rumors concerning the extramarital sexual conduct of two
female employees with a male coemployee, their conduct is pro-
tected. Gatliff Coal Co. v. NLRB, 953 F.2d 247 (6th Cir. 1992).

24. 846 U.S. 464 (1958).

25. The Patterson-Sargent Company, 115 NLRB 1627 (1956). Em-
ployee complaints to a newspaper’s advertisers constitutes pro-
tected activity rather than a product of disparagement in Sierra
Publishing Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989). Said Judge
Fletcher: ‘‘. . . the law does favor a robust exchange of viewpoints.
The mere fact that economic pressure may be brought to bear on
one side or the other is not determinative, even if some economic
harm actually is suffered. The proper focus must be the manner by
which that harm is brought about.’’ Id. at 2967. Of course, in order
for disloyalty to come into play, something more than an appeal
to employees is required. See Emporium Capwell Co. v. Western Addi-
tional Community Organization, 420 U.S. 50 (1975); United Cable
Television Corp., 299 NLRB 138 (1990); Kinder-Care Learning Centers,
Inc., 299 NLRB 1171 (1990); Golden Day Schools, 236 NLRB 1292
(1978), enfd. 644 F.2d 834 (9th Cir. 1981); But see Brownsville Gar-
ment Co., Inc., 298 NLRB 507 (1990); El San Juan Hotel, 289 NLRB
1453 (1988); Cincinnati Suburban Press, 289 NLRB 966 (1988);

297 Notes to Pages 100–101

 Sacramento Union, 291 NLRB 966 (1988), enfd. 899 F.2d 210 (9th
Cir. 1989).
26. George A. Hormel & Co. v. NLRB, 962 F.2d 1061 (D.C. Cir.
1992).
27. Coors Container Co. v. NLRB, 628 F.2d 1283, 1288 (10th Cir.
1980). The Board has also held that a union sticker on an employ-
ee’s crane is protected. Malta Construction Company, 276 NLRB
1464 (1985). Chairman Dotson dissented.

28. Sullair P.T.O., Inc., v. NW, 641 F.2d 500, 508 (7th Cir. 1981).
See also Timpte, Inc. v. NLRB, 590 F.2d 871 (10th Cir. 1979; Mary-
land Drydock Co. v. NLRB, 188 F.2d 588 (4th Cir. 1950); NLRB v.
Garner Tool & Die Manufacturing, Inc., 498 F.2d 263 (8th Cir. 1974);
Coors Container Co. v. NLRB, supra, note 27. A satiric letter which is
not ‘‘. . . a medium intended to resolve or call attention to condi-
tions of employment’’ is unprotected. New River Industries v. NLRB,
945 F.2d 1290 (4th Cir. 1991). Compare Felix Industries v. NLRB,
251 F.3d 1051 (D.C. Cir. 2001) (concluding that obscenities aimed
at an employer were unprotected) and Carleton College v. NLRB,
230 F.3d 1075 (8th Cir. 2000) (concluding that employer had a
legitimate reason for non-renewal of a contract in light of the
employee’s use of sarcastic and vulgar language, his characteriza-
tion of the college department as a ‘‘laughing stock’’ and a ‘‘pig,’’
and his lack of professionalism or loyalty).
29. NLRB v. Prescott Industrial Products Company, 500 F.2d 6, 11 (8th
Cir. 1974).
30. Southwestern Bell Telephone Company, 200 NLRB 667 (1972). The
language was more obviously obscene and similarly unprotected in
Caterpillar Tractor Company, 276 NLRB 1323 (1985). See also Honda
of America Manufacturing, Inc., 334 NLRB 746 (2001).
31. 980 F.2d 1027 (5th Cir. 1993). Similar language with a similar
result is found in Meco Corporation v. NLRB, 986 F.2d 1434 (D.C.
Cir. 1993).
32. Inland Steel Company, 257 NLRB 125 (1981). See also Borman’s
Inc. v. NLRB, 676 F.2d 1188 (6th Cir. 1982); Southern California
Edison Company, 274 NLRB 1121 (1985).
33. Caterpillar Inc., 321 NLRB 1178 (1996). Chairman Gould con-
curred at 1184, and expressed dissatisfaction with existing Board
and Court precedent:
[T]he level of managerial policy or hierarchy protested by the union
or employees should have little if anything to do with whether such

298 Notes to Pages 101–102

 employee activity is protected. Quite obviously, the level at which
managerial representatives are involved in employment conditions will
vary from company to company. While I am of the view that concerted
activity for the purpose of influencing management policy, which is
unrelated to employment conditions, is not protected under the Act,
the fact of the matter is that the presence or absence of a particular
corporate hierarchical structure or internal organization does not
provide the appropriate answer to the question of whether employee
activity is protected under Section 7 of the Act.

34. Sewell Mfg. Co., 138 NLRB 66 (1962).

35. Shepherd Tissue, Inc., 326 NLRB 369 (1998) (Chairman Gould
concurring at 369).

36. Novotel New York, 321 NLRB 624 (1996). However, the Court of
Appeals has been less protective. See Freund Baking Co. v. NLRB,
165 F.3d 928 (D.C. Cir. 1999).

37. Eldorado Tool, 325 NLRB 222 (1997) (Chairman Gould dis-
senting. Chairman Gould found that the display was a permissible
reference by the employer to its opponent’s record at other facili-
ties in the area and did not constitute either direct or indirect
threats of job loss or plant closure. Noting that there is nothing
in the display that suggests the employer will retaliate against
employees for union activities, Chairman Gould stated that, if the
employer’s statements are not complete or accurate, it is not the
Board’s role to compel the employer to become an apologist for
the union or any party.)

38. NLRB v. Nevis Industries, 647 F.2d 905 (9th Cir. 1981).
39. Kenrich Petrochemicals, Inc. v. NLRB, 907 F.2d 400 (3d. Cir.
1990).

40. NLRB v. Sheraton Puerto Rico Corp., 651 F.2d 49 (1st Cir. 1981).
41. 262 NLRB 402 (1982) aff ’d sub nom. Automobile Salesman’s
Union Local 1095 v. NLRB, 711 F.2d 888 (D.C. Cir. 1988).

42. Id. at 404.

43. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). Even if
the employees’ refusal to work is based upon their view that they
are ‘‘wet and uncomfortable [and seek] . . . to protest their super-
visor’s lack of concern,’’ their conduct is protected activity. Quality
C.A.T.V., Inc., 278 NLRB 1282 (1986). However, the Court of
Appeals for the Seventh Circuit seems to have assumed that the
reasonableness of the walkout is for judges to determine. Bob Evans

299 Notes to Pages 102–104

 Farms, Inc. v. NLRB, 163 F.3d 1012 (7th Cir. 1998); Trompler Inc., v.
NLRB, 338 F.3d 747 (7th Cir. 2003).
44. NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939). There are
exceptions to this rule in the case of ‘‘serious’’ unfair labor practi-
ces: see Arlan’s Department Store, 188 NLRB 802, 807 (1961); Mastro
Plastics v. NLRB, 350 U.S. 270 (1956); NLRB v. Northeast Oklahoma
City Mfg. Co., 681 F.2d 6691 (10th Cir. 1980); Dow Chemical Co. v.
NLRB, 686 F.2d 1852 (3d Cir. 1980); Caterpillar Tractor Co. v. NLRB,
658 F.2d 1242 (7th Cir. 1981). The Board has held that sympathy
strikes are unprotected activity when there is a broad no-strike
clause in the collective bargaining agreement. Indianapolis Power &
Light Company v. NLRB, 898 F.2d 524 (7th Cir. 1990) enforcement
granted. However, the waiver must be clear and unmistakable.
Children’s Hospital Medical Center v. Cal. Nurses Ass’n, 283 F.3d 1188
(9th Cir. 2002). Employer retaliation against union officials for
instigating or involving themselves with unprotected strike activity
may only be justified by an explicit waiver in the collective agree-
ment. Metropolitan Edison Company v. NLRB, 460 U.S. 693 (1983).
Where union officials are faced with dismissal for involvement in
such activities, the Board has held that relinquishment of the
union office for the term of the contract is lawful. Moreover the
strike is not deemed unprotected even if engaged in in the teeth
of a no-strike clause where objective evidence indicates that it was
engaged in because ‘‘abnormally dangerous’’ working conditions
prompted it. Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1974);
Anaconda Aluminum Co., 197 NLRB 336 (1972); TNS, Inc., 309
NLRB 1348 (1992). Meanwhile a cooling-off period imposed prior
to the contract’s expiration by section 8(d) of the Act obliges the
parties not to engage in strikes or lockouts, NLRB v. Lion Oil Co.,
352 U.S. 282 (1957), and where unions violate the obligation
workers lose their status as ‘‘employees’’ under the Act, Fort Smith
Chair Co., 143 NLRB 514, enforced 886 F.2d 788 (D.C. Cir. 1968).
The Board has held that the burden of filing statutory notification
with mediation agencies rests exclusively with the initiating party
(proposing contract modification) and that the initiating party’s
failure to file such a notice cannot serve to preclude the non-
initiating party from undertaking otherwise lawful economic
action. United Artists Communications, Inc., 274 NLRB 75 (1985),
overruling Hooker Chemical Corp., 224 NLRB 1535 (1976), enf.
denied 573 F.2d 965 (7th Cir. 1978). Where the employer encour-
ages the union to engage in a strike during the sixty-day period,
the employer may not avail itself of the protection that would
otherwise be afforded by section 8(d). ABC Automotive Products
Corp., 307 NLRB 248 (1992). But a divided Court of Appeals for the
District of Columbia has held that applicants who are in a hiring

300 Notes to Page 104

 hall and who could be referred to many employers are employees
who lose their protection under section 8(d) notwithstanding the
fact that they are not employees of the particular employers which
have the labor dispute. Theatrical Employees Local 39 v. NLRB 334
F.3d 27 (D.C. Cir. 2003). See particularly the excellent dissent of
Judge David Tatel at 37.
45. Hydrogics, Inc., 293 NLRB 1060 (1989). The Board in Speedrack,
Inc., 293 NLRB 1054 (1989) has stated that full-fledged bargaining
should occur in connection with reopeners, and that to do other-
wise would impose conditions that ‘‘. . . would turn reopener bar-
gaining into little more than a charade that would barely
differentiate from the kinds of discussion that may lawfully occur
even in the absence of a reopener.’’ Id. at 1055.
46. Elk Lumber Co., 91 NLRB 333 (1950); NLRB v. Montgomery Ward
& Co. Inc., 157 F.2d 486, 496 (8th Cir. 1946). See generally W.
Gould, ‘‘The Status of Unauthorized and (Wildcat) Strikes under
the National Labor Relations Act,’’ 52 Cornell L. Q . 672 (1967).
47. Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992); Mike Yurosek
& Son, Inc., 310 NLRB 831 (1993).
48. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), Johns-
Manvilk Products Corp. v. NLRB, 557 F.2d 1126 (5th Cir. 1977);
NLRB v. Pepsi-Cola Bottling Company, 449 F.2d 824 (5th Cir. 1971).
Roseville Dodge v. NLRB, 882 F.2d 1335 (8th Cir. 1989); Molon Motor
and Coil Corp .v. NLRB, 965 F.2d 532 (7th Cir. 1992). See Member
Dennis’s dissent in Waco, Inc., 273 NLRB 746 (1985). See Gould,
op. cit. The Board has taken the position that words as well as
physical conduct can constitute strike misconduct which justifies
the employer’s refusal to reinstate the striker. Clear Pine Mouldings,
Inc., 268 NLRB 1044 (1984). In this decision the Board repudiated
the Thayer doctrine, which balanced the severity of the employer’s
unfair labor practice against the gravity of the striker’s misconduct.
Moreover it is unlawful for employers to engage in disparate treat-
ment of strikers and nonstrikers who are equally culpable of mis-
conduct. Garrett Railroad Car v. NLRB, 683 F.2d 731 (3d Cir. 1982);
Member Johansen’s dissent in Bingham-Williamette Co., 279 NLRB
270 (1986).
49. The Emporium Capwell Co. v. Western Addition Community Organi-
zation, 420 U.S. 50 (1975); NLRB v. Draper Corp., 145 F.2d 199 (4th
Cir. 1944). Cf. Burlington Northern & Santa Fe Railway Co. v. Brother-
hood of Maintenance Way Employees, 286 F.3d 803 (5th Cir. 2002)
(issuing a preemptive injunction requiring ten-day notice before
striking after holding that a union’s repeated use of surprise

301 Notes to Page 104

 strikes violated the Railway Labor Act because the union did not
‘‘exert every reasonable effort’’ to settle all disputes before striking
and it did not exhaust the Act’s compulsory resolution mecha-
nism). The refusal to cross a picket line as well as the strike is pro-
tected. NLRB v. Rockaway News Supply Co., Inc., 345 U.S. 871 (1953),
NLRB v. Southern Greyhound Lines, 426 F.2d 1299 (5th Cir. 1970);
NLRB v. L.G. Everist, Inc., 334 F.2d 312 (8th Cir. 1964); ABS Co.,
269 NLRB 774 (1984); Business Services by Manpower, Inc., 272 NLRB
827 (1984); Dave Castellino & Sons, 277 NLRB 453 (1985).
50. NLRB v. R.C. Can Co., 328 F.2d 974 (5th Cir. 1964); Gould,
op. cit., pp. 678–80, 682–90. However, the court of appeals sub-
sequently warned that R.C. Can must be applied with ‘‘great care,’’
NLRB v. Shop Rite Foods, 430 F.2d 786, 790 (5th Cir. 1970), and the
Board appears to concur in this view, Energy Coal Income Partnership
1981–1, 269 NLRB 770 (1984); AAL, Inc., 275 NLRB 84 (1985). Cf.
Silver State Disposal Service, Inc., 326 NLRB 84 (1998) (Chairman
Gould concurring at 88).
51. 29 USC §§176 et seq. (2000). See, for example, United Steel-
workers v. United States, 361 U.S. 39 (1959); Youngstown Sheet and
Tube Co. v. Sawyer, 343 U.S. 579 (1952) (the steel seizure case). For
cases where district courts have issued injunctions under this
provision, see, for example, United States v. Pacific Maritime Ass’n,
229 F.Supp.2d 1008 (N.D. Cal. 2002); United States v. Int’l Long-
shoremen’s Ass’n., 337 F.Supp. 381 (1971); United States v. Portland
Longshoremen’s Benevolent Society, 336 F.Supp. 504 (D. Me. 1971);
United States v. Int’l Longshoremen’s Ass’n., 293 F.Supp. 97 (S.D.N.Y.
1968); United States v. Int’l Longshoremen’s Ass’n., 246 F.Supp. 849
(S.D.N.Y. 1964); United States v. Int’l Longshoremen’s Ass’n, 116
F.Supp. 255 (S.D.N.Y. 1953). However, it is important to note that
in United States v. Int’l Longshoremen’s Ass’n., 335 F.Supp. 501, 507
(N.D. Ill. 1971), aff ’d 1971 WL 2992 (7th Cir. 1971), the court
refused to ‘‘permit an interpretation of [29 U.S.C.] §178 that
would include economic injury as a controlling part of the ‘na-
tional health or safety.’’’

52. NLRA §§206–210.

53. Sen. Rep. No. 105 on S.B. 11 1126. Cong. Rec. 3951 Sen. (April
23, 1947) (remarks of Senator Taft). The experience with such
disputes has been chronicled in National Emergency Disputes Under
the Taft Hartley Act, 1947–77 (U.S. Dept. of Labor Bureau of Labor
Statistics 1978: Report 542).
54. United States v. Pacific Maritime Association, 229 F.Supp.2d 1008
(N.D. Cal. 2002). On this dispute, see generally William B. Gould

302 Notes to Pages 104–105

 IV, ‘‘Better Laws to Settle the Port Labor Dispute,’’ The New York
Times, Oct. 10, 2002, at A39.
55. See Steven Greenhouse, ‘‘Both Sides See Gains in Deal to End
Port Labor Dispute,’’ The New York Times, Nov. 25, 2002, at A14.
56. Dorchy v. Kansas, 272 U.S. 306 (1926), UAW v. Wisconsin Em-
ployment Relations Board, 336 U.S. 245 (1949); United Federation of
Postal Clerks v. Blount, 325 F.Supp. 879 (D.C.), aff ’d, 404 U.S. 802
(1971). By virtue of the doctrine of preemption, however, states
have been unable to restrict emergency strikes in the private sec-
tor. International Union UAW v. O’Brien, 339 U.S. 454 (1950); Street
Employees Division 1287 v. Missouri, 374 U.S. 74 (1963).

57. 304 U.S. 333 (1938).

58. Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996).
59. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990).
However, a union’s ability to effectively represent such workers
has been diminished by a decision of the Court of Appeals for the
Seventh Circuit to the effect that the union is not entitled to the
names of strike replacements even where a ‘‘clear and present
danger’’ that disclosure will result in harassment of such employ-
ees is not in evidence. Chicago Tribune Co. v. NLRB, 962 F.2d 712
(7th Cir. 1992).

60. 29 USC §159(c)(3) (2000). The right to vote exists whether

replacement has been accomplished by an outside permanent re-
placement or bargaining unit personnel. St. Joe Minerals Corp., 295
NLRB 517 (1989). Where the job is eliminated for economic rea-
sons unrelated to the strike itself, the right to vote is terminated.
Kable Printing Co., 238 NLRB 1092 (1978); K&W Trucking Co., 267
NLRB 68 (1983); Lamb-Grays Harbor Co., 295 NLRB 355 (1989).
The Board has held that even where workers have been laid off
but have a reasonable expectation of recall, there is no right to
vote beyond the twelve-month limitation. Thoreson-McCosh Inc., 329
NLRB 630 (1999), Members Fox and Liebman dissenting.
61. NLRB v. International Van Lines, 409 U.S. 48 (1972). The re-
sumption of the strike is not inconsistent with unconditional offers
to return. Dilling Mechanical Contractors v. NLRB, 107 F.3d 521 (7th
Cir. 1997). Each employee must make the offer to return uncon-
ditionally. Allied Mechanical Services v. NLRB, 113 F.3d 623 (6th Cir.
1997); Climate Control Corporation, 251 NLRB 751 (1980). ‘‘. . . [A]n
employer’s unfair labor practices during an economic strike do
not ipso facto convert it into an unfair labor practice strike. Rather
the General Counsel must prove that the unlawful conduct was a

303 Notes to Pages 105–107

 factor (not necessarily the sole or predominant one) that caused
a prolongation of the work stoppage. In determining this causal
nexus, the General Counsel may rely upon both subjective and
objective factors.’’ Chicago Beef Co., 298 NLRB 1039, 1039 (1990)
enf ’d. 944 F.2d 905 (6th Cir. 1991); C-Line Express, 292 NLRB 638
(1989) enforcement denied on other grounds, 873 F.2d 1150 (8th
Cir. 1989) ‘‘. . . unlawful discharges by their nature have a reason-
able tendency to prolong the strike and therefore afford a suffi-
cient basis for finding a conversion to an unfair labor practice
strike.’’ A causal connection between unfair labor practices and
the strike must be demonstrated in order to establish that employ-
ees are unfair labor practice strikers. L.A. Water Treatment, Divi-
sion of Chromalloy American Corp., 286 NLRB 868 (1987); Typoservice
Corp., 203 NLRB 1180 (1973). Gloversville Embossing Corp., 297
NLRB 182 (1989). Unlawful conduct that is incompletely cured
at the time of the strike does not make a strike an unfair labor
practice strike unless the conduct is a contributing cause to it.
General Industrial Employees Union, Local 42, Distillery Workers Inter-
national Union v. NLRB, 951 F.2d 1308 (D.C. Cir. 1991). Strikers
who are discharged are entitled to back pay from the date of
discharge without a request for reinstatement. Abilities & Good-
will, Inc., 241 NLRB 27 (1979); NLRB v. Lyon & Ryan Ford, Inc.,
647 F.2d 745 (7th Cir. 1981).
62. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963).

63. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394

U.S. 369 (1969).
64. Indeed, prior to Erie Resistor, a lower court held that Mackay
permits employers to award superseniority. United also refused to
hire trainees who did not cross the picket line. ‘‘United Strike: It’s
a Matter of Principle Now,’’ Business Week, June 10, 1985, p. 48, col.
1. While this conduct would be unlawful under the NLRA, Phelps
Dodge v. NLRB, 313 U.S. 177 (1941), the answer has yet to be pro-
vided by the Supreme Court under the RLA.
65. United’s practices were held unlawful by the Seventh Circuit
in Airline Pilots Association v. United Airlines, Inc., 802 F.2d 886 (7th
Cir. 1986) and the Eleventh Circuit has come to a similar conclu-
sion in Eastern Airlines v. Airline Pilots Association, 920 F.2d 722 (11th
Cir. 1990). Cf. International Association of Machinists and Airspace
Workers, AFL-CIO v. Alaska Airlines, Inc., 813 F.2d 1038 (9th Cir.
1987); Nelson v. Piedmont Airlines, 750 F.2d 1284 (4th Cir. 1984);
Brotherhood of Locomotive Firemen and Engineermen v. National Media-
tion Board, 410 F.2d 1025 (D.C. Cir. 1969); Airline Pilots Association
v. Alaska Airlines, 785 F.2d 328 (9th Cir. 1984).

304 Notes to Pages 107–108

 66. 489 U.S. 426 (1989).

67. NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). Of course
the question of whether permanent replacements have been hired
is also an important one. The Board has held that replacements
are not permanent where the employer stated that they could be-
come permanent after the strike. Target Rock Corp., 324 NLRB 373
(1997), enforced 172 F.3d 921 (D.C. Cir. 1998). Where replace-
ments have not yet completed their postinterview test at the con-
clusion of the strike, they may not be discharged as temporary
employees. Solar Turbines Inc., 302 NLRB 14 (1991). Similarly the
Board has held that permanent replacements cannot oust strikers
where the departments into which they were hired remained
closed during the strike. Waterbury Hospital v. NLRB, 950 F.2d 849
(2d Cir. 1991). The failure to consider unconditional offers to
return to work more than six months after the conclusion of the
strike may violate the Act. Teledyne Industries, Inc., 298 NLRB 982
(1990).
68. Id. at 378. The burden of showing that the striker has obtained
regular and substantially equivalent employment rests with the
employer. Arlington Hotel Co., 273 NLRB 210 (1984); Salinas Valley
Ford Sales, Inc., 279 NLRB 679 (1986); Oregon Steel Mills, Inc., 300
NLRB 817 (1990). Striker qualifications for the job as well as the
question of whether the job is substantially equivalent are inter-
woven, but the mere fact that strikers are qualified to fill the jobs is
not dispositive of the question of whether they are substantially
equivalent to their former jobs. Rose Printing Co., 304 NLRB 1076
(1991); California Distribution Centers, Inc., 308 NLRB 64 (1992). A
refusal to accept an offer of reinstatement to a job which is not the
same or substantially equivalent does not ‘‘extinguish entitlement
to full reinstatement to the former or substantially equivalent job.’’
Employees who engage in misconduct subsequent to a failure to
reinstate to an equivalent position are not immunized from dis-
charge or discipline. NLRB v. D&D Enterprises, 125 F.3d 200 (4th
Cir. 1997). Accordingly the employer has no obligation to provide
such an offer. 304 NLRB at 10. The employer’s transfer of strikers
to another plant does not necessarily preclude a finding that the
jobs are substantially equivalent. NLRB v. American Olean Tile Co.,
826 F.2d 1496 (6th Cir. 1987).
69. Chicago Tribune Co. v. NLRB, 79 F.3d 604 (7th Cir. 1996).
70. Laidlaw v. NLRB, 414 F.2d 99 (7th Cir. 1969); American Machine
Corp. v. NLRB, 424 F.2d 1821 (5th Cir. 1970). For some of the
problems in determining whether replacements are laid off or dis-
charged by virtue of strikers section 7 rights, see Harrison Ready Mix

305 Notes to Page 108

 Concrete, Inc., 272 NLRB 331 (1984). Inevitably complexity relating
to this issue has spawned litigation about what an employer may
say during an organizational campaign about the right to strikers.
See, for instance, Eagle Comtronics, Inc., 263 NLRB 515 (1982);
Tri-Cast, Inc., 274 NLRB 377 (1985); John W. Galbreath & Co., 288
NLRB 876 (1988).
71. Brook Research and Manufacturing, 202 NLRB 684 (1978). But
the Court of Appeals for the Seventh Circuit has recognized busi-
ness justification defenses. See Giddings & Lewis, Inc. v. NLRB, 710
F.2d 1280 (7th Cir. 1983). The business justification defense is not
necessarily met when a returning striker is in a position to engage
in sabotage. Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259
(D.C. Cir. 1998) (en banc).
72. Giddings & Lewis v. NLRB, 675 F.2d 926 (7th Cir. 1982). The
Board’s view is that the question is whether permanent replace-
ments have had a ‘‘reasonable expectancy of recall’’: ‘‘. . . the
objective factors relevant to the replacements’ reasonable expec-
tancy of recall would include, inter alia, evidence concerning the
employer’s past business experience, the employer’s future plans,
the length of the layoff, the circumstances of the layoff and what
the employee was told regarding the likelihood of recall. . . .’’ Aqua-
Chem, Inc., 288 NLRB 1108 (1988) enf ’d 910 F.2d 1487 (7th Cir.
1991); Lone Star Industries, Inc., 279 NLRB 550 (1986); Mike Yurosek
& Son, Inc., 295 NLRB 304 (1989); Delta-Macon Brick & Tile, Inc.,
297 NLRB 1044 (1990) enforcement denied 943 F.2d 567 (5th Cir.
1991); NLRB v. Bingham-Willamette, 857 F.2d 661 (9th Cir. 1988).
73. See, e.g., Service Electric, 281 NLRB 633 (1986).

74. Detroit Newspapers, 326 NLRB 700 (1998) (Chairman Gould

dissenting), rev. granted 216 F.3d 109 (D.C. Cir. 2000).
75. 463 U.S. 491 (1983). Cf. Deeds v. Decker Coal Co., 805 P.2d 1270
(Mont. 1990).

76. Justice Blackmun wrote a separate concurring opinion.

77. Machinists v. Wisconsin Employment Relations Commission, 427
U.S. 132, 140 (1976); NLRB v. Nash-Finch, 404 U.S. 188, 144 (1971).
Compare the New Jersey Supreme Court’s treatment of state law
prohibiting some strikebreaking. U.S. Chamber of Commerce v. New
Jersey, 445 A.2d 353 (N.J. 1982). See also, Greater Boston Chamber
of Commerce v. City of Boston, 778 F.Supp. 95 (D. Mass. 1991). The
Court’s invalidation of a municipal ordinance conditioning a re-
newal of a taxi cab company’s operating franchise on settlement of
a labor dispute by a certain date under the preemption doctrine

306 Notes to Pages 108–109

 presages difficulties for state or local regulation of strikebreaking.
Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986);
Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989).
Cf. Wisconsin Department of Industry, Labor and Human Relations v.
Gould, Inc., 475 U.S. 282 (1986).

78. See Belknap, Inc. v. Hale, 463 U.S. 491, 498–99 (1983). (‘‘The
Court’s change in the law of permanency weakens the rights of
strikers and undermines the protection afforded those rights by
the Act. Such adjustments in the balance of power between labor
and management are for Congress, not this Court.’’). In Target
Rock Corp., 324 NLRB 373 (1997), enforced 172 F.3d 921 (D.C. Cir.
1998), a unanimous Board held that replacement strikers were not
permanent within the meaning of Mackay and Belknap when they
were hired with the following instructions: ‘‘You are considered
permanent at-will employees unless the National Labor Relations
Board considers you otherwise, or a settlement with the union
alters your status to temporary replacement.’’ Under these cir-
cumstances the Board held that the employer did not intend per-
manent status.
79. 380 U.S. 300 (1965).
80. In American Ship Building, 380 U.S. at 307, the Court lists some
lockouts previously found exempt by the Board. These include the
response to a ‘‘whipsaw’’ strike in NLRB v. Truck Drivers Local 449
(‘‘Buffalo Linen’’), 353 U.S. 87 (1957).

81. American Ship Building, 380 U.S. at 305. An arbitration ruling

that emerged from the 1998–1999 National Basketball Association
players’ lockout concluded that the owners were not obliged to
pay the players’ guaranteed contracts because federal labor policy
as established by American Ship Building assumes that employees
do not receive their wages or pay during a lockout. In the Matter of
National Basketball Players Association and National Basketball Associa-
tion (Arbitrator John D. Feerick, October 19, 1998) (opinion and
award on file with the author). Meanwhile, though the NLRB did
not become involved, as it did in baseball, a decertification dispute
did come before the Board while I was Chairman. See Murray
Chass, ‘‘N.B.A. Players Support Union by a Landslide,’’ The New
York Times, September 13, 1995, at B9.

82. Central Illinois Public Service Company, 326 NLRB 928, 937
(1998) (Member Liebman dissenting in part), rev. denied 215 F.3d
11 (D.C. Cir. 2000).
83. NLRB v. Truck Drivers Local 449 (‘‘Buffalo Linen’’), 353 U.S. 87
(1957). But employer withdrawal from multiemployer bargaining

307 Notes to Pages 109–111

 is carefully circumscribed; Charles D. Bonanno Linen Service, Inc. v.
NLRB, 454 U.S. 404 (1982). ‘‘Lockouts are generally permissible in
anticipation of a strike or in support of an employer’s legitimate
position.’’ Riverside Cement Co., 296 NLRB 840, 841 (1989).
84. NLRB v. Brown, 380 U.S. 278 (1965).

85. See, for example, Inland Trucking Co. v. NLRB, 440 F.2d 562
(7th Cir. 1971) (use of temporary replacements and a lockout
when no strike per se a violation). But cf. Inter-collegiate Press,
Graphic Arts Div., 486 F.2d 837 (8th Cir. 1973) (interests must be
balanced case by case).
86. Harter Equipment, Inc., 280 NLRB 597 (1986) enforced 829 F.2d
458 (3d Cir. 1987). Accord, International Brotherhood of Boilermakers
v. NLRB, 858 F.2d 756 (D.C. Cir. 1988). But workers cannot be
replaced unless there is a timely announcement to strikers that the
employer is locking them out in support of its bargaining position.
Eads Transfer, Inc., 304 NLRB 711 (1991).
In a more controversial portion of the Harter opinion, the Board
said:
Initially, we find that the use of temporary employees reasonably serves
precisely the same purpose served by the lockout, i.e., bringing eco-
nomic pressure to bear in support of a legitimate bargaining position.
After American Shipbuilding, the validity of such a business purpose is
unassailable. We do not perceive any persuasive reason why coupling
this purpose with a desire to remain in operation with temporary
employees would impermissibly color an employer’s otherwise legiti-
mate interest. There can be no more fundamental employer interest
in the continuation of business operations. Exercising the right to a lock-
out in a bargaining dispute does not necessitate forgoing the option to secure
business earnings any more than exercising the right to strike requires employees
to forgo attempts to secure income by temporary alternative employment, strike
benefits, or unemployment compensation (where permitted by state law). In
sum, the use of temporary employees to remain in operation after a
lawful lockout is ‘‘a measure reasonably adapted to the achievement of
a legitimate end.’’ (280 NLRB at 599; emphasis supplied)

87. International Paper Company, 319 NLRB 1253 (1995), enforce-

ment denied 115 F.3d 105 (D.C. Cir. 1997). See also Ancor Con-
cepts, Inc., 323 NLRB 742 (1997), where the Board took the same
position.
88. See also Case Comment, 85 Harv. L. Rev. 680 (1972).
89. Insurance Agents, 361 U.S. at 484. Indeed in the 1990s questions
still abounded as to what is a reasonable location for bargaining
and what party is bargaining in bad faith because of its position on
the situs for negotiation. I. Appel Corp., 308 NLRB 425 (1992).

308 Notes to Pages 111–113

 90. NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir.);
Pittsburgh-Des Moines Corp. v. NLRB, 663 F.2d 956 (9th Cir. 1981);
Pease Company v. NLRB, 666 F.2d 1044 (6th Cir. 1981); NLRB v. A-1
King Size Sandwiches, 732 F.2d 872 (11th Cir. 1984).
91. 343 U.S. 395 (1952). While this case supports a laissez-faire
approach, the Board ‘‘. . . in some instances [determines that]
specific proposals might become relevant to determining whether
a party has bargained in bad faith . . . relying on the Board’s cu-
mulative institutional experience in administering the Act, we
shall continue to examine proposals when appropriate and con-
sider whether, on the basis of objective factors, a demand is clearly
designed to frustrate agreement on a collective-bargaining con-
tract.’’ Reichhold Chemicals, Inc., 288 NLRB 69 (1988) enforcement
granted and modified, 906 F.2d 719 (D.C. Cir. 1990); Litton Micro-
wave Cooking Products, 300 NLRB 324 (1990); Concrete Pipe and
Products Corp., 305 NLRB 152 (1991), enforced sub. nom. United
Steelworkers of America Local 14534 v. NLRB, 983 F.2d 240 (D.C.
Cir. 1993); Hydrotherm, 302 NLRB 990 (1991); Radisson Plaza Min-
neapolis, 307 NLRB 94 (1992); Bethea Baptist Home, 310 NLRB 156
(1993). The Board regulates methods of collective bargaining and
thus indirectly agreements as well. For instance, one party may not
insist on the exchange of written proposals in advance of face to
face negotiations. Holiday Inn Dowtown-New Haven, 300 NLRB 774
(1990); Fountain Lodge, Inc., 269 NLRB 674 (1984); Chemung Con-
tracting Corp., 291 NLRB 773 (1988).
92. 343 U.S. at 404.
93. 29 USC §158(d).

94. NLRB v. Bildisco and Bildisco, 465 U.S. 513 (1984).

95. 11 USC §1113, congressional statute modifying NLRB v. Bil-
disco and Bildisco, 465 U.S. 513 (1984). This statute requires an
employer filing for bankruptcy to ‘‘bargain’’ with the union over
necessary modifications of the collective bargaining agreement
before filing an application seeking rejection of the collective
bargaining agreement. The court can only approve rejecting the
collective bargaining agreement if the union refuses to accept
the employer’s proposal without good cause and ‘‘the balance of
the equities’’ favors rejection. If the court does not rule on the
employer’s application within thirty days, the employer can termi-
nate or alter the collective bargaining agreement. See generally
Truck Drivers Local 807, International Brotherhood of Teamsters v. Carey
Transportation, Inc., 816 F.2d 82 (2d Cir. 1987); Wheeling Pittsburgh
Steel Corp. v. United Steelworkers of America, 791 F.2d 1074 (3d Cir.

309 Notes to Pages 113–115

 1986); International Brotherhood of Teamsters v. IML Freight, Inc., 789
F.2d 1460 (10th Cir. 1986); In re Century Brass Products, Inc. v. Inter-
national Union, UAW, 793 F.2d 265 (2d Cir. 1986); In re Mile Hi
Metal Systems, Inc. v. Mile Hi Metal Systems, Inc., 899 F.2d 877 (10th
Cir. 1990); In re Continental Airlines Corp. v. Airline Pilots Association,
International, 907 F.2d 1500 (5th Cir. 1990). ‘‘A Debtor may sell the
assets of the business unencumbered by a collective bargaining
agreement if that agreement has been rejected pursuant [to the
statute] . . . This statute requires unions to face those changed cir-
cumstances that occur when a company becomes insolvent, and it
requires all affected parties to compromise in the face of financial
hardship. At the same time, [the statute] . . . also imposes require-
ments on the debtor to prevent it from using bankruptcy as a judi-
cial hammer to break the union.’’ In re Maxwell Newspapers, 981
F.2d 85, 89 (2d Cir. 1992). The problem of bankruptcy in labor-
management relations has emerged more visibly in the airline in-
dustry in 2003. See, e.g., Susan Chandler and Flynn McRoberts,
‘‘Labor Accord Sets New Course for United,’’ Chicago Tribune,
April 30, 2003, at 1; Edward Wong and Micheline Maynard, ‘‘A
Taut, Last-Minute Stretch to Save an Airline,’’ The New York Times,
April 27, 2003, at A38; Edward Wong, ‘‘Pilots Ratify Concessions at
United,’’ The New York Times, April 13, 2003, at C1.
96. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342
(1958).

97. Alamo Cement Co., 281 NLRB 737, 738 (1986); Rangaire Acquisi-
tion Corp., 309 NLRB 1043 (1992); Litton Systems, 300 NLRB 324
(1990), enforced. 949 F.2d 249 (8th Cir. 1991).
98. NLRB v. Katz, 369 U.S. 736 (1962). An employer, for in-
stance, may unilaterally terminate its practice of allowing employ-
ees to receive benefits under two different pension plans where the
change does not vitally affect terms and conditions of employees.
Keystone Steel v. NLRB, 41 F.3d 746 (D.C. Cir. 1994). Contrast Golden
State Warriors, 334 NLRB 651 (2001). In The Daily News of Los Ange-
les, 304 NLRB 511 (1991) enforcement denied 979 F.2d 1571 (D.C.
Cir. 1992) the Court of Appeals for the District of Columbia dis-
tinguished the Katz opinion where an increase in pay is fixed as to
timing but discretionary as to amount the employer may discon-
tinue it. Contrarily, Katz mandates the employer to bargain before
continuing the practice. Subsequent to impasse, an employer may
institute its conditions unless a party avoids the other side’s earnest
efforts to engage in bargaining so as to avoid or delay the process
or where economic exigencies compel prompt action. M&M Con-
tractors, 262 NLRB 1472 (1982); Master Window Cleaning, Inc., 302

310 Notes to Page 115

 NLRB 373 (1991). But the implementation of something more
substantial than what was offered is bad-faith bargaining. NLRB v.
Crompton-Highland Mills, 337 U.S. 217 (1949); Central Mettalic Casket
Co., 91 NLRB 572 (1950). Cf. NLRB v. Exchange Parts Co., 375 U.S.
405 (1964). However, the Second Circuit Court has held that an
employer did not violate the Act when it hired replacements at
a rate of pay higher than that offered to strikers. Auto Worker Local
259 v. NLRB, 776 F.2d 23 (2d Cir. 1985). But ‘‘. . . [t]he crucial
point . . . is that after impasse is reached an employer may unilat-
erally implement new terms of employment only if reasonably
comprehended in a pre-impasse offer.’’ Cuyamaca Meats, Inc. v. San
Diego Pension Trust Fund, 827 F.2d 491 (9th Cir. 1987); Lapham-
Hickey Steel Corp. v. NLRB, 904 F.2d 1180 (7th Cir. 1990); Emhart
Indus. v. NLRB, 907 F.2d 372 (2d Cir. 1990); Southwest Forest Indus.,
Inc. v. NLRB, 841 F.2d 270 (9th Cir. 1988).
99. McClatchy Newspapers, Inc., 321 NLRB 1386 (1996), enforced
131 F.3d 1026 (D.C. Cir. 1997). Contrast, Detroit Newspapers, 326
NLRB 700 (1998), rev. granted 216 F.3d 109 (D.C. Cir. 2000).
Compare, Daily News of Los Angeles, 315 NLRB 1236 (1994),
enforced 73 F.3d 406 (D.C. Cir. 1996).
100. See, for example, NLRB v. Tomco Communication Inc., 567 F.2d
871, 881 (9th Cir. 1978). The leading case defining impasse is Taft
Broadcasting Co., 163, NLRB 475, 478 (1967) enforced, 395 F.2d
622 (D.C. Cir. 1968). Deadlock on a single issue is insufficient to
establish an impasse. Duffy Tool & Stamping v. NLRB, 233 F.3d 995
(7th Cir. 2000). Unlawful unilateral action that impedes bargain-
ing makes it less likely that impasse will be found. Intermountain
Rural Electric Association, 305 NLRB 783 (1991) enforced 984 F.2d
1562 (10th Cir. 1993). Accord, La Porte Transit Co., Inc. v. NLRB,
888 F.2d 1182 (7th Cir. 1989). The mere fact that a union rejects
or accepts an employer’s position is not dispositive of the impasse
issue. Visiting Nurse Services v. NLRB, 177 F.3d 52 (1st Cir. 1999).
The Board has found an impasse where there was only three
meetings between labor and management. Lou Stecher’s Super Mar-
kets, 275 NLRB 475 (1985); See also, Bell Transit Company, 271
NLRB 1272 (1984); NLRB v. Powell Electrical Manufacturing Co., 906
F.2d 1007 (5th Cir. 1990). In establishing that an unfair refusal to
bargain exists because of insistence upon a nonmandatory subject
to the point of impasse, it needs to be proven that the nonmanda-
tory subject is the sole cause of impasse. Phillip Carey v. NLRB, 331
F.2d 720 (6th Cir. 1964). If one party impedes bargaining through
insistence upon permissive subject matter, the employer may act
unilaterally though it may not deal with employees directly. Inland
Tugs v. NLRB, 918 F.2d 1299 (7th Cir. 1990).

311 Notes to Page 115

 101. Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1084
(D.C. Cir. 1991).
102. The contrast is stated in NLRB v. International Van Lines, 409
U.S. 48, 50–51 (1972). The decision rested on other grounds.
103. NLRB v. Salvation Army Day Care Centers, 763 F.2d 1, 7 (1st Cir.
1985), quoting NLRB v. Massachusetts Nurses Assn., 557 F.2d 894,
898 (1st Cir. 1977).
104. Mental Health Services, Northwest, Inc., 300 NLRB 926 (1990).

105. Lapeer Foundry & Machine, 289 NLRB 952 (1988); Georgia Pa-
cific Corp., 275 NLRB 67 (1985); Tuskegee Area Transportation System,
308 NLRB 251 (1992).

106. Colgate-Palmolive Co., 323 NLRB 515 (1997).

107. NLRB v. Columbus Printing Pressmen Local 252, 543, F.2d
1161 (5th Cir. 1976); La Crosse Electrical Contractor., Association, 271
NLRB 250 (1984); Sheet Metal Workers Local 59, 227 NLRB 520
(1976). A union may lawfully submit disputed issues to interest ar-
bitration and seek to compel arbitration through a suit in federal
court in attempt to enforce an award in court, provided that the
employer is at least arguably bound by the interest arbitration
clause and that the union, prior to invoking interest arbitration
negotiated in good faith. Collier Electric Co., 296 NLRB 1095 (1989);
West Coast Sheet Metal, Inc. v. NLRB, 938 F.2d 1356 (D.C. Cir. 1991);
Local Union No. 54 Sheet Metal Workers’ International Association, AFL-
CIO, 297 NLRB 672 (1990).

108. Ohio Valley Hospital, 324 NLRB 23, 25 n.8 (1997) (Chairman
Gould concurring).
109. The case law is hostile to attempts to deal directly with
employees. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944);
Inland Tugs, supra; Toledo Typographical Union No. 63 v. NLRB, 907
F.2d 1220 (D.C. Cir. 1990) denied enforcement in The Toledo Blade
Co., 295 NLRB 626 (1989) (author of employer insistence upon
a proposal authorized ‘‘buyouts’’ without involvement in union).
Similar problems arise in connection with employer insistence
that individuals execute grievances filed by unions, again a prac-
tice generally discouraged. Latrobe Steel Co., 244 NLRB 528 (1979)
enforced as modified 630 F.2d 171 (3d Cir. 1980) (1981); Athey
Products Corp., 303 NLRB 92 (1991). Where management insists
upon broad contract clauses that provide broad discretion, the
same issues relating to bargaining with individuals arises. NLRB v.
American National Insurance Co., 343 U.S. 395 (1952); Colorado-Ute

312 Notes to Pages 115–118

 Electric Association v. NLRB, 939 F.2d 1392 (10th Cir. 1991); Cincin-
nati Newspaper Guild, Local 9 v. NLRB, 938 F.2d 284 (D.C. Cir.
1991). Cf. McClatchy Newspapers, 299 NLRB 1045 (1990) enforce-
ment denied 964 F.2d 115 (D.C. Cir. 1992). As noted in the text,
Borg-Warner held that an employer’s proposal to modify the certi-
fied unit is unlawful if insisted upon to the point of impasse as a
permissive subject. Boise Cascade Corp. v. NLRB, 860 F.2d 471 (D.C.
Cir. 1988). On the other hand, the employer’s proposals that are
designed to remove a union’s exclusive jurisdiction over work
assignments are mandatory and lawful even if insisted upon to the
point of impasse. Local 666 IATSE v. NLRB, 904 F.2d 47 (D.C. Cir.
1990).
110. Borg-Warner, 356 U.S. at 350.
111. Id.

112. See W. Gould, Japan’s Reshaping of American Labor Law

124–128 (1984).
113. See Fitzsimmons Manufacturing Company, 251 NLRB 375
(1980), enforced, 670 F.2d 663 (6th Cir. 1982); KDEN Broadcasting
Co., 225 NLRB 25 (1976); Cascade Corporation, 192 NLRB 533
(1971).
114. NLRB v. Financial Institution Employees of America, Local 1182,
475 U.S. 192 (1986).
115. Id. at 209.
116. General Electric Co. v. NLRB, 415 F.2d 512 (2d Cir. 1969)
(‘‘coalition bargaining’’). For an excellent discussion of this sub-
ject, see S. Goldberg, ‘‘Coordinated Bargaining Tactics of Unions,’’
54 Cornell L. Rev. 897 (1969). Cf. NLRB v. St. Joseph’s Hospital, 755
F.2d 260 (2d Cir. 1985).
117. NLRB v. Bartlett-Collins Co., 639 F.2d 652 (10th Cir. 1981);
Latrobe Steel Co. v. NLRB, 630 F.2d 171 (3d Cir. 1980); Hutchinson
Fruit Company, Inc., 277 NLRB No. 54 (1985); NLRB v. Pennsylvania
Telephone Guild, 799 F.2d 84 (3d Cir. 1986). See ‘‘AMC Objects to
the Taping of Contract Talks,’’ Wall Street Journal, June 19, 1985, at
39.

118. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).
But similar contracting out disputes in the public sector arising out
of the Civil Service Reform Act of 1978 are not negotiable under
that statute. Department of the Treasury v. Federal Labor Relations Au-
thority, 494 U.S. 922 (1990). Under the authority of this line of
cases, a majority of the Board has held that an employer may not

313 Notes to Pages 118–119

 unilaterally disarm guards in a mental health clinic. Northside Center
for Child Development, Inc., 310 NLRB 105 (1993).
119. 379 U.S. at 225.
120. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 677–78
(1981).

121. Textile Workers Union v. Darlington Manufacturing Co., 380 U.S.

263 (1965). The Court has held that the employer’s right to close
its business under Darlington exists under the Railway Labor Act.
Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Executives Associ-
ation, 491 U.S. 490 (1989). Cf. Mid-South Bottling Co. v. NLRB, 876
F.2d 458 (5th Cir. 1989).

122. NLRB v. Adams Dairy, Inc., 350 F.2d 108, 113 (8th Cir. 1965);
Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1039 (8th Cir. 1976)
(dicta); NLRB v. Thompson Transport Co., 406 F.2d 698, 703 (10th
Cir. 1969); NLRB v. Transmarine Navigation Corp., 380 F.2d 933, 939
(9th Cir. 1967); NLRB v. Royal Plating and Polishing Co., 350 F.2d
191, 196 (3d Cir. 1965).
123. NLRB v. First National Maintenance Corp., 627 F.2d 596 (2d Cir.
1980); Broadway Motor Trucks v. NLRB, 582 F.2d 720 (3d Cir. 1978).
124. NLRB v. First National Maintenance Corp., 627 F.2d at 601–02
(footnote omitted).

125. First National Maintenance Corp. v. NLRB, 452 U.S. at 686–87.

Justice Brennan dissented in an opinion joined in by Justice Mar-
shall. See W. Gould, ‘‘The Supreme Court’s Labor and Employ-
ment Docket in the October 1980 Term: Justice Brennan’s Term,’’
53 U. Colo. L. Rev. 116–18 (1981).
126. ‘‘. . . barring particularly unusual or emergency circum-
stances, the union’s right to discuss with the employer how the
impact of the sale on the employees can be ameliorated must
be reckoned with (as must compliance with other governmental
requirements) sufficiently before its actual implementation so that
the union is not confronted at the bargaining table with a sale that
is a fait accompli. Thus, the Union [is] . . . entitled as much notice
of the closing and determination of employees as was needed for
meaningful bargaining at a meaningful time.’’ Williamette Tug and
Barge Co., 300 NLRB 282 (1990); Metropolitan Teletronics, 279 NLRB
957 (1986) enforced 819 F.2d 1130 (2d Cir. 1987); Los Angeles Soap
Co., 300 NLRB 289 (1990).
127. Bob’s Big Boy Family Restaurant, 264 NLRB 1369 (1982).

314 Notes to Pages 119–123

 128. The Liberal Market, Inc., 264 NLRB 807 (1982), Otis Elevator
Company, 269 NLRB 891 (1984), Bostrom Discussion, VOP, Inc., 272
NLRB 999 (1984); Fraser Shipyards, Inc., 272 NLRB 496 (1984), The
Kroger Company, 273 NLRB 462 (1984), Garwood-Detroit Truck Equip-
ment, Inc., 274 NLRB 113 (1985). Storer Cable TV of Texas, Inc., 295
NLRB 295 (1989). See Olivetti Office U.S.A., Inc. v. NLRB, 926 F.2d
181 (2d Cir. 1991); BPS Guard Service, Inc., 300 NLRB 1143 (1990).
Frequently disputes arise as to whether an employer’s decision
involves a partial closing and is therefore enveloped by First Na-
tional Maintenance or simply involves hours, United States Postal Ser-
vice, 306 NLRB 640 (1992) enforcement denied 8 F.3d 832 (D.C.
Cir. 1993); or layoffs Lapeer Foundry and Machine, Inc., 289 NLRB
952 (1988). Where the change is a basic alteration of the enter-
prise, there is no bargaining obligation. Noblit Brothers, Inc., 305
NLRB No. 37 (1991). See Newspaper Guild Greater Philadelphia, Local
100 v. NLRB, 636 F.2d 550 (D.C. Cir. 1980) on remand Peerless
Publications, 283 NLRB 334 (1987), holding that rules designed to
prevent employees from engaging in activities that might compro-
mise editorials and journalism are central to ultimate products and
therefore not subject to mandatory bargaining; for a decision or
holding that the core purpose of the enterprise is not involved in
a code of ethics where the primary function of the employer is
the generation and transmission of electricity, see American Electric
Power Co., 302 NLRB 1021 (1991).

129. 303 NLRB 386 (1991) remanded in Food & Commercial Workers
Local 150-A v. NLRB, 880 F.2d 1422 (D.C. Cir. 1989), enfd. 1 F.3d
24 (D.C. Cir. 1993).
130. Id. at 391.

131. Id. Contra, Arrow Automotive Industries, Inc. v. NLRB, 853 F.2d
223 (4th Cir. 1988). I have been of the view that the Dubuque stan-
dard produces litigation and is unsatisfactory in other respects. Q-1
Motor Express, Inc., 323 NLRB 767, 769 (1997) (Chairman Gould
concurring). For examples of recent cases involving the Dubuque
standard, see In re AT&T Corp., 337 NLRB No. 105 (2002); Bell
Atlantic Corp., 336 NLRB 1076 (2001); In re Vico Products Co., 336
NLRB 583 (2001); Fritz Companies, Inc., 330 NLRB 1296 (2000);
Torrington Industries, 307 NLRB 809 (1992). A narrow reading of
First National Maintenance in the plant relocation context is
contained in Dorsey Trailers v. NLRB, 233 F.3d 831 (4th Cir. 2000).
See the similar treatment according in the subcontracting context,
NLRB v. Wehr Constructors, Inc., 159 F.3d 946 (6th Cir. 1998).

132. Mid-State Ready Mix, 307 NLRB 809 (1992).

315 Notes to Pages 123–124

 133. Holmes & Narver/Morrison-Knudsen, 309 NLRB 146 (1992). In
some situations, where the employer did not bargain to the point
of impasse, a per se refusal to bargain will be found.
134. Milwaukee Spring Division of Illinois Coil Spring Company, 265
NLRB 206 (1982).

135. Milwaukee Spring Division, 268 NLRB 601 (1984) enforcement

granted sub nom. International Union, UAW v. NLRB, 765 F.2d 175
(D.C. Cir. 1985).

136. Industry City Associates, 307 NLRB 1419 (1992). My views

on this difficult issue are set forth in CBS Corp. f/k/a Westinghouse
Corp., Science & Technology Center, 326 NLRB 861 (1998) (Chairman
Gould concurring at 862–867). Cf. Bonnell/Tredegar Industries v.
NLRB, 46 F.3d 339 (4th Cir. 1995).
137. Robertshaw Controls Co. v. NLRB, 386 F.2d 377 (4th Cir. 1967).

138. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983);
Gannett Rochester Newspapers, 305 NLRB 906 (1991) enforcement
denied 98 F.2d 198 (D.C. Cir. 1993).
139. Michigan Bell Telephone Co., 306 NLRB 281, 282 (1992). See
also Murphy Oil U.S.A., 286 NLRB 1039 (1987); Jones Dairy Farm,
295 NLRB 113 (1989); GTE Automatic Electric, 261 NLRB 1491
(1982); Outboard Marine Corp., 307 NLRB 1333 (1992).

140. 29 USC §§2101, 2101 notes, 2102–2109.

141. The Act defines a ‘‘plant closing’’ as ‘‘the permanent or tem-
porary shutdown of a single site of employment, or one or more
facilities or operating units within a single site of employment, if
the shutdown results in an employment loss at the single site of
employment during any 30-day period for 50 or more employees
excluding part-time employees.’’ 29 U.S.C. §2101(a)(2). Further,
it defines a ‘‘mass layoff ’’ as employment loss at a single site dur-
ing a 30-day period for at least 33 percent of the employees
(excluding part-time employees) and at least 50 people (excluding
any part-time employees); or at least 500 employees (excluding
any part-time employees). 29 U.S.C. §2101(a)(3). However, the
Act’s scope is limited through its definition of the requisite ‘‘em-
ployment loss’’ that triggers the mandatory notification. ‘‘Employ-
ment loss’’ includes ‘‘an employment termination, other than for
cause, voluntary departure, or retirement,’’ ‘‘a layoff exceeding
6 months,’’ or ‘‘a reduction in hours of work of more than 50
percent during each month of any 6-month period.’’ 29 U.S.C.
§2101(a)(6). The Act also includes exceptions when ‘‘the closing

316 Notes to Pages 124–125

 of a temporary facility or the closing or layoff [results from] the
completion of a particular work project or undertaking,’’ when
‘‘the closing or layoff constitutes a strike or constitutes a lockout
not intended to evade the requirements of this chapter,’’ or when
the employer replaces economic strikers. 29 U.S.C. §2103. Addi-
tionally, the Act provides a ‘‘faltering company exception’’ when a
company was attempting to obtain capital to keep a plant open at
the time notice was required, and an ‘‘unforeseeable business ex-
ception’’ when a plant closing or mass layoff results from a sudden
and unexpected occurrence outside the employer’s control. 29
U.S.C. §2102(b). See generally United Food & Commercial Workers
Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) (holding that
a union may bring a suit against an employer under the Act with-
out individual employees’ being parties to the action); Watson v.
Michigan Industrial Holdings, Inc., 311 F.3d 760 (6th Cir. 2002)
(finding that the circumstances of a plant closing fell within the
unforeseeable business circumstances exception where the plant
closed because a major customer unexpectedly refused to pay its
invoice on time and suddenly discontinued the relationship, even
though the plant’s demise was triggered by expiration of an oral
agreement between the plant and the customer); Hotel Employees v.
Elsinore Shore Assoc., 173 F.3d 175 (3d Cir. 1999) (finding that a
government-ordered closing is a ‘‘plant closing’’ under the Act,
but that the employer could use the unforeseen business circum-
stances exception).
142. Thirteen states have plant closing legislation of their own:
Connecticut, Hawaii, Kansas, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Montana, Oregon, South Carolina, Tennes-
see, and Wisconsin.
143. NLRB v. General Electric Co., 418 F.2d 786 (2d Cir. 1969).
144. Reichhold Chemicals (Reichhold 2), 288 NLRB 69 (1988) aff ’d in
relevant part sub nom. Teamsters Local 515 v. NLRB, 906 F.2d 719
(D.C. Cir. 1990).
145. Hydrotherm, 302 NLRB 990, 993–94 (1991). Cf. American Meat
Packing Co., 301 NLRB 835 (1991); Industrial Electric Reels, Inc., 310
NLRB 1069 (1993).
146. Telescope Casual Furniture, Inc., 326 NLRB 588 (Chairman
Gould concurring at 589–592, and Member Liebman dissenting at
592–593).
147. White Cap, Inc., 325 NLRB 1166 (1998) (Chairman Gould
concurring at 1170), rev. denied 206 F.3d 22 (D.C. Cir. 2000). Cf.
NLRB v. Suffield Academy, 171 LRRM 3164 (2nd Cir. 2003).

317 Notes to Pages 125–126

 148. NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956). Cf.
Advertisers Manufacturing Company, 275 NLRB 100 (1985). See also
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). See generally
Bartosic and Hartley, ‘‘The Employer’s Duty to Supply Information
to the Union,’’ 58 Cornell L. Rev. 28 (1972).
Similarly the Court has limited information about employee
test scores, which are characterized as confidential. NLRB v. Detroit
Edison Co., 440 U.S. 301 (1979). Contrast the approach employed
by the Board in GTE California, Inc., 324 NLRB 424 (1997), where
the Board majority denied access to names, addresses, and home
telephone numbers of complaining customers who had unlisted
telephone numbers and did not consent to the information’s
release. There are frequent disputes about employee personnel
records. Compare Washington Gas Light Company, 278 NLRB 220
(1984) with New Jersey Bell Telephone Co. v. NLRB, 720 F.2d 789 (3d
Cir. 1983); NLRB v. U.S. Postal Service, 128 F.3d 280 (5th Cir. 1997);
NLRB v. CJC Holdings, Inc., 97 F.3d 114 (5th Cir. 1996). There are
disputes about access to witness statements as well. NLRB v. New
Jersey Bell Telephone Co., 936 F.2d 144 (3d Cir. 1991); Diversy Wyan-
dotte Corp., Dekalb, 302 NLRB No. 158 (1991); Union Telephone and
Telegraph Co., 309 NLRB 558 (1993). The employer is obliged to
provide wage rate and racial composition of employees at its other
facilities so that the union could bargain more effectively inside
the bargaining unit. Frito Lay, Inc., 333 NLRB 1296 (2001). Unions
are entitled to information concerning names of union officials
who have applied to supervisory positions. NLRB v. U.S. Postal Ser-
vice, 841 F.2d 141 (6th Cir. 1988). Unions have had difficulty in
obtaining access to information regarding nonunit work, Bohemia,
Inc., 272 NLRB 1128 (1984); United States Postal Service, 261 NLRB
505 (1982). But see E. I. Dupont de Nemours v. NLRB, 744 F.2d
536 (6th Cir. 1984); United States Testing Co. v. NLRB, 160 F.3d 14,
22 (D.C. Cir. 1998) (Sentelle, J., dissenting). Employers have,
however, been obliged to disclose relevant information on some
bargaining issues. Minnesota Mining and Mfg. Co., 261 NLRB 27
(1982) enfd. 711 F.2d 348 (D.C. Cir. 1988); NLRB v. American Na-
tional Can Co., 924 F.2d 518 (4th Cir. 1991).
149. Neilsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1065 (7th
Cir. 1988). The Court of Appeals for the Fourth Circuit has also
taken the position that an employer’s desire to increase com-
petitiveness is not a plea for poverty, which requires the opening
of the books within the meaning of Truitt. AMF Bowling Co. v.
NLRB, 63 F.3d 1293 (4th Cir. 1995).
150. Neilsen Lithographing Co., 305 NLRB 697 (1991). Accord, In re
Lakeland Bus Lines, Inc., 335 NLRB 322 (2001); ConAgra, Inc., 321

318 Notes to Pages 127–128

 NLRB 944 (1996), rev. granted ConAgra, Inc. v. NLRB, 117 F.3d
1435 (D.C. Cir. 1997); Stroehmann Bakeries, Inc., 318 NLRB 1069
(1995), enforced 95 F.3d 218 (2d Cir. 1996); F.A. Bartlett Tree Expert
Co., 316 NLRB 1312 (1995). The Second Circuit’s opinion in
Stroehmann cited its previous decision in Torrington Extend-A-Care
Employee Ass’n v. NLRB, 17 F.3d 580, 587–90 (2d Cir. 1994), for the
proposition that ‘‘comments by a negotiator that a company is
‘having trouble staying afloat’ do not trigger an obligation to pro-
vide information where the negotiator explicitly denies an inability
to pay and stresses that the company is not insolvent.’’ Stroehmann,
95 F.3d at 223. See also Burruss Transfer, Inc., 307 NLRB 226
(1992); Concrete Pipe & Products Corps., 305 NLRB 152 (1991); Ar-
mored Transport of California, Inc., 288 NLRB 574 (1988); (1991);
Parsons Electric Company, 304 NLRB 890 (1991), enforcement
denied 976 F.2d 1167 (8th Cir. 1992); United Paperworkers Interna-
tional Union v. NLRB, 981 F.2d 861 (6th Cir. 1992).
151. United Steelworkers Local 571 v. NLRB, 401 F.2d 434 (D.C. Cir.
1968); NLRB v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir.
1966).
152. United Steelworkers of America, Local Union 14534 v. NLRB, 983
F.2d 240 (D.C. Cir. 1993).

Chapter 7
1. Proposed Amendments to the National Labor Relations Act:
Hearings on H.R. 8410 Before the Subcommittee on Labor-
Management Relations of the House Committee on Education
and Labor, 95th Cong., 1st Sess. 389 (statement of John H. Fan-
ning). This proved to be a slight exaggeration. See chapter 1, note
14.

2. H.R. Rep. No. 95-687, 95th Cong., 1st Sess. 21 (1977). See
Weiler, ‘‘Promises to Keep: Securing Workers’ Rights & Self-
organization under the NLRA’’, 96 Harv. L. Rev. 1769 (1983).
3. Local 60, United Brotherhood of Carpenters v. NLRB, 365 U.S. 651,
655 (1961); NLRB v. Seven-Up Bottling, 344 U.S. 344, 346 (1953).
See also, for example, NLRB v. J. S. Alberici Construction Co., 591
F.2d 463, 470 n.8 (8th Cir. 1979); Packing House and Industrial Ser-
vices v. NLRB, 590 F.2d 688, 697 (8th Cir. 1978).
4. The circuit courts have gone farther, holding that the proper
test is what the employees would have earned but for the wrongful
dismissal and that this may be less than the result of multiplying
the actual wage before dismissal by the time since dismissal if
the employer would have discharged the employee anyway for

319 Notes to Pages 128–130

 legitimate reasons; NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596
(9th Cir. 1979); J.S. Alberici Construction Co.; Florsheim Shoe Store Co.
v. NLRB, 565 F.2d 1240 (2d Cir. 1977); Sunderstrand Heat Transfer,
Inc. v. NLRB, 538 F.2d 1257 (7th Cir. 1976); NLRB v. Local No. 2 of
United Association of Plumbing and Pipefitting Industry, 360 F.2d 428,
434 (2d Cir. 1966). Support for the ‘‘but for’’ test was found in
Golden State Bottling Co. v. NLRB, 414 U.S. 168, 189–90 (1974).
But see Packing House and Industrial Services v. NLRB, 590 F.2d at
697–98 (antiunion animus justifies order reinstating entire work
force of predecessor company), following NLRB v. International
Van Lines, 409 U.S. 48, 53 (1972).

5. NLRB v. Gullett Gin Co., 340 U.S. 361 (1951). Cf. NLRB v. State of
Illinois Department of Employment Security, 777 F.Supp. 1416 (N.D. Ill.
1991).

6. ‘‘The reasonableness of a worker’s effort to secure substantially

equivalent employment is determined by, inter alia, the economic
climate in which the worker finds himself, the worker’s skill and
qualifications, and the worker’s age and personal limitations.’’
Lundy Packing Co. v. NLRB, 856 F.2d 627 (4th Cir. 1988). There
is an obligation to seek new employment which is substantially
equivalent to the position lost. Kawasaki Motors v. NLRB, 850 F.2d
524 (9th Cir. 1988). If a worker is required to lower his sights, the
obligation exists only after a reasonable period of time. Rainbow
Coaches, 280 NLRB 166 (1986); Arlington Hotel Co., Inc., 287 NLRB
851 (1987) enforced in part 876 F.2d 678 (8th Cir. 1989). Con-
versely, there is no duty to search for a more lucrative interim em-
ployment once the discriminatee has embarked on a ‘‘legitimate
course of interim employment.’’ F.E. Hazard, Ltd., 303 NLRB 839
(1991) enforcement denied 959 F.2d 407 (2d Cir. 1992); Fugazy
Continental Corp., 276 NLRB 1334 (1985) enforcement granted 817
F.2d 979 (2d Cir. 1987). Employee misconduct forfeits both rein-
statement and back-pay. Precision Window Manufacturing, Inc., 303
NLRB 947 (1991) enforcement denied 963 F.2d 1105 (8th Cir.
1992). Interim earnings that would not have been obtained from
the employer in any event are not deductible. Seattle Seahawks, 304
NLRB 627 (1991) enforcement granted 142 LRRM 455 (D.C. Cir.
1993); E.D.P. Medical Computer Systems, 293 NLRB 857 (1989).

7. S. Rep. No. 95-628, 95th Cong. 2d Sess. 11 (1978).

8. W. Gould, ‘‘Prospects for Labor Law Reform: The Unions and
Carter,’’ The Nation, April 16, 1977, at 466–67.
9. In response to J.P. Stevens’s many unfair labor practices, the
Board has devised extraordinary remedies. For example, 380 F.2d

320 Notes to Pages 130–131

 292 (2d Cir. 1967) requires that the employer post the Board
notice of its violation in the plant where the unfair labor practice
occurred, and also in all of the company’s forty-three plants, and
that the notice be mailed to all employees in all plants; 441 F.2d
514 (5th Cir. 1971) and 461 F.2d 490 (4th Cir. 1972) require that
the employer give the union, upon request, reasonable access to
plant bulletin boards for a period of one year and that the Board
order to be read to employees during working time; 406 F.2d 1017
(4th Cir. 1968) and 417 F.2d 533 (5th Cir. 1969) require the em-
ployer to give a list of names and addresses of all employees in all
plants to the union; and 464 F.2d 1326 (2d Cir. 1972) provides for
the payment to the NLRB of costs and expenses, counsel fees, and
salaries in a civil contempt proceeding. Traditional remedies were
regarded as insufficient for J.P. Stevens in 475 F.2d 973 (D.C. Cir.
1973) and compliance fines were imposed in 563 F.2d (2d Cir.
1977) but denied in 434 U.S. 1064 (1978). The history has been
recounted in the context of more violations in J.P. Stevens v. NLRB,
638 F.2d 676 (4th Cir. 1980). The employer was also required to
read the order in Domsey Trading Corporation 310 NLRB 777 (1993).
Fieldcrest Cannon, Inc., 318 NLRB 470 (1995), enforced in part 97
F.3d 65 (4th Cir. 1996), petition for rehearing denied February 10,
1997, the Board found that the respondent employer’s unfair
labor practices were so numerous, pervasive and outrageous that
special notice and access remedies were necessary to dissipate fully
the coercive effect of the violations. Another egregious illustration
of recidivist behavior warranted a corporatewide remedy in Beverly
California Corp., 310 NLRB 222 (1993), enforced in part sub. nom.
Torrington Extend-A-Care Employee Ass’n v. NLRB, 17 F.3d 580 (2d
Cir. 1994); Beverly California Corp., 326 NLRB 153 (1998); Beverly
California Corp., 326 NLRB 232 (1998), enforced in part 227 F.3d
817 (7th Cir. 2000).

10. ‘‘Oversight Hearings on the National Labor Relations Board:

Hearings before the Sub-committee on Labor-Management Rela-
tions of the House Committee on Education and Labor,’’ 94th
Cong., 1st Sess. 295–489.
11. Sixty-Fourth Report of the National Labor Relations Board, at 163.
12. One reform at the administrative law judge level that has
affected litigation—though not necessarily the median time
periods—is the introduction of settlement judges. The Board
has now authorized administrative law judges to act as settle-
ment judges in cases where they do not sit as the trial judge. If
the parties agree to participate, this judge facilitates settlement
negotiations.

321 Notes to Pages 131–132

 13. The Court of Appeals for the First Circuit approved of bench
decisions in NLRB v. Beverly Enterprises-Massachusetts, Inc., 174
F.3d 13 (1st Cir. 1999).
14. These seemingly inconsistent figures could be resolved if the
Board has dramatically reduced the time that it spends on easier
cases, while still sitting for long periods of time on more complex
or controversial decisions.
15. Sixty-Fourth Annual Report of the National Labor Relations Board,
at 14.
16. There is no duty to bargain after an election and before certi-
fication where there are unresolved objections not claimed to be
frivolous Sunderstrand Heat Transfers, Inc. v. NLRB, 538 F.2d 1257,
1259 (7th Cir. 1976), overruling the Board citing General Electric
Co., 163 NLRB 198 (1967), Trinity St Co., 103 NLRB 1470 (1953);
Harbor Chevrolet Co., 93 NLRB 1326 (1951). If the Board certifies a
union, the employer may refuse to bargain and not be guilty of an
unfair labor practice if the employer carries the heavy burden of
showing that the certification was incorrect [NLRB v. Allis-Chalmers
Corp., 601 F.2d 870, 871–72 (5th Cir. 1979); NLRB v. Newton-New
Haven Co., 506 F.2d 1035 (2d Cir. 1974); NLRB v. Clarytona Manor,
Inc., 479 F.2d 976 (7th Cir. 1973)].

17. Ex-Cell-O Corp., 185 NLRB 107 (1970), rev’d and remanded to
the Board, sub nom., International Union, UAW v. NLRB, 449 F.2d
1046, 1050 (D.C. Cir. 1971). The Board later reaffirmed its posi-
tion in a case where the violation was ‘‘clear and flagrant’’ [Tiidee
Products, Inc., 194 NLRB 1234 (1972), enforced, 502 F.2d 349 (D.C.
Cir. 1974)]. An additional problem for the formulation of expan-
sive remedies is the Supreme Court’s decision in H.K. Porter Com-
pany v. NLRB, 397 U.S. 99 (1970), which precludes the imposition
of contract terms upon the parties as a remedy for unfair labor
practice violations. But see United States Postal Service, 309 NLRB 13
(1992).
18. Tiidee Products, Inc., supra. But the court of appeals eliminated
the award of litigation expenses. In a later case the Board refused
litigation expenses, the court of appeals awarded them, but the
Supreme Court reversed, saying this determination was for the
Board [NLRB v. Food Store Employees Local 347 (Hecks Inc.), 417 U.S.
1 (1974)]. On remand, the Board stood by the rule of Tiidee Prod-
ucts but distinguished Hecks, Inc. on the ground that here the
employer’s position was debatable [Hecks, Inc., 215 NLRB 765, 767
(1974)]. In NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995),
the Board and union sought sanctions against the respondent em-

322 Notes to Pages 132–134

 ployer for filing a frivolous appeal from the Board’s decision in the
case (309 NLRB 761 (1992)). The court granted the requests and
ordered the respondent employer and its original counsel, jointly
and severally, to pay the Board and union attorneys fees and dou-
ble costs.

19. 29 USC §160 ( j) (2000).

20. 29 USC §160 (1) (2000).
21. These are those practices that violate 8(b)(4)(A)–(C) or
8(b)(7) or 8(c), namely 29 USC §§158(b)(4)(A)–(C), 158(b)(7),
158(c) (1976). Included are the rules against secondary boycotts
and recognitional picketing. See chapter 3.

22. I have long advocated that the Board should seek 10( j)
injunctive relief much more frequently. See William B. Gould IV,
Agenda for Reform (1993), at 160–62.

23. From March of 1994 to March of 1998, the Board authorized

292 10( j) injunctions (out of 313 requests), an average of 73
per year. But from March 1998 to January 2001, the Board only
authorized 164 injunctions (out of 191 requests), an average of 58
per year. While figures are not yet available for Arthur Rosenfeld’s
term as General Counsel, he recently lamented the decline of
10( j) injunctions, while stating his support for them where there
is a significant ‘‘threat that the Board’s ultimate order will be inef-
fective to remedy the unfair labor practices and to protect statu-
tory rights’’ and where it is likely that the Board will ultimately
impose the same relief permanently. Memorandum GC 02-07, Uti-
lization of Section 10( j) Proceedings, dated August 9, 2002.
24. W. Gould, Black Workers in White Unions (1977), pp. 281–315.

25. In 2002, California finally heeded this call from its farm
workers when it enacted mandatory mediation of contract disputes
between agricultural workers and growers. See Gregg Jones, ‘‘A
Big Win for Farm Workers,’’ Los Angeles Times, Oct. 1, 2002, at 1.

26. ‘‘Oversight Hearings on the National Labor Relations Board:

Hearings before the Subcommittee on Labor-Management Rela-
tions of the House Committee on Education and Labor,’’ 94th
Cong., 1st Sess. 348 (statement of Jack Crowley).
27. ‘‘AFL-CIO Chief Calls Labor Laws a Dead Letter,’’ Wall Street
Journal, August 16, 1984, at 8; ‘‘Kirkland’s Call to Void Labor Laws
Ignites a Growing National Debate,’’ Wall Street Journal, Novem-
ber 6, 1984, at 29, col. 3; W. Gould, ‘‘Mistaken Opposition to the
NLRB,’’ The New York Times, June 20, 1985, at 31, col. 2.

323 Notes to Pages 134–138

Chapter 8
1. See generally ‘‘Proceedings of the Twenty-Sixth Annual Meet-
ing, National Academy of Arbitrators: Arbitration of Interest Dis-
putes’’ (1974).

2. Noble, ‘‘Postal Contract Includes a Raise and Concession,’’ The

New York Times, December 25, 1984. 39 USC §101 et seq. (1984
Supp.).

3. Connecticut, Connecticut Gen. Stat. §22a–2.85g (1990); Dela-

ware, 19 Del. C. §1615 (1991); Hawaii Rev. Stat. ch. 89, §89-1 et
seq. as last amended eff. 7-1-84 (mandatory, package, firefighters
only); Code of Iowa, ch. 20, §20-1 et seq. (1991); Maine, 13 M.R.S.
§1958-B (1991); Massachusetts, A.L.M. ch. 150E, §9 (1992) (for
police and firefighters but with different subject matter scope for
each); Minnesota, Minn. Stat. §179A.16 (1991); Montana, title 39,
ch. 31, Parts 1–4, MCA (1973) as last amended eff. 7/1/83 (at re-
quest of either party, package for firefighters in municipalities);
Nebraska, R.R.S. Neb. §81-1382 (1991); Nevada, N.R.S. §288.101
et seq. (1991) (mandatory for firefighters and used under some
conditions for other local government employees); New Jersey,
§34:13A–16 (1991); North Dakota, N.D. Cent. Code §15-29-08
(1991) (Salaries and other monetary and fringe benefits for
teachers); Ohio, Ohio Rev. Code Title 41, §4117.14 (1991); Ver-
mont, 21 VSA §1733 (1991); Washington, RCW 47.64, 2701 (1991);
Wisconsin, W.S.A. ch. 111, §111.70 et seq. as last amended eff. 3-
20-84 (agreement of parties on order of Wisconsin Employment
Relations Commission leads to either final offer or conventional
arbitration for police and firefighters).

4. The twenty-four jurisdictions that currently have interest arbi-

tration statutes are Alaska, Connecticut, Delaware, District of
Columbia, Hawaii, Illinois, Indiana, Iowa, Maine, Massachusetts,
Michigan, Minnesota, Montana, Nevada, New Jersey, New York,
Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washing-
ton, Wisconsin, and Wyoming. CCH, Labor Law Reporter, ‘‘State
Laws.’’

5. For example, S.560, 92d Cong., 1st Sess. (1971).

6. Proceedings of the Twenty-Sixth Annual Meeting, National
Academy of Arbitrators, Arbitration of Interest Disputes 79–80
(1976).
7. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).
8. Baton Rouge Waterworks Co., 246 NLRB 995 (1979).

324 Notes to Pages 141–144

 9. The Supreme Court has rejected the proposition that failure to
adhere to two arbitration awards and not to give them any ‘‘effect
would impair the effectiveness of the dispute resolution process for
which the parties bargained.’’ Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983). See also Oil, Chemical and Atomic Workers, Local 4-
16000 v. Ethyl Corp., 644 F.2d 1044 (5th Cir. 1981); Boston Shipping
Association, Inc. v. International Longshoremen’s Association (AFL-CIO),
659 F.2d 1 (1st Cir. 1981).

10. 29 USC §158(a)(5) (2000).

11. W. Usery, ‘‘Why Strikes Occur during the Term of Contract
Agreements,’’ 1976 Labor Relations Yearbook 181, 182 (Bureau of
National Affairs); Southeastern Conference on Bargaining Trends
(remarks of John Canestraight), 1976 Labor Relations Yearbook
175 (Bureau of National Affairs).

12. W. Gould, Black Workers in White Unions 211–42 (1977), W.

Gould, ‘‘Labor Arbitration of Grievances Involving Racial Discrim-
ination,’’ 118 U. Pa. L. Rev. 40 (1969).
13. 42 USC §2000 (2000).

14. W. Gould, ‘‘Labor Arbitration of Grievances Involving Racial

Discrimination,’’ 118 Pa. L. Rev. 40, 46 (1969).
15. For example, Acuff v. United Paperwork, 404 F.2d 169 (5th Cir.
1968).
16. 353 U.S. 448 (1957).
17. United Steelworkers v. American Manufacturing Co., 363 U.S. 564
(1960); United Steelworkers v. Warrior and Gulf Navigation Co., 363
U.S. 574 (1960); United Steelworkers v. Enterprise Wheel and Car Corp.,
363 U.S. 593 (1960).

18. In Pennoyer v. Neff, 95 U.S. 714 (1878), the Supreme Court

found that due process demanded the traditional rule of the com-
mon law: that jurisdication over an individual could be achieved
only by his voluntary appearance or by personal service of process
within the state. This position was gradually liberalized in two ways.
First, the need for presence within the state was given up (at first
for particular sorts of cases, and then generally) when the court
decided that it was enough for the person to have certain mini-
mum contacts with the state sufficient to satisfy traditional notions
of fair play and substantial justice [International Shoe Co. v. Wash-
ington, 826 U.S. 810 (1945)]. The various states are free to take as
much of this constitutionally permitted jurisdiction as they desire.
Second, the permissible means of service have been liberalized.

325 Notes to Pages 145–150

 The means must be reasonably calculated to apprise the out-of-
state person of the suit (International Shoe Co.). Once again, within
those limits, the states are free to specify the permissible means of
service.
19. The Court decided that the statute authorized federal courts
to fashion a body of federal common law, and that the statute, as
thus interpreted, was constitutional.
20. 353 U.S. at 458. The Court extended the reach of section 801,
and the authority of the courts to establish a federal common law
to union constitutions and suits by local unions against interna-
tionals to enforce them, in Plumbers and Pipefitters v. Local 334, 452
U.S. 615 (1981).
21. Groves v. Ring Screw Works, 498 U.S. 168 (1990).
22. ‘‘Final adjustment by a method agreed upon by the parties is
declared to be the desirable method for the settlement of griev-
ance disputes arising over the application or interpretation of
an existing collective bargaining agreement.’’ 1129 USC §173(d)
(2000).

23. International Association of Machinists v. Cutler-Hammer, Inc.,

271 App. Div. 917, 67 N.Y.S.2d 317 (1947), aff ’d 297 N.Y. 519, 74
N.E.2d 464 (1948).

24. Warrior and Gulf Navigation Co., 363 U.S. 574 (1960).
25. Id. at 581–82. On the other hand, the Court of Appeals for
the District of Columbia Circuit has held that where the parties
expressly provide through a no-oral-modification clause, federal
labor policy promotes its enforcement in order to enable those
who value certainty to have it even at the price of relinquishing
greater flexibility. Martinsville Nylon Employees Council Corp. v. NLRB,
969 F.2d 1263 (D.C. Cir. 1992).
26. 363 U.S. at 578.
27. Id. at 580.

28. Groves v. Ring Screw Works, 498 U.S. 168 (1990). Cf. Local 705 v.
Schneider, 705 International Brotherhood of Teamsters v. Schneider Tank
Lines, 958 F.2d 171 (7th Cir. 1992).

29. AT&T Technologies, Inc. v. Communications Workers of America,

475 U.S. 643 (1986). In a second opinion of a similar nature,
Justice Kennedy, speaking for a 6–3 majority in Litton Financial
Printing Division v. NLRB, 501 U.S. 190 (1991), held that the pre-
sumption in favor of arbitrability does not apply to disputes about

326 Notes to Pages 150–154

 the arbitrability of postexpiration grievances. Cf. Nolde Bros., Inc. v.
Bakery Workers, 430 U.S. 243 (1977).
30. Major League Baseball Players Assoc. v. Garvey, 532 U.S. 504
(2001).
31. W.R. Grace & Company v. Local Union 759, International Union of
the United Rubber, Cork, Linoleum and Plastic Workers of America, 461
U.S. 757 (1983). Subsequent to W.R. Grace, courts have identified
‘‘well-defined and dominant’’ public policies, see, for example,
Amalgamated Meat Cutters and Butcher Workmen of North America v.
Great Western Food Company, 712 F.2d 122 (5th Cir. 1988) (arbitra-
tion award reinstating driver caught drinking on duty violated
public policy against professional drivers drinking and driving);
U.S. Postal Service v. American Postal Workers Union, AFL-CIO, 786
F.2d 822 (1st Cir. 1984) (arbitration award reinstating postal em-
ployee convicted of embezzling postal funds violated public policy
of trust and efficiency for the postal service); Northrop Corporation
v. Triad Financial Establishment, 598 F.Supp. 928 (C.D. Cal. 1984)
(portion of arbitration award vacated because public policy involv-
ing Department of Defense regulations and a Saudi Arabian de-
cree prevented performance of certain phases of a marketing
agreement); Stead Motors of Walnut Creek v. Automotive Machinists
Lodge No. 1173, 886 F.2d 1200 (9th Cir. 1989) (en banc) (Cal-
ifornia’s general interest in safe motor vehicles does not form an
explicit and well-defined dominant public policy that would bar
reinstatement of a mechanic who committed reckless acts in the
course of his or her employment.) The principle that arbitrators
must be faithful to the contract and not ‘‘manifest an infidelity
to this obligation’’ can be found in United Steelworkers of America v.
Enterprise Wheel and Car Corp., 363 U.S. 598, 597 (1960).
32. United Paperworkers International Union v. Misco, 484 U.S. 29
(1987).

33. Id. at 43. See generally Gould, ‘‘Judicial Review of Labor Arbi-
tration Awards—Thirty Years of the Steelworkers Trilogy: The Af-
termath of AT&T and Misco,’’ 64 Notre Dame L. Rev. 464 (1989).

34. Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57,
67 (2000). Justice Scalia, with whom Justice Thomas joined, wrote
separately to concur in the judgment.

35. 398 U.S. 235 (1970).

36. Id. at 244.
37. Id. at 245. See Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).

327 Notes to Pages 154–156

 38. 398 U.S. at 248 (footnote omitted).

39. Id. at 251.

40. Id. at 250.
41. Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397 (1976);
W. Gould, ‘‘On Labor Injunctions Pending Arbitration: Recasting
Buffalo Forge,’’ 80 Stan. L. Rev. 588 (1978); see also W. Gould,
‘‘On Labor Injunctions, Unions and the Judges: The Boys Market
Case,’’ 1970 S.Ct. Rev. 215. The Supreme Court later relied on
both Boys Markets and Buffalo Forge in ruling that an injunction
could not be issued against the International Longshoremen’s As-
sociation for refusing to handle cargo bound to or coming from
the Soviet Union in protest of the invasion of Afghanistan. Jack-
sonville Bulk Terminals, Inc. v. International Longshoremen’s Assoc., 457
U.S. 702 (1982). The Court found that the underlying dispute,
‘‘whether viewed as an expression of the Union’s ‘moral outrage’
at Soviet military policy or as an expression of sympathy for the
people of Afghanistan, is plainly not arbitrable under the collec-
tive bargaining agreement.’’ Id. at 711. Of course, the strike itself
must be prohibited by the no-strike clause in the collective bar-
gaining agreement. Allied Systems v. Teamsters Committee, 179 F.3d
982 (6th Cir. 1999). And the underlying dispute itself must be
arbitrable. Pacific Maritime Ass’n v. ILWU, 39 F.Supp.2d 1221 (C.D.
Cal. 1998).
42. Teamsters, Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962).

43. Drake Bakeries v. Bakery Workers, 370 U.S. 254 (1962).

44. Carbon Fuel v. United Mine Workers, 444 U.S. 212 (1979). This
decision does not deal with local union liability. The question is
often an academic one, since locals often do not have much
money in their treasuries.
45. Atkinson v. Sinclair Roofing Co., 370 U.S. 238 (1962).
46. Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981). For the
dismissal of Section 301 claims against individual employees, see
Century Aluminum v. Steel Workers, 82 F.Supp.2d 580 (S.D. W. Va.
2000).

47. See note 41. Local union liability was established on one or
another of these theories in Easzor Express, Inc. v. International
Brotherhood of Teamsters, 520 F.2d 951 (3d Cir. 1975); United Steel-
workers of America v. Lorain, 616 F.2d 919 (6th Cir. 1980); Keebler v.
Bakery Workers, Local 492-A, 104 LRRM 2625 (E.D. Pa. 1980). Civil
contempt against a union for failing to comply with a temporary

328 Notes to Pages 157–158

 restraining order requiring it to take all reasonable attempts to
end a sick-out has been inferred by a union’s minimal action.
American Airlines v. Allied Pilots Ass’n, 228 F.3d 574 (5th Cir. 2000)
(upholding compensatory damages of $45.5 million for two days of
contemptuous conduct and not for violation of the Railway Labor
Act). See generally M. Whitman, ‘‘Wildcat Strikes: The Union’s
Narrowing Path to Rectitude,’’ 50 Ind. L. J. 472 (1975) W. Gould,
‘‘Taft-Hartley Comes to Great Britain,’’ 81 Yale L. J. 1421 (1972).
Cf. Brian Bercusson, ‘‘The European Social Model Comes to Brit-
ain,’’ 31 Indus. L. J. 209 (2002).
48. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). The
Court also concluded that statutory immunization may be waived
in the collective bargaining agreement.
49. Id. at 699.

50. The leading case in which the deferral doctrine was developed
is Spielberg Manufacturing Co., 112 NLRB 1080 (1955). See also
International Harvester Co., 13 NLRB 928 (1962), enforced sub nom.
Ramsey v. NLRB, 327 F.2d 784 (7th Cir.). The problems involved in
applying Spielberg are still considerable. See, for example, NLRB v.
Ancus Bros. Inc.-Maxwell, 620 F.2d 867 (3d Cir. 1980); NLRB v. Max
Factor & Co., 640 F.2d 197 (9th Cir. 1980); ‘‘Judicial Review and the
Trend toward More Stringent NLRB Standards on Arbitral Defer-
rals’’ (Comment), 129 U. Pa. L. Rev. 788 (1981).
51. Olin Corporation, 268 NLRB 573 (1984). The issue was
addressed anew in Mobile Oil Exploration, 325 NLRB 176 (1997),
enforced 200 F.3d 230 (5th Cir. 1999) (see particularly the
concurring opinion of Chairman Gould at 180, expressing dis-
agreement with Olin and emphasizing the requirement that
the arbitrator’s award be consistent with Board precedent under
Spielberg).
52. Olin Corporation, 268 NLRB 573 (1984).

53. Collyer Insulated Wire, 192 NLRB 837 (1971). The Board has
extended the deferral obligation to a grievance procedure that
does not provide for arbitration. August A. Busch & Co., of Massa-
chusetts, Inc., 309 NLRB 714 (1992). See William E. Arnold Co. v.
Carpenters District Council, 417 U.S. 12, 16–17 (1974); Carey v. West-
inghouse Electric Corp., 375 U.S. 261, 270–72 (1964).

54. For example, General American Transport Corp., 228 NLRB 808
(1977) (the Board refused to extend Collyer to 8(a)(3) cases);
Machinists Lodges 700, 743, 1746 v. NLRB, 525 F.2d 237 (2d Cir.
1975); IBEW Local 2188 v. NLRB, 494 F.2d 1087 (D.C. Cir. 1974);

329 Notes to Pages 158–159

 Kansas Meat Packers, 198 NLRB 543 (1972), Anaconda Wire and Cable
Co., 201 NLRB 839 (1973).
55. United Technologies Corporation, 268 NLRB 557 (1984).
56. 376 U.S. 543 (1964).
57. 482 U.S. 27, 43 (1987).

58. Id. at 41.

59. Capitol Steel and Iron Co., 299 NLRB 484 (1990). Diminution in
size is of little relevance. NLRB v. Simon Debartolo, 241 F.3d 207 (2d
Cir. 2001).
60. NLRB v. Burns International Security Services, 406 U.S. 272
(1972). Under the Court’s holding, the successor may establish
its own terms and conditions of employment unless it declares its
intention to hire the predecessors employees. However, the Board
has established an exception to this obligation where the employer
announced an intent to establish a new set of conditions. Spruce Up
Corp., 209 NLRB 194 (1974), enforced on other grounds 529 F.2d
516 (4th Cir. 1975). This exception does not seem to be a logical
or contemplated by the Supreme Court’s decisions. See Chairman
Gould’s concurring opinion in Canteen Co., 317 NLRB 1052, 1054
(1995), enforced 103 F.3d 1355 (7th Cir. 1997). Under such cir-
cumstances the successor would be bound by the predecessor’s
terms and conditions of employment unless it made it clear that
it was offering employment on different terms. Spruce Up Corp.,
209 NLRB 194 (1974); Worcester Manufacturing, Inc., 306 NLRB 218
(1992). Where the successor has unlawfully discriminated against
the employees of the predecessor, the terms and conditions of the
previous employment relationship will be imposed pending good
faith negotiations between the parties. U.S. Marine Corp. v. NLRB,
944 F.2d 1305 (7th Cir. 1971); United States Can Co. v. NLRB, 984
F.2d 864 (7th Cir. 1993); New Breed Leasing Corp. v. NLRB, 111 F.3d
1460 (9th Cir. 1997). Accord NLRB v. Advanced Stretchforming, 233
F.3d 1176 (9th Cir. 2000).
61. H.K. Porter v. NLRB, 397 U.S. 99 (1970).
62. Howard Johnson Co. v. Detroit Local Joint Executive Board, Hotel
Employees International Union, 417 U.S. 249 (1974). Cf. United States
Can Co. v. NLRB, 984 F.2d 864 (7th Cir. 1993). Judicial determi-
nation of the successorship issue does not preclude the Board’s
authority. Local 32B-32J Service Employees International Union v.
NLRB, 982 F.2d 845 (2d Cir. 1993). The mere fact that the pre-
decessor employer was in the public sector does not deprive the

330 Notes to Pages 159–160

 union of successorship rights. Lincoln Park Zoological Society, 322
NLRB 263 (1996), enforced 116 F.3d 216 (7th Cir. 1997). The
Board has held that an incumbent union is entitled only to a
rebuttable presumption of continuing majority status. MV Trans-
portation, 337 NLRB No. 129 (2002), overruling St. Elizabeth’s
Manor, Inc., 219 NLRB 119 (1975).
63. Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965). The deci-
sion authorizing individual actions is Smith v. Evening News Associa-
tion, 371 U.S. 195 (1962).
64. 386 U.S. 171 (1967).
65. 459 U.S. 212 (1983).

66. Id. at 237 (White, J. dissenting). The employee who seeks

back-pay relief in a duty of fair representation case has a constitu-
tional right to a jury trial under the Seventh Amendment.

67. 415 U.S. 36 (1974).

68. Id. at 60.
69. Id. at 60 n.21.
70. Basic Vegetable Products, Inc., 64 Labor Arbitration Reports 620
(1975); Settlement Agreement between Weyerhauser Co. and In-
ternational Woodworkers of America, May 1979 (in the author’s
files).

71. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981).

Chief Justice Burger dissented, in an opinion joined in by Justice
Rehnquist.

72. McDonald v. City of West Branch, 466 U.S. 284, 286 (1984).
73. 500 U.S. 20 (1991).
74. 81 Stat. 602, as amended, 29 USC §621. The Court had pre-
viously held that arbitration agreements could be enforceable
pursuant to the FAA. See Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614 (1985); Shearson/American Express, Inc.
v. McMahon, 482 U.S. 220 (1987); Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U.S. 477 (1989).
75. Justice Stevens filed a dissenting opinion that was joined in by
Justice Marshall.

76. Gilmer, 500 U.S. 20.

77. Id. at 35.

331 Notes to Pages 160–164

 78. 525 U.S. 70 (1998).

79. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). For a
discussion of how to ensure fair arbitrations post–Circuit City, see
Paul L. Edenfield, ‘‘No More the Independent and Virtuous Judi-
ciary?: Triaging Antidiscrimination Policy in a Post-Gilmer World,’’
54 Stan. L. Rev. 1321 (2002). A plurality of the Supreme Court,
in an opinion authored by Justice Stephen Breyer, held that the
question of the propriety of class action claims in commercial
arbitration—the decision is presumably applicable to employment
contracts—is a matter for the arbitrator and not the courts. Green
Tree Financial Corp. v. Bazzle, ___ U.S. ___, 123 S.Ct. 2402 (2003).
The plurality was made a majority by virtue of the concurrence of
Justice John Paul Stevens who would have simply found that the
lower court decision was correct as a matter of law and that there
was no need to decide the forum question. Id. at 2408.
80. Armendariz v. Foundation Health Psychcare Services, Inc., 6 P.3d
669 (Cal. 2000).
81. See Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir.
2003); Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778
(9th Cir. 2002); Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th
Cir. 2002); Pinedo v. Premium Tobacco Inc., 85 Cal. App. 4th 774
(2000). See also Murray v. UFCW Local 400, 289 F.3d 297 (4th Cir.
2002); Dumais v. American Golf Corp., 299 F.3d 1216 (10th Cir.
2002); Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753 (7th
Cir. 2001); Bailey v. FNMA, 209 F.3d 740 (D.C. Cir. 2000). Cf. Green
Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000) (hold-
ing that a lower court incorrectly determined that an arbitration
agreement was uneforceable due to potentially prohibitive costs
because the record did not have sufficient information regarding
the potential cost if fully arbitrated).
82. See Circuit City Stores, Inc. v. Najd, 294 F.3d 1104 (9th Cir.
2002); Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198 (9th Cir.
2002). But see Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th
Cir. 2003) (holding that an arbitration agreement was proce-
durally unconscionable under California law, even though an em-
ployee had three days to consider its terms, where the employee
had no meaningful opportunity to opt out and where the em-
ployee had no power to negotiate its terms).
83. 534 U.S. 279 (2002).
84. Id. at 294.

332 Notes to Page 165

 85. EEOC v. Luce, Forward, Hamilton & Scripps, ___ F.3d ___, 2003
WL 2251382 (9th Cir. 2003) (en banc) (overruling Duffield v. Rob-
ertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998)).
86. Id. at ___ (Pregerson, J., dissenting).
87. Four states have adopted the revised UAA. And fourteen states
and the District of Columbia have enacted substantially similar
legislation.
88. See Reynolds Holding, ‘‘Consumers Get Arbitration Help,’’
San Francisco Chronicle, Oct. 2, 2002, at A1.
89. Service Employees International Union v. County of Napa, 99 Cal.
App. 3d 946, 160 Cal.Rptr. 810 (1979); J. Toole, ‘‘Judicial Activism
in Public Sector Grievance Arbitration: A Study of Recent Devel-
opments,’’ 33 Arbitration J. 6 (1978). In the matter of the Arbitra-
tion between The City of Plattsburgh v. Local 788 and New York
Council 66, AFSCME, AFL-CIO, 108 A.D.2d 1045, 1046 (N.Y. App.
1985) (the policy of favoring arbitration in private sector labor
relations does not apply equally in the field of public employment
. . . Absent a clear, unequivocal agreement to the contrary, it must
be taken for granted that the public body did not intend to refer a
particular matter to arbitration’’). But see The City and County of
Denver v. Denver Firefighters, Local 858 AFL-CIO, 663 P.2d 1032, 1041
(Colo. 1983) (firefighters filed complaint against the city claiming
city breached collective bargaining agreement in refusing to sub-
mit a grievance to binding arbitration. Court found that ‘‘on its
face . . . claim is arbitrable because it requires interpretation and
application of standards of employer conduct agreed to by the
City’’); In the Matter of Arbitration: Nicolet High School District v. Nicolet
Education Association, 348 N.W.2d 175 (Wis. 1984) (‘‘This court has
developed several well-settled rules governing review of arbitrator’s
decisions. An arbitrator’s award is presumptively valid, and it will
be disturbed only when its invalidity is demonstrated by clear and
convincing evidence’’), Board of Control of Ferris State College v.
Michigan AFSCME, Council 25, Local 1609, 361 N.W.2d 342, 343
(Mich.App. 1984) (Court follows the standard of limited review
from the Steelworkers Trilogy, ‘‘drawing its essence from the collec-
tive bargaining agreement,’’ a position that has also been adopted
by the Michigan Supreme Court).

90. These jurisdictions are: California, Georgia, Idaho, Iowa, Ken-

tucky, Maryland, Michigan, Montana, Nebraska, Nevada, New Jer-
sey, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah, and
Wisconsin. However, the California Supreme Court has held that
that state’s statute violates the home rule provision of the state’s

333 Notes to Pages 165–166

 constitution. County of Riverside v. Superior Court, 66 P.3d 718 (Cal.
2003).
91. T. Kochan, ‘‘Dynamics of Dispute Resolution in the Public
Sector,’’ in Public Sector Bargaining (Industrial Relations Re-
search Association Series, 1979), pp. 150, 154.

92. Id. at 175.

Chapter 9
1. Steele v. Louisville and Nashville Railroad, 323 U.S. 192 (1944) (a
duty of fair representation under the Railway Labor Act, 45 USC
§§151 et seq.). The Supreme Court found a duty of fair represen-
tation under the NLRA in Syres v. Oil Workers Local 23, 350 U.S. 892
(1955) (per curiam), reversing 223 F.2d 739 (5th Cir. 1955). The
Board first found a breach of the duty of fair representation to
violate §8(b) in Miranda Fuel Co., 140 NLRB 181 (1962), enforce-
ment denied 326 F.2d 172 (2d Cir. 1963).

2. Air Line Pilots Association, International v. O’Neill, 499 U.S. 65

(1991). The Civil Service Reform Act of 1978 creates no implied
private cause of action on behalf of federal employees for a
union’s breach of a statutory duty of fair representation because,
under that statutory scheme, claims are to be adjudicated admin-
istratively by the Federal Labor Relations Authority. Karahalios v.
National Federation of Federal Employees, Local 1263, 489 U.S. 527
(1989).
3. Vaca v. Sipes, 386 U.S. 171, 190 (1967).
4. The decision that seems to have gone furthest in establishing
the duty of fair representation obligation for negligent union be-
havior is Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir.
1983); see also De Anyo v. Sindicato ec Trabajadores Packing, AFL-CIO,
425 F.2d 281, (1st Cir. 1970) (union’s total failure to investigate
and process grievances is deemed arbitrary and thus a breach of
its duty of fair representation); Ruzicka v. General Motors Corp.,
523 F.2d 306, affirmed on rehearing, 528 F.2d 912 (6th Cir. 1975)
(union’s negligent failure to file for arbitration of employee’s
grievance within prescribed time limits held to constitute a breach
of its duty of fair representation); Malone v. U.S. Postal Service, 526
F.2d 1099 (6th Cir. 1975) (union’s negligent failure to take any
action in processing employee’s grievance held to be a breach of
its duty of fair representation), Robesky v. Quantas Empire Airways,
573 F.2d 1082 (9th Cir. 1978) (duty of fair representation violated
by union’s nondisclosure of information critical to employee’s
determination of whether to accept employer’s settlement offer);

334 Notes to Pages 166–170

 Thomas v. United Parcel, Inc., 890 F.2d 909 (7th Cir. 1989) (strict
standard of competency for union officials processing grievances
not imposed, but general definition of standard not articulated);
Jacoby v. NLRB, 233 F.3d 611 (D.C. Cir. 2000) (unintended conduct
in the context of a union-operated hiring hall is sufficient to con-
stitute a breach). But the Board may find no violation where there
is a single act of simple negligence. Jacoby v. NLRB, 325 F.3d 301
(D.C. Cir. 2003). Compare Lucas v. NLRB, 333 F.3d 927 (9th Cir.
2003). Cf. Price v. Southern Pacific Transp. Co., 586 F.2d 750 (9th Cir.
1978) (union’s failure to file a grievance had to be neither egre-
gious nor arbitrary). See generally A. Cox, ‘‘Rights under a Labor
Agreement,’’ 69 Harv. L. Rev. 601 (1956); K. Hanslowe, ‘‘Individ-
ual Rights in Collective Labor Relations,’’ 45 Cornell L. Q . 25
(1959); C. Summers, ‘‘The Individual Employee’s Rights under the
Collective Bargaining Agreement: What Constitutes Fair Repre-
sentation?’’ 126 U. Pa. L. Rev. 251 (1977). Punitive damages are
not available when the duty is violated. IBEW v. Faust, 442 U.S. 42
(1979).

5. Conley v. Gibson, 355 U.S. 41 (1957); Ford Motor Co. v. Huffman,

345 U.S. 330 (1953). The Court has held that the union’s duty of
fair representation is applicable to its administration of a hiring
hall. Breininger v. Sheet Metal Workers, 493 U.S. 67 (1989).
6. Air Line Pilots International Association v. O’Neill, 499 U.S. at 79.
Said the Court: ‘‘. . . Congress did not intend judicial review of a
union’s performance to permit the court to substitute its own view
of the proper bargain for that reached by the union. Rather, Con-
gress envisioned the relationship between the courts and labor
unions as similar to that between the courts and the legislature.’’
Id. at 66.
7. Clayton v. International Union, UAW, 451 U.S. 679 (1981). The
employee has the obligation to exhaust the procedures set forth in
the collective bargaining agreement. Republic Steel Corp. v. Maddox,
379 U.S. 650 (1965). Mere belief that exhaustion would be fruitless
is not sufficient. Hammer v. Auto Workers Local 550, 178 F.3d 856
(7th Cir. 1999).
8. Acuff v. United Papermakers, 404 F.2d 169 (5th Cir. 1968).
9. Smith v. Hussmann Refrigerator Co., 619 F.2d 1229 (8th Cir. 1980).
See also Clark v. Hein-Werner Corp., 99 N.W.2d 132 (Wis. 1962).
10. Hines v. Anchor Motor Frieght, 424 U.S. 554 (1976).
11. Id. at 571. Punitive damages may not be obtained in a duty
of fair representation case. Electrical Workers v. Foust, 442 U.S. 42

335 Notes to Pages 170–171

 (1979). A jury trial may be obtained where money damages are
sought. Teamsters, Local 391 v. Terry, 494 U.S. 558 (1990). See also
Iron Workers Local Union 377, 326 NLRB 375 (1998) (Chairman
Gould concurring in part and dissenting in part at 381).
12. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981). The
result in United Parcel was to reduce the period from six years
(contract actions) to ninety days (arbitration awards). Only Jus-
tice Stevens dissented. The statute of limitations for breach of
collective-bargaining agreements is state law. Auto Workers v. Hoosier
Cardinal Corp., 383 U.S. 696 (1965).
13. Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151,
66 (1983). The majority of the circuit courts of appeal have chosen
to apply Del Costello retroactively; see Graves v. Smith’s Transfer Cor-
poration, 736 F.2d 819 (1st Cir. 1984); Assad v. Mt. Sinai Hospital,
725 F.2d 837 (2d Cir. 1984), Perez v. Dana Corporation, Parish Frame
Division, 718 F.2d 581 (3d Cir. 1983); Murray v. Branch Motor Express
Company, 723 F.2d 1146 (4th Cir. 1983); Edwards v. Sea-Land Service,
Inc., 720 F.2d 857 (5th Cir. 1983); Lincoln v. Machinists and Aero-
space Workers, 723 F.2d 627 (8th Cir. 1983); Rogers v. Lockheed Geor-
gia Company, 720 F.2d 1247 (11th Cir. 1983). The Ninth Circuit has
not applied Del Costello retroactively. See Edwards v. Teamsters Local
Union No. 36, Building Material and Dump Truck Drivers, 719 F.2d
1036 (9th Cir. 1983).
14. Marquez v. Screen Actors Guild, 525 U.S. 33 (1998).

15. But see generally Monson Trucking, Inc., 324 NLRB 933, 939
(1997) (Chairman Gould concurring) (stating his belief that ‘‘a
collective-bargaining agreement containing a union-security clause
which compels ‘membership’ or ‘membership in good standing’ as
a condition of employment is facially invalid under the NLRA.
In order for such a clause to be valid, the collective-bargaining
agreement must define membership as only the obligations to pay
periodic dues and initiation fees related to representational
costs.’’).
16. 373 U.S. 734 (1963).

17. 388 U.S. 175 (1967).

18. W. Gould, ‘‘Solidarity Forever—Or Hardly Ever,’’ 66 Cornell
L. Rev. 77 (1980).

19. Pattern Makers’ League of North America v. NLRB, 473 U.S. 95

(1985). See also Quick v. NLRB, 245 F.3d 231 (3d Cir. 2001)
(holding that an employee may cease paying all union dues upon

336 Notes to Pages 171–173

 resignation from the union, despite a union security clause that
required new employees to apply for union membership, because
the clause did not further require continued membership); Lee v.
NLRB, 325 F.3d 749 (6th Cir. 2003) (union policy which requires
resigning employees to pay back dues when they remain within the
bargaining unit while not imposing such a requirement upon
those who resigned because they took jobs outside the unit is
not unlawful). Under the Railway Labor Act, a union policy for
employees who wish to opt out of union membership requiring
them to file an annual written notice is inconsistent with the First
Amendment. Shea v. Machinists, 154 F.3d 508 (5th Cir. 1998).
Under a maintenance of membership provision in the collective
bargaining agreement that gives workers a period of time in which
to opt in or opt out of the union, there is a right to resign even
when there is no hiatus between the contracts that require mem-
bership. Asarco, Inc., 309 NLRB 1034 (1992). Written notice of an
intent to resign from the union can be required. Michigan Model
Manufacturers Association, Inc., 310 NLRB 929 (1993). The Court
has also held that unions may discipline supervisor members so
long as the discipline is not imposed in connection with collective
bargaining or grievance administration responsibilities exercised
by such supervisor members. NLRB v. International Brotherhood of
Electrical Workers, Local 340, 481 U.S. 573 (1987). Recognitional
picketing that does not require the employer to accept contract
terms relating to the selection of grievance representatives is not
violative of the Act. InLand Lakes Management, Inc. v. NLRB, 987
F.2d 799 (D.C. Cir. 1993). Cf. Local 60, United Association of Journey-
man & Apprentices of the Plumbing and Pipefitting Industry v. NLRB,
941 F.2d 1326 (5th Cir. 1991). The other side of this matter relates
to disputes arising out of union exclusions of workers and dues
obligations that may be imposed upon such workers. See Johnson
Controls World Services, Inc., 326 NLRB 8 (1998), where the Board
held that where a union terminates a unit employee’s membership
lawfully or unlawfully, for reasons other than a failure to pay dues
and fees, the individual cannot be required as a condition of em-
ployment to continue to pay dues and fees under the Act.
20. 473 U.S. at 110–14. The principles of Pattern Makers have been
applied to the right of the individual to repudiate an authorization
to have his or her dues checked off for a period of a year under a
collective bargaining agreement. The right to refrain means, in the
Board’s view, that it is
. . . reasonable for us to conclude that an employee who has promised
only to pay union ‘‘membership’’ dues by checkoff for 1 year has not
necessarily thereby obliged himself to continue paying such dues
throughout that period—i.e., to continue assisting the union—even

337 Notes to Page 173

 where he is no longer a union member. We will require clear and un-
mistakable language waiving the right to refrain from assisting a union,
just as we require such evidence of waiver with regard to other statu-
tory rights . . .
The policy [set forth in Pattern Makers] warrants the application of a
test that will assure that the extraction of moneys from an employee’s
wages to assist a union, if not authorized by a lawful union—security
clause, is in accord with the employee’s voluntary agreement. If the
employee did not agree, when he signed the authorization, to have
‘‘regular membership dues’’ deducted even when he is no longer a
union member, then the employee’s continued financial support of
the union is not ‘‘voluntary’’ after he has resigned . . .
Explicit language within the checkoff authorization clearly setting
forth an obligation to pay dues even in the absence of union mem-
bership will be required to establish that the employee has bound
himself or herself to pay the dues even after resignation of member-
ship. If an authorization contains such language, dues may properly
continue to be deducted from the employee’s earnings and turned
over to the union during the entire agreed-upon period of irrevoca-
bility, even if the employee states he or she has had a change of heart
and wants to revoke the authorization.
Lockheed Space Operations Co., Inc., 302 NLRB 322, 328–329 (1991).
See also United States Postal Service, 302 NLRB 332 (1991); National
Oil Well, Inc., 302 NLRB 367 (1991); Stone Container Corp., 302
NLRB 957 (1991).

21. NLRB v. Boeing Co., 412 U.S. 67 (1973).

22. Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
23. Pub. L. 86-257, Sept. 14, 1959, 73 Stat. 519, 29 U.S.C. §§401 et
seq. (2000). This statute has spawned litigation about the union’s
fiduciary duty to members; see, for instance, Morrisey v. Curran, 650
F.2d 1267 (2d Cir. 1981). The Court has held in Reed v. United
Transportation Union, 488 U.S. 319 (1989) that the appropriate
statute of limitations for free speech and assembly cases is bor-
rowed from state personal injury actions.
24. United Steelworkers of America, AFL-CIO-CLC v. Sadlowski, 457
U.S. 102, 109 (1982).
25. Id. at 124. But see Reed v. United Transportation Union, supra,
where Justice Brennan, speaking for the Court, stated that
Landrum-Griffin’s protection of free speech and assembly ‘‘. . . was
patterned after the First Amendment.’’ Reed, 488 U.S. at 326. The
‘‘some evidence’’ standard that applies to a union decision relating
to procedural deficiency in due process disputes, does not apply to
the free speech guarantees of the statute. Black v. Ryder/P.I.E. Na-
tionwide, 970 F.2d 1461 (6th Cir. 1992).

338 Notes to Pages 173–175

 26. 457 U.S. at 124.

27. Id.
28. Finnegan v. Leu, 456 U.S. 431 (1982).
29. Id. at 437.
30. Id. at 441 n.11. See Cotter v. Owens, 753 F.2d 223 (2d Cir. 1985).

31. Sheet Metal Workers’ International Association v. Lynn, 488 U.S.

347 (1989). Thus federal law preempts state wrongful discharge
legislation utilized to protect a discharged assistant business man-
ager of the union. Vituloo v. International Brotherhood of Electrical
Workers, Local 206, 75 P.3d 1250 (Mont. 2003).
32. Lynn, 488 U.S. at 355. The creation of a rival union with dual
unionism is not speech protected by Landrum-Griffin. Ferguson v.
Int’l Association of Iron Workers, 854 F.2d 1169 (9th Cir. 1988).
33. Alvey v. General Electric Co., 622 F.2d 1279 (7th Cir. 1980).
See generally A. Cox, ‘‘Internal Affairs of Labor Unions under the
Labor Reform Act of 1959,’’ 58 Mich. L. Rev. 819 (1960).
34. Williams v. International Typographical Union, 423 F.2d 1295
(10th Cir. 1970).

35. 665 F.2d 1096 (D.C. Cir. 1981).

36. Bauman v. Presser, 117 LRRM 2393 (D.D.C. 1984).
37. Id. at 2396.

38. Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir.
1992). Cf. Acri v. International Association of Machinists, 781 F.2d
1393 (9th Cir.).

39. The court said that in order to maintain an action predicated

upon misrepresentation and nondisclosure, there must be a causal
relationship between the alleged misrepresentation and the injury
and a showing that the outcome of the ratification vote would have
been different, and that had it been different, the company would
have acceded to the union’s demands. This is an extremely rigid
test, initially established in Acri, and one which the court in Ackley
characterized as ‘‘rightly . . . difficult to satisfy. . . .’’ 958 F.2d at 1473.
See also International Longshoreman’s Ass’n, Local 1575 (Navieras,
NPR, Inc.), 332 NLRB 1336 (2000) (holding that the adoption and
ratification of a collective bargaining agreement does not fall
within the ‘‘wage, hours, and other terms and conditions of

339 Notes to Pages 175–177

 employment’’ set forth by the Act and noting that unions are not
even required to submit contracts to members for ratification).
40. Ackley, 958 F.2d at 1474.
41. The court stated further:
Time is of the essence during contract negotiation and ratification; a
few days may mean the difference between an amicable resolution of
labor-management differences and a bitter and extended strike. Simi-
larly, when a strike is in progress, if it cannot be ended by a quick rati-
fication vote conducted immediately after a tentative agreement is
reached, both sides may suffer serious and even irreparable economic
injury—economic injury that both would desperately wish to avoid.
Unlike other elections, a contract ratification vote cannot be sched-
uled in advance, or set for some pre-established date. No one knows
until an agreement is reached whether or when negotiators will arrive
at a contract. Because there may be an urgent need for speedy ratifi-
cation, there may not be an opportunity for full argument on each
of the provisions of the contract. In addition, ratification procedures
must be tailored to the unique characteristics and needs of each
union. Some unions span large geographic areas, while others are
purely local in nature. The members of some unions work at fixed
locations; in other unions, members spend a considerable amount of
their working time on the road or in the air. As a result of these and
other differences, some groups of union members may prefer that
the union hold ratification meetings, while others may opt for mail
balloting procedure. Neither of these procedures is ideal. Mail ballot-
ing may impede full debate on important issues, while an open meet-
ing procedure may preclude the type of review of the entire contract
that might otherwise be desirable. The individual unions are better
suited than the courts to the task of determining what is best for their
members—when and under what circumstances ratification votes are
appropriate and what procedures are best suited to their members’
needs and work schedules. Id. at 1477–78.

42. Merk v. Jewel Food Stores, 945 F.2d 889 (7th Cir. 1991).

43. Id. at 905. The court distinguished Chrysler Worker’s Association

v. Chrysler Corp., 834 F.2d 573 (6th Cir. 1987), on the ground that
transfer rights were involved in the former case whereas in Merk a
reduction of a wage level in the bargaining unit across the board
was involved here. Cf. Gatliff Coal Co. v. Cox, 152 F.2d 52 (6th Cir.
1945).
44. 945 F.2d at 905.

45. 29 USC §461 (2000).

46. 29 USC §§481 et seq. (2000).

340 Notes to Pages 177–178

 47. 29 USC §481 (e) (2000). See generally Hodgson v. Local 6799,
United Steelworkers, 403 U.S. 333 (1971), Wirtz v. Hotel, Motel and
Club Employees Union, Local 6, 391 U.S. 492 (1968); Calhoon v. Har-
vey, 379 U.S. 134 (1964).
48. 404 U.S. 528 (1972).

49. Local No. 82, Furniture and Piano Moving v. Crowley, 467 U.S. 526
(1984).
50. 498 U.S. 466 (1991).

51. Id. at 476–78.

52. Theodus v. McLaughlin, 852 F.2d 1380 (D.C. Cir. 1988).
53. 18 USC §1961–68 (2000). See chapter 4, footnote 22.

54. See Steven Greenhouse, ‘‘Concluding the U.P.S. Strike: The

Overview,’’ The New York Times, Aug. 20, 1997, at A1.
55. United States v. Teamsters, 988 F.Supp. 759 (S.D.N.Y. 1997).

56. United States v. Teamsters, 141 F.3d 405 (2d Cir. 1998).
57. See Steven Greenhouse, ‘‘U.S. Officials Ending Monitoring of
Teamsters’ Finances,’’ The New York Times, Jan. 11, 2002, at A3.

58. Cf. United States v. Congress of Industrial Organizations, 335 U.S.

106 (1948). Cf. Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th
Cir. 1997) (upholding, against First Amendment Challenge, an-
nual consent provision for contributions to unions for political
purposes).
59. International Association of Machinists v. Street, 367 U.S. 740
(1961). Cf. Railway Clerks v. Allen, 373 U.S. 113 (1963). The seminal
case is Railway Employees v. Hanson, 351 U.S. 225 (1956). See also
Pipefitters Local 562 v. United States, 407 U.S. 385 (1972). Although
the Supreme Court has not confronted the issue, the weight of
authority is that union members may not object to dues spent for
purposes that are not germane to collective bargaining. Kidwell v.
TCIU, 946 F.2d 283 (4th Cir. 1991).

60. 487 U.S. 735 (1988).

61. Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
62. Executive Order requiring federal contractors to notify
workers of rights under Beck v. Communications Workers, signed by
President Bush April 13, 1992, 72 DLR D-1, 1992. For a thorough
analyses of Beck, see Dau-Schmidt, ‘‘Union Security Agreements

341 Notes to Pages 179–183

 under the National Labor Relations Act: The Statute, the Consti-
tution, and the Court Opinion in Beck,’’ 27 Harv. J. on Legis. 51
(1990); ‘‘Topol, Union Shops, State Action and the National Labor
Relations Act,’’ 101 Yale L. J. 1135 (1992).
63. Kelly, ‘‘President Moves in Favor of Labor,’’ The New York
Times, February 3, 1993, at A12, col. 1.
64. See Steven Greenhouse, ‘‘Bush is Moving to Reduce Labor’s
Political Coffers,’’ The New York Times, Feb. 16, 2001, at A14. A fed-
eral district court initially invalidated this order on preemption
grounds. UAW-Labor and Employment Training Corp. v. Chao, 169
LRRM 2073 (D.D.C. 2002). However, the Court of Appeals for the
District of Columbia reversed this decision. UAW-Labor and Em-
ployment Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003).
65. California Saw & Knife Works, 320 NLRB 224 (1995). Cf. Pro-
duction Workers Union of Chicago & Vicinity, Local 707 v. NLRB, 161
F.3d 1047 (7th Cir. 1998).
66. California Saw and subsequent cases have helped to define
more fully a union’s responsibility in this area. The Board in Cali-
fornia Saw held, inter alia, that a union must take ‘‘reasonable steps
to insure that all employees whom the union seeks to obligate to
pay dues are given notice of their rights.’’ 320 NLRB at 233. All
employees, members and nonmembers, must give notice of the
right to resign membership and thus avoid obligatory union secu-
rity. Paperworkers Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349
(1995), enforcement denied Buzenius v. NLRB, 124 F.3d 788 (6th
Cir. 1997); Group Health, Inc., 325 NLRB 342 (1998), enforced sub
nom. Bloom v. NLRB, 209 F.3d 1060 (8th Cir. 1998); Cf. Rochester
Manufacturing Co., 323 NLRB 260 (1997). Further, two Courts of
Appeals held that such notice must also inform employees of
the percent reduction in dues that would result from a Beck objec-
tion. See Thomas v. NLRB, 213 F.3d 651 (D.C. Cir. 2000); Finerty
v. NLRB, 113 F.3d 1288 (9th Cir. 1997). California Saw also held
that a limited ‘‘window-period’’ where nonmember employees can
object is valid, but that the period must commence immediately
after the employee becomes a nonmember. 320 NLRB at 236. This
type of ‘‘window period’’ had been previously upheld in Abrams v.
Communication Workers of America, 59 F.3d 1373 (D.C. Cir. 1995).
Additionally, California Saw held that unit-by-unit accounting is
not required, thus permitting a union to charge for other unit’s
expenses, so long as ‘‘it has allocated its expenses so that only
those that ultimately inure to the benefit of the bargaining unit are
being charged.’’ 320 NLRB at 237. This practice was also upheld in
Finerty v. NLRB, 113 F.3d 1288 (D.C. Cir. 1997). See also Chevron

342 Notes to Page 183

 Chemical Co., 326 NLRB 301 (1998). The D.C. Circuit has repeat-
edly held that unions need not have local-by-local calculations of
expenditures when determining advance fee reduction. See Tho-
mas v. NLRB, 213 F.3d 651 (D.C. Cir. 2000); Finerty v. NLRB, 113
F.3d 1288 (D.C. Cir. 1997). See also Electric Boat, 328 NLRB 1215
(1999). But now, the Board believes that a union must provide
employees with an independent audit so that they can determine
whether to object. KGW Radio, 327 NLRB 474 (1999).
Regarding what expenses are chargeable to nonmembers, the
Board in California Saw refused to adopt a per se rule that would
prohibit charging nonmembers for litigation expenses outside of
their unit, instead asking whether the charged litigation ‘‘may ulti-
mately inure to the benefit of the members of the local union by
virtue of their membership in the parent organization.’’ 320 NLRB
at 238 (internal quotations and citation omitted). The Board also
found that a union may not charge nonmembers for legislative
expenses. Id. at 249. But in United Food & Commercial Workers Union,
Local 1036 v. NLRB, 284 F.3d 1099 (9th Cir. 2002) (en banc), enfg.
Meijer, Inc., 329 NLRB 730 (1999), cert. denied sub nom. Mulder
v. NLRB, 537 U.S. 1024 (2002). The Ninth Circuit held that rep-
resentation expenditures are chargeable, so long as the targeted
employers are in the same competitive market as the unit. This
decision seems questionable in light of Supreme Court prece-
dent. See Connecticut Limousine Service 324 NLRB 633, 638 (1997)
(Chairman Gould dissenting in part).
67. Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466
U.S. 435 (1984).
68. Id. at 444. Accord, in the public sector arena, Chicago Teachers,
Union Local No. 1 v. Hudson, 475 U.S. 292 (1986).
69. Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292
(1986).

70. Id. at 295.

71. Ellis, 466 U.S. 435 (1984).
72. Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).

73. International Association of Machinists v. Street, 367 U.S. 740

(1961).

Chapter 10
1. The following states have public-employee legislation: Ala-
bama, Alaska, California, Connecticut, Delaware, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine,

343 Notes to Pages 183–185

 Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mon-
tana, Nebraska, Nevada, New Hampshire, New Jersey, New Mex-
ico, New York, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Ver-
mont, Washington, Wisconsin, Wyoming, and Washington, D.C.
The Indiana Public Employees Collective Bargaining Act was
repealed effective September 1, 1982. However, teachers in Indi-
ana still have a statutory right to bargain collectively. Five states—
Virginia, North Carolina, Louisiana, West Virginia, and South
Carolina—although they do not have any public employee bar-
gaining laws, have recognized grievance procedures for some pub-
lic employees.
2. H. Edwards, ‘‘The Emerging Duty to Bargain in the Public Sec-
tor,’’ 71 Mich. L. Rev. 885, 896 (1973).

3. 5 USC §1101 et seq. Pub. L. No. 95-454, 92 Stat. 1111. The

Supreme Court has addressed the authority of the Federal Labor
Relations Authority, which has jurisdiction over unfair labor prac-
tice matters under the Civil Service Reform Act, in a variety of
areas. See, for instance, Federal Labor Relations Authority v. Aberdeen
Proving Ground, 485 U.S. 409 (1988); Department of the Treasury, In-
ternal Revenue Service v. Federal Labor Relations Authority, 494 U.S. 922
(1990); Fort Stewart Schools v. Federal Labor Relations Authority, 495
U.S. 641 (1990).
4. 39 USC §1206 (2000).

5. American Federation of State, County and Municipal Employees, AFL-

CIO v. Woodward, 406 F.2d 137 (8th Cir. 1969).
6. United States Civil Service Commission v. National Association of Let-
ter Carriers, 413 U.S. 548, 564 (1973); Pickering v. Board of Education,
391 U.S. 563, 568 (1968).
7. Shelton v. Tucker, 364 U.S. 479 (1960).
8. In Smith v. Arkansas State Highway Employees, Local 1315, 441
U.S. 463 (1979), the Court reiterated that ‘‘[t]he public employee
surely can associate and speak freely and petition openly, and he
is protected by the First Amendment from retaliation from doing
so.’’ In the years preceding Smith, numerous courts had already
found that ‘‘[u]nion membership is protected by the right of asso-
ciation under the First and Fourteenth Amendments.’’ AFSCME v.
Woodward, 406 F.2d 137, 139 (8th Cir. 1969) (citing Thomas v. Col-
lins, 323 U.S. 516 (1945)). Similarly, in Atkins v. City of Charlotte,
296 F.Supp. 1068, 1077 (W.D.N.C. 1969) (three-judge court), the

344 Notes to Pages 185–186

 court found that the ‘‘right of association includes the right to
form and join a labor union.’’
9. There is authority on policemen: Lutine v. Van Cleave, 483 F.2d
966, 967 (10th Cir. 1978); Vorbeek v. McNeal, 407 F.Supp. 733 (E.D.
Mo. 1976) (three-judge court), affirmed, 426 U.S. 948.

10. It is permissible to prevent fire-department officers from join-

ing the same union as rank-and-file employees. Vicksburg Firefighters
Assn. v. City of Vicksburg, Mississippi, 761 F.2d 1036, 1040 (5th Cir.
1985) (holding ‘‘that prohibiting firefighters properly charac-
terized as supervisors from belonging to labor organizations com-
posed of the rank and file serves a legitimate and substantial
government interest in maintaining efficient and dependable fire-
fighting services’’); Firefighters’ Local 2498 v. York County, 589 F.2d
775 (4th Cir. 1978); Elk Grove Firefighters’ Local No. 2340 v. Williss,
400 F.Supp. 1097 (N.D. Ill. 1975), affirmed, 539 F.2d 714 (7th Cir.
1976); Firefighters v. City of Tupelo, 489 F.Supp. 1224 (N.D. Miss.
1977). A regulation prohibiting police officers from joining ‘‘any
labor organization whose membership is not exclusively limited
to full-time law enforcement officers’’ impermissibly limits police
officers’ rights of association under the First Amendment; Mescall
v. Rochford, 92 LRRM 2708 (N.D. Ill. 1979), aff ’d 655 F.2d 111 (7th
Cir. 1981).
11. United Federation of Postal Clerks v. Blount, 825 F.Supp. 879
(D.D.C. 1971) (three-judge court), aff ’d 404 U.S. 802; Vorbeek v.
McNeil, supra note 9; Loutine v. Van Cleave, supra note 9.
12. County Sanitation District No. 2 of Los Angeles v. County Employees
Association SEIU, 88 Cal.3d 564 (1985).

13. Smith v. Arkansas State Highway Employees, 441 U.S. 468 (1979);
See also Babbitt v. UFW, 442 U.S. 289, 313 (1979) (recognizing that
‘‘the Constitution does not afford . . . employees the right to com-
pel employers to engage in a dialogue or even to listen’’).

14. See, e.g., Id.; Hanover Township Federation of Teachers v. Hanover

Community School Corp., 457 F.2d 456 (7th Cir. 1972).
15. City of Madison, Joint School District No. 8 v. Wisconsin Employment
Relations Commission, 429 U.S. 167 (1976).
16. Perry Education Association v. Perry Local Educators’ Association,
460 U.S. 37 (1983).

17. NLRB v. Magnavox Co., 415 U.S. 322 (1974); Helton v. NLRB,
656 F.2d 888 (D.C. Cir. 1981).

345 Notes to Page 186

 18. Ysleta Federation of Teachers v. Ysleta Independent School District,
720 F.2d 1429 (5th Cir. 1988).
19. Minnesota State Board for Community Colleges v. Knight, 465 U.S.
271 (1984).
20. Board of Regents v. Roth, 408 U.S. 564 (1972); Perry v. Sinder-
mann, 408 U.S. 598 (1972); Arnett v. Kennedy, 416 U.S. 134 (1974);
Goss v. Lopez, 419 U.S. 565 (1975); Bishop v. Wood, 426 U.S. 841
(1976); Davis v. Scherer, 468 U.S. 183, (1984), Cleveland Board of Ed-
ucation v. Loudermill, 470 U.S. 532 (1985).
21. Cleveland Board of Education, 470 U.S. 532, 37 (1985).
22. Elrod Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507
(1980).
23. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
24. See David Firestone and Elizabeth Bumiller, ‘‘Stalemate Ends
in Bush Victory on Terror Bill,’’ The New York Times, Nov. 13, 2002,
at A1.
25. See Christopher Lee and Sara Kehaulani Goo, ‘‘TSA Blocks
Attempts to Unionize Screeners,’’ The Washington Post, Jan. 10,
2003, at A19; Stephen Barr, ‘‘National Security Concerns Wipe out
Union Rights at Mapping Agency,’’ The Washington Post, Feb. 10,
2003, at B2. See also David Bacon, ‘‘Screened Out: How ‘Fighting
Terrorism’ Became a Bludgeon in Bush’s Assault on Labor,’’ The
Nation, May 12, 2003, at 19.
26. Richard Stevenson, ‘‘Government May Make Private Nearly
Half Its Civilian Jobs,’’ The New York Times, Nov. 15, 2002, at A1;
Paul Krugman, ‘‘Victors and Spoils,’’ The New York Times, Nov. 19,
2002, at A31.

27. Governor’s Commission on Public Employment Relations,

Final Report (State of New York, 1966).
28. Wellington, Unions and the Cities (1972); H. Wellington and
R. Winter, ‘‘The Limits of Collective Bargaining in Public Employ-
ment,’’ 78 Yale L. J. 1107 (1969).
29. J. Burton and C. Krider, ‘‘The Role and Consequences of
Strikes by Public Employees,’’ 79 Yale L. J. 419 (1969).

30. R. Smith, H. Edwards, and R. T. Clark, Labor Relations Law in

the Public Sector 259–73 (1974).

346 Notes to Pages 187–190

 31. Detroit Police Officers Association v. Detroit, 214 N.W.2d 803 (Mich.
1974).
32. San Jose Police Officers Association v. San Jose, 78 Cal.App.3d 935,
144 Cal.Rptr. 638 (1978).
33. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 464 U.S. 89, 107 (1983).
34. There were eight such states: the five in the text plus Mon-
tana, Oregon, and Wisconsin [T. Kochan, ‘‘Dynamics of Dispute
Resolution in the Public Sector,’’ in Public-Sector Bargaining
(Industrial Relations Research Association Series, 1979), pp. 150,
154–55]. In 1980 only Idaho could be added to the list. California
has required public employers to exhaust administrative remedies
before the state labor-relations agency before seeking injunctions
against strikes San Diego Teachers Association v. Superior Court, 24
Cal.3d 1, 154 Cal.Rptr. 893 (1979). Cf. Holland School District v.
Holland Education Association, 380 Mich. 314, 157 N.W.2d 206
(1968). But the Seventh Circuit Court of Appeals has held that the
California approach does not apply under the federal statutory
scheme. United States v. PATCO, 653 F.2d 1134 (7th Cir. 1981).
35. County Sanitation of Los Angeles v. SEIU, 38 Cal.3d 564, 586
(1985).

36. W. Gould, ‘‘Managing Emergency Strikes,’’ New Leader,

March 14, 1966; K. Hanslowe, The Emerging Law of Labor Rela-
tions in Public Employment (1967).

37. The Civil Service Reform Act of 1978, Pub. L. 95-454, Oct. 13,
1978, 92 Stat. 111. 5 USC §7119(c)(s)(A)(ii) (2000).
38. Kochan, op. cit. at 156; W. Gould, ‘‘Public Employment: Medi-
ation, Fact Finding and Arbitration.’’ 55 ABA J. 835, 838 (1969).

Chapter 11
1. Labor and management must be represented equally on the
board of trustees, 29 USC §186(c)(5). Cf. NLRB v. Amax Coal Co.,
453 U.S. 322 (1981), in which the Court held, 8–1, that under both
the NLRA and ERISA trustees administer the trusts in the interest
of employees and their families rather than that of the appointing
party.

2. 29 USC §1001(b) (2000).

3. Pub. L. 96-364, 94 Stat. 1209–1210. The remedy for violations
of the 1980 amendment does not extend to the employer’s breach

347 Notes to Pages 191–198

 of a statutory duty under the National Labor Relations Act as
opposed to its contractual duty under the collective bargaining
agreement. Laborers Health and Welfare Trust Fund for Northern Cali-
fornia v. Advanced Lightweight Concrete Co., 484 U.S. 539 (1988).
4. 446 U.S. 359 (1980).

5. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981).

6. Greater Washington Board of Trade v. District of Columbia, 948 F.2d
1317 (D.C. Cir. 1991). Cf. Donnelley & Sons Co. v. Prevost, 915 F.2d
787 (2d Cir. 1990).
7. 498 U.S. 133 (1990). ERISA provides the exclusive remedy in
connection with such actions even though the action is not insti-
tuted to obtain the pension benefits lost but rather other damages.
8. Industrial Union Department, AFL-CIO v. American Petroleum Insti-
tute, 448 U.S. 607, 611 (1980). See ‘‘The Significant Risk Require-
ment in OSHA Regulation of Carcinogens’’ (Comment), 33 Stan.
L. Rev. 551 (1981).
9. Kathy Chen, ‘‘Bush Proposal on Repetitive-Stress Injuries Relies
on Voluntary Industry Guidelines,’’ Wall Street Journal, April 8,
2002, at A28; Steven Greenhouse, ‘‘Democrats Question Bush Pol-
icies on Workplace Injuries,’’ The New York Times, April 19, 2002, at
A18; Steven Greenhouse, ‘‘Bush Plan to Avert Work Injuries Seeks
Voluntary Steps by Industry,’’ The New York Times, April 6, 2002, at
A12.
10. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002). More
than twenty states now mandate health and safety committees in
certain workplaces, with the overwhelming majority of such laws
enacted since 1990. See David Weil, ‘‘Are Mandated Health and
Safety Committees Substitutes for or Supplements to Labor
Unions?’’ 52 Indus. & Lab. Rel. Rev. 339, 345 (1999). However,
similar legislation on the federal level has failed. See H.R. 1280,
103d Cong. (1993); H.R. 3160, 102d Cong. (1991). It is an open
question whether the OSH Act or the NLRA preempt these state
laws or whether they violate §8(a)(2) of NLRA, which prohibits
employer-dominated ‘‘labor organizations.’’

11. 448 U.S. at 615 (quoting 29 USC §652(d)).

12. Id. at 642.
13. The Court did not reach this issue in American Petroleum.

14. AFL-CIO v. Marshall, 617 F.2d 636, 643 (D.C. Cir. 1979).

348 Notes to Pages 198–200

 15. Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467,
478 (D.C. Cir. 1974).
16. American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S.
490 (1981). Chief Justice Burger, Justice Rehnquist, and Justice
Stewart were the dissenters.

17. Id. at 495. A Court of Appeals has held that OSHA cannot
issue broad standards for hundreds of chemical substances in the
workplace without evaluation of each one. AFL-CIO v. OSHA, 965
F.2d 962 (11th Cir. 1992). Swoboda, ‘‘At Labor, One Falls through
the Cracks,’’ The Washington Post Weekly Edition, March 29–April 4,
1993, at 32.

18. American Petroleum, 448 U.S. at 652; Whirlpool Corp. v. Marshall,

445 U.S., 20–21 (1980).
19. Marshall v. Barlow’s Inc., 436 U.S. 307 (1978). However, the
Court has held that the same constitutional requirements do not
apply in the case of the Federal Mine Safety and Health Act of
1977, 30 USC §301. See Donovan v. Dewey, 452 U.S. 594 (1981).
20. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980).

21. Bethlehem Steel Corp. v. Occupational Safety and Health Review

Commission, 540 F.2d 157 (3d Cir. 1976). (‘‘Repeated’’ implies at
least two previous instances, and application of the statute requires
willfulness.) However, see Todd Shipyards Corp. v. Secretary of Labor,
589 F.2d 688 (9th Cir. 1978) (one previous instance suffices and
the statute requires repeated infractions or willfulness); George
Hyman Construction Co. v. Occupational Safety and Health Review
Commission, 582 F.2d 834 (4th Cir. 1978); Todd Shipyards Corp. v.
Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977).

22. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

23. Gateway Coal Co. v. UMW, 414 U.S. 368, 385 (1974); NLRB
v. Knight Morky Co., 251 F.2d 753 (6th Cir. 1957). See Atleson,
‘‘Threats to Health and Safety: Employees Self Help under the
NLRA,’’ 59 Minn. L. Rev. 647 (1975).
24. Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).
25. Id. at 20–21.

26. 505 U.S. 88 (1992). Cf. Martin v. OSHRC, 499 U.S. 144 (1991).
27. 505 U.S. at 107–108. Justice Kennedy filed a separate concur-
ring opinion. Justice Souter, joined by Justices Blackmun, Stevens,
and Thomas dissented.

349 Notes to Pages 200–202

 28. 42 USC §706(f ), as amended, 86 Stat. 103 (2000).

29. 42 USC §§703–04 (2000).

30. Equal Employment Opportunity Commission v. Arabian American
Oil Co., 499 U.S. 244 (1991). See generally Bellace, ‘‘The Interna-
tional Dimension of Title VII,’’ 24 Cornell Int’l L. J. 1 (1991). On
another issue relating to foreign employers and government, the
Supreme Court has held that American subsidiaries of Japanese
companies are not protected by the treaty between the United
States and Japan that allows companies of each nation to employ
executives of their own choice in the other nation. Sumitomo Shoji
America, Inc. v. Avagliamo, 457 U.S. 176 (1982). The Court of
Appeals for the Seventh Circuit, in an opinon authored by Judge
Posner, held that discrimination on the basis of Japanese citizen-
ship as authorized by the treaty is not actionable under the statute
as discrimination on the basis of national origin. Fortino v. Quasar
Co., 950 F.2d 389 (7th Cir. 1991). Earlier the Supreme Court
has distinguished between discrimination on the basis of national
origin, which is prohibited, and discrimination on the basis of citi-
zenship, which is not. Espinoza v. Farah Mfg. Co., 414 U.S. 86
(1973).
31. The Civil Rights of 1991, Pub. L. 102–166, November 21, 1991,
105 Stat. 1071.
32. W. Gould, ‘‘The Supreme Court and Employment Discrimina-
tion Law in 1989: Judicial Retreat and Congressional Response,’’
64 Tul. L. Rev. 1485 (1990).
33. Civil Rights Act of 1991, Pub. L. 102–166, November 21, 1991,
105 Stat. 1071.

34. See Gersman v. Gha, 975 F.2d 886 (D.C. Cir. 1992); Holt v.
Michigan Department of Corrections, 974 F.2d 771 (6th Cir. 1992);
Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992); Mozee v.
American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir. 1992);
Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992);
Johnson v. Uncle Ben’s, 965 F.2d 929 (7th Cir. 1992); Luddington v.
Indiana Bell, 966 F.2d 225 (7th Cir. 1992).

35. McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 808 (9th Cir.
1994) (referring to Landgraf v. USI Film Products. 511 U.S. 244
(1994)).

36. International Brotherhood of Teamsters v. United States, 431 U.S.

324 (1977). See also Hazelwood School District v. United States, 433
U.S. 299 (1977) (further defining the appropriate use of statistics).

350 Notes to Pages 202–203

 37. Statistics were first used in class-action cases such as Interna-
tional Brotherhood of Teamsters. See Davis v. Califano, 613 F.2d
957 (D.C. Cir. 1978). Earlier decisions, for instance, EEOC v. New
York Times Broadcasting Service, 542 F.2d 356 (6th Cir. 1976); King v.
Yellow Freight System, Inc., 523 F.2d 879 (8th Cir. 1975) had held
only that the statistical evidence in such cases was relevant.
38. 401 U.S. 424 (1971).
39. Even when the practice that excludes disproportionately is
eliminated, an individual denied employment because of a non-
job-related procedure can be a victim of discrimination. Connecti-
cut v. Teal, 457 U.S. 440 (1982); Cf. Costa v. Marhey, 706 F.2d 1 (1st
Cir. 1982).
40. The theory was applied under §1981 to New York City school
teachers in Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir.
1972), later appeal, 561 F.2d 1079 (1977). In 1976 the Supreme
Court ruled that the theory could not be applied to cases
brought on constitutional grounds Washington v. Davis, 426 U.S.
299 (1976). Title VII now applies to governmental bodies, Pub. L.
92-261, §2(1), 86 Stat. 103 amending 42 U.S.C. §2000e(a) See New
York City Transit Authority v. Beazer, 440 U.S. 568 (1979).
41. General Building Contractors Association v. Pennsylvania, 458
U.S. 375 (1982). Indeed, where employers have required college
degrees for positions with responsibility and risk, Griggs has not
been followed. Davis v. City of Dallas, 777 F.2d 205 (5th Cir. 1985).
See especially Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th
Cir. 1972).
42. Dothard v. Rawlinson, 433 U.S. 321 (1977).

43. 442 F.2d 385 (5th Cir.). See also Weeks v. Southern Bell Tel. &
Tel. Co., 408 F.2d 228 (5th Cir. 1969).
44. Diaz v. Pan American World Airlines, 442 F.2d at 388.
45. Backus v. Baptist Medical Center, 510 F.Supp. 1191 (E.D.Ark.
1981), vacated because of mootness, 671 F.2d 1100 (8th Cir.
1982).
46. 510 F.Supp. at 1195.

47. Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980).

48. Torres v. Wisconsin Dept. of Health and Social Services, 859 F.2d
1523 (7th Cir. 1988).

351 Notes to Pages 203–204

 49. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412 (1985). See
also Johnson v. Mayor of Baltimore, 472 U.S. 353 (1985); Trans World
Airlines v. Thurston, 469 U.S. 111 (1985).
50. 490 U.S. 642 (1989).
51. Id. at 659.

52. Id. at 660.

53. Id. at 657.
54. Civil Rights Act of 1991, Pub. L. 105(B)(i).

55. Id.
56. McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973); Furnco
Construction Co. v. Waters, 438 U.S. 567 (1978).

57. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
See also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983); Anderson v. City of Bessemer City, 470 U.S. 564
(1985).
58. Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th Cir. 1983).
59. Conner v. Fort Gordon Bus Company, 761 F.2d 1495 (11th Cir.
1985); Miles v. M.N.C. Corporation, 750 F.2d 867 (11th Cir. 1985).
60. 509 U.S. 502 (1993).
61. 490 U.S. 228 (1989). Illustrative of the mixed motive cases are
those in which the employer acquires after the fact information
about a classification of an application or other kinds of job mis-
conduct. The test may be whether the employer would have acted
in the same manner if it had the relevant information. See, for
example, Washington v. Lake County, Illinois, 969 F.2d 250 (1992)
(7th Cir. 1992). However, the Supreme Court has rejected the
after-acquired evidence rule and has held that the rule does not
preclude all recovery under the ADEA. Rather, backpay and other
damages accrue until the point at which the employer would have
legitimately terminated the employee. See McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352 (1995).
62. Justice Brennan announced the opinion of the Court in which
he was joined by Justice Marshall, Justice Blackmun, and Justice
Stevens. Justice O’Connor filed a separate concurring opinion,
and Justice Kennedy, along with Chief Justice Rehnquist and Jus-
tice Scalia, dissented.
63. Desert Palace, Inc. v. Costa, ___ U.S. ___, 123 S.Ct. 2148 (2003).

352 Notes to Pages 204–206

 64. Civil Rights Act of 1991, Pub. L. 107(B)(i)(ii).

65. International Brotherhood of Teamsters v. U.S., 431 U.S. 324

(1977). See also American Tobacco Co. v. Patterson, 456 U.S. 63
(1982) (not an unlawful employment practice to apply different
standards pursuant to a bona fide seniority plan as long as differ-
ences are not a result of intentional discrimination and are not
limited to seniority systems adopted before effective date of Civil
Rights Act); Pullman-Standard v. Swint, 456 U.S. 273 (1982) (a
showing of disparate impact is insufficient to invalidate a senior-
ity system, even though the result may be to perpetuate pre-Act
discrimination).

66. For example, Teamsters, 431 U.S. at 337 (of 6,742 employees,
314 were black and 257 Spanish surnamed).
67. Lorance v. AT&T Technologies, 490 U.S. 900 (1989).

68. Id. The Court relied upon previous decisions such as Delaware
State College v. Ricks, 449 U.S. 250 (1980) and United Airlines, Inc. v.
Evans, 431 U.S. 553 (1977).
69. Civil Rights Act of 1991, Pub. L. 112, November 21, 1991. But
see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)
(standing for the proposition that events such as termination, fail-
ure to promote, denial of transfer, or refusal to hire constitute
completed acts at the time they occur even when they are related
to acts alleged in a timely-filed charge).
70. 334 F.3d 656 (7th Cir. 2003).

71. Id. at 659.

72. Id. at 660.
63. Id. at 662.

74. Id. at 663 (Rovner, J., dissenting). Cf. Goodman v. Lukens Steel
Co., 482 U.S. 656 (1987) (finding that the union violated Title VII
by not pursuing discrimination grievances despite the fact that
union leaders were favorably disposed toward minorities).

75. It was included in an amendment by Representative Howard

Smith of Virginia, an attempt to prevent passage of the bill. See 88
Cong. Rec. 2576-584 and 2804.

76. 29 USC §206(d) (1976).

77. State courts, like federal courts, possess jurisdiction over title
VII claims. Yellow Freight Systems v. Donnelly, 494 U.S. 820 (1990).

353 Notes to Pages 206–208

 Moreover, where a state statute provides greater benefits, namely
unpaid leave and reinstatement to employees disabled by preg-
nancy, the statute does not mandate inconsistency with federal law
and is not preempted by title VII. California Federal Savings & Loan
Association v. Guerra, 479 U.S. 272 (1987).

78. 3 C.F.R. 169 (1974).

79. April 9, 1866, Ch. 31, 14 Stat. 27. These provisions are cur-
rently embodied in 42 USC §§1981, 1983. Sometimes it is difficult
to define race for the purpose of this Reconstruction legislation.
For instance, since Jews were considered to be members of a dis-
tinct race at the time of the statute’s enactment, Jews may sue un-
der this statute for violations motivated by racial prejudice. Shaare
Tefila Congregation v. Cobb, 481 U.S. 615 (1987). As with the Consti-
tution itself, Griggs standards do not apply. St. Francis College v. Al-
Khazraji, 479 U.S. 812 (1987).
80. Patterson v. McLean Credit Union, 491 U.S. 164 (1989) which ef-
fectively made the statute applicable only to racial discrimination
in connection with hiring but not ‘‘post-contract formation racial
harassment in employment.’’ Congress appears to have reversed
this decision through section 101(2)(b) which states that ‘‘. . .
the term ‘make and enforce contracts’ include the making, per-
formance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.’’

81. Civil Rights Act of 1991, Pub. L. 102–166, November 21, 1991,
105 Stat. 1071.
82. 42 USC §2000e-5(e) (2000).

83. General Electric Co. v. Gilbert, 429 U.S. 125 (1976).

84. 42 USC §2000e(k) (2000). Some states have passed legislation
explicitly providing for pregnancy leave and the validity of such
legislation has withstood challenge. See California Federal Savings &
Loan Ass’n v. Guerra, 479 U.S. 272 (1987).
85. Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S.
669 (1983).

86. See Report of Families and Work Institute (May 1991); ‘‘Bush
Vetoes Bill Making Employees Give Family Leave,’’ The New York
Times, September 23, 1992, p. 1A, col. 6. Cf. ‘‘In Family-Leave De-
bate, A Profound Ambivalence,’’ The New York Times, October 7,
1992, p. 1A, col. 6.

354 Notes to Pages 208–209

 87. Clinton Signs Family Leave Bill into Law, 142 LRRM 175
(1993).
88. In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the
Court held that an employer need not specifically designate leave
as FMLA leave for it to count against the twelve weeks that an em-
ployer is required to provide.
89. The following states have family leave statutes in excess of
the federal act: California, Connecticut, Hawaii, Illinois, Iowa,
Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana,
Nevada, New Hampshire, Oregon, Rhode Island, Tennessee, and
Vermont. Though all of these leave policies are unpaid, five juris-
dictions (California, Rhode Island, Hawaii, New York, and New
Jersey) provide partial wage replacement for mothers recovering
from childbirth and initially caring for their child through the
states’ Temporary Disability Insurance (TDI) programs. See S.
Wisensale, Family Leave Policy: The Political Economy of Work and
Family in America (2001); National Partnership for Women & Fam-
ilies at www.nationalpartnership.com. Further, effective in 2004,
California will become the first state to offer up to twelve weeks of
paid leave for an employee to care for a seriously ill family member
or a new child.

90. City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S.
702 (1978).
91. Arizona Governing Committee for Tax Deferred Annuity v. Norris,
463 U.S. 1073 (1983).
92. Florida v. Long, 487 U.S. 223 (1988).
93. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

94. For example, Willingham v. Macon Telegraph Publishing Co., 507

F.2d 1084 (5th Cir. 1975) (en banc), Gerdom v. Continental Airlines,
Inc., 692 F.2d 602 (9th Cir. 1982), (policy requiring an exclu-
sively female category of flight attendants to adhere to weight
restrictions constitutes discriminatory treatment on basis of sex),
Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984) (title VII
is not so expansive in scope as to prohibit discrimination against
transsexuals).
95. Garcia v. Gloor, 609 F.2d 156 (5th Cir. 1980); Garcia v. Spun
Steak Co., 998 F.2d 1480 (9th Cir. 1993); Michael Janofsky, ‘‘Ban on
Speaking Navajo Leads Café Staff to Sue,’’ The New York Times, Dec.
20, 2002, at A20; ‘‘Protecting Navajos at Work,’’ The New York Times,
Oct. 18, 2002, at A30. (‘‘Arizona has long been at the forefront of

355 Notes to Pages 209–210

 nationwide efforts to make English the country’s official language.
The pitch, usually in reaction to immigration from Mexico and
points south, tends to go something like this: ‘You’ve come to our
land, so you’d better learn our language. That makes the federal
government’s objections to ‘English only’ rules on behalf of Nav-
ajos rather poignant. After all, we’ve come to their land.’’’) Where
an important aspect of a position involves oral communication
skills, a ‘‘heavy Filipino accent’’ can constitute a basis for excluding
an otherwise qualified applicant. Fragante v. City and County of Ho-
nolulu, 888 F.2d 591 (9th Cir. 1989). Cf. Megia v. New York Sheraton
Hotel, 459 F.Supp. 375 (S.D.N.Y. 1978); Carino v. University of Okla-
homa Board of Regents, 750 F.2d 815 (10th Cir. 1984); Berke v. Ohio
Dept. of Public Welfare, 628 F.2d 980 (6th Cir. 1980).
96. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See gener-
ally Susan Estrich, ‘‘Sex at Work,’’ 43 Stan. L. Rev. 813 (1992).
Where a sexual relationship is a substantial factor in the denial of
a job to the plaintiff employee, one court has held that title VII is
violated. King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985). But for a
contrary conclusion see: DeCinto v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 1986) cert. denied, 484 U.S. 825 (1987);
Miller v. Alcoa, 679 F.Supp. 495 (W.D. Pa. 1988).

97. 477 U.S. at 70.

98. Id. at 68. Plaintiff ’s posing for nude pictures does not consti-
tute a defense to a claim. Burns v. McGregor Electronic Industries, 989
F.2d 959 (8th Cir. 1993).
99. 477 U.S. at 72. Agency principles cannot be disregarded. Jus-
tice Marshall with whom Justices Brennan, Blackmun, and Stevens
joined, filed a special concurring opinion in which he concluded
that his authority is an abuse of the authority vested in him or her
by the employer that enables him or her to:
commit the wrong: it is precisely because the supervisor is understood
to be clothed with the employer’s authority that he is able to impose
unwelcome sexual conduct on subordinates. There is therefore no
justification for a special rule, to be applied only in ‘‘hostile environ-
ment’’ cases, that sexual harassment does not create employer liability
until the employee suffering the discrimination notifies other super-
visors. No such requirement appears in the statute, and no such re-
quirement can coherently be drawn from the law of agency. (Id. at 77)
The supervisor’s conduct must take place within the scope of em-
ployment, although the question of whether the employer knew or
should have known will apply in connection with harassment by a
coworker. Kauffman v. Allied Signal, 970 F.2d (6th Cir. 1992).

356 Notes to Pages 210–211

 100. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). See Estrich,
supra note 96. However, the opinion of the Ninth Circuit as to
what standard of conduct must be demonstrated is not entirely
agreed upon. Indeed there appears to be a split in the circuits,
with some adopting the Ninth Circuit’s ‘‘reasonable woman’’ stan-
dard while other courts of appeals require an analysis of whether
the employee claiming sexual harassment personally suffered psy-
chological harm as a result of the abusive working environment.
For examples of the former, see Andrews v. City of Philadelphia, 895
F.2d 1469 (3d Cir. 1990), or Burns v. McGregor Electronics Industries,
955 F.2d 559 (8th Cir. 1992). For examples of the latter standard,
see King v. Board of Regents of the University of Wisconsin et al., 898
F.2d 533 (7th Cir. 1990), or Brooms v. Regal Tube Co., 881 F.2d 412
(7th Cir. 1989). Though not explicitly rejecting the ‘‘reasonable
woman’’ standard, the Supreme Court has a reasonable victim
standard. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
101. Intlekofer v. Turnage, 59 FEP Cases 929 (9th Cir. 1992). Some-
times an arbitration award will prevent an employer from carrying
out its duty to eliminate sexual harassment in the work place.
Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840 (2d
Cir. 1990).

102. W. Gould ‘‘Letter to the Editor,’’ The New York Times, October
20, 1991, p. 14.
103. Pub. L. §1977A(3)(b)(3)(A-B) provides that the cap is
$50,000 for an employer with between 14 and 101 employees;
$100,000 for 100–201; $200,000 for 200–501; and $300,000 for an
employer with more than 500 employees. Cases involving racial
discrimination, which are instituted under Reconstruction legisla-
tion, provide for punitive and compensatory damages that are not
capped.
104. For representative sexual harassment cases, see generally
Gorski v. New Hampshire Dept. of Corrections, 290 F.3d 466 (1st Cir.
2002); Frazier v. Delco Electronics Corp., 263 F.3d 663 (7th Cir. 2001);
Little v. Windermere Relocation, Inc., 265 F.3d 903 (9th Cir. 2001).
Sexual harassment may occur unlawfully beyond the physical con-
fines of the workplace. Ferris v. Delta Air Lines, Inc., 277 F.3d 128
(2d Cir. 2001).

105. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Bur-
lington Industries Inc. v. Ellerth, 524 U.S. 742 (1998) (holding that
an employer is vicariously liable to a victimized employee for an
actionable hostile environment created by a supervisor possessed
of authority and that where no tangible employment action is

357 Notes to Pages 211–212

 taken—hiring, firing, failure to promote, reassignment with ‘‘sig-
nificantly different responsibilities’’ or a decision causing a ‘‘sig-
nificant change’’ in benefits—an employer may provide an
affirmative defense to liability. The defendant must show that the
employer exercised ‘‘reasonable care to prevent and correct
promptly any sexually harassing behavior’’ and that the plaintiff
employee ‘‘unreasonably failed to take advantage’’ of the preven-
tive opportunities made available. Again, the affirmative defense
is not available where the supervisor’s harassment consists of tan-
gible employment action.) The Court of Appeals for the Ninth
Circuit has held that the affirmative defense is inapplicable to
conduct by a coworker though appropriate remedial action is part
of the plaintiff ’s burden of proving negligence. Swinton v. Potomac
Corp., 270 F.3d 794 (9th Cir. 2001), cert. denied, 535 U.S. 1018
(2002). Where constructive discharge is alleged to have occurred,
employee exploration of alternative avenues to resolve the dis-
crimination is relevant but will not defeat a claim where working
conditions were ‘‘intolerable.’’ Suders v. Easton, 325 F.3d 432, 444
(3rd Cir. 2003).
106. 523 U.S. 75 (1998).
107. Justice Thomas wrote a short separate concurring opinion.

108. Oncale, 523 U.S. at 80.

109. Id. at 81. Further, Oncale may have played a role in the in-
crease in sexual harassment charges filed by men.

110. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

111. Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874 (9th
Cir. 2001).

112. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir.
2002) (en banc), cert. denied 123 S.Ct. 1573 (2003). A concurring
opinion was written by Judge Pregerson, joined by Judges Trott
and Berzon. Judge Hug authored the dissenting opinion, which
Chief Judge Schroeder and Judges Fernandez and Nelson joined.
113. County of Washington v. Gunther, 452 U.S. 161 (1981). See also
IUE v. Westinghouse Electric Corp., 631 F.2d 1094 (3d Cir. 1980);
Spaulding v. Univ. of Washington, 740 F.2d 686 (9th Cir. 1984).
114. 452 U.S. at 166–67. See also American Federation of State,
County and Municipal Employees v. State of Washington, 770 F.2d 1401
(W.D.W.A. 1983), American Federation of State, County and Municipal
Employees v. State of Washington, 578 F.Supp. 846 (W.D.W.A. 1983),

358 Notes to Pages 212–213

 reversed, 770 F.2d 1401 (9th Cir. 1985). Federal District Judge
Tanner ordered $800 million in back pay to 15,000 women who
earned less then men on the state payroll for jobs deemed to be
of comparable worth. ‘‘U.S. Drops a Fight on Comparable Worth,’’
The New York Times, September 15, 1984 at 6. Spaulding v. University
of Washington, 740 F.2d 686 (9th Cir. 1984).
115. 499 U.S. 187 (1991).
116. Id. at 197.

117. In this connection the Court cited Muller v. Oregon, 208

U.S. 412 (1908), which held that social and economic legisla-
tion which would otherwise be unconstitutional was constitutional
where it applied to women alone because of their special situation
in society.
118. Johnson Controls, Inc., 499 U.S. at 211.

119. According to the Human Rights Campaign, the enactment

dates range from the early 1970s to 2004 with a significant number
of localities enacting legislation within the past ten years. Some
notable jurisdictions (along with the year of enactment): Albany
(1992), Aspen (1977), Atlanta (2000), Austin (1975), Baltimore
(1988), Boston (1984), Chicago (1988), Cleveland (1994), Dallas
(2002), Denver (1990), Des Moines (2001), Detroit (1979), Hart-
ford (1977), Los Angeles (1979), Louisville (1999), Miami-Dade
County (1998), Milwaukee (1991), Minneapolis (1974), New Or-
leans (1991), New York (1993), Oakland (1984), Philadelphia
(1982), Phoenix (1992), Pittsburgh (1990), Portland (OR) (1994),
Providence (1995), St. Louis (1993), St. Petersburg (2002), Salt
Lake City [public only], San Francisco (1978), Seattle (1980), and
Tucson (1999).
120. J. Gross, ‘‘In Reversal, California Governor Signs a Bill
Extending Gay Rights,’’ The New York Times, September 26, 1992 at
1. G. Webb, ‘‘Gay Rights Bill is Signed,’’ The San Jose Mercury News,
September 26, 1992, at 1. G. Lucas, ‘‘Wilson Signs Bills Bolstering
Civil Rights Laws,’’ San Francisco Chronicle, September 25, 1992, at
A21.

121. Lawrence et al. v. Texas, ___ U.S. ___, 123 S.Ct. 2472 (2003).
122. 24 Cal.3d 458 (1979). A more detailed discussion of this issue
is contained in Simon and Daley, ‘‘Sexual Orientation and Work-
place Rights: A Potential Land Mine for Employers?’’ 18 Employee
Relations L. J. 29 (1992).

359 Notes to Pages 213–215

 123. Soroka v. Dayton-Hudson Corp., 1 Cal.Rptr.2d 77 (1991), rev.
granted 4 Cal.Rptr.2d 180 (1992), rev. dismissed as moot 24
Cal.Rptr.2d 587 (1993).
124. Collins v. Shell Oil Co., 56 FEP Cases 440 (Alameda Co. S.Ct.
1991).

125. Dubbs v. Central Intelligence Agency, 866 F.2d 1114 (9th Cir.
1987); Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988).
But see Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989).

126. Able v. United States, 155 F.3d 628 (2d Cir. 1998); Holmes v.
California Army National Guard, 124 F.3d 1126 (9th Cir. 1997);
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); Able v. United States,
88 F.3d 1280 (2d Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th
Cir. 1996). See also Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en
banc), in which the predecessor directive was similarly held to be
constitutional.
127. 109 Cal. Rptr.2d 154 (1st Div. 2001).
128. In a related and directly relevant issue, the Court, in a 5–4
opinion, has held that a state public accommodations law requir-
ing the Boy Scouts to admit a homosexual violates the Boy Scouts’
First Amendment right of expressive association. Boy Scouts of
America v. Dale, 530 U.S. 640 (2000).

129. Corporation of the Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327 (1987).
130. Bollard v. The California Province of the Society of Jesus, 196 F.3d
940 (9th Cir. 1999). See also, Daniel J. Wakin, ‘‘Challenging the
Bishop, in Court,’’ The New York Times, Jan. 14, 2002, at A16.
In light of President George W. Bush’s emphasis on faith-based
initiatives, courts will be increasingly forced to confront the com-
patibility of local, state, and federal laws with faith-based orga-
nizations’ discrimination in employment on the basis of religion.
But, to facilitate such organizations’ eligibility for federal funds, in
December 2002 President Bush revoked a provision of a long-
standing executive order (section 204 of Executive Order 11246 of
September 24, 1965) that had prohibited religious discrimination
by entities receiving federal procurement contracts. See Richard
W. Stevenson, ‘‘In Order, President Eases Limits on U.S. Aid to
Religious Groups,’’ The New York Times, Dec. 13, 2002, at A1. For a
discussion of a recently settled case involving religious discrimina-
tion and public funding, see Jeffry Scott and Nancy Badertscher,
‘‘Bias out if Groups Receive State Aid,’’ Atlanta Journal-Constitution,

360 Notes to Pages 215–216

 Oct. 10, 2003, at 1E (discussing Bellmore v. United Methodist Child-
ren’s Home).
131. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Cf.
Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986).
132. Goldman v. Weinberger, 475 U.S. 503 (1986).

133. 494 U.S. 872 (1990). Congress sought to overrule Smith by

enacting the Religious Freedom Restoration Act of 1993, 42 U.S.C.
§2000bb, et seq. (1994). However, the Court found that Congress
acted beyond its enforcement powers under §5 of the Fourteenth
Amendment when it enacted such legislation. See City of Boerne v.
Flores, 521 U.S. 507 (1997). Thus, Smith remains good law.

134. Justice O’Connor wrote a separate concurring opinion, which

was joined by Justices Brennan, Marshall, and Blackmun in part,
but the last three judges filed a separate dissenting opinion.

135. 494 U.S. at 885.

136. Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S.
136 (1987).
137. Frazee v. Illinois Department of Employment Security, 489 U.S. 829
(1989).
138. Thomas v. Review Board, 450 U.S. 707 (1981).
139. 29 USC §§31–41c, 42-1 to 426, 701–09, 720–24, 730–32, 740,
741, 750, 760–64, 770–76, 780–87, 790–94 (1976) and 41 C.F.R.
§60-741.1 et seq.
140. Pub. L. 101–336.

141. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002).
142. PGA, Inc. v. Martin, 532 U.S. 661, 685 (2001).
143. Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002).

144. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v.
United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555 (1999).

145. Toyota Motor Manufacturing Co. v. Williams, 534 U.S. 184

(2002).
146. Id. at 197. The Court noted that the plaintiff ‘‘admitted
that she was able to do the manual tasks required by her two
original jobs . . . In addition . . . even after her condition worsened,

361 Notes to Pages 216–219

 she could still brush her teeth, wash her face, bathe, tend her
flower garden, fix breakfast, do laundry, and pick up around the
house. . . . The record also indicates that her medical conditions
caused her to avoid sweeping, to quit dancing, to occasionally seek
help dressing, and to reduce how often she plays with her chil-
dren, gardens, and drives long distances. . . . But these changes in
life do not amount to such severe restrictions in the activities that
are of central importance to most people’s daily lives that they
constitute a manual-task disability as a matter of law.’’ Id. at 202.
147. Clackamas Gastroenterology Assocs., P.C. v. Wells, ___ U.S. ___,
123 S.Ct. 1673 (2003) (applying common law principle of con-
trol to find that four director–shareholder physicians counted as
‘‘employees’’ under the ADA).
148. School Board of Nassau County, Florida v. Arline, 480 U.S. 273
(1987).
149. 29 U.S.C. §621 et seq. (2000).
150. Willfull violations trigger an award of liquidated damages.
Hazen Paper Company v. Biggins, 507 U.S. 604 (1993).

151. Cline v. General Dynamics Land Systems, Inc., 296 F.3d 466 (6th
Cir. 2002), cert. granted 123 S.Ct. 1786 (2003).
152. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308
(1996).
153. Hazen Paper, 507 U.S. at 617.
154. 29 USC §631(c)(i) (2000).

155. Gregory v. Ashcroft, 501 U.S. 452 (1991).

156. Aaron Bernstein, ‘‘Putting Mandatory Retirement out to Pas-
ture,’’ Business Week, June 10, 1985 at 104, 105.

157. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), the
Court recognized that it has ‘‘never decided whether a disparate
impact theory of liability is available under the ADEA.’’ See also
Adams v. Florida Power Corp., 255 F.3d 1322 (11th Cir. 2001), cert.
dismissed 535 U.S. 228 (2002) (holding that, as a matter of first im-
pression, disparate impact claims may not be brought under the
ADEA).

158. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).

159. See Frank v. United Airlines, Inc. 216 F.3d 845, 856 (9th Cir.
2000); Criley v. Delta Airlines, Inc. 119 F.3d 102, 105 (2d Cir. 1997)

362 Notes to Pages 219–221

 (per curiam); Smith v. City of Des Moines, 99 F.3d 1466, 1469–70
(8th Cir. 1996); EEOC v. Borden’s, Inc., 724 F.2d 1390, 1394–95 (9th
Cir. 1984); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980).
160. Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158
(1989).

161. 29 USC §623(f ) (2000). Although this legislation has broad

impact, several types of early retirement programs—such as those
that provide fixed bonuses, service-based benefits, and salary per-
centage incentives—will remain lawful provided that they are truly
voluntary. The issue of what constitutes ‘‘voluntariness’’ is uncer-
tain and will likely lead to future litigation. Moreover, although the
legislation arguably prohibits plans that reduce or eliminate early
retirement incentives that decrease as employees age, commenta-
tors have suggested that such a conclusion is far from entirely
clear. See, for example, R. S. Smith and W. A. Kohlburn, ‘‘Early
Retirement Incentive Plans after the Passage of the Older Workers
Benefit Protection Act,’’ 11 St. Louis Univ. Pub. L. Rev. 263, 270
(1992).

162. Kolstad v. American Dental Assoc., 527 U.S. 526 (1999).

163. 422 U.S. 405 (1975).
164. Id. at 419–22. The Court, by a 6–3 vote, has held that an
employer’s unconditional offer of a previously denied job to a job
applicant who charged the employer with hiring discrimination
generally tolls back-pay liability even if the employer does not offer
retroactive seniority. Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).
165. Great American Savings and Loan Association v. Novotny, 442
U.S. 366, 374–75 (1979) (‘‘the majority of federal courts have held
that the Act does not allow a court to award general or punitive
damages’’). See De Grace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir.
1980) (agreeing with ‘‘all the 808 circuits which have addressed
the matter’’); Harrington v. Vandalia-Butler Board of Education, 585
F.2d 192 (6th Cir. 1978); Richerson v. Jones, 551 F.2d 918, 926–28
(3d Cir. 1977); EEOC v. Detroit Edison Co., 515 F.2d 301, 308–510
(6th Cir. 1975), vacated on other grounds and remanded sub
nom., Detroit Edison Co. v. EEOC, 431 U.S. 951 (1977). But see
Clairborne v. Illinois Central Railroad, 588 F.2d 148, 154 (5th Cir.
1978) (dicta).

166. Johnson v. Railway Express, 421 U.S. 454, 459–60 (1975).

167. For example, Scott v. University of Delaware, 601 F.2d 76, 81 n.8
(8th Cir. 1979); Claiborne v. Illinois Central Railroad, 588 F.2d at

363 Notes to Page 221

 158–54 (punitive damages under 42 USC §1981 even if action
brought under both that and title VII); Allen v. Amalgamated Transit
Union, 554 F.2d 876, 888 (8th Cir. 1977); Gill v. Manuel, 488 F.2d
799, 801 (9th Cir. 1973); Caperci v. Huntoon, 397 F.2d 799 (1st Cir.
1968); Mansell v. Saunders, 872 F.2d 578 (5th Cir. 1967).

168. Dyna-Med, Inc. v. Fair Employment and Housing Commission, 43

Cal.3d 1379, 241 Cal.Rptr. 67, 743 P.2d 1323 (1987).
169. Chapter 1991, A.B. No. 311, approved by the governor, Sep-
tember 24, 1992.
170. Unions are liable, for instance for refusing to file grievances
alleging racial discrimination that charge the employer with vio-
lating the collective bargaining agreement’s prohibition against
racial discrimination. Goodman v. Lukens Steel Co., 482 U.S. 656
(1987).

171. For example, United States v. Trucking Employers, Inc., 561 F.2d
818, 818 (D.C. Cir. 1977).
172. See, for example, Associated Contractors of Massachusetts, Inc. v.
Altshuler, 490 F.2d 9 (1st Cir. 1973); Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971); Weiner
v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d
907 (1969). See also Regents of the University of California v. Bakke,
438 U.S. 265, 801–02 (1978).
173. Regents of the University of California v. Bakke, 438 U.S. 265
(1978).

174. United Steelworkers of America v. Weber, 448 U.S. 193 (1979). See
also Detroit Police Officers’ Association v. Young, 808 F.2d 671 (6th Cir.
1979).

175. 476 U.S. 267 (1986). Justice Marshall, speaking for both Jus-
tices Brennan and Blackmun, dissented in part on the ground that
societal discrimination could serve as a basis for the provisions of
the collective bargaining agreement.

176. Local 28 of the Sheet Metal Workers’ International Association v.

EEOC, 478 U.S. 421 (1986).
177. Local No. 98, International Association of Firefighters v. City of
Cleveland, 478 U.S. 501 (1986).
178. United States v. Paradise, 480 U.S. 149 (1987).
179. 480 U.S. 616 (1987).

364 Notes to Pages 221–223

 180. Id. at 633.

181. City of Richmond v. Croson, 488 U.S. 469 (1989).

182. Metro Broadcasting, Inc. v. Federal Communications Commission,
497 U.S. 547 (1990).
183. Lamprecht v. Federal Communications Commission, 958 F.2d 382
(D.C. Cir. 1992).
184. Id. at 391.
185. Adarand Contractors, Inc. v. Pena, 515 U.S. 200 (1995). The re-
lationship of the Court’s approval of race-based affirmative action
in higher education to employment is as of yet unclear. Grutter v.
Bollinger, ___ U.S. ___, 123 S.Ct. 2325 (2003); Gratz v. Bollinger
___ U.S. ___, 123 S.Ct. 2411 (2003).
186. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)
(overruling National League of Cities v. Usery, 426 U.S. 833 (1976)).

187. The Eleventh Amendment provides, ‘‘The Judicial power of

the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.’’
188. The Court’s decision in Seminole Tribe v. Florida, 517 U.S. 44
(1996), which held that Congress could not abrogate a State’s
sovereign immunity when enacting legislation under its Article I
powers, paved the way for the Court’s subsequent rulings that
limited state employees’ ability to sue under federal employment
laws. See generally William Balden Adams, The Eleventh Amend-
ment’s Resurrection: Implications for State Employees (2001) (unpub-
lished B.S. thesis, Cornell University, on file with the School of
Industrial and Labor Relations’s Catherwood Library).
189. 527 U.S. 706 (1999).
190. 528 U.S. 62 (2000).
191. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 536
(2001).
192. Nevada Dept. of Human Resources v. Hibbs, ___ U.S. ___, 123
S.Ct. 1972 (2003).

193. See 58 Am. Jur. 2d Master & Servant 27 (1970).

194. Woolley v. Hoffmann-La Roche, Inc., 491 A.2d 1257, 1266 (N.J.
1985). But see the same court’s ruling that employees on annual

365 Notes to Pages 223–226

 salary are at will. Bernard v. IMI Systems, Inc., 618 A.2d 338 (N.J.
1993).
195. Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.
1988). But see Korb v. Raytheon Corp. 574 N.E.2d 581 (Mass. 1991);
Smith Pfeiffer v. The Superintendent of the Walter E. Frenold State School,
533 N.E.2d 1368 (Mass. 1989); Smith v. Calgon Carbon Corp., 917
F.2d 1338 (3d Cir. 1990). On the relationship between antidis-
crimination law and the wrongful dicharge public policy excep-
tion, see generally Rojo v. Kliger, 52 Cal.3d 65 (1990); Gantt v. Sentry
Insurance, 1 Cal.4th 1083 (1992).
196. Woolley, 491 A.2d 1257; Weiner v. McGraw-Hill, Inc., 443 N.E.2d
441 (N.Y.); Wieder v. Skala, 609 N.E.2d 105 (N.Y. 1992); Touissant v.
Blue Cross Blue Shield of Michigan, 292 N.W.2d 880 (Mich. 1980).
This holding seems to have been limited somewhat in recent years.
Rowe v. Montgomery Ward & Co., 473 N.W.2d 268 (Mich. 1991);
Dumas v. Auto Club Insurance Association, 473 N.W.2d 652 (Mich.
1991). Cf. Elsey v. Burger King Corp., 917 F.2d 256 (6th Cir. 1990).
Fogel v. Trustees of Iowa College, 446 N.W.2d 451 (Iowa 1989), Mc-
Donald v. Mobil Coal Producing, Inc., 789 P.2d 866 (Wyo. 1990).
197. Crenshaw v. Bozeman Deaconess Hospital, 693 P.2d 487 (Mont.
1984).

198. Alaska, Arkansas, California, Colorado, Connecticut, District

of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Ken-
tucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jer-
sey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wis-
consin, and Wyoming. Additionally, Arizona’s legislature has pre-
cluded its judiciary from creating public policy exceptions to
employment-at-will, but it has explicitly done so itself in a single
comprehensive statute (which differs from the multiple-statute
approach that Alabama, Florida, Louisiana, and New York use,
with these latter states’ approach resembling traditional statutory
remedies as opposed to public policy exceptions).
Numerous public policy exceptions have emerged. For example,
an employer who discharges an employee for refusing to violate
a federal or state law is generally liable for wrongful discharge.
See, e.g., Barela v. C.R. England & Sons, Inc., 203 F.3d 834 (10th
Cir. 1999); Radawan v. Beecham Laboratories, 850 F.2d 147 (3d Cir.
1988); Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992);
Borden v. Amoco Coastwise Trading Co., 985 F.Supp. 692 (S.D. Tex.
1997). Also, if an employee reports the employer’s illegal conduct,

366 Notes to Page 226

 then the employee is generally protected from retaliation by a
public exception. See, e.g., Zamboni v. Stamler, 847 F.2d 73 (3d Cir.
1988); Palmateer v. Int’l Harvester Co., 421 N.E.2d 876 (Ill. 1981);
Potter v. Village Bank of New Jersey, 543 A.2d 80 (N.J. App. Div. 1988);
Lorbacher v. Housing Authority of Raleigh, 493 S.E.2d 74 (N.C. Ct.
App. 1997). But, courts disagree over whether the employee must
complain to government officials or whether internal whistleblow-
ing is sufficient to trigger the exception. For courts supporting
the former position, see Fox v. MCI Communications Corp., 931 P.2d
857 (Utah 1997); Faust v. Ryder Commercial Leasing & Services, Inc.,
954 S.W.2d 383, 392 (Mo. Ct. App. 1997). For courts supporting
the latter position, see Murcott v. Best Western Int’l, Inc., 9 P.3d
1088 (Ariz. Ct. App. 2000); Paolella v. Browning-Ferris, Inc., 158 F.3d
183 (3d Cir. 1998); Chilson v. Polo Ralph Lauren Retail Corp., 11
F.Supp.2d 153 (D. Mass. 1998). Additionally, while the most com-
monly recognized exception is for filing a worker’s compensation
claim, see, e.g., Dillard Dept. Stores v. Beckwith, 989 P.2d 882 (Nev.
1999); Lathrop v. Entenmann’s, Inc., 770 P.2d 1367 (Colo. Ct. App.
1998), some states do not recognize it. See, e.g., Smith v. Midland
Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) (applying
Kansas law); Smith v. Gould, Inc., 918 F.2d 1361 (8th Cir. 1990)
(applying Nebraska law); Evans v. Bibb Co., 342 S.E.2d 484 (Ga.
App. 1986); Kelly v. Mississippi Valley Gas Co., 397 So.2d 874 (Miss.
1981). Further, almost every state, as well as federal law, recognizes
a public policy exception for jury duty or testifying pursuant to a
subpoena. See Ness v. Hocks, 536 P.2d 512 (Or. 1975); Halbasch
v. Med-Data, Inc., 192 F.R.D. 641 (D. Or. 2000) (applying Oregon
law); Norfolk Southern Railway v. Johnson, 740 So.2d 92 (Al. 1999);
Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213 (S.C. 1985).
Finally, some courts have held that retaliation based on sexual ha-
rassment violates public policy where no statutory remedy exists.
See, e.g., Insignia Residential Corp. v. Ashton, 755 A.2d 1080 (Md.
Ct. App. 2000); Courtney v. Landair Transport Inc., 227 F.3d 559 (6th
Cir. 2000); Mitchem v. Counts, 523 S.E.2d 246 (Va. 2000); Owen v.
Carpenter’s District Council, 161 F.3d 767 (4th Cir. 1998).
Some less common exceptions include: (1) where an employee
exercises his or her professional judgment, see Borden v. Amoco
Coastwise Training Co., 985 F.Supp. 692 (S.D. Tex. 1997), but see
Falco v. Community Medical Ctr., 686 A.2d 1212 (N.J. App. Div.
1997); and (2) where an employee engages in heroic conduct that
violates a work rule, see Gardner v. Loomis Armored, Inc., 913 P.2d
377 (Wash. 1996).
199. Alabama, Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, District of Columbia, Georgia, Hawaii, Idaho, Illinois,
Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota,

367 Notes to Page 226

 Mississippi, Montana, New Hampshire, New Jersey, New Mexico,
New York, Ohio, Oklahoma, Oregon, South Carolina, South Da-
kota, Texas, Utah, Vermont, Washington, West Virginia, Wiscon-
sin, and Wyoming.
200. Alaska, Arizona, Colorado, Connecticut, Delaware, Idaho,
Massachusetts, Montana, Nevada, New Hampshire, and Wyoming.
Recently, the California Supreme Court abandoned that state’s
recognition of an implied covenant of good faith and fair dealing
in an employment-at-will situation. See Guz v. Bechtel Nat., Inc., 24
Cal.4th 317 (2000). Some states reject implied covenants of good
faith and fair dealing under all employment contracts. See, e.g.,
City of Midland v. O’Bryant, 18 S.W.3d 209 (Tex. 2000); Decker v.
Browning-Ferris Industries of Colorado, Inc., 931 P.2d 436 (Colo.
1997); Phipps v. IASA Health Services Corp., 558 N.W.2d 198 (Iowa
1997). Other states reject it only where an employer can terminate
an employee for any reason. See, e.g., Aiken v. Employer Health Ser-
vices, Inc., 81 F.3d 172 (10th Cir. 1996) (applying Oklahoma law);
Dandridge v. Chromcraft Corp., 914 F.Supp 1296 (N.D. Miss. 1996)
(applying Mississippi law); Jaffee v. Aetna Casualty & Surety Co., 1996
WL 337268 (S.D.N.Y. 1996) (applying New York law); Huegerch v.
IBP, Inc., 547 N.W.2d 216 (Iowa 1996); Wilhelm v. West Virginia Lot-
tery, 479 S.E.2d 602 (W. Va. 1996).
201. Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980).
202. Pugh v. See’s Candy, Inc., 116 Cal.App.3d 311, 171 Cal.Rptr.
917 (1981). But see Arledge v. Stratmar Systems, Inc., 948 F.2d 845
(2d Cir. 1991).
203. 47 Cal.3d 654 (1988).

204. The Court of Appeals for the Seventh Circuit appears to have
adopted a contrary view in Belline v. K-Mart Corp., 940 F.2d 184 (7th
Cir. 1991).
205. Shoemaker v. Myers, 52 Cal.3d 1 (1990); Livitsamos v. The Supe-
rior Court of Los Angeles County, 2 Cal.4th 744 (1992).
206. But see Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d
467, 199 Cal.Rptr. 613 (1984). In Courtney v. Canyon Television &
Appliance, Inc., 899 F.2d 845 (9th Cir. 1990), the court held a dis-
claimer to the effect that an employee handbook was not a con-
tract valid where ‘‘. . . the handbook did not reflect contractual
terms of employment, and that, at any time, management could
make unilateral changes in or exceptions to the policies. In addi-
tion, Courtney has failed to present any evidence to suggest that
Canyon’s actions were not consistent with the disclaimer.’’ But see

368 Notes to Pages 226–227

 Seubert v. McKesson Corp., 223 Cal.App.3d 1514 (1990). See also Sli-
vinsky v. Watkins-Johnson Co., 221 Cal.App.3d 799 (1990); McLain v.
Great American Insurance Companies, 208 Cal.App.3d 1476 (1979),
two cases seemingly in conflict discussed with Seubert.
207. McDonald v. Mobil Coal Producing, Inc., 789 P.2d 866 (Wyo.
1990). Generally, courts simply require that such language be
conspicuous and unambiguous. See, e.g., Phipps v. IASD Health
Services Corp., 558 N.W.2d 198 (Iowa 1997); Hart v. Seven Resorts,
Inc., 947 P.2d 846 (Ariz. Ct. App. 1997); Orr v. Westminster Village
North, Inc., 689 N.E.2d 712 (Ind. 1997); Wolley v. Hoffman-LaRoche,
Inc., 491 A.2d 1257 (N.J. 1985).

208. Asmus v. Pacific Bell, 23 Cal.4th 1, 96 Cal.Rptr.2d 179 (2000).

The vote was 4–3.
209. Id. at 18.

210. Id. at 32.

211. These states are Michigan, Bankey v. Storer Broadcasting Co.,
443 N.W.2d 112 (1989); Virginia, Progress Printing Co. v. Nichols, 421
S.E.2d 428 (1992); West Virginia, Hogue v. Cecil I. Walker Machinery,
431 S.E.2d 687 (1993); South Carolina, Fleming v. Borden, Inc., 450
S.E.2d 589 (1994); Vermont, Trombley v. Southwestern Vermont Medi-
cal Center, 738 A.2d 103, 109 (Vt. 1999); Alabama, Ex parte Amoco
Fabrics and Fiber Co., 729 So.2d 336, 340 (Ala. 1998); Utah, Ryan v.
Dan’s Food Stores, Inc., 972 P.2d 395, 401 (Utah 1998); Idaho, Parker
v. Boise Telco Federal Credit Union, 923 P.2d 493, 498–499 (Idaho
App. 1996); Maryland, Elliot v. Board of Trustees of Montgomery
County Community College, 655 A.2d 46, 51 (Md. App. 1995); Wash-
ington, Gaglidari v. Denny’s Restaurants, Inc., 815 P.2d 1362, 1367
(Wash. 1991); Colorado, Ferrera v. Nielsen, 799 P.2d 458, 460 (Colo.
App. 1990); North Dakota, Sadler v. Basin Electric Power Co-op., 431
N.W.2d 296, 300 (N.D. 1988); and New York, Leathem v. Research
Found. Of City Univ., 658 F.Supp. 651, 655 (S.D.N.Y. 1987). Idaho,
Maryland, Colorado, and New York have not spoken on this issue
through their highest courts.
212. Connecticut, Toreosyan v. Boehringer Ingelheim Pharmaceuticals,
Inc., 662 A.2d 89 (1995); Wyoming, Brodie v. General Chemical Corp.,
934 P.2d 1263 (1997); Illinois, Doyle v. Holy Cross Hospital, 708
N.E.2d 1140 (1999); Arizona, Demasse v. ITT Corp., 984 P.2d 1138
(1999); and Ohio, Hanly v. Riverside Methodist Hosp., 603 N.E.2d
1126, 1130 (Ohio App. 1991). Ohio has not spoken on this issue
through its highest court.

213. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

369 Notes to Pages 227–228

 214. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985); Electrical
Workers v. Hechler, 481 U.S. 851 (1987); United Steelworkers of America
v. Rawson, 482 U.S. 901 (1990).
215. Lingle v. Norge Division of Magic Chef, Inc. 486 U.S. 399, 409
(1988). A suit involving an individual contract of employment
theory regarding employees to whom a collective bargaining
agreement is applicable may not be ‘‘completely preempted.’’ Cat-
erpillar, Inc. v. Williams, 482 U.S. 386 (1987). See also English v.
General Electric, 496 U.S. 72 (1990) where the Court held that a nu-
clear plant employee’s state law claim for intentional infliction of
emotional distress arising out of the employer’s alleged retaliation
for reporting of nuclear safety violations did not fall within the
field of nuclear safety so as to be implicitly preempted by federal
regulation. But preemption under the Employee Retirement In-
come Security Act remains a formidable problem, particularly
inasmuch as so many wrongful discharge claims assert that the
employer is attempting to avoid the payment of benefits or a pen-
sion. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990).

216. Connecticut, Delaware, Illinois, Iowa, Kansas, Louisiana,

Maine, Maryland, Michigan, New York, Oklahoma, Oregon, Texas,
Washington, and Wisconsin. Address by W. Gould, American Arbi-
tration Association, 7th Annual Arbitration Day Conference in Los
Angeles, California (November 15, 1984).
217. See Montana’s Wrongful Discharge from Employment Act
(§39-2-904), which according to the Montana Supreme Court has
limited an employee’s discharge to ‘‘good cause’’ and, thus, has
‘‘effectively eliminate[d]’’ at-will employment in Montana. Whidden
v. Nerison, 981 P.2d 271, 275 (Mont. 1999).

218. ‘‘To Strike A New Balance: A Report of the Ad hoc Commit-

tee on Termination at Will and Wrongful Discharge,’’ Labor and
Employment Law News, State Bar of California (February 8, 1984);
Uniform Law Commissioners’ Model Employment Termination
Act drafted by the National Conference of Commissioners on
Uniform State Laws (1991). See generally W. Gould, ‘‘The Idea of
the Job as Property in Contemporary America: The Legal and
Collective Bargaining Framework,’’ 1986 Brigham Young University
Law Review 885; W. B. Gould, ‘‘Stemming the Wrongful Discharge
Tide: A Case for Arbitration,’’ 13 Employee Relations Law Journal 404
(Winter 1987/88).
219. Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska
1989).

370 Notes to Page 229

 220. Semore v. Pool, 217 Cal.App.3d 1087 (4th District, Division 2
1990).
221. Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11 (N.J.
1992). See also Luck v. Southern Pacific Transportation Co., 267
Cal.Rptr. 618 (1990). See also Harrington v. Almy, 977 F.2d 37 (1st
Cir. 1992).
222. O’Connor v. Ortega, 480 U.S. 709 (1987).
223. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602
(1989).
224. Id. at 631. A dissenting opinion was filed by Justice Marshall,
with whom Justice Brennan joined.

225. 489 U.S. 656 (1989). In this 5–4 decision, Justice Scalia filed
a dissenting opinion in which Justice Stevens joined, with Justice
Marshall writing a short separate dissenting opinion in which Jus-
tice Brennan joined.
226. American Federation of Government Employees, AFL-CIO v. Skin-
ner, 885 F.2d 884, 891 (D.C. Cir. 1989).
227. Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990).

228. International Brotherhood of Teamsters v. Department of Transpor-

tation, 932 F.2d 1293 (9th Cir. 1991). Accord, National Federation of
Federal Employees v. Cheney, 884 F.2d (D.C. Cir. 1989); National Trea-
sury Employees v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990); Rushton v.
Nebraska Public Power District, 844 F.2d 562 (8th Cir. 1988); Hartness
v. Bush, 919 F.2d 170 (D.C. Cir. 1990); Caruso v. Ward, 72 N.Y.2d
432 (1988).
229. Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991). This was a
rehearing that reversed the opinion at 924 F.2d 664.

230. William v. Thornburg, 928 F.2d 1185 (D.C. Cir. 1991).

231. Consolidated Rail Corp. v. Railway Labor Executives Association,
491 U.S. 299 (1989).

232. 295 NLRB 180 (1989). Accord, Kysor/Cadillac, 307 NLRB 598
(1992). Cf. Chicago Tribune Co., 304 NLRB 495 (1991) addressing
the applicability of the collective bargaining process to this issue
and the question of whether the union waived its right to bargain.
In this case the Board held that it had not. Earlier the Board had
come to a similar conclusion with regards to polygraph testing.
Medicenter, Mid-South Hospital, 221 NLRB 1337 (1975). Congress

371 Notes to Pages 229–231

 has carefully regulated polygraph testing through the Employee
Polygraph Act of 1988, Pub. L. 100–347, 102 Stat. 646.
Frequently there is controversy about the ability of the union to
have access to names of individuals who inform upon employees
accused of drug use. The Board said:
. . . the Respondent is required to supply the Union with a summary
of the informant’s statements. This summary should be drafted to
include the information on which the respondent relied to meet the
threshold ‘‘suspicion’’ standard for peforming the drug tests . . . we
have found that the Respondent’s interest in protecting the identity
of informants is overwhelming, [and therefore] this summary need
not, however, contain any information from which the identity of the
informants can be ascertained, and any doubt whether the informa-
tion can be used to identify the informants should be resolved in favor
of nondisclosure. Pennsylvania Power and Light Co., 301 NLRB 1104,
1107 (1991).

233. Star Tribune, 295 NLRB 543 (1989).

234. Westinghouse Electric Corp., 239 NLRB 106 (1978) enforced as
modified sub nom. Electrical Workers IUE, 648 F.2d 18 (D.C. Cir.
1980); East Dayton Tool & Die Co., 239 NLRB 141 (1978). In addi-
tion to federal law there are numerous state drug-testing laws—
nineteen jurisdictions in the early 1990s—that regulate this subject
matter. See generally Berlin, ‘‘More State Laws Now Regulate Drug
Testing in the Work Place,’’ The National Law Journal, July 8, 1991,
p. 19.
235. W/I Forest Products Co., 304 NLRB 957 (1991). More than sev-
enteen states regulate smoking in public workplaces only: Alaska,
Arizona, Arkansas, Connecticut, Florida, Hawaii, Idaho, Iowa,
Kansas, Michigan, Nevada, New Mexico, North Dakota, Ohio,
Oklahoma, Oregon, and Wisconsin. More than fifteen states plus
the District of Columbia also restrict smoking in private work-
places: California, Colorado, Indiana, Maine, Minnesota, Montana,
Nebraska, New Hampshire, New Jersey, New York, Pennsylvania,
Rhode Island, Utah, Vermont, and Washington. Three states reg-
ulate smoking as a result of executive order only Colorado, Mary-
land, and Massachusetts. Numerous local smoking bans have
emerged over the past five years.

236. Compare Local Union No. 733, IBEW v. Ingalls Shipbuilding

Division, Litton Systems, Inc., 906 F.2d 149 (5th Cir. 1990) with Local
2-286 v. Amoco Oil Co., 885 F.2d 697 (10th Cir. 1989).

Chapter 12
1. ‘‘Protecting at Will Employees against Wrongful Discharge: The
Duty to Terminate Only in Good Faith,’’ 93 Harv. L. Rev. 1816

372 Notes to Pages 231–233

 (1980); C. Summers, ‘‘Individual, Protection against Unjust Dis-
missal: Time for a Statute,’’ 62 Va. L. Rev. 481 (1976), C. Peck,
‘‘Unjust Discharges from Employment: A Necessary Change in the
Law,’’ 40 Ohio St. L. J. 1 (1979).
2. NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 488
(1960).
3. For example, L. Thurow, The Zero-Sum Society (1980). For a per-
ceptive discussion of recent and unsuccessful efforts, see R. Flana-
gan, ‘‘The National Accord As a Social Contract,’’ 84 Indus. Lab.
Rel. Rev. 35 (1981).

373 Notes to Pages 233–234

Index
AAL, Inc., 302
A&L Underground, 268
ABC Automotive Products Corp., 300
ABF Freight Systems, 295
Abilities & Goodwill, Inc., 304
Able v. United States, 360
Abood v. Detroit Board of Education,
338, 341
ABS Co., 302
Abusive working environment, 211
Access, to private property, 73–74,
76–77
Access Control Systems, 294
ACF Industries, 268
Ackley v. Western Conference of
Teamsters, 339–340
ACL Corp., 259
Acri v. International Association of
Machinists, 339
Action committee, 52
Acuff v. United Papermakers, 325, 335
Adams, William, ix–x
Adams v. Florida Power Corp., 362
Adarand Contractors, Inc. v. Pena, 365
Ad hoc arbitration, 143
Administrative law judge
remedies and the Labor Reform Bill
of 1978, 132–135
and unfair labor practices, 60–62
Administrative Procedure Act, 247
Adversary-relationship model, 233
Advertisers Manufacturing Company,
318
AFL. See American Federation of
Labor
AFL-CIO. See American Federation of
Labor-Congress of Industrial
Organizations
AFL-CIO v. Alaska Airlines, Inc., 304
AFL-CIO v. Lubbers, 269
AFL-CIO v. Marshall, 348
AFL-CIO v. OSHA, 349
AFSCME v. Woodward, 344
AFT. See American Federation of
Teachers
Age discrimination, 219–221
Age Discrimination in Employment
Act of 1967, 163, 219–220
Agency shop, 53
Agenda for Reform, 323
Aggregations, 13
Agricultural Labor Relations Board v.
Superior Court, 275
Agricultural Relations Act of 1975,
248
Agricultural workers, 35
Aguilera v. Pirelli Armstrong Tire, 246
Aiken v. Employer Health Services, Inc.,
368
Airline Pilots Association, International,
335
Airline Pilots Association, International
v. O’Neill, 334
Airline Pilots Association v. Alaska
Airlines, 304
Airline Pilots Association v. United
Airlines, Inc., 304
Airline workers, 140
Air traffic controllers, 194
Alamo Cement Co., 310
Albermarle Paper Co. v. Moody, 221
Albertson’s, Inc. v. Kirkingburg, 361
Albertson’s, Inc. v. Carrigan, 246
Albuquerque Insulation Contractor, 291
Alcohol abuse, 229–232
Alden v. Maine, 224
Alessi v. Raybestos-Manhattan, Inc., 348
Alexander v. Gardner-Denver, 161–164
Alldata Corp. v. NLRB, 295
Alleluia Cushion Company, 294
Allentown Mack Sales & Service, Inc. v.
NLRB, 260
Allen v. Amalgamated Transit Union,
364
Allied International, Inc., 248
Allied Lettercraft Co., Inc., 272
Allied Mechanical Services v. NLRB,
303
Allied Systems v. Teamsters Committee,
328
Allis-Chalmers Corp. v. Lueck, 245, 370
Allocations, 13
Ally doctrine, 84–85
Alvey v. General Electric Co., 339
Amalgamated Association of Street,
Electric Railway & Motor Coach
Employees v. Lockridge, 244
Amalgamated Dental Union Local 32-A
v. NLRB, 278
Amalgamated Food Employees Union v.
Logan Valley Plaza, 277
Amalgamated locals, 5
376 Index
Amalgamated Meat Cutters and Butcher
Workmen of North America v. Great
Western Food Company, 327
Amazing Stores, Inc. v. NLRB, 288
Ambiguity of rules, 71
American Arbitration Association,
143
American Bar Association, 143
American Biomed Ambulette, Inc., 272
American Can Co., 238
American Electric Power Co., 315
American Federation of Government
Employees, AFL-CIO v. Skinner, 371
American Federation of Labor
(AFL), 2, 13–14
American Federation of Labor-
Congress of Industrial Organiza-
tions (AFL-CIO)
Building Trades Department, 85
No Raiding Pact, 95
public sector, 189
wage drift, 234
American Federation of Labor v. NLRB,
259
American Federation of State,
County, and Municipal Employees,
188–189
American Federation of State, County,
and Municipal Employees, AFL-CIO v.
Woodward, 344
American Federation of State, County,
and Municipal Employees v. State of
Washington, 358
American Federation of Teachers
(AFT), 188–189
American Hospital Association v. NLRB,
256
American labor law
conclusion, 233–235
dispute resolution in the established
relationship, 139–167
duty of fair representation, 169–184
economic pressure and bargaining
tactics in, 97–128
establishing collective bargaining
relationship, 65–96
 industrial relations prior to modern
legislation, 9–26
National Labor Relations Act and,
27–47
overview, 1–7
public-interest labor law, 197–232
public sector, 185–195
remedies and the Labor Reform Bill
of 1978, 129–138
unfair labor practices, 49–64
American Machine Corp. v. NLRB, 305
American Meat Packing Co., 317
American Petroleum, 349
American Potash & Chemical Corp., 253
American Radio Association, AFL-CIO,
et al. v. Mobile Steamship Association,
Inc., 247
American Seating Corp., 294
American Ship Building Company v.
NLRB, 109–112, 114, 126, 273,
307–308
American Textile Manufacturers, Inc. v.
Donovan, 349
American Tobacco Co. v. Patterson, 353
Americans With Disabilities Act of 1990,
215, 219
Ameron Automotive Center, a Division of
the Kelly-Springfield Tire Co., 281
AMF Bowling Co. v. NLRB, 318
Amoco Fabrics and Fiber Co., ex parte,
369
Amundsen, Norman, xxi
Anaconda Aluminum Co., 300
Anaconda Wire and Cable Co., 330
Anchortank, Inc. v. NLRB, 294
Ancor Concepts, Inc., 308
Anderson v. City of Bessemer City, 352
Andrews v. City of Philadelphia, 357
Aneco, Inc., in re, 252
‘‘Animal exuberance,’’ 100, 297
Ansonia Board of Education v. Philbrook,
361
Anthracite Coal Commission, 141
‘‘Anticombination’’ statutes, 9
Antidemocratic effect, of attendance
rules on eligibility for office, 179
377 Index
Antidiscrimination statutes, 203. See
also specific statutes
Antitrust legislation, 240
establishing collective bargaining
relationship, 83
industrial relations and labor law
prior to modern legislation, 13,
15–20, 24–26
remedies and the Labor Reform Bill
of 1978, 136
Antiunion communications, 65
Appalachian Shale Products Co., 294
Appeals, 130, 135
Application agreements, 163
Appropriate unit of workers
establishing collective bargaining
relationship, 65–96
overview, 40–45
unfair labor practices and, 57
A.P.R.A. Fuel Buyers Group, 36, 249
AquaChem, Inc., 306
Aratex Services, Inc., 269
Arbitrary treatment, protection
against, 233
Arbitration, 32
advantages, 144–145
attractions, 146
clauses, 190
compulsory, 193, 195
definition, 139–143
duty of fair representation, 170–171
employment discrimination, 161–
162
limitations, 148–150
minimum-standards legislation,
162–166
National Labor Relations Board,
158–159
overview, 4
process, 146–147
public sector, 166–167, 188, 195
remedies and the Labor Reform Bill
of 1978, 138
role of courts, 150–155
subject matter of disputes, 148
welfare legislation, 162–166
Area-wage-standard picketing, 81
Arizona Governing Committee for Tax
Deferred Annuity v. Norris, 355
Arlan’s Dept. Store, 300
Arledge v. Stratmar Systems, Inc., 368
Arlington, 305, 320
Armendariz case, 165
Armored Transport of California, Inc.,
319
Arnett v. Kennedy, 346
Arrow Automotive Industries, Inc. v.
NLRB, 315
Asarco, Inc., 337
Asmus v. Pacific Bell, 369
Assad v. Mt. Sinai Hospital, 336
Associated Builders & Contractors of
Rhode Island, Inc. v. City of
Providence, 246
Associated Builders v. Baca, 246
Associated Contractors of Massachusetts,
Inc. v. Altshuler, 364
Associated General Contractors of
California, Inc. v. California State
Council of Carpenters, 286
Associated General Contractors v.
Metropolitan Water District, 246
AT&T Technologies, Inc. v. Commu-
nications Workers of America, 326
Athey Products Corp., 312
Atkinson v. Sinclair Roofing Co., 328
Atkins v. City of Charlotte, 344
Atlantic Forest Products, 261
ATT&T Corp., in re, 315
August A. Busch & Co. of
Massachusetts, Inc., 329
Australia, craft unions in, 43
Authorization cards, union, 42, 88–
91, 93–94
Automobile industry, 233
Automobile Salesmen’s Union Local 1095
v. NLRB, 250, 299
Autonomous governmental
mediation unit, 143
Auto Worker Local 259 v. NLRB, 311
Auto Workers v. Hoosier Cardinal Corp.,
336
378 Index
Auto Workers v. NLRB, 287
Avecor, Inc. v. NLRB, 288
Babbitt v. UFW, 345
Baby Norris-LaGuardia Acts, 155
Back-pay hearings, 36, 102, 122, 130–
131, 136
Backus v. Baptist Medical Center, 351
Bad faith, in establishing collective
bargaining relationship, 89, 126,
128, 170
Bakke case, 222
Ballot clause, 117
Baltimore Orioles, 39
Baltimore Sun Co. v. NLRB, 255
Bankers Club, Inc., 281
Bankey v. Storer Broadcasting Co., 369
Barbieri v. United Technologies Corp., 246
Barela v. C.R. England & Sons, Inc., 366
Bargaining tactics, in established
relationship, 97–128
Barrentine v. Arkansas-Best Freight
System, 331
Base Wyandotte Corp., 262–263
Basic Vegetable Products, Inc., 331
Batchelder v. Allied Stores Int’l, Inc., 277
Baton Rouge Waterworks Co., 324
Bauman v. Presser, 339
Bausch & Lomb Optical Co., 253
BE & K Construction Co. v. NLRB, 281
Bearden and Company d/b/a, D.A.
Collins Refractories, 295
Bear Truss, Inc., 272
Beck v. Communications Workers, 341–
342
Belknap, Inc. v. Hale, 109, 307
Bell Atlantic Corp., 315
Belline v. K-Mart Corp., 368
Bellmore v. United Methodist Children’s
Home, 361
Bell Transit Company, 311
Bell v. Birmingham Linen Service, 352
Ben Shalom v. Marsh, 360
Bentz Metal Products Co., in re, 246
Benz v. Compania Naviera Hidalgo, S.A,
247
Berke v. Ohio Dept. of Public Welfare, 356
Berks, Paul, ix
Bernard v. IMI Systems, Inc., 366
Best Products, Co., 257
Bethea Baptist Home, 309
Beth Israel Hospital v. NLRB, 281
Bethlehem Steel Corp. v. Occupational
Safety and Health Review Commission,
349
Betriebsrate, 4
Bettcher Mfg. Corp., 296
Beverly California Corp., 321
Beverly Enterprises-Hawaii, d/b/a Hale
Nani Rehabilitation & Nursing
Center, 275
Bias, 163
Bill Johnson’s Restaurants v. NLRB,
280–281, 296
Bill of Rights, 15–16
Bin-Dicator Co., 273
Binding interest arbitration, 142, 195
Bingham-Willimette Co., 301
Bishop Mugavero Center, 258–259
Bishop v. Wood, 346
Black, Hugo, 101, 155
Blacklisting, of union members, 24
‘‘Blackmail’’ picketing, 57, 82
Blackmun, Harry, 120, 122, 207, 214,
306, 349, 356, 361, 364
Black v. Cutter Laboratories, 252
Black v. Ryder/P.I.E. Nationwide, 338
Black Workers in White Unions, 323
Blair Labor government, 56
‘‘Blocking’’ resolution of representation
issue, 47
Bloom v. NLRB, 342
Blue Flash Express, 259
Bluestein v. Skinner, 371
Board of Control of Ferris State College v.
Michigan AFSCME, Council 25, Local
1609, 333
Board of Regents v. Roth, 346
Board of Trustees of University of
University of Alabama v. Garrett, 365
Bob Evans Farms, Inc. v. NLRB, 299–
300
379 Index
Bob’s Big Boy Family Restaurant, 314
Bock v. Westminster Mall Co., 277
Boehner, John, 264–265
Bohemia, 318
Boich Mining Co., 285
Boire v. Greyhound Corp., 258
Boise Cascade Corp. v. NLRB, 313
Bok, D., 12
Bollard v. The California Province of the
Society of Jesus, 360
Bona fide occupational qualifications,
203–204
Bona fide seniority systems, 206
Bonds, Barry, 39
Borden v. Amoco Coastwise Trading Co.,
366–367
Borg-Warner, 114–117, 143, 313
Borman’s Inc. v. NLRB, 298
Boston Harbor, 246
Boston Medical Center, 249
Boston Shipping Association, Inc. v.
International Longshoremen’s
Association (AFL-CIO), 325
Bostrom Discussion, VOP, Inc., 315
Bowen v. U.S. Postal Service, 161
Bowie Hall Trucking, Inc., 254
Boycott signs, in or on cars, 101
Boycotts
establishing collective bargaining
relationship, 82–83, 85–88
industrial relations and labor law
prior to modern legislation, 13–14,
16–17, 26
unfair labor practices and, 56–58
Boy Scouts of America v. Dale, 360
Boys Market, 155–157, 328
BPS Guard Service, Inc., 315
Brandeis, Louis, 18–20, 22
Branti v. Finkel, 346
Breach of contract, 31, 145–156
Breach-of-labor cases, 151
‘‘Bread-and-butter unionism,’’ 6
Breininger v. Sheet Metal Workers, 335
Brennan, William, 80, 118, 162, 207,
284, 338, 352, 361, 364, 371
Brennan’s Cadillac, Inc., 293
Breyer, Stephen, 103, 155, 260
Britain
craft unions in, 43
organized labor in, 3–4
unfair labor practices in, 54–56
Broadway Motor Trucks v. NLRB, 314
Brodie v. General Chemical Corp., 369
Brook Research and Manufacturing, 306
Brooks v. NLRB, 293
Brooms v. Regal Tube Co., 357
Brotherhood of Locomotive Firemen and
Enginemen v. National Mediation
Board, 304
Brotherhood of Railroad Trainmen v.
Jacksonville Terminal Co., 304
Brower, Todd, xxi
Brown v. Hotel Employees, 245
Brown v. Professional Football, 237
Brunswick Food & Drug, 261
Bryan Manufacturing, 268
Brylane, L.P., in re, 292
Buffalo Forge Co. v. United Steelworkers,
328
Buffalo Linen, 307–308
Building and Construction Trades
Council v. Associated Building and
Contractors of Massachusetts/Rhode
Island, Inc., 246
Building & Construction Trades
Department v. Allbaugh, 247
Building Service Employees v. Gazzam, 283
‘‘Building block,’’ for organizing, 41
Building Trades Department, AFL-
CIO, 85
Bulletin boards, posting union
notices on, 80
Bureau of Alcohol, Tobacco, and Firearms
v. Federal Labor Relations Authority,
347
Burger, Warren, 349
Burlington Northern & Santa Fe
Railway Co. v. Brotherhood of
Maintenance Way Employees, 301
Burlington Northern Railroad Co. v.
Brotherhood of Maintenance of Way
Employees, 284
380 Index
Burns v. McGregor Electronics Industries,
356–357
Burnup & Sims, 274
Burruss Transfer, Inc., 319
Bus strike, 192
Bush, George H.W., 209, 247
Bush, George W., xiii, 5, 27, 187–188,
247
Business, cessation of between
primary employer and other
employers, 83–84
Business Services by Manpower, Inc., 302
‘‘Business unionism,’’ 6
Cadbury Beverages, Inc. v. NLRB, 274
Cafeterias, 79–80
Cahill v. Cobb Place Associates, 277
Calhoon v. Harvey, 341
California Angels, 39
California Distribution Centers, Inc., 305
California Federal Savings & Loan
Association v. Guerra, 354
California Saw & Knife Works, 342–343
Canteen Co., 330
Caperci v. Huntoon, 364
Capitol Steel and Iron Co., 330
Captain Nemo’s, 259
Captive-audience meeting, 80, 101
Carbon Fuel v. United Mine Workers,
328
Carey v. Brown, 286
Carey v. Westinghouse Electric Corp., 329
Carino v. University of Oklahoma Board
of Regents, 356
Carleton College v. NLRB, 298
Carpenters Local 610 v. Scott, 297
Carpenter Steel Co., 265
Carusi v. Ward, 371
Carvel Corporation, 284
Cary, Ron, 181–182
Casa Italiana Language School, 251
Cascade Corporation, 313
Cashway Lumber, Inc., 282
Caterair International, 293
Caterpillar Inc., 298, 299, 333
Caterpillar Inc. v. Williams, 245, 370
Caterpillar Tractor Co. v. NLRB, 300
Catholic Bishop, 252
Catholic High School Association v.
Culbert, 251
CBS Corp. f/k/a Westinghouse Corp.,
Science & Technology Center, 316
Cease-and-desist order, 99, 116
C.E.K. Indus. Mechanical-Contractors,
Inc. v. NLRB, 2
Central Hardware Co. v. NLRB, 73
Central Illinois Public Service Company,
307
Centralized bargaining structure, 3
Central Labor Federation (LO),
Sweden, 3
Central Metallic Casket Co., 311
Centre Engineering, 261
Century Aluminum v. Steel Workers, 328
Century Brass Products, Inc. v. Inter-
national Union, UAW, in re, 310
Chamber of Commerce v. Lockyer, 94
Chamber of Commerce v. Reich, 303
Chambersburg County Market, 268
Chance v. Board of Engineers, 351
Chao v. Mallard Bay Drilling, Inc., 348
Chardon v. Fernandez, 268
Charitable solicitation, 72
Charles D. Bonanno Linen Service, Inc.
v. NLRB, 308
Charleston Joint Ventures v. McPherson,
277
Chelsea Industries, Inc., 293
Chemung Contracting Corp., 268, 309
Chevron USA, Inc. v. Echazabal, 361
Chicago Beef Co., 304
Chicago Rawhide Mfg. Co. v. NLRB,
262–263
Chicago Teachers, Union Local No.1 v.
Hudson, 343
Chicago Tribune Co., 371
Chicago Tribune Co. v. NLRB, 303,
305
Children’s Hospital Medical Center v. Cal
Nurses Association, 300
Chilson v. Polo Ralph Lauren Retail
Corp., 367
381 Index
Chipman Freight Services, Inc. v. NLRB,
285
Christian sacramental traditions, 216
Christ The King Regional High School v.
Culvert, 251
Chrysler Worker’s Association v. Chrysler
Corp., 340
Cincinnati Newspaper Guide, Local 9 v.
NLRB, 313
Cincinnati Suburban Press, 297
CIO. See Congress of Industrial
Organizations
Circuit City, 165–166
City and County of Denver v. Denver
Firefighters, Local 858 AFL-CIO, 333
City of Boerne v. Flores, 361
City of Los Angeles Dept. of Water &
Power v. Manhart, 355
City of Madison, Joint School District No.
8 v. Wisconsin Employment Relations
Commission, 345
City of Midland v. O’Bryant, 368
City of Plattsburgh v. Local 788 and New
York Council 66, AFSCME, AFL-CIO,
333
City of Richmond v. Croson, 365
City of West Des Moines v. Engler, 277
Civil Rights Act of 1866, 209
Civil Rights Act of 1871, 297
Civil Rights Act of 1964, 149, 161,
174, 197, 219
Civil Rights Act of 1991, 197–198,
205, 208, 212, 219, 352–354
Civil rights boycott, 88
Civil Service Reform Act of 1970, 185,
189, 191
Clackamas Gastroenterology Assocs., P.C.
v. Wells, 362
Clairborne v. Illinois Central Railroad,
363–364
Clark v. Hein-Werner Corp., 335
Clayton Antitrust Act, 15–20, 25, 240
Clayton v. International Union, UAW,
335
‘‘Clear and flagrant’’ violation, 134
Clear Pine Mouldings, Inc., 301
Cleveland Board of Education v.
Loudermill, 346
Cleveland Real Estate Partners, 280
Climate Control Corporation, 303
C-Line Express, 304
Cline v. General Dynamics Land Systems,
Inc., 362
Clinton, Bill, vii–viii, xiv–xv, 52, 106,
209, 215, 247, 264
Closed shop, 16, 53–56, 173
Clothing industry, 141
Coal strike of 1978, 104
Coamo Knitting Mills, 262
Coastal Stevedoring Co., 286
Coca-Cola Bottling of Los Angeles, 255,
269
Coercive impact, 92
Coffee shops, 79
Cohen, Sheila, xv
Colfax Corp. v. Illinois State Highway
Toll Authority, 246
Colgate-Palmolive Co., 312
Collective bargaining process
court-enforceable contracts, 31–32
dispute resolution in established
relationship, 141–142, 144, 151–
154, 156, 160, 165
duty of fair representation, 171–173,
178
economic pressure and bargaining
in the established relationship, 97–
110, 112, 117, 119, 122, 127
Major League Baseball, 39
National Labor Relations Act, 27,
35, 42, 44–45
overview, 1, 3–4, 6–7
public sector, 58, 186–188, 191–192
remedies and the Labor Reform Bill
of 1978, 131, 134, 136–137
Collective bargaining relationship
establishment
compulsory recognition of a union,
88–95
conclusion, 96, 106
discriminatory discipline, 68–70
dismissal, 68–70
382 Index
exclusivity, 66–68
industrial relations and labor law
prior to modern legislation, 21
obligation to bargain, 66–68
organization, 65–66
organizational picketing, 80–82
recruitment, 65–66
secondary picketing, 82–88
union access to company property,
71–80
Collier Electric Co., 312
Collins v. Shell Oil Co., 360
Collyer Insulated Wire, 329
Cologne v. Westfarms Association, 278
Colorado-Ute Electric Association v.
NLRB, 312–313
Colortech Corp., 261
Columbia Broadcasting System v.
American Recording v. Broadcasting
Association, 294
‘‘Commerce,’’ dispute held to be in,
34
Commerce Clause, Constitutional,
28, 32
Commercial arbitration, 153
Committees, 52
Common law of wrongful discharge,
197
‘‘Common situs’’ picketing, 84–85
Commonwealth v. Hunt, 10–11
Commonwealth v. Pullis (The Philadel-
phia Cordwainers’ case), 9–10, 239
Community of interest, 40
Compact Video Services, 254
Company-dominated/company-
assisted unions, 24
Company property, union access to,
71–80
Company spies, 24
Comparable worth, 211
Competition
industrial relations and labor law
prior to modern legislation, 13, 20
Competitiveness, international, 234
Complete Auto Transit, Inc. v. Reis, 328
Compulsory arbitration, 142, 193, 195
Compulsory recognition of a union,
88–95
Comtel Systems Technology, Inc., 290
ConAgra, Inc. v. NLRB, 318–319
Conair v. NLRB, 290
Concrete Pipe & Products Corps., 309,
319
Conditional offers of employment, 109
Conditions of employment, 118
Congress
dispute resolution in established
relationship, 155, 157
duty of fair representation, 177
economic pressure and bargaining
in the established relationship, 118
establishing collective bargaining
relationship, 81, 83, 87, 92, 94
industrial relations and labor law
prior to modern legislation, 22, 24
and National Labor Relations Act,
29, 32–33
and public-interest labor law, 197,
206, 208, 214
and public sector, 185, 191
and unfair labor practices, 51–52,
57
Congress of Industrial Organizations
(CIO), 2, 68
Conley v. Gibson, 335
Connecticut Limousine Service, 343
Connecticut v. Teal, 351
Connell Construction Co. v. Plumbers
Local 100, 284, 286
Connick v. Myers, 296
Connor v. Fort Gordon Bus Company, 352
Consent agreements, 45
Consolidated Edison, 295
Consolidated Rail Corp. v. Railway
Labor Executives Association, 371
Conspiracy
establishing collective bargaining
relationship, 83
industrial relations and labor law
prior to modern legislation, 9, 11
Constitution
Commerce Clause, 28, 32
383 Index
public sector, 186
public-interest labor law, 217
Supremacy Clause, 32
Constitutional barrier, 224–225
Construction industry, 34, 85, 142–
143
Construction unions, 86
Container Corporation of America, 282
Contempt penalties, 22
Continental Airlines Corp. v. Airline
Pilots Association, International, in re,
310
Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 364
Contracts
court-enforceable, 31–32
dispute resolution in established
relationship, 140, 143, 145, 152–
156, 163–164
duty of fair representation, 178
economic pressure and bargaining
in the established relationship,
111, 119, 128
establishing collective bargaining
relationship, 66–67, 84–86, 95
garbage collection, 190
hot cargo clauses in, 57
janitorial services, 190
professional sports, 39–40
public sector and, 192
remedies and the Labor Reform Bill
of 1978, 136
subcontracting clauses in, 57
Cooperation, 52, 234
Coors Container Co. v. NLRB, 298
Coronado Coal Company v. United Mine
Workers, 20
Corporate boards, union seats on, 233
Corporate employer, disappearance
by merger of, 159
Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter Day
Saints v. Amos, 360
Corruption, union, 181–182
Costa v. Marhey, 351
Costello, Joseph, xviii
Cost-of-living adjustments, 117
Cotter v. Owens, 339
County of Riverside v. Superior Court, 334
County of Washington v. Gunther, 358
County Sanitation District No. 2 of
Los Angeles v. County Employees
Association SEIU, 345
County Sanitation of Los Angeles v.
SEIU, 347
Courtney v. Canyon Television &
Appliance, Inc., 368
Courtney v. Landair Transport, Inc.,
367
Court of Appeals for the District of
Columbia
duty of fair representation, 176
economic pressure and bargaining
in the established relationship,
101, 112, 127
Court stenographer, 147
Courts, in arbitration, 150–155
Cox, A., 12
Craft severance, 43–44
Craft unions, 43–44
Crenshaw v. Bozeman Deaconess
Hospital, 366
Criley v. Delta Airlines, Inc., 362
Criminal conspiracy doctrine, 9, 11
Criminal sanctions, 9, 14
Criminal trespass, 74
Cross-examination, 21, 23, 60, 145,
147
Crossing picket line, 46
Crowley, Jack, 138
Crown Cork & Seal Co., 264–265
Cudahy, Richard, 177
Curtis Bros., 80
Cutler-Hammer, 152
Cutting, Inc., 259
Cuyamaca Meats, Inc. v. San Diego
Pension Trust Fund, 311
The Daily News of Los Angeles, 310–311
Daimler-Chrysler Corp., 258
Danbury Hatters, 14–15, 20. See also
Loewe v. Lawlor
384 Index
Dandridge v. Chromcraft Corp., 368
Dave Castellino & Sons, 302
Davis, Gray, 166
Davis-Bacon Act, 28
Davison-Paxor Co. v. NLRB, 282
Davis Supermarkets, Inc., 280
Davis v. Califano, 351
Davis v. City of Dallas, 351
Davis v. Scherer, 346
De Arryo v. Sindicato de Trabajadores
Packing, AFL-CIO, 334
Deauthorization, of union security
agreement, 54
Decentralized bargaining structure,
3, 234
Decertification, 194
DeCinto v. Westchester County Medical
Center, 356
Decker v. Browning-Ferris Industries of
Colorado, Inc., 368
Declining industries, 234
Deeds v. Decker Coal Co., 306
DeGrace v. Rumsfeld, 363
DeJana Industries, 262
Deklewa Industrial TurnAround Corp. v.
NLRB, 290–291
Delaware Park, 249
Delaware State College v. Ricks, 268,
353
Delays, 131–133
Del Costello v. International Brotherhood
of Teamsters, 336
Delta Macon Brick & Tile, Inc., 306
Demasse v. ITT Corp., 369
Democrats
industrial relations and labor law
prior to modern legislation, 15
and public sector, 187
Dempsey, Kim, x
Dennison Manufacturing Company,
254
Denver Post of the National Society of
Volunteers of America v. NLRB, 251
Deonarine, Barry, xv
Department of Homeland Security,
187
Department of Justice v. Federal Labor
Relations Authority, 295
Department of Labor, 197
Office of Federal Contract
Compliance Programs, 217
Department of the Treasury, Internal
Revenue Service v. Federal Labor
Relations Authority, 344
Department of the Treasury v. Federal
Labor Relations Authority, 313
Desert Palace, Inc. v. Costa, 352
Desks, Inc., 268
Detroit Edison Co. v. EEOC, 363
Detroit Newspapers, 306, 311
Detroit Police Officers Association v.
Detroit, 347
Detroit Police Officers Association v.
Young, 364
Detroit Tigers, 39
Deukmejian, George, xiii, 215
Diamond Walnut Growers, Inc., 257
Diamond Walnut Growers, Inc. v.
NLRB, 306
Diaz v. Pan American World Airlines,
203, 351
Dillard Dept Stores v. Beckwith, 367
Dillingham Construction N.A., Inc. v.
County of Sonoma, 246
Dilling Mechanical Contractors v. NLRB,
303
Dillon Stores, 264
Dimeo v. Griffin, 371
Dinsdale, Henry Y., xv
Direct restraint of trade, 20
Disabilities, protection for individuals
with, 217–219
Disbelief, reasonable, 51
Disciplinary sanctions
discharge disputes, 145
duty of fair representation, 172–174
economic pressure and bargaining
in the established relationship, 110
establishing collective bargaining
relationship, 66
public sector, 190
Disclosure, 197
385 Index
Discord, promotion of, 100
Discrimination
arbitration, 161–162
dispute resolution in established
relationship, 145
economic pressure and bargaining
in the established relationship, 97
establishing collective bargaining
relationship, 67
industrial relations and labor law
prior to modern legislation, 16
protection against arbitrary
treatment, 233
proving, 203
public-interest labor law, 197, 202,
206–215, 219–221
Discriminatory discipline, 68–70
Disestablishment, of organization, 53
‘‘Disloyalty’’ cases, 100
Dismissal
dispute resolution in established
relationship, 163
economic pressure and bargaining
in the established relationship, 103
establishing collective bargaining
relationship, 68–70
industrial relations and labor law
prior to modern legislation, 25
public sector, 185, 190
remedies and the Labor Reform Bill
of 1978, 136
unfair labor practices, 54
Dispute resolution,
in established relationship:, 139,
141–167
in public sector, 192–193
Disruption, caused by picketing, 82
Distribution of literature, 71, 76, 87–
88, 101–102
District of Columbia, public-interest
labor law in, 209
Diversy Wyandotte Corp., Dekalb, 318
‘‘Divide and conquer,’’ 66
Dixie Belle Mills, Inc., 254
Dobbs International Services, Inc., 294
Dock workers, West Coast, 5
Doe I v. Unocal, 237
Domestic servants, 35
Domination, unlawful, 52
Domsey Trading Corporation, 270, 321
Donnelly & Sons Co. v. Prevost, 348
Donovan v. Dewey, 349
Don’t Ask/Don’t Tell (DADT) policy, 215
Dorchy v. Kansas, 303
Dorsey Trailers v. NLRB, 315
Dothard v. Rawlinson, 351
Double back pay, 136
Douds v. Metropolitan Federation of
Architects, 284
Douglas, William O., 101, 150–153
Douglas-Randall, Inc., 269
Dow Chemical Co. v. NLRB, 300
Dowd Box Co. v. Courtney, 327
Dow Jones and Company, Inc., 280
Doyle v. Holy Cross Hospital, 369
Drake Bakeries v. Bakery Workers, 328
Drug and alcohol problems, 229–232
Dubbs v. Central Intelligence Agency, 360
Dubuque Packing Co., 123–124, 315
Dues, union, 53–54, 172, 174, 184
Dues-sharing structure, 4
Duffield v. Robertson Stephens & Co.,
333
Duffy Tool & Stamping v. NLRB, 311
Dumas v. Auto Club Insurance
Association, 366
Duplex Printing Press Co. v. Deering,
16–20, 22–25
Duquesne University of the Holy Ghost,
262
Dutrisac v. Caterpillar Tractor Co., 334
Duty-of-fair-representation case, 160
Duty of loyalty, 101
Duty to bargain in ‘‘good faith,’’ 113–
114
Dyna-Med, Inc. v. Fair Employment and
Housing Commission, 364
Eads Transfer, Inc., 308
Eagle Comtronics, Inc., 306
East Dayton Tool & Die Co., 372
Easterbrook, Frank, 178
386 Index
Eastern Airlines v. Airline Pilots
Association, 304
Eastern Associated Coal Corp. v. United
Mine Workers, 327
Eastex, Inc. v. NLRB, 276
Eastwood Mall v. Slanco, 277
Easzor Express, Inc. v. International
Brotherhood of Teamsters, 328
Ecclesiastical Maintenance Service, Inc.,
251
Economic pressure
bargaining tactics in established
relationship, 97–128
dispute resolution in established
relationship, 151, 154
establishing collective bargaining
relationship, 81, 83, 95–96
industrial relations and labor law
prior to modern legislation, 16
Economic warfare, 151
Edenfield, Paul, ix
E.D.P. Medical Computer Systems, 320
Edward G. Budd Mfg. Co. v. NLRB, 273
Edward J. DeBartolo Corp., 287
Edward J. DeBartolo Corp. v. Florida
Gulf Coast Bldg. And Trades Council,
287
Edward J. DeBartolo v. NLRB, 287
Edwards v. Sea-Land Service, Inc., 336
Edwards v. Teamsters Local Union No.
36, Building Material and Dump
Truck Drivers, 336
Edwin J. Schlacter Meat Co., 258
EEOC v. Arabian American Oil Co., 350
EEOC v. Borden’s, Inc., 363
EEOC v. Detroit Edison Co., 363
EEOC v. Luce, Forward, Hamilton, &
Scripps, 333
EEOC v. New York Times Broadcasting
Service, 351
EEOC v. Pipefitters Association Local
597, 208
EEOC v. Waffle House, 165
Efficiency, 52
E.I. Dupont de Nemours v, NLRB, 263,
295, 318
Eighth Circuit Court of Appeals, on
economic pressure and bargaining
in the established relationship,
101
Eight-hour day, 16
Eldeco, Inc., 253
Eldorado Tool, 299
Elections
duty of fair representation, 178–
180
economic pressure and bargaining
in the established relationship, 107
employer subversion of outcomes,
133–134
establishing collective bargaining
relationship, 66, 82, 92
National Labor Relations Act and,
42–43, 45–47
unfair labor practices and, 51
Electrical Workers IUE, 372
Electrical Workers v. Faust, 335–336
Electrical Works v. Hechler, 370
Electrical Workers v. NLRB, 286
Electric Boat, 343
Electromation, Inc., xv, 52
Eleventh Amendment, 224–225
The Eleventh Amendment’s Resurrection:
Implications for State Employees, 365
Eleventh Circuit Court of Appeals
economic pressure and bargaining
in the established relationship,
108
public-interest labor law, 205
Elias Mallouk Realty Corp., 262
Eligibility, for overtime protections,
27
Elite Limousine Plus, Inc., 250
Elk Grove Firefighters Local No. 2340 v.
Williss, 345
Elk Lumber Co., 301
Elliot v. Board of Trustees of Montgomery
County Community College, 369
Ellison v. Brady, 357
Ellis v. Brotherhood of Railway, Airline
and Steamship Clerks, 343
Elrod Burns, 346
387 Index
El San Juan Hotel, 297
Elsey v. Burger King Corp., 366
Emergency dispute resolution, 142
Emerson Electric Co., U.S. Electrical
Motor Division, 275
Emery, Maxine, xviii
Emhart Indus. v. NLRB, 311
Emotional injury, 33
Employee, definition of, 37
Employee Retirement Income
Security Act (ERISA) of 1974, 162–
163, 197–198
Employers’ counterattacks, against
organizational drives, 82
Employers’ rights, 109
Employment Act of 1980 (Britain),
54, 56
Employment Act of 1982 (Britain),
54, 56
Employment Act of 1988 (Britain),
55
Employment Act of 1990 (Britain),
55–56
Employment discrimination, 145,
149, 161–162, 197, 202
Employment Division v. Smith, 216
Employment Rights at Work:
Reviewing the Employment
Relations Act, 267
The Emporium Capwell Co. v. Western
Addition Community Organization,
297, 301
Energy Coal Income Partnership 1981–1,
302
Enforceability of arbitration
agreements, 164, 166
Enforceable contracts, 31–32, 155
English v. General Electric Co., 246,
370
Enrichment Services, Inc., 249
Enright, Mary, xxi
Epilepsy Foundation of Northeast Ohio,
295
Equal Employment Opportunity
Commission (EEOC), 197, 202,
208, 212, 219
Equal employment opportunity field,
136
Equal Pay Act of 1963, 208, 220
Equal pay for equal work, 208
E.R. Carpenter, 279
Eric Resistor, 304
Ernest Alessio Construction Company,
267
Escrow accounts, interest-bearing,
184
Espinoza v. Farah Mfg. Co., 350
Essex International, 275
Established relationship
dispute resolution in, 139–166
economic pressure and bargaining
tactics in, 97–128
Estes v. Kapiolani Women’s & Children’s
Medical Center, 277
Ethnic discrimination, 206, 210
Europe
industrial relations and labor law
prior to modern legislation, 9
organized labor in, 3–4, 6–7
paid vacation leave, 28
wage drift in, 234
Evans v. Bibb, Co., 367
Ewing v. NLRB, 294
Examination and cross-examination,
145, 147
Ex-Cell-O Corp., 134, 137, 322
Excelsior Underwear, Inc., 257, 272
Exclusion
from NLRA protection, 35–36
from union membership and
responsibilities, 174
unreasonable, 54
Exclusive bargaining agent, in
establishing collective bargaining
relationship, 65–96
Exclusivity doctrine, 66–68
Ex parte orders, temporary, 23
Expediting administrative process,
134–138
‘‘Experimental’’ statutes, state, 166
Experimental Steel Negotiating
Agreement, 142
388 Index
Expulsion from membership, 54
Extraordinary remedies, 92
F.A. Bartlett Tree Expert Co., 319
Fact-finding, 21, 139–140, 166–167,
194–195
Fahlbeck, Reinhold, xviii,
Fair Employment Practice & Housing
legislation, 166
Fair Labor Standards Act of 1938, 27,
162
Fairmont Hotel, 278
Fair representation, duty of, 169–184
Faith Center-WHCT Channel 18, 251
Falco v. Community Medical Ctr., 367
Fall River Dyeing & Finishing Corp. v.
NLRB, 159
Family and Medical Leave Act of
1993, 209, 225
Family Nursing Home & Rehabilitation
Center, Inc., 273
Fanning, John, 90, 92, 129, 290, 319
Fansteel Metallurgical Corp., 259
Faragher v. City of Boca Raton, 357
Farmer v. United Brotherhood of
Carpenters, 245
Farm Fresh, Inc., 281
Farm workers, 35
Fast-food outlets, 79
Faust v. Ryder Commercial Leasing &
Supports, Inc., 367
Federal Arbitration Act of 1925, 163–
165
Federal Express Corp., 249
Federal Labor Relations Authority v.
Aberdeen Proving Ground, 344
Federal Labor Relations Authority v.
United States Dept. of the Navy, 257
Federal Mediation and Conciliation
Service, 143
Federal unions, 191
F.E. Hazard, Ltd., 320
Felix Industries v. NLRB, 298
Felony charges, 185
Ferguson Electric Co., Inc., 252
Ferrera v. Nielsen, 369
Ferris v. Delta Air Lines, Inc., 357
FES (A Division of Thermo Power), 252
Fibreboard Paper Products Corp. v.
NLRB, 313
Fieldcrest Cannon, Inc., 321
Fiesta Mall Venture v. Mecham Recall
Committee, 277
Fifth Circuit Court of Appeals
economic pressure and bargaining
in the established relationship, 101
public-interest labor law, 203, 210
public sector, 186
Filing, with NLRB, 58
Final-offer arbitration, 141–142, 167
Financial/emotional exhaustion,
during appeals process, 130
Financial reporting, 197
Finerty v. NLRB, 343
Fines, 22, 173
Finnegan v. Leu, 175, 339
Firefighters, 186, 192–193
Firefighters Local 2498 v. York County,
345
Firefighters v. City of Tupelo, 345
First Amendment protection
dispute resolution in established
relationship, 155
duty of fair representation, 174
economic pressure and bargaining
in the established relationship,
100
establishing collective bargaining
relationship, 69, 74, 76, 82, 87–88
Free Exercise Clause, 216
public-interest labor law, 216
public sector, 185, 187
First Circuit Court of Appeals, on
economic pressure and bargaining
in the established relationship,
103, 116
First-contract arbitration, 138
First-contract situation, 111
First National Maintenance, 123–124
First National Maintenance Corp. v.
NLRB, 314–315
First National Supermarkets Inc., 269
389 Index
Fitzsimmons Manufacturing Company,
313
Flags of convenience, 34
Flambeau Plastics Corp., 259
Flanagan, Robert, xx
Fleming Companies, Inc., in re, 275
Fleming v. Borden, Inc., 369
Fletcher, William, 213
Flint Iceland Arenas, 269
‘‘Floor,’’ for workers, 27
Flores v. Albertsons, Inc., 250
Flores v. Amigon, 250
Florida v. Long, 355
Florsheim Shoe Store Co. v. NLRB, 320
Fogel v. Trustees of Iowa College, 366
Foley v. Interactive Data Corp., 227
Food & Commercial Workers Local 150-A
v. NLRB, 315
Forbidden Cities Restaurant v. NLRB,
260
Ford, Gerald, 85
Ford Motor Co. v. EEOC, 363
Ford Motor Co. v. Huffman, 335
Foreign crews employed by foreign
ships, 34
Formal rules of evidence, arbiters not
bound to, 163
Fort Apache Timber Co., 248
Fort Halifax Packing Co., Inc. v. Coyne,
244
Fortino v. Quasar Co., 350
Fort Smith Chair Co., 300
Fort Stewart Schools v. Federal Labor
Relations Authority, 344
Forts v. Ward, 351
40–41 Realty Associates, 278
Fountain Lodge, Inc., 309
Fountainview Care Center, 272
Four-and-one-half Year Report, 270
Four B Corp., 275
Four B Corp. d/b/a Price Chopper, 280
Fourth Amendment, 229
Fox v. MCI Communications Corp., 367
Foy v. Pratt & Whitney Group, 246
Fragante v. City and County of
Honolulu, 356
France
paid vacation leave in, 28
strikes in, 106
unfair labor practices in, 55
Frankfurter, Felix, 21–22, 25, 101,
184, 240
Frank v. United Airlines, Inc., 362
Fraser Shipyards, Inc., 315
Fraud, 23
Fray v. Omaha World Herald Co., 350
Frazee v. Illinois Department of
Employment Security, 361
Frazier v. Delco Electronics Corp., 357
Freedom of association, 24, 162, 185
Freedom of choice, 47, 80
Freedom of contract, 12, 111, 119,
128
Freedom of speech, 51, 69, 100, 102,
162, 174, 186
Free Exercise Clause, First Amend-
ment, 216
Free play of economic forces, 109
Free riders, 54
Freund Baking Co. v. NLRB, 262, 299
Fringe benefits, 6, 117, 134, 137
Frisch’s Big Boy III-Mar, Inc., 254
Frito Lay, Inc., 318
Fritz Companies, Inc., 315
Fugazy Continental Corp., 320
Full-time organizers, 66
Fuller, Melville, 14
Fun Striders, Inc. v. NLRB, 276
Furnco Construction Co. v. Waters, 352
Gaglidari v. Denny’s Restaurants, Inc.,
369
Gannett Rochester Newspapers, 316
Garbage collection, contract, 190
Garcia v. Gloor, 355
Garcia v. San Antonio Metropolitan
Transit Authority, 241, 365
Garcia v. Spun Steak Co., 355
Gardner v. Loomis Armored, Inc., 367
Garrett Railroad Car v. NLRB, 301
Garwood-Detroit Truck Equipment, Inc.,
315
390 Index
Gateway Coal Co. v. UMW, 300, 349
Gatliff Coal Co. v. Cox, 340
Gatliff Coal Co. v. NLRB, 297
Gay Law Students Association v. Pacific
Telephone and Telegraph Co., 215
Geller v. Markham, 363
General American Transport Corp., 329
General Building Contractors Association
v. Pennsylvania, 351
General Cable Corp., 294
General Counsel, NLRB, 30, 32, 35, 49,
58, 60–61, 63
economic pressure and bargaining
in the established relationship, 123
establishing collective bargaining
relationship, 69–70, 94
remedies and the Labor Reform Bill
of 1978, 131, 134–135
General Electric Company, 125–126,
128, 322
General Electric Co. v. Gilbert, 354
General Electric Co. v. NLRB, 313
General Extrusion Co., 294
General Foods, 265
General Industrial Employees Union,
Local 42, Distillery Workers Interna-
tional Union v. NLRB, 304
General Motors Corp. (Cadillac Motor
Car Div.), 253–254
General Security Services Corporation,
250
Gentlemen’s agreement, 32
George, Ronald M., 228
George A. Hormel & Co. v. NLRB, 298
George Hyman Construction Co. v.
Occupational Safety and Health
Review Commission, 349
George Joseph Orchard Siding, Inc., 270
Georgia Pacific Corp., 255, 312
Gerdom v. Continental Airlines, Inc.,
355
Germany
arbitration in, 142
cooperative strategies in, 234
industrial unions in, 43
organized labor in, 3–4, 7
 paid vacation leave, 28
unfair labor practices in, 55
Gersman v. Group Health Association,
350
Giant Food Markets, Inc., 283
Giboney v. Empire Storage & Ice Co.,
284
Giddings and Lewis, Inc. v. NLRB, 306
Gill v. Manuel, 364
Gilmer v. Interstate/Johnson Lane Corp.,
163–165, 229, 331, 369
Gissel case, 287–288
Gitano Group, Inc., 255
Givhan v. Western Line Consolidated
School District, 273
The Glass Depot, Inc., 257
Globe election process, 43
The Globe Machine and Stamping Co.,
256
Gloversville Embossing Corp., 304
Goldblatt Bros., Inc., 281
Golden Day Schools, 297
Golden Gateway Center v. Golden
Gateway Tenant’s Ass’n, 277
Golden State Bottling Co. v. NLRB, 320
Golden State Transit Corp. v. City of Los
Angeles, 307, 244–245
Golden State Warriors, 310
Goldman v. Weinberger, 361
Gompers, Samuel, 2, 15–16, 182
Good-faith bargaining, 29, 98, 113–
115, 126, 169
Good-faith reasonable uncertainty, 51
Goodman v. Lukens Steel Co., 353, 364
Good Shepherd Home, 262
Gorman, R., 12
Gorski v. New Hampshire Dept. of
Corrections, 357
Goss v. Lopez, 346
Gould, Bill, xxi
Gould, Ed, xxi
Gould, Hilda, xxi
Gould, Timothy S., xv, xxi
Gould, William B., IV, 249–250, 254–
258, 262, 265, 268–275, 280, 284–
288, 289–290, 294–296, 298, 301–
391 Index
303, 306, 312–313, 315, 317, 323,
336, 357, 370
reforms instituted by NLRB under
chairmanship of, 133
Gourmet Food, Inc., 92, 290
Government contractors, employees
of, 28
Graduate assistants, 36
Graham Architectural Products v. NLRB,
260
Grant Food Store Markets v. NLRB, 278
Gratz. v. Bollinger, 365
Graves v. Smith’s Transfer Corporation,
336
Great American Savings and Loan
Association v. Novotny, 363
Great Depression
industrial union emergence during,
1
and National Labor Relations Act,
30
Greater Boston Chamber of Commerce v.
City of Boston, 306
Greater Washington Board of Trade v.
District of Columbia, 348
Great Lakes Steel, 297
Greene, Nathan, 21–22
Gregory v. Ashcroft, 362
Grievance arbitration. See Arbitration
Griggs v. Duke Power Co., 203, 205, 351
Group Health, Inc., 342
Groves v. Ring Screw Works, 326
Grutter v. Bollinger, 365
GTE Automatic Electric, 316
GTE California, Inc., 318
Gulton Electro-Voice, Inc., 273
Guss v. Utah Labor Relations Board,
247
Guz v. Bechtel Nat., Inc., 368
Hacienda Hotel, Inc., 268
Halbasch v. Med-Data Inc., 367
Hamilton, Alexander, 10
Hammary Manufacturing Corp., 275
Hammer v. Auto Workers Local 550, 335
Hampton Roads Broadcasting Corp., 256
Handbills, distribution of, 87–88,
101–102
Hanly v. Riverside Methodist Hosp., 369
Hanover Township Federation of
Teachers v. Hanover Community
School Corp., 345
Harassment, 24–25, 211
Harbor Chevrolet Co., 322
Harrington v. Almy, 371
Harrington v. Vandalia-Butler Board of
Education, 363
Harrison, Job, 10
Harrison Ready Mix Concrete, Inc., 305–
306
Harris v. Forklift Systems, Inc., 357
Harter Equipment, Inc., 308
Hartman Bros. Heating & Air-
Conditioning Inc., 252
Hartness v. Bush, 371
Hart v. Seven Resorts, Inc., 369
Hazelwood School District v. United
States, 350
Hazen Paper Co. v. Biggins, 362
Hecks, Inc., 322
Helena v. Krautter, 277
Hennessey v. Coastal Eagle Point Oil Co.,
371
Hershey Chocolate Corp., 294
Hickory Springs Mfg. Co. v. NLRB, 261
Higginbotham, A. Leon, 90–91
Highland Hospital v. NLRB, 253
Hill, Anita, xiii, 212
Hills, Carla A., xxi,
Hills, Roderick E., xxi
Hines v. Anchor Motor Freight, 335
H.J. Heinz Co. v. NLRB, 265
H.K. Porter Company v. NLRB, 322,
330
Hobbie v. Unemployment Appeals
Commission of Florida, 361
Hobbs v. Hawkins, 297
Hodgson v. Local 6799, 341
Hoffa, James R., 182
Hoffman Plastic Compounds, 36
Hoffman Plastic Compounds, Inc. v.
NLRB, 250
392 Index
Hogue v. Cecil I. Walker Machinery, 369
Holiday Inn Downtown-New Haven,
309
Holidays, paid, 117
Holladay Park Hospital and Oregon
Nurses Association, Inc., 282
Holland School District v. Holland
Education Association, 347
Holly Farms Corp. v. NLRB, 248–249
Holmes, Oliver Wendell, 12–13, 18,
22
Holmes and Narver/Morrison-Knudsen,
316
Holmes v. California National Guard,
215, 360
Holt v. Michigan Department of
Corrections, 350
Home visits, 75
Honda of America Manufacturing, Inc.,
298
Hooker Chemical Corp., 300
Hosiery industry, 141
Hospitals, 44, 79–80
‘‘Hostile environment’’ cases, 356
Hostility, general, 212
Hot cargo clauses, 57, 84–85
Hotel and Restaurant Employees Union
Local 317 v. J.P. Morgan Hotel, 292–
293
Hotel Employees Local 2 v. NLRB, 259–
260
Hotel Employees v. Elsinore Shore
Association, 317
House
bargaining in the established
relationship, 106
Committee on Education and
Labor, 129
Fair Labor Standards Act legislation
and, 27–28
remedies and the Labor Reform Bill
of 1978, 136
Subcommittee on Labor-
Management Relations, 138
Houston Building and Construction
Trades Council, 283
Howard Johnson Co. v. Detroit Local
Joint Executive Board, Hotel Employees
International Union, 330
Hudgens v. NLRB, 74–76
Huegerich v. IBP, Inc., 368
Hughes, Charles Evans, 29
Hughes Properties, Inc. d/b/a Harolds
Club, 281
Hutchinson Fruit Company, Inc., 313
Hutzler Bros. V. NLRB, 278
H.W. Barss Co., Inc., 296
Hydrogics, Inc., 301
Hydrotherm, 309, 317
I. Appel Corp., 308
IBEW Local 2188 v. NLRB, 329
IBEW v. Faust, 335
IBEW v. Ingalls Shipbuilding Division,
372
Ideal Dyeing & Finishing Co., Inc.,
274
ILA v. Davis, 280
ILGWU v. NLRB, 268
Illegal aliens, 36
Immigration laws, 36
Immunity, 3
Impact Industries, Inc. v. NLRB, 288
‘‘Impartial chairman’’ system, 141
Impasse procedures, 192
Imprisonment, 22
Impulsive behavior, 100
‘‘Inability to pay’’ test, 127
Incentives, 117, 233
Incomes policy, 234
Incres Steam Ship Co. v. International
Workers Maritime Union, 247
Incumbent union, 50–51, 95
Indeck Energy Services, 286
Independent Stave Co., 268–269
Indianapolis Power & Light Company v.
NLRB, 300
Indian Tribes, enterprises of, 35
Indirect restraint of trade, 20
Individual employee, 160–161
Industrial Electric Reels, Inc., 317
Industrial peace, 67, 146
393 Index
Industrial Revolution, 9
Industrial Union Department, AFL-CIO
v. American Petroleum Institute, 348
Industrial Union Department, AFL-CIO
v. Hodgson, 349
Industrial unions, 1, 43–44, 234. See
also individual unions by name
Industrial warfare, 104
Industry City Associates, 316
Infeasible access, 77
Informal conflict resolution, 143
Informational picketing, 81
Ingersoll-Rand Co. v. McClendon, 370
‘‘Inherent inconsistency,’’ 163
Initiation fees, union, 53, 172
Injunctive relief
bar against, 151
dispute resolution in established
relationship, 151, 155–157
economic pressure and bargaining
in the established relationship,
106
industrial relations and labor law
prior to modern legislation, 16,
20–25
remedies and the Labor Reform Bill
of 1978, 136
unfair labor practices and, 56
Inland Lakes Management, Inc. v.
NLRB, 337
Inland Steel Company, 298
Inland Trucking Co. v. NLRB, 308
Inland Tugs v. NLRB, 311–312
Inland Waters Pollution Control, Inc.,
257
‘‘Inside game’’ tactics, 111
Insurance Agents, 98–99, 111–112,
126, 234, 308, 373
Intel Corp. v. Hamidi, 274
Inter-Collegiate Press, Graphic Arts Div.,
308
Interest arbitration, 139, 141–142, 166
Interim earnings, 130
Interlacing statutes, 25
Intermountain Rural Electric Association,
311
Internal Revenue Service (IRS),
197
International Association of Machinists
and Airspace Workers, 269, 304
International Association of Machinists
v. Cutler-Hammer, Inc., 326
International Association of Machinists
v. Gonzales, 244
International Association of Machinists
v. Street, 341, 343
International Brotherhood of Boilermakers
v. NLRB, 308
International Brotherhood of Electrical
Workers, AFL-CO v. Hechler, 246
International Brotherhood of Teamsters.
See also Teamsters
duty of fair representation, 179
establishing collective bargaining
relationship, 87
overview, 5
public sector, 189
unfair labor practices, 57
union corruption, 182
International Brotherhood of Teamsters,
Local 695 v. Vogt, Inc., 283
International Brotherhood of Teamsters v.
Department of Transportation, 371
International Brotherhood of Teamsters v.
Hanke, 283
International Brotherhood of Teamsters v.
IML Freight, Inc., 310
International Brotherhood of Teamsters v.
Schneider Tank Lines 705, 326
International Brotherhood of Teamsters v.
United States, 206
International Brotherhood of Teamsters v.
U.S., 353
International competitiveness, 234
International Hod Carriers, Local No. 41
(Calumet Contractor’s Association),
283
International Longshoremen’s
Association, 34
International Longshoremen’s Associa-
tion v. Allied International Inc., 248,
286
394 Index
International Longshoremen’s Local
1416, AFL-CIO v. Ariadne Shipping
Co. LTD., et al., 248
International Organization of Masters,
Mates & Pilots v. Brown, 180
International Paper Company, 308
International Shoe Co., 326
International Shoe Co. v. Washington,
325
International Union, Local 283 v.
Scofield, 270
International Union of Electrical Radio
and Machine Workers, 179
International Union of the United
Rubber, Cork, Linoleum, and Plastic
Workers of America, 327
International Union of United Brewery
Workers v. NLRB, 265
International Union, UAW v. NLRB,
322
International Union, UAW v. O’Brien,
303
International Union, United Automobile,
Aircraft and Agricultural Implement
Workers, etc. v. Russell, 244
International Van Lines, 303
Interrogation of employees, 49–50
Interstate commerce, 27
Intervene, motion to, 45
In the Matter of Arbitration: Nicolet High
School District v. Nicolet Education
Association, 333
Intimidation by threats, 12
Intlekofer v. Turnage, 357
Iron Workers Local Union, 377, 336
Irreparable injury, 16, 22–23
IRS. See Internal Revenue Service
‘‘Isolated evils,’’ 87
ITT Corporation v. NLRB, 295
ITT McDonnel and Miller, 282
IUE v. Westinghouse Electric Corp., 358
Jacksonville Bulk Terminals, Inc. v.
International Longshoremen’s Assoc.,
328
Jackson v. National Football League, 238
Jacobs v. Major, 277
Jacoby v. NLRB, 335
Jaffee v. Aetna Casualty & Surety Co.,
368
Jail guards, 213
Janitorial services, contract, 190
Japan
arbitration in, 142
cooperative strategies in, 234
litigation in, 118
organized labor in, 4
strikes in, 106
unfair labor practices in, 53
unions in, 34
Japanese Employment and Labor
Law, 265
Japan’s Reshaping of American
Labor Law, 262, 265, 268, 368
Jay Metals. Inc., 275
Jean Country, 76–79, 81, 278
Jeannette Corporation v. NLRB, 296
Jeffboat Division, 250
Jenkins, Howard, 90, 92
Jeter, Derek, 39
J.F. Hoff Electric Co. v. NLRB, 286
J.I. Case Co. v. NLRB, 67
JMC Transport, Inc. v. NLRB, 294
Job classifications, 2, 148
Job security, in public sector, 190
Johansen v. San Diego County Council of
Carpenters, 284
John Deklewa & Sons, Inc., 93
Johnnie’s Poultry Co., 259
Johns-Manville Products Corp. v. NLRB,
301
Johnson, Randy, 39
Johnson & Hardin Co., 281
Johnson-Bateman Co., 231
Johnson Controls, Inc., 359
Johnson Controls World Services, Inc.,
337
Johnson v. Express One International,
295
Johnson v. Ganim, 296
Johnson v. Mayor of Baltimore, 352
Johnson v. Railway Express, 363
395 Index
Johnson v. Transportation Agency, 223
Johnson v. Uncle Ben’s, 350
John W. Galbraith & Co., 306
Jones & Laughlin, 28–29
Jones Dairy Farm, 316
J.P. Stevens & Co., 131
J.S. Alberici Construction Co., 320
Judicial side, NLRB, 30–31
Jurisdiction, 156, 166
Just cause, dismissal for, 148
Justifiable conduct test, 12
Kable Printing Co., 303
Kalin Construction Co., Inc., 262
Kallman v. NLRB, 259
K&W Trucking Co., 303
Kansas Meat Packers, 330
Karahalios v. National Federation of
Federal Employees, Local 1263, 334
Kauffman v. Allied Signal, 356
Kawasaki Motors v. NLRB, 320
KDEN Broadcasting Co., 313
K.D.I., Inc. v. NLRB, 261
Keebler v. Bakery Workers, Local 492-A,
328
Keeler Brass Automotive Group, 263
Keen competition, between
nonunion employers, 20
Kellwood Co. v. NLRB, 270
Kelly v. Mississippi Valley Gas Co., 367
Kennedy, John F., 185
Kennedy, Justice, 349
Kenrich Petrochemicals, 261, 299
Keogh, William, xx
Kerr, Clark, 141
Keystone Steel v. NLRB, 310
KGW Radio, 343
Kidwell v. TCIU, 341
Kimbro v. Pepsico, 246
Kimel v. Board Regents, 224
Kinder-Care Learning Centers, 297
King v. Board of Regents of the University
of the University of Wisconsin et al.,
357
King v. Palmer, 356
King v. Yellow Freight System, Inc., 351
Kirkland, Lane, xvii, 138, 323
KJAZ Broadcasting Company, 43, 256
Knights of Labor, 2
Kochan, Thomas, 167
Kolstad v. American Dental Association,
363
Korb v. Raytheon Corp., 366
Krispy Kreme Doughnut Corp. v. NW, 294
The Kroger Company, 315
Kuball, Clarie, xxi
Kysor/Cadillac, 371
La Gloria Oil & Gas Co., in re, 272
Labor arbitration, 153
Labor contract interpretation, 155–
156
Labor costs, increased, 234
Labor disputes, 23–23
Labored Relations: Law, Politics, and the
NLRB- A Memoir, vii–viii, 247, 270–
271
Laborers’ Health and Welfare Trust Fund
for Northern California v. Advanced
Lightweight Concrete Co., 348
Laborers’ Local Union No. 24 v. NLRB,
279
Laborers’ Union Local No. 324, Laborers
International Union of North America,
267
The Labor Injunction, 21
Labor organizations, 52–53, 56. See
also specific organizations
Labor Reform Bill of 1978 and
remedies
collective interest, 131
delays, 131–133
expediting administrative process,
134–138
mean compensation, 130
overview, 129–130, 133–134
subversion of election outcomes by
employers, 133–134
Labor Union of Pico Korea Ltd v. Pico
Products, 243
Labor unions. See union names and
specific types of labor unions
396 Index
Laburnum Construction Workers, etc. v.
Laburnum Const. Corp., 244
La Crosse Electrical Contractor
Association, 312
Lafayette Park Hotel, 296
Laidlaw v. NLRB, 305
Laissez-faire philosophy, 3, 24, 26, 29
Lakeland Bus Lines, Inc., in re, 318
Lamb-Grays Harbor Co., 303
Lamprecht v. Federal Communications
Commission, 365
Landers v. National Railroad Passenger
Corp., 295
Landgraf v. USI Film Products, 350
Landrum-Griffin Act of 1959, 57, 93,
174–179, 185, 388–339
Lapeer Foundry & Machine, 312, 315
Lapham-Hickey Steel Corp. v. NLRB,
311
La Porte Transit Co., Inc. v. NLRB, 311
Lasker, Morris, 122
Lathrop v. Entenmann’s, Inc., 367
Latrobe Steel Co., 312–313
Law and the National Labor Policy, 262
L.A. Water Treatment, Division of
Chromalloy American Corp., 304
Law of conspiracy, 9
‘‘Law of the shop,’’ 145, 153
Lawrence et al. v. Texas, 237, 359
Layoffs, 117, 148
Leapfrogging wage demand, de-
escalation of, 234
Lear-Siegler Management Service Corp.,
261
Leathem v. Research Foundation of City
University, 369
Lechmere v. NLRB, 77, 79
Leedom v. Kyne, 258
Lee Lumber and Building Material Corp.,
293
Lee v. NLRB, 337
Legal tactics, in establishing collec-
tive bargaining relationship, 65–96.
See also specific tactics
Lehnert v. Ferris Faculty Association, 343
Leslie Homes Inc., 280
Less-intrusive relief, 180
Letter Carriers v. Austin, 296
Letters, 66, 75
Levitz Furniture Co. of the Pacific, Inc.,
260, 293
Libel actions, 33, 100
The Liberal Market, Inc., 315
Lillick, Ira S., xxi
Lincoln Mills, 156
Lincoln Park Zoological Society, 331
Lincoln v. Machinists and Aerospace
Workers, 336
Linden Lumber Division, Sumner & Co.
v. NLRB, 289
Lingle v. Norge Division of Magic Chef,
Inc., 245, 370
Linn v. Plant Guard Workers, 245, 296
Linn v. United Plant Guard Workers,
292
The Litigation Explosion, 247
Little & Co., 278
Little v. Windermere Relocation, Inc., 357
Litton Microwave Cooking Products,
309
Litton Systems, Inc., 310, 372
Liu v. Donna Karan International, Inc.,
250
Livitsanos v. The Superior Court of Los
Angeles County, 368
Local 2–286 v. Amoco Oil Co., 372
Local 28 of the Sheet Metal Workers’
International Association v. EEOC,
364
Local 32B-32J Service Employees
International Union v. NLRB, 330
Local 32B-J, SEIU v. NLRB, 267
Local 60, United Association of
Journeymen & Apprentices of the
Plumbing & Pipefitting Industry v.
NLRB, 337
Local 60, United Brotherhood of
Carpenters v. NLRB, 319
Local 174, International Union, UAW v.
NLRB, 276
Local 357 Teamsters v. NLRB, 265, 273
Local 666 IATSE v. NLRB, 313
397 Index
Local 705 v. Schneider, 326
Local 761, International Union of
Electrical, Radio and Machine
Workers, AFL-CIO v. NLRB, 285
Local 812, International Brotherhood of
Teamsters v. NLRB, 285
Local 900, International Union of
Electrical, Radio & Machine Workers
v. NLRB, 274
Local 926, Operating Engineers v. Jones,
247
Local 1384, UAW v. NLRB, 274
Local 1976, United Brotherhood of
Carpenters and Joiners of America v.
NLRB, 267
Local 6885 v. American Postal Workers,
176
Local legislation, 185
Local Lodge No. 1424, International
Association of Machinists v. NLRB,
268
Local No. 82, Furniture and Piano
Moving v. Crowley, 341
Local No. 98, International Association
of Firefighters v. City of Cleveland,
364
Local Union No. 54, Sheet Metal
Workers’ International Association,
AFL-CIO, 312
Local Union No. 733, 372
Lockheed Space Operations Co., Inc., 338
Lockouts
dispute resolution in established
relationship, 151, 154
economic pressure and bargaining
in the established relationship,
109–114
establishing collective bargaining
relationship, 95
Lockyer, 292
Lodge 76, International Association of
Machinists v. Wisconsin Employment
Relations Commission, 244
Loewe v. Lawlor, 14. See also Danbury
Hatters
London’s Farmer Dairy, 258
Lone Star Industries, Inc., 306
Lone Star Northwest, 257
Longchamps, Inc., 262
Longshoremen ILA Assn. v. NLRB, 286–
287
Longshore work, 34
Lontine v. Van Cleave, 345
Lorance v. AT&T Technologies, 353
Lorbacher v. Housing Authority of
Raleigh, 367
Los Angeles Soup Co., 314
Loser-pays policies, 166
Loughram, Mary Ann, xviii
Lou Stecher’s Super Markets, 311
Low-level jobs, 206–207
Lucas v. NLRB, 335
Luck v. Southern Pacific Transportation
Co., 371
Luddington v. Indiana Bell, 350
Ludwick v. This Minute of Carolina,
Inc., 367
Luedtke v. Nabors Alaska Drilling, Inc.,
370
Lundy Packing Co. v. NLRB, 320
Lynn, Fred, 39
Machinists Lodges 700, 743, 1746 v.
NLRB, 329
Machinist’s Union, 18
Machinists v. Wisconsin Employment
Relations Commission, 292, 306
Mackay Radio & Telegraph Company,
106–108, 304, 307
Magna Carta, 15
Mailboxes, teachers’, 186–187
Majestic Weaving Co., Inc., 291
Major League Baseball Players
Association, 39, 136
Major League Baseball Players Assoc. v.
Garvey, 327
Majority rule, 162
Make-whole remedy, 134, 137
Makro, Inc., 281
Makro Inc., and Renaissance Properties
Co., d/b/a Loehmann’s Plaza, 280
Malicious combination doctrine, 19
398 Index
Mallinckrodt Chemical Works, 253
Malone v. U.S. Postal Service, 334
Malta Construction Company, 298
Management Training Corp., 249
Managerial employees, 37
Manchester Health Center v. NLRB,
281
M&M Contractors, 310
Manganaro Corp., 267
Mannington Mills, Inc., 295
Mansell v. Saunders, 364
Manson Trucking, Inc., 336
Mantrose-Haeuser Co., 261
Manufacturing, 143
Maritime industry, 193
Market allocation, 13
Marquez v. Screen Actors Guild, 172,
336
Marriott Corp., 281
Marshall Field & Co., 281
Marshall v. Barlow’s Inc., 349
Marshall, Thurgood, 50, 86, 109,
174–175, 207, 296, 331, 356, 361,
364, 371
Martinez, Pedro, 39
Martin-Marietta, 210
Martin Marietta Corp. v. Lorenz, 366
Martinsville Nylon Employees Council
Corp. v. NLRB, 326
Martin v. OSHRC, 349
Maryland Drydock Co. v. NLRB, 298
Mary’s Honor Centre v. Hicks, 205
‘‘Mass action’’ theory, 158
Master Window Cleaning, Inc., 310
Mastro Plastics v. NLRB, 300
Materials Research Corp., 295
Mautz & Oren, Inc. v. Teamsters,
Shelvers & Helpers Union, Local 279,
285
Maximum hour standards, violation
of, 27
Maxwell Newspapers, in re, 310
May Department Stores Co., 281–282
M.B. Sturgis, 250
McClatchy Newspapers, Inc., 311, 313
McClellan hearings, 174
McCulloch v. Sociedad Nacional de
Marineros de Honduras, 247
McDermott Marine Construction, 279
McDonald’s Corp., 281
McDonald v. City of West Branch, 331
McDonald v. Mobil Coal Producing, Inc.,
366, 369
McDonnell Douglas Corp. v. Green, 352
McGinnis v. Kentucky Fried Chicken,
350
McKennon v. Nashville Banner Pub. Co.,
352
McLain v. Great American Insurance
Companies, 369
McNeil v. The National Football League,
238
Mean compensation, 130
Meco Corp. v. NLRB, 298
Medeco Sec. Locks, Inc. v. NLRB, 274
Mediation, 95, 139–140, 143
Medical interns and residents, 36
Medicenter, Mid-South Hospital, 371
Medo Photo Supply Corp. v. NLRB, 312
‘‘Meet and confer,’’ 185, 187
Meeting employees on streets, 75
Mejia v. New York Sheraton Hotel, 356
Melzer v. Board of Education, 296
Membership lists, union, 180
Mental Health Services, Northwest, Inc.,
312
Mergers, corporate, 159
Meritor Savings Bank v. Vinson, 356
Merit pay proposals, 115
Merk v. Jewel Food Stores, 340
Mesa Verde Construction Co. v. Northern
California District Council of Laborers,
290
Mescall v. Rochford, 345
Metro Broadcasting, Inc. v. Federal
Communications Commission, 365
Metropolitan District Council United
Brotherhood of Carpenters & Joiners v.
NLRB, 280
Metropolitan Edison Co. v. NLRB, 316,
300, 325, 329
Metropolitan Life Ins. Co., 254
399 Index
Metropolitan Life Insurance Co. v.
Massachusetts, 244
Metropolitan Teletronics, 314
Meuti, Michael, ix
MGM Grand Hotel Inc., 293
Michigan Bell Telephone Company, 101,
316
Michigan State AFL-CIO v. Miller, 341
Mid-South Bottling v. NLRB, 314
Mid-State Ready Mix, 315
Midstate Telephone Corp. v. NLRB,
282
Midwest Piping & Supply Co., 289
Midwest Stock Exchange v. NLRB, 260
Mike Yurosek & Son, Inc., 301, 306
Mikva, Abner (Abe), 176, 224, 266,
271
Mile Hi Metal Systems, Inc. v. Mile Hi
Metal Systems, Inc., in re, 310
Miles v. M.N.C. Corporation, 352
Military Traffic Management Command,
285
Milk Wagon Drivers v. Meadowmoor
Dairies, Inc., 297
Miller v. Alcoa, 356
Milwaukee Spring Division of Illinois
Coil Spring Company, 124, 316
Minimum-standards legislation, 162–
166
Minimum wage, 28, 73
Minnesota Mining and Mfg. Co., 318
Minnesota State Board for Community
Colleges v. Knight, 346
Mintz v. Baldwin, 244
Miranda Fuel Oil, 334
Mississippi Power & Light Co., 250
Mitchem v. Counts, 367
Mitsubishi Motors Corp v. Soler Chrysler-
Plymouth, Inc., 331
Mobile Oil Exploration, 329
Mod Interiors, Inc., 272
Molded Acoustical Products, 261–262
Molon Motor and Coil Corp. v. NLRB,
301
Monopolies, 13–14
Monopsony power, 189
Montgomery Ward & Co., Inc. v. NLRB,
281–282, 288
‘‘Moonlighters,’’ 176
Moore Dry Dock, 286
Moral convictions, objections based
on, 54
Morrissey v. Curran, 338
Most-favored-nation agreement, 83
Motive, 66
Motorola, Inc., 276
Mozee v. American Commercial Marine
Service Co., 350
Mt. Clemens General Hospital v. NLRB,
282
Mt. Healthy City School District Board of
Education v. Doyle, 273, 296
Mulder v. NLRB, 343
Muller v. Oregon, 359
Multiemployer construction facilities,
84
Multiemployer lockout situation, 111
Multiunion industries, 193
Murcott v. Best Western International,
Inc., 367
Murphy, Betty, 90
Murphy Oil U.S.A., 316
Murphy v. United Parcel Service, Inc.,
361
NAACP v. Claiborne Hardware, 287
Nabors Alaska Drilling, 278–279, 290
National Academy of Arbitrators, 149
National Basketball Players’
Association, 40
National Basketball Players Association
and National Basketball Association,
307
National Conference on Uniform
State Laws, 166
National Education Association
(NEA), 189
National Emergency Disputes Under the
Taft Hartley Act, 1947–1977, 302
National Federation of Federal Employees
v. Cheney, 371
400 Index
National Football League
Management Council, 238
National Football League Players’
Association, 39
National Fuel Gas Distribution
Corporation, 263
National Imagery and Mapping
Agency, 188
National Industrial Recovery Act
(NIRA), 28
National Labor Relations Act
(NLRA), 302
access to protection by, 38–40
appropriate unit, 40–45
coverage by, 35–37
dispute resolution in established
relationship, 140, 144, 150, 164
duty of fair representation, 169
economic pressure and bargaining
in the established relationship, 97,
99, 101–102, 104, 108–109, 115,
121, 127
establishing collective bargaining
relationship, 67, 69, 74, 79, 82,
94
industrial relations and labor law
prior to modern legislation, 26
Landrum-Griffith amendments,
57
National Labor Relations Board,
30–35, 45–47
1959 amendments to, 34
overview, 2–3, 27–47
proposed repeal of, 138
public-interest labor law, 197
public sector and, 185, 189, 192
remedies and the Labor Reform Bill
of 1978, 130–131, 135, 138
section 7, 33, 73–77
section 8, 33
section 10(b), 58
section 10(j), 135–136
section 13, 104
section 301, 150
unfair labor practices, 60, 64
National Labor Relations Board
(NLRB)
arbitration, 158–159
dispute resolution in established
relationship, 144
duty of fair representation, 174
economic pressure and bargaining
in the established relationship,
97, 99, 102, 108–109, 116, 123–
124
establishing collective bargaining
relationship, 66–94
filing with, 58
holding an election, 45–47
overview, 2, 7, 30–31
preemption for, 31–35
primary jurisdiction for, 31–35
prosecution with, 58
remedies and the Labor Reform Bill
of 1978, 129–138
unfair labor practices and, 49–64
National League of Cities v. Usery, 241,
365
National Oil Well, Inc., 338
National pacts negotiations, 234
National R.R. Passenger Corp. v.
Morgan, 353
National Treasury Employees Union v.
King, 280
National Treasury Employees Union v.
von Raab, 230
National Treasury Employees Union v.
Yeutter, 371
National Trucking Agreement, 142
National Woodwork Manufacturers
Assoc. v. NLRB, 267
Native American Church, 216
NEA. See National Education
Association
Nelson v. Piedmont Airlines, 304
Ness v. Hocks, 367
Nestle Ice Cream Co. v. NLRB, 262
Neutrality agreement, 94
Nevada Department of Human Resources
v. Hibbs, 365
401 Index
New Breed Leasing Corp v. NLRB, 330
New Deal legislation, 29
New England Health Care Employees
Union v. Rowland, 246
New Jersey Bell Telephone Co., 280–281,
295, 318
New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp.,
277
Newport News Shipbuilding and Dry
Dock Co. v. EEOC, 354
New River Industries v. NLRB, 298
Newsday, Inc. v. Long Island
Typographical Union, 357
Newspaper Guild Greater Philadelphia,
Local 100 v. NLRB, 315
Newspaper industry, 193
‘‘New unionism’’ of 1880s, 3
New York Court of Appeals, 152
New York Handkerchief Mfg. Co. v.
NLRB, 253
New York Health and Human Services
Union v. NYU Hospitals Center, 293
New York Telephone Co. v. New York
State Dept. of Labor, 244
New York Times v. Sullivan, 296
New York Transit Authority v. Beazer,
351
New York University, 249
Nichols v. Azteca Restaurant Enterprises,
358
Niehaus v. Greyhound Lines, 246
Nielsen Lithographing Co. v. NLRB, 318
Nike, Inc. v. Kasky, 280
Ninth Circuit Court of Appeals
dispute resolution in established
relationship, 165
duty of fair representation, 177
economic pressure and bargaining
in the established relationship,
102
establishing collective bargaining
relationship, 76, 78
public-interest labor law, 211, 213,
230
Nissan Research and Development,
Inc., 287
NLRA. See National Labor Relations
Act
NLRB. See National Labor Relations
Board
NLRB v. A-1 King Size Sandwiches, 309
NLRB v. AAA Alternator Rebuilders,
Inc., 257
NLRB v. Acme Industrial Company, 318
NLRB v. Action Automotive, Inc., 252,
254
NLRB v. Actor’s Equity Assn., 249
NLRB v. Adams Dairy, Inc., 314
NLRB v. Advanced Stretchforming, 330
NLRB v. American Art Industries, 287
NLRB v. American National Can Co.,
318
NLRB v. American National Insurance
Co., 312
NLRB v. American Olean Tile Co., 305
NLRB v. Anchorage Times Publishing
Co., 287
NLRB v. Ancus Bros. Inc.-Maxwell,
329
NLRB v. Babcock and Wilcox Co., 275
NLRB v. Baptist Hospital, Inc., 282
NLRB v. Bartlett-Collins Co., 313
NLRB v. Bell Aerospace Co., 252
NLRB v. Beverly Enterprises-
Massachusetts, Inc., 322
NLRB v. Big Three Welding Equipment
Company, 273
NLRB v. Bildisco and Bildisco, 309
NLRB v. Bingham-Willamette, 306
NLRB v. Boeing Co., 338
NLRB v. Brinks, Inc. of Florida, 253
NLRB v. Brown, 308
NLRB v. Bufco Corp., 290
NLRB v. Burns International Security
Services, 330
NLRB v. Burnup and Sims, Inc., 274
NLRB v. Business Machines and Office
Appliance Mechanics Conference
Board, Local 459 IUE, 284
NLRB v. Cabot Carbon Co., 263
402 Index
NLRB v. Cell Agric Mfg. Co., 288
NLRB v. Chapa de Indian Health Corp.,
248
NLRB v. City Disposal System 99–100
NLRB v. C.J. Glasgow Co., 287
NLRB v. Clarytona Manor, Inc., 322
NLRB v. Coca-Cola Bottling Co., 255
NLRB v. Collier, 273
NLRB v. Colonial Haven Nursing Home,
259
NLRB v. Columbus Printing Pressmen
Local 252, 312
NLRB v. Container Corporation of
America, 282
NLRB v. Creative Food Design, Ltd.,
289
NLRB v. Crompton-Highland Mills, 311
NLRB v. Curtin Matheson Scientific,
Inc., 260, 303
NLRB v. D&D Enterprises, 305
NLRB v. Denver Building Trades, 84–85
NLRB v. Detroit Edison Co., 318
NLRB v. Deutsch Co., 253
NLRB v. Draper Corp., 301
NLRB v. Drivers, Chauffeurs, Helpers,
Local Union No. 639, 282
NLRB v. Erie Resistor Corp., 304
NLRB v. Exchange Parts Co., 51, 311
NLRB v. Fainblatt, 247
NLRB v. Fansteel Metallurgical Corp.,
301
NLRB v. Financial Institution Employees
of Americas, Local 1182, 313
NLRB v. First National Maintenance
Corp., 314
NLRB v. Flambeau Airmold, 262
NLRB v. Fleetwood Trailer Co., 305
NLRB v. Food and Commercial Workers,
269
NLRB v. Food Store Employees Local 347,
322
NLRB v. Fort Vancouver Plywood Co.,
320
NLRB v. Fosdal Electric, 287
NLRB v. Foundry Division of Alcon
Industries, 262
NLRB v. Fruit and Vegetable Packers,
Local 760, 286
NLRB v. Garner Tool & Die Manufac-
turing, Inc., 298
NLRB v. General Electric Co., 317
NLRB v. The General Motors Corp.,
172
NLRB v. Gissel Packing Co., 89–91,
259, 289
NLRB v. Great Dane Trailers, Inc., 273
NLRB v. Great Scot, 283
NLRB v. Greyhound Lines, Inc., 296
NLRB v. Gullet Gin Co., 320
NLRB v. Hanna Boys Center, 251
NLRB v. Harvey Hubble, Inc., 274
NLRB v. Health Care & Retirement
Corp. of America, 250
NLRB v. Hearst Publications, Inc., 250
NLRB v. Hendricks County Rural
Electric Membership Corp., 252
NLRB v. Hiney Printing Co., 265
NLRB v. Honeywell Inc., 282
NLRB v. Howard Johnson Motor Lodge,
258
NLRB v. Illinois Tool Work, 297
NLRB v. Insurance Agents’ International
Union, 294, 373
NLRB v. International Brotherhood of
Electrical Workers, Local 340, 337
NLRB v. International Longshoremen’s
Association, AFL-CIO, 285
NLRB v. International Longshoremen’s
Union, AFL-CIO, 285
NLRB v. International Rice Milling Co.,
284
NLRB v. International Van Lines, 312,
320
NLRB v. Ironworkers Local 433, 284
NLRB v. Jacob E. Decker & Sons, 273
NLRB v. Jones & Laughlin Steel Corp.,
28–29, 241
NLRB v. Joy Technologies, Inc., 274
NLRB v. J.S. Alberici Construction Co.,
319
NLRB v. J. Weingarten, Inc., 295
NLRB v. J-Wood\A Tappan Div., 258
403 Index
NLRB v. K&K Gourmet Meats, Inc.,
289–290
NLRB v. Katz, 310
NLRB v. Kemmerer Village, Inc., 251
NLRB v. Kentucky River Community
Care, Inc., 250
NLRB v. Knight Morley Co., 349
NLRB v. Koenig Iron Works, Inc., 288
NLRB v. L.G. Everist, Inc., 02
NLRB v. Lion Oil Co., 300
NLRB v. Lloyd A. Fry Co., 294
NLRB v. Local 103, Iron Workers, 283
NLRB v. Local 825, Operating
Engineers, 284
NLRB v. Local No. 2 of United Associ-
ation of Plumbing and Pipefitting
Industry, 320
NLRB v. Local Union No. 1229,
IBEWN, 100
NLRB v. Lorben Corp., 259
NLRB v. Lyon & Ryan Ford, Inc., 304
NLRB v. Magnavox Co., 276, 345
NLRB v. Massachusetts Nurses Assn.,
312
NLRB v. Max Factor & Co., 329
NLRB v. Metropolitan Alloys Corp., 265
NLRB v. Metropolitan Life Ins. Co., 254
NLRB v. Milk Drivers & Dairy
Employees, Local 38, 273
NLRB v. Mini-Togs, 101
NLRB v. Montgomery Ward & Co. Inc.,
301
NLRB v. Nash-Finch, 306
NLRB v. Nevis Industries, 299
NLRB v. Newport News Shipbuilding
Co., 263
NLRB v. Newton-New Haven Co., 322
NLRB v. Niagara Machine & Tool
Workers, 274
NLRB v. Northeast Oklahoma City Mfg.
Co., 300
NLRB v. Ohio Masonic Home, 279
NLRB v. Oklahoma Installation Co.,
291
NLRB v. Pennsylvania Greyhound Lines,
265
NLRB v. Pennsylvania Telephone Guild,
313
NLRB v. Pentre Electric, 262
NLRB v. Pepsi Cola Bottling Company,
301
NLRB v. Pizza Crust Co., 279
NLRB v. Plasterers’ Union Local 79,
268
NLRB v. Powell Electrical Manufac-
turing Co., 311
NLRB v. Prescott Industrial Products
Company, 298
NLRB v. Pueblo of San Juan, 248
NLRB v. Radio and Television Broadcast
Engineers Union, Local 1212, 268
NLRB v. R.C. Can Co., 302
NLRB v. Red Top, Inc., 296
NLRB v. Reed & Prince Mfg. Co., 309
NLRB v. Reliance Fuel Oil Corp., 247
NLRB v. Retail Store Employees’ Union,
284
NLRB v. Retail Store Employees’ Union
Local 1001, 286
NLRB v. Rockaway News Supply
Company, Inc., 302
NLRB v. Royal Plating and Polishing
Co., 314
NLRB v. Salvation Army Day Care
Centers, 312
NLRB v. S&H Grossinger’s, Inc., 272
NLRB v. Sands Mfg. Co., 300
NLRB v. Savair Mfg. Co., 261
NLRB v. Scott & Fetzer, 262
NLRB v. Sears, Roebuck & Co., 243,
269
NLRB v. Servette, Inc., 286
NLRB v. Service America Corp., 258
NLRB v. Seven-Up Bottling, 319
NLRB v. Sheraton Puerto Rico Corp.,
299
NLRB v. Shop Rite Foods, 302
NLRB v. Simon Debartolo, 330
NLRB v. Southern Greyhound Lines, 302
NLRB v. Star Color Plate Service, 288
NLRB v. State of Illinois Department of
Employment Security, 320
404 Index
NLRB v. Stevens Ford, Inc., 254
NLRB v. St. Joseph’s Hospital, 313
NLRB v. St. Louis Christian Home, 251
NLRB v. Suffield Academy, 317
NLRB v. The Catholic Bishop of Chicago,
251
NLRB v. Thompson Transport Co., 314
NLRB v. Thor Power Tool Company, 297
NLRB v. Tomco Communication Inc.,
311
NLRB v. Town & Country Elec., Inc.,
252, 272
NLRB v. Transmarine Navigation Corp.,
314
NLRB v. Transportation Management
Corp., 70
NLRB v. Triple C Maintenance, 291
NLRB v. Truck Drivers Local 449, 307–
308
NLRB v. U.S. Postal Service, 318
NLRB v. U.S.A. Polymer Corp., 288
NLRB v. Truitt Manufacturing Co.,
318
NLRB v. Unbelievable Inc., 322
NLRB v. United Food and Commercial
Workers Union, Local 23, 243
NLRB v. United Steelworkers of America
(Nutone, Inc.), 275
NLRB v. United Train Sales, 290
NLRB v. Viola Indus.-Elevator Div.,
Inc., 290
NLRB v. Washington Aluminum Co.,
299, 349
NLRB v. Wayne Corp., 274
NLRB v. Wehr Constructors, Inc., 315
NLRB v. Weingarten, Inc., 324
NLRB v. Western Wirebound Box Co.,
319
NLRB v. Whitney Museum of, 261
NLRB v. W.L. Miller Co., 290
NLRB v. Wooster Division of Borg-
Warner Corp., 310
NLRB v. Wyman-Gordon Co., 272
NLRB v. Yeshiva University, 252
Noblit Brothers, Inc., 315
Nolde Bros., Inc. v. Bakery Workers, 327
No-man’s land, 99
Nonmajority bargaining order, 92
Nonmandatory subject, 116
Nonprofit health-care institutions,
79
Nonresident aliens, 36
Nonsolicitation rules, 79–80
Nonunion employees, 16
Nonworking hours, 79
‘‘No proper cause,’’ 162
No Raiding Pact, AFL-CIO, 95, 293
Norfolk Southern Railway v. Johnson,
367
Norris-LaGuardia Act of 1932, 240,
284
dispute resolution in established
relationship, 150–151, 155, 157
establishing collective bargaining
relationship, 83
and National Labor Relations Act,
29
overview, 3, 23–26
North Macon Health Care Facility, 272
Northrop Corporation v. Triad Financial
Establishment, 327
Northside Center for Childhood Develop-
ment, Inc., 314
No-solicitation rules, 71–72
No-strike clauses, 141, 145, 150–151,
155–158
Novosel v. Nationwide Insurance Co.,
366
Novotel New York, 262, 299
Oakwood Hospital v. NLRB, 280–281
Objectionable conduct, prima facie
showing of, 46
Obligation to bargain, 66–68
Obscenity, 101
OCCA. See Organized Crime Control
Act
Occupation of the field doctrine, 32–
33
Occupational Safety and Health Act
(OSHA) of 1970, 163, 197, 199–
202
405 Index
O’Connor, Sandra Day, 218, 361
O’Connor v. Consolidated Coin Caterers
Corp., 362
O’Connor v. Ortega, 371
Office and Professional Employees
International Union, AFL-CIO v.
NLRB, 276
Office and Professional Employees
International Union, Local 2, 266
Ohio Valley Hospital, 312
Oil, Chemical & Atomic Workers
International Union v. Mobil Oil
Corp., 266
Oil, Chemical, and Atomic Workers,
Local 4–16000 v. Ethyl Corp., 325
Oil Workers Local 1–591 (Burlington
Northern Railroad), 285
Oklahoma Zoological Trust, 249
Olin Corporation, 329
Olivetti Office U.S.A., Inc. v. NLRB, 315
On-air programmers, 42–43
Oncale v. Sundowner Offshore Services,
Inc., 212, 358
On-call employees, 46
O’Neil’s Market v. NLRB, 283
Ontario Knife v. NLRB, 294
Open shop policy, 16
Orange Memorial Hospital, 279
Oregon Steel Mills, Inc., 305
Oregon-Washington Railroad & Nav.
Co. v. Washington, 244
Organizational campaigns, 65–66, 75,
80–83
Organized Crime Control Act
(OCCA), 266
Orr v. Westminster Village North, Inc.,
369
Otis Elevator Company, 315
Outboard Marine Corp., 316
Out-of-state defendants, serving, 150
Outsider rule, 174–175
Overnight Transportation Co. v. NLRB,
288
Overtime compensation, 27
Owen v. Carpenter’s District Council,
367
Pacific Maritime Association v. ILWU,
328
Packard Motor Car Co. v. NLRB, 250
Packing House and Industrial Services v.
NLRB, 319–320
Palmateer v. Int’l Harvester Co., 367
Paolella v. Browning-Ferris, Inc., 367
Paper Mart, 273
Paperworkers Local 1033 (Weyerhaeuser
Paper Co.), 342
Parish Frame Division, 336
Parker-Robb Chevrolet, 103, 250
Parker v. Boise Telco Federal Credit
Union, 369
Parsons Electric Company, 319
Patel v. Quality Inn South, 250
Pattern Makers’ League of North America
v. NLRB, 336–338
The Patterson-Sargent Company, 297
Patterson v. McLean Credit Union, 354
Pay ’n Save Corp v. NLRB, 282
Peace, industrial, 67, 146, 235
Pease Company v. NLRB, 309
Peerless Publications, 315
Penalties, 22
Pennoyer v. Neff, 325
Pennsylvania Greyhound Lines, 263
Pennsylvania Power and Light Co.,
372
Pension plan, 197
People v. DiGuida, 277
Perez v. Dana Corporation, 336
Permanent injunction, 21
‘‘Permanent stake’’ in business, 10
‘‘Permanent’’ workers, in Europe, 6
‘‘Permissive’’ subject, 116
Perry Broadcasting Inc., 255–256
Perry Education Association v. Local
Educator’s Association, 345
Perry v. Sindermann, 296, 346
Personal convictions, objections
based on, 54
Petitions, 42, 56, 62, 94–95, 162
PGA, Inc. v. Martin, 361
Phillip Carey v. NLRB, 311
Phillips v. Martin Marietta Corp., 355
406 Index
Phipps v. IASD Health Services Corp.,
368–369
Phoenix Newspapers, 296
Physical harm, intimidation by threat
of, 12, 296
Pickering v. Board of Education, 296,
344
Picketing
establishing collective bargaining
relationship, 75–76, 80–88
industrial relations and labor law
prior to modern legislation, 11–12,
16, 21, 26
and National Labor Relations Act
and, 35, 46
and public sector, 193–194
and unfair labor practices, 56–57
Pikesville United Methodist Hospital v.
United Steelworkers, 249
Pilots, strikebreaking, 108
Pipefitters Local 562 v. United States,
341
Pittsburgh & Lake Erie Railroad Co. v.
Railway Labor Executive Association,
314
Pittsburgh Des Moines Corp. v. NLRB,
309
Pittsburgh Press Co. v. NLRB, 265
Plant-closing legislation, 125
Plumbers and Pipefitters v. Local 334,
326
Plumbers Local Union 141 v. NLRB,
266
Police officers, 186, 191–193
Polish National Alliance v. NLRB, 247
Political process, and unions, 182–
184
Polling workers, by employers, 50
Polly Drummond Thriftway, 278
Pooled votes, 43
Posner, Richard, 127, 208
Postal ballot, 46
Postal Reorganization Act of 1970,
141, 185
Posting of notices, 53, 80
Potter v. Village Bank of New Jersey, 367
Powell, Lewis, 37, 73, 109, 161
Power, Inc. v. NLRB, 288
PPG Industries, Inc., 259–260
Precise Window Manufacturing, Inc. v.
NLRB, 273
Precision Window Manufacturing, Inc.,
320
Predispute agreement,
unenforceability of, 166
Preemption doctrine, 94
dispute resolution in established
relationship, 151
establishing collective bargaining
relationship, 78
and National Labor Relations
Board, 31–34
Pregerson, Harry, 165
Pregnancy-related disabilities, 209
Premier Rubber Co., 259–260
President and Fellows of Harvard College,
255
Presidential veto, 52
Preston, Sarah, x
Pretermination hearing, 187
Price allocation, 13
Price v. NLRB, 294
Price v. Southern Pacific Transportation
Co., 335
Price Waterhouse v. Hopkins, 205, 358
Prima facie showing, 69–70
Prima facie tort doctrine, 11, 13
Primary dispute, 77
Primary employer, 83–84
Primary jurisdiction doctrine, 31–34
A Primer on American Labor Law, xx
Printing industry, 193
Prison guards, 192
Prison population, 42, 204
Private property, 75–76
Private sector
collective bargaining in, 27
and public sector, 188–192
Privatization, of government services,
188
Production Workers, Local 707 v. NLRB,
285
407 Index
Production Workers Union of Chicago &
Vicinity, Local 707 v. NLRB, 342
Productivity problems, 234
Profanity, 101
Professional sports, 39–40
dispute resolution in established
relationship, 142
economic pressure and bargaining
in the established relationship, 127
public-interest labor law, 212–213
remedies and the Labor Reform Bill
of 1978, 136
Profit-sharing plans, 117
Progress Printing Co. v. Nichols, 369
Promotions, 148
Proper accommodation, 74
Prosecutorial side, NLRB, 30–31, 58
Protection, 99, 104
against arbitrary treatment, 233
economic pressure and bargaining
in the established relationship, 102
for individuals with disabilities, 217–
219
for organized labor, 24
Providence Hospital, 250
Proving discrimination, 203
Pruneyard Shopping Center v. Robins,
277
PSM Steel Construction, Inc., 291
Public employees, 35
Public Employees Retirement System of
Ohio v. Betts, 363
Public-interest labor law
accommodating religious obser-
vances, 215–217
age discrimination, 219–221
bona fide seniority systems, 206
conclusion, 232
continued rapid growth of area,
233
drug and alcohol problems, 229–
232
eleventh amendment, 224–225
Employee Retirement Income
Security Act, 197–198
employment discrimination law, 202
Public-interest labor law (cont.)
Occupational Safety and Healthy
Health Act of 1970, 199–202
protection for individuals with
disabilities, 217–219
proving discrimination, 203
remedies, 221–224
sexual orientation discrimination,
214–215
wrongful discharge, 225–229
Publicity picketing, 82
Public policy defense, 154–155
Public property, 75
Public Review Board, UAW, 179
Public sector
arbitration, 150, 166–167
dispute resolution in established
relationship, 140
overview, 185–195
and private sector, 188–192
striking, 234
Pugh v. See’s Candy, Inc., 227, 368
Pullman-Standard v. Swint, 353
Punitive sanctions, 130
‘‘Purely political tracts,’’ 73
Pye v. Teamsters Local 122, 284
Q-1 Motor Express Inc., 315
‘‘Quality’’, 52
Quality C.A.T.V., Inc., 299
Quasi-public property, 73
Quebec, remedies and the Labor
Reform Bill of 1978 in, 138
Quick v. NLRB, 336
Racial issues, 57, 102
Racketeer Influenced Corruption
Organizations (RICO) statute,
266–267
Racketeering and Corruption Act
(RICO), 181
Radio Officers’ Union v. NLRB, 273
Radisson Plaza Minneapolis, 309
Radwan v. Beecham Laboratories, 366
Ragsdale v. Wolverine World Wide, Inc.,
355
408 Index
Railway Clerks v. Allen, 341
Railway Employees v. Hanson, 341
Railway Labor Act of 1926, 28, 83,
108, 140, 142, 150, 249, 295, 302,
314
Railway workers, 140
Rainbow Coaches, 320
Raley’s, Inc. v. NLRB, 259
Ramsey v. NLRB, 329
Rangaire Acquisition Corp., 310
Rank-and-file workers, 105, 158, 345
Rankin v. McPherson, 296
RCA Del Caribe, Inc., 289
RCA Mfg Co., 253
Reagan, Ronald, xvii, 125, 138, 296
Reasonable ‘‘diligence,’’ 130
Reasonable discipline, 172
‘‘Reasonable period of time,’’ 81
Recalls, 117
Recent Developments under the National
Labor Relations Act: The Board and
the Circuit Courts, 294
Recidivist employer, 137
Reclassification, of white-collar
workers, 27–28
Recognition clause, 117
Recruitment, 65–66
Redress of grievances, 162
Red Sox, 39
Red Stores, Inc., 279
Reed v. United Transportation Union,
338
Reeves, Alan, xxi
‘‘Refusal-to-bargain’’ cases, 119
Regents of the University of California v.
Bakke, 364
Regional tariffs, 3
Registered nurses, 36, 204
Regressive bargaining, 126
Regular membership dues, 338
Rehabilitation Act of 1973, 217
Rehnquist, William, 50, 211, 260, 349,
352
Reichhold Chemicals, Inc., 309, 317
Reinstatement, with back pay, 102
Reisbeck Food Markets, Inc., 280
Religious objections, 53–54
Religious observances, accommo-
dating, 215–217
Remedies
and Labor Reform Bill of 1978,
129–138
public-interest labor law, 221–224
Rene v. MGM Grand Hotel, Inc., 358
Reno Hilton, 264
Renteria v. Italia Foods, Inc., 250
Replacements, permanent for
strikers, 109
Reprisals, 65
Republican Party
and Fair Labor Standards Act
legislation, 27
and public sector, 187
and unfair labor practices, 52
Republic Aviation Corp v. NLRB, 71–
72, 274–276
Republic Steel Corp. v. Maddox, 331,
335
Research assistants, 36
Respondent, 60
Restaurants, 79
Restraining orders, 16, 21
Restraint of trade, 9, 11, 13–14, 17,
20
Restraints, in establishing collective
bargaining relationship, 65–96. See
also specific types of restraints
Retail Clerks v. Schermerhorn, 266
Retlaw Broadcasting Co., 261
Revenues, raising in public sector,
189
Rice Food Markets, Inc., 255
Richenberg v. Perry, 360
Richerson v. Jones, 363
RICO. See Racketeering and
Corruption Act
Rights disputes, 139, 142
Right-to-work legislation, 53–54, 73
Riverside Cement Co., 308
Riverside Church in the City of New York,
251
Riverside Community Hospital, 292
409 Index
Roadway Express, Inc. v. NLRB, 282
Robertshaw Controls Co. v. NLRB, 316
Robesky v. Qantas Empire Airways, 334
Rodriguez, Alex, 39
Rodriguez de Quijas v. Shearson/
American Express, Inc., 331
Rogers v. Lockheed Georgia Company,
336
Rojo v. Kliger, 366
Roosevelt, Theodore, 28–29
Rosenfeld, Arthur, 323
Rose Printing Co., 305
Roseville Dodge v. NLRB, 301
Rossmore House, 259–260
Roth, Debra, xxi
Roundout Electric, Inc. v. NYS
Department of Labor, 246
Rowe v. Montgomery Ward & Co., 366
Royal Typewriter Co. v. NLRB, 314
Rundell, Mary Ann, x
Rushton v. Nebraska Public Power
District, 371
Rutan v. Republican Party of Illinois,
346
Ruzicka v. General Motors Corp., 334
Ryan v. Dan’s Food Stores, Inc., 369
Sac and Fox Industries, Ltd., 248
Sacramento Union, 298
Sadler v. Basin Electric Power Co-op, 369
Safeway Stores, 86–87, 254
Sahara Datsun v. NLRB, 287
Sahara Tahoe Corp., 279
Saint Vincent’s Hospital, 275
Salary cap, 40
Salary disputes, in baseball, 142
Salinas Valley Ford Sales, 305
Samsonite Corporation, 297
San Diego Building Trades Council v.
Garmon, 244, 246, 280, 292
San Diego Gas & Electric, 258–259
San Diego Padres, 39
San Francisco Labor Council, 138
San Jose Police Officers Association v. San
Jose, 347
Santa Clara County, 223
Sara Lee Bakery Group, Inc. v. NLRB,
255
Sav-On Drugs, Inc., 254
Scalia, Antonin, 207, 212, 216, 352,
371
Scattered shifts, 46
Scepter, Inc. v. NLRB, 288
Schechter Poultry Corp. v. United States,
243
Schneider, Kathleen, xv
School Board of Nassau County, Florida
v. Airline, 362
Scott ex. rel. NLRB v. Stephen Dunn &
Assoc., 289
Scott Hudgens, 277
Scott v. University of Delaware, 363
Scurrilous literature, 100
Searches and seizures, unreasonable,
229
Sears, Roebuck & Co., 295
Sears, Roebuck & Co. v. San Diego
County District Council of Carpenters,
245, 280
Seattle Baseball Club, in re, 289
Seattle First National Bank, 278
Seattle Seahawks, 320
Secondary boycotts, 14
establishing collective bargaining
relationship, 83, 85–88
industrial relations and labor law
prior to modern legislation, 16–17
unfair labor practices, 56–58
Secondary employer, 84, 87
Secondary picketing, 82–88
Second Circuit Court of Appeals
economic pressure and bargaining
in the established relationship,
120, 122
public-interest labor law, 204
Secret-ballot election, 38, 57, 92
Secret contacts, 65
Securities registration application,
163
Security agreements, union, 172–
174
Security clause, union, 53, 58
410 Index
Self-enforcing authority, 61
Self-interest, 19
Seminole Tribe v. Florida, 365
Semiskilled workers, 43
Semore v. Pool, 371
Senate
Labor Committee, 113
and National Labor Relations
Board, 31
remedies and the Labor Reform Bill
of 1978, 136, 138
S.E. Nichols, Inc., 261
Seniority systems, 148
bona fide, 206
public-interest labor law, 207
Sentry Markets, Inc., 279
Serv-Air, Inc. v. NLRB, 275
Service Electric, 306
Service Employees International Union v.
County of Napa, 333
Service Employees International Union v.
St. Vincent Medical Center, 292
Service Employees, Local 399 v. NLRB,
287
Service Master Aviation Services, 249
Service Merchandise, Inc., 269
Seubert v. McKesson Corp., 369
Seventh Circuit Court of Appeals
duty of fair representation, 177
economic pressure and bargaining
in the established relationship,
108–109
public-interest labor law, 204, 208
Seventh Day Adventist Church, 216
Sewell Mfg. Co., 262, 299
Sex discrimination, 203–204, 207–214
‘‘Sex-plus’’ cases, 210
Sexual harassment, 102, 211
Sexual orientation discrimination,
214–215
Sexual stereotypes, discrimination
based on, 213
SHAD Alliance v. Smith Haven Mall,
278
Shapiro v. Wells Fargo Realty Advisors,
368
Shaw’s Supermarkets v. NLRB, 261
Shea v. Machinists, 337
Shearson/American Express, Inc. v.
McMahon, 331
Sheet Metal Workers’ International
Association v. Lynn, 339
Sheet Metal Workers Local 59, 312
Shelton v. Tucker, 344
Shepard Convention Services, Inc., 257
Shepherd Tissue, Inc., 262, 299
Sherman Antitrust Act of 1890, 13, 25
Shoemaker v. Myers, 368
Shop committees, 4
Shopping centers, 74, 76
Short form adoption, 135
Short form opinion, 62
Shotgun marriage, 153
Showing of interest, 42
‘‘Sick’’ industries, 193
Sick leave, 117
Sidewalks, 75
Sierra Publishing Co. v. NLRB, 297
Sierra Vista Hospital, Inc., 253
‘‘Signal,’’ employee response in
construction industry triggered by,
85
Signal picketing, 82, 88
Silver State Disposal Service, Inc., 302
Sinclair decision, 155–156
Singh v. Jutla, 250
Sit-ins, 104
Sitka Sound Seafoods, 258
Sixth Circuit Court of Appeals, 99
Skilled workers, 43–44
Skinner v. Railway Labor Executives’
Association, 371
SK Steel Corp, v. United Steelworkers, 293
Skyline Distributors v. NLRB, 262, 288
Slaughter v. NLRB, 295
Slavery, abolition of, 15
Slivinsky v. Watkins-Johnson Co., 369
Slogans, union, 101–102
Small plant doctrine, 66
Smith, Elizabeth, xviii
Smith-Pfeiffer v. The Superintendent of
the Walter E. Fernald State School, 366
411 Index
Smith’s Food & Drug Centers, 269, 288
Smith v. Arkansas State Highway
Employees, 344–345
Smith v. Calgon Carbon Corp., 366
Smith v. City of Des Moines, 363
Smith v. Gould, Inc., 367
Smith v. Hussmann Refrigerator Co., 335
Smith v. Midland Brake, Inc., 367
Snell, Karen, xxi,
Snider, Timothy, x
Social context, 212
S.O.C., Inc. v. Mirage Casino-Hotel, 277
Solar Turbines Inc., 305
Solicitation, 66, 71–72, 79–80
Solien v. Miscellaneous Drivers &
Helpers U., Local No. 6102, 270
Somerset Welding & Steel Inc. v. NLRB,
288
Soroka v. Dayton-Hudson Corp., 360
Sosa, Sammy, 39
Souter, David, 349
Southcenter Joint Venture v. National
Democratic Policy Comm., 277
Southern California Edison Company,
282, 298
Southern Indiana Health Council, 248
Southern Services, Inc. v. NLRB, 275
Southwest Forest Indus., Inc. v. NLRB,
311
Sovereignty, legal concept of, 188
Sparks Nugget, Inc., 78
Sparks Nugget, Inc. v. NLRB, 279–280
Spartan Equipment Co., Inc., 297
Spaulding v. Univ. of Washington, 358–
359
Special contracts, 39
Speedrack, Inc., 301
Speedrack Product Groups Limited, 255–
256
‘‘Speed team’’ case handling process,
133
Sphere of interest, for workers, 10
Spielberg Manufacturing Co., 329
Spies
company, 24
union, 49
Spruce Up Corp., 330
Spurlock v. United Airlines, Inc., 351
Standard of living, improved, 235
Stanford Hospital v. NLRB, 279
Stare decisis, 144–145
Star Tribune, 372
State courts
dispute resolution in established
relationship, 141, 151, 155–156, 166
minimum wage legislation, 28
National Labor Relations Act, 33
and public sector, 185–186, 192
right-to-work laws, 73
State mediation agencies, 143
State v. Felmet, 278
State v. Wicklund, 277
Status quo, preservation of, 22
Statute of limitations, 58–59
Statutory employees, 36
Stead Motors of Walnut Creek v.
Automotive Machinists Lodge No.
1173, 327
Steele v. Louisville and Nashville
Railroad, 334
Steel industry, 142, 171
Steelworkers Trilogy, 150–153, 156,
160–161, 166, 171, 333
Steffan v. Perry, 360
St. Elizabeth Hospital v. NLRB, 251
Stevens, John Paul, 88, 157, 245, 286,
331, 336, 349, 356, 371
Stevenson, Adlai, 2
Stewart, Potter, 74, 119–120, 349
St. Francis College v. Al-Khazraji, 354
St. Francis Hospital, 255
St. Joe Minerals Corp., 303
St. John’s Hospital and School of
Nursing, Inc., 281
St. Luke’s Hospital, 279
Stockton Roofing Co., 291
Stone Container Corp., 338
Stoody Co., 263–264
Storer Cable TV of Texas, Inc., 315
Stranahan v. Fred Meyer, Inc., 277
Street Employees Division 1287 v.
Missouri, 303
412 Index
Strife, promotion of, 100
Strikebreakers, 50, 84, 106–108
Strikes
dispute resolution in established
relationship, 141–142, 145, 148,
150–151, 154–158
duty of fair representation, 173
economic pressure and bargaining
in the established relationship,
101, 104–110, 116
establishing collective bargaining
relationship, 75, 81, 83–84, 95
industrial relations and labor law
prior to modern legislation, 11,
16–17, 19, 21–22, 26
and National Labor Relations Act,
35
public sector, 185–186, 192–194,
234
Stroehmann Bakeries, Inc., 319
Struksnes Construction Co., 259
Subcontracting, 57, 84–86, 120, 152
Substantial and irreparable injury,
23
Substantial continuity, in work force,
160
Subversion of election outcomes, by
employers, 133–134
Successor employers, 159–160
Suders v. Easton, 358
Sullair P.T.O, Inc., v. NLRB, 298
Sumitomo Shoji America, Inc. v.
Avagliano, 350
Summary affirmance, of adminis-
trative law judges’ decisions, 135
Summer Products, 262
Sundstrand Heat Transfers, Inc. v.
NLRB, 320, 322
Sunrise Rehabilitation Hospital, 262
Superior Container, Inc., 287
‘‘Super Panel’’ system, 133
Superseniority, 107–108
Supervisory activity, protecting, 102
Supervisory employees, 35
Supervisory unions, 190
Supremacy clause, Constitutional, 32
Supreme Court. See specific cases and
decisions
Sure Tan Inc. v. NLRB, 249
Surface bargaining, 113
Surveillance of union activities, 49
Susquehanna United Super, Inc., 280
Sutton v. United Airlines, Inc., 361
Sweden, unfair labor practices in, 55
Swedish Employers Federation, 3
Swinton v. Potomac Corp., 358
Sympathy strikes, 17, 157–158
Syres v. Oil Workers Local 23, 334
Tactics, bargaining, 97–128. See also
specific tactics
Taft, Robert, 20, 195
Taft Broadcasting Co., 311
Taft-Hartley Act, 70, 98, 106, 125,
141–142, 151, 154, 157, 173, 182,
302
Taft-Hartley Amendments (1947),
30–31, 35–36, 41, 43–44, 53, 55,
58, 80, 83, 89, 105, 107, 150, 156,
195, 285
Tajon, Inc., 293
‘‘Take it or leave it’’ bargaining, 55,
125
Tameny v. Atlantic Richfield Co., 226,
368
Taracorp Industries, A Division of
Taracorp, Inc., 295
Target Rock Corp., 305, 307
Tariffs, 3
Taxes, 189
Taylor-Dunn Mfg. Co., 261
Taylor Report, 189
Taylor v. Brighton Corp., 349
TCI West, Inc. v. NLRB, 258
TDU. See Teamsters for a Democratic
Union
Teachers, 37, 186–187, 189, 193
Teachers’ unions, 191
Teaching assistants, 36
TEAM Act, 52, 264
Teamsters, 353. See also International
Brotherhood of Teamsters
413 Index
Teamsters for a Democratic Union
(TDU), 181
Teamsters Local 43 v. NLRB, 268
Teamsters Local 174 v. Lucas Flour Co.,
328
Teamsters Local 391 v. Terry, 336
Teamsters Local 515 v. NLRB, 317
Teamsters Local 807 v. NLRB, 253
Teamsters Local Union No. 639 v.
NLRB, 312
Teamsters-United Parcel Agreement,
1984 ratification of, 176
Technology Services Solutions, 272
Teledyne Economic Development v.
NLRB, 249
Teledyne, Industries, Inc., 274, 305
Telephone calls, 66, 75
Telescope Casual Furniture, Inc., 317
Telex Communications, 261
Temporary ex parte orders, 23
Temporary restraining order, 21
Ten Broeck Commons, 250
Termination, erroneous, 187
Terms or conditions of employment,
16
Texas Dept. of Community Affairs v.
Burdine, 352
Texas Petrochemicals Corp., 50
Texas Petrochemicals v. NLRB, 260
Texas Rangers, 39
Textile Workers Union v. Darlington
Manufacturing Co., 314
Textile Workers Union v. Lincoln Mills,
150, 243
Thayer doctrine, 301
Theatrical Employees Local 39 v. NLRB,
301
Theodus v. McLaughlin, 341
Thiele Industries, Inc., 272
Third Circuit Court of Appeals
economic pressure and bargaining
in the established relationship,
102, 120
establishing collective bargaining
relationship, 90–91
Third innocent party, 84
Third-party intervention, 139–141
Thomas, Clarence, xiii, 77–78, 212,
327, 349, 358
Thomas Industries v. NLRB, 260
Thomasson v. Perry, 360
Thomas v. Collins, 279, 344
Thomas v. NLRB, 343
Thomas v. Review Board, 361
Thomas v. United Parcel, Inc., 335
Thompson, Frank, 131
Thoreson-McCosh, Inc., 303
Thornhill v. Alabama, 283
Threats, 12, 17, 33, 49, 83
Tiidee Products, Inc., 322
Timekeeping Systems, Inc., 274
Times Publishing Co. v. NLRB, 281
Timple, Inc. v. NLRB, 298
Title I rights, 175
Title VII rights, 162, 209–211, 215–
216, 220, 222–223, 225
TNS, Inc., 300
Todd Shipyards Corp. v. Secretary of
Labor, 258, 349
The Toledo Blade Company, 312
Toledo Typographical Union No. 63 v.
NLRB, 312
Top-down organizing, 86
Torosyan v. Boehringer Ingelheim
Pharmaceuticals, Inc., 369
Torres v. Wisconsin Dept. of Health and
Social Services, 351
Torrington Extend-A-Care Employee
Association v. NLRB, 319, 321
Torrington Industries, 315
Totality-of-conduct approach, 127
Toth v. USX Corp., 263
Toussaint v. Blue Cross Blue Shield of
Michigan, 366
Toyota Motor Manufacturing Co. v.
Williams, 361
Toys-R-Us, Inc., 261
Trades Disputes Act of 1906, 3
Trade Union and Labor Relations
Act of 1976 (Britain), 54
Trade unions, 2, 80, 97. See also
specific unions
414 Index
Trailways Lines v. Joint Council, 263
Transportation-Communication
Employees Union v. Union Pacific
Railroad, 293
Trans World Airlines, Inc. v. Hardison,
361
Trans World Airlines v. Thurnston, 352
Trbovich v. United Mine Workers, 179
Tree Fruits, 86, 286
Tree of Life, Inc., 250
Trespass, 33, 74
Tressler Lutheran Home v. NLRB, 251
Trial examiner. See Administrative
law judge
Tri-Cast, Inc., 306
Tri-County Medical Center, 279
Trinity St Co., 322
Trombley v. Southwestern Vermont
Medical Center, 369
Trompler Inc., v. NLRB, 300
Truck Drivers Local 807, International
Brotherhood of Teamsters v. Carey
Transportation, Inc., 309
Truck Drivers Union, Local 413 v.
NLRB, 267
Truesdale, John, 90
Truitt, Glenn, ix
Trusteeships, 178
T.R.W. Bearings, 275
TRW-United Greenfield Division v.
NLRB, 260
Tuskegee Area Transportation System, 312
Tweedle Litho, Inc., 292
Tyler Business Services, Inc., 297
Typoservice Corp., 304
UAA. See Uniform Arbitration Act
UAW. See also United Auto Workers
UAW-CIO. See United Auto Workers-
Congress of Industrial
Organizations
UAW-Labor and Employment Training
Corp. v. Chao, 342
UAW v. Dana, 293
UAW v. Wisconsin Employment Relations
Board, 303
UFCW Local No. 880 v. NLRB, 280
Ulane v. Eastern Airlines, 355
Umpireships, permanent, 141
Unauthorized stoppages, 145
Unavoidable, irreparable damage, 22
Unceasing agitation, 19–20
Uncertainty, good-faith-reasonable,
51
Undocumented workers, 36
Unfair labor practices. See also
specific practices
dispute resolution in established
relationship, 143
duty of fair representation, 169,
173
economic pressure and bargaining
in the established relationship, 98,
102–103, 109
establishing collective bargaining
relationship, 76, 81, 89–90
National Labor Relations Act, 47
overview, 49
Unions. See individual union name
and union activities
Union Square Theatre Management,
250
Union Telephone and Telegraph Co.,
318
United Airlines, Inc. v. Evans, 353
United Airlines Strike of 1985, 108
United Artists Communications, Inc.,
300
United Ass’n, Local 342 v. Valley Eng’rs,
292
United Auto Workers, 2, 37, 179. See
also UAW
United Auto Workers v. Johnson Controls,
214
United Auto Workers-Congress of
Industrial Organizations (UAW-
CIO), 71
United Brotherhood of Carpenters, 5
United Brotherhood of Carpenters and
Joiners Local Union 953 v. Mar-Len of
Louisiana, Inc., 291
United Cable Television Corp., 297
415 Index
United Construction Workers v.
Laburnum Const. Corp., 244
United Dairy Farmers’ Cooperative
Associations, 90–91
United Dairy Farmers Cooperative Assn v.
NLRB, 289–290
United Electrical Contractors & Ordman,
269
United Electrical Radio & Machine
Workers of America, Local 623, 273
United Federation of Postal Clerks v.
Blount, 303, 345
United Food & Commercial Workers
Local 751 v. Brown Group, Inc., 317
United Food & Commercial Workers,
Local No. 1996, 284
United Food & Commercial Workers
Union, 343
United Hatters of North America, 14
United Mine Workers, 5
United Mine Workers v. Pennington, 284
United Paperworkers International Union
v. Misco, 327
United Paperworkers International Union
v. NLRB, 319
United Parcel Service, Inc., 249, 254
United Parcel Service, Inc. v. Mitchell,
336
United Rubber Workers, 2
United States. See different aspects of
American labor law
United States Can Co. v. NLRB, 330
United States Civil Service Commission v.
National Association of Letter Carriers,
344
United States Dept. of the Navy v. Federal
Labor Relations Authority, 257
United States Gypsum Co., 260
United States Postal Service, 315, 318,
322, 338
United States Postal Service Board of
Governors v. Aikens, 352
United States Postal Service Marina
Mail, 268
United States Testing Co. v. NLRB,
318
United States v. Congress of Industrial
Organizations, 341
United States v. Darby, 241
United States v. Emmons, 266
United States v. Hutcheson, 25–26
United States v. International
Brotherhood of Teamsters, 266
United States v. Int’l Longshoremen’s
Association, 302
United States v. National Treasury
Employees Union, 296
United States v. Pacific Maritime
Association, 302–303
United States v. Paradise, 364
United States v. PATCO, 347
United States v. Portland Longshoremen’s
Benevolent Society, 302
United States v. Teamsters, 341
United States v. Thorodarson, 266
United States v. Trucking Employers,
Inc., 364
United Steelworkers, 341
United Steelworkers Local 571 v. NLRB,
319
United Steelworkers of America, 2,
179
United Steelworkers of America Local
14534 v. NLRB, 309, 319
United Steelworkers of America v.
Enterprise Wheel and Car Corp., 327
United Steelworkers of America v. Lorain,
328
United Steelworkers of America v.
Rawson, 246, 370
United Steelworkers of America v. Weber,
364
United Steelworkers v. Enterprise Wheel &
Car Corp., 243, 325
United Steelworkers v. Sadlowski, 174,
338
United Steelworkers v. United States,
302
United Steelworkers v. Warrior & Gulf
Navigation Co., 243, 325
United Technologies Corporation, 330
Universal Camera Corp. v. NLRB, 271
416 Index
Universidad Central de Bayamon v.
NLRB, 252
University Medical Center, 296
The University of Chicago, 253
University of Great Falls v. NLRB, 252
Unlawful conspiracies, 9, 11
Unlawful objectives test, 20
Unprotected activities, 99, 101, 103
Unskilled workers, 43
U.S. Airways, Inc. v. Barnett, 361
U.S. Chamber of Commerce v. New Jersey,
306
Usery, William J., 148
US F Red Star, Inc., 282
U.S. Marine Corp. v. NLRB, 330
U.S. Postal Service v. American Postal
Workers Union, AFL-CIO, 327
U.S. Steel Corp. v. NLRB, 259
Vacation law, statutory, 28, 117
Vaca v. Sipes, 160, 170, 334
Valid complaint, 179
Vantran Electric Corp., 293
Vegelahn v. Gunter, 239
Verizon Information Systems, 292
Vicarious responsibility doctrine, 21–
22
Vicksburg Firefighters Assn. v. City of
Vicksburg, Mississippi, 345
Vico Products Co., in re, 315
Vincent Industrial Plastics v. NLRB,
288
Vincent’s Steak House, 282
Violence, 23, 33
Visiting Nurse Services v. NLRB, 311
Vitullo v. International Association of
Electrical Workers, 339
Vizcaino v. Microsoft Corp., 250
Vogel v. City of Cincinnati, 350
‘‘Voluntariness,’’ 211
Voluntary conciliation, 161
Voluntary unincorporated
associations at common law, 32,
150
Volunteers of America, Los Angeles v.
NLRB, 251
Volunteers of America-Minnesota Bar
None Boys Ranch v. NLRB, 251
Vons Grocery Company, 263
Vorbeck v. McNeal, 345
Voting, 38
duty of fair representation, 178–180
establishing collective bargaining
relationship, 81–82, 92, 96
National Labor Relations Act, 43, 46
remedies and the Labor Reform Bill
of 1978, 133–134
unfair labor practices, 57
Vulgar talk, as unprotected conduct,
101
Wage differentials, 127, 213
Wage drift, 234
Wage negotiations, 83, 134, 137
Wage scale, union, 16
Wagner Act of 1935, 29, 31, 98, 113,
141. See also National Labor
Relations Act
Wagner, Robert, 29
Wald, Patricia, 92
Walsh-Healy Act, 28
Wards Cove Packing v. Antonio, 204
War Labor Board, 141
Warnings to customers, 17
Warrior and Gulf Navigation Co., 326
Warshawsky & Company, 284
Washington Gas Light Company, 318
Washington v. Davis, 351
Washington v. Lake County, Illinois,
352
Watchtower Bible & Tract Society of New
York, Inc., v. Village of Stratton, 279
Waterbury Hospital v. NLRB, 305
Watkins v. United States Army, 360
Watson v. Michigan Industrial Holdings,
Inc., 317
Weather Tamer v. NLRB, 259
Webco Industries, Inc. v. NLRB, 274
Webcor Packaging, Inc., 263
Weber case, 222
Weeks v. Southern Bell Tel. & Tel. Co.,
351
417 Index
Weigand, Walter, 68–69, 100
Weiner v. Cuyahoga Community College
District, 364
Weiner v. McGraw-Hill, Inc., 366
Welfare legislation, 6, 162–166
Wells Fargo Armored Service Corporation,
253
West Coast Sheet Metal, Inc. v. NLRB,
312
Western Air Lines, Inc. v. Criswell, 352
Western Pennsylvania Socialist Workers
1982 Campaign v. Connecticut
General Life Insurance Co., 278
Westinghouse Electric Corp., 372
Wheeling Pittsburgh Steel Corp. v. United
Steelworkers of America, 309
Whipsawing, 110–111
Whirlpool Corp. v. Marshall, 349
‘‘Whistle-blowers,’’ 229
White, Byron, 70, 88, 109, 161, 163,
171, 175, 186–187
White Cap, Inc., 317
White-collar workers, reclassification
of, 27–28
Wieder v. Skala, 366
Wiese Plow Welding Co., Inc., 272
W/I Forest Products Co., 372
Wildcat strikes, 158
Wiley v. Livingston, 159–160
Wilhelm v. West Virginia Lottery, 368
Willamette Industries, Inc., 258–259
Willamette Tug and Barge Co., 314
‘‘Willful’’ violation, 220
William E. Arnold Co. v. Carpenters
District Council, 329
Williamson, Carrie, ix
Williams v. International Typographical
Union, 339
William v. Thornburg, 371
Williams v. Watkins Motor Lines, Inc.,
246
Willingham v. Macon Telegraph
Publishing Co., 355
Wilson, Pete, xiii, 215
Wilson, Woodrow, 15
Wilson v. NLRB, 266
Windward Shipping (London) Limited, et Yellow Freight Systems v. Donnelly, 353
al., v. American Radio Association, Yielding, of property rights, 73–74,
AFL-CIO, et al., 247 77
Winett-Simmonds Engineers, Inc., 255– Youngtown Sheet and Tube Co. v.
256 Sawyer, 302
Wirtz v. Hotel, Motel, and Club Ysleta Federation of Teachers v. Ysleta
Employees Union, Local 6, 341 Independent School District, 346
Wisconsin Department of Industry, Labor Yukon-Kuskokwim Health Corporation,
and Human Relations v. Gould, Inc., 248
246, 307
Woelke & Romero Framing, Inc. v. Zamboni v. Stamler, 367
NLRB, 85 Zimmerman, Don, 72, 290
Woodland Clinic, 275 Zipper clause, 124–125
Woodland v. Michigan Citizens Lobby, 278
Woolley v. Hoffman-La Roche, Inc., 365–
366, 369
Worcester Manufacturing Inc., 330
Workers’ compensation, 137
Work hours/shifts, 117
Working conditions, 58, 83
‘‘Working hours/working time,’’ 71–
72, 79
Work release employees, 42
Works councils, 4
Work stoppage, 19
World War II, 3, 141
WPIX, Inc. v. NLRB, 274
W.R. Grace & Company v. Local Union
759, 327
Wright Line, 69
Wright v. Universal Maritime Service
Corp., 165
Writ of a certiorari, 62
Wrongful discharge, 187
actions, 109, 164
common law of, 197
public-interest labor law, 225–229
Wyandotte Savings Bank, 254
Wygant v. Jackson Board of Education,
222
Wyman-Gordon Co., 257

Yakima apples, 86–87

Yellow Bus Lines, Inc. v. Drivers,
Chauffeurs, 266
‘‘Yellow dog’’ contract, 24

418 Index