Evolution of Labor Law Judicial Intervention ................................................................. 1 The Labor Injunction in Private Disputes .......................................................................

. 1 The Antitrust Laws ......................................................................................................... 2 Evolution of Labor Law Legislative and Constitutional Protections............................... 4 The Enactment of the Norris-LaGuardia Act.................................................................. 4 The Sherman Act Revisited ............................................................................................ 5 Labor and the Antitrust Laws ............................................................................................. 5 Federalism and Labor Relations ....................................................................................... 11 Preemption of State Labor Law: An Overview ............................................................ 11 Specific Applications: Representation, Bargaining and Concerted Activities ............. 16 Enforcement of Collective Bargaining Agreements ..................................................... 20 Exclusive Representation and Majority Rule ................................................................... 22 The Individual and the Union ........................................................................................... 24 The Right to Fair Representation .................................................................................. 24 The Source and Enforcement of the Unions Duty ................................................... 24 The Unions Duty in Contract Making ..................................................................... 25 The Individual and His Grievance ............................................................................ 26 Union Security and the Encouragement of Union Activity .......................................... 29 Union Security and the Use of Union Dues .............................................................. 29 State Right to Work Laws ......................................................................................... 32 The Union Hiring Hall .............................................................................................. 32 Benefits for Union Officials...................................................................................... 32 Discipline of Union Members and the National Labor Relations Act .......................... 33 State Issues .................................................................................................................... 36 Relevant Statutes ............................................................................................................... 38 Clayton Act ................................................................................................................... 38 National Railway Labor Act ......................................................................................... 38 Norris- Laguardia Act (1932) ....................................................................................... 38 National Labor Relations Act (1935) (Wagner Act) / Labor Manaement Relations Act (Taft-Hartley) ................................................................................................................ 39

Evolution of Labor Law Judicial Intervention

The Labor Injunction in Private Disputes
1. Vegalahn v. Gutner employees picketed in front of employer, no violence or physical action, simply persuasion; injunction given and appealed a. Holding i. The injunction is reasonable and the strike is dissalowed ii. Basically shows the early denial of strike rights 2. Plant v. Woods a. Facts i. This case arises out of a conflict between two labor unions with different headquarters

ii. One of the unions was based in Baltimore, and declared that all workers with the other union, based in Lafayette to be NonUnion iii. Woods is the Baltimore Labor Union and Plant is the Lafayette Union iv. The Baltimore Union sent representatives to places which employed the Plaintiffs men and asked the employers to induce the men to join their union 1. They did this in a courteous manner and were not violent 2. The only factor of intimidation was that there was fear that there would be trouble for the business which was taken to mean strikes b. Issue i. Whether the inquiry as to a change in workers union affiliation which gave the fear of a strike was intimidation and thus illegal c. Holding i. This was a malicious act of molestation and thus illegal ii. There is a right to competition between parties but this does not mean that there can be wanton interference, disturbance or annoyance iii. In this case the threat was basically imposing a fine for not employing men of a certain labor union and was illegal d. Dissent i. This action was taken to strengthen the union and was this a legal action as is striking to increase wages 3. Bowen v. Matheson a. It is allowable for an association work to destroy individual businesses so long as no illegal activity is taken to that end 4. Mogul Steamship Company v. McGregor, Gow & Co. a. Activities which intentionally harm other companies are allowable as companies may deal as they please b. This case overturns British Common Law and allows for the combination of capital as long as it is a legitimate use of trade 5. United Shoe Machinery Corp. v. Fitzgerald a. The court held that machinists who had individual contracts and then struck for a CBA did so illegally i. The struck and lobbied for boycotts of items created by a new machine b. The objective test may be stated as: i. Whether or not there was an intention to deprive the plaintiff and its customers of their right to freely conduct their business ii. Whether the public at large is deprived of the advantages to be derived from the use of the invention

The Antitrust Laws

1. Sherman Act

a. Made unlawful any restraint of trade and made a violation of this a federal offense through conspiracies b. The point of this act was to stop any alienation of commerce, and to stop big business from conspiring to take over markets. c. There became evident the question of whether the Sherman act was applicable to workers groups d. Loewe v. Lawlor i. Facts 1. The hat makers were unionizing and Loewe was one of 12 shops which did not unionize 2. Loewe could not meet union requirements and stay in business but his workers were content with the situation 3. He and Charles Merritt came up with the American AntiBoycott Association to fight the unions 4. The union was attempting to dissuade people from purchasing his hats thought he use of persuasion and threats 5. He struck back in court by suing the members of the union and attaching their property as well as taking out an ad in the paper advocating open shops 6. The case was struck down in the district level due to jurisdictional issues ii. Issue 1. Whether this boycott falls under the Sherman Act iii. Holding 1. Yes a. Restraining trade is a narrowing of the market b. There is an ability to hold workers groups under the Sherman Act c. The Worker group is interstate and thus the interstate contacts of the non-union shop do not really matter 2. The Clayton Act and the Development of the Unions a. The Clayton act was passed and included union provisions which were seen by the unions as sweeping away Sherman precedent b. Stated that Unions were to be taken outside of the Sherman Act c. Strikes are not subject to injunction when they were used in the course of a labor dispute d. Wilson continued to strengthen the position of the unions with the NWLB which acted positively toward unions e. This ended with Fordism and the influx of immigrant unskilled workers f. The Clayton act ended up impotent to the courts decisions g. Duplex Printing Press Co. v. Deering i. Facts 1. Duplex runs an open shop but members of the International Association of Machinists were not in favor of that arrangement and wished for this to be a closed shop

2. They manufacture newspaper presses which are within the realm of interstate commerce 3. About 14 members of the staff left the employ due to the lack of unionization 4. The issue arose when the union incited discord amongst the customers of the plaintiff as well as those in other industries but were engaged in business with the plaintiff a. This was done through threats ii. Issues 1. Whether the Clayton Act forbids injunctions against union activities iii. Holdings 1. No a. Section 6 of the act does allow for unions to exist, but only as long as they have lawful means for carrying out their legitimate aims b. Section 20 of the act again stresses lawful actions c. The court narrowly interpreted what a labor dispute was and found that those involved were not the employees of the printing press company then there was no protection of section 20 d. The blockade of interstate commerce and secondary strikes is not within the scope of Clayton e. Also there is a distinction between employees and employees of a certain employer i. It is ok to use upon activity against your employer but not another employer iv. Dissent 1. The interference is justified but the aims of the action 2. They were protecting their common self interest 3. The Clayton act does not only apply to the legal relationship between employer and employee

Evolution of Labor Law Legislative and Constitutional Protections

The Enactment of the Norris-LaGuardia Act
1. This law was passed due to the frustration with the reading of the Clayton act by the Supreme Court 2. Substantive Considerations a. The courts were unable to adjudicate the underlying relationship issues at hand. b. The grant or denial of an injunction was not based on the underlying social and economic dispute

c. The unions needed CBAs but needed to exert pressure in order to gain members to make a CBA reachable d. Other items weakened the unions such as Yellow Dog Contracts i. Contracts not to join an union ii. These were enforced by the courts e. The objectives test, where the court determined the objectives of the workers, was seen as a double standard f. The court dealt with violence through injunctions which were seen as inappropriate as they felt criminal law was reasonable i. The union was also held responsible for violence it did not approve of 3. Procedural objections a. Ex Parte agreements were the normal procedural method against picketing which only heard the employers side b. The injunctions led to violence as strike breakers were called in 4. Considerations of judicial administration a. The judicial involvement cause only dissatisfaction through refusal to use the criminal system and by expanding a device to a code of prohibited conduct

The Sherman Act Revisited

1. The Sherman Act began to lose power with decisions that certain strikes did not effect interstate commerce 2. Congressional support began to increase in regards to unionization and there were many laws passed which loosened regulations

Labor and the Antitrust Laws

1. Intro a. Throughout the legislative history in regards to unions the use of AntiTrust laws to fight unions has been diminished by further legislation and the courts b. Apex Hosiery v. Leader the court indicated that it was steering away from the antitrust legislation to union activity i. The Attorney General attempted to further reign in Union activity after this which lead to US v. Hutcheson 2. United States v. Hutcheson a. Facts i. Anheuser-Busch and its lessee the Gaylord Container Corporation contracted for new facilities ii. A-Bs employees were represented by the United Brotherhood of Carpenters and Joiners and the International Association of Machinists iii. A-B gave the job of erecting and dismantling machinery to the machinists but the officials of the carpenters claimed that job as theirs

iv. The carpenters rejected arbitration and A-B refused their request and they struck v. The officials were indicted under Sherman but the trial court sustained their demurrers vi. The prosecution appealed b. Issue i. Is the use of conventional, peaceful activities by a union in controversy with a rival union over certain jobs a violation of the Sherman Act c. Holding i. No ii. The Sherman Act cannot be considered apart from the two other congressional pronouncements 1. Section 20 of the Clayton Act withdrew the portions of Sherman which provided for injunctions against labor unions 2. Norris-LaGuardia stated that the allowable scope of union activity was not limited solely to the direct employee employer relationship iii. The two acts protect this behavior therefore there can be no criminal liability passed to the union d. Notes i. Allen Bradley Co v. Local Union No 3 where a union uses its influence to force companies to purchase from union shops the Sherman Act was violated 3. United Mine Workers of America v. Pennington a. Facts i. The trustees of the United Mine Workers of America Welfare and Retirement Fund sued respondents, partners in a coal mining company, for royalty payments under the National Bituminous Coal Wage Agreement of 1950 ii. Respondents filed a cross-claim for damages, alleging that the trustees, the UMW and certain large coal operators had conspired to restrain and monopolize commerce in violation of 1 and 2 of the Sherman Act. iii. It was alleged that, to eradicate overproduction in the coal industry, the UMW and large operators agreed to eliminate the smaller companies by imposing the terms of the 1950 Agreement on all companies regardless of ability to pay, by increasing royalties due the welfare fund, by excluding the marketing, production and sale of nonunion coal, by refusing to lease coal lands to nonunion operators and refusing to buy or sell coal mined by such operators, by obtaining from the Secretary of Labor the establishment of a minimum wage under the Walsh-Healey Act higher than that in other industries, by urging TVA to curtail spot market purchases which were exempt from the Walsh-Healey order, and by waging a

price-cutting campaign to drive small companies out of the spot market. iv. Petitioner's motions to dismiss were denied, and the jury returned a verdict against the trustees and the UMW. v. The trial court set aside the verdict against the trustees, but overruled the union's motion for judgment notwithstanding the verdict or for a new trial. vi. The Court of Appeals affirmed, ruling that the union was not exempt from liability under the Sherman Act under the facts of the case. b. Issue i. Whether a Union-Employer contract the inhibits commerce is exempt from the Sherman Antitrust Act? c. Holding i. An agreement between the union and large operators to secure uniform labor standards throughout the industry would not be exempt from the antitrust laws. 1. An agreement resulting from union-employer bargaining is not automatically exempt from Sherman Act scrutiny merely because the negotiations covered wage standards, or any other compulsory subject of bargaining. 2. A union may make wage agreements with a multiemployer bargaining unit and may, in pursuance of its own selfinterests, seek to obtain the same terms from other employers, but it forfeits its antitrust exemption when it agrees with a group of employers to impose a certain wage scale on other bargaining units, and thus joins a conspiracy to curtail competition. 3. Nothing in the national labor policy indicates that a union and employers in one bargaining unit are free to bargain about wages or working conditions of other bargaining units or to settle these matters for the whole industry, nor does it allow an employer to condition the signing of an agreement on the union's imposition of a similar contract on his competitors. 4. Antitrust policy clearly restricts employer-union agreements seeking to set labor standards outside the bargaining unit, in view of the anticompetitive potential and the surrender by the union of its freedom of action with respect to bargaining policy. ii. Concerted efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. 1. Instructions to the jury that anticompetitive purpose could support an illegal conspiracy based solely on the WalshHealey and TVA episodes did not constitute merely harmless error.

2. Respondents were not entitled to damages under the Sherman Act for any injury suffered from the actions of the Secretary of Labor, and the jury should have been so instructed. 4. Local Union NO 189, Amalgamated Meat Cutters v. Jewel Tea Co a. Facts i. Respondent brought this action under 1 and 2 of the Sherman Act alleging that petitioners and Associated had conspired to restrain competition in retail meat markets in the Chicago area by limiting the marketing hours for the sale of fresh meat through a clause in the collective bargaining agreement between Associated and petitioners and between respondent and petitioners. ii. The District Court, after trial, held that there was no evidence in the record to support a finding of a conspiracy to force the restrictive provision on respondent, that the marketing-hours limitation was imposed by the unions to serve their own interests respecting conditions of employment, and that such action was clearly within the labor exemption of the Sherman Act. iii. The Court of Appeals reversed the dismissal of the complaint as to the unions and Associated, and without upsetting the District Court's finding that, apart from the contractual provision itself, there was no evidence of conspiracy, concluded that a conspiracy in restraint of trade was shown. iv. It held that the employer-union contract concerning working hours is unlawful, as the establishment of the hours of work is a function of the employer. b. Issue i. Whether a CBA can concern the working hours of the area of business they work into? c. Holding i. A provision establishing the particular hours of work would be within the ambit of wages, hours and working conditions requiring mandatory bargaining, and the unions' success in obtaining that provision through negotiation in pursuit of their own policies falls within the protection of the national labor policy and is exempt from the Sherman Act ii. Likewise a marketing-hours restriction would be exempt if night operation of meat markets would require night employment of butchers, impair the butchers' jurisdiction or substantially affect their workload iii. But if self-service markets could conduct night operations without affecting the vital interests of butchers, there might be restraint on the product market, and the limitation imposed by the unions might be nothing more than an attempt to protect one group of employers from competition from another group, which is conduct not exempt from the Sherman Act.

iv. The resolution by the District Court of the question of whether night operations without butchers, and without infringement of the butchers' interests, are feasible, in favor of the unions' position, was supported by evidence in the record and is not clearly erroneous 5. The Nonstatutory Antitrust Exemption and Professional Sports a. Sports Leagues are allowed to inhibit competition using the rationale of Jewel Tea b. There is a major issue of whether the no statutory exception expires when the CBA expires, or whether it holds; on this point the courts have not been consistent up until Brown v. Pro Football c. Brown v. Pro Football The court read the nonstatutory exception broadly throughout the entire Collective Bargaining Process i. The court wished to prevent the use of antitrust legislation to solve labor disputes ii. As long as the dispute arises out of collective bargaining then the nonstatutory exception applies 6. Connell Constr. Co. v. Plumbers and Steamfitters Local Union 100 a. Facts i. Respondent union, representing the plumbing and mechanical trades in Dallas, was a party to a multiemployer collectivebargaining agreement with a mechanical contractors association. ii. The agreement contained a "most favored nation" clause, by which the union agreed that if it granted a more favorable contract to any other employer it would extend the same terms to all association members. iii. Respondent picketed petitioner, a general building contractor which subcontracted all plumbing and mechanical work and had no employees respondent wished to represent, to secure a contract whereby petitioner agreed to subcontract such work only to firms that had a current contract with respondent. iv. Petitioner signed under protest and, claiming that the agreement violated the Sherman Act and state antitrust laws, brought suit against respondent seeking declaratory and injunctive relief. v. By the time this case went to trial, respondent had secured identical agreements from other general contractors and was selectively picketing those who resisted. vi. The District Court held (1) that the subcontracting agreement was exempt from federal antitrust laws because it was authorized by the first proviso in 8 (e) of the National Labor Relations Act (NLRA), which exempts jobsite contracting agreements in the construction industry from the statutory ban on secondary agreements requiring employers to cease doing business with other persons, and (1) that federal labor legislation pre-empted the State's antitrust laws. vii. The Court of Appeals affirmed.

b. Issue i. Whether the agreements made were within the realm of Collective BArgainins and therefore entitled to the nonstautory exemption c. Holding i. Respondent union's agreement with petitioner is not entitled to the nonstatutory exemption from the federal antitrust laws recognized in Jewel Tea because it imposed direct restraints on competition among subcontractors that would not have resulted from the elimination of competition based on differences in wages and working conditions. 1. The agreement indiscriminately excluded nonunion subcontractors from a portion of the market, even if their competitive advantages were derived from efficient operating methods rather than substandard wages and working conditions 2. The "most-favored nation" clause in the multiemployer bargaining agreement, by insuring that no union subcontractor would have a competitive advantage on any matters covered by the agreement, gave respondent's agreements with petitioner and other general contractors the effect of creating a sheltered market for union subcontractors in that portion of the subcontracting market controlled by signatory general contractors. 3. Since the agreement did not simply prohibit subcontracting to any nonunion firm but to any firm that did not have a contract with respondent, it gave the union complete control over subcontract work offered by general contractors that had signed the agreement and empowered the union to exclude certain subcontractors from that portion of the market by refusing to deal with them. ii. The first proviso to 8 (e) of the NLRA does not shelter the challenged agreement from the federal antitrust laws, since that proviso was not intended to authorize subcontracting agreements that are neither within the context of a collective-bargaining relationship nor limited to any particular jobsite. Here respondent, which has never sought to represent petitioner's employees or bargain with petitioner on their behalf, makes no claim to be protecting those employees from working with nonunion men; the agreement was not limited to any particular jobsite; and respondent concededly sought the agreement solely as a means of pressuring Dallas mechanical subcontractors to recognize it as their employees' representative. iii. There is no indication that Congress in the Taft-Hartley amendments or later meant to make NLRA remedies for "hotcargo" agreements exclusive, thus precluding liability for such agreements under the antitrust acts.

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iv. The agreement is not subject to the state antitrust laws, the use of which to regulate union activities in aid of union organization would risk substantial conflict with policies central to federal labor law. 7. The Distinction Between Non-Exemption and Substantive Antirust Liability a. The union conduct should be measured by the rule of reason in recognition of the particular labor relations context even if similar conduct may be per se unlawful b. There is a determination of illegality, and then the conduct is weighed against the rule of reason 8. American Federation of Musicians v. Carroll a. Facts i. The Federation had a number of regulations regarding one time engagements which substituted as a CBA for one time functions ii. A group of bad leaders challenged this practice and filed for injunction and treble damages b. Holding i. The Supreme Court found that this was only affected a Labor group within NLA and therefore were exempt from Sherman ii. The band leader were in performed work and functions which actually or potentially affected the hours, wages, job security and working conditions of AFM members iii. The price list was seen as acceptable as it went solely to the wages of the workers.

Federalism and Labor Relations

Preemption of State Labor Law: An Overview
1. It was assumed until the mid 1930s that labor disputes were beyond the power of congress in regards to the commerce clause a. Adair v. United States membership in union not interstate commerce b. Carter v. Carter Coal congress cannot regulate how coal was produced 2. Since 1937 the courts have systematically extended the power of congress over labor disputes a. NLRB v. Jones and Laughlin Steel 3. This increasing of power since 1937 has raised three questions a. How far out along he range of infinitely small gradations from interstate railroads and basic steel producers to corner drugstores and delicatessens should actually federal regulation of labor extend i. The NLRB of its own volition limited its jurisdiction to exclude small businesses of only local importance ii. Landrum-Griffin Act level of jurisdiction is that of 1958 b. What tribunals have jurisdiction and what applies to the labor relations of those businesses over which the NLRB can, but declines to, exercise jurisdiction?

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i. It was first assumed that the state law would take over but Guss v. Utah Labor Relations Board ended that leaving a no mans land ii. Congress remedied this no mans land by placing in Section 14(c) that the state law was to be used, and it has since been assumed that state tribunals are the correct venue iii. It is however permissible for the NLRB to negotiate an agreement with a state agency to ceded jurisdiction to the state as long as the state law is constant with the federal la w 1. Algoma Plywood and Veneer v. Wisconsen Employment Relation Board -- state law must run parallell 2. Produce Magic v. NLRB -- substantially identical c. How far does actual federal regulation of the labor relations of a business exclude the appliation of inconsistent, parallel or supplementary state law i. There is no real answer as congress has been silent on this and passed it along to the courts who have left it to rest on the intent of Congress ii. The Supreme Court has set down two all encompassing theories 1. The state courts cannot curtail conduct of employer or unions which congress seeks affirmatively to protect or at least permit 2. The states cannot regulate conduct which is clearly protected or even conduct which is clearly prohibited due to the fact that the NLRB is the designated agency iii. These two theories have been curtailed using justifications of deep roots in local feeling and responsibility, that the issue is just a peripheral concern of the federal law, the state law is one of general applicability 4. San Diego Building Trades Counsel v. Garmon a. Facts i. Although the National Labor Relations Board had declined to exercise jurisdiction, a California state court was precluded by the National Labor Relations Act from awarding damages to respondents under state law for economic injuries resulting from the peaceful picketing of their plant by labor unions which had not been selected by a majority of respondents' employees as their bargaining agents b. Issue i. Whether the State law is preempted when the NLRB denies exercise of jurisdiction c. Holding i. NO ii. When an activity arguably subject to 7 or 8 of the National Labor Relations Act, as was the picketing here involved, the States, as well as the federal courts, must defer to the exclusive competence of the National Labor Relations Board

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iii. Failure of the National Labor Relations Board to assume jurisdiction does not leave the States free to regulate activities they would otherwise be precluded from regulating iv. Since the National Labor Relations Board has not adjudicated the status of the conduct here involved, and since such activity is arguably within the compass of 7 or 8 of the Act, the State's jurisdiction is displaced. v. A different conclusion is not required by the fact that all that is involved here is an attempt by the State to award damages, since state regulation can be as effectively exerted through an award of damages as through some form of preventive relief. 5. Amalgamated Assn of Steet, Elec, Ry. And Motor Coach Employees v. Lockridge a. Facts i. Lockridge paid his union dues 10 days late ii. The union refused the sum and had Greyhound discharge Lockridge perusant to the labor agreement iii. Lockridge filed suit for breach of conduct due to the union constitution and bylaws which state that 15 day late dues are delinquent and 2 month late dues are suspended iv. The state court found for Lockridge and awarded damages b. Issue c. Holding i. This is essentially a NLRB claim even though it is brought under a state cause of action ii. The court needed to investigate this as the NLRB did 6. Farmer v. United Brotherhood of Carpenters and Joiners, Local 25 a. Facts i. A member and officer of respondent local carpenters' union brought a tort action for damages in California state court against respondent Unions and Union officials, alleging in count two of the complaint that respondents had intentionally engaged in outrageous conduct, threats, and intimidation, and had thereby caused him to suffer emotional distress resulting in bodily injury ii. The jury returned a verdict of actual and punitive damages for the plaintiff, and the trial court entered a judgment on the verdict. iii. The California Court of Appeal reversed, holding that state courts had no jurisdiction over the complaint since the 'crux' of the action concerned employment relations and involved conduct arguably subject to the National Labor Relations Board's jurisdiction. b. Issue i. Whether a tort case in state court is preempted by the NLRB due to labor concerns c. Holding i. The National Labor Relations Act does not pre-empt the action for intentional infliction of emotional distress.

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1. No provision of the NLRA protects the 'outrageous conduct' complained of in count two, and regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for union officers' conduct that is so outrageous that 'no reasonable man in a civilized society should be expected to endure it.' Hence, permitting the state courts to exercise jurisdiction over such complaints does not result in state regulation of federally protected conduct. 2. The State, on the other hand, has a substantial interest in protecting its citizens from the kind of abuse of which the plaintiff complained, and that interest is no less worthy of recognition because it concerns protection from emotional distress caused by outrageous conduct, rather than protection from physical injury or damage to reputation. 3. Viewed in light of the discrete concerns of the federal scheme of labor regulation and the state tort law, the potential for interference with the federal scheme by the state cause of action is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens, since the state tort action can be resolved without reference to any accommodation of the special interests of unions and members in the hiring hall context. 4. To permit concurrent state-court jurisdiction it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself. ii. It is clear from the record that the trial of the claim for intentional infliction of emotional distress did not meet the above standards, since the evidence supporting the verdict for the plaintiff focuses less on the alleged 'outrageous conduct' complained of than on employment discrimination; hence the consequent risk that the verdict represented damages for employment discrimination rather than for instances of intentional infliction of emotional distress precludes reinstatement of the trial court's judgment. d. Two Cautionary Notes i. The standard for libel is the NEW York Times Standard ii. There needs to be an outrageous damages for there to be a tort of this kind 7. Sears, Roebuck and Co v. San Diego County Dist. Council of Carpenters a. Facts i. Sears was subcontracting some of its carpentry work to a carpenter who did not participate in hiring halls nor did he agree to the unions master agreement

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ii. They picketed and the picketing was enjoined in state court as volatile of the trespassing law b. Issue i. Is the state trespass law preempted by the NLRA c. Holding i. NO ii. The critical inquiry is whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the National Labor Relations Board, for it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the NLRB's unfair labor practice jurisdiction that the arguably prohibited branch of the Garmon doctrine was designed to avoid. iii. permitting state courts to evaluate the merits of an argument that certain trespasser activity is protected does not create an unacceptable risk of interference with conduct that the NLRB, and a court reviewing the NLRB's decision, would find protected 8. Lodge 76, Ineternational Association of Machinists v. Wisconsin Employment Relations Comission a. Facts i. During negotiations for renewal of an expired collective bargaining agreement with respondent employer, petitioner union and its members engaged in a concerted refusal to work overtime. ii. The employer filed a charge with the NLRB, claiming that such refusal was an unfair labor practice under the NLRA, but the charge was dismissed on the ground that the refusal did not violate the NLRA, and therefore was not conduct cognizable by the NLRB. iii. The employer also filed an unfair labor practice complaint with respondent Wisconsin Employment Relations Commission, which held that such refusal, while neither protected nor prohibited by the NLRA, was an unfair labor practice under state law, and entered a cease and desist order against the union. iv. The Wisconsin Circuit Court affirmed and entered a judgment enforcing the order, and the Wisconsin Supreme Court affirmed. b. Issue i. Whether the Wisconsin Employment Relation Comission is preempted by the NLRB c. Holding i. The union's concerted refusal to work overtime was peaceful conduct constituting activity that must be free of state regulation if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated. ii. Congress meant that self-help economic activities, whether of employer or employee, were not to be regulable by States any more than by the NLRB, for neither States nor the NLRB is

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"afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful 9. Chamber of Commerce v. Brown a. Facts i. After the California legislature passed laws prohibiting the use of state funds to "assist, promote, or deter union organizing," a group of California companies brought suit claiming the state laws were preempted by the National Labor Relations Act, Section 7. ii. The Act provides that companies' anti-labor speech can only be considered evidence of unfair labor practice if it threatens or coerces workers. iii. The California companies argued that the state laws infringe upon their "safe harbor" for anti-labor speech embodied in the Act. iv. The U.S. Court of Appeals for the Ninth Circuit, after entering two panel decisions holding the California law preempted, issued a split en banc opinion holding that it was not. v. The Second Circuit has reached the opposite conclusion on similar facts. The Court's decision in this case will affect roughly a dozen other states currently considering adopting legislation substantially similar to the California law. b. Issue i. Does the National Labor Relations Act, which states that companies' anti-labor speech can only be considered unfair labor practice if it threatens or coerces workers, preempt state laws prohibiting the use of state funds to "assist, promote, or deter union organizing," even if the public funds are transparently segregated? c. Holding i. Yes. ii. California laws preempted by the National Labor Relations Act because the state laws regulated within "a zone protected and reserved for market freedom." iii. the Act as showing a "congressional intent to encourage free debate on issues dividing labor and management."

Specific Applications: Representation, Bargaining and Concerted Activities

1. Intro a. No state court or agency can work within the jurisdiction of the NLRB b. They stat may not purport to adjudicate and remedy unfair labor practices in any business c. However most state intervention is not as painfully obvious as the situations above 2. Selection of Bargaining Representative a. Hill v. Florida a state law posting requirements of a business agent was struck down due to the fact that it circumscribes the full freedom of choice that congress placed upon employees

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b. Brown v. Hotel and Rest. Employees a law requiring the casino licensing of labor organizers was acceptable. The line was drawn between a labor organization and the officers 3. Collective Bargaining a. Local 24, International Teamsters v. Oliver i. Facts 1. A collective bargaining agreement between a group of local labor unions and a group of interstate motor carriers prescribed a wage scale for truck drivers and, in order to prevent evasion thereof, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, not less than a prescribed minimum rental for the use of their vehicles. 2. A suit was brought in a state court to enjoin certain carriers and a local union from carrying out the minimum rental provision on the ground that it violated a state antitrust law. ii. Issue 1. Whether the CBA violated Antitrust regulations iii. Holding 1. Since that provision was part of an agreement resulting from the exercise of collective bargaining rights under the National Labor Relations Act, the state court was precluded from applying the state antitrust law to prohibit the parties from carrying out its terms a. In the light of its history and its purpose to protect the negotiated wage scale against evasion through payment to owner-drivers of rentals insufficient to cover their operating costs, the minimum rental provision was within the scope of collective bargaining required of the parties under 7 and 8 of the National Labor Relations Act b. The state antitrust law may not be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. b. Met Life v. Commonwealth of Massachusetts i. Facts 1. A Massachusetts state law mandating minimum insurance coverage was claimed to be preempted by ERISA and the NLRA 2. THe law required 60 days of mental health ii. Issue 1. Whether a state law mandating certain minimum statndards for health insurance is preempted by the NLRA iii. Holding 1. No

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2. NLRA preemption deals with state interference of NLRA structures which congress did not want regulated 3. Such preemption rests on a sound understanding of the NLRA's purpose and operation that is incompatible with the view that the NLRA preempts any state attempt to impose minimum benefit terms on the parties to a collective bargaining agreement 4. These laws effect all persons and regard the individual worker not the labor organization 5. There is nothing in the NLRA about this so congress could not have meant to regulate this in the NLRA c. Fort Halifax Packing Co v. Coyne i. Facts 1. Main had a statute which mandated severance pay in the event of a plant closing, but allowed this to be mitigated for employees covered by a severance package ii. Holding 1. The court sustained the statute due to MetLife a. Absent a collective bargaining agreement state government may regulate labor b. There is nothing in the NLRA which foreclose all state power with respect to uses which may be the subject of collective Bargaining d. Belknap, Inc. v. Hale i. Facts 1. When negotiations for a new collective bargaining agreement between petitioner employer and the union representing certain of its employees reached an impasse, some of the employees went out on strike, and petitioner then unilaterally granted a wage increase for employees who stayed on the job. 2. Petitioner also advertised for and hired "permanent" replacements for striking employees. 3. Under federal labor law, where employees engage in an economic strike, the employer may hire permanent replacements whom he need not discharge even if the strikers offer to return to work unconditionally. 4. However, if the strike is an unfair labor practice strike, the employer must discharge replacements in order to accommodate returning strikers. 5. Based on the unilateral wage increase, the union filed unfair labor practice charges with the NLRB against petitioner, which countered with charges of its own, and complaints were issued against both parties. 6. In the meantime, petitioner assured its replacement employees that they would continue to be permanent

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replacements, but the unfair labor practice complaints were later dismissed by the Board pursuant to a settlement agreement between the parties under which petitioner agreed to reinstate the strikers. 7. Respondents, replacement employees who were laid off to make room for returning strikers, then sued petitioner in a Kentucky state court to recover damages for misrepresentation and breach of contract. 8. The trial court granted summary judgment for petitioner on the ground that respondents' causes of action were preempted by the NLRA but the Kentucky Court of Appeals reversed. ii. Issue 1. Whether the claims of misrepresentation and breach of contract were preempted by the NLRA iii. Holding 1. The doctrine of Machinists v. Wisconsin Employment Relations Comm'n, proscribing state regulation and state law causes of action concerning conduct that Congress intended to be unregulated, does not foreclose this suit. 2. There is no indication that Congress intended conduct of an employer and a union, such as that involved here, to be controlled solely by the free play of economic forces, so as to preclude state court damages actions by discharged replacement employees on the theory that such actions would upset the delicate balance of forces established by federal law. 3. Entertaining suits such as the instant suit does not interfere with the asserted policy of federal law favoring settlement of labor disputes. 4. There is no substantial impact on the availability of settlement of economic or unfair labor practice strikes, because the employer may protect himself against suits like this by promising permanent employment to replacement employees, subject only to settlement with the union or to a Board unfair labor practice order directing reinstatement of strikers. Such contracts are sufficiently "permanent" to permit the employer who prevails in a strike to keep replacements he has hired if he prefers to do so. 5. Nor are respondents' causes of action preempted under San Diego Building Trade Council v. Garmon, which held that state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the NLRA. 6. While the questions whether the strike was an unfair labor practice strike -- requiring reinstatement of strikers --

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because of petitioner's unilateral wage increase and whether its offering permanent employment to respondents was also an unfair labor practice, were matters for the Board, nevertheless, under Garmon, a State may regulate conduct arguably protected or prohibited by the NLRA if the conduct is of only peripheral concern to the NLRA or if it is so deeply rooted in local law that it cannot be assumed that Congress intended to preempt the application of state law. 7. The critical inquiry is whether the controversy presented to the state court is identical to that which could be presented to the Board. 8. Here, the controversies cannot fairly be called identical, since the focus of the Board's determinations would be on the rights of strikers under federal law, whereas the state court claims would concern the rights of replacement employees under state law. 9. And at the same time the State has substantial interests in protecting its citizens from misrepresentations that have caused them grievous harm, and in providing a remedy to its citizens for breach of contract

Enforcement of Collective Bargaining Agreements

1. Allis-Chalmers Corp v. Lueck A provision in a CBA for health care was preempted by the NLRA due to section 301 a. In this case there was an implied duty to act in good faith in the labor agreement b. To permit this to go agead as a state tort would deprive the parties of the contractual grievance procedures 2. Lingle v. Norge Div. of Magic Chef Inc. a. Facts i. After petitioner notified her employer that she had been injured in the course of her employment and requested compensation for her medical expenses pursuant to the Illinois Workers' Compensation Act, she was discharged for filing an allegedly false worker's compensation claim. ii. The union representing petitioner filed a grievance pursuant to a collective bargaining agreement that protected employees from discharge except for "just" cause and that provided for arbitration of disputes between the employer and any employee concerning the effect or interpretation of the agreement. While arbitration was proceeding, petitioner filed a retaliatory discharge action in an Illinois state court, alleging that she had been discharged for exercising her rights under the Illinois worker's compensation laws. iii. Respondent removed the suit to the Federal District Court on the basis of diversity of citizenship, and filed a motion to dismiss the 20

case as preempted by 301 of the Labor Management Relations Act of 1947. iv. The court dismissed the complaint as preempted, concluding that the retaliatory discharge claim was "inextricably intertwined" with the collective bargaining provision prohibiting discharge without just cause, and that allowing the state law action to proceed would undermine the arbitration procedures in the collective bargaining contract. v. The Court of Appeals affirmed. b. Issue i. Whether the workers compensation case was preempted by the NLRA c. Holding i. Application of petitioner's state tort remedy was not preempted by 301. ii. An application of state law is preempted by 301 only if such application requires the interpretation of a collective bargaining agreement. iii. If the resolution of a state law claim depends upon the meaning of a collective bargaining agreement, the application of state law is preempted and federal labor law principles -- necessarily uniform throughout the Nation -- must be employed to resolve the dispute. iv. Under Illinois law governing the tort of retaliatory discharge for filing a worker's compensation claim, the employee must show both that he was discharged or threatened with discharge and that the employer's motive was to deter the employee from exercising rights under the Workers' Compensation Act or to interfere with the exercise of those rights. Neither of those elements requires a court to interpret any term of a collective bargaining agreement v. The result in this case is consistent both with the policy of fostering uniform, certain adjudication of disputes over the meaning of collective bargaining agreements and with cases that have permitted separate fonts of substantive rights to remain unpreempted by other federal labor law statutes. 3. The Retaliatory lawsuit a. Bill Johnsonss Restaurants v. NLRB - - the court found that the filing of a well founded lawsuit may not be enjoined as an unfair labor practice even if it would not have been commenced but for the plaintiffs desire to retaliate against the defendant for exercising rights protected by the act i. A baseless lawsuit is not ok however ii. In this case an employer sued striking employees b. BE and K Construction v. NLRB there is a class of cases which are reasonably based but unsuccessful; these are not in violation of the NLRB i. in this case a lawsuit against striking employees was dismissed and the employees filed an NLRB case

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c. Can-Am Plumbing v. NLRB the above stated cases do not prevent preemption however 4. State Regulation of Unionization by Supervisors a. Intro i. Section 2(3) states that supervisors are excluded from the protections ii. Section 14(a) states that nothing within the act shall prohibit supervisors from becoming or remaining a member of a labor organization, and no employer subject to the act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of this law b. Marine Engineers Beneficial v. Interlake S.S. co The court deferred to the expertise of the NLRB on whether MEBA members were supervisors or a labor organization c. Hanna Mining co v. District 2, MEBA Due to the fact that MEBLA was found to be outside of the act as they were supervisors the state law was not preempted d. Beasley v. Food Fair of North Carolina 14(a) prevents employers from being forced to treat supervisors as standard employees i. You cannot force companies to keep supervisors who have joined a labor union

Exclusive Representation and Majority Rule

1. J.I Case Co. v. NLRB a. Facts i. JI Case Co offered each employee an one year contract which agreed to furnish employment, to pay a specified rate and to maintain hospital facilities 1. About 75% of the employees signed these contracts ii. In 1941, while these contracts were in effect, the CIO union petitioned for representative status, and despite the claim that the contracts were a bar to union representation the Board directed an election which the union won iii. The company declined to bargain with the union because of the one year contracts which were still in effect iv. The board held that the company was in violation of 8(5) in its refusal to bargain with the union and that the contracts were in violation of collective bargaining rights under 7 b. Issues i. Whether the individual contracts bar union negotiation and whether these contracts were unfair labor practices c. Holding i. Individual contracts cannot be used to bar CBAs or union activity 2. Emporium Capwell v. Western Addition Community Orgainzation a. Facts

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i. Employees felt they were being discriminated against because of their race. ii. Union investigated allegations, made report to company, asked individual employees to file grievances under union contract. iii. Union agreed to process grievances through to arbitration if necessary. iv. Employees refuse to participate in grievance v. Employees seem to be engaged in protected speech/traditionally protected activity. b. Issue i. Whether the grievances have to be brought by the union c. Holding i. Section 9(a) has proviso allowing individual employee or group of employees to present grievances to employer without bargaining representative as long as it is not inconsistent with union contract. 3. THe Limits of Majority Rule a. The two above cases show that the individual needs are subordinated to the needs of the union b. There are a number of positions the board takes to counteract this i. Exclusion of worker with conflicts when forming the appropriate bargaining unit ii. Decertification election opportunities periodically iii. The bill of rights for union members provides certain democratic rights and procedures within the union iv. A member of the bargaining unit does not need to become a member of the union v. On matters other than wages, hours and terms and conditions of employment there is no mandate to bargain with the majority unit vi. Individual members can present grievances under 9(a) vii. There is a duty of fair representation but the union 4. Steele v. Louisville and Nashille R. Co. a. Facts i. Respondent Brothehood is a labor organization which represented firemen who were employed by railroads ii. The Brotherhood was attempting to exclude black firemen from its ranks iii. This led to increased benefits for white firemen, increased promotion for white firemen and a lack of hiring of black firemen iv. Steele was replaced on his work by a white man who was his junior multiple times which caused him to be out of work v. Alabama decided that there was no cuse of action and that the railroad was required to bargain with the Brotherhood because it held the majority of the craft b. Issue

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i. Whether the railway labor act imposes on a labor organization the duty to represent all employees in the craft without discrimination because of their race c. Holding i. Yes 1. The minority would be left with no representation if the union was not required to represent all people 2. The union is responsible for representing all members of the craft, whether they are union or non union 3. There can be contracts made which are not advantageous to all but it must occur because of some reason, not because of race, which is irrelevant to the work 5. Ford Motor Company v. Hoffman a. There are going to be differences in treatment in CBAs but this does not make them invalid b. The union must be allowed to make reasonable decisions, and this does not mean that all will be satisfied

The Individual and the Union

The Right to Fair Representation
The Source and Enforcement of the Unions Duty 1. JI Case Co v. NLRB -- Collective bargaining takes priority over individual contracts 2. Steele v. Louisville and Nashville RR a union has a correlative duty to represent all employees within the bargaining unit without hostile discrimination, fairly , impartially and in good faith 3. NLRB v. Miranda Fuel a union cannot induce discipline against one employee 4. Independent Metal Workers, Local 1 (Hughes Tool Co) a racially segregated bargaining unit engaged in an unfair labor practice when it failed to process an employees grievance because he was black 5. Bell & Howell co v. NLRB; Handy Andy, INC a unions illegally discriminatory policy cannot be shown by the employer as a bar to initial certification 6. Decostello v. International Brotherhood of Teamsters a. The statute of limitations for section 301 is to be the federal statute of limitations and that the pertinent period is to be borrowed from the NLRA and is to be 6 months 7. International Brotherhood of Electric Workers v. Foust RLA foes not contemplate punitive damages against a union for a violation of the duty of representation a. There were concerns about damaging the unions economic standing as well as unduly interfere with the unions discretion in handling and settling grievances 8. Wooddell v. International Brotherhood of Electric Workers, Local 71

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a. Refusal to refer a member to a hiring hall for a discriminatory purpose is a violation of 301 The Unions Duty in Contract Making i. Airline Pilots Assn Intern v. ONeill a. Facts i. After Continental Airlines, Inc., filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, it repudiated its collective bargaining agreement with petitioner ALPA. ii. An acrimonious strike ensued, during which Continental hired replacement pilots and reemployed several hundred crossover strikers. iii. Two years into the strike, Continental announced in its "Supplementary Base Vacancy Bid 1985-5" (85-5 bid) that it would fill a large number of anticipated vacancies using a system that allows pilots to bid for positions and that, in the past, had assigned positions by seniority. iv. Although ALPA authorized strikers to submit bids, Continental announced that all of the positions had been awarded to working pilots. v. ALPA and Continental then agreed to end the strike, dispose of some related litigation, and reallocate the positions covered by the 85-5 bid. vi. Striking pilots were offered the option of settling all outstanding claims with Continental and participating in the 85-5 bid positions' allocations, electing not to return to work and receiving severance pay, or retaining their individual claims against Continental and becoming eligible to return to work only after all the settling pilots had been reinstated. vii. Thus, striking pilots received some of the positions previously awarded to the working pilots. viii. After the settlement, respondents, former striking pilots, filed suit in the District Court against ALPA, charging, inter alia, that the union had breached its duty of fair representation. ix. The court granted ALPA's motion for summary judgment, but the Court of Appeals reversed. x. It rejected ALPA's argument that a union cannot breach the fair representation duty without intentional misconduct, applying, instead, the rule announced in Vaca v. Sipes, that a union violates the duty if its actions are either "arbitrary, discriminatory, or in bad faith," xi. With respect to the test's first component, the court found that a nonarbitrary decision must be (1) based upon relevant permissible union factors, (2) a rational result of the consideration of those factors, and (3) inclusive of a fair and impartial consideration of all employees' interests.

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xii. Applying that test, the court concluded that a jury could find that ALPA acted arbitrarily by negotiating a settlement less favorable than the consequences of a complete surrender b. Issue c. Holding i. The tripartite standard announced in Vaca v. Sipes, supra, applies to a union in its negotiating capacity. Thus, when acting in that capacity, the union is not, as ALPA contends, required only to act in good faith and treat its members equally and in a nondiscriminatory fashion. Rather, it also has a duty to act in a rational, nonarbitrary fashion to provide its members fair and adequate representation ii. The final product of the bargaining process may constitute evidence of a breach of the fair representation duty only if, in light of the factual and legal landscape, it can be fairly characterized as so far outside of a "wide range of reasonableness that it is wholly "irrational" or "arbitrary." iii. The resolution of the dispute as to the 85-5 bid positions was well within the "wide range of reasonableness" that a union is allowed in its bargaining. Assuming that the union made a bad settlement, it was by no means irrational when viewed in light of the legal landscape at the time of the settlement. The Individual and His Grievance 1. Vaca v. Sipes a. Facts i. Petitioners, union officials, were sued in a state court by a union member who alleged wrongful discharge by his employer in violation of the collective bargaining agreement and the union's arbitrary refusal to take his grievance to arbitration under the fifth and final step of the bargaining agreement's grievance procedures. ii. The employee, whose duties required strenuous activity, was discharged on the ground of poor health. iii. During the fourth grievance step, the union sent the employee to a physician for a complete examination. iv. The report was unfavorable to the employee, and the union decided not to take the grievance to arbitration. v. After a jury verdict for the employee, the trial judge set aside the verdict on the ground that the NLRB had exclusive jurisdiction over the controversy. vi. The Kansas City Court of Appeals affirmed, but the Missouri Supreme Court reversed and ordered the jury's verdict reinstated. b. Issue i. Whether the union violated its duty of representation by not taking Vacas case to arbitration c. Holding

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i. Since the union's duty, as exclusive agent, fairly to represent all members of a designated unit is based on federal statutes, federal law governs the employee's cause of action for breach of that duty. ii. Preemption is not proper in this case because there is no indication that congress intended preemption to occur iii. A union breaches its duty of fair representation when its conduct toward a member of the designated unit is arbitrary, discriminatory or in bad faith, but it does not breach that duty merely because it settles a grievance short of arbitration, and the Missouri Supreme Court erred in upholding the jury's verdict solely on the ground that the evidence supported the employee's claim of wrongful discharge iv. As a matter of federal law, the evidence does not support a verdict that the union breached its duty, as the employee, who had no absolute right to have his grievance arbitrated, failed to prove arbitrary or bad faith conduct by the union in processing his grievance. v. The claimed damages, which were primarily those suffered as a result of the employer's alleged breach of contract, should not have been all charged to the union, and, if liability were found, it should have been apportioned between the employer and the union according to the damages caused by the fault of each d. Notes i. Breininger v. Sheet Metal Workers there is no preemption for failure to represent as the sections did not oust state courts from enforcing that duty ii. Union News co. V. Hildreth the union is oven the power to construe terms of a just cause provosion; the union needs to act within the collective interest of those who by law and contract the union was charged with protecting 1. There is no issue that the company and the union worked together iii. Simmons v. Union news Co this case upheld Union News iv. Essentially in the above cases the court allowed grievance settling between the union and the employer v. Hines v. Anchor Motor Freight just as the unions breach of the duty of fair representation in settling a grievance before arbitration relieves the employee in the action against the employer, so to does the unions subversion of the arbitration process itself remove the bar of the arbitrators decision vi. United Steelworkers v. Rawson -- a breach of DFR occurs only when a unions conduct toward a member of the collective bargaining unit its arbitrary, discriminatory or in bad faith 1. Mere negligence is not included in this vii. United Food and Commerical Workers -- where a union handles an employees grievance so lightly as to suggest an egregious

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disregard for her rights it can be said that there was a breach of DFR 2. Summers Article a. For the rights of the individial see page 993 3. Bowen v. USPS a. Facts i. After petitioner employee was discharged by respondent (USPS) as a result of an altercation with another employee, he filed a grievance with respondent Union as provided by the applicable collective bargaining agreement. ii. When the Union declined to take his grievance to arbitration, petitioner sued respondents in Federal District Court, claiming that he had been wrongfully discharged and seeking damages and injunctive relief. iii. Entering judgment on a jury verdict against both respondents, the District Court held that the USPS had discharged petitioner without just cause, and that the Union had handled his grievance in an arbitrary manner. iv. Accordingly, the court upheld the jury's apportionment of damages between the USPS and the Union. v. The Court of Appeals affirmed except for the award of damages against the Union, holding that, because petitioner's compensation was payable only by the USPS, reimbursement for his lost earnings continued to be the USPS's exclusive obligation, and that hence no portion of the deprivations was chargeable to the Union. b. Issue i. Whether the petitioner is entitled to damages from both the USPS and the Union c. Holding i. Where the District Court's findings, accepted by the Court of Appeals, established that petitioner's damages were caused initially by the USPS's unlawful discharge and were increased by the Union's breach of its duty of fair representation, apportionment of the damages was required. ii. The governing principle of Vaca is that, where an employee proves that his employer violated the collective bargaining agreement and that his union breached its duty of fair representation, liability is to be apportioned between the employer and the union according to the damages caused by the fault of each iii. Of paramount importance is the right of the employee, who has been injured by both the employer's and the union's breach, to be made whole iv. When the union, as the employee's exclusive agent, waives arbitration or fails to seek review of an adverse decision, the employer should be in substantially the same position as if the employee had had the right to act on his own behalf and had done

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so. In the absence of damages apportionment where the default of both the employer and the union contributes to the employee's injury, incentives to comply with the grievance proceeding would be diminished, and to impose total liability solely on the employer could affect the willingness of employers to agree to arbitration clauses. d. Notes i. Clayton v. International Union, UAW it is not always necessary to exhaust the grievance procedure of the union as long as the contractual procedure was completed

Union Security and the Encouragement of Union Activity

Union Security and the Use of Union Dues 1. NLRB v. General Motors a. An "agency shop" arrangement, which leaves union membership optional with the employees but requires that, as a condition of continued employment, nonunion employees pay to the union sums equal to the initiation fees and periodic dues paid by union members, does not, in itself, constitute an unfair labor practice under 8(a)(3) of the National Labor Relations Act, and is not prohibited by 7 or 8. b. In a State which does not prohibit such an arrangement, therefore, an employer commits an unfair labor practice, within the meaning of 8(a)(5), when it unconditionally refuses to bargain with a certified union of its employees over the union's proposal for the adoption of such an arrangement. 2. International Association of Machinists v. Street a. Facts i. A group of railroad employees sued in a Georgia State Court to enjoin enforcement of a union shop agreement entered into between a group of railroads and labor unions of their employees under 2, Eleventh, of the Railway Labor Act, which required all employees to join the union and to pay initiation fees, assessments and dues in order to keep their jobs. ii. The complaint alleged that a substantial part of the money each of these employes was thus compelled to pay was used over his protest to finance the campaigns of political candidates whom he opposed, and to promote the propagation of political and economic doctrines, concepts, and ideologies with which he disagreed. iii. The trial court found that the allegations were fully proved, and that, in these circumstances, the union shop agreement violated the complaining employees' rights under the First Amendment. iv. It enjoined enforcement of the union shop agreement and awarded some of the employees judgments for the money they had been required to pay. v. The Supreme Court of Georgia affirmed. 29

b. Holding i. In Railway Employees' Dept. v. Hanson, 351 U. S. 225, this Court held that enactment of the provision of 2, Eleventh, which authorizes union shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause and did not, on its face, violate the First Amendment or the Due Process Clause of the Fifth Amendment, but it reserved decision on the constitutional questions presented in this case by the actual application of that section and the union shop agreements entered into there under ii. Though the record in this case adequately presents those constitutional questions, it is not necessary for this Court to decide the correctness of the constitutional determinations made by the Georgia Courts, because 2, Eleventh, denies authority to a union, over the employee's objection, to spend his money for political causes which he opposes. c. Notes i. Communications Workers v. Beck -- the court upeld its decision when it came to expendature of funds under the NLRA as well as the RLA 3. Marquez v. Screen Actors Guild, Inc a. Facts i. Naomi Marquez, part-time actress, auditioned successfully for a role in a television series produced by Lakeside Pictures. ii. Pursuant to their collective bargaining agreement, Lakeside contacted the Screen Actors Guild (SAG) to confirm that Marquez met the "union security clause" of the agreement that requires union "membership" as a condition for employment. iii. The clause stated one must be a member "in good standing." iv. Subsequently, Marquez was denied the part because she had not paid her dues. v. Marquez filed suit alleging SAG breached its duty of fair representation with its union security clause. 1. First, Marquez argued she should have been made aware of her established legal right not to join the union, but only to pay for its representational activities. 2. Second, Marquez claimed that the clause required repetitious thirty-day previous work periods every time motion picture employment ceased. vi. The District Court summarily ruled against Marquez because the clause followed the National Labor Relations Act; therefore, it did not breach its duty of fair representation. vii. The Court of Appeals affirmed the decision on the first claim, but held the second claim was in the jurisdiction of the National Labor Relations Board. b. Issue

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i. Can collective bargaining contracts require membership for employment without articulating what it means to be "in good standing?" c. Holding i. Yes. ii. In a unanimous decision, announced by Justice Sandra Day O'Connor, the Court ruled collective bargaining contracts do not have to spell out what it means to be "in good standing." iii. Justice O'Conner noted that requiring membership to be specified in a contract would force all terms to be specified. iv. There would be no limit. d. Notes i. Ellis v. Brotherhood of Railway, Airline and SS Clerks the court found that many items in the dues were nor related to political expenditures and thus only certain items needed to be reimbursed to those wishing them 1. Organizing 2. Certain Litigation 3. Political Contributions ii. Locke v. Karass the court disallowed payment of a service fee which went to non-local litigation unless that litigation would be chargeable if it were local and as long as it is reciprocal in nature iii. California Saw and Knife Workers a number of decisions were reached 1. There must be Beck notice given to all new workers 2. All current employees must be apprised of their Beck rights 3. There must be reasonable notice of a need to pay dues before an employee can be discharged 4. Beck rights can only be used if a person is not part of the union 5. Expenses made outside of the bargaining unit are only chargeable if they benefit the local union through membership in the parent organization 6. No unit by unit accounting is needed to be done for litigation provided it is germane to the unions CBA 7. It is only necessary to set for the major categories of union expenditure and the union may lawfully denote that certain of those categories were mixed without setting for any additional details 8. The union must supply an audit 9. All challenges to the IAM dues restriction are consolidated for arbitration iv. Air Line Plots Assn v. Miller Unless the agency fee objectors agree to the procedures are not required to exhaust arbitration remedies

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State Right to Work Laws i. Congress preserved the state right to work laws in 14(b) ii. The supreme court also upheld these laws in deciding that states could not compel the joining of a union iii. Retail Clerks, Intern, Ass v. Schermerhorn the only kind of membership which may be lawfully demanded of an employee is his payment of a service fee to the union measured by periodic dues and initiation fees The Union Hiring Hall i. Local 357, International Bhd of Teamsters v. NLRB a. Facts i. An association of motor truck operators entered into a collective bargaining agreement with the Brotherhood of Teamsters and several of its local unions which, in effect, required the operators to employ casual employees "on a seniority basis" through a hiring hall operated by one of the unions, "irrespective of whether such employee is or is not a member of the Union." ii. A union member obtained casual employment with an operator independently of the union and the hiring hall, and he was discharged when the union complained. iii. The National Labor Relations Board held that the hiring hall arrangement was unlawful per se, and that the employer had violated 8(a)(1) and 8(a)(3) and the union had violated 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act, as amended. It ordered them, inter alia, to reimburse all casual employees for fees and dues paid to the union during the period covered by the complaint. b. Holding i. The Board was not authorized under 10(c) to require reimbursement of dues and fees paid to the union ii. The Board erred in holding that the hiring hall arrangement was unlawful per se, since such arrangements are not unlawful unless they in fact result in discriminations prohibited by the Act. Benefits for Union Officials 1. Local 900, International Union of Electrical Workers v. NLRB (Gulton ElectroVoice) a. Facts i. Petitioner, a collective bargaining agent, sought reversal of an order by the respondent, the National Labor Relations Board in an action that held unlawful a contract clause that granted superseniority, with regard to layoff and recall, to two of petitioner's officers. ii. In holding the contract unlawful, respondent overruled prior precedent and established that superseniority with regard to layoff

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and recall was lawful only when extended to union officers who were involved in on-the-job contract administration. iii. On review, the court affirmed and upheld respondent's new principle by enforcing the order in its entirety. iv. Respondent's action must be upheld if it was reasonable and supported by the record. v. Because superseniority for union officials could affect employees' decisions regarding selection of representatives, the discrimination respondent found was not amenable to waiver. vi. Retroactivity was necessarily an issue any time adjudication resulted in a new rule of law, so petitioner did give notice of objection. vii. However, the issue of superseniority was not one of first impression and there was no evidence to show that petitioner relied on the former rule. b. Holding i. Court affirmed respondent's order, holding that there would be no great hardship in enforcing the order because there was no evidence that petitioner relied on the old rule and there was nothing to oppose the statutory interest in applying the new rule.

Discipline of Union Members and the National Labor Relations Act

1. NLRB v. Allis-Chalmers MFG Co. a. Facts i. Lawful economic strikes were called at two of respondent Allis Chalmers' plants in accordance with duly authorized union procedures by the locals of the union representing the employees. ii. Some union members crossed picket lines and worked during the strikes. iii. After the strikes were over, the locals brought proceedings against these members, imposed fines of $20 to $100, and sued in state courts to collect the fines. iv. The collective bargaining agreement contained a union security clause which required each employee to become and remain "a member of the union to the extent of paying his monthly dues." v. Allis-Chalmers filed unfair labor practice charges against the locals alleging violation of 8(b)(1)(A) of the National Labor Relations Act. vi. The NLRB held that, even if the union action were restraint or coercion proscribed by that section, the conduct came within the proviso that the section "shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." vii. The Court of Appeals reversed, holding that the union conduct violated 8(b) (1)(A). b. Issue 33

i. Whether the union can discipline members for crossing picketing lines c. Holding i. The history of legislative action surrounding 8(b)(1)(A)'s prohibition of union activity to "restrain or coerce" employees in the exercise of rights guaranteed by 7 justifies the conclusion, in light of the imprecision of the words "restrain or coerce," and the repeated refrain throughout the debates that Congress did not propose limitations on the internal affairs of unions, that Congress did not intend 8(b)(1)(A) to prohibit the imposition of reasonable fines on full union members who decline to honor an authorized strike or to prohibit attempts to collect such fines. ii. Since Allis-Chalmers offered no evidence that the fined employees enjoyed other than full union membership, the contrary will not be presumed. The question of the applicability of the statute to employees whose membership was limited to the obligation to pay monthly dues is not presented here. 2. Scofield v. NLRB a. Facts i. Petitioners, union members employed by the Wisconsin Motor Corp. on a piecework basis, were each fined and suspended by their union (without endangering their job retention) for violating a union rule relating to production ceilings. ii. The union and employer had bargained over the ceiling level, but the collective bargaining agreement does not foreclose the employer's paying employees for work performed over the ceiling. iii. Petitioners refused to pay the fines, the union brought suit in a state court to collect them, and petitioners then initiated charges before the National Labor Relations Board (NLRB), arguing that union enforcement of the rule through collection of fines was an unfair labor practice. iv. The NLRB found no violation of the National Labor Relations Act (NLRA) and the Court of Appeals upheld its ruling. b. Issue i. Whether Employees can be disciplined for working above the production ceiling when it had not been foclosed that they could not c. Holding i. Petition for certiorari in this case, filed within 90 days of the decree but not of the opinion, where no notice of entry of any judgment at time of the opinion had been given petitioners, was timely ii. Section 8(b)(1) of the NLRA permits a union to enforce a properly adopted rule which reflects a legitimate union interest, impairs no statutory labor policy, and is reasonably enforced against union members who are free to leave the union and escape the rule, while

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maintaining job security under the union shop clause by paying dues. NLRB v. Allis-Chalmers Mfg. Co. iii. Arguments that the union rule in this case contravened a statutory labor policy were inadequate here. That rule did not demonstrably impede the collective bargaining process, cause a breach of the collective bargaining agreement, establish featherbedding within the meaning of the statute, induce discrimination by the employer against any class of employees, or represent any dereliction by the union of its duty of fair representation, and, in view of the acceptable manner of its enforcement by reasonable fines to vindicate a proper union concern it does not constitute the restraint or coercion prohibited by 8(b)(1)(A). 3. Pattern Makers League of North America v. NLRB a. Facts i. Petitioner national labor union's constitution provides that resignations from the union are not permitted during a strike. ii. The union fined 10 members who, in violation of this provision, resigned during a strike by petitioner local unions and returned to work. iii. Respondent employer representative thereafter filed charges with the National Labor Relations Board (Board), claiming that such levying of fines constituted an unfair labor practice under 8(b)(1)(A) of the National Labor Relations Act, which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of their 7 rights. iv. The Board agreed, and the Court of Appeals enforced the Board's order. b. Issue i. Whether a union may discipline members who resign from the job and then go back to work during a strike c. Holding i. In related cases this Court has invariably yielded to Board decisions on whether fines imposed by a union "restrained or coerced" employees. Moreover, the Board has consistently construed 8(b)(1)(A) as prohibiting the fining of employees who have resigned from a union contrary to a restriction in the union constitution. Therefore, the Board's decision in this case is entitled to this Court's deference. ii. The Board was justified in concluding that, by restricting the right of employees to resign, the provision in question impaired the congressional policy of voluntary unionism implicit in 8(a)(3) of the Act 4. Union Discipline of Supervisors a. In a number of industries the supervisors retain union membership because of the mobility of the work and the chance that they will not be supervisors on the next job

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b. Neither the supervisor nor employee have a redress under A due to it only being for employees but they may have an option under B c. Florida Power and Light co v. Electical workers Supervisors may be figned if they report to work during a stike to perform rank and file work that the strikers would have performed d. The courts have since expanded this notion

State Issues
1. Independence National Education Acociation et al. v. Independence School District a. Facts i. The board unilaterally accepted a collaborative team policy which changed the terms of employment by members of three associations ii. This new policy conflicted with the memoranda of understanding iii. This led to differences in the grievance procedure, payroll deductions, and discipline and discharge b. Issue i. Does the right to organize and to bargain collective apply to public employees as well as private employees ii. If the public employer negotiates an agreement with its employee groups, may the public employer unilaterally impose a new employment agreement that contradicts the terms of the agreement in effect c. Holding i. Yes 1. This simply goes to the plain language of the Missouri statute which stated employees shall have the power to bargain collectively 2. This is also in line with all of the case law reguarding this matter 3. However it is not necessary for the employer to do so ii. No 1. However there is an issue of how long the contract was binding for and this will be discussed on remand 2. Case law has held that there cannot be unilateral changes made to the terms of teachers contracts 2. Eastern Missouri Coalition of Police v. City of Chesterfield a. Facts i. The city of Chesterfield declined to voluntarily recognize the Union as the exclusive bargaining unit ii. The city then declined to establish a procedural framework for collective bargaining iii. The trial court found for the Union iv. The city contends that the 1. Union lacks standing 36

2. City has no legal duty to establish collective bargaining procedures 3. The separation of powers prohibits the court from ordering the city to adopt such procedures b. Issue i. Whether the union has legal standing to sue ii. Whether the city has a legal duty to establish collective bargaining procedures iii. Whether the separation of powers prohibits the court from ordering the city to adopt such procedures c. Holding i. Yes 1. The Supreme Court has allowed this 2. Even though the cards were not authenticated officers did testify that the vast majority of officers were a member of the union thus giving the standing as they do exist ii. Yes 1. Independence School District handled this issue with regards to all employees a. there is a requirement to meet, confer and discuss but there is no requirement to accept 2. If one is given the right to bargain there must be someone to bargain with iii. Yes 1. The lower court directed the city to determine that the Union was the exclusive bargaining unit which went too far 2. But the court may direct the city to set up procedures iv. The case was transfered to the Supreme Court for further determination 3. American Federation of Teachers v. Richard Ledbetter a. Facts i. The board formally recognized the union as the bargaining representative ii. The parties met and conferred 19 times over the next year but no agreement was reached iii. The trial court found that the board did not bargain in good faith but also that it was not required to under Missouri Law b. Issue i. Whether the board has a requirement under Missouri Law to collectively bargain c. Holding i. Yes 1. Independence ii. This case was forwarded to the supreme court

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Relevant Statutes
Clayton Act
Declared labor and labor activities and objectives as not in violation of anti-trust laws and not enjoinable. SC eventually invalidates these provisions, so the Clayton Act is basically useless as applied to labor relations.
Clayton Act (1914) Congress: shouldnt be using Sherman Act to attack labor unions, but some loose language in there to allow hostile courts to weasel out of it. Had been hailed by labor as a savior, but ended up being an agony. States passed mini-Clayton acts. (?) Sec. 6: Typical objectives of labor organizations are legit Anti-trust laws dont forbid existence of labor orgs or prevent them from carrying out their objectives. That the labor of a human being is not a commodity or article of commerce. Sec. 20: Imposed limitations power of courts to issue injunctions in labor disputes. no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employeesinvolving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property rightfor which there is no adequate remedy at law.

National Railway Labor Act

Labor Code for the industry, now includes airlines, and sometimes used as persuasive for interpreting the NLRA.

Norris- Laguardia Act (1932)

The first national legislation on labor organization. The act stripped federal courts of the power to enjoin non-fraudulent, non-violent union activities, stopping them from hampering union activities and blatantly favoring employers under federal anti-trust laws. Brings about government neutrality. Courts may only issue injunctions against violence.
Closes the gaps.

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No court of the US shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute except (in Sec. 1) Policy (in Sec. 2) The individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of laborit is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employersfor the purpose of collective bargaining. Outlaws the yellow dog K. Sect. 13(c): expands the term of labor disputes to include secondary disputes gets to the heart of Duplex printing

National Labor Relations Act (1935) (Wagner Act) / Labor Manaement Relations Act (Taft-Hartley)
Affirmatively protects the rights of workers by giving them federal rights to join a union and bargain collectively. Created the National Labor Relations Board in DC.
Enacted in the heart of the Depression; culmination of a long period of development including enactment in 1926 of the Railway Labor Act. Later amendments: Taft-Hartley Act (1947 Landrum-Griffin (1959) Structurally a New Deal Solution Administrative Agency 5 member board. Ringing declaration of policy in Section 1. The denial by employers of the right of employees to organize and the refusal by employers to accept the procedures of collective bargaining.the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employerstends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries. Sec. 7: Beating heart of NLRA: Right to organize. Employees have the right to self-organize, to form, join, or assist labor organizations, ot bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining (strikes, boycotts even applies to non-union shops) or other mutual aid or protection. Sec. 8: Employer unfair labor practices. 8(a)(1): ER cant interfere, restrain, or coerce EEs with their exercise of 7 rights.

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8(a)(2): ER cant dominate or interfere with formation or administration of unions (outlawing company unions). 8(a)(3): ER cant discriminate against union members or discourage membership in the unions. After Taft-Hartley, cant encourage, either. EE has the right to not be in the union. 8(a)(4): ER cant discharge or discriminate against EE b/c he filed charges or gave testimony under the act. 8(a)(5): ER cant refuse to bargain collectively with EE reps. Sec. 9: How union becomes certified. Sec. 10: Remedies

Labor Management Relations Act (1947) (Taft-Hartley)

A revision of the Wagner Act. In 8(b), Congress prescribes union conduct that will constitute unfair labor actions. the act placed restrictions on unions that were already imposed on the employer. the act made it illegal to restrain or coerce employees wishing to exercise their rights to self-organization. Also made illegal were secondary strikes, secondary boycotts, and sympathy strikes, which were designed to influence employers other than those with whom the union had a contract The act gave the employer a First Amendment right to free speech that had been severely limited by the former laws. as long as the speech did not contain threats or promises to employees. The act also limited the liability of employers based on acts of managers or supervisors to those who would be considered part of these supervisors' official duty. Therefore an employer could not be held liable for a supervisor who was harassing union members for reasons unrelated to the supervisor's actual job duties. In addition, the Taft-Hartley Act allowed states to enact right-to-work laws, which made it illegal to set union membership as a condition for employment Other changes included removing supervisors from the bargaining unit so as to avoid the possibility of conflicting interests, and placing guards in a separate bargaining unit without any rank-and-file members Finally, the act required a both sides of a labor contract to bargain in good faith, which means they must meet at regular times and try to reach an agreement on a range of issues related to the employment contract. The parties must also create a written contract that includes any agreed-upon provisions. Additionally, the act created the Federal Mediation and Conciliation Service (FMCS) to assist in the settlement of labor disputes and increased the number of National Labor Relations Board (NLRB) members from three to five.

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Labor Management Reporting Disclosure Act (1959) (Landrum-Griffin)

an attempt to regulate the internal affairs of unions (employee bill of rights). Essentially a response to misappropriation of funds from major unions Bill of Rights Equal Rights Freedom of Speech and Assembly Protections against capricious increases in fees Protection of the right to sue Protection against improper discipline

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