Beruflich Dokumente
Kultur Dokumente
1|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o Hot Cargo Clauses (Nat’l. Woodworkers; Houston Instillation; Enterprise; Connell) 680-695 133-138
o Work Assignment Disputes (Plasterer’s Union) 695-699 138-138
Adair v. U.S. (1908) and Coppage v. Kansas (1915): The Supreme court strikes
down legislation that outlawed yellow-dog K’s. Yellow-dog Ks: requires employees
to agree not to join a union or be involved in Union activities as a condition of
employment, then get a court injunction to enforce.
Hitchman Coal & Coke Co. v. Mitchell (1917): Court upheld an injunction against union organizers
who sought to persuade employees to become union members despite signing yellow-dog Ks
(agreeing not to join a union or be involved in union activities during the term of their employment).
o Upheld freedom of K between employees and employers.
o Case did not involve rights of workers b/c Ds had no agency with Ps employees—the right of
the worker’s to strike would not give Ds the right to instigate a strike.
2|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o The Union allowed members to remain at work in violation of their K’s of employment until
they had sufficient numbers to instigate a strike—this amounted to interference with the
employer’s constitutional right to remain union-free.
Federal Courts exercised their equity power to effectively compel nonunion shops throughout entire
industries.
o UMW v. Red Jacket Consol. Coal & Coke (4th Cir. 1927): Barred organizing of the entire
W. Va. coal industry.
o Clashed with emerging sentiments in Congress.
Railway Labor Act (1926) (Carried Forward WWI Unionization of the Railroads) & Davis-Bacon
Act (1931) (Prevailing wage and work rules (typically Union set) act for Federal Public Works) &
Great Depression of 1929 increased sentiments in favor of labor org. and collective bargaining.
N-L Act (1932): Attempted to perfect the CL model for regulating labor disputes rather than as an
effort to promote the labor org. directly. Confers broad immunity from issuance of fed’l and state
injunctions in labor disputes.
o Outlawed yellow-dog Ks as a matter of public policy and recognized that individual
employees bargaining on their own could not exercise “actual liberty of K” (overriding
Hitchman).
o § 4: Barred fed’l courts from issuing injunctions or restraining orders against becoming or
remaining a union member or engaging in union activities, imposed procedural conditions on
issuance of injunctions in labor disputes not covered in § 4, protected officers and other
members from liability for unlawful acts of individual members.
o § 7: Imposed procedural conditions for injunctions including limiting the issuance of ex
parte orders to when “a substantial and irreparable injury to complainant’s property will be
unavoidable.”
o § 6: Afforded procedural protections against union organizers including immunizing union
officers from liability of illegal acts of individual members.
o § 9: Injunctions only cover specific acts.
o § 8: Clean hands doctrine on employers seeking injunctions.
o § 10: Certification of Appeal of TLI to the COA’s.
o § 11: Required jury trial for contempt proceedings other than those committed in the
presence of the court.
Modern Applications of the Norris-LaGuardia Act: S.Ct. limited the protections of the Act in
decisions “accommodating” the Act to § 301 of the Labor Management Relations Act of 1947.
United States v. Hutcheson (1941) - Created exemption for Union activity as opposed to focusing
on Apex’s distinctions b/t restraints of commercial competition and those directed at the elimination
of differences based on labor standards
o Facts: Labor org. refused to work for Anheuser-Busch and attempted
to get members of other unions to similarly refuse to work. Also
attempted to union members and their friends to stop buying
Anheuser-Busch beer. Strike also affected 2d employer tenant of
Busch. The labor org. and leaders were indicted (under AG’s
program of using Sherman Antitrust Act to break bad union
behavior.).
o Holding: Congress restored § 20 of the Clayton Act in the N-L Act to create a public policy in
favor of legitimate union activities remove all such allowable conduct from the “taint of
being violations of any law of the U.S.,” including the Sherman Law.
Trade union activities violative of the Sherman Act cannot be criminal conduct.
o Reasoning:
Must read Sherman Act, Clayton Act, and N-L Act together to determine whether trade
union conduct violates the Sherman Act. § 20 of the Clayton Act removes certain trade
union activities from being criminal conduct so long as the union operates: 1) in its
self-interest and 2) does not combine with non-labor organizations.
Nothing in the Clayton Act distinguishes b/t conduct directed at an employer-
employee labor dispute and a struggle b/t two labor orgs seeking favor w/ the same
employer.
All the acts complained of are covered by § 20 of the Clayton Act even though the
object of the dispute is the competing labor org. unless the Ps combined with
outsiders to the immediate dispute who shared in the conduct.
4|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
N-L Act, § 13(c) defines “labor dispute” as “any controversy concerning terms or
conditions of employment, or concerning the assoc. or rep. 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.” § 13(b) defines person participating/interested in a labor dispute if
“engaged in the same industry, trade, craft, or occupation in which such dispute occurs,
or has a direct or indirect interest therein, or is a member, officer, or agent of any assoc.
composed . . . of employers or employees engaged in such industry . . . .”
The 3 Statutes cannot be read together as preventing an injunction under the N-L Act yet
allowing for criminal prosecution of the exact same conduct removed from the equity
powers of the federal courts.
May not read the acts together to interpret Congress’ intent in a “spirit of mutilating
narrowness”
The purpose of the N-L Act was to restore the broad purpose of the Clayton Act after its
narrow judicial construction by ”infusing into it the immunized trade union activities as
redefined by the later act.”
Since Hutcheson, antitrust laws have rarely been asserted against union—only where there is
collusion between unions and management in restrain of interstate trade.
The Railway Labor Act (RLA) Passed in response to conflict following the
Transportation Act of 1920 that returned the railways to private carriers following
WWI.
o Created a duty of employers and employees to resolve disputes peacefully,
and to make and maintain agreements (early duty to negotiate?).
o Created a 5-person Board of mediation to attempt mediation if parties could
not come to an agreement on their own.
o Arbitration if mediation unsuccessful.
o Then to the President who could convene and emergency Ad-Hoc board.
o During the proceedings the parties were under obligation to maintain the status quo.
o Created a grievance board.
o Railway workers had the right to select their own representative without interference,
coercion or influence by the carriers.
o Later amendments created the Nat. Railroad Adj. Board to here “minor disputes” re:
interpretations of agreements and a set of ULP’s that applied only to carriers.
NLRB v. Jones & Laughlin Steel Corp. (1937) - tested constitutionality of the NLRA
Facts: NLRA est. a comprehensive system for regulating labor/management
relations by establishing right of employees to engage in CBAs and create a board
to supervise elections and enforce the Act’s prohibition of such unfair labor
practices as discrimination against union members. Contained “findings”: denial of
right to CBAs lead to strikes affecting commerce. Declared to be the policy of the
U.S. to eliminate these strikes. J&L is national enterprise.
o NLRB charged J&L, a steel and iron manufacturer, w/ ULP of firing
employees b/c they sought to org. a union.
o COA held the act unconstitutional.
Holding: Congress’ power over congress is plenary and
Congress has power to regulate labor relations if it bears a
close and substantial relationship to interstate commerce.
Congressional power to protect interstate commerce may be
used to reach activities that are deemed to merely burden or
obstruct interstate commerce.
Reasoning:
o ULPs in Question: Fundamental rights of the workers to self-org. and
select representatives of their own choosing for CBAs w/o
restraint/coercion by employers. This is a “proper subject” for
condemnation by the legislature.
6|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o Judicial notice that the refusal to confer and negotiate has been one of the
most prolific causes of industrial strife.
o The stoppage of J&L’s operation would have a serious effect on interstate
commerce and is an urgent national concern.
Other Congressional Enactments: Taft-Hartley Act of 1947, Landrum-Griffin Act of 1959, 1974
Health Care Industry Amendments, Proposed Labor Reform Act of 1977 and Other Failed
Legislation, Other major statutes (specific in nature, reason why unions are less successful today)
include: Fair Labor Standards Act of 1938 (overtime pay), OSHA of 1970, Title VII Civil Rights
Act, etc.
Adjudication
1) ULP Procedures
1. Filing of charge: any “person”
2. Regional investigation
3. Issuance of complaint: importance of GC, UFCW – no review over discretionary decision
4. Hearing before ALJ – § 10(c) burden of proof on GC, but see Kentucky River (129) re
affirmative defenses and burden switching
5. ALJ decision and exceptions: Both parties have 20 days to submit exceptions, or the
intermediate report receives the same weight as a decision by the Board.
6. If exceptions are filed to the Board then the Board takes complete control over the case and
issues its own decision
May designate authority to a panel of 3 examiners
Not directly enforceable, need to get injunction from COA
7. Enforcement/Review in the COA – aggrieved party/employer who files first gets to forum
shop. When NLRB decision is not followed, must go to COA to get injunction and enforce
8. Appeal from the Board’s Findings to the COA where the ULP occurred or where that party
does business:
Wide latitude to employers to Circuit shop
Scope of Review:
7|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Univ, Camera Corp. v. NLRB, 340 U.S. 475 (1951): Review findings of fact
based on substantial evidence contained in the record considered as a whole
(all the evidence must be weighed)
Findings of law reviewed de novo, BUT:
o Chevron v. nat. Resources Def, Council, 467 U.S. 837 (1984): Where
statutes are ambiguous and Congress did not speak directly to the issue
at hand, the courts must show great deference to the agency’s
interpretation if it is based on a permissible construction of the statute
Mixed questions of Fact and Law:
o United Insurance, 390 U.S. 254 (1968): Is the agency using the correct
standard? If so, then review is based on Univ. Camera’s substantial
evidence test.
REMEMBER THAT THE PARTY WHO FILES FIRST GETS TO FORUM SHOP
Appeal or enforcement
Where the ULP occurred or where the party resides or does business
3) Representational Proceedings
Petition for election (certain criteria); showing of interest
Regional office investigation (e.g., application for bargaining union, eligibility)
Limited appeal to NLRB
Election and certification
NLRB review (NLRB decision must be “totally unlawful” to be reviewed)
Limited judicial review (Leedom): very difficult for union to convert to ULP case
Rulemaking
The NLRB has broad rulemaking authority but has chosen to make labor policy almost exclusively
through adjudication
Advantages
8|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o Reasoned and legitimate decisions
o Expanded informational input
o Certain Law
o Consistent law
o Public participation
o Centralized appellate review
o Reigning in the GC
Proposed Rule: Every employer must post notices informing employees of rights under NLRA.
Lawful? Circuits are split on whether the NLRB can make new rules (applying prospectively) by
adjudication in individual cases rather than going through the usual rulemaking process, particularly
when sanctions are involved.
o SCOTUS ahs made clear that the Board has broad discretion in choosing b/t rulemaking and
adjudication as a policy-making vehicle.
NLRB v. Bell Aerospace (1976): Reversing the 2d Cir. Position that the NLRB must
use rulemaking where it was reversing long-standing precedent.
Excelsior Underwear, Inc. (1966): Announced new general rule that requiring
employers to disclose the names and addresses of unit employees w/i 7 days of the
approval or direction of an election—did not take affect until 30 days from the
decision and so did not affect the parties involved
NLRB v. Wyman-Gordon (1969): Board acted improperly in Excelsior by
promulgating a rule BUT the subpoena had been issued as part of a valid adj.
proceeding and should be enforced.
Jurisdiction
Scope of Review:
o Univ. Camera (1951): Review findings of fact based on substantial evidence contained in the
record considered as a whole (all the evidence must be weighed).
o Findings of law reviewed de novo, BUT:
Chevron (1984): Where statutes are ambiguous and Congress did not speak directly
to the issue at hand, the courts must show great deference to the agency’s
interpretation if it is based on a permissible construction of the statute.
9|Labor Law
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o Mixed questions of Fact and Law:
United Ins. (1968): Is the agency using the correct standard? If so, then review is
based on Univ. Camera’s substantial evidence test.
Commerce clause and the Board’s Jurisdictional Self-Limitation: § 10 extends jurisdiction of the
NLRA to cases “affecting commerce”
o § 2(7): In commerce, or burdening or obstructing commerce or the free flow of commerce, or
leading to or tending to lead to a labor dispute burdening or obstructing commerce or the free
flow of commerce.
o Board’s commerce power is coextensive w/ Congress.
o NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979): Board lacked jurisdiction over
teachers in church-operated schools because both the inquiry required under the Board’s
“Completely Religious v. Religiously Associated” test and the actual assertion of jurisdiction
over teachers in church-operated schools. Serious 1st Amendment issues.
1) Independent Contractors
NLRB v. Hearst (1944) - economic realities test - The economic facts of the
newsboy-newspaper relationship more closely resembled that of an employee-
employer relationship than of an independent business enterprise. Look at amount of
control and whether employees could protect their rights. Economic reality is that
employer has all the power and ought to be able to unionize.
NLRB v. United Ins. (1968): Mixed Question Review - The Board classified 3300
debit agents as employees rather than I/C’s and the COA reversed.
Holding: The Board applied the law to the facts and arrived at a choice
between 2 fairly conflicting views which the COA should have upheld, even if
it would have made a different choice.
Rationale: CL of agency should apply:
o The agents do not operate their own businesses but under the
companies name with training and considerable assistance and
guidance form the company ant its managers.
o Functions are essential to the company’s normal operations
o They sell only the company’s insurance and operate under a
commission structure promulgated and changed unilaterally by the
company
o Regular reporting procedures
o Benefits of the company’s vacation plans, insurance, pension, etc…
o Permanent working relationship.
10 | L a b o r L a w
LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Roadway Package System, Inc. (1998): Dispute over the classification of delivery
drivers.
Holding: Delivery Driver’s were employees when all the factors are assessed
equally according to c/l principles of agency.
Rationale: Rejected the argument that employer’s right to control the manner
and means of the work should be weighed more heavily than others.
o Drivers were not independent and were performing an essential
function of Roadway’s business
o Drivers owned their own trucks but trucks were leased through a
supplier designated by Roadway and modified such that they had very
little other use
o The Trucks usually were left overnight for reloading and so were not
available for independent use
o Company set minimum and maximum deliveries thereby controlling
the income of the drivers
Alternative test: an NLRA-specific test that would include as employees “all workers
who sell their labor . . . to be combined primarily with capital provided by others” and
exclude “those who sell a product or service that combines the workers’ labor to a
significant extent with their own nonhuman capital.” Basically a way of defining
entrepreneurial activity.
2) Implied Exclusions: Students (interns, residents, grad students – now restrictive but Lynch
sees changes coming), Managerial employees (Bell Aerospace), Confidential employees
(Labor nexus test).
NLRB v. Bell Aerospace (1974) - The NLRA excluded all “managerial employees,”
but on remand the Board determined that the Buyer’s were mere employees and not
managerial because they lacked the authority to formulate policy or discretion
independent of their employer’s established policy.
Facts: The NLRB excluded only management employees engaged in the
formulation and implementation of labor policies—whether the person
classified as an EE is free of conflicts relating to formulation and
implementation of labor policies?
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LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Holding: The NLRA impliedly excludes managerial employees and the Board
is not now free to read a more restrictive interpretation into the act. (Left the
Board to its own definition, so on remand the result was the same)
Rationale: The Board’s prior decisions as to whether all managerial EE’s are
excluded from the Act were uncertain however the legislative reversal of the
Packard decision that allowed foremen to form their own unit makes the
Douglas dissent most pertinent
o Packard sought to change industrial philosophy, minimizing the
conflict between management and employees in favor of overall
conflict b/w all employees (including mgmt.) and Company stock or
bond-holders. If Congress had intended such a shift then it would have
said so.
o Packard was a major factor in Taft-Hardley, and although the Senate
and Congress could not agree as to exactly whom was covered, there
were some thought to be so far outside the act as to make a specific
provision unnecessary: “Labor relations, personnel and employment
dept’s, and confidential employees”
o The Legislative History clearly established that others, higher up the
managerial structure should also be excluded
o The Board had always previously interpreted the act to exclude
managerial employees; and that construction has been unanimously
approved by the COA’s
The Board reaffirmed its definition of Managerial employees on remand:
managerial employees are individuals who formulate and effectuate
management policies by expressing and making operative the decisions of
their employers.
4) Professionals as Managers/Supervisors
Health care and retirement corps. Professions directing of less skilled employees in
the interest of the employer (rejected)
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LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Reasoning:
o Board’s 3-Part Test - Employees are supervisors if:
They hold the authority to engage in any 1 of the 12 listed
supervisory functions,
Their exercise of such authority is not of a merely routine or
clerical nature but requires the use of independent judgment,
Their authority is held in the interest of the employer.
o Independent judgment is statutorily ambiguous re the degree of
discretion required for supervisory status. The Board may thus
determine what scope of discretion qualifies (give Chevron deference).
o The degree of judgment that might ordinarily be required to conduct a
particular task may be reduced below the statutory threshold by
detailed orders and regulations issued by the employer.
o The Board’s categorical exception turns on factors having nothing to
do with the degree of discretion an employee exercises and would
render the exclusion superfluous where every supervisory decision
must rest on professional or technical skill or experience.”
o Board would only apply the limitation on “independent judgment” to 1
of the 12 supervisory functions: “responsibility to direct”—no textual
basis for this construction.
o The Board has never held that a supervisor’s judgment ceased to be
independent b/c it depended on the supervisor’s professional or
technical training or experience.
o Wherever an employee exercises one of the other functions w/
judgment that possesses a sufficient degree of independence the board
invariably finds supervisory status.
o Healthcare & Retirement rejected the Board’s interpretation of “in the
interest of the employer” that was similarly applied only to the same
supervisory function.
Essentially the same limitation where they had argued that the
nurse’s exercise of authority was not in the “interest of the
employer” where they relied on their professional judgment.
o Taft-Hartley changed the Board’s definition of Supervisor to require
only “responsibility to direct” instead of “direction” + one other
function.
o Board wants to include professional employees w/i the Act for purpose
of balanced labor policy
Policy may be sound but cannot be given effect through this
statutory text
Limit the definition of “responsibility to direct” instead to
cover only those who direct employees as opposed to those
who direct the manner of others’ performance of discreet tasks.
See Providence Hospital (1996).
Dissent (Stevens): Should have remanded rather than affirm. (Why remand?
Where the Court did not seem to make a factual determination as to “RTD”
rather it just tried to limit the application of the statute)
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LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Oakwood Healthcare (2006): Another nurse case. Construes the word “assign” as
referring to the act of designating an employee to a place (e.g. location, dep’t, or wing),
appointing an employee to a time (e.g., shift/overtime pd), or giving significant overall
duties/tasks to an employee. The decision/effective recommendation of assignments can
be a supervisory function. Choosing order is not assigning. For direction to be
“responsible,” the person directing must be accountable for the performance of the
task (adverse consequences? Show that the employer delegated to the putative
supervisor the authority to direct the work and the authority to take corrective action,
and prospect of adverse consequences.) Must spend a “substantial portion” of work
time performing these functions.
Miss. Power & Light (1999): Power plant dispatchers “direct field employees in
repairing faults and performing switching procedures, set priorities for work requests
and orders, coordinated the response of trouble-shooting personnel, etc. Board
determined dispatchers are nonsupervisory. Still nonsupervisory after Oakwood
Healthcare? (Any adverse consequences for employee not completing duties?)
§ 9 (a) provides that once a union has been selected by a majority of employees in the bargaining
unit, it has excusive authority to represent all employees in the unit—whether or not they are
members of the union.
o Court’s created a reciprocal duty of fair representation as an accompaniment to exclusive
representation rights
o Duty extends to:
Negotiation of the CBA, and
Its administration, grievance and arbitration procedures, etc…
Statutory duty to bargain imposes corollary obligation to meet w/ the reps of its employees and
proceed to negotiate a CBA.
o Employer may not deal w/ any other agent and may not neg. terms w/ employees on an
individual basis.
o Must act in a way that suggests a serious regard for workers’ pref. for coll. Bargaining.
o Be avail. for mtgs or have agents there w/ authority to bind the employer in agreements.
o Once agreement is reached, the employer must not unreasonably delay execution.
o Good-faith bargaining obligations also on the union.
Taft-Hartley § 8(d) “policy of voluntarism” – the duty to bargain does not mean a party has to make
concessions or even reach an agreement.
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LABOR LAW OUTLINE—LYNCH—SPRING 2011
THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
BIG QUESTION: Are CBAs a series of constraints on employer’s discretion, or does it give
employees individual rights? Also, what is the remedy and who is liable, the union or the employer?
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THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
o Direct Dealing: Employers and employees may deal directly with one anther BUT at all
times the CBA must be paramount and the employer may not undermine the bargaining
power of the representative.
NLRB v. Gen. Elec. (2d Cir. 1969): Employer must deal with the employees through
the union not with the Union through the employees. “The fundamental inquiry is
whether the employer has chosen to deal w/ the Union through the employees, rather
than w/ the employees through the union.”
Toledo Blade Co. (1989): A management rights clause, allowing an employer to offer
retirement and separation incentives at their discretion was lawful. (Reversed sub
nom.)
Retlaw Broadcasting Co. (1997): “By allowing the employer to bargain directly w/
its employees, Toledo Blade’s proposal deprives the Union pro tanto of its central
statutory role as their rep in dealing w/ the Employer”
o Employer Communications: § 8 (c) protects the employers rights to communicate its views
about labor issues, presumably including bargaining proposals, to employees in a non-
coercive fashion.
Am. Pine Lodging Nursing & Rehab Ctr. (NLRB 1997): Simultaneous
communication of offer to union and employees was direct dealing b/c union had no
opportunity to consider the proposal 1st.
Allied Signal. Inc. (NLRB 1992): Direct solicitation of employees views as to
working conditions and wages was unlawful where it is likely to erode union’s
position as employees’ bargaining rep.
Ryan Iron Works, Inc. (4th Cir. 2001): Employers solicitation of employee views on
a laundry list of issues that were the subject of negotiations was an unlawful attempt
to “gain intelligence” on employees’ views and to gauge the level of support for a
particular position, undermining the union’s exclusive right to perform these
functions.
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THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
Union Buffalo Mills Co. (NLRB 1944); Wash. Alum. (1962): The NLRA may protect
employees who act in support of a demand that the employer meet w/ their non-
majority labor org.
Q remains as to whether the act requires employers to bargain with non-majority
labor orgs.
Mooresville Cotton Mills (NLRB 1937): the Board seems to be consistently
saying that § 8(a)(5): Only a ULP to refuse to bargain collectively with the
representatives of his employees subject to the provisions of § 9 (a).
Maybe only necessary to refrain from disciplining?
Problem with mandating collective bargaining with non-majority groups is the
escalation of bargaining costs for the employer
Possible solutions:
o Bargain only with the orgs w/ the most members and then impose the
agreements on the other groups
o To obtain consent of the minority labor orgs to bargain jointly
A union breaches its duty of fair representation only when its conduct toward a member of the
collective bargaining unit s “arbitrary, discriminatory, or in bad faith.”
First emerged from cases where the union itself was involved in racial discrimination.
Steele v. Louisville & Nashville RR (1944) – black firemen excluded from Union membership
o Facts: The U (under the RLA) negotiated a discriminatory CBA where
they sought to exclude blacks from the service as firemen and prevent
them from being promoted or attaining seniority. Blacks could not join
the Brotherhood, nor were they noticed of the new agreement or given the
opportunity to be heard, and yet the U represented them. A new CBA
restricted blacks from serving as firefighters.
o Holding: The language and purpose of the RLA expresses the aim of
Congress to impose the duty of fair representation for all members of
the class of employees, w/o hostile discrimination, on the Bargaining
representative. The Rep. that thus discriminates may be enjoined form so
doing and its members from taking the benefits of the discrimination.
o Reasoning:
The power bestowed on the organization is similar to that of a legislature and is
subject to constitutional limitations.
For the Black firemen the authority of the Brotherhood to act for them comes through
the Act and not through their action or consent. W/o a reciprocal duty to the class
members, minority members are left with no means of protecting their interests.
The Organization, when chosen as the bargaining representative, represents all the
class members and not just the majority and is to act for and not against those whom
it represents.
While the statutory representative may have to bargain and make Ks that are
unfavorable to some of its members, the variations in terms of the K must be based
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THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS
on differences relevant to the authorized purposes of the Act (e.g., seniority and
competence, not race which is irrelevant and invidious).
o This rule applies in non-constitutional contexts, involving statutory rights.
NLRB’s Miranda Fuel Doctrine (1962): Employer dropped employee to bottom of seniority list
(not req. in the CBA) for beginning an extended leave of absence 3 days early.
o The Union’s failure to represent fairly an individual employee or group in the bargaining unit
may be a union ULP in violation of § 8(b)(1)(A).
o 2d Cir. denied enforcement of Miranda Fuel, but the doctrine was subsequently adopted
by later courts and eventually S.Ct. in Vaca v. Sipes.
Contract Negotiation
Air Line Pilots Ass’n v. O’Neill (1991) - final K only evidence of BDFR if CRAZY
o Facts: Bitter 2-year strike between ALPA and Continental lead to
settlement that allowed striking pilots to: 1) return to work and
submit bids for jobs, 2) accept severance package, or 3) maintain
claims against the airline and be reinstated only after all the working
and option 1 pilots had been reinstated. Group of pilots sued Unions
alleging arbitrary treatment toward striking pilots. SJ granted and
then reversed in COA.
o Holding: Arbitrariness Standard for BDFR---When the final product of the bargaining
process may constitute evidence of a breach of duty only if it can be fairly characterized as so
far outside a wide range of reasonableness that it is wholly irrational or arbitrary.
o Reasoning: The Vaca v. Sipes DFR applies to K negotiation AND administration. The union
breaches its duty only when its conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.
The COA’s arbitrariness test (arbitrary b/c left strikers worse off) allowed too much
review of the settlement. Congress did not intend to allow courts to substitute their
own view of a proper bargain for the Union.
Court’s relationship to Unions like its relationship to the legislature and it
must show broad deference.
This settlement was not irrational, discriminatory, or arbitrary:
While its true the Union may have mad a bad settlement, this is sometimes
better than even a good lawsuit.
Some form of allocation inevitable. A rational compromise was made. Didn’t
rise to level of invidious “discrimination” of the kind prohibited by the DFR.
1/3 of the pilots chose severance, so it clearly benefitted those pilots.
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There was no indication that the airline would accept bids following a union
unilateral return to work, where the strikers still had claims against the airline
—settlement may have been necessary condition of the return to work.
Settlement still preserved seniority, just dictated the terms of reinstatement.
o No breach of K, only a breach of DFR, if any. Continental didn’t have to take ANY striking
pilots; the agreement at least gave them a chance. T/f it was rsbl, even though the deal may
have only been cut so that the Union could remain in existence. COA had hindsight bias.
o TENSION: Can the Union sacrifice the interests of some members (here 2/3) for the benefit
of others, or the union’s bargaining position in the long run? Still a duty to represent the
entire group, not just the majority (Steele).
Does a Union Breach Its Duty When It Sacrifices the Interests of Employees in One Bargaining
Unit to Serve the Interests of Employees in Other Units?
o Aguinaga v. UFCW (10th Cir. 1993): Rodeo plant case. Union trying to protect a broader
standard of wages across plants but did so by sacrificing the Rodeo plant employee’s in a
confidential side-letter agreement. Agreed to drop a ULP against the employer to keep wages
up.
o UAW v. Caterpillar: Involved different employers. The Union takes away competition for
labor, and the Union is trying to protect the higher wages. Caterpillar’s union employee’s
were fired and replaced with non-union workers. No BDFR b/c rational activity by the union
to protect workers for competitors’ wages (did to protect Deere workers’ wages).
Barton Brands, Ltd. v. NLRB (7th Cir. 1976) - arbitrary violation of DFR
o Facts: Merger b/t Glencoe and Barton, assuming Barton would open a
new plant. Only 12 Glencoe employees were working. Three options
for incorporating Glencoe employees into the seniority structure:
Endtailing: Putting Glencoe employees at the bottom because
they are considered new employees for Barton.
Dovetailing: Put workers together with the same seniority they
had before with each company.
Slot-system seniority.
After plant fell through, a new agreement was made where they switched to endtailing
and Glencoe employees were laid off. G.C. filed ULP against the union and the Board
reversed the ALJ finding that the switch was largely to advance the political cause of
union official.
o Holding: Seniority decisions may be made within a wide range of reasonableness in serving
the interests of the unit but may not be made solely for the benefit of a larger, more
politically favored group over a minority group—arbitrariness violating the DFR.
The change was arbitrary. It’s not that seniority rights were vested, but the
employee’s relied on the first agreement, so the union must have a good reason to
change it.
o Reasoning: The substantial evidence supported the Board’s determination that the endtailing
served to further the political capital of the Union leaders, but does not support that their
conduct was attributable to the Union.
Two-Tier Agreements: Lower wages for new employees. Create tension. The union is
sacrificing its duty to new workers to protect wages of current workers.
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There is substantial evidence to support the Board’s determination on other grounds
so must remand.
Equal and Principled Democracy as Model for the DFR? Proposed “objective test” for breaches
of DFR.
o Facial validity: Union decision based on an “illegitimate asserted purpose---one that is either
unlawful or facially inconsistent w/ the equal respect requirement---violates the governing
norm and must be invalidated.
o Credibility: Whether the asserted justification was in fact the cause of the U’s decision.
Note: Bargaining for Retirees - Vested retirement rights may not be altered w/o the pensioner’s
consent. Pittsburgh Plate Glass. GM Case: The rights of GM retirees were not protected under a
court certified settlement class action calling for reductions in retiree’s health benefits.
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Grievance Procedure
o Could pay for own atty and take to arbitration yourself (Union would have to pay for atty).
HOWEVER, concern that the union will further discriminate and not take non-member’s
grievances forward.
Should the union have this much control? Is there enough protection?
o Remedy: Union can’t be liable for all damages. Employer initially unjustly dismissed the
worker, why should the union have all the liability? Must allocate b/t union and employer.
Remedy before Board is joint and several (fn. 18).
S.Ct. says apportion liability. Need to sue Union and Employer to get a complete
remedy.
FRAMEWORK
(1) DFR - Is there a breach of DFR? Arbitrary, discriminatory, bad faith?
(2) MERITS - Is the grievance meritorious?
If the remedy is to compel arbitration, then the Union would represent
the employee! It’s a morass.
What does the NLRA create? Rights run to the Union, not the individual VS. CBA are restraints
on employer discretion. BOTH cut against individual rights in employees.
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o The RLA does create individual rights and recognizes them as such. Railway workers have
the right to pursue own grievances to an adjustment board. A U’s authority to settle a
grievance thus requires actual authority, granted by the individual or derived from the union
constitution or custom or usage.
Idea of arbitrator’s having specialized knowledge: Knows the shop, plant, industry, and the
specific CBA. Lynch was one and never had any special-industry knowledge.
Note: Hines v. Anchor Motor Freight, Inc. (1976): Drivers discharged for padding motel bills.
Union takes to arbitration. Employees lose. Employees try and get counsel to get a rehearing
accusing the motel owner of doctoring the records and pocketing the overcharges. Fail. The drivers
sue for breach of K’s “just cause” provision and of the U’s DFR. In a deposition the motel clerk
confessed to falsifying the records. Does the decision of the arbitrator bind the employees in this
situation? The S.Ct. decides whether or not the employer should be protected
from damages in this case b/c of the finality of the arbitration, or if the union
caused the problem by failure to investigate. Who is on the hook? The S.Ct.
says the employer is still on the hook for a § 301 breach of K. Extending Vaca,
they declared that a BDFR, “if it seriously undermines the integrity of the
arbitral process, removes the bar of the K’s finality provisions. Comes back
down to deal w/ DFR.
o Is the S.Ct. implying negligence is enough? Or not b/c it was about the employer. This case
will probably settle b/c employees will get their jobs back. Who pays damages won’t get
resolved in this case. Employer still wound up on the hook; not relieved just b/c of the
finality of the arbitration.
Intraunion Division of Interest: Smith v. Hussman Refrigerator (8th Cir. 1980) - Union goes in
saying people should be promoted by seniority. Employer comes back and says no - don’t want to be
constrained (ability/skill). K clause reads “skill and ability being relatively equal, then promoted
based on seniority.” Posted four job openings and went to junior employees. Union grieves, and
senior employees win in arbitration. Didn’t tell junior employees about arbitration (so those
employees didn’t get heard). Assume they are protected by the employer who promoted them in the
first place? But the employer has a lot of other things at stake. Is there a BDFR? How does the union
work w/ these inevitable conflicts when it comes to promotions? This makes it to a jury.
Grievance-swapping: Negotiating out agreements to settle individual cases. Two cases - both the
union thinks it would probably lose both of them in arbitration, agreement that one employee be
reinstated and one employee’s discharge would stand. Courts will scrutinize carefully and may find
a BDFR.
Breininger v. Sheet Metal Workers’ Local Union No. 6 (1989) - union hiring hall case
o Facts: Local Union, pursuant to multiemployer CBA, operates hiring hall
through which it refers both members and nonmembers of the union for
construction work. Union has list of individuals who wish to be referred to
jobs, employers contact union for workers and the union begins at the top of
the list to fill the request (unless employer names particular employee).
(Employer retains right to hire outside hiring hall.)
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P alleges the union breached its DFR and violated the LMRDA by discriminating
against him in job referrals (and refused to process his internal union grievances) as a
result of his political opposition to the union’s leadership.
Problem - No breach of a CBA b/c not alleging that the employer did
anything, alleging the Union did it. No § 301 suit here. Lower courts had said
this is a § 8(b) violation, of which the NLRB has exclusive jurisdiction. Can’t
get as good a remedy w/ NLRB than in Court (back pay vs. damages).
The D.Ct. held there was no jurisdiction b/c “discrimination in hiring hall referrals
constitutes an ULP” over which the NLRB has exclusive discretion.
The COA affirmed, stating that the employee must allege a breach of K to get before
a court, and no LMRDA breach b/c the referrals are available to union members and
nonmembers and refusals to refer are not “discipline” w/i the meaning of the
LMRDA.
o Holdings:
There is no rule that exclusive jurisdiction lies w/ the NLRB over DFR suits whose
hypothetical accompanying claim against the employer might be raised before the
board. T/f the court has jurisdiction over the BDFR by the Union.
Hiring halls have the duty of fair representation even though they are functioning like
employers and are providing a service for members and nonmembers alike.
o Reasoning:
Jurisdiction - Vaca applies and the reasoning in no way implies that a DFR action
requires a concomitant claim against an employer for breach of K.
The situation, however, is different. In Vaca, BDFR was a necessary
component of the § 301 claim, whereas here a suit against the union need not
be accompanied by an allegation that an employer breached the K, since
whatever the employer’s liability, the employee would still retain a legal claim
against the union.
B/c fed’l court jurisdiction exists over a DFR claim REGARDLESS of
whether it is accompanied by a breach of K claim, and b/c a DFR claim is a
separate c/a from any possible suit against the employer, the court declines to
adopt a rule that exclusive jurisdiction lies w/ the NLRB.
DFR Claim Merits - The court rejects the union’s argument that a BDFR should be
defined in terms of what is a ULP. The court refuses to narrow what a BDFR is.
The DFR is not intended to mirror the contours of § 8(b); rather, it arises
independently from the grant under § 9(a) of the NLRA of the union’s
exclusive power to represent all employees in a particular bargaining unit.
A Union gets status as a board-certified bargaining representative for the
power and ability to refer workers for employment through a hiring hall.
Together w/ this authority comes the responsibility to exercise it in a
nonarbitrary and nondiscriminatory fashion.
o Doesn’t matter that the hiring hall resembles what an employer would
do. Key is that the union is admin. a provision of the K.
o “The undoubted broad authority of the union as exclusive bargaining
agent in the negotiation and admin. of a CBA K is accompanied by a
responsibility of equal scope, and the responsibility and DFR.”
o This decision is arguably attributable to Local 357, Teamsters v. NLRB, which limited the
Board’s authority to regulate union hiring halls.
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o Negligence: United States v. Rawson DICTA. Mere negligence in the hiring hall context
does not violate the DFR. “[A] union must operate a hiring hall w/ ‘objective, consistent
standards,’ w/o discrimination, and w/o ‘causing or attempting to cause an employer to
discriminate against an employee,’” but one unintentional act of maladministration does not
contravene “heightened duty standard.”
Still an open question.
o Question now: How does this obligation to arbitrate under CBA get enforced? Does it have
as a counterpart that the union agrees not to strike?
o For industrial peace, want to endorse arbitration clauses and no-strike clauses.
o Until 1947, problems re: suing unions (b/c don’t have particular citizenship). Need a method
of creating jurisdiction. Taft-Hartley Act fixes in § 301(b). Union as entity and fed’l courts
have jurisdiction to hear cases to enforce arbitration.
Creates jurisdiction but what about fed’l question? No EXPLICIT authorization from
Congress to do so. Implied?
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Textile Wkrs. Union v. Lincoln Mills of Ala. (1957) - judicial enforcement of arbitration
o Facts: CBA agreed no strikes or work stoppages and specific grievance
procedure (leading up to arbitration). Employer refused to go to arbitration
and the union seeks to compel.
D.Ct. ordered the employer to comply.
COA reversed holding that although the court had jurisdiction, they
did not have authority to grant the relief.
o Holding: The fed’l courts may issue injunctions to compel arbitration under § 301 fed’l
common law (labor policy driven now) b/c N-L antiinjunction provision was aimed at union
breaking and not compulsion of peaceful settlement of labor disputes.
o Reasoning:
§ 301 of the LMRA -
301(b) makes it possible for a labor org. (as an entity.to sue and be sued in
fed’l courts. 301(a) supplies basis for jurisdiction and apply the procedural
rule of 301(b).
Issue is whether 301(a) is more than jurisdictional.
The agreement to arbitrate was plainly a quid pro quo for the no strike clause
Act expresses fed’l policy that fed’l courts should enforce CBAs for
industrial peace. It would undercut the act and defeat its policy if read 301 too
narrowly as only conferring jurisdiction.
Substantive law of § 301(a) - LMRA says what the parties may or may not do in
certain situations. Courts should fashion remedies by looking at the policy of the
legislation for parts that lack express statutory mandates. This is fed’l law, not state
law.
Creates fed’l question jurisdiction. Fed’l common law re: enforcement of
CBAs.
Norris-LaGuardia -§ 7 did not withdraw Jd. to compel arbitration of grievances.
Stiff procedural requirements for injunctions in labor disputes---must be serious threat
of violence (fed’l courts breaking back of union efforts to organize by issuing
injunctions/TROs in labor disputes by using antitrust laws). The failure to arbitrate
however was not part of the abuses the Act was aimed, t/f no reason to apply the
procedural requirements for enforcing CBAs.
Unt’d Steelworkers of Am. v. Am. Mfg. Co. (1960) — You must Arbitrate!
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o Facts: P just got partial disability and now wants to go back to work (basis for claim of
disability is that you can’t do the work!). P seeking to compel employer to arbitration.
Employer defended on the grounds that: (1) P is estopped b/c had a few days previously
settled a worker’s comp claim against he company (permanently partially disabled), (2) P not
physically able to do the work, (3) P’s claim not arbitrable under the CBA.
CBA said mgmt. could discharge any employee for cause, including “reason that
would tend to reduce or impair the efficiency of plant operation . . . [or for] lack of
work.” Seniority provision said that employer would employ and promote employees
“where ability and efficiency are equal.”
P left work due to injury and sued for compensation benefits. Settled case w/ Ps’
physician saying he was 25% disabled. Two weeks later filed grievance for seniority
provision.
D.Ct. - estopped (permanent partial disability). COA - affirmed b/c frivolous suit.
o Holding: The dispute was to the “meaning, interpretation, and application” of the CBA,
and should go to arbitration without regard to merits of the claim.
o Reasoning: Courts have no business weighing the merits of the grievance because the
agreement was to submit ALL claims to arbitration not just those the courts deem
meritorious. The policy of the LMRA can only be carried out if means of settlement are fully
carried out. CBA requires arbitration of claims that courts may be unwilling to entertain.
Common law of the shop that arbitrators are better equipped to entertain and the arbitrator’s
judgment is bargained for. There is NO exception in the “no strike” clause and t/f none
should be read into the grievance clause. Cites therapeutic values of claims going to
arbitrator (employees voice is heard; good for workplace; keeps courts out of it).
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the Labor context whereas in the commercial context it is merely the substitute for
litigation.
CBA is more than a K; it is a source of common law. It covers the whole
employment relationship and states the rights and duties of the parties. It is a
generalized code to govern cases that can’t be anticipated in the employment
relationship. Can fashion rules for the particular industry or plant.
Grievance is the terminal point for a disagreement, part of the continuous bargaining
process. Arbitrators are chosen by agreement b/c of their special knowledge and their
trust in his personal judgment.
§ 301 assigns the courts the duty of determining whether the party has breached his
promise to arbitrate. But inquiry must be confined to whether the party did agree to
arbitrate or did agree to give the arbitrator the power to make the award he made
(unless agreement CLEARLY says arbitrator should do this as well). Presumption of
arbitrability = Doubts should be resolved in the favor of coverage.
Even explicit language must be interpreted (e.g., what is subcontracting??).
Seems to leave the door open for highly explicit clauses to keep from
arbitration. Still vagueness; whenever a claim as to interpretation of even
highly explicit language would have to go to arbitration. Hard to draft
clauses that really keep things out of arbitration.
“Strictly a function of mgmt.” must mean that over which the K give mgmt. complete
control and unfettered discretion.
o Concurrence: Courts’ inquiry should go broader.
o Q: Does the arbitrability effect what the arbitrator then does w/ the merits of the case? Can
the CBA say, “We agree frivolous grievances cannot go to arbitration” to invite courts to
review? Efforts to K around arbitrability are not easy to do, not well received by the courts.
Must do explicitly enough, b/c if ambiguous, the court will send to arbitration.
The Trilogy: Am. Mfg.; Warrior & Gulf Nav., and Enterprise Wheel & Car (p. 29) form the
“steelworkers’ trilogy”—all 3 were decided on the same day by the Court:
o Hands off attitude of the courts toward arbitrable disputes also extend to the scope of judicial
review afforded to arbitration awards
o The merits of either the grievance or the arbitration award are irrelevant when a federal court
is asked to enforce an arbitration agreement or an award there under
Judicial review is limited to whether the award “draws its essence” from the
collective agreement.
If the award was within the authority conferred upon the arbitrator by the agreement
then it is final and binding
Cox, Reflections Upon Labor Arbitration (cited in case) - Form/system of industrial self-gov’t,
where parties on ongoing basis working together to develop rules to govern the workplace. But can’t
write everything down. Let arbitrators write in common law of the shop. Arbitration not truly
precedent, but like it. If parties don’t like it, they can always bargain around it.
Parties may expressly agree to resort to economic warfare rather than to mediation, arbitration, or
judicial review, but the statute does not favor such an agreement. (Despite policy of the Act and
basis for presumption for arbitration).
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“Procedural Arbitrability” - Court is to determine substantive arbitrability (w/ presumption for
arbitrability) but what about procedural? Determination of whether procedural prerequisites to
arbitration set forth in the labor agreement have been met. — Customary to go to the arbitrator, but
watch out — If the procedural requirements are a substantive, bargained for provision, then it may
go to the courts
o Substantive: is the substance of the issue itself subject to arbitration.
Court has § 301 authority to decide if employer breaching K by not going to
arbitration. They do so by applying the presumption of arbitrability.
o Procedural: have you gone through all steps of grievance process, are there any other K
requirements to get to arbitration?
o John Wiley & Sons v. Livingston (1964): Court held this determination should be left to the
arbitrator. The procedural questions grow out of the dispute and bear on its final
disposition---always involves the arbitrator interpreting the K, and separating the procedural
from the substantive creates opportunity for deliberate or well-intentioned delay.
o Operating Engineers Local 150 v. Flair Builders (1972): The arbitrator should resolve the
employer’s claim that a union demand to arbitrate was barred by laches b/c the union had not
demanded arbitration for 3 yrs after the alleged breach.
Powell, dissenting, didn’t like that the majority vested in arbitrators the historic
jurisdiction of the courts to determine fraud/duress in the inception of a K.
VOID!
Broad arbitration provision = “Differences that
111
may arise b/t the parties hereto regarding this
Agreement and any alleged violations of the
Agreement, the construction to be placed on any
clause or clauses of the Agreement shall be
determined by arbitration in the manner hereinafter set forth.” Dispute over board
certification (if de-certified, employer no longer has to bargain but Union wins by 1 vote) -
Owner tested certification by refusing to bargain to get it up on appeal – A year after exp.
laid off ten employees w/o notice to the union (included six of the eleven most senior
employees).
Union filed grievances for breach of K providing that “in case of layoffs, lengths of
continuous service will be the determining factor if other things such as aptitude and
ability are equal.” Owner refused to arbitrate at all.
NLRB found that O had duty to bargain and violated § 8(a) by refusing to do so. Also
said violated §§ 8(1 - interfering w/ rights in section 7) and (5 - refusing to
bargain . . . must bargain over effects of layoffs) for unilaterally abandoning
grievance procedure. BUT said dispute arose after the K had expired and no
indication that the parties contemplated that such rights could ripen or remain
enforceable after the K expired. Ordered limited grievance procedure w/ backpay
remedy.
COA said the dispute did arise under the Agreement, so must arbitrate.
o Holding: A post-expiration grievance can be said to arise under the K only where it involves
facts and occurrences that arose before expiration, where an action taken after expiration
infringes a right that accrued or vested under the agreement, or where, under normal
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principles of K interpretation (appears to mean if the parties when they do post-expiration
bargaining appear to be treating the K as continuing - implied duty to arbitrate and no-strike
clauses), the disputed contractual right survives expiration of the remainder of the
agreement.
The layoff provision here does not arise under the K.
o Reasoning:
ULP if, w/o bargaining or impasse, employer unilaterally changes an existing
term/condition of employment. Also applies when existing agreement has expired and
negotiations on a new one haven’t been completed. Some terms, however, do not
survive expiration of the K (union security and dues check-off provisions & no-strike
clauses).
Hilton: arbitration clauses are excluded from the prohibition on unilateral changes b/c
arbitration is no compulsory; it is by agreement.
Parties can consent to post-expiration arbitration.
CBA can eliminate any hiatus b/t agreements/remain in effect until
bargaining.
Nolde: Severence-pay and vacation-pay case. S.Ct says those rights are like vested
rights, presumption in favor of post-expiration arbitration of matters UNLESS
“negated expressly or by clear implication” . . . BUT arbitration is of matters and
disputes arising out of the relation governed by K.
Can’t decide matter arises out of the K unless you interpret the K!
Whether or not a company is bound to arbitrate, as well as what issues it must
arbitrate, is a matter to be determined by the court, and a party cannot be forced to
arbitrate the arbitrability issue.
Layoff provisions don’t arise under the K b/c factors such as aptitude and ability do
not remain constant, but change over time, only determined by matching an
employee to the requirements of the business at that time.
FN 4 - Union could argue that in practice the failure to lay off in inverse order
of seniority if aptitude/ability were equal amounted to an ULP as unilateral
change, but this is not before the court.
o Dissent (Marshall): It isn’t the seniority rank or the right to job security that vests, but the
right to have the standard of seniority applied to layoffs. This is a right under the K.
o What happened to the presumption of arbitrability? Why invite courts to determine the issue
of arbitrability?
6 Years from ALJ to NLRB?: Board can use § 10(j) to get injunction to stop the employer from
ULPs.
Utd. Steelworkers of America v. Enterprise Wheel (1960) - effectuation of the parties’ intent
o Facts: CBA provided that any differences as to the meaning and application of the CBA
should be submitted to arbitration. Arbitration agreement and provision stating “[s]hould it
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be determined by the Company or by an arbitrator . . . that the employee has been suspended
unjustly or discharged in violation of the provisions of this Agreement, the Company shall
reinstate the employee and pay full compensation at the employee’s regular rate of pay for
the time lost.” Employees were fired and it went to arbitration.
Arbitrator found that the discharge was not justified though their conduct was
improper (only warranted suspension). CBA expired before it went to arbitration, but
arbitrator held that that provision above imposed an unconditional obligation on the
employer.
Arbitrator awarded reinstatement w/ back pay minus 10-day suspension and sums
received by the employees through other employment. Employer refused to comply.
COA held there were defects in the award (how much deducted is too vague), no back
pay can be awarded after the CBA expired, and reinstatement unenforceable b/c CBA
expired.
o Holding: Courts cannot overrule an arbitration award if it can rsbly
be interpreted as coming out of the CBA itself. couch in CBA terms
o Reasoning:
Holding reflects fed’l policy of settling labor disputes by arbitration. Respect finality
of arbitration.
Arbitrators need flexibility to deal with situations the draftsman of the CBA could
not have anticipated
However they are confined to interpretation and application of the agreement and
The award is legitimate only so long as it draws from the CBA.
Arbitrators must just couch the opinion in terms of the CBA, then courts will
not/should not reverse. This is consistent w/ the FAA (courts should not
overturn arbitrator’s except in instances of bias, fraud).
Arbitrator’s opinion was ambiguous (was it based on legislation or on the CBA?)
BUT that’s not a reason for refusing to enforce the award.
It is not apparent that he went beyond the submission and there is no reason to
assume that he abused the trust of the parties
The COA’s opinion was not based upon any finding that the arbitrator did not
premise his award on this construction of the contract, it merely disagreed
with his construction of the K
The EE’r’s proposed reading would require the courts to review the merits of every
construction of the K, even under the standard arbitration K, and destroy finality of
the arbitration.
“It is the arbitrator’s construction which was bargained for; and so far as the
arbitrator’s decision concerns construction of the K, the courts have no business
overruling him b/c their interpretation of the K is different from his.”
K around - Can always renegotiate rules to constrain the arbitrator.
Circuit courts use language from the opinion to find an implausible interpretation of a CBA has been
decided and hence reflects the arbitrator’s “brand of industrial justice.” Sixth Cir. refuses to enforce
an award when: (1) conflicts w/ express terms; (2) imposes add’l requirements not expressly
provided for in the agreement; (3) not rationally supported by or derived from the agreement; or (4)
it is based on general considerations of fairness instead of the exact terms of the agreement.
o What about external law? E.g., employee w/ disability, statutory duty to do accommodation,
but violates CBA rights of another employee. Is this the “essence” of the CBA or have you
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gone outside CBA—what if arbitrator gets external law wrong. Sometimes must integrate
external law into the decision.
o More and more CBAs are incorporating Title VII, creating the question of whether the
employee must go through grievance proceedings to protect their rights (can they just go to
court under Title VII?). CBAs aren’t supposed to create individual rights, but statutory
rights are!
Judge Hays’ indictment of arbitration: Many cases aren’t decided by the K ---- arbitrator has
incentive to protect employability. Will split the baby when they can to preserve their track record,
bring in outside factors such as the “common law of the plant”, and many are unqualified or lacking
in character.
Even when the arbitrator’s award may properly be vacated, the appropriate remedy is to remand the
case for further arbitration proceedings. MLB Players’ Ass’n v. Garvey (2001).
Misco: Worked w/ sharp blades. Had MJ in house away from work during police search.
During evening, the grievant went out to cars in parking lot. Employer found him in the
parking lot in car in company property, sitting in back seat and joint still smoking was in
front seat. He was fired. Arbitrator says not enough proof it was his. D.Ct. reversed.
S.Ct. said you bargained for arbitrator to decide these issues.
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o Where 2 political bodies have created a detailed regulatory scheme the
courts should approach with caution pleas to divine further public
policy in that area.
There is no regulation that says 2x mandates discharge. Ct wants express
language, will not infer a public policy to go beyond the already detailed and
careful scheme created by the other branches.
Concurrence (Scalia): The court leaves a crack—“we agree, in principle, that courts’
authority to invoke the public policy exception is not limited solely to instances
where the arbitration award itself violates positive law.” He thinks the court should be
clearer, that the award MUST violate positive law.
No-Strike Obligations
What do you do w/ a broad arbitration clause (must go to arbitration) and a narrow/limited no-
strike clause: “the employees agree not to strike when the agreement is in arbitration.” Trying
to preserve right to strike to enforce rights. Does the union have the choice to do one or the other?
Teamsters v. Lucas Flour (1962): CBA contained arbitration clause providing that “during such
arbitration, there shall be no suspension of work” but did not expressly bar midterm strikes. The
Court held that there was an implied no-strike obligation and upheld a judgment for damages caused
by a strike.
o Black, dissenting, says court changed the nature of the K by adding new promises that the
parties themselves refused to make to better fit into the public policies the court believed to
be so important.
Boy’s Markets, Inc. v. Retail Clerks Union (1970) — State Courts and Fed. May enjoin strikes
o NO LOSS OF CONCURRENT JURISDICITION
o § 4 of the Norris-LaGuardia Act - dilemma now for the S.Ct. - model of duty to arbitrate
and quid pro quo implied no strike clause. How do courts get around N-L to issue an
injunction to stop a work strike in a labor dispute?
Congress enacted § 301, assumed concurrent jurisdiction in state courts. Decided
there would be fed’l common law to interpret CBAs, then decided b/c fed’l CL could
remove from state court to fed’l court (if you were the union). State courts are not
constrained by the N-L Act (BUT first thing Union will do is remove to fed’l courts).
Congress did not intend for that to happen.
Strange argument that Congress didn’t intend to do something as justification
that no-strike clauses and arbitration clauses -- we can enjoin.
o Facts: Frozen food packagers and employer had no-strike
provision and broad arbitration provision. After dispute over
Union work done by non-Union supervisors and staff, union
held strike and boycott anyway. Employer filed for TRO and
injunctions, state court issued TRO. Union then moved to fed’l
court (fed’l Q jurisdiction under § 301, removed under § 1441)
and so the employer moved to compel arbitration.
o Issue: Whether fed’l courts, after removal of a § 301 action,
are prohibited from issuing injunctionsby the N-L Act, when
state courts are not.
MANDATORY!
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o Holding: Overruled Sinclair. Narrow holding that Fed’l courts may issue injunctions, or other
equitable relief, to stop illegal strikes in cases involving mandatory arbitration clauses in
the CBA.
Dispute must be arbitrable.
o Reasoning:
Lincoln Mills: Apply federal law, which the courts must fashion from the policy of
our national labor laws to § 301 (a) suits.
Union could obtain specific performance of EE’r’s duty to arbitrate
Steelworker’s Trilogy: emphasized the importance of arbitration and cautioned the
lower courts against usurping the functions of the arbitrator.
Charles Dowd Box Co.: Congress clearly intended not to disturb the preexisting
jurisdiction of the state courts over CBA violations.
Lucas Flour: upheld State court dmg’s award to EE’r for violation of no-strike clause
(not an injunction)
The effect of Avco (that state §301 cases can be removed to fed’l court) was that it
ousted state courts of their jurisdiction in suits involving injunctive relief for breach
of a no-strike obligation. Ds will always remove to fed’l court if feds can’t issue
injunctions.
BUT § 301(a) was meant to supplement (as an alternative) and not encroach
upon the preexisting jurisdiction of the state courts.
Need uniformity in the labor laws and this was unintended function of removal, not
the deprivation of state court’s injunction power.
Extend Sinclair so that state courts can’t issue injunctions either? (1) Congress never
tried to do this in N-L A or § 301; (2) would have “devastating implications for the
enforceability of arbitration agreements and their accompanying no-strike
obligations.” Damages aren’t an adequate remedy and would aggravate ind. strife.
Shift in goals of Congress: Shift from protecting labor movement (reason for N-L
injunction prohibtion) now to the “encouragement of CBA and to administrative
techniques for the peaceful resolution of industrial disputes.” Thus the task of courts
to accommodate the older law with the newer law as not to impede the NEW
congressional policy.
Guidance for injunctions adopted from dissent in Sinclair: NO injunctions despite
N-L unless: (1) parties contractually bound to arbitrate in the K AND (2) the
employer should be ordered to arbitrate as a condition of obtaining an
injunction against the strike.
Whether injunctions warranted depends on “ordinary principles of equity”---
whether breaches occur/continue/will happen; threats to breach; irreparable
injury?; suffer more from the denial of the injunction than from its issuance.
o Dissent (Black): SOP argument. Congress hasn’t changed the law even though they’ve had
the opportunity. Involves political and economic interests. Don’t need injunctions to enforce
the K (their effectiveness doesn’t matter for the interpretation of the law).
Do Lucas Flour and Boy’s Market meant that even in the absence of an express no-strike provision,
a fed ct. may enjoin a strike over a dispute that a CBA states shall be exclusively resolved by
arbitration? Gateway Coal v. Untd. Mine Workers (1974) says YES
Buffalo Forge Co. v. Utd. Steelworkers of America (1976) - sympathy strikes - no injunctions
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o Facts: Union represents P&M but not O&T yet. P&M engages in sympathy work stoppage
during bargaining of the O&T employees. Was the no-strike clause meant to include
sympathy strikes. (O&T employees are legally striking for their own CBA.)
Interpretation of the no-strike clause is arbitrable. The dispute isn’t over the
interpretation an arbitrable issue b/w P&M EE’s and EE’r; but the dispute is over
striking in sympathy for Ees who do not yet have a CBA.
o Holding:
The underlying dispute must be a dispute subject to arbitration. Boys Market.
If a court issued an injunction relating to the meaning of the no-strike clause, the
court can only do that by interpreting the no-strike clause. The Steelworker’s Trilogy
holds that that task is for the arbitrator, not for the court.
o Reasoning: Boys Market is distinguished b/c the strike was not over any dispute b/t the Union
and the employer; T/f it was not subject ot arbitration. And the strike had neither the purpose
or effect of denying or evading an obligaton ot arbitrate.
This was a dispute over an interpretation of the no-strike clause. But the union did not
evade its duty to arbitrate.
Injunctions interfere w/ the arbitrator’s pending decision: if the court can enjoin this
strike pending arbitration it could hold hearings, make findings of fact, interpret the
applicable provisions of the CBA, and issue injunctions on any arbitrable issue—not
what the parties bargained for.
o Dissent (Stevens): Issuing an interim injunction does not oust the arbitrator but, given the
ineffectiveness of dmg’s remedy, fulfills a role he never had.
If dispute arises under the K, can still be required to take it to arbitration. If employer won’t go to
arbitration or w/o seeking arbitration, the union wants to pressure the employer, can the Union strike
b/c no-strike clause expires w/ the K. As long as dispute arises under the K, or arguably a vested
right, still a presumption of a continuing duty to arbitrate. Lucas Flour.
Reverse Boys Markets Injunctions. Does N-L permit injunction against an employer from altering
the status quo until an arbitrator decides whether the employer has the authority to do it. Courts have
split, but generally agree that when normal equitable standards are met, injunctions are appropriate
where “necessary to prevent conduct by the party enjoined from rendering the arbitral process a
hollow formality” b/c w/o the injunction in such circumstances an “arbitral award when rendered
could not return the parties substantially to the status quo ante.” Lever Bros.
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interpreting the no-strike clause.
The NLRB’s authority over disputes raising K issues: Board cannot adjudicate CBAs and
adjudicators cannot enforce the NLRA.
o But questions remain where statutory obligations depend on the meaning of the K; or where
the meaning of a provision of the K may depend on NLRA interpretation.
o In Either case, factual determinations may be necessary that would ordinarily be made by an
arbitrator or the Board—so should the parties be able to sue for relief in both, or have to
choose?
Email hypo: How far can employer go regulating employee’s use of employer e-mail? Permits
personal use but won’t allow communication re issues relating to union activity. Violation of § 8(a)
(3). Arbitrator looks at in context of CBA. NLRB looks at in context of whether discriminatory. Q
under deferral doctrine becomes: Should the charge not be filed under the Board forcing the union
and the employee take the dispute to the arbitrator in the first instance?
o After Arbitration - What if arbitrator’s award is inconsistent w/ repugnant to statutory rights
of the employee?
o Is the Board abdicating its responsibility to determine statutory rights by forcing the parties
to use arbitration?
o Early cases were § 8(a)(5) issues: Where employer unilaterally changes (employer duty to
bargain) working conditions in some way during the term of the agreement on a topic not
totally covered by the agreement. [Also arguably violation of the CBA, depending on
interpretation of the CBA, whether the employer had the authority to make the change.]
Were deferring to the arbitrators. Lynch - these cases really were CBA interpretation.
8(a)(1) and 8(a)(3) are really much more complicated (interfering w/ union activity;
discrimination).
A whole body of doctrine re: deferral of other statutory rights to arbitration. E.g., securities, other
areas of the employment field (unionized and nonunionized employees).
o Facts: A worker lost on an issue of title VII rights in arbitration. He then took the same issue
to court.
o Issue: Should the courts defer to arbitration agreements in Title VII cases?
o Gardner-Denver: Arbitration doesn’t waive right to go to court. CBA doesn’t waive
employees right to go to court and court will not apply collateral estoppel over ability to go
to court.
CBAs don’t create individual rights. Title VII IS an individual, independent right.
Union can’t waive (1) substantive right or (2) right to go to court.
Arbitrator’s decision may be admitted as evidence in fed’l courts. But the court
considers claims de novo.
o Gilmer: Employees in securities industry could be required, as condition of employment
(nonunion setting), to agree that disputes arising from their employment would be resolved
through binding arbitration, and waive their right to judicial forum.
Gardner-Denver distinguished b/c concern w/ tension b/t collective representation
and individual statutory rights not applicable to facts of present case.
Case decided under the FAA - binding arbitration applicable, enforceable, in binding
K.
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o Wright: Any such union waiver (from Gilmer) must be clear and unmistakable. No waiver
when K at issue provided for arbitration of “matters under dispute” and did not explicitly
incorporate statutory antidiscrimination requirements.
o Circuit City:
o Penn Plaza: The employees as a group who have been getting reassigned say they’ve been
discriminated; take it to the Union. Gets into grievance arbitration then w/draw b/c Union
consented to the grounds of the reassignment and dropped the cause of action. Then
employees go file w/ EEOC.
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o 1980's case Gardner-Denver: Civil rights c/a, the employee complained to the Union. The
Union grieved it; the employee lost. The K didn't say that the employee was forced to
arbitrate statutory rights. Employee goes to court w/ a c/a and Employer argues they can't do
this b/c already arbitrated. Court said the employee could go fwd w/ his c/a.
o Court parallel started making decisions that you can arbitrate statutory rights -- antitrust,
securities, etc.
o Gilmer: Non-Union employment setting, can an employer req. an employee to agree to
arbitrate which includes statutory rights? S.Ct. said yes, you can do that unless the statute
precludes arbitration specifically.
o Could always sue Union for breach of duty of fair representation if you don’t like the
arbitration agreement. Court does a full circle and sweeps into CBA w/ union control. Is DFR
an adequate protection for the individual statutory rights.
Mixing FAA w/ § 301: (1) This employer did not move for arbitration under § 301 to enforce the
arbitration agreement (it was a move under the FAA); so this case involves the FAA, where most
§ of the law re: enforcing CBAs is § 301, not the FAA. The court is drawing in union ideas (§301)
30 into the non-union setting. (2) In addition to DFR, fn. 10 (“and furthermore, when these cases go
1 to arbitration, they are protected from judicial review under the FAA”) - mixing law from
vs. Steelworker’s Trilogy (fed’l common law of § 301 re: finality), the FAA is similar looking but
FA does deviate from developments under § 301. Steelworker’s Trilogy based on the notion that the
A parties bargained for the arbitrator. Can you do this if the arbitrator is messing up statutory rights?
What kind of review will there be for arbitration award resolving statutory rights. Steelworker’s
Trilogy finality or new standard of judicial review?
Memo of the General Counsel (Jan. 20, 2011) - DEFERRAL — shift burden from the EE to EE’r
o GC says being what the S.Ct. has done w/ statutory rights in Title VII area, we should think
of it like NLRA rights. Distinguishes statutory rights under Title VII and relationship b/t
courts forcing arbitration and sub. judicial review and says discretionary under the NLRA.
Fed’l courts and Trilogy that courts shouldn’t interpret CBAs, arbitrators have to interpret
unless unconscionable, but the statute itself is NLRB discretion. SO deferral is a
discretionary doctrine.
o Wants to change the burden of proof for deferral. In order to get deferral, the party arguing
for it has to show K was in the K and that the issue was presented to the arbitrator, and the
arbitrator correctly interpreted the statutory principles and correctly applied them in the case.
Employer usually arguing for deferral. Weird set-up, b/c forces employers to ensure
statutory rights are interpreted correctly by the arbitrator.
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PROTECTION OF WORKER CONCERTED ACTIVITY
Concepts of Discrimination and Interference
§ 8(a)(1) - ULP to interfere w/, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 (employee rights to engage in union activities).
o NLRB v. Transp. Mgmt. Corp. (1983) - burden Q — Once Animus Established then
EE’r’s burden to show Aff ∆ he would have fired anyway
Facts: Driver supervisor had animus and employee’s discharge was motivated by
desire to discourage union activities. The ALJ was not persuaded that employee
would have been fired had it not been for union activities.
Board affirmed.
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1st Cir. remanded (whether the GC had proved by a preponderance of the
evidence that employee would not have been fired). GC has burden of
proving the elements of ULP under § 10(c).
Issue: Whether the burden placed on the employer in Wright Line is consistent w/
§§ 8(a)(1) and (a)(3), and §10(c), which provides that the board must prove an
unlawful labor practice.
Holding: Employee’s transgressions were commonplace, and no one had before
rec’d any discipline. His employer only warned him, but never expressed
disapproval. Employer was clearly upset w/ union activity. T/f board’s finding
that employee would not have been fired even if the employer had not had an
anti-union animus was supported by the evidence.
NLRB has acceptable interpretation of the statute. Nothing bringing up
constitutional problems.
Reasoning:
When an employee is discharged b/c of union activities, the employer may
assert by a preponderance of the evidence legitimate motives for his
decision (that the employee would have ben fired even if he had not been
involved w/ the union).
The board’s construction permits an employer to show what his actions
would have ben regardless of the forbidden motivation. Thi sis an
affirmative defense, but does not change or add to the elements of the ULP
that he GC has the burden of proving under 10(c).
The board’s construction, while not required, is permissible and t/f entitled
to deference.
o What is the appropriate remedy in these cases? Should the person really get reinstated?
How long will that person really last? By the time they got reinstated, it would be
amazing if they didn’t find other work. If they find other work, deduct earned wages from
back pay. So how big is the constraint?
Bill (got through house, dead in Senate) employee should get double back pay.
o After-Acquired Evidence of Employee Misconduct: S.Ct. ruled that this evidence does
not provide a complete defense to liability. Generally, Ps may still obtain back pay for the
pd before the employer discovered the grounds. Can’t be reinstated. Also, a former
employee’s false testimony under oath in the NLRB hrg does not preclude the board from
granting reinstatement.
o NLRA Remedies in Discharge and Failure to Hire Cases - Phelps Dodge and Make-
Whole Relief: 1941 S.Ct. upheld § 8(a)(3) order calling for the hiring of applicants
rejected for union affiliation. Ct said the hiring order, though not necessary to protect the
applicants against monetary loss, was warranted b/c the Act was designed to effectuate
the public policy in favor of self-org. and was not confined to remedying private losses.
Lost pay should reflect a deduction not only of the actual earnings of the discriminates
but also of the amts they had failed to earn w/o excuse.
Once the GC est’d gross amt of back pay, the employer bears the burden of
persuasion w/ respect to the claimant’s failure to mitigate his/her losses. An
employee who ahs made rsbl efforts to find substantially equiv. employment will
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be found to have satisfied the mitigation requirement. Uncertainties resolved in
favor of the employee.
Note: Under the EE’s Free Choice Act: § 8 (a)(3): would have awarded Double backpay for
discrimination
Violations Based on Impact of Employer (or Union) Actions
Radio Officers’ Union v. NLRB (1954) — EE’r cannot pay dif. Rates based on membership
o Facts: The employer agreed to fill vacancies for radio officer positions from union
member sin “good standing.” A union member was denied a job w/ the employer b/c he
had not previously obtained clearance fro the union and thus was deemed not in good
standing.
o Issue: Whether an employer violates 8(a)(3), and a union correspondingly violates 8(b)(1)
(A) and 8(b)(2), by making employment decisions that treat union members in “good
standing” differently from nonmembers or members not in “good standing” w/o add’l
proof that the employer’s specific purpose in agreeing to such differential treatment was
“to encourage or discourage membership in any labor org.”
o Holding: The union being exclusive bargaining agent for ALL employees, the employer
violates 8(a)(3) by discriminating in wages solely on the basis of such membership (even
though it had a K w/ the union prescribing such action).
o Reasoning:
Specific proof of intent is unnecessary where employer conduct inherently
encourages or discourages union membership. (Was natural consequence of his
action such encouragement/discouragement?)
Gaynor - A nonunion employee covered by a CBA was denied a retroactive wage
increase and vacation payments that had been granted to all represented
employees who were union members. Court said this disparate treatment is
“inherently conducive to increased union membership” and discriminatory.
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o Concurrence: Two possible interpretations of 8a3 - (a) On the basis of employer’s
disparate treatment of his employees standing alone, or as supplemented by evidence of
the particular circumstances under which the employer acted, it is open of the Board to
conclude that the conduct of the employer tends to encourage/discourage union
membership, thereby violating the statute, OR (b) Even though the evidence of disparate
treatment is sufficient to warrant conclusion set forth in (a), there must be s specific
finding that the actual aim of the employer was to encourage/discourage union
membership.
o Dissent: Need the intent.
Intent is required under 8(a)(3), but some things have such an inherent consequence, that the
court will infer it. Eliminates the finding of intent (can’t particularly be rebutted). Strange
dichotomy (see below). Seems like it becomes question of law rather than fact and Court’s may
review de novo
Employer has
persuasion burden
Republic Aviation Corp. v. NLRB (1945)
o Two Problems: What is the analytical framework? How do you apply it with all the
variations from Radio Officers?
HERE, what happens when it’s not discriminatory, but it’s a general rule
(no passing out of literature, non-union times, non-working areas)?
o Facts:
Republic adopted a general rule against soliciting in the factory or offices well
before any union activity at the plant.
Derivative
Balancing
Rights, Test
NO
An EE, after being warned, continued to solicit union membership in the plant by
BALANCING
passing out application cards to employees on his own time during lunch periods.
The employee was discharged for infraction of the rule and the NLRB found there
was no discrimination on the part of the employer toward union activity.
Three other employees were discharged for wearing union buttons after being
Off-Duty
asked to remove.
Employees: Which
o Issue: May an Ee be fired for violating a general non-solicitation rule by passing out
category?
union membership cards during non-working hours or wearing union buttons?
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o Holding: No. If a rule against solicitation is invalid as to union solicitation on the
employer’s premises during the employee’s own time, a discharge because of a
violation of that rule discriminates within the meaning of §8(3) in that it discourages
membership in a labor organization.
The Board’s was correct in its determination that any rule against
solicitation in so far as it prohibits union activity and solicitation on company
property during the employees’ own time is prohibited.
The general rule against solicitation violated 8(a)(1) by interfering with Ee
rights.
o Notes:
The context of this case is that of Er-Ee setting, not Er-Non-ee setting like with
Lechmere and Babcock, where union organizers who were not employees were
attempting to solicit.
This context makes a difference to the balancing test vis-à-vis the Er. The
rights of non-ee organizers are derivative of the actual ee’s §7 rights.
Thus, they do not allow for as much infringement on Er rights as actual ee
rights would.
Bottom Line from the case is balancing test for 8(a)(1): achieving business
goals through property use v. rights of Ees.
Intent is not necessary to violate 8(a)(1), only actual interference with Ee
rights. Thus, the general rule triggered a violation here.
Court also make a distinction between solicitation and literature.
Literature makes the appearance of your workplace messy. Can also be
targeted at consumers (to boycott). Various messages.
Most of the time solicitation will be to encourage or discourage union
membership.
Passing out literature while you are working is more of an interference,
and thus it can be limited or restricted as long as general and not
discriminatory.
Interest in Maintaining Production and Discipline: Board/courts assume that Congress did not
intend to interfere w/ legitimate employer interests in the running of business enterprises in §§ 7
and 8.
Interest in Excluding “Outsiders”: Employer Property Rights: B/c already rightfully on the
premises, employees soliciting/distributing thought not to implicate the employer’s property
rights. What about nonemployee union organizers?
NLRB v. Babcock & Wilcox Co. (1956): Non-employee unions possess a derivative § 7 interest
in communicating their views to employees; however, there is a rule of presumptive non-access.
Republic Aviation obligation not owed to non-employee organizers. BUT “if the location of a
plant and the living quarters of the employees place employees beyond the reach of rsbl union
efforts to communicate w/ them, the employer must allow the union to approach his employees
on his property.” Only when there are no other adequate means.
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Lechmere, Inc. v. NLRB (1992) - non-employee union access to employer’s property
o Facts: Union trying to organize retail employees. Grassy strip in parking lot is public
property. Company had policy of no handbilling or solicitation and asked union to leave
when they put ads on cars in parking lot. Union used grassy strip for a month to hand out
stuff to employees coming and going, take down license plate #s to send employees stuff
in the mail, etc.
Union alleging ULP to bar the non-employee organizers from its property. ALJ
ruled in Union’s favor.
Board affirmed and adopted the recommended order using Jean Country test.
1st Cir. enforced the board’s order.
o Jean Country three-factor balancing test: (1) impairment of § 7 right if access denied, (2
impairment of the private property right if access granted. Consider (3) the availability of
rsbly effective alternative means.
o Holding: The union failed to establish the existence of any “unique obstacles” that
frustrated access to employees, t/f no ULP by barring the non-employee organizers from
its property.
o Reasoning: Babcock created dichotomy b/t employee and non-employee activities. No
balancing for non-employee. § 7 does not protect non-employee union organizers
EXCEPT in the rare case where inaccessible (“isolated from the ordinary flow of info.
that characterizes our society”). Only where such access infeasible that it becomes
necessary and property to take the accommodation inquiry to a balancing test. Union
must meet this high burden.
B/c the employees do not reside on company property, they are presumptively not
“beyond the reach” of the union’s message. Union WAS able to contact them
outside of work via mailing, phone calls, home visits. OTHER ALTERNATIVE
MEANS OF COMMUNICATION WERE READILY AVAILABLE.
o Dissent: Defer to the board, whose interpretation in Jean Country and application in the
case at hand was permissible.
Just b/c Babcock said inaccessibility is a reason to grant access doesn’t mean
there’s no other circumstance that would warrant entry onto company property.
o Court ignored distinction b/t parking lot open to public generally
and the secluded plant in Babcock.
o Babcock recognized that actual communication w/ nonemployee
organizers, not mere notice that an org. campaign exists, is
necessary to vindicate section 7 rights. Union here wasn’t able to
actually communicate on grassy strip.
Scope of Lechmere:
o North Hills Office Servs. (NLRB 2005): Employer did not commit ULP by instructing
employee to stop talking to a union organizer while he was trespassing on company
property.
Board held that Lechmere applies equally to nonemployee appeals to customers.
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org. other than the United Way (employer conducted a periodic charitable
campaign). Employee wrote 3 different emails and was sanctioned.
First E-mail: Clarified that info. supplied by employer saying that
anarchists were going to a union rally was inaccurate. Was after the union
rally, prepared on break but sent from work. Weren’t asking people to go.
No solicitation, only a communication.
Second E-mail: Written from union computer. Encouraged workers to
wear green to support the Union’s position in negotiations. This is
solicitation.
Third Email: Encouraged workers to participate in Union’s entry in an
upcoming town parade from union computer. This is solicitation.
o Each time, the employee rec’d a warning.
The ALJ ruled the employer may limit e-mail use but ULP to
discriminatorily enforce the policy, ULP to discipline employee for 3
emails.
Holding: Employees do not have a statutory right to use the e-mail system for § 7
purposes, t/f the policy prohibiting employee use of the system for “non job-
related solicitations” did not violate § 8(a)(1). But the EE’r did violate § 8 (a)(1);
(3) by giving a warning for the 1st ,non-solicitous, email
Reasoning:
The Policy: Employer has basic property right to regulate/restrict
employee use of company property. Union Carbide. Legitimate interest to
control e-mail system as long as restrictions are nondiscriminatory.
Republic Aviation inapplicable b/c not regulating organization rights, only
the means to communicate. E-mail is not so different from other means of
communication to depart from settled precedent.
Discriminatory Enforcement: As a matter of property and K rights, a
employer may impose a rule banning all organizational notices (including
charities) w/o being disparate treatment of unions. Dist. b/t organizational,
personal, and for-sale notices. Disparate treatment must be B/C OF
UNION OR PROTETED STATUS.
Board rejects that it’s simply an 8a1 violation for employer to restrict e-
mail use generally. (Union didn’t argue this in court.) Went after the 8a3
discrimination b/c she was engaging in union activity violating general
rule against using work email/equipment. She had been warned. When it
comes to supporting or using email for an organization you can have a
general rule prohibiting organizational support of entities not immediately
involved in the workplace, t/f no 8a3 violation.
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Reasoning:
Babcock rule = employers may prohibit non-employee distribution of
literature. Two exceptions: (1) inaccessibility and (2) discrimination.
o Discrimination Test: An employer may not exercise its usual right
to preclude union solicitation and distribution on its property if the
employer permits similar activity by other nonemployee entities in
similar relevant circumstances.
Ask whether the employer permits, by rule or practice,
similar activity by other outside organizations in similar
circumstances.
Narrow exceptions ok but cannot frequently permit civic,
commercial, or charitable solicitation.
Always violates law if employer motivated by anti-union
animus or its asserted justification is pretext.
Essence of discrimination is failure to treat like things alike. Courts trying
to say union activity is different in nature than others. The Act doesn’t
permit a court/employer to make distinctions based on potential impact on
the employer’s property or business. All activity has potential to impact
negatively, but all are protected by § 7.
Argument: The employer violated § 8(a)(1) by discriminating against the Union’s
handbilling activity.
Reasoning: The facts here are strongly discriminatory. The company permitted
political solicitation on its property, encompassing controversial topics.
Argument: RG doesn’t apply in non-employer access cases and should be
overruled.
Reasoning: RG dealt w/ whether an employer unlawfully interfered w/ protected
activity when it disciplined an employee for using its e-mail system. Republic
Aviation balancing test is inapplicable to nonemployee access cases (different
employer-employee obligations). The employee discrimination standard from RG
is too broad; less protective for employees than non-employee standard, t/f get rid
of it.
Note: NLRB v. Town & Country Electric, Inc. and Pain Union Organizers as Protected
Employees
o S.Ct. upheld Board’s interpretation of the definition of “employee” in § 2(3) to include
“salts”--- workers who are also paid union organizers. Thus, T&C had violated §§ 8(a)
(1) and (3) by refusing to hire union members who were going to be paid by the union
while they attempted to organize the employer.
Broad language and broad interpretations in past S.Ct. decisions. Court said
union employees are just moonlighting. Cannot be fired for misrepresenting their
union jobs (§ 8(a)(3) violation); gives them better access to solicit members. Can
be up front about it too and if is highly qualified, can challenge the employer for
not hiring (can picket longer if seeking recognition and ULP).
Averting “Salts” through “Anti-moonlighting Clauses”- A facially
neutral hiring policy only violates the Act if it is adopted for an antiunion
purpose or applied in a discriminatory manner.
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Courts require proof of antiunion purpose (10 (c) preponderance of the
evidence).
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COA denied enforcement; company has absolute right to close out a part
or all of its business regardless of antiunion motives.
Holding: When an employer closes his entire business, even if the liquidation is
motivated by vindictiveness twd the union, such action is not a ULP. BUT a
partial closing is an ULP under § 8(a)(3) if motivated by a purpose to chill
unionism in any of the remaining plant so the single employer and if the employer
may rsbly have foreseen that such closing would likely have that effect.
Reasoning:
Some decisions are just matters of mgmt. and cannot violate § 8(a)(1),
whether or not they violate sound business judgment, unless they violate §
8(a)(3).
Discriminatory Complete Closing:
o Union argues that an employer has right to go out of business w/o
violating the act even if such action is antiunion animus.
Interfering w/ a businessman’s decision to go out of business is so
fundamental that you need a clear manifestation from Congress
that this is intended. This doesn’t exist.
o “Runaway shops” discouraged b/c they deprive the union of future
benefits. But a permanent, complete liquidation yields no future
benefit. May discriminate but this is not the type prohibited by the
Act. Ends employer-employee rel.
Discriminatory Partial Closing:
o Repercussions on what remains of the business b/c employer has
leverage for discouraging union activity. Remedies still available
(i.e., reinstatement).
o Test - “If the persons exercising control over a plant that is being
closed for antiunion reasons (1) have an interest in another
business, whether or not affiliated w/ or engaged in the same line
of commercial activity as the closed plant, of sufficient
substantiality to give promise of their reaping a benefit from the
discouragement of unionization in that business; (2) act to close
their plant w/ the purpose of producing such a result; and (3)
occupy a relationship to the other business which makes it
realistically foreseeable that its employees will fear that such
business will also be closed down if they persist in organizational
activities, we think that a ULP has been made out.”
Remand b/c need finding of intent by the employer. (Intent
not implied like in Radio Officers.)
Board found intent from employer’s antiunion speeches at Kiwanis club. Tell
your mgmt. clients don’t do something like this if they are thinking of closing an
operation or subcontracting part of it out. Manage your clients.
What about remedy? Can’t order him to reopen his business. Maybe can give the
employees backpay until they find equiv. jobs. No chance to reinstate if they
reopen business far away!
o Underlying Q: Nothing in the statute (only discouraging/encouraging union
membership); how should we structure collective bargaining when a company
experiencing financial difficulties. Hope you can protect jobs of workers and give them
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some voice but want employer to keep functioning and still make profit. How do you
structure this relationship so that there is at least an opportunity for a dialogue before a
decision is made to close a plant or part of operation or subcontract out the work?
§ 7. Rights of Employees. Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in section 8(a)(3).
Three Elements - (1) concert, (2) object or purpose, and (3) means.
What does mutual aid or protection mean?
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company, and took the most direct course to let the company know
that they wanted a warmer place in which to work
o Actions emphasized the seriousness of their concerns about the
conditions of their employment
o NLRA §2 (9): Labor dispute: Any controversy concerning the
terms, tenure or conditions of employment
o The reasonableness of the worker’s decisions are irrelevant for the
purposed of finding a labor dispute.
BUT their actions were justified where even the foreman’s
statements about the conditions of coldness that were so
aggravated on the day of the walkout that the concerted
action seemed like a perfectly natural and reasonable thing
to do.
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violates state law will be unprotected. E.g., sit down strikes
generally not protected b/c violations of state law.
Violent Activity: Violent conduct generally falls outside of the Act, and
courts have found particular strikes unprotected where the walkout
threatened to cause physical damage to the employer’s property. See
Fansteel, and Marshall Car & Wheel.
o Actual or threatened violence against persons is also grounds for
excluding concerted activity from § 7 protection, but the Board has
also recognized that balancing of the severity of the conduct with
the potential restraint on the employees right to strike may be
necessary.
o Clear Pine Mouldings: Threats or actual violence used to
intimidate other EE”s in the exercise of their rights are unprotected
Mohawk Liqueur Co: Objective test that needn’t show the
employee was actually intimidated
Breach of K: Conduct breaching a contractual duty may not be protected.
o NLRB v. Rockaway: Failure to abide by no strike clause during the
term of a CBA was a breach of K that constituted a waiver of
employee’s § 7 rights.
“Indefensible” or “Disloyal” Conduct: Jefferson Standard held a show
of disloyalty to the employer that was unnecessary to carry on the
workers’ legitimate converted activities.
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Rationale: The Taft-Hartley Act, § 10 (c) provides that no order of the Board shall
require the reinstatement of any individual as an EE who has been suspended or
discharged…for cause. There is no more elemental cause for discharge of and EE
than disloyalty to his EE’r
Absent a labor dispute the handbills would have been grounds for
discharge
o The Handbill attack related itself to no labor practice, but to the
finance and public relations policies that were the mgmt’s
responsibility
o A continuing attack initiated while off duty, upon the very interests
which the attackers were paid to conserve
o Forcing the EE’r t pay for such activities is inimical to the Act
The Fortuity of the coexistence of a labor dispute is no decfense
o The EE’s took pains top separate the attack from the dispute
o Handbill omitted all reference to the labor dispute
Diverted attenuation from it
Attacked policies with no discernable relationship to it
The Only connection to the dispute was the undisclosed purpose or motive
of bringing some financial pressure to extract form the EE’r a concession
These tactics were hardly less indefensible than acts of physical sabotage
Links the inferior product to the labor dispute. Now ok? Link it to the strike.
o Eastex, Inc. v. NLRB (1978) – Bargaining Position & Protecting Wages Valid Purp.
Facts: Union seeking to bolster support and gain new members prior to bargaining
decided to distribute newsletters to Co. EE’s in non-working areas of EE’r’s
premises during non-working time. 2 sections of the paper addressed proposed
incorporation of the “right to work” statute in TX’s constitution and addressed the
presidential veto of an increased min. wage. EE’r denied permission to distribute
the newsletter to certain EE’s and Union personnel and the Union filed ULP
chare. Board found § 7; § 8(a)(1) violation and the COA enforced.
Holding:
o § 7’s “mutual aid and protection” clause protects EE activity
outside of the direct employment relationship with the EE’r and
extends to EE’s resort to administrative and judicial forums and
appeals to legislators to protect their interests
o The distribution of the newsletter by EE’s in non working areas
during nonworking time was protected because it implicated only
the EE’r’s management rights which were not shown to be
prejudiced in any manner, and it is undisputed that the Union
undertook the distribution in order to boost its support and improve
its bargaining positions
Rationale: Without deciding the precise boundaries of mutual and or
protections, political sections of the newspaper were still protected where
they called on workers to act together to better their working conditions
o Union security is central to the concept of strength through
solidarity and a mandatory subject of bargaining
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o The incorporation of right to work into the TX constitution is
significant because it would become more difficult to modify or
repeal
o The Union’s call regarding minimum wage is concerted activity
for the mutual aid or protection of workers because min wage
affects wage levels derived from collective bargaining, and
o Concern by pet. EE’s for others might gain support for them at
some future time
o The EE’r’s property rights were not implicated because the EE’s
already had access to the property rights
o EE’r alleged no prejudice to its mgmt rights
o EE’s degree of intrusion does not vary with the content of the
newsletter, so the only cognizable property interest is in the
preventing EE’s form distributing literature on EE’r’s property
o Board has not engaged in discerning between material that is
connected or attenuated from the central concerns of self-
organizing or collective bargaining
o EE’r conceded that the EE’s had a right to distribute material
relating to CBA and organizing, the incremental intrusion on the
EE’r’s rights from their distribution together with the other
sections is minimal
o Off-premises Political Activity: The Board has not ruled yet, but Eastex n. 18 suggests
that such activity, while not protected on Ee’r’s property because of lack of sufficient
connection to workplace concerns, might nonetheless be protected as within “mutual aid
or protection” See Ford Motor Co. (Purely political tract uprotected).
Protests Over Supervisor Identity: NLRB v. Oakes machine; Bob Evans Farms: Supervisor
identity is not a legitimate EE interest and therefore not protected.
Refusal to Cross Picket Lines: May be protected, but EE’s may also be replaced
o NLRB v. Browning-Ferris Industries: Truck driver’s refusal protected, but EE’r could
hire replacements
o Overnite Trans.: Hiring replacements for refusal to cross picket lines was unjustified
because business not significantly disrupted
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statutory issue, and arbitrator applied and articulated correct principles. (keeps
palpably wrong standard)
Er will want deferral usually, putting the burden on Er.
o Making Er tell arbitrator the proper law under the NLRA.
Effort to make it more difficult to have deferral
o Procedural Changes:
Pre-Arbitration: Wants to refer to Office of Advice on whether to defer when
union brings a claim to NLRB first.
Regional office will need to investigate. Then if all seems hunky-dory, send it to
arbitration.
This memo will have a certain effect on the Regional Offices.
Could have Obama voted out of office by the time cases applying this new
standard reach the board, and board could have a whole new composition.
Individual Employee Action as “Concerted” Activity: An individual EE’s conduct may, nonetheless
be deemed concerted activity under § 7.
NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984) — You Can’t Make me Drive!
o Facts: EE garbage truck driver refused to drive a truck, which, the previous day, he had helped take
to the repair station because of brake problems. The CBA contained
a provision stating that it was a breach for EE’r to require EE’s to
operate unsafe vehicles, and that it was not a breach for EE to refuse.
Board ruled EE”s refusal concerted activity under § 7 according to
longstanding Interboro doctrine. COA denied enforcement.
o Holding: (Whether an activity was concerted is
merely the threshold question, the ultimate question is whether the conduct was protected
under § 7.)
Individual activity to enforce rights under a CBA, as long as the EE’s action is
based on a reasonable and honest belief that he is being asked to perform a task
that he is not required to perform under his CBA, and the action is reasonably
directed toward the enforcement of a collectively bargained right, is concerted
activity just as it would have been had he filed a formal grievance
Whether the EE’s conduct was protected under the act is not at issue here because
it was not passed on by the Board or the COA
o Rationale:
Interboro doctrine—an individual’s assertion of a right grounded in a collective
bargaining agreement is recognized as concerted activity and therefore accorded
the protection of § 7.
Assertion of a CBA right is an extension of the concerted action that
produced the agreement.
The assertion of such a right affects the right of all EEs covered by the
CBA
The task of defining the scope of § 7 rights is for the Board in the first instance
and on an issue that implicates its expertise in labor relations, a reasonable
construction by the Board is entitle to considerable deference—we cannot say that
the Board’s view is unreasonable.
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When an EE invokes a right grounded in the CBA he does not stand alone—he
brings to bear on his EE’r the power and resolve of all his fellow EE’s
Allowing individual enforcement of CBA rights as concerted activity
serves Congress’ purpose of mitigating the EE’r-EE inequality that
persists beyond collective bargaining
Breathes life into the promises contained in the CBA as well as the entire
proves envisioned by Congress as a means of achieving industrial peace
To be sure the primary tool of invoking CBA rights is the grievance process, but
it is natural for EE’s to first voice their opposition to their EE’r before or perhaps
in place of filing a grievance
ILLUSTRATION 1
Individual v. Concerted Protests: Individual protests and allegations of a sole EE that they are
being treated unfairly as an individual are not covered
Obey Now, Grieve Later: CBA’s commonly read to require EE’s to perform job assignments
and then grieve rather than refuse assignments they believe not covered, but there is a safety
exception.
Individual Protests and Individual Action as a Prelude to Group Action: Single EE’ conduct
must be with the consent or authority of the other EE’s
o Alleluia Cushion, (1975): Worker who wrote a letter to regulatory board complaining of
safety issues was protected absent evidence that the other EE’s disavowed such
representation
o Meyer I, (1984): Board repudiated Alleluia, stating that EE conduct could only be
protected if engaged in with or in the authority of the other EE’s
o Meyer II, (1986): following D.C. Circuit rejection of Meyer I, the Board adhered to its
original interpretation of the Act as a discretionary matter, the D.C. Circuit then deferred
as a reasonable interpretation of the Act under Cheveron.
Individual Conduct in preparation for, contemplation of, or that truly brings a group complaint to
the attention of management is concerted activity
o Mushroom Transportation, (1964): Concerted activity “encompasses those circumstances
where individual EE’s seek to initiate or to induce or to prepare for group action as well
as individual EE’s bringing truly group complaints to the attention of management.”
Individual conduct that is the natural outgrowth of group activity is covered.
o Salisbury Hotel: Complaint to Dep’t of Labor after EE’s had agreed to complain to mgmt
o Every Woman’s Place, (1986): Single EE contacted Labor Dep’t after several EE’s had
complained to mgmt was concerted activity.
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admitted to taking free lunches, which everyone did and even the HQ was not sure as to the
policy in that store. She was interrogated again, and the EE’r refused her request for her
Union rep again. Board held this violated § 8 (a)(1) because she reasonably believes the
interview might result in discipline. 5th Cir. Denied enforcement.
Holding: The COA impermissibly encroached upon the Board’s function. The
Board’s construction here, while not required by the Act, is permissible, and the
Board’s application of that meaning in the reconciling conflicting interests of
labor and management, the balance struck by the aboard is subject to limited
judicial review.
Rationale: The Board’s construction of § 7 creates statutory rights of an EE to
refuse to submit to an interview without a union rep. where he reasonably fears
that discipline may result.
Quality Mfg. and Mobil Oil Corp. shape the limits of the right:
o The right inheres in § 7’s guarantee of the right to act in concert for
mutual aid and protection
o Only in situations where the EE requests representation
o Only where the fear of discipline is reasonable
o Exercise of the right may not interfere with legit EE’r prerogatives
and the EE’r is free to carry on the investigation without the
interview
o No added bargaining duty with the union rep.
EE’r/EE confrontations clearly fall within the literal wording of § 7
o Even though alone, the EE seeks “aid or protection”
o The Union rep protects the interests of the entire CBU by ensuring
that the EE’r is not imposing punishment unjustly
The Board’s construction of § 7 plainly effectuates the most fundamental
purposes of the act, where requiring the EE to attend alone perpetuates the
inequality that the Act was designed to eliminate and bars recourse to the
safeguards the Act provided to redress the perceived imbalance of
economic power between labor and Mgmt
Asking the EE to deferred representation until he has already been
“adjudicated” and disciplined or discharged would substantially increase
the burden of vindication and diminish the effectiveness of representation
where the EE’r’s focus during the grievance procedure would be
defending its actions rather than reexamining them.
o Remedies for Weingarten Violations: Limited depending on whether EE was
disciplined for underlying conduct or for invoking the rights
Taracorp Indus., (1984): No reinstatement or Backpay where underlying conduct
was cause for dismissal
There is also no “Exclusion” of confessions obtained in absence of union rep.
o Weingarten Rights in a Non-Union Setting: None, the EE may request a coworker as a
witness/rep., but the EE’r does not have to accede, and the EE may be disciplined for
refusing to interview without rep.
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informational picket line, and the EE’r ordered the Union President and vice-
president to cross the picket line. Instead they negotiated a settlement b/w the
other union and the EE’r. They were suspended for 25 days/ the other EE’s for 10
days. The Board found § 8 (a)(1) and (a)(3) violations and the 3rd Cir. Enforced
holding that the only disparate Tx allowed is when the CBA expressly states that
the officials have and affirmative duty to prevent woke stoppages
Holding: The union may only waive statutorily protected rights through explicit,
clear, and unmistakable
Rationale: Once the Board finds that the EE’r violated § 7 rights, the EEr’ bears
the burden of explaining the legitimate business purpose for the violations, then
the Board must balance the opposing interests.
The EE’s actions towards the union membership did discriminate on the
basis of union membership.
The EE’r’s assertions that there is an implied duty among Union leaders to
enforce no strike/work stoppage agreements does not mean that the EE’r
may assume that a union official is required to attempt to enforce a no-
strike clause by complying with the EE’r’s directions and impose a
penalty on the official for declining to comply.
(EE’r also argues that the Union waived the statutory protections against
discrimination on the basis of union leadership status in the face of the
previous arbitration awards and buy not changing the language of the
CBA subsequent to the awards)
The Union may waive economic rights but may not bargain away its
members’ economic right, but it may not surrender rights that impair the
EE’s choice of their bargaining representative.
The Union may bind its officials to take affirmative steps to end unlawful
work stoppages, but any waiver of statutorily protected rights must be
“explicitly stated”, clear, and unmistakable.
The prior arbitration agreements were not clear and unmistakable evidence
of a duty where arbitration decisions are inconsistent, sporadic, or
ambiguous, and
o There were only two prior decisions
o And each agreement contained a provision limiting the binding
effect of the Arb. Decisions to the term of the current CBA
NLRA § 8 (a)(2): [It Shall be an Unfair Labor Practice for the Employer —] to dominate or
interfere with the formation or administration of any labor organization or contribute financial or
other support to it: Provided, That . . . an Employer shall not be prohibited from permitting
employees to confer with him during working hours without loss of time or pay.
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Electromation Inc., 309 NLRB 990 (1992) — “No good deed goes unpunished”
o Facts: EE’r experiencing financial loss made unilateral changes to EE benefits package.
When EE’s became disgruntled EE’r met with them and formed action committees to
address issues. EE’r controlled the formation and goals of the action committees. During
the meeting process, but before implementation of any proposals the Union (of which the
EE’r was unaware) demanded recognition. EE’r withdrew participation in the Action
committees and informed EE’s that any further meetings b/w mgmt and EE’s would have
to wait until after the election.
o Holding: The EE’r organized action committees were an EE”r dominated/controlled labor
organization because:
The EE’r organized action committees were an EE”r dominated/controlled labor
organization because:
They fit the statutory definition under § 2(5) where their purpose was to
address EE disaffection concerning conditions or employment through the
creation of a bilateral process to reach bilateral solutions based on EE-
initiated proposals
The EE’r dominated the action committees in their formation and
administration and unlawfully supported them
Rationale: Any EE representation committee can meet the statutory definition of
labor org. under § 2(5) even without a formal meeting or constitutional structure
if:
The EE’s participate,
o Here the EE’s participated in the action committees
The Org. exists, at least in part, for the purpose of dealing with EE’rs
o Here the activities of the committees constituted dealing with an
EE”r
These dealings concern “Conditions of work” or other statutory subjects
such as grievances, labor disputes, wages rates of pay, or hours of
employment
o The subject matter of that dealing concerned conditions of
employment
Further the organization meets the statutory definition if it
o Has a as a purpose the representation of EE’s, and
o EE’s participate and deal with the conditions of work or other
statutory subjects
Here the EE’s acted in a representational capacity
The Employer created the committees, provided material support,
organized the committees, managed the committees, and were the impetus
for their continued work where, at first the idea was not well received by
the EE’s
he EE’r presented the committees as a Hobson’s choice to the EE’s: either
accept things as they are or work bilaterally with management to
undertake the bilateral exchange of ideas within the framework of the
committees.
Antiunion motive is not necessary element of 8 (a)(2) violation
Concurrence: EE’r overrode the wishes of the majority of EE’s and established
the committees, also overriding the wishes of the EE’s as to member selection,
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subject matter of bargaining (no wages), and effectively placed itself on both
sided of the bargaining table
Crown Cork & Seal Co. and the Delegation of Managerial Authority
o Crown Cork & Seal Co, 334 NLRB 699 (2001)
Facts: Employer set up a sociologically advanced system of management where-
by much of the front-line managerial responsibilities were handled by production
teams composed of EE’s.
The teams “decide and do’ on a variety of work-place issues, including
production, quality, training, attendance, safety, maintenance and
discipline short of suspension or discharge.
Teams implement a variety of decisions with no managerial oversight and
make other recommendations to a managerial team, including more severe
disciplinary recommendations.
Plant manager testified that he has never overruled these decisions, even
when he disagreed…in fact its not exactly clear what the plant manager
actually did do?!?
Holding: The rationale in General Foods applies here (distinguished in
Electormation). The 7 committees are not labor organizations b/c their purpose is
to perform essentially managerial functions and thus they do no “deal with” the
EE’r within the meaning of § 2(5) of the Act.
Rationale: The production teams performed managerial functions, and those
reconditions that they did pass up the chain of command more closely resembled
the types of decisions a traditional supervisor might pass along to his superiors. In
fact it is exactly this interaction b/w the 2 managerial bodies that distinguishes
this interaction from other interactions where abn EE body and managerial body
go back and forth to reach a resolution
Proposals to Amend § 8 (a)(2) (TEAM Act): Proposals to allow EE’rs greater latitude in
forming EE involvement programs to resolve or deal with issues relating to the conditions of
employment.
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NLRB DETERMINATION OF BARGAINING AUTHORITY
• NLRA § 9 (a): Representatives designated or selected for the purposes of collective bargaining . . . shall be
the exclusive representative of all the EE’s in such unit for the purposes of collective bargaining in
respect o rates of pay, wages, hours of employment, or other conditions of employment: Provided , That
any individual shall have the right to present grievances to their EE’r and to have such grievances
adjusted without the intervention o the bargaining representative
• NLRA § 9 (c): Whenever petition shall have been filed alleging that a substantial number of EE’s wish to be
represented for collective bargaining and that the EE’r declines to recognize their representative, or that
the certified bargaining representative is no longer a representative, or the EE’r alleges that one or more
labor org.’s have claimed recognition, the Board shall investigate and direct an election and shall certify
the results
**Free Choice Act would have eliminated election and certified on cards only
Congress chose to regulate recognition rather than leave it up to the economic power of the unions.
Congress Believed that the government provision of elections would:
1. Minimize conflict among rival organizations
2. Make it more difficult for Employers to impose a company-supported union
3. Make it more difficult for employers to play one group of employees against the other
4. Generally reduce the conflict over recognitional issues
Why take such an adversarial perspective on relationships b/t mgmt. and workers? 8(a)(2) may
address a concern that employer sponsored unions will lull employees to become apathetic to
conditions of their employment. The employer really controls both sides of the table. Deceptive twd
employees b/c total control resides w/ employer. This concept of deception is in the background of
8(a)(2).
Is there flexibility under § 8(a)(2) to reorganize the workplace without being accused of creating and
dominating a company union? Have to look at § 2(5), the definition of a labor org. IF employer gives
enough autonomy (no supervisor in the group but the employer delegates mgmt. authority to the
team) and makes final decisions that a supervisor would make (employer doesn’t deal w/ any of it),
can get around an 8(a)(2) problem.
The problem in more modern work settings is doctrine dealing w/ setting up communications
devices (Crown Cork). Discussion on p. 269 (committees set up that do not deal with mgmt.) Given
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the differences in the work place today---SHOULD 8(a)(2) BE CHANGED? Rephrase to permit
more flexibility? When the statute was enacted, had a lot of company unions (Budd case -classic
example); made it more difficult. Tension as to whether 8(a)(2) really applies anymore… want to
give workers more voice.
Concept of employee free choice - Free Choice Act - Passed by House but not Senate. Designed to
make much easier to get recognition faster and bargain faster. More voice in workplace and more
union representation.
o Employer wants bigger bargaining agreement b/c then less likely the union is to win. Takes
more time to organize. Is there a shared community of interest?
American Hospital Ass’n v. NLRB, 899 F.2d 651 (7th Cir. 1990)
Facts: Hospital association protested the Board’s use of its rulemaking
authority to recognize only 8 bargaining units in the acute-care hospital
setting: Physicians, registered nurses, other professionals, medical technicians,
skilled maintenance, clerical workers, guards, and other non-professionals.
The Hospital industry objected to any rule requiring the recognition of more
than the statutory minimum, 3 units.
Holding: The Board’s use of its rulemaking authority to eliminate discretion
as to appropriate bargaining units from the decisional process was itself
discretionary and well warranted, reasoned, weighed conflicting arguments,
and was entitled to judicial deference
Rationale: The hospital industry objected to any rule what-so-ever, since it
would only accept a minimum number of units already mandated in the
statute, but the Board was justified in seeking to establish a rule that would
produce certainty and predictability in the face of its failed attempt to use
common law to arrive at a loose standard
o Hospitals want fewer units to drive down bargaining costs and give
themselves a greater bargaining advantage
o Unions want more units that are homogenous because it makes
collective bargaining easier due to commonality of the interests
involved.
o The rule itself does not cover the entire health-care industry, and
leaves and open-ended exception for cases in which a party can
demonstrate exceptional circumstances.
o Board considered the possible alternatives, decided against them, and
gave plausible reasons for its choice.
American Hospital Ass’n v. NLRB, 499 U.S. 606 (1991)
Facts: The hospital industry sought review claiming that “in each case” from §
9(b) meant that the Board had to make individualized determinations of
appropriate bargaining units and could not designate them in advance through
its rule making powers.
Holding: The Board is due substantial deference in the use of its rulemaking
authority to develop standards for the exercise of its jurisdiction and where it
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develops a rule based on its expertise and extensive consideration to
Congress’ concerns and the policies of the Act.
Rationale: The Phrase “in each case” does not mean that the Act requires a
case-by-case determination of appropriate bargaining units, but that whenever
there is a disagreement the Board shall resolve the dispute (“whenever
necessary”).
o The Board is certainly allowed to develop rules to guide its discretion
either through the process of case-by-case adj. or the exercise of its
rulemaking authority.
o Cannot find a basis for petitioner’s contention that the rule delineating
appropriate bargaining unit for an entire industry is qualitatively
differing form prior rules establishing presumption that certain units
would be considered appropriate in certain circumstances
Rule here is not irrebuttable and contains and exception
Must still apply the rule in case-by case basis
o Congress concerned about possible disruption of healthcare and injury
to the public when it passed the bill extending NLRA coverage to
private health care institutions, but rejected the Taft proposal of
limiting health care bargaining units to 5.
o The admonition by Congress to the Board to prevent proliferation is
not law and the petitioner cannot argue that 8 bargaining units
represents a proliferation
o The rule is neither arbitrary nor capricious because the Board relied on
13 years of experience in developing the rule, gave extensive
consideration to the issue of the number and kind of bargaining units,
and created an exception where extraordinary circumstances would
make application of the rule arbitrary by ignoring substantial
differences a given acute-care institution and the others upon which
the rule was developed.
Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570 (1st Cir. 1983)
Facts: Union sought and won recognition of single-store bargaining unit
despite attempts by store chain to have the Regional director certify a larger
unit (all stores in the U.S. was initially proposed). EE’r refused to bargain and
appealed a bargaining order again arguing against the appropriateness of the
CBU.
Holding: The Board’s determination that the EE’s at the restaurant constituted
an appropriate bargaining unit was within its discretion and supported by
substantial evidence in the record.
Rationale: The Board is not required to select the most appropriate unit, only
an appropriate unit and the BOP is on the EE’r to show that the Board’s unit is
clearly inappropriate. While the Board should not ignore the EE’r’s interest in
maintain enterprise-wide labor relations, its primary focus should be the EE
freedom of choice in the exercise of their rights under the act and EE freedom
can tip the balance in determining which of 2 equally appropriate units should
be preferred.
o Critical consideration is whether the EE’s comprising the unit share a
community of interest and the Board should consider several factors
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Geographic proximity of the stores in relation to each other
Level of EE interchange b/w the various stores
Degree of autonomy exercised by store mgr’s
Extent of union organization
History of collective bargaining desires of the affected EE’s
EE’r’s organizational framework
Similarity in skills, EE benefits, wages and hours of work
o Board is not bound to follow any rigid rule and no factor is
determinative
o Board has developed administrative policies to guide it in making
determinations including the presumption that single store units are
appropriate
o Control of the local store Mgr of those areas most directly affecting the
restaurant’s EE’s is one of the most weighty factors for determining
the appropriateness of the single store bargaining unit.
o Here he was in fact autonomous
o The Board’s Policy on Unit Determinations:
First the Board examines the petitioned for unit, if that unit is appropriate then the
inquiry ends
The Board may then look to the alternative units proposed by the parties
Then the Board may select a different unit, usually selecting the smallest appropriate
unit encompassing the petitioned for EE classification
o Proposed Rulemaking: Appropriateness of Single Location Bargaining Units
The Board proposed a rule to govern single-locations units in all industries except
public utilities, construction and ocean-going maritime firms
15+ EE’s at that location
No other EE’r location within one mile
At least one § 2 (11) supervisor at that location
Rule really didn’t do anything different than the adj’s had done, but it was hoped it
would cut down litigation and conserve Board resources, as well as promote
stipulated election agreements
Republican Congress killed it…kind of since it really didn’t do much to change the
outcomes of cases
o Employer’s “Technical § 8(a)(5) Cases”: Employers can always gain judicial review of
representational issues merely by refusing to bargain and converting the case into a ULP
proceeding.
Forces the union to file a charge under 8(a)(5) w/ the Board.
Board will not revisit rep issue; will affirm earlier determination, find the employer
guilty of a refusal to bargain, and order it to bargain.
The employer sits back and waits for the Board to petition for enforcement under
§ 10(e), or may file its own petition in the COA under § 10(f).
The court then reviews the underlying rep issue when deciding whether to uphold the
Board’s finding of a 8(a)(5) violation.
Delays bargaining for about a year and a half to three years. Will the employees who
orig. voted for the Union still really care about it. If employer bargains to impasse w/
the Union (employer may do that if thinks over time that support over time will
weaken b/c of delay), only real option is to give in to whatever employer wants or
STRIKE (if strike, then employer may permanently replace the worker).
o Unions have no comparable means of converting a rep issue into an ULP case to get judicial
review. Leedom is all that is available to them. But delays would take longer than just to wait
a year and hold a new election. Run to court and present legal theory that board violated
authority (collateral attack on Board’s authority) to make a determination of authority.
Should the statute be amended? No sign it will be amended. Understand the Union is
being constrained in challenge, but employer has method of refusing to bargain to get
at it. Just don’t find cases where Union is unhappy. Skews court doctrine in one
direction.
o Free Choice Act was supposed to address these issues re: private sector unions. Delay,
combined w/ anti-union campaign, even if employer loses then engage in add’l delay before
bargaining and hope that Union support will be weaker and weaker. Act would have required
bargaining within 10 days of election. Sent to Mediator w/in 90 days of Bargaining, then to
an arbitrator within 30 days.
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productive of stability, and whether that stability will be unduly disrupted by a
change.
Extent to which employees in the proposed unit have est’d and maintained
their sep. ID during the pd of inclusion in a broader unit, and the extent of
their participation in the rep. afforded them to obtain sep. rep.
History/pattern of CB in the industry.
Degree of integration of the employer’s production processes, incl. the extent
to which the continued normal operation of the production processes is
dependent upon the performance of the assigned functions of the employees in
the proposed unit.
Qualifications of the union trying to carve out a separate unit, incl. experience
in representing employees like those involved in the severance action.
“Contingent” Workers: Def: employees of temporary agencies who work for long
pds of time at a single user company. Complexities arise when unions attempt to org.
“contingent” workers. Consent requirement makes it hard to organize these types of
workers.
Accretion - Restrictive criteria b/c a finding of accretion precludes the
employees at issue from expressing preferences in a secret-ballot election.
TEST = accretion only when the add’l employees have little or no separate
group identity and when the add’l employees share an overwhelming comm’y
of interest w/ the preexisting unit to which they are accreted. May be barred if
the group had been in existence at the time of recognition r cert., yet was not
covered in the ensuing K OR subsequently coming into existence had not been
part of the larger unit to which their accretion is sought.
Multiemployer Bargaining Units - Much more complicated than accretion
of single employer. Judicial assent for formation of multiemployer units.
Requires the consent of both of each employer and of the union rep. The
Board then does not conduct initial cert. elections. The union must est. its
majority status of the employees of each employer member of the unit.
o Grocery stores: If in a region where unions are successful, most
grocery store employees will be organized by unions. Q becomes for
employers - do they want to bargain separately or together. If separate
- will the Union try to drive up salaries in one store and if union won’t
go along and sets up strike (business goes down, then goes to other
stores not being struck). Theory goes that stores will be better off.
Good for unions b/c cuts out the competitive marketplace over our
improved working conditions.
o Only way you get multibargaining is through consensual agreements
after parties have est’d bargaining relationships and will bargain in
this context. THEN Q becomes how one employer can get out of it!
Can get out of it but it’s not all that easy.
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M.B. Sturgis (NLRB 2000): held that employees who are SOLELY employed by the
USER employer doesn’t require either employer’s consent to the unit, but rather
applies trad. comm’y of interest principles to determine whether the requested unit
was appropriate under 9(b). Each employer is obligated to bargain w/ the union over
the terms that it controls.
Oakwood Care Center (NLRB 2004): Overruled Sturgis to go back to the consent
rule. Said the text of the act (employer unit being the broadest unit) reflects that
Congress has not authorized the Board to direct elections in units encompassing the
employees of more than one employer, but employers can consent. Fragmenting
undermines effective bargaining b/c restricts supplier’s options in bargaining.
Effective representations means employees be grouped by common interests AND by
common employer. The nonconsensual mixing of employees of different employers
vitiates that basic principle.
Suppliers usually in India nowadays.
o Wrap-up of Material on bargaining unit. Key things: Procedures, Court Review of
Determinations, Understand Tensions b/t Key Areas Where you Run into Tensions (Single
store vs. multiple stores, craft vs. plant/industry, specifics of statutes and way they impact the
decisions), Considerations for Bargaining Units.
o Regulating:
Elections
Threats - Learned in Darlington, can close shop. Can you threaten to close? No ULP
unless threat/promise but what about predictions?
Factual Misrepresentation
Inflammatory
Promises
Interrogations, Polling, and Surveillance
o Underlying Issues: Why are we doing this? Do we really think employers engage in threats
that the employees can’t discount it as being rhetoric? Why don’t we trust workers to be able
to evaluate what the Union/Employer is saying and make their decision? Why do we think
employees need this protection AND is it effective? Are we infringing free speech?
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§ 8(c): The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an
unfair labor practice under any provisions of this Act, if such expression contains no threat
of reprisal or force or promise of benefit.
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This standard actually gives the Board a lot of flexibility in deciding, in an
exercise of its industrial expertise, that such employer conduct significantly
diminishes the ability of unions to communicate w/ employees.
o The Board’s General Shoe Doctrine and the Peerless Plywood Rule.
General Shoe: Board asserts authority to overturn elections where “laboratory
conditions” for eliciting employee preferences have been impaired even when the
conduct at issue does not rise to the level of a ULP violative of §§ 8 or 8(c).
Peerless Plywood: Board sets aside elections when an employer or a union has
delivered a speech “on company time to massed assemblies of employees w/i 24
hours before the sched. election. Interferes w/ “sober and thoughtful choice” and
undue adv. to party w/ last word. ONLY applies to speeches w/i 24 hrs. Can
individually address voters, speak to them in voluntary setting, on their own time.
o Access Remedies for Serious ULPs: Where an employer’s response to an organizing effort
is unlawful/serious in nature, the Board has ordered certain forms of union access (bulletin
boards, speech time) to the employer’s premises as a remedial measure.
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Balancing Interests - Any employer interest in secrecy is outweighed by the
substantial public interest in favor of disclosure.
o No infringement on employee rights. An employee exercises his rights
by voting for or against representation.
o No danger of harassment on employees. Mere possibility is
insufficient basis for denying the opportunity altogether.
Narrows Babcock and Nutone: The existence of alternative channels of
communication is relevant only when the opportunity to communicate made
available by the Board would interfere w/ a SIGNIFICANT employer interest.
HERE, employer has no significant interest in the secrecy of employee
names and addresses.
Adjudicative Rulemaking: Didn’t follow APA. Made it prospective. Didn’t even
apply to case before them! Wyman-Gorman (1969) says yes, this was rulemaking, but
still enforces the subpoena as a product of valid adj.
Example of the Board’s authority to prescribe fair election conditions under
General Shoe.
Regulation of the Conduct of the Election: Permissibility of the Content of Communication with
EE’s
o Determining Likely Impact of Employer Speech = OBJECTIVE TEST: The Board does
not concern itself w/ the actual impact of speech or other conduct on the specific employees
involved. Rather, determines, based on its understanding of “industrial reality,” whether the
conduct was rsbly likely to have interfered w/, restrained, or coerced them in the exercise
of their § 7 rights.
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o § 8(c) bars any evidentiary use of protected speech in a ULP proceeding. E.g., for proof
of antiunion animus.
Not OK!
o NLRB v. Gissel Packing Co. (1969) - threatening speech
Facts: At talks, pres. said (1) strikes before almost put company
out of business, (2) financial problems would close the plant,
(3) old employees couldn’t find new jobs, and (4) other
companies in the area went out of business after unionization.
Also sent letter and distributed pamphlets. Made a personal
appeal the day before the election. Board found that under the
TOTC’s the EE’r’s speech had violated § 8(a)(1)
Test: Assessment of the precise scope of the EEr’s expression must be made in the
context of its labor relations setting. An employer’s rights cannot outweigh the equal
rights of the employees to associate freely, as those rights are embodied in § 7 and
protected by §§ 8(a)(1) and 8(c).
Must take into account economic dependence of the employees on their
employers, and the necessary tendency of the former, b/c of that relationship,
to pick up intended implications of the employees that might be more readily
dismissed by a more disinterested ear.
So long as the communications do not contain a “threat of reprisal or force or
promise of benefit” mgmt. may make a prediction as to the effects of
unionization. BUT, the prediction must be carefully phrased on the basis of
objective fact. UNLESS decision already made.
o MUST be capable of proof.
HERE, the Board could rsbly concluded that the intended and understood import of
the message was not to predict that unionization would inevitably cause the plant to
close but to threaten to throw employees out of work regardless of economic realities.
Employer had no support for is basic assumption that the U would strike.
Employees were particularly sensitive to rumors of plant closings and would
take them as threats. — Isn’t this a subjective standard? Not Objective?
Employer can avoid coercive speech ULP by avoiding conscious overstatements
he has reason to believe will mislead employees.
Court did say that § 8(c) is an implementation of the 1dt Amendment
o The Gissel Test: Show predictions concerning the effects of unionization of the company by
(1) careful phrasing on the basis of objective fact (2) to convey an employer’s belief (3) as to
demonstrably probable consequences (4) that are beyond the employer’s control.
Low profit margin, in the area where the plant is located that the Union has org’d
other companies in a similar competitive product market and the Union has been
demanding similar wages in terms of conditions of employment at each of those
companies. Union would be interested in protecting deal it obtained for other workers
and don’t want to undercut that plant. This would be objective prediction.
Distinction b/t threat and prediction is “wishy-washy” to Lynch.
o Crown Cork & Seal (D.C. Cir. 1994): Example of a prediction. Employer did
not commit ULP by predicting that the union would insist on terms similar to
those found in its 12-plant master agreement w/ the employer and that such
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terms would imperil two extremely cost-sensitive projects that were necessary to maintain
current employment levels.
o Determination seems very fact based and dependent on the evidence that the EE’r is able to
or has produced to support his predictions.
o A Drafting Exercise (p. 331): Employer runs a risk b/c never know whether the alleged ULP
would turn out to be one or not. If no ULP the workers claim the employer committed then
they can be permanently replaced. Rsbly accurate that economic strikers can be permanently
replaced.
“If we allowed the union to increase your benefits, we would have to raise or prices
and this would also cost us business and require cutbacks.” More problematic b/c
depends on financials. Unclear whether this is prediction or threat.
“We won’t mess around. If we determine that we can’t operate w/o incurring higher
labor costs, we will completely shut the plant down. There is no way that the union
can help you.” This is probably a threat! Phrase this some other way.
(2) File a charge under § 8(a)(1) pursuant to ULP procedure [and can get order to
cease and desist and post notice stating the employer was found guilty].
Can reach pre-petition conduct.
Must be filed w/ 6 mo. of the alleged ULP.
o General Shoe Corp. (NLRB 1948) - ensuring laboratory conditions for elections
Facts: Supervisors visited the individual employees at their
homes after working hours to try and get them not to vote for
the Union. The day before the election president summoned
the employees in groups of 20-25 to his office (locus of final
authority in the plant) to read them an antiunion speech.
Holding: Conduct that creates an atmosphere, which renders
improbable a free choice, will sometimes warrant invalidating
an election (even though the conduct may not constitute a
ULP).
HERE, the conduct created an atmosphere calculated to prevent a free and
untrammeled choice by the employees.
Reasoning:
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Looking at the method used by the president and the supervisors, they went so
far beyond the presently accepted custom of campaigns that the Board is not
justified in assuming the election results represented the employees’ own true
wishes.
It’s the Board’s job to provide a LABORATORY in which an experiment may
be conducted, under conditions as nearly ideal as possible, to determine the
uninhibited desires of the employees.
o Caron Int’l (NLRB 1979): The Board rejected a per se approach (ULP always sets aside
election). Misconduct warrants setting the election aside requires an assessment of the # of
violations, their severity, the extent of dissemination, the size of the unit, and “other relevant
factors.”
Factual Misrepresentations
o Shopping Kart Standard: The Board does not probe into the truth or falsity
of campaign propaganda, except where deceptive practices “improperly
involve the Board and its processes, or the use of forged documents render
the voters unable to recognize the propaganda for what it is.”
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o Honeyville Grain, Inc. v. NLRB (10th Cir. 2006) - conduct, religious/racial speeches.
Facts: Union agents stated that Honeyville is run by
Mormons and give money to the Mormon church, that
companies have tax incentive to give profits to churches,
which should be shared w/ workers instead. Only made in
one meeting (out of about 10).
Test: Sewell (NLRB 1982) - Board set aside an election where employers (over 4
months) distributed anti-African-American propaganda materials focused on the
union’s support for the civil rights movement. The burden is on the challenging to
demonstrate that the religious/racial remarks were inflammatory or formed the core of
the campaign. Once satisfied, the burden shifts to the party making the remarks to
prove that such comments were truthful and germane. The court will set aside the
decision if the uninhibited desires of the employees cannot be determined in an
election.
Inflammatory = statements tending to excite to excessive or uncontrollable
action or feeling.
Holding: The Union’s conduct here did not so lower the standards of campaigning
that the uninhibited desires of the employees could not be determined in an election.
Even if the evidence were fully credited, Honeywell failed to est. that the Union’s
conduct amounted to a “sustained inflammatory appeal” or a “systematic attempt to
inject religious issues into the campaign.” Religion was not the core theme of the
campaign.
If you get into racial statements, if it’s a consistent, inflammatory act, then the
Board will set aside the election and order a new one. BUT no ULP.
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granted by the company since 1949 and an estimate of the monetary value of those
benefits accompanied the letter.
Not a conditional bribe; didn’t depend on the outcome of the union election.
Issue: Whether § 8(a)(1) prohibits conferral of economic benefits on his employees,
in isolation, where the employer’s purpose is to affect the outcome of an election.
What’s really wrong w/ a promise? Nothing taken away. Should it be treated
as a ULP? Why can’t the employees benefit from the improvement in their
wages and still understand that the reason the employer is doing this is the
Union? So little confidence in the worker that the worker can’t evaluate and
still make a free choice?
Holding: With antiunion motive established, an employer may not confer benefits
without violating § 8(a)(1).
Reasoning:
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 not obliged.
Insulating the employees from calculated good will like this doesn’t really
deprive employees from anything that has lasting value.
Underlying concern? Could say this case is premised at least in part on the notion that
it is unfair to allow employers to “bribe” employees during the campaign when the
union, which does not control wages and working conditions, does not have the same
tactic available to it.
o The Board and the courts consistently hold that an employer’s offer of a benefit to
employees conditioned on their opposition to or rejection of a union should be treated
the same as threats against their support of a union.
THE TEST
Presumption - Board’s practice is to infer that a grant of benefits that coincides w/
employee union activity was improperly motivated and interfered w/ the employees’
§ 7 rights.
Burden - Employer must establish “that the timing of the action was governed by
factors other than the pendency of the election.
The employer can meet this burden by showing, e.g., that the grant of benefits
was the product of a previously est’d company policy, and that it did not deviate
from that policy following the onset of the union campaign.
o NLRB v. Savair Mfg. Co. (1973) - Exchange Parts rule applies to Unions conferring benefits
Facts: “Recognition slips” circulated prior to election. An employee who signed the
slip before the election became a member of the U and would not have to pay an
initiation fee/fine if the U was voted in. The U won the election 22 to 20.
COA denied enforcement of the Board’s bargaining order. S.Ct. affirms.
Issue: Waiver of fees = increase in benefit?
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Holding: The influence of these slips may have had a decisive impact in this case
where the change of one vote would have changed the result [coercive], thus the U
committed a ULP under Exchange Parts.
Reasoning:s
Tool the U could use to their advantage b/c employees respect their
coworkers’ views on unionization issues.
By permitting the U to offer to waive an initiation fee for those employees
signing a recognition slip, the Board allows the union to buy endorsements
and paint a false portrait of employee support during election campaigns.
Dissent:
Well-est’d that an “unconditional” offer to waive initiation fees, where the
waiver offer is left open for some pd of time after the election, is not coercive
and does not constitute a ULP. There is no evidence that the fee was normally
imposed for the sole purpose of removing it during a labor campaign.
Distinguishable from Exchange Parts b/c (1) her the benefit is only
contingent and small, and (2) the fist is missing b/c made by union rather than
employer (source of benefits) (the U cannot make the same threat by offering
a benefit which it would take away if it lost the election).
Note: This was through an 8(a)(5) ULP charge/collateral attack of the EE’r.
o Fine line b/t polling and interrogating. If you do it in the office of the supervisor and the
locus of authority and do it more than once, then you have interfered w/ a free election.
o Always advise clients that they can talk to the workers about why a Union is a bad idea from
the perspective of mgmt. BUT different thing to have them in locus of authority and ask them
how they feel about union.
o Overview:
Permissible to recognize card majority of union, but can’t FIND OUT in this way.
Must follow criteria for polling (make clear that no adverse impact… best off if have
neutral T do the polling for you).
Surveillance: Can’t take photographs of who’s on picket line, etc. Can be ULP or at
least interference to cause election to be set aside.g
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Bourne Factors of Coercive Questioning:
The background, i.e., is there a history of
employer hostility and discrimination?
The nature of the information sought.
The identity of the questioner, i.e., how high
was he in the company hierarchy (can he hire
and fire)?
Place and method of interrogation (locus of
authority)?
Truthfulness of the reply.
Holding: The Board could rsbly conclude here that the questions were motivated by
the improper purpose to elicit specific info. concerning union strategy so that the
Company could better plan its own antiunion strategy. This was enough to disrupt
laboratory conditions so as to require a rerun election.
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NLRB-Compelled Recognition Without an Election
NLRB v. Gissel Packing Co. (1969) - the Gissel bargaining order—did Taft-
Hartley remove power to order bargaining w/o election as a remedy of ULP’s
o Facts: The U waged an organization campaign, obtained authorization
cards from a majority of employees in the appropriate bargaining unit (w/o
any coercion), and then, on the basis of the cards, demanded recognition by
the employer. All 3 employers refused to bargain on the ground that
authorization cards were inherently unreliable indicators of employee
desires; and they either embarked on, or continued, vigorous antiunion
campaigns that gave rise to numerous ULP charges.
Board found that refusal to bargain violated § 8(a)(5). Sounds like Joy Silk but what
Board had been doing was not a Q of whether good faith doubt, but if you commit
ULP that are serious enough then it inhibits free choice, (laboratory conditions) then
its an 8(a)(5) violation for refusing card majority.
How do you distinguish b/t the three categories of cases created by this
opinion? How does Linden impact this?
COA said refusal to bargain did not violate 8a5 and refused to enforce the Board’s
order directing the employers to bargain on the basis of Taft-Hartley, which enabled
the Board to certify by secret ballot elections under §9 (c), but withdrew bargaining
duty on the basis of cards, in the absence of NLRB cert., unless the employer knows
independently of the cards and there is in fact no representation dispute.
o Holdings:
Board Authority: The Board has authority to issue such an order on a lesser showing
of employer misconduct, where there is also a showing that at one point the union
had a majority.
Remedy: In its discretion, the Board can issue a bargaining order.
Consider the extensiveness of an employer’s unfair practices in terms of their
past effect on election conditions and the likelihood of their recurrence in the
future. If the Board finds that the possibility of erasing the effects by the use
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of trad. remedies is slight and that employee sentiment once expressed
through cards would be better protected by a bargaining order, then they
should issue one.
o Reasoning:
Joy Silk - an employer could lawfully refuse to bargain w/ a union claiming
representative status through possession of authorization cards only if he had “good
faith doubt” as to the U’s majority status. Under Joy Silk, an employer could refuse a
bargaining demand and seek an election instead “w/o a valid ground t/f.”
Aaron Bros. - A bargaining order would issue if an employer’s “course of
conduct” gave indications as to the employer’s bad faith —e.g. reneging n an
agreement to bargain upon verification of cards by 3d party
Board says an employer can insist to election regardless of subjective
motivation so long as not guilty of misconduct. Can demand election w/ no
comment. Can’t refuse to bargain if (1) knew through Strunksnes poll the U
had majority, and (2) can’t refuse initially b/c of appropriateness of the unit
and then later claim he doubts union strength.
Board authority for recognition other than election – Unions not limited to
elections by the Act or by Taft-Hartley
§ 9(a) refers to reps as the one “designated or selected” by a majority of the
employees. Doesn’t specify precisely how that rep is to be chosen; just needs
“convincing evidence of majority support” (here by possession of cards signed
by a majority).
An employer can test his doubts as to the majority in a secret ballot, unless he
engages in “contemporaneous ULPs likely to destroy the U’s majority and
seriously impede the election.”
Remedy for a § 8(a)(5) refusal to bargain -
Cease-and-desist (10(j) injunctions) as only remedy would reward the
employer and allow him to profit from his refusal to bargain.
Only way to effectuate employee rights is to reestablish the conditions as they
existed before the employer’s unlawful campaign.
The Court expresses a resorative purpose to the order: not all ULP’s will result in
Bargaining orders, rather, the EE’r’s conduct must be such that it undermined the
election process and that likelihood of a fair election expressing the true desires of the
EE’s is now slim — who has to show this?
Framework:
o “Gissel I” case - “outrageous” and “pervasive” ULPs (must the U have majority of cards???
Not clear whether Board has authority when non-majority).
Hallmark violations thought to be particularly coercive and have lasting effect are
actual/threatened plant closure, other threats of job loss, and § 8(a)(3) discharges. In
GC brief. Really should depend on the facts of the case before the Board & COA’s
have refused to enforce for failing to address why other remedies will not work
o Intermediate case - If not outrageous, but still threatening, and the Union had card majority,
then Board can issue bargaining order.
But how bad do ULPs need to be?
o “Gissel II” case - fair election conditions for a rerun cannot be restored through traditional
remedies. Bargaining order cannot issue.
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Note: Section 10(j) as a Tool in Organizing Cases: GC Memo on Eff. Remedies (Dec. 20, 2010)
o GC’s commitment to seek Section 10(j) injunctive reinstatement as a
quick and effective remedy for an employer’s serious unlawful conduct
during union organizing campaigns. Defined as to whether there is a
likelihood of ULP and issue an order.
o Purpose = touchstone should be prompt and effective relief to best
restore the status quo and recreate an atmosphere in which employees
will feel free to exercise their Section 7 right to make a free choice
regarding unionization.
Notice-Reading: Have employee read a notice (w/ official of plant present)
Access to Bulletin Boards
Allow Access to Excelsior List (before reaching level of being able to petition for
elections)
Order backpay of anyone discharged
o Symbolic remedies that the employer is not all-powerful in context of organizing campaign.
Employees can observe that and learn that the Board will protect them while they’re
organizing. GC refers to it as “nip-the-bud” cases.
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Bars to an Election
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Holding: Whenever a union wins an election, there should be a period of time for
bargaining (at least one year’s protection) before the employer can ask for a new
election.
One year pd may run from the date of certification rather than the date of
elections (w/i Board’s discretion). If employer refuses to bargain then runs
from date of commencement of GF bargaining. Mar-Jac Poultry (NLRB
1962).
Employer can refuse to bargain if he has fair doubts about the union’s
continuing majority.
Reasoning:
If employees are dissatisfied, should submit grievance to the Board. If
employer has doubts, should petition Board for relief, continue to bargain
until Board gives some indication his claim has merit.
Employers shouldn’t engage in self-help. Congress set up formal mode of
selection/rejection of Us w/ aim of industrial stability.
o The Recognition Bar: Voluntary recognition (w/o election but by agreement) constitutes bar
to election for a “rsbl time” for parties to reach agreement on first K. Keller Plastics (NLRB
1966). Typically takes a year to negotiate a first K, but Board adjudicates case-by-case.
Looks to degree of progress made, taking into account “attendant problems” of establishing
initial terms and conditions, and whether parties were at impasse.
o The Contract Bar - bars an election among employees covered by a valid and operative CBA of rsbl
duration.
Requirements and Duration
In writing and properly executed
Contain “substantial terms and conditions of employment” sufficient “to stabilize the
bargaining relationship,” including a termination date.
Bars a decertification petition filed by employees or rival union for only 3 years, even
if the K is longer.
o Contracting employer and union are barred for the entire K term.
The Window and Insulated Periods
Window period - 30 day period 60-90 days prior to the expiration date of the K - rival
union, employer, employees seeking decertification can only file in this period.
Insulated period = 60 day period following the expiration of the 30 day window.
Gives the parties 60 days to negotiate “free from the ‘threat of overhanging rivalry
and uncertainty.”
o Slightly different in health care context.
Not mandated by terms of NLRA.
Premature Extensions
Extension of prior agreement, w/ or w/o modifications, prior to the beginning of the
insulated pd as measured by the original agreement.
Does not bar an election if the petition is timely filed during the 30 day pd as
measured from the expiration term of the original agreement BUT after that point -
new three-year K bar. See Republic Aviation.
Lifting the Bar
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Schism - when there is a fundamental split w/i the union over basic policy issues
which reaches form the local to the highest levels of the international, and where the
employees have taken affirmative steps to change the incumbent b/c of these
differences.
Defunct - no longer able or willing to represent the employees; a temporary inability
to function will not suffice.
Disclaimer - aff. disclaims interest in continuing to represent employees, even though
it is capable of doing so. If the Board determines that it is the result of collusion b/t
two unions, the K bar will remain in place.
Withdrawals of Recognition During the K Term
Bar only applies to election petitions, not to employer withdrawals of recognition.
BUT a union’s continuing majority status is irrebuttably presumed during the term of
a K, up to a 3-year maximum.
Auiciello (1996): Just after the union accepted K offer, employer withdrew
recognition b/c evidence came up casting doubt on union’s majority status that it had
gathered just before the union accepted the K The courts agreed the withdrawal was
unlawful in light of the new K. No dice b/c employer using this right as leverage. This
skews the bargaining relationship and makes CBAs vulnerable to a postformation
challenge that would not serve the Act’s goal of achieving industrial peace.
The Special Case of Construction Industry Prehire Agreements: John Deklewa - although
8(f) agreements are enforceable through 8(a)(5) and 8(b)(3), they do not erect a K bar.
The Blocking Charge Policy: Under Board’s policy, agency declines to proceed with an election
when ULP charges involving the unit are pending. Purpose - protect employee free choice. Can be
lifted if the Regional Director finds that a fair election can still be held, or if the charging party files
a “Request to Proceed.” Can delay significantly the ability of the employer to decertify the union.
Note: Employee-Initiated Decertification Petitions: Employees may seek to oust union via
decertification petition under § 9(c)(1)(A)(ii). Must be supported by 30% showing of interest.
(Board’s blocking charge policy—unions file ULP charges to stave off elections that may result in
their ouster.) Can only file in 90-60 window period or insulated period.
o When a K is due to expire (90 up to 60 days before) - window starts that goes for 30 days. A
petition by the employees that no longer wants a union can be filed to the Board. Lets the
employer known to cease and desist from bargaining w/ that Union until the expiration of the
K. An election will then be held by the board to see if that Union should represent the
employees.
o Another union coming in has to give NOTICE w/i the 30-day window that they will
challenge the rival union.
o If no decertification request, then know for the last 60 days of the K, that you can bargain
away! And if you get another K during those 60 days have another 3 years (contract bar rule
kicks back in).
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Both the majority and Rehnquist suggest that it would be rational for the Board to require a greater
evidentiary std for RM elections than for polling.
Note: Remedy for Unlawful Withdrawals of Recognition: Standard remedy = cease and desist
order and a bargaining order. To restore to the U the bargaining opportunity which it should have
had in the absence of unlawful conduct and to prevent the possibility that the wrongdoing employer
would ultimately escape its bargaining obligations as the result of the predictably adverse effects of
its unlawful conduct of employee support for the U.
Other Remedies: Where an employer has unlawfully refused to bargain in making unilateral
downward changes in the employees’ wages or working conditions, the remedy will include an order
to make the employees whole.
Voluntary Recognition
o Card Challenges:
One way to challenge cards is through alleging misinformation. (Gissel)
Forum: Regional office will hold hearings.
NLRB generally does not like to look too deeply into the amount of
misinformation being used.
Another way to challenge is if bargaining unit is appropriate. (Bernhard-Altmann)
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purpose authorization cards (cards that make clear that the signer is authorizing the U
to act as agent) are presumptively valid.
Reasoning:
On cards not reflecting free choice: see above.
On cards obtained through misrepresentation and coercion (and t/f inferior to
elections): see above.
o Employees should be bound by the clear language of what they sign
unless that language is deliberately and clearly canceled by a union
adherent with words calculated to direct the signer to disregard and
forget the language above his signature.
o None of the following undermines the validity of a single-purpose
card: (1) that the card will be used to get an election, (2) that employee
UNION had the right to vote even if signs card, (3) that the card would be
secret ---just to get election.
o The Board does not count as evidence of majority support authorization cards signed by
employees who have also signed in support of another union. The agency, however, will
count cards that repudiate cards signed for a rival union.
§8 (a)(2): It shall be and unfair labor practice for an EE’r—to dominate or interfere with the
formation or administration of any labor organization or contribute financial or other support to it,
Provided, that subject to rules and regulations made and published by the Board pursuant to § 6, and
EE’r shall not be prohibited from permitting EE’s to confer with him during working hours without
lass of time or pay;
o
o
o
o
o Bernhard-Altmann v. NLRB (1961)
Facts: U intitiated org’l campaign at B-A’s knitwear mfg. plant.
Employer signed “memorandum of understanding” when
employees were striking (unrelated) recognizing the U as
bargaining rep of all production and shipping employees. U said
they had card majority. Never checked cards against the employee
roll b/c didn’t have majority. U agreed to stop the strike though.
After, a formal CBA was signed.
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Board found a direct deprivation of the non-consenting majority employees’
org’l and bargaining rights under § 7.
Holding: It was an ULP (§§ 8(a)(1), (2) and 8(b)(1)(A)) for both an employer and a
union to enter into an agreement under which the employer recognized the union as
exclusive bargaining representative of certain of his employees, although in fact only
a minority of these employees had authorized the union to represent their interests.
Remedy = cease bargaining and ordered election.
If an employer takes rsbl steps to verify union claims, themselves advanced
only after careful estimate he can readily ascertain their validity and obviate a
Board election.
Reasoning: Rejects that majority at CBA matters b/c no majority at memorandum
date (employer support takes away free choice). Rejects that employer’s good faith
belief in majority rep matters. Employer was careless and gives the U the power to
completely frustrate employee free choice. Scienter, t/f is not element of the ULPs
involved here. Not undue burden to take rsbl steps to ensure U majority is valid.
o Voluntary Recognition Bar: The Board held that all voluntary recognitions erect a bar to an
election or withdrawal of recognition for a “rsbl time.” Dana Corp. and Metaldyne (NLRB
2004) held no temporary bar when the agreement was reached b/t the U and employer before
cards evidencing majority status were obtained. Reasoned that elections were the best
method for determining whether employees desired union representation. 3-2 Bush decision.
Dissenters argued bar is good policy for industrial peace and stability and that the doctrine
had been welled settled.
o Keller Plastics (1966) (recognition bar) held that when you do recognize a union on a card
majority, the rsbl period under which the Union majority cannot be challenged is 6 months to
a year.
Dana Corp. (2007): Bush board reconsiders recognition bar. Board concerned w/
employee free choice. Happening at the same time that Free Choice Act is in
Congress (act and Dana at odds). Not totally overruled, but sets up a system of
decertifying based on employee concerns.
Modifications:
o Union must immediately notify Board of Recognition and post
notice to employees. No elections will be imposed after a card-
based recognition unless (1) employees in the bargaining unit
receive notice of the recognition of their rights, and within 45 days
of the notice, to file a decertification petition or to support the
filing of a petition by a rival union, and (2) 45 days pass from the
date of notice without the filing of a valid petition.
o Valid petition will be supported by 30% of the unit employees.
(including sigs from before as well as after recognition.)
o But, Employer must bargain w/ union during these 45 days.
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But how can bargaining go well if it is uncertain that union will
be around after 45 days?
If petition is presented, any CBA will not take effect until after
an election.
Free choice act would have wiped out this opinion.
o “Prehire” Ks in the Construction Industry: § 8(f) permits what Bernard-Altmann says you
cannot do. In the construction sector, employers can enter CBAs w/ an independent (that is,
not otherwise employer-supported) union BEFORE the union has demonstrated majority
support. Workforce is much more temporary and fluid. Hiring halls are most efficient way to
get temp workers.
o Note: The Kroger “After-Acquired” Facility Doctrine: The parties to a CBA may lawfully
agree that the CBA automatically extends to a new facility upon proof of the union’s
majority support among the affected employees. Even where no express provision containing
application of the CBA to the new facility on proof of majority, the Board will read that
condition into the agreement as a matter of law (for agreement to be lawful).
Does Dana Corp. apply to After-Acquired facilities? A Rep. Board might apply it.
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vs. like 90% by 144). Thus, employer violated 8(a)(2). Ordered employer to
w/draw and w/hold recognition until cert. in a Board-conducted election.
o Rival Union Challenges to an Incumbent Union: RCA del Caribe (NLRB 1982) held that
mere filing of a rep petition by a rival union does not permit an employer to cease bargaining,
and any K executed after the petition has been filed will be ull and void if the challenging U
wins the election.
o Decertification Petitions: Decert petitions do not require the suspension of bargaining w/
the incumbent (so as not to influence the impending decert election). Employer remains
under a duty to bargain in good faith, subject to the actual-loss-of-majority in fact rule (only
valid defense to an unlawful w/drawal of recognition charge under Levitz Furniture).
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Card-check agreements = provide for rec. once the employer or a neutral T has
confirmed that the U has pained auth. cards from a specified percentage of the
bargaining unit (ranging from majority to 65%).
Neutrality provision = can’t say derogatory things about the other party during an
org’l campaign, etc. Varies widely by agreement.
Enforceable under Linden Lumber which said election pref. policy does not extend to
agreements to abide by a poll or card check: an employer that agrees to honor the
results of a poll or card check then refuses to bargain violates § 8(a)(5).
Under Kroger, employers must honor agreements to recognize the U as the rep. of
employees in “after-acquired” stores and to apply the CBA to them upon proof of
majority support of the U. Us can also agree to NOT attempt to org. the employees at
some other facility by express agreement.
§ 8(b)(7) (paraphrased) - It’s a ULP for a Union to picket, threaten to picket, or cause to be picketed
any employer where an object is forcing or requiring an employer to recognize or bargain w/ a union, or
forcing or requiring the employees of an employer to accept or select the union, unless the union is
currently certified,:
(A) where the employer has lawfully recognized in accordance w/ this Act any other labor org. and a
question concerning rep. may not appropriately be raised under section 9(c), or
(B) where w/i the preceding 12 mo a valid election under 9(c) has been conducted, or
(C) where such picketing ahs been conducted w/o a petition under section 9(c) being filed w/i a rsbl
pd of time not to exceed 30 days from the commencement of such picketing: Provided, that when such a
petition has been filed the Board shall direct an election as the Board finds to be appropriate and shall
certify the results: Provided further, That nothing in this sub¶ prohibits any picketing or other publicity
for the purpose of truthfully advising the public that an employer does not employ members of, or have
a K w/i, a labor org., unless an effect of such picketing is to induce (secondary boycotts).
Nothing in this section will permit any act which is otherwise a ULP under section 8(b).
8(b)(7) does NOT apply when:
U picketing to protest employer ULPs. See Blinne fn. 29.
Unrecognized Us picket employer in support of a particular demand that can be satisfied w/o
recognition. See Blinne fn. 29.
“Area standard” picketing aimed at causing the employer to adopt employment terms at his
enterprise commensurate w/ those prevailing in his locale.
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If U confined its picketing to protest the discriminatory transfer of the employee and
the payment of wages at a lower rate than prescribed by law, 8b7 would not apply and
the U would not have committed a ULP.
o Reasoning:
Section 8(b)(7) only limits picketing for an object of recognition/bargaining or for
an object of organization, UNLESS already certified. If not certified, still only barred
in 3 areas (subsections (A)-(C)).
(A) and (B) are clear (immunity periods): where a U has been lawfully rec.
and a Q concerning rep. cannot appropriately be raised, or where the
employees w/i the preceding 12 months have made known their views
concerning representation, both the employer and employees are entitled to
immunity from rec. or org. picketing for prescribed periods.
(C) concerned w/ “blackmail” picketing: Even where picketing is otherwise
permissible, such picketing is ltd to a rsbl pd of 30 days unless a
representation petition is filed before the 30 days run out. Then can have an
expedited election pursuant to the petition and a 8(b)(7) proceeding (normal
rep. procedures apply---showing of a substantial interest and a preelection
hearing BUT the employer MUST file the 8(b)(7) charge).
o (B) + (C) = If picketing U rejected in a VALID election, then barred
from picketing for 12 months. Policy = quick resolution to the dispute.
o (C) - no time limit on publicity picketing.
U not certified. did not file rep petition during the 30+ day picket. U argues that they
were picketing for a lawful purpose and employer had duty to rec. the U. BUT
explicit language of 8b7 doesn’t exempt them. The Board’s reading here is in line w/
the policy to resolve rep. disputes by election whenever possible. Thus, there is a
violation.
Us MUST file the rep petition w/i 30 days. When ULPs prevent a free and fair
election, the rep. case will be held in abeyance until the ULP charges are resolved.
The Employee Free Choice Act of 2007: Intended “to enable employees to form, join, or assist labor
organizations, to provide for mandatory injunctions for ULPs during organizing efforts, and for other
purposes.” http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.800.EH:
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Collective Bargaining and the Good Faith Requirement
ISSUES:
What kind of remedy would deter Unions/Employers from engaging in violations of § 8(a)(5).
Critical in the area of first-time Ks.
Should you have to bargain if you want to subcontract out the work to India where you don’t’ have a
statutory duty to bargain?
NLRB v. Ins. Agents’ Internat’l Union (1960) - models of the bargaining process - economic
conflict is cool
o Facts: Insurance Union and Insurance Company could not reach an agreement as to a new
CBA despite the union’s attempts to bargain in good faith at the table. The Board found that
the Union’s actions outside of the negotiating table (slow down tactics) were constructive
ULP’s for failure to Bargain under § 8 (b)(3) in part b/c they were unprotected by § 7.
o Holding: The Board’s may not intrude into the substantive aspects of the bargaining process
and it exceeded §8 (b)(3); (d) by inferring lack of good faith from the tactics it used to exert
economic pressure in the course of the good-faith bargaining negotiations
o Rationale: The Union’s actions are not forbidden by the NLRA but neither are they protected
under § 7.
The DTB was not sweepingly conceived of and the DTB is essentially a corollary of
the EEr’s duty to recognize the union — nothing more.
Recognized tension b/w the DTB and the principle that parties need not reach
agreement on a particular term of the K
1947— Congress afraid that the Board was forcing EEr’s to K and wrote in
the Good-faith Bargaining test in § 8(d) of the Taft-Hartley Act.
Congress also imposed reciprocal duties on the unions in § 8 (b)(3)
Congress’ policy was that imposing reciprocal duties on the parties promoted the
over-all design of achieving industrial peace: narrowed issues, clarified the demands,
etc…
By attempting to regulate the choice of economic weapons that may be used as part of
collective bargaining, the board places itself in a position to exercise considerable
influence upon the substantive terms of the K.
The use of economic pressure is not at all inconsistent with the DTB and it does not
matter that the type of activity here is not protected from disciplinary action by § 7.
The standards in § 8 (b)(3) are too general and not designed to allow the board the
power to sit in judgment over the type of economic pressures exerted by the union.
o If you’re an employer, how do you protect yourself against this? Employer can
discipline/discharge these workers. Court is saying a slowdown is not protected under § 7.
Just because it’s unprotected doesn’t mean the union is violating 8(b)(3).
NLRB v. American Nat’l Ins. Co. (1952) - the problem of “surface bargaining”
o Facts: Union and Mgmt could not agree to a new CBA where the Union proposed an
unlimited arbitration clause, and where the EE’r proposed a mgmt. clause covering certain
conditions of employment (which the Rep. refused). Parties impassed and the Union filed
charge for failure of DTB. The Board rejected the ALJ’s findings that the Co. had a right to
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negotiate on the Mgmt. clause because it covered conditions of employment and issued an
order prohibiting the clause and ordering the Co. to bargain with the union.
o Holding: The duty to bargain collectively is enforced through the statute § 8(d) and the
factors must apply on a case-by-case basis to avoid the Board intruding into the substantive
terms of the CBA
o Rationale: The duty to bargain is implicit in the NLRA and was made express when Congress
made it the 5th ULP
Taft-Hartley says that the DTB does not compel agreement or the making of a
concession
The Board proposes a different test for DTB than found in § 8(d) and held that the
EEr’s counterproposal was a per se violation of the DTB.
If the EE’r had simply refused to agree to the arb. Clause, the Board concedes that
there would have been no ULP
But board maintains that the inclusion of the mgmt. clause covering some conditions
of employment was a derogation of the EE’s rights under the statute
The Board may not pass upon the desirability of the substantive terms of labor
agreements
The DTB is to be enforced by application of the good faith bargaining
standards of § 8(d) to the facts of each case rather than an outright prohibition
o Dissent: Where the employer tells the union that the only way to obtain a K as to wages is to
agree not to bargain about other working conditions, the employer has refused to bargain
about those other working conditions. Closing off an area of bargaining is a violation of
§ 8(d).
NLRB v. A-1 King Size Sandwiches, Inc. (11th Cir. 1984) - “surface bargaining”
o Facts: Company and Union bargained, meeting 18 times over 11 months but could not reach
an agreement beyond a few terms of lesser importance. The Company essentially insisted on
unilateral control over numerous terms and conditions of employment that were all
mandatory subjects of bargaining under the act. The attempted retain compete control over
all discipline and discharge, layoff and recall, wages and wage increases without allowing
recourse to grievance procedures or arbitration, denied the non-discrimination clauses, and
responded to the Union’s objections to the breadth of the management rights clause with an
even broader proposal
o Holding: The Board Correctly inferred bad faith form the Company’s insistences on
proposals that are so unusually harsh and unreasonable that they are predictably unworkable.
o Rationale: It was clear that the parties had “reached the point when hard bargaining ends and
obstructionist intransigence begins.”
Company insisted on unilateral control over virtually all significant terms and
conditions of employment including:
Discharge and discipline
Layoff and recall
Subcontracting and assignment of unit work to supervisors
Company required workers to surrender statutory right s to bargain or strike, without
offering any incentive
Denied the union any voice whatsoever concerning work and safety rules, time
studies, production quotas, O-T assignments, transfers retirement, demotions, and EE
qualifications
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Vague Standard = . No predictability! Workers who strike, employer can hire permanent
replacements. 8a5 can protect the workers if they go on strike, but the standard is so vague that
Union can never really be sure to tell the workers they are safe. If Union is wrong, those workers are
out of work!
o NLRB v. Reed & Prince Mfg., 205 F.2d 131, 134–35 (1st Cir. 1953)
Holding: “If an Ee’r can find nothing whatever t agree to in and ordinary current-day
K or in some f the union’s related minor request, and if the EE’r makes not a single
serious proposal meeting the unions at least part way, then certainly the Board must
be able to conclude that this is at least some evidence of bad faith.”
o Procedural Rigidity
The principal cases deal with substantive rigidity — the Board’s authority to review
the procedural aspects of the parties’ negotiations, however, would seem to fit within
§ 8(d)’s statement of the “mutual obligation” of the parties “to meet at reasonable
times and confer in good faith
o Boulwarism: Where the company sought to avoid last minute 11th hour bargaining due to
unrealistic initial bargaining positions, they polled their own workers to determine what their
real issues were and issued a proposal from which it would not budge (although willing to
entertain facts the pollsters may have missed).
NLRB v. G.E., 418 F.2d 736 (2d Cir. 1969): The court found that G.E. violated §
8(a)(5) because their communications of their bargaining position to its EE”s caused
it to become so locked into its initial position that alternative proposals (even those
entailing no additional costs) were rejected out or hand
But what about exclusive bargaining rights of the Union and “direct dealing”
prohibitions
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Holding: Where the parties are unable to reach an agreement, the Board’s rem.
Powers are limited to the policies of the Act and the Board has no power to direct the
substantive terms of a CBA in violation of the freedom to K.
Rationale: The objective of the Wagner Act was to allow ensure that EE’rs and EE’s
could work together to establish mutually satisfactory working conditions, not to
allow government to regulate the terms and conditions of employment.
Congress found in 1947 that the Board had been going too far and amended
the act to prevent the Board from taking more and more control of the terms
of CBA’s
Congress added the non-compulsion provision to § 8 (d), which applies not
just to finding when a violation has occurred, but also limits the remedial
powers of the Board
The Board’s remedial § 10 powers are broad but limited to carrying out the
policies of the Act.
Allowing the Board to compel agreement when the parties themselves are
unable to agree would violate the fundamental premise on which the Act is
based —private bargaining under governmental supervision of the procedure
alone, without any official compulsion over the actual terms of the K.
o In some instances the Board is permitted to require restoration of the status quo ante as a
remedy
Fireboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964): The Board, with the
court’s approval ordered the EE’r who had unilaterally contracted out the unit work
( a mandatory bargaining subject) and laid of the unit EE’s, to reinstate the closed
operation and reinstate the EE”s with back pay.
First time Bargaining: The success rates of newly certified units in achieving first time CBA’s is
low—around 55–57%.
o Over half of all ULP charges occur in the context of first-time bargaining
o The G.C. had urged the board to make greater use of 10(j) relief and/or “special remedies” as
part of the Board’s order in the first K cases
o Make-Whole Relief: Ex-Cell-O Corp, 185 NLRB 107 (1970): ALJ recommended that the
Board make the EE’s whole for all monetary losses sustained as a result of the company’s
unlawful refusal to bargain. The Board held that it lacked the authority to permit the
punishment of a particular respondent and that the EEr’s refusal to bargain with the newly
certified union was in the exercise of its right to seek judicial review of the boards rejection
of its objections to the election
Essentially the remedy would require the EE’r to compensate the EE’s for losses they
incurred as a consequence of their EEr’s failure to agree to a K he would have agreed
to if he had bargained in good faith
Highly speculative and would require the EE;r to accept responsibility as though he
had agreed to the contractual provision
The Dissenting members: The rule against speculative damages targets speculative
injury—not amounts. Here the injury is the failure to bargain depriving the workers of
their statutory rights—damages may always be calculated.
o Is this a violation of H.K. Porter? ENORMOUS tension. Only the D.C. Cir. likes this type
of relief. (Tiidee case.)
o NOT a common remedy.
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Retroactive Relief: If ongoing bargaining relationship, the power to get a remedy has a lot more bite
b/c have an obligation to bargain to impasse w/o altering terms/conditions of emel. and that
obligation is breached, then board has power to reinstate the status quo before you engage in
unilateral activity.
Interest Arbitration: Once card majority certified, union would request bargaining and w/i 10 days
employer must bargain. If not w/i 90 days, would then call in Fed’l Mediation Conciliation service
and go into mediation. If no K after another 90 days, goes to arbitration. FMCS rules. Interest
arbitrators appointed by FMCS would set terms of the agreement (how many terms would they set?
Unclear in legislation). This K would last for two years instead of three.
Disclosure Obligations
If can’t regulate tactics (e.g., slowdowns) b/c they are core, are there areas in the context of 8a5
where the board does regulate tactics or create obligations.
NFL Labor Dispute: Careful how they crafted refusal for financial records. Just said they
wanted the extra billion. If they had said it was for financial necessity would have needed to
divulge financial records according to this case. Can’t say competitive advantage b/c the league
doesn’t really compete against any other serious league. Plead that you can’t afford to pay then
have to give up the records.
Detroit Edison Co. v. NLRB (1979) - failure to share - necessary to successfully arbitrate on
behalf of workers
o Not a failure to share info. in order to create bargaining relationship, but failure that
union needs to successfully engage in grievance arbitration. When obligation, what
factors get considered? Goes to remedy (board order).
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o Facts: Ten employees applied for promotions, but none of them received an acceptable
score on a battery of aptitude tests, so the job was filled w/ an applicant from outside the
bargaining unit. Board ordered test scores of employees. Enters remedy side.
o Holding: Employees must agree to have the records divulged.
o Reasoning:
Must protect integrity of the test. Can be overcome by giving it to a third party
neutral check the validation on the test instead, but union wanted to see the test.
o (Arguably info. that should be kept secret.) BUT why should the assumption of the court
be that the union would use the info. in a negative way.
Not REALLY a regulation of a tactic. If you don’t share enough info., can’t do their jobs. Thus, you can
say it’s not really a regulation of tactics like American Ins.
Impasse
When you reach moment of impasse, what kind of changes can the employer make? Underlying concern
= at some point employers have to be free to respond to market changes. If wages go up above where the
prior K provided, the employer has an interest in being able to respond to that change in order to not lose
his employees. At what point is employer permitted to act? Want entrepreneurial discretion but don’t
want to undermine the ability of the union to have voice as to what the new K should include from the
perspective of the workers. This tension becomes difficult in the sit
If a Union has the ability to strike prior to impasse, can the employer have the right to lockout
before impasse? This has never been clarified by the Supreme Court.
Letting employers do this early on seems to be a tactic. Engaging in unilateral change is a tactic
that puts pressure on the union prior to agreement. Real tension w/ Ins. Agents.
o Different opinions on the sick leave policy presents a problem. Merit employees only
given to 20 employees out of 50. Employer taking unilateral control over merit increases.
Most changes in Katz itself DID undermine role of the union.
o Constrains ability of employer to respond to market forces.
Impasse: Fed’l mediation body determines when there is impasse. Can’t strike/lockout until you go
before this governmental body for a determination.
o Must be overall (vs. piecemeal impasse) in all circuits except the 5th.
o Implementation OK upon impasse. WHY? Breaks the impasse and t/f encourages future
collective bargaining. BUT stagnancy might pressure both parties into negotiation.
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o Following impasse, an employer may lawfully implement “proposals rsbly comprehended
w/i those it offered before impasse.” Taft Broadcasting (NLRB 1967).
o Telescope Casual Furniture (NLRB 1998): an employer may use the implementation of less
favorable proposals as a bargaining tactic. Final offer and less favorable alt. presented. Just
hardball bargaining.
Which terms survive the expiration of the K during bargaining, before impasse?
o Linden Lumber - arbitration clauses don’t go past pd of when K expires b/c they are
consensual in nature.
o Individual statutory rights. Notion that you can’t waive individual statutory rights unless
the K explicitly does it. So when K expires, do the terms of it wiaivng these rights end
right when the K expires or does it continue on?
o Mgmt rights clause - means that employer gets complete discretion during bargaining.
Waiver of obligation to bargain. When K expires, no longer have wavier operating so
does everything that mgmt. has done itself to control does the fact that there’s this waiver
continue after the K? Or does the clause expire and the employer to continue to control
what it could under the K is the employer permitted to make changes the same as it could
under the K (or b/c mandatory subject must bargain to impasse before making seame
changes). Courts have looked at way employer has operated under mgmt. rights clause
and looks at past practice. Did employer commonly operate control over this topic? If so,
can continue to do so until new K comes into being. If not, must bargain.
o Permanent replacements after impasse w/ allegation of 8a5 violation.
o What is status quo?
Check-off is not included (parties must explicitly agree). So if K expires, check-
off can’t continue.
No-strike clauses are not part of the continued status quo. No operating of an
explicit waiver of the statutory right to strike.
K clause where employees agreed to cross picket lines to deliver goods.
Items going to core of § 7 rights.
Duty to arbitrate doesn’t continue (though grievance process does).
o Implicit notion of no impasse if employer willing to do more. Undermines role of union
as bargaining agent if you offer more (not a tactic---suggests not at impasse). Can offer
less and decide there’s impasse and then go w/ less (tactic).
o If already had subcontracting, could continue to maintain subcontracting after impasse.
o Mgmt rights clauses become the problem.
Notice and “Cooling-Off” Periods: 90 day period.. etc. See page 509.
National Emergencies: Private sector strikes. The pres. can intervene, have a commission
provide a report of the risk to nat’l health/safety, and request that the gov’t go to the court and
get an injunction against a strike by a Union that would endanger health/safety. Injunction runs
for 60 days where commission continues to determine health/safety effects. If come to
agreement, if don’t come to agreement, the employees have to try and accept that final last offer
by the employer and the injunction has to be lifted.
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Three kinds of subjects: (1) mandatory, (2) permissive, (3) illegal.
Illegal - statutory rights of employees, can’t by K agree that a competing union at appropriate times
would not be allowed to distribute literature. can’t bargain away certain rights on distribution of
literature or access. ALSO, a Union trying to get employer to agree that the employer would engage
in a secondary boycott against a competitor employer.
Mandatory - Must deal w/ wages, hours, and other terms and conditions. See 8a5 and 8d. Issue w/
employer-controlled entitlements, when we intro. coll. bargaining, which part of issues can the
employer not act on UNLESS the employer first bargains?
o Closing part of business - do you have to bargain? Under Darlington, closing down your
whole business is ok. Could have an 8a3 violation over some of these decisions if motivated
by anti-union intent.
o Waivers of employee’s statutory rights.
Penn Plaza, mandatory to waive access to a court to resolve an individual employee’s
rights under Title VII or a disability statute.
Union waiving statutory rights and labeling it mandatory---wonder in opinion what
will happen down the road. Can the employer actually insist to impasse
Permissive - Bargaining about how you want to market goods, how to manufacture a certain type of
car - something more environmentally friendly, etc. Goes to things in the market, not about wages,
hours, and other terms and conditions of employment. Go to internal operations of unions.
Mandatory/Permissive Framework
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o Unilaterally implementing merit pay: How deeply into the concept does the employer
have to bargain before unilateral change. In case, board says even though bargained and
trying to implement, nevertheless didn’t bargain sufficiently about the objective
standards. McClatchy II.
W/ any particular topic, must look at what constitutes the mandatory context of
that topic.
o Interest Arbitration: Can agree that any issues unresolved by negotiations would be
submitted to determination by an arbitrator. If the union wants to instead of striking, the
topic is permissive. While permissive, even if you agree on it when you reach interest
arbitration, the arbitrator can ONLY deal w/ mandatory subjects of bargaining, not
permissive subjects of bargaining.
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Reasoning: NLRA covers workers, not retirees. Retirees don’t fit w/i the statutory
definition of employee under the bargaining unit. Beefits are speculative,
insubstantial, and the relationship b/t the inclusion of retirees and the overall ins.
rate is uncertain.
Decisions at the “Core of Entr. Control”: Lack suff. direct impact on job
security and working conditions. Bargaining not likely to make a contribution to
decision-making process.
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Holding: If there is a benefit to labor management relations from bargaining
on the subject that is not outweighed by the burden placed on conduct of
business, the subject will be mandatory.
A weighing test.
The two sections of the opinions are somewhat at odds.
One seems to say decision over partial closings are not mandatory (only
effects):
o Due to need for speed in circumstances, secrecy.
o Uncertainty in the COA presumption combined with harsh
remedies are too costly.
o If the primary reason for the decision is labor costs, then the Er has
every incentive to bargain voluntarily.
o There may be no other choice for the Er.
Then the second section of the holding talks about limitations.
o The decision was a change in the operations. (leaving the market of
Greenpark)
Is the logic of Ozark overruled by FNM? In this case there
was no change in the operations of the company. No impact
on product market.
If operations are not changed, do the interests of EE/Union
outweigh management rights?
The court wanted a clear-cut rule to alleviate uncertainty.
Removing that fear of remedy from decision making process when
speed/secrecy are necessary.
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Why is there not more multiemployer bargaining?
o In Europe, this is the model. CBAs are set across the entire sector of the economy.
No concept of the individual bargaining unit. We are unique in that.
Unclear about the common market. Now you have a competitive market place,
where the players are not companies in a sector, but the nations in the sector.
o Very little in the U.S.
Coalition bargaining is permissible, but you cannot insist on it.
One company, and lots of bargaining units in one company. Unions try to
coordinate negotiations at the same time and bargain as a unified front.
Hospitals are not going to be likely, too much variation in the employees.
(Dr’s don’t want to bargain alongside maintenance.)
Or when there are multiple plants (with different unions) in a single employer.
Midterm Bargaining
Note: Permissive Subjects and Midterm Modifications: Allied Chem. v. Pitt. Plate Glass
(1971): Midterm modifications of clauses in a labor agreement dealing w/ permissive subjects do
not violate the statutory duty to bargain. § 8(d) embraces only mandatory topics of bargaining.
By once bargaining and agreeing on a permissive subject, the parties don’t make that the
mandatory subject of future bargaining Duh. Remedy for unilateral midterm modification is
breach of K not ULP.
Allied Chem. & Alkali Wkrs. v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971)
o Holding: Midterm modifications of clauses in a labor agreement dealing with permissive
subjects to not violate the statutory duty to bargain.
o Rationale: § 8 (d)(4) requires that a party proposing a modification continue in full force
and effect all the terms and conditions of the exiting K until its expiration
But the Court must look to the provisions of the whole law and to its object and
policy
§ 8 (d) encompasses only mandatory subjects of bargaining
Read im pari materi, § 8 (d) (4) only prohibits midterm alteration of clauses that
address mandatory bargaining subjects.
Regulates modifications and terminations so as to facilitate agreement in the place
of economic warfare
Bargaining on permissive subjects does not make those subjects mandatory in the
future
Since the parties were not required to bargain as to permissive subjects, the
purpose of facilitating accord on the proposal Is not on pint where one party seeks
to modify permissive terms
The remedy for mid-term unilateral modification to a permissive term is BOK no
ULP
o “Clear and unmistakable” waiver: 8(d) doesn’t relieve an employer of the duty to
bargain over subjects neither discussed in negotiations nor incorporated as terms of the
agreement. Only discussions constituting a “waiver” will have this effect. Test - “clear
and unmistakable”---item in issue must have been fully discussed or
consciously explored ad the union must have consciously yielded or
relinquished in the give and take of negotiations.
o “Zipper” Clauses: “zip up” the agreement to preclude any further bargaining
during its term. Gen. zipper clauses (561-62) = waiver of either side’s right to
insist on bargaining over its proposals to add new terms, but do not relieve
the other side (usu. the employer) of its duty to bargain before initiating
unilateral changes in existing conditions of employment.
o Midterm Strikes: A strike during the term of an agreement may constitute a breach of
the no-strike clause even if Jacobs subject. Lion Oil held where K provides a reopener pd
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on a term, the union may strike viol. § 8(d) (assuming proper notice and exhaustion of the
cooling-off pd).
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Effect of Zipper and Mgmt Rights Clauses on Midterm Bargaining Duties: B/c the U
tried to rely on § 8(d) instead of the K, the U gave away the issue (assumed that the Company
acted pursuant to a right under the agreement). Had they argued on the K, this would have
gone to arbitration re: unilateral action w/ respect to a mandatory subject.
o Milwaukee Spring II teaches us to go to arbitration!
o If you don’t take to arbitration, implicitly acknowledging that mgmt. has the right
to do this under the mgmt. rights clause (if there is a zipper clause).
o Will no longer see these cases b/c courts/board is pushing this back into the K. Need
explicit clauses saying can’t subcontract, can’t transfer work. If vague, look at how
mgmt. clause is drafted.
Mgmt rights clause K interpretation: Look at bargaining history, past practice, and strength
of mgmt. rights clause itself.
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WEAPONS OF ECONOMIC CONFLICT: STRIKES, BOYCOTTS, AND
PICKETING
o NLRB v. Ins. Agents’ Int’l Union (1960): emphasizes role of strikes and eco. conflict. S.Ct.
position that the use of economic weapons is generally not inconsistent w/ GF bargaining,
and shouldn’t be regulated through §§ 8(a)(5) and 8(b)(3). Should be regulated through
antidiscrimination principle embodied in §§ 8(a)(3) and 8(b)(2).
o Note: The Role of Economic Conflict in the Bargaining Process and the Causes of Strikes
Labor - principal weapon = STRIKES (Collective w/drawal of
services of represented employees). Also may be supported by
ancillary pressures (picketing of the premises/operations of
suppliers/customers).
Success depends on
o profitability of the firm and ability to raise prices
w/o losing market position
o ability of the U to impose prod. losses on the firm
o financial resources of the firm to w/stand losses
o the financial resources of employees to w/stand
losses.
Board made clear that a conventional peaceful strike
doesn’t suspend the employer’s duty to bargain.
Employer - principal weapon = MAINTAINING OPERATIONS.
Also, lockouts (refusal to allow employees to work pending the
resolution of the dispute).
Fundamental Q: Did § 7 protection of right to strike shift the entitlement of the
employer to running the business to the U in the right to strike?
to the decision to declare that an employer may maintain operations w/ the aid of
permanent replacements.
Laidlaw Corp., 171 NLRB 1366 (1968): Economic workers who unconditionally
apply for reinstatement at a time when their position s are filled by permanent
replacements:
Remain EE’s and
o Are entitled to full reinstatement upon the departure of the
replacements unless they have in the meantime acquired regular and
substantially equivalent employment, or
o The failure to offer full reinstate was for legitimate and substantial
business reasons.
NLRB Pub. Res. No. 44: If the strike was based on EE’r ULP then the board
may reinstate workers to their jobs without prejudice, but where there was no
ULP the strikers had no legal claim to restoration.
The Leg. Hx of the Act supports the conclusion that EE’rs may hire
replacement workers during a strike at will, “The Mackay doctrine was not a
judicial effort to minimize the pro-labor goals of the original Wagner Act. It
was in fact, consistent with the law as understood by its framers, the Board,
and by organized labor itself."
Taft-Hartley would later codify permanent replacement in 1947 by stating that
replaced workers do not get a vote on Board elections.
There remains an element of risk for both parties when strikes occur because
neither knows whether the Board will uphold a ULP:
o So labor doesn’t know if the strike will likely result in being
permanently replaced, and
o EE’r doesn’t know if it will be caught b/w having to let go perm.
Replacements and facing mandatory reinstatements with backpay to
striking workers
Is the duty of loyalty —not to take action inconsistent with the continuation of
the employment relationship— one-sided?
o Under Jefferson Standard: workers owed a duty of loyalty to the firm
and were not protected when they engaged in product disparagement
picketing in the course of the strike
o Why can EE’rs take actions that would effectively terminate the
relationship but not EE’s
EE’rs face 2 risks when hiring replacements
o That the strike will be deemed a ULP strike, and
o The strike will end with a settlement requiring the displacement of
perm. Replacement workers by returning strikers
Time limits?
o Brooks Research & Mfg., 202 NLRB 634 (1973): Rejecting time limits
on Laidlaw rights, but stating that EE’rs might reasonably require the
EE’s to check in at reasonable intervals as to whether they still desired
reinstatement
No duty of full-disclosure: EE’r’s may inform organizing workers of the
right to hire permanent replacements in the event of a strike without informing
them of their Laidlaw rights without committing a ULP
o Eagle Comtronics, Inc. 281 NLRB 515 (1982): EE’r statements that
are consistent with the law cannot be characterized as coercive
o G.W. Galloway Co., 281 NLRB 262 (1985): EE’r violation where it
told EE’s that it would “have to terminate and replace” EE’s who did
not return to work.
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Permanent Temporary
Economic Yes, but employees have Yes.
Laidlaw rights.
ULP No. Strikers must be Yes.
reinstated.
o Belknap v. Hale, 463 U.S. 491 (1983): Replacement Workers are not
preempted from bringing state law BOK suits against EE’rs. Also held
that EE’rs could make a promise of continued employment subject to
any settlement agreement without sacrificing Mackay rights to insist
on retention for the permanent replacements
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Note: Honoring Picket Lines: Acting in solidarity by refusing to cross picket lines.
By w/holding work from employer by refusing to deliver to certain store w/ economic
strike going on, is that in breach of a no-strike clause? Fairly well-est’d that even a
single employee’s decision to refuse to cross is “concerted” activity for “mutual aid
and protection” w/i § 7.
May be unprotected for several reasons:
o The picket itself may be illegal (e.g., a secondary boycott violating
8(b)(4)).
o The employee may have waived any § 7 right by agreement. Standard
no-strike clause may cover sympathy strikes.
The waiver of a statutory right must be SPECIFIC. If the employer and
sympathy striker have a no-strike clause, the board presumes that the
employee is unprotected.
o Shift - employee needs explicit language saying that crossing picket
line is NOT violative of the no-strike clause.
Can argue this either way. The Board says lean twd the general no-strike
clause covers it.
Undermines Mackay but does not overrule. Tried overruling Mackay by statute, but
never passed.
Free Choice Act tries to avoid this problem of inherently destructive actions in first
time bargaining situations mandated by interest arbitration. Combination of card rec.
and interest recognition---comes into play dur. your first K. After that they’d strike.
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o The court’s must balance the purported business interest against the
harm to EE’s rights to organize and engage in Union activity
o Board made 5 findings:
Unlike Mackay the super-seniority affected all strikers, not just
those who had been replaced.
Super-seniority works to the detriment of strikers as compared
to non-strikers
Super-seniority made available to striking workers were offers
of individual benefits and violated exclusive representation.
Extending super-seniority to CBU EE’s as well as
replacements were a combination threat/promise that could be
expected to undermine the strikers’ mutual interest and place
the entire strike in jeapordy
Super-seniority heightened tensions, created a impediment to
the union and union activity by creating a permanent reminder
of the dangers of union activity with each successive layoff,
and mad collective bargaining impossible for the rep.
Mackay didn’t apply because here the EE’er’s conduct was a
far greater encroachment by adding super-seniority to
replacement, rather than just permanent replacement
Notes: Where the EE’r uses super-seniority, and exceptional lure to attract
replacements or strikebreakers, he is doing something more than providing a
market check on union demands; he is taking extraordinary measures to beat
back the strike.
Recall Rights: The EE’r does not have to recall CBU strikers ahead of other laid-off
EE”s and may extend recall rights to non-union, or laid off replacements based on the
expectancy of recall, the EE’er’s past business experience, future plans. Etc…
Giddings & Lewis, Inc., 255 NLRB 742 (1981): The Board found ULP wher
the company did not follow its own recall policy, classified un-reinstated
EE’rs on the basis of their protected activity, and recalled non-strikers ahead
of its union EE’s.
Aqua-Chem - employers could extend recall rights to laid-off replacement
workers if they had a “rsbl expectancy of recall” based on factors like the
employer’s past business experience, the employer’s future plans, the length
of the layoff, circumstances of the layoff, and what the employee was told
regarding the likelihood of recall.
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(apply Mackay)? No effect of long-term division of the workforce like PRs. In
between Mackay and Erie Resistor.
Int’l Paper interpreted “inherently destructive” narrowly in a case involving
subcontracting during a lawful lockout. Said Erie Resistor, Great Dane, and
Metro. Edison hold that inherently destructive conduct is ONLY where “the
employer treated employees w/i a bargaining unit differently depending on the
degree of their union activity.”
Not clear how this will come out.
Christmas Bonus Hypo: The employer had a bunch of plants and one
of them struck and productivity went down so didn’t get Xmas bonus.
Business justification - productivity went down. Can say discrim. b/c
on strike, took away their turkey.
Here, productivity was sufficient business justification.
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o Replacement workers are capable of looking past the strike in
considering whether or not they desire representation to the union (in
response to argument that there in inherent conflict in U repping both
strikers and replacements).
o The Board’s approach is also consistent w/ NLRA policy of industrial
peace. An anti-union presumption could discourage GF bargaining and
chill employees’ exercise of statutory right to strike b/c an employer
could eliminate the U just be hiring enough replacements.
Concurrence: This case presses the limits of deference. Acc. to Tex.
Petrochems. Corp., cannot poll employees. Rehn has doubts that the Board
may insist that a GF doubt be determined on the basis of sentiments of
individual employees, but then not allow the only effective means of
determining those sentiments.
Dissent (Blackmun): The Board departs from prior cases w/o explanation.
Dissent (Scalia): The interests of the replacements is invariably opposed to the
interests of the strikers, it seems impossible to conclude that the employer did
not have a rsbl, good faith doubt re the U’s majority status.
Alternate approach = show actual loss of majority status before w/drawing (see FN 8
of opinion). Hold a decertification election. Hard to decertify and hard to unilaterally
w/draw w/o an election.
Lockouts
Offensive-Permanent? If you let them offensively lock out and let them hire PRs and go
for decertification, the really let employers destroy a U in a circumstance where the U
hasn’t made the choice whether to really put the workers’ jobs on the line.
o Pre-Impasse Lockouts: Darling & Co. (NLRB 1968) held that the absence of an impasse is
a factor in determining whether a lockout was unlawfully motivated. It does not per se render
a lockout illegal. The Board upheld the disputed lockout on the ground that the strike history
of the bargaining unit justified the employer’s concern about a strike timed to occur during
its busy season. Darling was affirmed in Lane v. NLRB (D.C. Cir. 1969), emphasizing that
the Union was “strong” and had been recognized for a substantial period.
o “Mutual Aid” Pacts: Employers call for nonstruck employers to pay to struck employers a
share of the increased revenues accruing to the former b/c of a strike, or provide for
payments to the struck firm out of “insurance funds” contributed by the participating
employers. Employer strike ins. programs are not the subject of mandatory bargaining and so
a U’s insistence of eliminating the ins. violated 8(b)(3). Operating Engineers Local.
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o Int’l Paper (D.C. Cir. 1997): An employer may implement a permanent subcontract during a
lockout, just as it may do outside of the lockout context. Not automatically “inherently
destructive.” Balancing test - impact comparatively slight and the employer in the particular
context of this case had a legitimate business justification to subcontract out the work given
the history/context of the dispute.
Courts try to deal w/ these cases w/i the framework as: is the action of the employer inherently
destructive to § 7 rights, or comparatively slight? Does the employer have business justification? If
yes, then have to show antiunion motive. Then still may have an § 8(a)(3) violation.
o Fundamental Q: Why isn’t picketing speech? Does it depend on what the signs say? Do we
make distinctions b/t speech based on content? Why does labor law do this?!! Only way to
justify is that b/c picketing is NOT just speech.
Underlying Assumption: Unions are highly organized interest groups. Sense of
solidarity b/t workers so picket is a signal to a fellow U member to not cross the line.
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The discipline twd workers and consumers. Can have a negative impact on the
business.
Keep asking: Is this really sensible under the First Amendment?
o Labor picketing = economic pressure subject to rsbl state regulation rather than as a
form of communication generally exempt from regulation by virtue of the First
Amendment. Treated differently from political picketing. Why?
Calls for an auto. response to a signal, rather than a reasoned response to an idea.
Retail Stores case.
“Speech plus” b/c it involves martial aspects (interfering w/ access and egress). But
why not just regulate on access/egress?
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A form of pressure applied by closely knit, powerful organizations. Supported by
system of power (common eco. interests, loyalties, social pressures, eco. sanctions,
and bureaucratic force). Makes it a less rational appeal to persuasion, more like eco.
weapon.
Can be regulated as part of an integrated scheme to affirmatively protect labor groups
in their right to organize and pursue economic objectives by concerted action. Kind of
like trading away constitutional rights?
Secondary Pressures
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Improper Objects =
Clause (A): forcing an employer to enter into a § 8(e) agreement or to join a
union.
Clause (B): Forcing any person “to cease handling products of any other
employer” or “to cease doing business w/ any other person.”
o Provision preserves otherwise lawful primary strikes or primary
picketing. PROBLEM = How do we determine what’s primary?
Clause (C): forcing an employer to recognize or bargain w/ a union if another
union has been certified.
Provision states that the section does not make it unlawful to honor a picket line
maintained at the premises of another employer. Provision also protects certain
nonpicketing publicity.
o The Primary/Secondary Distinction: ? See Thorman book on reserve for a good explanation
of secondary/primary picketing.
o “Ally” Doctrine: Always must define the “primary” employer. If the picketing takes place at
the premises of another firm that is deemed to be an “ally” of the struck employer, the
statutory prohibition of secondary-situs picketing does not apply.
If they’re allies in one location, are they allies in other third party locations (not
doing struck work) just b/c they become R-1.
Corporate Parents and Subsidiaries: If company has TV station and newspaper and
TV people go on strike, b/c it is your employer that owns both, can the Union go
picket the newspaper? Other businesses of that owner---cases ask is it a centralized
labor relationship operation? Shifting of workers back and forth, same labor policy,
how much day-to-day autonomy?
Common situs problem in Royal: Situs of a true R-2, the company that bought the
typewriters and the company coming in to do the worker’s jobs.
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picket immediately adjhacent to the dock where the Phopho (ship) was
located.
Holding: Picketing of the premises of a secondary employer is primary b/c it
meets the following conditions: (a) the picketing is strictly limited to times
when the situs of dispute is located on the secondary employer’s premises; (b)
at the time of the picketing the primary employer is engaged in its normal
business at the situs; (c) the picketing is limited to places rsbly close to the
location of the situs; and (d) the picketing discloses clearly that the dispute is
w/ the primary employer.
Reasoning:
o (a) Ship was tied up on the dock.
o (b) The crew was ready for sea, on board to serve purposes of Samsoc,
and not Moore. Prepping crew is normal business of a ship.
o (c) Were as close to the ship as they could get under the circumstances.
o (d) Careful that picketing was directed to Samsoc. Signs read Phopho
was hot. No attempt to interfere w/ other work at the Moore yard.
Class Notes:
o Classic common situs situation. Clear that there’s no dispute w/ the
Dry Dock. If there were a problem w/ deliveries that didn’t want to
cross the picket line, Moore DD can tell them to come on the property
and picket next to the SHIP. Tells them not to deal w/ the crew/ship,
but then deliveries to the DD are fine.
o Concept is that you can get next to the work that is the work of the
primary and picket that, if they won’t let you get near it, then other
consequences, but Ship has option of letting you get near it or not.
Standard: Primary employees must be present and doing related work at the situs.
Existence of the subcontract makes it a dispute b/t the U and the subcontractor
and not b/t the GC and the Union. Have a subcontract in place!
Concerns in the background re inflated construction costs.
GE on Remand: The installation of showers and miscellaneous repairs that had once
been done by GE’s employees were “necessarily related to GE’s normal operations”
and the picketing was thus “primary.”
Carrier Corp. (1964): The pickets against R-1 were on R-2’s property. Looks
like common situs in Moore Dry Dock. BUT court doesn’t treat under Moore
Dry Dock. Instead said like deliveries so treat under GE. Undermines
distinction b/t looking at property when dealing w/ O as GE issue, and looking
at property where some Third Party owns as Moore Dry issue.
Crystal Palace Market (9th Cir. 1957): Crystal O of property AND involved
in dispute. Gave direct access. Applied Moore Dry Dock where R-1 actually
owns the property. Board held the U couldn’t picket the entire site even
though its dispute was w/ the O.
Markwell & Hartz (5th Cir. 1967): GC controls whole site; brings in two subs
repped by Building & Trades U. UMW doesn’t like that they’re not
represented by UMW. Now the Q is if M&H in control of whole site, is that
like GE? The work is definitely interrelated and can picket all the gates. No,
applies Denver Trades at the construction site. Can create a separate gate,
and the U can only picket the gate where the subs are coming in. Like an
exception b/c if site is controlled by R-1 (M&W) you will wind up w/ an
interrelated test (GE) if out of the construction sector.
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Appeals to Customers of Secondary Employers
Bartolo (1983): Dep’t storeowner hired GC and tenants didn’t like that the GC
paid employees substandard wages. The local building trades council
handbilled the shopping center, asking people not to patronize any of the
stores until mall owner met demands. R-1 = dep’t storeowner, R-2 = O and
other tenants.
o NLRB & COA: Handbilling protected by PP b/c GC was a
“producer” of the construction of the store and mall owner & tenants
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were in a “symbiotic” relationship b/c they would benefit from GC’s
“product.”
o S.Ct.: The handbills went beyond the reach of the proviso b/c they
urged a boycott of the products sold by the dep’t store and co-tenants.
Don’t address coercion or free speech issues. Said that the “symbiotic”
relationship analysis strips the distribution requirement of its limiting
effect; diverts the inquiry away from the relationship b/t the primary
and secondary employers and twd the two secondary employers; also,
too generous a std.
o Tree Fruits (1964)
Facts: Union struck packagers and distributors of WA apples, and instituted a boycott
of the primary EE’r’s product —the apples— and picketed the apples at Safeway
stores in and around Seattle. The picketers were given detailed instructions not to
interfere with the business of the Safeway stores in any way. Board held that
picketing in front of a secondary establishment was prohibited, but the COA set aside
the order and remanded, holding that in order to violate 8 (b)(ii) (“threaten, coerce, or
restrain”) there must be affirmative proof that substantial economic impact on
Safeway had occurred or was likely to occur.
Holding: 8(b)(4)(ii) does not bar secondary consumer picketing of the primary
product because Congress showed no intent to prohibit such peaceful picketing;
rather, it was intended to prohibit secondary boycotts aimed at dissuading patronage
of the secondary EE’r. The Picketing did not “threaten, coerce, or restrain” Safeway
where it was limited to the WA apples product and was directed not to interfere with
Safeway’s other business
Rationale: Congress has consistently refused to prohibit peaceful picketing
except where it is used as a means to achieve specific ends which experience
has shown are undesirable; therefore, the Court will not ascribe to Congress a
purpose to outlaw peaceful picketing absent the clearest indication of intent in
the legislative history.
o All the legislative history show is an intent to prevent secondary
picketing with a purpose of persuading the secondary EE’r’s
customers to cease trading with him.
o Illustrates the difference b/w such conduct and peaceful secondary
picketing directed only at the struck product
o Consumer picketing causes a decrease in demand due to diminished
purchases of the struck product only
o Secondary Boycott’s of a secondary EE’r does not just follow the
struck product; it creates a separate dispute with the secondary EE’r.
o Disagree with the COA that the test of 8(b)(4)(ii) is whether the
secondary EE’r suffered or was likely to suffer economic loss.
Notes: Congress in the proviso seems to have explicitly excepted picketing
from the proviso as inherently coercive. But this presents a problem for the
Court because it was peaceful. Union is not trying to do any of the things that
the Court had looked to to justify regulating picketing. If we really read the
statute as prohibiting this then it might be unconstitutional violation of 1st
Am. They seem to really be saying that what congress was really worried
about was the economic impact on the secondary
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Safeco vs. Tree Fruits: Over 30% don’t picket. Can still handbill in Safeco
situation under DeBartolo.
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Class Notes: If handbilling can’t be coercive, the proviso (re publicity other
than picketing) can’t ever apply. Don’t need the proviso. Congress just trying
to make clear how to interpret the term “coercion” w/ the proviso.
Bannering: Is this a picket? The Board flip-flops. Bush says yes; Obama says no as
long as stationary.
Union Signatory Clause vs. Standard Clause: If this was you will not handle
products where doesn’t have a U label, clearly secondary (trying to force R-2 to
unionize). Problem where The U says “employer will not handle products where the
producer of that product doesn’t pay U standard wages.” Not a lot of guidance: look
at the structure of the particular business, the history of labor relations to try to
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determine if this is secondary or not. The clause is like on 684, if the employer
doesn’t have sufficient equipment . . . . Is it secondary b/c saying can’t use other truck
company b/c need to pay more, or is it primary b/c it’s to preserve your own work b/c
hurts your own wages. NORMALLY, U standard clauses are primary (a little bit
case-by-case though). A U signatory clause is NEVER treated as primary (trying to
alter R-2’s relationship w/ its employees).
Recapture of Work Formerly Done: Factual matter where you draw the line.
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Dissent: Under National Woodwork, the clause was primary because it was
designed to benefit Hudik’s own employees and not to affect another
employer’s personnel policies.
o It is inconsistent with National Woodwork to hold that because Austin
maintained the right to control assignment of the disputed work,
Austin was the target of the Union’s pressure.
o Hudik was not a neutral, and could have bargained with the union over
premium pay or other substitutes for the lost work.
Shows GC to structure business in order to have shelter itself from work
preservation clause. Puts the extra cost on Hudik.
Problem: If U sufficiently org’d an area by getting these clauses and shutting
out the pre-cut material, the bargaining b/t U and GC wasn’t particularly
adverse and the U polices that cartel. This introduces the T structure w/ the
pressure back on the sub (agreeing w/ the U). The party that really wants to
reduce the overall cost is the GC. Reintroduces the possibility of a more
competitive market. Seems to be what underlies Enterprise. If you agree in a
K that you are obligated to do something, then the U activity is in fact
secondary. Cases really about when bargaining is meaningful re new
technology and work preservation and whenever the employer operating in
competitive market makes sense. Contrast where U has sufficiently org’d area
to really police a competitive market in a way that takes the competition over
the new technology out of the marketplace that’s really not adverse to the U
when they’re bargaining about it.
Note: Industry-Wide Provisos to § 8(e) - B/c the garment and construction industries
differ from others in their structure and history, their provisos provide exemptions
from 8(e) that are different in scope
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o Meant in part to overrule Denver Trades but didn’t go all the way. B/c
of frictions between union and nonunion workers on a construction
site, you can have a clause in a K that says we U workers don’t have to
work at a construction site where non-U workers are going to be
present at that site.
o Limitations:
The proviso does not protect agreements barring use at the
construction site of materials made elsewhere by a nonunion
company (see National Woodworking).
A strike to obtain a hot cargo clause relating to job-site work is
lawful, BUT a strike to obtain a hot cargo clause referring to
off-site work violates §8(b)(4)(A) and subjects the Union to
damages under §303.
A strike to enforce a lawful hot cargo clause violates 8(b)(4)(b)
because its object is forcing the signatory employer to cease
doing business with nonunion contractors, even if the
contractor is doing work at the site.
Valid enforcement: demand for arbitration or a lawsuit,
or other measures not proscribed by clauses (i) and (ii)
of §8(b)(4).
o Connell Constr. Co. v. Plumbers (1975)
Facts: The union sought to organize plumbing and mechanical
subcontractors in the Dallas, Texas area. It picketed a
construction site under the supervision of the general
contractor, Connell, until the GC agreed to use only sub-ks that
were under contract with the union. The hot cargo agreement
was limited in terms to mechanical sub-k work performed only
at the job site.
Holding: This agreement falls outside the construction industry
proviso because the union represented no employees of
Connell or of other contractors on the job site, and hence the
concern of avoiding job-site frictions was absent.
The proviso extends only to agreements in the context
of CB relationships, and possibly to common-situs
relationships on particular jobsites as well.
Ct. was afraid of “top-down” organizing of entire
construction sites w/o ever consulting the employees
affected.
o Woelke & Romero Framing, Inc. v. NLRB (1982): Deemphasized
both the job-site friction and top-down organizing concerns identified
in Connell. “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.” Top-down org. ok in construction sector
(concern re non-Us having to work w/ Us on same site).
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