labor law outline_tb

LABOR LAW OUTLINE—LYNCH—SPRING 2011THERESA NOLAN BRESLIN/ TOM OGLESBY/ AARON WILLIAM DANIELS

LABOR LAW

Background Reading Modern Statutory and Institutional Framework NLRB Procedures, Organization, and Jurisdiction

Book66-9799-145

Outline2-77-13

Exclusive Representation Overview (J.I. Case, Emporium Capwell; Miranda Fuel Doctrine) Duty of Fair Representation (Steele) The Duty and Contract Negotiations (O’neill; Barton Brands) The Duty of Fair Representation and Grievance Processing (Vaca, Hines, Breinegar) Procedural Aspects of Fair Representation Litigation

445-4591019-10241024-10411041-10611061-1064

14-171819-2021-2424-25

Enforcement of Collective Agreements Arbitration and the Courts (Steelworker’s trilogy)

o The Duty to Arbitrate (Steelworker I & II)o Judicial review of Arbitration Awards (Steelworker III)o No-Strike Obligations (Lucas Flour and Boy’s Market)

Arbitration & the NLRB: Arbitration and Statutory Rt’s (Pyett, Unt’d Tech., Gardner-Denver, Gilmer)

735-761761-776776-796796-817

25–2930–3232–3434–38

Protection of Worker Concerted Activity Concepts of Discrimination and Interference (Budd, Transp. Mgmt., Hoffman, Radio Ofcrs, Rep. Aviation) Accommodating Employee § 7 Rights and Employer Interests (Babcox, Wilcox,Lechmer, Reg. Guard,

Roundy, T&C Elect. Lassing, Darlington) Protected Activity (Washington Alum., Elk Lumber, Jef. Std, Eastex, G.C. Memo on Remedies)

o Individual Employee Action (City Disposal, Weingarten)o Union Waiver of Employee §7 Rights (Magnavox; Metro Edison)

Employer Domination of a Labor Union (Electromation, Crown Cork & Sea, Ammending 8(a)(2))

147-178178-207

207-231231-248248-257257-274

38-4343-49

49-5454-5656-5858-60

NLRB Determination of Bargaining Authority Appropriate Bargaining Unit (Am. Hosp. Ass. I & II; Friendly Ice Cream)

o Judicial Review of Unit Determinations (Leedom; Sturgis) Regulation of the Conduct of Elections (Nutone & Avondale; General Shoe; Plywood; and Excelsior;

Golub; Gissel; Crown & Cork; Midland Insurance; Honeyville; Exchange Parts; Savair ; Timsco) Recognition Without an Election (Gisel II; Linden Lumber) Ousting an Incumbent Union

o Bars to Elections (Brooks; Contract and Recognition Bars; Blocking Charge Policy)o Ousting a Union ( Allentown; Levitz)

276-292292-307307-362

362-377

380-389389-404

61-6565-6868-78

78-81

81-8484-86

Obtaining Bargaining Authority Outside NLRB Elections Employee Free Choice Act of 2007(Gissell III; Bernhard Altmann; Keller; Dana Corp.; Bruckner; Blinne) 407-444 86-92

Regulation of the Process of Collective Bargaining Collective Bargaining and the Good Faith Requirement (Ins. Agents; Am. Ins. A-1 Sandwich; HK Porter)

o Disclosure Obligations (Truitt; Detroit Ed.)o Impasse (Katz)

Mandatory/Permission Subjects (Borg-Warner) o Bargaining over Entrepreneurial Decisions (Fibereboard; 1st Nat’l Maint.; WARN)

Multiemployer and Multi-Union Bargaining (Bonano Linen) Midterm Bargaining (Allied Chem. V. Pitt. Glass; Jacobs Mfg.; Milwaukee Spring II; Zipper Clauses)

460-490490-500500-511511-525525-545546-556556-570

93-9797-9898-100100-102102-104104-105105-108

Weapons of Economic Conflict: Economic Pressure, Bargaining and Strikes Strikes and Employer Countermeasures (Ins. Agt’s; Mackay Radio; Fleetwood Trailer’s; Laidlaw)

o Impact Analysis (Erie Resistor; Great Dane; TWA) o Effect of Makay on the Union Majority Status (Curtin-Matheson)o Lockouts (Am. Shipbuilding; Buffalo Linen; Brown)o Subcontracting Struck Work (Land Air;

Regulation of Pressures by Labor Organizationso Constitutional Limits on Government Regulation (Vogt; ILA)o Secondary Pressures (Royal Typewriter; Moore Dry Dock; Denver Building; Radio & Machine

Workers; GE on Remand)o Appeals to Consumers (Servette; Bartolo; Tree Fruits; Safe Co.; DeBartolo rmd.)o Hot Cargo Clauses (Nat’l. Woodworkers; Houston Instillation; Enterprise; Connell)o Work Assignment Disputes (Plasterer’s Union)

571-589589-608608-616616-628628-633

633-641641-664

664-680680-695695-699

109-113114-117118-119119-121122-122

122-124124-129

130-133133-138138-138

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MODERN STATUTORY AND INSTITUTIONAL FRAMEWORK

Theories Behind Labor Unions

Neoclassical View Internal Labor Markets Can unions increase productivity?

o Unions increase wages, increase cost per unit of output, firms hire less workers.

o Assumptions: Highly mobile labor

force Workers have

knowledge of alternate labor opportunities

Workers can obtain resources to learn new skills

Workers are seeking to maximize wages and not leisure.

o If monopolized firm, more likely a transfer of wealth. Depends upon the structure of the market. Money can come from capital OR by driving people into unemployment.

o Workers develop skills valuable to the employer but not in the general labor market.

o If skills do make employees more mobile, the employer must increase job security within the firm.

o Encourage workers to cross-train and share skills within the firm.

o Need methods to allocate job opportunities within the firm. Reduces costs. Done in

the CBAs.o Place risk of layoffs on new

hires (seniority system)

o Cure existing inefficiencies.o Increase long-term

relationships and deferral of compensation until later in career.

o Promoting public goods in the work place. E.g., safety, etc.—

Sometimes the only reason unions survive.

o Collective voice to improve, rather than exit.

o Alternate ways? Gov’t legislation for

minimum wages and benefits. (E.g., OSHA. BUT, enforcement problem)

Worker committees. Common in Europe (Germany). Set up by law and doesn’t result in strikes the same way.

The Norris-LaGuardia Act of 1932

Adair v. U.S. (1908) and Coppage v. Kansas (1915): The Supreme court strikes down legislation that outlawed yellow-dog K’s. Yellow-dog Ks: requires employees to agree not to join a union or be involved in Union activities as a condition of employment, then get a court injunction to enforce.

Hitchman Coal & Coke Co. v. Mitchell (1917): Court upheld an injunction against union organizers who sought to persuade employees to become union members despite signing yellow-dog Ks (agreeing not to join a union or be involved in union activities during the term of their employment).

o Upheld freedom of K between employees and employers. o Case did not involve rights of workers b/c Ds had no agency with Ps employees—the right of

the worker’s to strike would not give Ds the right to instigate a strike.

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o The Union allowed members to remain at work in violation of their K’s of employment until they had sufficient numbers to instigate a strike—this amounted to interference with the employer’s constitutional right to remain union-free.

Federal Courts exercised their equity power to effectively compel nonunion shops throughout entire industries.

o UMW v. Red Jacket Consol. Coal & Coke (4th Cir. 1927): Barred organizing of the entire W. Va. coal industry.

o Clashed with emerging sentiments in Congress.

Railway Labor Act (1926) (Carried Forward WWI Unionization of the Railroads) & Davis-Bacon Act (1931) (Prevailing wage and work rules (typically Union set) act for Federal Public Works) & Great Depression of 1929 increased sentiments in favor of labor org. and collective bargaining.

N-L Act (1932): Attempted to perfect the CL model for regulating labor disputes rather than as an effort to promote the labor org. directly. Confers broad immunity from issuance of fed’l and state injunctions in labor disputes.

o Outlawed yellow-dog Ks as a matter of public policy and recognized that individual employees bargaining on their own could not exercise “actual liberty of K” (overriding Hitchman).

o § 4: Barred fed’l courts from issuing injunctions or restraining orders against becoming or remaining a union member or engaging in union activities, imposed procedural conditions on issuance of injunctions in labor disputes not covered in § 4, protected officers and other members from liability for unlawful acts of individual members.

o § 7: Imposed procedural conditions for injunctions including limiting the issuance of ex parte orders to when “a substantial and irreparable injury to complainant’s property will be unavoidable.”

o § 6: Afforded procedural protections against union organizers including immunizing union officers from liability of illegal acts of individual members.

o § 9: Injunctions only cover specific acts.o § 8: Clean hands doctrine on employers seeking injunctions.o § 10: Certification of Appeal of TLI to the COA’s.o § 11: Required jury trial for contempt proceedings other than those committed in the

presence of the court.

Modern Applications of the Norris-LaGuardia Act : S.Ct. limited the protections of the Act in decisions “accommodating” the Act to § 301 of the Labor Management Relations Act of 1947.

Reexamination of the Antitrust Laws

Apex Hosiery Co. v. Leader (1940)o Facts : Interstate hosiery company sues labor org. for damages for conducting a

strike in violation of the Sherman Act. Labor org. ordered a sit-in strike, at time only 8% of Apex’s employees were members. Lasted over a month and a half. Sherman Act prohibits: “Every . . . combination . . . or conspiracy, in restraint of trade or

commerce.”

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o Issue : Whether the strike falls under the kind of “restraint of trade or commerce” which the act condemns.

o Holding : Sherman Act only applies to labor org. activity that restrains commercial competition in some substantial way by affecting the market. Here, the strike had no affect on the hosiery market, t/f it cannot be a “restraint of trade or commerce.”

o Reasoning : Legislative History - Purpose was to prevent restraints to free competition. Sherman Act applies when acts restrain commercial competition in some substantial

way. HERE, object of strike was to compel Apex to accede to union demands and the strike had no affect on the hosiery market (nor was it intended to).

Clayton Act says labor is not a commodity or article of commerce, t/f restraints on the sale of employee services to an employer cannot be a restraint of trade or commerce under the Sherman Act. See also N-L Act, showing that Congress does not regard labor org.’s affect on competition as against public policy.

Dist. cases involving labor org.: a secondary boycott and refusal of a nationwide union to work on a product in the hands of the purchaser. In those cases, “the activities affecting interstate commerce were directed at control of the market and were so widespread as substantially to affect it.”

That violence was used doesn’t change the fact that the strike was not under the act. Sherman Act not a remedy for local law violations.

United States v. Hutcheson (1941) - Created exemption for Union activity as opposed to focusing on Apex’s distinctions b/t restraints of commercial competition and those directed at the elimination of differences based on labor standards

o Facts : Labor org. refused to work for Anheuser-Busch and attempted to get members of other unions to similarly refuse to work. Also attempted to union members and their friends to stop buying Anheuser-Busch beer. Strike also affected 2d employer tenant of Busch. The labor org. and leaders were indicted (under AG’s program of using Sherman Antitrust Act to break bad union behavior.).

o Holding : Congress restored § 20 of the Clayton Act in the N-L Act to create a public policy in favor of legitimate union activities remove all such allowable conduct from the “taint of being violations of any law of the U.S.,” including the Sherman Law. Trade union activities violative of the Sherman Act cannot be criminal conduct.

o Reasoning : Must read Sherman Act, Clayton Act, and N-L Act together to determine whether trade

union conduct violates the Sherman Act. § 20 of the Clayton Act removes certain trade union activities from being criminal conduct so long as the union operates: 1) in its self-interest and 2) does not combine with non-labor organizations. Nothing in the Clayton Act distinguishes b/t conduct directed at an employer-

employee labor dispute and a struggle b/t two labor orgs seeking favor w/ the same employer.

All the acts complained of are covered by § 20 of the Clayton Act even though the object of the dispute is the competing labor org. unless the Ps combined with outsiders to the immediate dispute who shared in the conduct.

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N-L Act, § 13(c) defines “labor dispute” as “any controversy concerning terms or conditions of employment, or concerning the assoc. or rep. of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” § 13(b) defines person participating/interested in a labor dispute if “engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any assoc. composed . . . of employers or employees engaged in such industry . . . .”

The 3 Statutes cannot be read together as preventing an injunction under the N-L Act yet allowing for criminal prosecution of the exact same conduct removed from the equity powers of the federal courts. May not read the acts together to interpret Congress’ intent in a “spirit of mutilating

narrowness” The purpose of the N-L Act was to restore the broad purpose of the Clayton Act after its

narrow judicial construction by ”infusing into it the immunized trade union activities as redefined by the later act.”

Since Hutcheson, antitrust laws have rarely been asserted against union—only where there is collusion between unions and management in restrain of interstate trade.

Modern Labor Legislation: Affirmative Protection of Collective Representation

The Railway Labor Act (RLA) Passed in response to conflict following the Transportation Act of 1920 that returned the railways to private carriers following WWI.

o Created a duty of employers and employees to resolve disputes peacefully, and to make and maintain agreements (early duty to negotiate?).

o Created a 5-person Board of mediation to attempt mediation if parties could not come to an agreement on their own.

o Arbitration if mediation unsuccessful.o Then to the President who could convene and emergency Ad-Hoc board.o During the proceedings the parties were under obligation to maintain the status quo.o Created a grievance board.o Railway workers had the right to select their own representative without interference,

coercion or influence by the carriers.o Later amendments created the Nat. Railroad Adj. Board to here “minor disputes” re:

interpretations of agreements and a set of ULP’s that applied only to carriers.

The National Labor Relations Act (NLRA)o Wagner Act of 1935

Origins: Economic Collapse of the 1930’s lead to the disappearance of

“welfare capitalism” and shifted political power toward farm and labor groups

National Industrial Recovery Act of 1933 : Companies were to organize themselves to eliminate cut-throat competition and stabilize priceso Max. Hours/Min. Wages: designed to boost employment and increase

purchasing power of the workers

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o Right to Organizeo But contained no machinery for handling labor disputes (President eventually

established the NLB) Ruled unconstitutional as a invalid exercise of Congress’ Commerce Clause Powers

in Schechter Poultry v. U.S.—Congress could not regulate the wages and hours of EE’s dealing with a product that had left (or not entered yet) the stream of commerceo Still established utility of a strong Admin. Boardo Established principle of exclusive bargaining

o The NLRA of 1935: § 7: Rights of the employees:

Freedom to form, join, or assist labor organizations Freedom to bargain collectively with the employers The right to engage in concerted activity for the purpose of collective bargaining or

mutual aid and protection § 8: Employer ULPs and the affirmative duty of employer to bargain collectively

Employer must refrain from interference, coercion, or restraint of employees in the Exercise of § 7 rights

Refrain from Support or domination of Labor Org. Refrain from Discrimination for the purpose of encouraging or discouraging

membership in an Org. Refrain from discharge or other discrimination against an employee for filing a

charge or giving testimony Cannot refuse to bargain collectively with majority Rep.

NLRB v. Jones & Laughlin Steel Corp. (1937) - tested constitutionality of the NLRA Facts : NLRA est. a comprehensive system for regulating labor/management

relations by establishing right of employees to engage in CBAs and create a board to supervise elections and enforce the Act’s prohibition of such unfair labor practices as discrimination against union members. Contained “findings”: denial of right to CBAs lead to strikes affecting commerce. Declared to be the policy of the U.S. to eliminate these strikes. J&L is national enterprise.o NLRB charged J&L, a steel and iron manufacturer, w/ ULP of firing

employees b/c they sought to org. a union.o COA held the act unconstitutional.

Holding : Congress’ power over congress is plenary and Congress has power to regulate labor relations if it bears a close and substantial relationship to interstate commerce. Congressional power to protect interstate commerce may be used to reach activities that are deemed to merely burden or obstruct interstate commerce.

Reasoning :o ULPs in Question: Fundamental rights of the workers to self-org. and

select representatives of their own choosing for CBAs w/o restraint/coercion by employers. This is a “proper subject” for condemnation by the legislature.

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o Judicial notice that the refusal to confer and negotiate has been one of the most prolific causes of industrial strife.

o The stoppage of J&L’s operation would have a serious effect on interstate commerce and is an urgent national concern.

Other Congressional Enactments: Taft-Hartley Act of 1947, Landrum-Griffin Act of 1959, 1974 Health Care Industry Amendments, Proposed Labor Reform Act of 1977 and Other Failed Legislation, Other major statutes (specific in nature, reason why unions are less successful today) include: Fair Labor Standards Act of 1938 (overtime pay), OSHA of 1970, Title VII Civil Rights Act, etc.

NLRB PROCEDURE, ORGANIZATION, AND JURISDICTION

NLRB: 5-member board. President nominates and Senate confirms (problematic process). As composition changes, policies change, due to adjudicative policy-making.

2 Main Functions of the Board: o ULP or Complaint Proceedings : Prosecute and remedy ULPso Representation Proceedings : Conduct elections to determine whether a majority Of

employees wish to be represented by a union

Adjudication

1) ULP Procedures1. Filing of charge: any “person”2. Regional investigation3. Issuance of complaint: importance of GC, UFCW – no review over discretionary decision4. Hearing before ALJ – § 10(c) burden of proof on GC, but see Kentucky River (129) re

affirmative defenses and burden switching5. ALJ decision and exceptions: Both parties have 20 days to submit exceptions, or the

intermediate report receives the same weight as a decision by the Board.6. If exceptions are filed to the Board then the Board takes complete control over the case and

issues its own decision May designate authority to a panel of 3 examiners Not directly enforceable, need to get injunction from COA

7. Enforcement/Review in the COA – aggrieved party/employer who files first gets to forum shop. When NLRB decision is not followed, must go to COA to get injunction and enforce

8. Appeal from the Board’s Findings to the COA where the ULP occurred or where that party does business:

Wide latitude to employers to Circuit shop Scope of Review:

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Univ, Camera Corp. v. NLRB, 340 U.S. 475 (1951): Review findings of fact

based on substantial evidence contained in the record considered as a whole

(all the evidence must be weighed)

Findings of law reviewed de novo, BUT:

o Chevron v. nat. Resources Def, Council, 467 U.S. 837 (1984): Where

statutes are ambiguous and Congress did not speak directly to the issue

at hand, the courts must show great deference to the agency’s

interpretation if it is based on a permissible construction of the statute

Mixed questions of Fact and Law:

o United Insurance, 390 U.S. 254 (1968): Is the agency using the correct

standard? If so, then review is based on Univ. Camera’s substantial

evidence test.

REMEMBER THAT THE PARTY WHO FILES FIRST GETS TO FORUM SHOP

Appeal or enforcement

Where the ULP occurred or where the party resides or does business

2) Preliminary Injunctive Relief § 10(1): for sections 8(b)(4), 8(e), and 8(b)(7)–so-called mandatory injunctions in district court.

o Regional director can proceed with NLRB approval.o Region must seek injunction if “rsbl cause.”

§ 10(j) injunction for all other ULPs (not used as much).o Requires NLRB authority but the board can delegate to regional directors (which has

been done in the past).o Query: Can the agency do more to facilitate 10(j) applications?

3) Representational Proceedings Petition for election (certain criteria); showing of interest Regional office investigation (e.g., application for bargaining union, eligibility) Limited appeal to NLRB Election and certification NLRB review (NLRB decision must be “totally unlawful” to be reviewed) Limited judicial review (Leedom): very difficult for union to convert to ULP case

Rulemaking

The NLRB has broad rulemaking authority but has chosen to make labor policy almost exclusively through adjudication

Advantageso Reasoned and legitimate decisions

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o Expanded informational inputo Certain Lawo Consistent lawo Public participationo Centralized appellate reviewo Reigning in the GC

Proposed Rule: Every employer must post notices informing employees of rights under NLRA.

Lawful? Circuits are split on whether the NLRB can make new rules (applying prospectively) by adjudication in individual cases rather than going through the usual rulemaking process, particularly when sanctions are involved.

o SCOTUS ahs made clear that the Board has broad discretion in choosing b/t rulemaking and adjudication as a policy-making vehicle.

NLRB v. Bell Aerospace (1976): Reversing the 2d Cir. Position that the NLRB must use rulemaking where it was reversing long-standing precedent.

Excelsior Underwear, Inc. (1966): Announced new general rule that requiring employers to disclose the names and addresses of unit employees w/i 7 days of the approval or direction of an election—did not take affect until 30 days from the decision and so did not affect the parties involved

NLRB v. Wyman-Gordon (1969): Board acted improperly in Excelsior by promulgating a rule BUT the subpoena had been issued as part of a valid adj. proceeding and should be enforced.

Scope of Review: Nature of Agency Decisions under Review

Historical Fact (Universal Camera) Q. of law for the court, but

o Chevron deference doctrine (107) Deference to expertise of agency if plausible

Applications of law to fact (United Ins., 113)o Is the agency using the correct standard?o If so, the application of that standard to historical facts is governed by Univ. Camera’s

“substantial evidence” review on the record considered as a whole. When reading cases: to what extent is the court using the correct standard???

Jurisdiction

Scope of Review:o Univ. Camera (1951): Review findings of fact based on substantial evidence contained in the

record considered as a whole (all the evidence must be weighed).o Findings of law reviewed de novo, BUT:

Chevron (1984): Where statutes are ambiguous and Congress did not speak directly to the issue at hand, the courts must show great deference to the agency’s interpretation if it is based on a permissible construction of the statute.

o Mixed questions of Fact and Law:

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United Ins. (1968): Is the agency using the correct standard? If so, then review is based on Univ. Camera’s substantial evidence test.

Commerce clause and the Board’s Jurisdictional Self-Limitation: § 10 extends jurisdiction of the NLRA to cases “affecting commerce”

o § 2(7): In commerce, or burdening or obstructing commerce or the free flow of commerce, or leading to or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.

o Board’s commerce power is coextensive w/ Congress.

The Religious Exemption:

o NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979): Board lacked jurisdiction over teachers in church-operated schools because both the inquiry required under the Board’s “Completely Religious v. Religiously Associated” test and the actual assertion of jurisdiction over teachers in church-operated schools. Serious 1st Amendment issues.

Statutory Exclusions: § 2 - Independent Contractors, Supervisors, Domestic service in the home, Agricultural laborers (state statutory provisions), Gov’t workers (subject to RLA–different rules b/c strikes can hurt economy).

1) Independent Contractors

NLRB v. Hearst (1944) - economic realities test - The economic facts of the newsboy-newspaper relationship more closely resembled that of an employee-employer relationship than of an independent business enterprise. Look at amount of control and whether employees could protect their rights. Economic reality is that employer has all the power and ought to be able to unionize.

NLRB v. United Ins. (1968): Mixed Question Review - The Board classified 3300 debit agents as employees rather than I/C’s and the COA reversed.

Holding: The Board applied the law to the facts and arrived at a choice between 2 fairly conflicting views which the COA should have upheld, even if it would have made a different choice.

Rationale: CL of agency should apply:o The agents do not operate their own businesses but under the

companies name with training and considerable assistance and guidance form the company ant its managers.

o Functions are essential to the company’s normal operationso They sell only the company’s insurance and operate under a

commission structure promulgated and changed unilaterally by the company

o Regular reporting procedureso Benefits of the company’s vacation plans, insurance, pension, etc…o Permanent working relationship.

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Roadway Package System, Inc. (1998): Dispute over the classification of delivery drivers.

Holding : Delivery Driver’s were employees when all the factors are assessed equally according to c/l principles of agency.

Rationale: Rejected the argument that employer’s right to control the manner and means of the work should be weighed more heavily than others.

o Drivers were not independent and were performing an essential function of Roadway’s business

o Drivers owned their own trucks but trucks were leased through a supplier designated by Roadway and modified such that they had very little other use

o The Trucks usually were left overnight for reloading and so were not available for independent use

o Company set minimum and maximum deliveries thereby controlling the income of the drivers

Dial-A-Mattress (1998) - Another delivery driver dispute. Holding: The Driver’s were Independent Contractors where they drove their

own trucks, had control over their trucks and work schedules, could make deliveries for other companies, received very little training from the company, and there was only a flat fee per delivery but know guaranteed minimum compensation.

Alternative test : an NLRA-specific test that would include as employees “all workers who sell their labor . . . to be combined primarily with capital provided by others” and exclude “those who sell a product or service that combines the workers’ labor to a significant extent with their own nonhuman capital.” Basically a way of defining entrepreneurial activity.

2) Implied Exclusions: Students (interns, residents, grad students – now restrictive but Lynch sees changes coming), Managerial employees (Bell Aerospace), Confidential employees (Labor nexus test).

3) Supervisory, Managerial, and Confidential Personnel

Statutory definition = BROAD

NLRB v. Bell Aerospace (1974) - The NLRA excluded all “managerial employees,” but on remand the Board determined that the Buyer’s were mere employees and not managerial because they lacked the authority to formulate policy or discretion independent of their employer’s established policy.

Facts: The NLRB excluded only management employees engaged in the formulation and implementation of labor policies—whether the person classified as an EE is free of conflicts relating to formulation and implementation of labor policies?

Holding: The NLRA impliedly excludes managerial employees and the Board is not now free to read a more restrictive interpretation into the act. (Left the Board to its own definition, so on remand the result was the same)



Rationale: The Board’s prior decisions as to whether all managerial EE’s are excluded from the Act were uncertain however the legislative reversal of the Packard decision that allowed foremen to form their own unit makes the Douglas dissent most pertinent

o Packard sought to change industrial philosophy, minimizing the conflict between management and employees in favor of overall conflict b/w all employees (including mgmt.) and Company stock or bond-holders. If Congress had intended such a shift then it would have said so.

o Packard was a major factor in Taft-Hardley, and although the Senate and Congress could not agree as to exactly whom was covered, there were some thought to be so far outside the act as to make a specific provision unnecessary: “Labor relations, personnel and employment dept’s, and confidential employees”

o The Legislative History clearly established that others, higher up the managerial structure should also be excluded

o The Board had always previously interpreted the act to exclude managerial employees; and that construction has been unanimously approved by the COA’s

The Board reaffirmed its definition of Managerial employees on remand: managerial employees are individuals who formulate and effectuate management policies by expressing and making operative the decisions of their employers.

4) Professionals as Managers/Supervisors

Health care and retirement corps. Professions directing of less skilled employees in the interest of the employer (rejected)

S.Ct. twice rejected the Board’s attempts to define professionals as non-managerial or nonsupervisory in NLRB v. Yeshiva (professors at University are managerial employees) and NLRB v. Health Care & Retirement Corp. (Nurses directing others in the care of patients are supervisors).

NLRB v. Kentucky River (2001) Facts: The Board created a categorical exclusion for professionals where they

determined that the nurses were not supervisors where they exercised only “ordinary professional or technical judgment in directing less-skilled employees to deliver services.”

Holding: The nurses were supervisors under the 3-part test of supervisory status in § 2(11) of the NRLA, where the Board’s contentions contradict both the text and structure of the statute and the rule in Healthcare that the test for supervisory status applies no differently to professionals than to other EE’s.

Reasoning: o Board’s 3-Part Test - Employees are supervisors if:

They hold the authority to engage in any 1 of the 12 listed supervisory functions,



Their exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment,

Their authority is held in the interest of the employer. o Independent judgment is statutorily ambiguous re the degree of

discretion required for supervisory status. The Board may thus determine what scope of discretion qualifies (give Chevron deference).

o The degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer.

o The Board’s categorical exception turns on factors having nothing to do with the degree of discretion an employee exercises and would render the exclusion superfluous where every supervisory decision must rest on professional or technical skill or experience.”

o Board would only apply the limitation on “independent judgment” to 1 of the 12 supervisory functions: “responsibility to direct”—no textual basis for this construction.

o The Board has never held that a supervisor’s judgment ceased to be independent b/c it depended on the supervisor’s professional or technical training or experience.

o Wherever an employee exercises one of the other functions w/ judgment that possesses a sufficient degree of independence the board invariably finds supervisory status.

o Healthcare & Retirement rejected the Board’s interpretation of “in the interest of the employer” that was similarly applied only to the same supervisory function.

Essentially the same limitation where they had argued that the nurse’s exercise of authority was not in the “interest of the employer” where they relied on their professional judgment.

o Taft-Hartley changed the Board’s definition of Supervisor to require only “responsibility to direct” instead of “direction” + one other function.

o Board wants to include professional employees w/i the Act for purpose of balanced labor policy

Policy may be sound but cannot be given effect through this statutory text

Limit the definition of “responsibility to direct” instead to cover only those who direct employees as opposed to those who direct the manner of others’ performance of discreet tasks. See Providence Hospital (1996).

Dissent (Stevens): Should have remanded rather than affirm. (Why remand? Where the Court did not seem to make a factual determination as to “RTD” rather it just tried to limit the application of the statute)

Oakwood Healthcare (2006): Another nurse case. Construes the word “assign” as referring to the act of designating an employee to a place (e.g. location, dep’t, or wing), appointing an employee to a time (e.g., shift/overtime pd), or giving significant overall duties/tasks to an employee. The decision/effective recommendation of assignments can



be a supervisory function. Choosing order is not assigning. For direction to be “responsible,” the person directing must be accountable for the performance of the task (adverse consequences? Show that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, and prospect of adverse consequences.) Must spend a “substantial portion” of work time performing these functions.

Miss. Power & Light (1999): Power plant dispatchers “direct field employees in repairing faults and performing switching procedures, set priorities for work requests and orders, coordinated the response of trouble-shooting personnel, etc. Board determined dispatchers are nonsupervisory. Still nonsupervisory after Oakwood Healthcare? (Any adverse consequences for employee not completing duties?)

DUTY OF FAIR REPRESENTATION

Exclusive Representation: An Overview

§ 9 (a) provides that once a union has been selected by a majority of employees in the bargaining unit, it has excusive authority to represent all employees in the unit—whether or not they are members of the union.

o Court’s created a reciprocal duty of fair representation as an accompaniment to exclusive representation rights

o Duty extends to: Negotiation of the CBA, and Its administration, grievance and arbitration procedures, etc…

Statutory duty to bargain imposes corollary obligation to meet w/ the reps of its employees and proceed to negotiate a CBA.

o Employer may not deal w/ any other agent and may not neg. terms w/ employees on an individual basis.

o Must act in a way that suggests a serious regard for workers’ pref. for coll. Bargaining. o Be avail. for mtgs or have agents there w/ authority to bind the employer in agreements.o Once agreement is reached, the employer must not unreasonably delay execution. o Good-faith bargaining obligations also on the union.

Taft-Hartley § 8(d) “policy of voluntarism” – the duty to bargain does not mean a party has to make concessions or even reach an agreement.

Duty of Fair Representation

(1) Negotiation of Contract (O’Neill - broad rsblness) &(2) Administration of the agreement and the handling of individual grievances (Vaca)

BIG QUESTION: Are CBAs a series of constraints on employer’s discretion, or does it give employees individual rights? Also, what is the remedy and who is liable, the

J.I. Case Co. v. NLRB (1944) - direct dealing prohibition14 | L a b o r L a w


o Facts : Company had individual Ks w/ employees. A Union came into the picture, got the Board to direct an election, which was won by the union, making it the exclusive bargaining rep of the employees in question. The Company refused to bargain in a way that would affect the rights and obligations under the individual Ks; offered to negotiate on other matters.

The Board held the Company had violated § 8(5); and that the Ks had been utilized to impeded employees in the exercise of § 7 rights. A violation of § 8(1).

o Holding : Individual Ks cannot subtract from collective ones, although under some circumstances they may add to them.

Narrow : Employers could not invoke Ks negotiated w/ individual employees as justification for refusing to bargain (or limiting the scope of bargaining) with the majority representative.

Broad : Absent the union’s consent, employers may not deal directly with their individual employees over wages, hours, and working conditions, even where the employees are attempting to extract better terms than those negotiated by their exclusive representatives. (Not necessarily . . . . Court says leave to K law in other forums or to labor board if they constitute ULPs.)

o Reasoning : Once the election is won, all parties are bound by the result and must deal with the elected representative. Collective bargaining results in agreed terms of employment but does not an Employment K.

CBAs usually govern hiring and work and pay w/i a bargaining unit. Usu. not an employment K.

After the CBA, the individuals under it are identified by hiring them individually. BUT, an employee becomes entitled by virtue of the Labor Relations Act to all the benefits of the CBA (even if he would accept less on his own terms). The individual hiring is subsidiary to the terms of the trade agreement and may not waive any of its benefits.

Individually bargained Ks may occur when individuals continue to work after a CBA expires, a majority of the employees refuse to join the union, or there is no majority w/i the union.

Wherever private Ks conflict with the Act’s policies, they must yield or the Act would be futile. The purpose of the statute is to supersede terms of separate agreements with the terms bargained w/ the strength and power of the whole group.

On individuals being able to get better terms: Groups can set minimums, maximums, but usually the better terms are not for the welfare of the group and lead to unfair labor practices.

o Court does not decide whether an individual can enforce a more advantageous agreement.o In the entertainment and sports industries, it is customary for the labor agreement to set

minimum terms while allowing the employer to bargain above the union scale w/ individual talent.

Exceptions to the direct-dealing prohibition:o No collective bargaining representativeo Matters outside the scope of or inconsistent with the CBA.o Where special talents or training (sports & entertainment) require individual bargaining.

Direct Dealing, Bargaining Position, and Employer Communications:



o Direct Dealing: Employers and employees may deal directly with one anther BUT at all times the CBA must be paramount and the employer may not undermine the bargaining power of the representative.

NLRB v. Gen. Elec. (2d Cir. 1969): Employer must deal with the employees through the union not with the Union through the employees. “The fundamental inquiry is whether the employer has chosen to deal w/ the Union through the employees, rather than w/ the employees through the union.”

Toledo Blade Co. (1989): A management rights clause, allowing an employer to offer retirement and separation incentives at their discretion was lawful. (Reversed sub nom.)

Retlaw Broadcasting Co. (1997): “By allowing the employer to bargain directly w/ its employees, Toledo Blade’s proposal deprives the Union pro tanto of its central statutory role as their rep in dealing w/ the Employer”

o Employer Communications: § 8 (c) protects the employers rights to communicate its views about labor issues, presumably including bargaining proposals, to employees in a non-coercive fashion.

Am. Pine Lodging Nursing & Rehab Ctr. (NLRB 1997): Simultaneous communication of offer to union and employees was direct dealing b/c union had no opportunity to consider the proposal 1st.

Allied Signal. Inc. (NLRB 1992): Direct solicitation of employees views as to working conditions and wages was unlawful where it is likely to erode union’s position as employees’ bargaining rep.

Ryan Iron Works, Inc. (4th Cir. 2001): Employers solicitation of employee views on a laundry list of issues that were the subject of negotiations was an unlawful attempt to “gain intelligence” on employees’ views and to gauge the level of support for a particular position, undermining the union’s exclusive right to perform these functions.

Nonmajority Collective Bargaining: Where no majority representative, an employer does not violate the Act by agreeing to negotiate w/ a “members only” agreement w/ a labor org. representing less than a majority of the workers in an appropriate unit. No obligation to bargain with the union.

o Proposals have been offered to amend the NLRA to mandate collective bargaining w/ nonmajority unions in the absence of a § 9 representative. Some argue costs are too high for firms. Finkin says permit employers to insist on joint bargaining among labor groups w/ respect to minimum terms of employment.

o Consolidated Edison Co. (NLRB 1938): An employer does not violate the NLRA by negotiating a “members only” agreement with a labor org. representing less than a majority of the workers in an appropriate Unit.

Union Buffalo Mills Co. (NLRB 1944); Wash. Alum. (1962): The NLRA may protect employees who act in support of a demand that the employer meet w/ their non-majority labor org.

Q remains as to whether the act requires employers to bargain with non-majority labor orgs.

Mooresville Cotton Mills (NLRB 1937): the Board seems to be consistently saying that § 8(a)(5): Only a ULP to refuse to bargain collectively with the representatives of his employees subject to the provisions of § 9 (a).

Maybe only necessary to refrain from disciplining?



Problem with mandating collective bargaining with non-majority groups is the escalation of bargaining costs for the employer

Possible solutions: o Bargain only with the orgs w/ the most members and then impose the

agreements on the other groupso To obtain consent of the minority labor orgs to bargain jointly

Emporium Capwell Co. v. Western Addition Comm’y Org. (1975)o Facts : Minority workers alleging discriminatory working

conditions, promotion patterns, and hiring practices by Dep’t Store sought to file grievance with the Union, but then decided not to comply with grievance procedures or cooperate with the investigation. Instead they held their own press conference, picketed, and hand billed. Company fired workers after warnings.

Trial examiner found no ULP because the activities were not protected by § 7. Board adopted the findings that the dissident employees were attempting to force the

company to bargain with them for the entire group of minority employees. COA reversed of the opinion that racial discrimination created a “unique status” for

the grievance but declined to set aside the finding that the employees had attempted to bargain individually with the employers over the terms of their employment.

o Holding : Once a union has the right of exclusive representation under § 9(a), then under § 7 employees may not bargain individually w/ employers over the terms of employment and must abide by the grievance procedures designated by the union.

o Reasoning : § 7 rights are collective rights protected as an instrument of minimizing industrial strife by encouraging collective bargaining.

Principle of Majority Rule is central to collective bargaining—the rights/interests of some will always be suborned by the good of the group.

Minority group w/i a unit are protected from tyranny of the majority b/c: Union collective bargaining power is confined to “an appropriate bargaining

group” Landrum-Griffin Amendments ensure transparency and assure that minority

voices are heard Congress implicitly imposed on the unions a DGFR of minorities w/i the unit

The employees here seek an exemption from the principle of exclusive representation. Allowing the employees to bargain with the employer as the representatives of

minority employees would undermine the statute and increase industrial strife where there may or may not be actual discrimination:

The employer is rarely able to accede to the demands of multiple minority groups at once—end up setting one group against the other

Division would weaken collective bargaining power of groups and they would only be able to advance their causes through serial economic coercion

The CBA does not allow employees to be transferred to lower paying jobs to make room for minority employees. Leads to further conflict w/i the unit.

Maj. Group enforces demands through K, Minority through economic coercion. This leads to little headway against discriminatory hiring practices.



o Title VII Tension : Would have had this protection under the Civil Rights Act. Pickets and signs put up instead of using grievance procedure. The EEOC would have to come in. The EEOC remedy would be to bargain as minority unit, resolving the conflict in a way in total tension with the model of collective bargaining.

People thought the courts would try to integrate Title VII into the NLRA, but would result in a subgroup within the unit to bargain separately.

Though this case stands for exclusivity in the collective bargaining model, Title VII is still a problem.

Note: What about EE loyalty and Washington Alum. And Jefferson Standard?

DFR: Early Judicial Development

A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit s “arbitrary, discriminatory, or in bad faith.”

First emerged from cases where the union itself was involved in racial discrimination.

Steele v. Louisville & Nashville RR (1944) – black firemen excluded from Union membershipo Facts : The U (under the RLA) negotiated a discriminatory CBA where

they sought to exclude blacks from the service as firemen and prevent them from being promoted or attaining seniority. Blacks could not join the Brotherhood, nor were they noticed of the new agreement or given the opportunity to be heard, and yet the U represented them. A new CBA restricted blacks from serving as firefighters.

o Holding : The language and purpose of the RLA expresses the aim of Congress to impose the duty of fair representation for all members of the class of employees, w/o hostile discrimination, on the Bargaining representative. The Rep. that thus discriminates may be enjoined form so doing and its members from taking the benefits of the discrimination.

o Reasoning : The power bestowed on the organization is similar to that of a legislature and is

subject to constitutional limitations. For the Black firemen the authority of the Brotherhood to act for them comes through

the Act and not through their action or consent. W/o a reciprocal duty to the class members, minority members are left with no means of protecting their interests.

The Organization, when chosen as the bargaining representative, represents all the class members and not just the majority and is to act for and not against those whom it represents.

While the statutory representative may have to bargain and make Ks that are unfavorable to some of its members, the variations in terms of the K must be based on differences relevant to the authorized purposes of the Act (e.g., seniority and competence, not race which is irrelevant and invidious).

o This rule applies in non-constitutional contexts, involving statutory rights.

Unfair Representation and the NLRB

NLRB’s Miranda Fuel Doctrine (1962): Employer dropped employee to bottom of seniority list (not req. in the CBA) for beginning an extended leave of absence 3 days early.



o The Union’s failure to represent fairly an individual employee or group in the bargaining unit may be a union ULP in violation of § 8(b)(1)(A).

o 2d Cir. denied enforcement of Miranda Fuel, but the doctrine was subsequently adopted by later courts and eventually S.Ct. in Vaca v. Sipes.

Contract Negotiation

Air Line Pilots Ass’n v. O’Neill (1991) - final K only evidence of BDFR if CRAZYo Facts : Bitter 2-year strike between ALPA and Continental lead to

settlement that allowed striking pilots to: 1) return to work and submit bids for jobs, 2) accept severance package, or 3) maintain claims against the airline and be reinstated only after all the working and option 1 pilots had been reinstated. Group of pilots sued Unions alleging arbitrary treatment toward striking pilots. SJ granted and then reversed in COA.

o Holding : Arbitrariness Standard for BDFR---When the final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a wide range of reasonableness that it is wholly irrational or arbitrary.

o Reasoning : The Vaca v. Sipes DFR applies to K negotiation AND administration. The union breaches its duty only when its conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.

The COA’s arbitrariness test (arbitrary b/c left strikers worse off) allowed too much review of the settlement. Congress did not intend to allow courts to substitute their own view of a proper bargain for the Union.

Court’s relationship to Unions like its relationship to the legislature and it must show broad deference.

This settlement was not irrational, discriminatory, or arbitrary: While its true the Union may have mad a bad settlement, this is sometimes

better than even a good lawsuit. Some form of allocation inevitable. A rational compromise was made. Didn’t

rise to level of invidious “discrimination” of the kind prohibited by the DFR. 1/3 of the pilots chose severance, so it clearly benefitted those pilots. There was no indication that the airline would accept bids following a union

unilateral return to work, where the strikers still had claims against the airline—settlement may have been necessary condition of the return to work.

Settlement still preserved seniority, just dictated the terms of reinstatement.o No breach of K, only a breach of DFR, if any. Continental didn’t have to take ANY striking

pilots; the agreement at least gave them a chance. T/f it was rsbl, even though the deal may have only been cut so that the Union could remain in existence. COA had hindsight bias.

o TENSION : Can the Union sacrifice the interests of some members (here 2/3) for the benefit of others, or the union’s bargaining position in the long run? Still a duty to represent the entire group, not just the majority (Steele).



Does a Union Breach Its Duty When It Sacrifices the Interests of Employees in One Bargaining Unit to Serve the Interests of Employees in Other Units?

o Aguinaga v. UFCW (10th Cir. 1993): Rodeo plant case. Union trying to protect a broader standard of wages across plants but did so by sacrificing the Rodeo plant employee’s in a confidential side-letter agreement. Agreed to drop a ULP against the employer to keep wages up.

o UAW v. Caterpillar: Involved different employers. The Union takes away competition for labor, and the Union is trying to protect the higher wages. Caterpillar’s union employee’s were fired and replaced with non-union workers. No BDFR b/c rational activity by the union to protect workers for competitors’ wages (did to protect Deere workers’ wages).

Barton Brands, Ltd. v. NLRB (7th Cir. 1976) - arbitrary violation of DFRo Facts : Merger b/t Glencoe and Barton, assuming Barton would open a

new plant. Only 12 Glencoe employees were working. Three options for incorporating Glencoe employees into the seniority structure:

Endtailing : Putting Glencoe employees at the bottom because they are considered new employees for Barton.

Dovetailing : Put workers together with the same seniority they had before with each company.

Slot-system seniority .After plant fell through, a new agreement was made where they switched to endtailing and Glencoe employees were laid off. G.C. filed ULP against the union and the Board reversed the ALJ finding that the switch was largely to advance the political cause of union official.

o Holding : Seniority decisions may be made within a wide range of reasonableness in serving the interests of the unit but may not be made solely for the benefit of a larger, more politically favored group over a minority group—arbitrariness violating the DFR.

The change was arbitrary. It’s not that seniority rights were vested, but the employee’s relied on the first agreement, so the union must have a good reason to change it.

o Reasoning : The substantial evidence supported the Board’s determination that the endtailing served to further the political capital of the Union leaders, but does not support that their conduct was attributable to the Union.

Two-Tier Agreements: Lower wages for new employees. Create tension. The union is sacrificing its duty to new workers to protect wages of current workers.

There is substantial evidence to support the Board’s determination on other grounds so must remand.

Equal and Principled Democracy as Model for the DFR? Proposed “objective test” for breaches of DFR.

o Facial validity: Union decision based on an “illegitimate asserted purpose---one that is either unlawful or facially inconsistent w/ the equal respect requirement---violates the governing norm and must be invalidated.

o Credibility: Whether the asserted justification was in fact the cause of the U’s decision.



Note: Bargaining for Retirees - Vested retirement rights may not be altered w/o the pensioner’s consent. Pittsburgh Plate Glass. GM Case: The rights of GM retirees were not protected under a court certified settlement class action calling for reductions in retiree’s health benefits.



Grievance Procedure

Vaca v. Sipes (1967) - high blood pressure, wants arbitrationo Facts : Owens, union member, had high BP, wanted to compel

arbitration. When the union doctor’s report was unfavorable, the union wouldn’t go any further with his grievance (b/c they thought they wouldn’t win). Owens exhausted procedure under the CBA.

Files in state court. Nothing in the NLRA says the board has exclusive jurisdiction for BFDR claims. AFTER jury verdict, court says they don’t have jurisdiction, preempted by the Board. (DFR created in Steele, Miranda made DFR a ULP---is it then preempted? Can’t run to court for a ULP.)

o Issue : Whether the board’s decision that there is a BDFR gives the board exclusive authority over BDFR claims.

o Reasoning : Assuming Miranda Fuel is correct and a BDFR can be an ULP. When you go to the Board, the GC has complete discretion and wouldn’t be able to

go forward without ever having a hearing. ---This concern makes the process an individual right.

Relationship with § 301 - Enforce CBAs in court. Integrates DFR w/ right that must go to court. Crazy to make you go to the NLRB and take that finding of the Board to go to court. It unnecessarily bifurcates the procedure.

Remedy issue - it’s unfair to hold the union totally liable for all the harm. Individuals better off in court b/c get to jury - more sympathetic to employees.

o Standard: BDFR must be arbitrary, discriminatory, or in bad faith. Was it w/i the union’s discretion to not go fwd? No breach of duty. Result would over-grieve (policy consideration).

o Could pay for own atty and take to arbitration yourself (Union would have to pay for atty). HOWEVER, concern that the union will further discriminate and not take non-member’s grievances forward. Should the union have this much control? Is there enough protection?

o Remedy: Union can’t be liable for all damages. Employer initially unjustly dismissed the worker, why should the union have all the liability? Must allocate b/t union and employer.

Remedy before Board is joint and several (fn. 18). S.Ct. says apportion liability. Need to sue Union and Employer to get a complete

remedy.

FRAMEWORK(1) DFR - Is there a breach of DFR? Arbitrary, discriminatory, bad faith?(2) MERITS - Is the grievance meritorious?

If the remedy is to compel arbitration, then the Union would represent the employee! It’s a morass.

What does the NLRA create? Rights run to the Union, not the individual VS. CBA are restraints on employer discretion. BOTH cut against individual rights in employees.


Owens


o The RLA does create individual rights and recognizes them as such. Railway workers have the right to pursue own grievances to an adjustment board. A U’s authority to settle a grievance thus requires actual authority, granted by the individual or derived from the union constitution or custom or usage.

Idea of arbitrator’s having specialized knowledge: Knows the shop, plant, industry, and the specific CBA. Lynch was one and never had any special-industry knowledge.

Note: Hines v. Anchor Motor Freight, Inc. (1976): Drivers discharged for padding motel bills. Union takes to arbitration. Employees lose. Employees try and get counsel to get a rehearing accusing the motel owner of doctoring the records and pocketing the overcharges. Fail. The drivers sue for breach of K’s “just cause” provision and of the U’s DFR. In a deposition the motel clerk confessed to falsifying the records. Does the decision of the arbitrator bind the employees in this

situation? The S.Ct. decides whether or not the employer should be protected from damages in this case b/c of the finality of the arbitration, or if the union caused the problem by failure to investigate. Who is on the hook? The S.Ct. says the employer is still on the hook for a § 301 breach of K. Extending Vaca, they declared that a BDFR, “if it seriously undermines the integrity of the arbitral process, removes the bar of the K’s finality provisions. Comes back down to deal w/ DFR.

o Is the S.Ct. implying negligence is enough? Or not b/c it was about the employer. This case will probably settle b/c employees will get their jobs back. Who pays damages won’t get resolved in this case. Employer still wound up on the hook; not relieved just b/c of the finality of the arbitration.

Intraunion Division of Interest: Smith v. Hussman Refrigerator (8th Cir. 1980) - Union goes in saying people should be promoted by seniority. Employer comes back and says no - don’t want to be constrained (ability/skill). K clause reads “skill and ability being relatively equal, then promoted based on seniority.” Posted four job openings and went to junior employees. Union grieves, and senior employees win in arbitration. Didn’t tell junior employees about arbitration (so those employees didn’t get heard). Assume they are protected by the employer who promoted them in the first place? But the employer has a lot of other things at stake. Is there a BDFR? How does the union work w/ these inevitable conflicts when it comes to promotions? This makes it to a jury.

Grievance-swapping: Negotiating out agreements to settle individual cases. Two cases - both the union thinks it would probably lose both of them in arbitration, agreement that one employee be reinstated and one employee’s discharge would stand. Courts will scrutinize carefully and may find a BDFR.

Breininger v. Sheet Metal Workers’ Local Union No. 6 (1989) - union hiring hall caseo Facts : Local Union, pursuant to multiemployer CBA, operates hiring hall

through which it refers both members and nonmembers of the union for construction work. Union has list of individuals who wish to be referred to jobs, employers contact union for workers and the union begins at the top of the list to fill the request (unless employer names particular employee). (Employer retains right to hire outside hiring hall.)



P alleges the union breached its DFR and violated the LMRDA by discriminating against him in job referrals (and refused to process his internal union grievances) as a result of his political opposition to the union’s leadership.

Problem - No breach of a CBA b/c not alleging that the employer did anything, alleging the Union did it. No § 301 suit here. Lower courts had said this is a § 8(b) violation, of which the NLRB has exclusive jurisdiction. Can’t get as good a remedy w/ NLRB than in Court (back pay vs. damages).

The D.Ct. held there was no jurisdiction b/c “discrimination in hiring hall referrals constitutes an ULP” over which the NLRB has exclusive discretion.

The COA affirmed, stating that the employee must allege a breach of K to get before a court, and no LMRDA breach b/c the referrals are available to union members and nonmembers and refusals to refer are not “discipline” w/i the meaning of the LMRDA.

o Holdings : There is no rule that exclusive jurisdiction lies w/ the NLRB over DFR suits whose

hypothetical accompanying claim against the employer might be raised before the board. T/f the court has jurisdiction over the BDFR by the Union.

Hiring halls have the duty of fair representation even though they are functioning like employers and are providing a service for members and nonmembers alike.

o Reasoning : Jurisdiction - Vaca applies and the reasoning in no way implies that a DFR action

requires a concomitant claim against an employer for breach of K. The situation, however, is different. In Vaca, BDFR was a necessary

component of the § 301 claim, whereas here a suit against the union need not be accompanied by an allegation that an employer breached the K, since whatever the employer’s liability, the employee would still retain a legal claim against the union.

B/c fed’l court jurisdiction exists over a DFR claim REGARDLESS of whether it is accompanied by a breach of K claim, and b/c a DFR claim is a separate c/a from any possible suit against the employer, the court declines to adopt a rule that exclusive jurisdiction lies w/ the NLRB.

DFR Claim Merits - The court rejects the union’s argument that a BDFR should be defined in terms of what is a ULP. The court refuses to narrow what a BDFR is.

The DFR is not intended to mirror the contours of § 8(b); rather, it arises independently from the grant under § 9(a) of the NLRA of the union’s exclusive power to represent all employees in a particular bargaining unit.

A Union gets status as a board-certified bargaining representative for the power and ability to refer workers for employment through a hiring hall. Together w/ this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion.

o Doesn’t matter that the hiring hall resembles what an employer would do. Key is that the union is admin. a provision of the K.

o “The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and admin. of a CBA K is accompanied by a responsibility of equal scope, and the responsibility and DFR.”

o This decision is arguably attributable to Local 357, Teamsters v. NLRB, which limited the Board’s authority to regulate union hiring halls.



o Negligence: United States v. Rawson DICTA. Mere negligence in the hiring hall context does not violate the DFR. “[A] union must operate a hiring hall w/ ‘objective, consistent standards,’ w/o discrimination, and w/o ‘causing or attempting to cause an employer to discriminate against an employee,’” but one unintentional act of maladministration does not contravene “heightened duty standard.”

Still an open question.

Procedural Aspects of DFR Suits

o Exhaustion of Internal Union Remedies. Clayton v. Internat’l Union, United Automobile Wkrs. (1981): not required to exhaust internal union remedies “where an internal union appeals procedure cannot result in reactivation of the employee’s grievance or an award of the complete relief sought in his § 301 suit.” Courts have discretion on this issue considering three factors: (1) whether union officials are so hostile to the employee that he couldn’t get a fair hearing on his claim, (2) whether the internal union appeals procedures would be inadequate to reactivate the grievance or to get full relief, (3) whether exhaustion would unrsbly delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim.

o Statute of Limitations. DelCostello v. Teamsters (1983): six month S/L for “hybrid § 301 suits” such as Vaca and Hines.

o Damages. Can recover compensatory damages and demand a jury trial; but no punitive damages.

o Allocation of Damages. When employee successfully sues employer and union, allocation of damages is required. Bowen-Vaca standard.

ENFORCEMENT OF COLLECTIVE AGREEMENTS

The Duty to Arbitrate

Unions certified as exclusive rep of workers. Then enter into CBAs, which constrain discretion of employer. Also, series of clauses that protect employees from unjust discharge/discipline, rights to get promoted, creating expectations for employees for how they are going to be treated. Protecting rights/expectations is processed by the union protecting the employees through the grievance process. In process, we have duty to make sure union exercises due care (DFR).

o Question now: How does this obligation to arbitrate under CBA get enforced? Does it have as a counterpart that the union agrees not to strike?

o For industrial peace, want to endorse arbitration clauses and no-strike clauses.o Until 1947, problems re: suing unions (b/c don’t have particular citizenship). Need a method

of creating jurisdiction. Taft-Hartley Act fixes in § 301(b). Union as entity and fed’l courts have jurisdiction to hear cases to enforce arbitration.

Creates jurisdiction but what about fed’l question? No EXPLICIT authorization from Congress to do so. Implied?



Textile Wkrs. Union v. Lincoln Mills of Ala. (1957) - judicial enforcement of arbitrationo Facts : CBA agreed no strikes or work stoppages and specific grievance

procedure (leading up to arbitration). Employer refused to go to arbitration and the union seeks to compel.

D.Ct. ordered the employer to comply. COA reversed holding that although the court had jurisdiction, they

did not have authority to grant the relief. o Holding : The fed’l courts may issue injunctions to compel arbitration under § 301 fed’l

common law (labor policy driven now) b/c N-L antiinjunction provision was aimed at union breaking and not compulsion of peaceful settlement of labor disputes.

o Reasoning : § 301 of the LMRA -

301(b) makes it possible for a labor org. (as an entity.to sue and be sued in fed’l courts. 301(a) supplies basis for jurisdiction and apply the procedural rule of 301(b).

Issue is whether 301(a) is more than jurisdictional. The agreement to arbitrate was plainly a quid pro quo for the no strike clause Act expresses fed’l policy that fed’l courts should enforce CBAs for

industrial peace. It would undercut the act and defeat its policy if read 301 too narrowly as only conferring jurisdiction.

Substantive law of § 301(a) - LMRA says what the parties may or may not do in certain situations. Courts should fashion remedies by looking at the policy of the legislation for parts that lack express statutory mandates. This is fed’l law, not state law.

Creates fed’l question jurisdiction. Fed’l common law re: enforcement of CBAs.

Norris-LaGuardia -§ 7 did not withdraw Jd. to compel arbitration of grievances. Stiff procedural requirements for injunctions in labor disputes---must be serious threat of violence (fed’l courts breaking back of union efforts to organize by issuing injunctions/TROs in labor disputes by using antitrust laws). The failure to arbitrate however was not part of the abuses the Act was aimed, t/f no reason to apply the procedural requirements for enforcing CBAs.

Evolution of a fed’l common law. Body of principles of K interpretation of CBAs independent (although borrowing from) state law. Creates a c/a arising under fed’l law in the form of fed’l common law.

Scope of § 301 Jurisdictiono Concurrent Jurisdiction: State courts have concurrent jurisdiction but must apply fed’l law.o Suits by Individual Employees: Can sue in fed’l courts over individual rights, but must

exhaust contractual grievance arbitration remedies.o Suits Arising Under Union Constitutions: A union constitution is a K b/t

labor orgs. T/f a local union can sue parent union under § 301.

Unt’d Steelworkers of Am. v. Am. Mfg. Co. (1960) — You must Arbitrate!


Compelled Arbitration


o Facts : P just got partial disability and now wants to go back to work (basis for claim of disability is that you can’t do the work!). P seeking to compel employer to arbitration. Employer defended on the grounds that: (1) P is estopped b/c had a few days previously settled a worker’s comp claim against he company (permanently partially disabled), (2) P not physically able to do the work, (3) P’s claim not arbitrable under the CBA.

CBA said mgmt. could discharge any employee for cause, including “reason that would tend to reduce or impair the efficiency of plant operation . . . [or for] lack of work.” Seniority provision said that employer would employ and promote employees “where ability and efficiency are equal.”

P left work due to injury and sued for compensation benefits. Settled case w/ Ps’ physician saying he was 25% disabled. Two weeks later filed grievance for seniority provision.

D.Ct. - estopped (permanent partial disability). COA - affirmed b/c frivolous suit.o Holding : The dispute was to the “meaning, interpretation, and application” of the CBA,

and should go to arbitration without regard to merits of the claim.o Reasoning : Courts have no business weighing the merits of the grievance because the

agreement was to submit ALL claims to arbitration not just those the courts deem meritorious. The policy of the LMRA can only be carried out if means of settlement are fully carried out. CBA requires arbitration of claims that courts may be unwilling to entertain. Common law of the shop that arbitrators are better equipped to entertain and the arbitrator’s judgment is bargained for. There is NO exception in the “no strike” clause and t/f none should be read into the grievance clause. Cites therapeutic values of claims going to arbitrator (employees voice is heard; good for workplace; keeps courts out of it).

United Steelworkers of America v. Warrior & Gulf Nav. Co. (1960)o Facts : CBA b/t barge maintenance workers and employer w/ “no strike” and “no lockout

provisions (employer can’t lockout employees during term of CBA in order to bring pressure on them for something employer wants). Employer laid-off half the union workers and contracted out their jobs, even contracting the same work to laid-off EE’s at cut-rate wages. EE’s alleged violation of no lockout clause by partial lockout. But there was a strong mgmt. rights clause (“matters which are strictly a function of mgmt. shall not be subject to arbitration under this section”). CBA said strict mgmt functions not subject to arbitration. Warrior refused arbitration.

D.Ct. dismissed b/c said the agreement did not give arbitrator right to review the D’s business judgment in contracting out work, which is strictly a function of mgmt. and not limited by the CBA.

COA affirmed b/c mgmt. function exception to arbitration.o Holding : Only the most forceful evidence of a purpose to exclude the claim from arbitration

can prevail (particularly where the exclusion clause is vague and the arbitration clause broad). There was, t/f a dispute as to the meaning of the provision of the agreement, which must be determined by arbitration.

The question of an arbitrator’s substantive jurisdiction is for the courts to decide (w/ a presumption in favor of arbitrability).

o Reasoning : The court must interpret the mgmt. rights clause. Citing Lincoln Mills (p. 24–5). Fed’l policy is to promote industrial peace through CBAs. Major factor in this is the

provision for arbitration of grievances. Arbitration = substitute for industrial strife in



the Labor context whereas in the commercial context it is merely the substitute for litigation.

CBA is more than a K; it is a source of common law. It covers the whole employment relationship and states the rights and duties of the parties. It is a generalized code to govern cases that can’t be anticipated in the employment relationship. Can fashion rules for the particular industry or plant.

Grievance is the terminal point for a disagreement, part of the continuous bargaining process. Arbitrators are chosen by agreement b/c of their special knowledge and their trust in his personal judgment.

§ 301 assigns the courts the duty of determining whether the party has breached his promise to arbitrate. But inquiry must be confined to whether the party did agree to arbitrate or did agree to give the arbitrator the power to make the award he made (unless agreement CLEARLY says arbitrator should do this as well). Presumption of arbitrability = Doubts should be resolved in the favor of coverage.

Even explicit language must be interpreted (e.g., what is subcontracting??). Seems to leave the door open for highly explicit clauses to keep from arbitration. Still vagueness; whenever a claim as to interpretation of even highly explicit language would have to go to arbitration. Hard to draft clauses that really keep things out of arbitration.

“Strictly a function of mgmt.” must mean that over which the K give mgmt. complete control and unfettered discretion.

o Concurrence : Courts’ inquiry should go broader.o Q : Does the arbitrability effect what the arbitrator then does w/ the merits of the case? Can

the CBA say, “We agree frivolous grievances cannot go to arbitration” to invite courts to review? Efforts to K around arbitrability are not easy to do, not well received by the courts. Must do explicitly enough, b/c if ambiguous, the court will send to arbitration.

The Trilogy: Am. Mfg.; Warrior & Gulf Nav., and Enterprise Wheel & Car (p. 29) form the “steelworkers’ trilogy”—all 3 were decided on the same day by the Court:

o Hands off attitude of the courts toward arbitrable disputes also extend to the scope of judicial review afforded to arbitration awards

o The merits of either the grievance or the arbitration award are irrelevant when a federal court is asked to enforce an arbitration agreement or an award there under

Judicial review is limited to whether the award “draws its essence” from the collective agreement.

If the award was within the authority conferred upon the arbitrator by the agreement then it is final and binding

Cox, Reflections Upon Labor Arbitration (cited in case) - Form/system of industrial self-gov’t, where parties on ongoing basis working together to develop rules to govern the workplace. But can’t write everything down. Let arbitrators write in common law of the shop. Arbitration not truly precedent, but like it. If parties don’t like it, they can always bargain around it.

Parties may expressly agree to resort to economic warfare rather than to mediation, arbitration, or judicial review, but the statute does not favor such an agreement. (Despite policy of the Act and basis for presumption for arbitration).

“Procedural Arbitrability” - Court is to determine substantive arbitrability (w/ presumption for arbitrability) but what about procedural? Determination of whether procedural prerequisites to



arbitration set forth in the labor agreement have been met. — Customary to go to the arbitrator, but watch out — If the procedural requirements are a substantive, bargained for provision, then it may go to the courts

o Substantive: is the substance of the issue itself subject to arbitration. Court has § 301 authority to decide if employer breaching K by not going to

arbitration. They do so by applying the presumption of arbitrability.o Procedural: have you gone through all steps of grievance process, are there any other K

requirements to get to arbitration?o John Wiley & Sons v. Livingston (1964): Court held this determination should be left to the

arbitrator. The procedural questions grow out of the dispute and bear on its final disposition---always involves the arbitrator interpreting the K, and separating the procedural from the substantive creates opportunity for deliberate or well-intentioned delay.

o Operating Engineers Local 150 v. Flair Builders (1972): The arbitrator should resolve the employer’s claim that a union demand to arbitrate was barred by laches b/c the union had not demanded arbitration for 3 yrs after the alleged breach.

Powell, dissenting, didn’t like that the majority vested in arbitrators the historic jurisdiction of the courts to determine fraud/duress in the inception of a K.

Litton Financial Printing Division v. NLRB (1991) - arising under the Ko Facts : Check printing plant owner entered into

CBA set to remain in effect until October 3, 1979. Broad arbitration provision = “Differences that may arise b/t the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth.” Dispute over board certification (if de-certified, employer no longer has to bargain but Union wins by 1 vote) - Owner tested certification by refusing to bargain to get it up on appeal – A year after exp. laid off ten employees w/o notice to the union (included six of the eleven most senior employees).

Union filed grievances for breach of K providing that “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” Owner refused to arbitrate at all.

NLRB found that O had duty to bargain and violated § 8(a) by refusing to do so. Also said violated §§ 8(1 - interfering w/ rights in section 7) and (5 - refusing to bargain . . . must bargain over effects of layoffs) for unilaterally abandoning grievance procedure. BUT said dispute arose after the K had expired and no indication that the parties contemplated that such rights could ripen or remain enforceable after the K expired. Ordered limited grievance procedure w/ backpay remedy.

COA said the dispute did arise under the Agreement, so must arbitrate.o Holding : A post-expiration grievance can be said to arise under the K only where it involves

facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of K interpretation (appears to mean if the parties when they do post-expiration bargaining appear to be treating the K as continuing - implied duty to arbitrate and no-strike


Grieved Employee111VOID!


clauses), the disputed contractual right survives expiration of the remainder of the agreement.

The layoff provision here does not arise under the K.o Reasoning :

ULP if, w/o bargaining or impasse, employer unilaterally changes an existing term/condition of employment. Also applies when existing agreement has expired and negotiations on a new one haven’t been completed. Some terms, however, do not survive expiration of the K (union security and dues check-off provisions & no-strike clauses).

Hilton: arbitration clauses are excluded from the prohibition on unilateral changes b/c arbitration is no compulsory; it is by agreement.

Parties can consent to post-expiration arbitration. CBA can eliminate any hiatus b/t agreements/remain in effect until

bargaining. Nolde: Severence-pay and vacation-pay case. S.Ct says those rights are like vested

rights, presumption in favor of post-expiration arbitration of matters UNLESS “negated expressly or by clear implication” . . . BUT arbitration is of matters and disputes arising out of the relation governed by K.

Can’t decide matter arises out of the K unless you interpret the K! Whether or not a company is bound to arbitrate, as well as what issues it must

arbitrate, is a matter to be determined by the court, and a party cannot be forced to arbitrate the arbitrability issue.

Layoff provisions don’t arise under the K b/c factors such as aptitude and ability do not remain constant, but change over time, only determined by matching an employee to the requirements of the business at that time.

FN 4 - Union could argue that in practice the failure to lay off in inverse order of seniority if aptitude/ability were equal amounted to an ULP as unilateral change, but this is not before the court.

o Dissent (Marshall) : It isn’t the seniority rank or the right to job security that vests, but the right to have the standard of seniority applied to layoffs. This is a right under the K.

o What happened to the presumption of arbitrability? Why invite courts to determine the issue of arbitrability?

Wholesale Repudiation? if an employer is willing to arbitrate post-expiration grievances that it judges to be arbitrable under the Litton standards. . . .

6 Years from ALJ to NLRB?: Board can use § 10(j) to get injunction to stop the employer from ULPs.

Judicial Review of Arbitration Awards

Utd. Steelworkers of America v. Enterprise Wheel (1960) - effectuation of the parties’ intento Facts : CBA provided that any differences as to the meaning and application of the CBA

should be submitted to arbitration. Arbitration agreement and provision stating “[s]hould it be determined by the Company or by an arbitrator . . . that the employee has been suspended unjustly or discharged in violation of the provisions of this Agreement, the Company shall



reinstate the employee and pay full compensation at the employee’s regular rate of pay for the time lost.” Employees were fired and it went to arbitration.

Arbitrator found that the discharge was not justified though their conduct was improper (only warranted suspension). CBA expired before it went to arbitration, but arbitrator held that that provision above imposed an unconditional obligation on the employer.

Arbitrator awarded reinstatement w/ back pay minus 10-day suspension and sums received by the employees through other employment. Employer refused to comply.

COA held there were defects in the award (how much deducted is too vague), no back pay can be awarded after the CBA expired, and reinstatement unenforceable b/c CBA expired.

o Holding : Courts cannot overrule an arbitration award if it can rsbly be interpreted as coming out of the CBA itself.

o Reasoning : Holding reflects fed’l policy of settling labor disputes by arbitration. Respect finality

of arbitration. Arbitrators need flexibility to deal with situations the draftsman of the CBA could

not have anticipated However they are confined to interpretation and application of the agreement and

The award is legitimate only so long as it draws from the CBA. Arbitrators must just couch the opinion in terms of the CBA, then courts will

not/should not reverse. This is consistent w/ the FAA (courts should not overturn arbitrator’s except in instances of bias, fraud).

Arbitrator’s opinion was ambiguous (was it based on legislation or on the CBA?) BUT that’s not a reason for refusing to enforce the award.

It is not apparent that he went beyond the submission and there is no reason to assume that he abused the trust of the parties

The COA’s opinion was not based upon any finding that the arbitrator did not premise his award on this construction of the contract, it merely disagreed with his construction of the K

The EE’r’s proposed reading would require the courts to review the merits of every construction of the K, even under the standard arbitration K, and destroy finality of the arbitration.

“It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the K, the courts have no business overruling him b/c their interpretation of the K is different from his.”

K around - Can always renegotiate rules to constrain the arbitrator.

Circuit courts use language from the opinion to find an implausible interpretation of a CBA has been decided and hence reflects the arbitrator’s “brand of industrial justice.” Sixth Cir. refuses to enforce an award when: (1) conflicts w/ express terms; (2) imposes add’l requirements not expressly provided for in the agreement; (3) not rationally supported by or derived from the agreement; or (4) it is based on general considerations of fairness instead of the exact terms of the agreement.

o What about external law? E.g., employee w/ disability, statutory duty to do accommodation, but violates CBA rights of another employee. Is this the “essence” of the CBA or have you gone outside CBA—what if arbitrator gets external law wrong. Sometimes must integrate external law into the decision.


couch in CBA terms


o More and more CBAs are incorporating Title VII, creating the question of whether the employee must go through grievance proceedings to protect their rights (can they just go to court under Title VII?). CBAs aren’t supposed to create individual rights, but statutory rights are!

Judge Hays’ indictment of arbitration: Many cases aren’t decided by the K ---- arbitrator has incentive to protect employability. Will split the baby when they can to preserve their track record, bring in outside factors such as the “common law of the plant”, and many are unqualified or lacking in character.

Even when the arbitrator’s award may properly be vacated, the appropriate remedy is to remand the case for further arbitration proceedings. MLB Players’ Ass’n v. Garvey (2001).

Misco: Worked w/ sharp blades. Had MJ in house away from work during police search. During evening, the grievant went out to cars in parking lot. Employer found him in the parking lot in car in company property, sitting in back seat and joint still smoking was in front seat. He was fired. Arbitrator says not enough proof it was his. D.Ct. reversed. S.Ct. said you bargained for arbitrator to decide these issues.

Public Policy Considerations o Eastern Assoc. Coal v. United Mine Workers (2000) – clear, explicit public policy

considerations Facts : CBA says employer can fire for “just cause.” Employee truck driver operated

vehicle on public hwys and had to be drug tested. He tested positive for MJ 2x but both times the arbitrator said no “just cause” b/c employee was good employee for 17 yrs and said it was a one-time thing. Arbitrator ordered reinstatement and provided (1) unpaid 3 mo. suspension; (2) reimbursement for both arbitration proceedings; (3) participate in drug program; (4) random drug tests; (5) signed, undated letter of resignation if positive test in next 5 yrs.

Employer claims award is against public policy against operation of dangerous machinery by workers who test positive for drugs.

Holding : There is no “explicit,” “well defined,” and “dominant” public policy against enforcing reinstatement of twice-failed drug testers from running heavy machinery, t/f the arbitrator’s award is enforceable.

Reasoning : The court must assume that the CBA itself calls for the employee’s

reinstatement. Then must decide whether falls into legal exception making a CBA unenforceable b/c contrary to public policy.

Such a policy must be “explicit,” “well defined,” and “dominant.” Must come from laws and legal precedent. Misco.

Employer argues DOT and Testing Act show this policy BUT Act also provides that “rehabilitation is a critical component of any testing program . . . etc. The regulations also point to policy against interfering w/ labor-management agreements re: appropriate discipline. The award is consistent w/ rehabilitative concerns and fits the regulation’s requirements.

o Where 2 political bodies have created a detailed regulatory scheme the courts should approach with caution pleas to divine further public policy in that area.



There is no regulation that says 2x mandates discharge. Ct wants express language, will not infer a public policy to go beyond the already detailed and careful scheme created by the other branches.

Concurrence (Scalia) : The court leaves a crack—“we agree, in principle, that courts’ authority to invoke the public policy exception is not limited solely to instances where the arbitration award itself violates positive law.” He thinks the court should be clearer, that the award MUST violate positive law.

No-Strike Obligations

What do you do w/ a broad arbitration clause (must go to arbitration) and a narrow/limited no-strike clause: “the employees agree not to strike when the agreement is in arbitration.” Trying to preserve right to strike to enforce rights. Does the union have the choice to do one or the other?

Teamsters v. Lucas Flour (1962): CBA contained arbitration clause providing that “during such arbitration, there shall be no suspension of work” but did not expressly bar midterm strikes. The Court held that there was an implied no-strike obligation and upheld a judgment for damages caused by a strike.

o Black, dissenting, says court changed the nature of the K by adding new promises that the parties themselves refused to make to better fit into the public policies the court believed to be so important.

Boy’s Markets, Inc. v. Retail Clerks Union (1970) — State Courts and Fed. May enjoin strikeso NO LOSS OF CONCURRENT JURISDICITION o § 4 of the Norris-LaGuardia Act - dilemma now for the S.Ct. - model of duty to arbitrate

and quid pro quo implied no strike clause. How do courts get around N-L to issue an injunction to stop a work strike in a labor dispute?

Congress enacted § 301, assumed concurrent jurisdiction in state courts. Decided there would be fed’l common law to interpret CBAs, then decided b/c fed’l CL could remove from state court to fed’l court (if you were the union). State courts are not constrained by the N-L Act (BUT first thing Union will do is remove to fed’l courts). Congress did not intend for that to happen.

Strange argument that Congress didn’t intend to do something as justification that no-strike clauses and arbitration clauses -- we can enjoin.

o Facts : Frozen food packagers and employer had no-strike provision and broad arbitration provision. After dispute over Union work done by non-Union supervisors and staff, union held strike and boycott anyway. Employer filed for TRO and injunctions, state court issued TRO. Union then moved to fed’l court (fed’l Q jurisdiction under § 301, removed under § 1441) and so the employer moved to compel arbitration.

o Issue : Whether fed’l courts, after removal of a § 301 action, are prohibited from issuing injunctionsby the N-L Act, when state courts are not.


MANDATORY!


o Holding : Overruled Sinclair. Narrow holding that Fed’l courts may issue injunctions, or other equitable relief, to stop illegal strikes in cases involving mandatory arbitration clauses in the CBA.

Dispute must be arbitrable.o Reasoning :

Lincoln Mills: Apply federal law, which the courts must fashion from the policy of our national labor laws to § 301 (a) suits.

Union could obtain specific performance of EE’r’s duty to arbitrate Steelworker’s Trilogy: emphasized the importance of arbitration and cautioned the

lower courts against usurping the functions of the arbitrator. Charles Dowd Box Co.: Congress clearly intended not to disturb the preexisting

jurisdiction of the state courts over CBA violations. Lucas Flour: upheld State court dmg’s award to EE’r for violation of no-strike clause

(not an injunction) The effect of Avco (that state §301 cases can be removed to fed’l court) was that it

ousted state courts of their jurisdiction in suits involving injunctive relief for breach of a no-strike obligation. Ds will always remove to fed’l court if feds can’t issue injunctions.

BUT § 301(a) was meant to supplement (as an alternative) and not encroach upon the preexisting jurisdiction of the state courts.

Need uniformity in the labor laws and this was unintended function of removal, not the deprivation of state court’s injunction power.

Extend Sinclair so that state courts can’t issue injunctions either? (1) Congress never tried to do this in N-L A or § 301; (2) would have “devastating implications for the enforceability of arbitration agreements and their accompanying no-strike obligations.” Damages aren’t an adequate remedy and would aggravate ind. strife.

Shift in goals of Congress: Shift from protecting labor movement (reason for N-L injunction prohibtion) now to the “encouragement of CBA and to administrative techniques for the peaceful resolution of industrial disputes.” Thus the task of courts to accommodate the older law with the newer law as not to impede the NEW congressional policy.

Guidance for injunctions adopted from dissent in Sinclair: NO injunctions despite N-L unless: (1) parties contractually bound to arbitrate in the K AND (2) the employer should be ordered to arbitrate as a condition of obtaining an injunction against the strike.

Whether injunctions warranted depends on “ordinary principles of equity”--- whether breaches occur/continue/will happen; threats to breach; irreparable injury?; suffer more from the denial of the injunction than from its issuance.

o Dissent (Black) : SOP argument. Congress hasn’t changed the law even though they’ve had the opportunity. Involves political and economic interests. Don’t need injunctions to enforce the K (their effectiveness doesn’t matter for the interpretation of the law).

Do Lucas Flour and Boy’s Market meant that even in the absence of an express no-strike provision, a fed ct. may enjoin a strike over a dispute that a CBA states shall be exclusively resolved by arbitration? Gateway Coal v. Untd. Mine Workers (1974) says YES

Buffalo Forge Co. v. Utd. Steelworkers of America (1976) - sympathy strikes - no injunctions



o Facts : Union represents P&M but not O&T yet. P&M engages in sympathy work stoppage during bargaining of the O&T employees. Was the no-strike clause meant to include sympathy strikes. (O&T employees are legally striking for their own CBA.)

Interpretation of the no-strike clause is arbitrable. The dispute isn’t over the interpretation an arbitrable issue b/w P&M EE’s and EE’r; but the dispute is over striking in sympathy for Ees who do not yet have a CBA.

o Holding : The underlying dispute must be a dispute subject to arbitration. Boys Market. If a court issued an injunction relating to the meaning of the no-strike clause, the

court can only do that by interpreting the no-strike clause. The Steelworker’s Trilogy holds that that task is for the arbitrator, not for the court.

o Reasoning : Boys Market is distinguished b/c the strike was not over any dispute b/t the Union and the employer; T/f it was not subject ot arbitration. And the strike had neither the purpose or effect of denying or evading an obligaton ot arbitrate.

This was a dispute over an interpretation of the no-strike clause. But the union did not evade its duty to arbitrate.

Injunctions interfere w/ the arbitrator’s pending decision: if the court can enjoin this strike pending arbitration it could hold hearings, make findings of fact, interpret the applicable provisions of the CBA, and issue injunctions on any arbitrable issue—not what the parties bargained for.

o Dissent (Stevens) : Issuing an interim injunction does not oust the arbitrator but, given the ineffectiveness of dmg’s remedy, fulfills a role he never had.

If dispute arises under the K, can still be required to take it to arbitration. If employer won’t go to arbitration or w/o seeking arbitration, the union wants to pressure the employer, can the Union strike b/c no-strike clause expires w/ the K. As long as dispute arises under the K, or arguably a vested right, still a presumption of a continuing duty to arbitrate. Lucas Flour.

Reverse Boys Markets Injunctions. Does N-L permit injunction against an employer from altering the status quo until an arbitrator decides whether the employer has the authority to do it. Courts have split, but generally agree that when normal equitable standards are met, injunctions are appropriate where “necessary to prevent conduct by the party enjoined from rendering the arbitral process a hollow formality” b/c w/o the injunction in such circumstances an “arbitral award when rendered could not return the parties substantially to the status quo ante.” Lever Bros.

Political Boycotts and the Norris-LaGuardia Acto Carter imposed an embargo on grain shipments to the Soviet Unions. Unions decided not to

load any cargo onto Soviet ships b/c of treatment of Afghanis. o Jacksonville Bulk Terminals Test: whether the employer-employee relationship is the matrix

of the controversy. In this case, the employer and the union are the disputants and their dispute concerns the interpretation of the CBA. Thus, employer-employee relationship is the matrix of the controversy. Norris-L applies and can’t get an injunction.

2 Principles out of these cases:1. N-L doesn’t stop courts from issuing injunctions if the underlying dispute arbitrable

and duty to arbitrate.2. Trilogy - not role of the courts to interpret the CBA so also won’t get involved in



interpreting the no-strike clause.

Arbitration and Unfair Labor Practice Charges Under the NLRA

The NLRB’s authority over disputes raising K issues: Board cannot adjudicate CBAs and adjudicators cannot enforce the NLRA.

o But questions remain where statutory obligations depend on the meaning of the K; or where the meaning of a provision of the K may depend on NLRA interpretation.

o In Either case, factual determinations may be necessary that would ordinarily be made by an arbitrator or the Board—so should the parties be able to sue for relief in both, or have to choose?

Concurrent Jurisdiction - statutory (NLRA) issues and individual rights.o Carey v. Westinghouse (1964): Where union claimed EE’r had assigned work to members of

another union, dispute over whether arbitration should be compelled per the CBA b/c the EE’r claimed this was a representational issue under § 10(k) authority of the Board. Court said that in either case arbitration under the policey of § 301 was apporpriate

o C & C Plywood (1967): o Acme Industrial:

Email hypo: How far can employer go regulating employee’s use of employer e-mail? Permits personal use but won’t allow communication re issues relating to union activity. Violation of § 8(a)(3). Arbitrator looks at in context of CBA. NLRB looks at in context of whether discriminatory. Q under deferral doctrine becomes: Should the charge not be filed under the Board forcing the union and the employee take the dispute to the arbitrator in the first instance?

o After Arbitration - What if arbitrator’s award is inconsistent w/ repugnant to statutory rights of the employee?

o Is the Board abdicating its responsibility to determine statutory rights by forcing the parties to use arbitration?

o Early cases were § 8(a)(5) issues: Where employer unilaterally changes (employer duty to bargain) working conditions in some way during the term of the agreement on a topic not totally covered by the agreement. [Also arguably violation of the CBA, depending on interpretation of the CBA, whether the employer had the authority to make the change.]

Were deferring to the arbitrators. Lynch - these cases really were CBA interpretation. 8(a)(1) and 8(a)(3) are really much more complicated (interfering w/ union activity; discrimination).

Pre-Arbitral or “Collyer” Deferral

United Technologies Corp. (1984) – Defer and reinstate Collyer o Issue : whether the Board has discretion to delegate decision-making authority to the private

dispute resolution process chosen by the parties in CBAs.o Facts : Employees accuse employer of threatening them if they took their grievance to the

next step in the CBA process. Union presses for two steps in grievance process and drops it w/o prejudice. Employer wanted it dropped w/ prejudice.

Should the board defer this issue back to arbitration (when the Union has dropped the grievance)?



o Holding : Defer! Review award if fails to meet Spielberg, or repugnant to the policies of the act.

o Reasoning : Parties agreed to resolve disputes through machinery in the CBA.o Dissent : Disputes b/t Union and employer are best handled by arbitrator; but disputes b/t the

employee and the union/employer, shouldn’t defer, b/c need to protect individual statutory rights.

o Is after-the-fact review of “repugnant to the Act” sufficient?

Olin Corp. (1984) - Post-Arbitral or Spielberg Deference - sickout caseo Facts : Sick out where 43 employees left work. No-strike clause said union reps may not

cause or permit (directly or indirectly) a strike, slowdown, or stoppage. The arbitrator found that employee had been appropriately discharged.

o Holding : Affirms arbitrator and will not view the merits. Only ask: 1) if the procedure fair, 2) were the parties bound, 3) is the decision not “repugnant to the Act”? Given the facts, the arbitrator’s decisions, the decision couldn’t be interpreted consistent w/ the act.

Standard for whether arbitrator adequately considered ULP : (1) the K issue is fairly parallel to the ULP issue, (2) and the arbitrator was presented generally with the facts relevant to resolving the ULP. Unless the award is “palpable wrong,” the award will not be overturned.

o Dissent : Thinks this is an expansion of the deferral policy and an abdication of the Board’s obligation to protect ee rights and the public interest by preventing an

A whole body of doctrine re: deferral of other statutory rights to arbitration. E.g., securities, other areas of the employment field (unionized and nonunionized employees).

Gardner-Denver, Gilmer, and the Tension B/t the Two

o Facts : A worker lost on an issue of title VII rights in arbitration. He then took the same issue to court.

o Issue: Should the courts defer to arbitration agreements in Title VII cases?o Gardner-Denver: Arbitration doesn’t waive right to go to court. CBA doesn’t waive

employees right to go to court and court will not apply collateral estoppel over ability to go to court.

CBAs don’t create individual rights. Title VII IS an individual, independent right. Union can’t waive (1) substantive right or (2) right to go to court.

Arbitrator’s decision may be admitted as evidence in fed’l courts. But the court considers claims de novo.

o Gilmer: Employees in securities industry could be required, as condition of employment (nonunion setting), to agree that disputes arising from their employment would be resolved through binding arbitration, and waive their right to judicial forum.

Gardner-Denver distinguished b/c concern w/ tension b/t collective representation and individual statutory rights not applicable to facts of present case.

Case decided under the FAA - binding arbitration applicable, enforceable, in binding K.



o Wright: Any such union waiver (from Gilmer) must be clear and unmistakable. No waiver when K at issue provided for arbitration of “matters under dispute” and did not explicitly incorporate statutory antidiscrimination requirements.

o Circuit City:

14 Penn Plaza LLC v. Pyett (April 2009)o Facts : Petitioner is member of the Realty Advisory Board on Labor Relations, which CBA w/

the union, the respondent. Respondents were directly employed by Petitioner Temco where they were licensed security guards for the building. Temco reassigned the workers to jobs as porters and cleaners. Contending that these reassignments led to a loss of income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging workplace age discrimination. The Union dropped their claims b/c of its consent to the new security K, which precluded it from objecting to respondents' reassignments as discriminatory. Workers filed a complaint w/ the EEOC alleging that petitioners had violated their ADEA rights and the EEOC issued each of them a right-to-sue notice.

DC denied petitioners motion to compel arbitration. COA affirmed holding that Gardner-Denver forbids enforcement of collective-

bargaining provisions req. arbitration of ADEA claims. o Holding : A provision in a CBA that clearly and unmistakably requires union members to

arbitrate age discrimination claims is enforceable as a matter of fed’l law.o Reasoning (Thomas) :

ADEA does not preclude arbitration of claims brought under the statute. Accordingly, there is no legal basis for the Court to strike down the arbitration clause of this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the claims at issue.

You can’t by K, in advance, waive a statutory right. BUT you could waive a right to a forum.

Gardner-Denver does not apply b/c arbitration: Doesn’t waive the right to seek relief altogether. Is appropriate for final resolution of employment rights. Conflict-of-interest (that Union's subordinate individuals interests to the

collective interests of all employees in the bargaining unit) argument really attacks the NRLA. Congress has accounted for the conflict in several other ways.

The respondents argue that the CBA acts as a substantive waiver b/c precludes fed’l lawsuit and allows Union to block arbitration of the claim (this is the fundamental problem, Gardner-Denver). An

o Dissent (Souter) : These are individual rights, concerned about the collective trading them off for other grievances, having discretion to control grievances on the way out and block them if they choose to on the benefit of the whole.

o Penn Plaza: The employees as a group who have been getting reassigned say they’ve been discriminated; take it to the Union. Gets into grievance arbitration then w/draw b/c Union consented to the grounds of the reassignment and dropped the cause of action. Then employees go file w/ EEOC.



o 1980's case Gardner-Denver: Civil rights c/a, the employee complained to the Union. The Union grieved it; the employee lost. The K didn't say that the employee was forced to arbitrate statutory rights. Employee goes to court w/ a c/a and Employer argues they can't do this b/c already arbitrated. Court said the employee could go fwd w/ his c/a.

o Court parallel started making decisions that you can arbitrate statutory rights -- antitrust, securities, etc.

o Gilmer: Non-Union employment setting, can an employer req. an employee to agree to arbitrate which includes statutory rights? S.Ct. said yes, you can do that unless the statute precludes arbitration specifically.

o Could always sue Union for breach of duty of fair representation if you don’t like the arbitration agreement. Court does a full circle and sweeps into CBA w/ union control. Is DFR an adequate protection for the individual statutory rights.

Two cases after this:o Case in CO: Agreement left an option for the employee to go to court. The employee went

through arbitration and lost and then tried to go to court. The District Court says you elected arbitration as the remedy, now you can’t go to court. Seems contrary to Garnder-Denver. But, don’t know how much Gardner-Denver really stands for now after 14 Penn Plaza.

o Case in NY: Looks almost identical to 14 Penn Plaza and Union out of the box denied the grievance. The District Court says if the Union can do that then K becomes waiver of substantive right, so you can go to court. Go against Penn Plaza based on Part III leaving open if there was clean-cut denial of alleged discrim/statutory right.

Mixing FAA w/ § 301: (1) This employer did not move for arbitration under § 301 to enforce the arbitration agreement (it was a move under the FAA); so this case involves the FAA, where most of the law re: enforcing CBAs is § 301, not the FAA. The court is drawing in union ideas (§301) into the non-union setting. (2) In addition to DFR, fn. 10 (“and furthermore, when these cases go to arbitration, they are protected from judicial review under the FAA”) - mixing law from Steelworker’s Trilogy (fed’l common law of § 301 re: finality), the FAA is similar looking but does deviate from developments under § 301. Steelworker’s Trilogy based on the notion that the parties bargained for the arbitrator. Can you do this if the arbitrator is messing up statutory rights? What kind of review will there be for arbitration award resolving statutory rights. Steelworker’s

Trilogy finality or new standard of judicial review?

Memo of the General Counsel (Jan. 20, 2011) - DEFERRAL — shift burden from the EE to EE’ro GC says being what the S.Ct. has done w/ statutory rights in Title VII area, we should think

of it like NLRA rights. Distinguishes statutory rights under Title VII and relationship b/t courts forcing arbitration and sub. judicial review and says discretionary under the NLRA. Fed’l courts and Trilogy that courts shouldn’t interpret CBAs, arbitrators have to interpret unless unconscionable, but the statute itself is NLRB discretion. SO deferral is a discretionary doctrine.

o Wants to change the burden of proof for deferral. In order to get deferral, the party arguing for it has to show K was in the K and that the issue was presented to the arbitrator, and the arbitrator correctly interpreted the statutory principles and correctly applied them in the case.

Employer usually arguing for deferral. Weird set-up, b/c forces employers to ensure statutory rights are interpreted correctly by the arbitrator.


§

301

vs.

FA

A


PROTECTION OF WORKER CONCERTED ACTIVITY

Concepts of Discrimination and Interference

§§ 8(a)(1) AND 8(a)(3) dual motive cases:

§ 8(a)(3) - ULP for employer to encourage or discourage membership by means of discrimination. Two elements: (1) discrimination in regard to hiring or tenure or some term or condition of employment; and (2) a resulting encouragement or discouragement of union membership.

§ 8(a)(1) - ULP to interfere w/, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (employee rights to engage in union activities).

ALL VIOLATIONS OF § 8 (a) (2) – (5) area also § 8 (a) (1)

o Edward G. Budd Mfg. v. NLRB (3d Cir. 1943) Facts : Employer pays the union representatives. Company union. One of his

workers/union officials that the employer supports, starts talking to more militant outside union, BUT also never showed up to work, shows up drunk, got into verbal altercations, etc… fired shortly after.

Plenty of evidence of just cause. BUT didn’t do it until got involved w/ outside union so the board infers that motivation was to discriminate against him, t/f § 8(a)(3) violation.

Holding : The Board found that the employee was discharged b/c of his activities on behalf of the union.

§ 8(a)(3) is about motivation. Why was the worker really fired? In reaction, the statute gets amended in 1947, which sets up some tension.

o How do you deal w/ dual motives? § 10(c) - you can’t violate the statute unless the board has found by a

preponderance of the testimony taken. Suggests persuasion burden to GC, AND GC must show but for the Union activity this person would not have been fired. (The other way to do it is say that the GC has to show there’s an anti-union animus involved in the decision to discharge the worker, then employer would have to carry affirmative defense. Shifts the burden; but does this run against GC having burden.

Nothing wrong w/ treating as affirmative defense.

o NLRB v. Transp. Mgmt. Corp. (1983) - burden Q — Once Animus Established then EE’r’s burden to show Aff ∆ he would have fired anyway

Facts : Driver supervisor had animus and employee’s discharge was motivated by desire to discourage union activities. The ALJ was not persuaded that employee would have been fired had it not been for union activities.

Board affirmed.



1st Cir. remanded (whether the GC had proved by a preponderance of the evidence that employee would not have been fired). GC has burden of proving the elements of ULP under § 10(c).

Issue : Whether the burden placed on the employer in Wright Line is consistent w/ §§ 8(a)(1) and (a)(3), and §10(c), which provides that the board must prove an unlawful labor practice.

Holding : Employee’s transgressions were commonplace, and no one had before rec’d any discipline. His employer only warned him, but never expressed disapproval. Employer was clearly upset w/ union activity. T/f board’s finding that employee would not have been fired even if the employer had not had an anti-union animus was supported by the evidence.

NLRB has acceptable interpretation of the statute. Nothing bringing up constitutional problems.

Reasoning : When an employee is discharged b/c of union activities, the employer may

assert by a preponderance of the evidence legitimate motives for his decision (that the employee would have ben fired even if he had not been involved w/ the union).

The board’s construction permits an employer to show what his actions would have ben regardless of the forbidden motivation. Thi sis an affirmative defense, but does not change or add to the elements of the ULP that he GC has the burden of proving under 10(c).

The board’s construction, while not required, is permissible and t/f entitled to deference.

o What is the appropriate remedy in these cases? Should the person really get reinstated? How long will that person really last? By the time they got reinstated, it would be amazing if they didn’t find other work. If they find other work, deduct earned wages from back pay. So how big is the constraint?

Bill (got through house, dead in Senate) employee should get double back pay.

o After-Acquired Evidence of Employee Misconduct: S.Ct. ruled that this evidence does not provide a complete defense to liability. Generally, Ps may still obtain back pay for the pd before the employer discovered the grounds. Can’t be reinstated. Also, a former employee’s false testimony under oath in the NLRB hrg does not preclude the board from granting reinstatement.

o NLRA Remedies in Discharge and Failure to Hire Cases - Phelps Dodge and Make-Whole Relief: 1941 S.Ct. upheld § 8(a)(3) order calling for the hiring of applicants rejected for union affiliation. Ct said the hiring order, though not necessary to protect the applicants against monetary loss, was warranted b/c the Act was designed to effectuate the public policy in favor of self-org. and was not confined to remedying private losses. Lost pay should reflect a deduction not only of the actual earnings of the discriminates but also of the amts they had failed to earn w/o excuse.

Once the GC est’d gross amt of back pay, the employer bears the burden of persuasion w/ respect to the claimant’s failure to mitigate his/her losses. An employee who ahs made rsbl efforts to find substantially equiv. employment will



be found to have satisfied the mitigation requirement. Uncertainties resolved in favor of the employee.

o Hoffman Plastic Compounds, Inc. v. NLRB: Relief for Undocumented Aliens? Sure-Tan, Inc. (1984): NLRA applies to undocumented aliens, but the Board

lacked authority to award them reinstatement or back pay, at least if they were outside the country and could not legally reenter.

IRCA passed. Hoffman Plastic Compounds (2002): Board found undocumented had been

unlawfully laid off for participating in a union drive. Board awarded back pay even though employee admitted his papers were false. S.Ct. held that such an award was foreclosed by IRCA policy.

Awarding backpay trivializes immigration law and condones/encourages future violations.

Board imposed other sanctions on the employer (orders that employer cease and desist its violations of the NLRA and post notice to employees setting forth rights, subject to contempt).

Dissent argues there is no deterrence, board needs the backpay weapon. There are already criminal enforcements of the employment of an illegal alien. This decision increases employer incentives to hire illegal workers.

Note: Under the EE’s Free Choice Act: § 8 (a)(3): would have awarded Double backpay for discrimination

Violations Based on Impact of Employer (or Union) Actions

Radio Officers’ Union v. NLRB (1954) — EE’r cannot pay dif. Rates based on membershipo Facts : The employer agreed to fill vacancies for radio officer positions from union

member sin “good standing.” A union member was denied a job w/ the employer b/c he had not previously obtained clearance fro the union and thus was deemed not in good standing.

o Issue : Whether an employer violates 8(a)(3), and a union correspondingly violates 8(b)(1)(A) and 8(b)(2), by making employment decisions that treat union members in “good standing” differently from nonmembers or members not in “good standing” w/o add’l proof that the employer’s specific purpose in agreeing to such differential treatment was “to encourage or discourage membership in any labor org.”

o Holding : The union being exclusive bargaining agent for ALL employees, the employer violates 8(a)(3) by discriminating in wages solely on the basis of such membership (even though it had a K w/ the union prescribing such action).

o Reasoning : Specific proof of intent is unnecessary where employer conduct inherently

encourages or discourages union membership. (Was natural consequence of his action such encouragement/discouragement?)

Gaynor - A nonunion employee covered by a CBA was denied a retroactive wage increase and vacation payments that had been granted to all represented employees who were union members. Court said this disparate treatment is “inherently conducive to increased union membership” and discriminatory.



o Concurrence : Two possible interpretations of 8a3 - (a) On the basis of employer’s disparate treatment of his employees standing alone, or as supplemented by evidence of the particular circumstances under which the employer acted, it is open of the Board to conclude that the conduct of the employer tends to encourage/discourage union membership, thereby violating the statute, OR (b) Even though the evidence of disparate treatment is sufficient to warrant conclusion set forth in (a), there must be s specific finding that the actual aim of the employer was to encourage/discourage union membership.

o Dissent : Need the intent.

Intent is required under 8(a)(3), but some things have such an inherent consequence, that the court will infer it. Eliminates the finding of intent (can’t particularly be rebutted). Strange dichotomy (see below). Seems like it becomes question of law rather than fact and Court’s may review de novo

Republic Aviation Corp. v. NLRB (1945)o Two Problems : What is the analytical framework? How do you apply it with all the

variations from Radio Officers? HERE, what happens when it’s not discriminatory, but it’s a general rule

(no passing out of literature, non-union times, non-working areas)?o Facts:

Republic adopted a general rule against soliciting in the factory or offices well before any union activity at the plant.

An EE, after being warned, continued to solicit union membership in the plant by passing out application cards to employees on his own time during lunch periods.

The employee was discharged for infraction of the rule and the NLRB found there was no discrimination on the part of the employer toward union activity.

Three other employees were discharged for wearing union buttons after being asked to remove.

o Issue: May an Ee be fired for violating a general non-solicitation rule by passing out union membership cards during non-working hours or wearing union buttons?


Derivative Rights, NO

BALANCING

Off-Duty Employees: Which

category?

Employer has persuasion burden

Balancing Test


o Holding : No. If a rule against solicitation is invalid as to union solicitation on the employer’s premises during the employee’s own time, a discharge because of a violation of that rule discriminates within the meaning of §8(3) in that it discourages membership in a labor organization.

The Board’s was correct in its determination that any rule against solicitation in so far as it prohibits union activity and solicitation on company property during the employees’ own time is prohibited.

The general rule against solicitation violated 8(a)(1) by interfering with Ee rights.

o Notes: The context of this case is that of Er-Ee setting, not Er-Non-ee setting like with

Lechmere and Babcock, where union organizers who were not employees were attempting to solicit.

This context makes a difference to the balancing test vis-à-vis the Er. The rights of non-ee organizers are derivative of the actual ee’s §7 rights. Thus, they do not allow for as much infringement on Er rights as actual ee rights would.

Bottom Line from the case is balancing test for 8(a)(1): achieving business goals through property use v. rights of Ees.

Intent is not necessary to violate 8(a)(1), only actual interference with Ee rights. Thus, the general rule triggered a violation here.

Court also make a distinction between solicitation and literature. Literature makes the appearance of your workplace messy. Can also be

targeted at consumers (to boycott). Various messages. Most of the time solicitation will be to encourage or discourage union

membership. Passing out literature while you are working is more of an interference,

and thus it can be limited or restricted as long as general and not discriminatory.

Accommodating Employee § 7 Rights and Employer Interests

Interest in Maintaining Production and Discipline: Board/courts assume that Congress did not intend to interfere w/ legitimate employer interests in the running of business enterprises in §§ 7 and 8.

Interest in Excluding “Outsiders”: Employer Property Rights: B/c already rightfully on the premises, employees soliciting/distributing thought not to implicate the employer’s property rights. What about nonemployee union organizers?

NLRB v. Babcock & Wilcox Co. (1956): Non-employee unions possess a derivative § 7 interest in communicating their views to employees; however, there is a rule of presumptive non-access. Republic Aviation obligation not owed to non-employee organizers. BUT “if the location of a plant and the living quarters of the employees place employees beyond the reach of rsbl union efforts to communicate w/ them, the employer must allow the union to approach his employees on his property.” Only when there are no other adequate means.

Lechmere, Inc. v. NLRB (1992) - non-employee union access to employer’s property44 | L a b o r L a w


o Facts : Union trying to organize retail employees. Grassy strip in parking lot is public property. Company had policy of no handbilling or solicitation and asked union to leave when they put ads on cars in parking lot. Union used grassy strip for a month to hand out stuff to employees coming and going, take down license plate #s to send employees stuff in the mail, etc.

Union alleging ULP to bar the non-employee organizers from its property. ALJ ruled in Union’s favor.

Board affirmed and adopted the recommended order using Jean Country test. 1st Cir. enforced the board’s order.

o Jean Country three-factor balancing test : (1) impairment of § 7 right if access denied, (2 impairment of the private property right if access granted. Consider (3) the availability of rsbly effective alternative means.

o Holding : The union failed to establish the existence of any “unique obstacles” that frustrated access to employees, t/f no ULP by barring the non-employee organizers from its property.

o Reasoning : Babcock created dichotomy b/t employee and non-employee activities. No balancing for non-employee. § 7 does not protect non-employee union organizers EXCEPT in the rare case where inaccessible (“isolated from the ordinary flow of info. that characterizes our society”). Only where such access infeasible that it becomes necessary and property to take the accommodation inquiry to a balancing test. Union must meet this high burden.

B/c the employees do not reside on company property, they are presumptively not “beyond the reach” of the union’s message. Union WAS able to contact them outside of work via mailing, phone calls, home visits. OTHER ALTERNATIVE MEANS OF COMMUNICATION WERE READILY AVAILABLE.

o Dissent : Defer to the board, whose interpretation in Jean Country and application in the case at hand was permissible.

Just b/c Babcock said inaccessibility is a reason to grant access doesn’t mean there’s no other circumstance that would warrant entry onto company property.

o Court ignored distinction b/t parking lot open to public generally and the secluded plant in Babcock.

o Babcock recognized that actual communication w/ nonemployee organizers, not mere notice that an org. campaign exists, is necessary to vindicate section 7 rights. Union here wasn’t able to actually communicate on grassy strip.

Scope of Lechmere:o North Hills Office Servs. (NLRB 2005): Employer did not commit ULP by instructing

employee to stop talking to a union organizer while he was trespassing on company property.

Board held that Lechmere applies equally to nonemployee appeals to customers.

o Register Guard (NLRB 2007) - e-mail and 8(a)(1) case Facts : Employer had policy that email system could not be used for non-job-

related solicitations, but knew that e-mail was used to send some personal messages. No evidence that the employees used e-mail to solicit support for any org. other than the United Way (employer conducted a periodic charitable campaign). Employee wrote 3 different emails and was sanctioned.



First E-mail: Clarified that info. supplied by employer saying that anarchists were going to a union rally was inaccurate. Was after the union rally, prepared on break but sent from work. Weren’t asking people to go. No solicitation, only a communication.

Second E-mail: Written from union computer. Encouraged workers to wear green to support the Union’s position in negotiations. This is solicitation.

Third Email: Encouraged workers to participate in Union’s entry in an upcoming town parade from union computer. This is solicitation.

o Each time, the employee rec’d a warning. The ALJ ruled the employer may limit e-mail use but ULP to

discriminatorily enforce the policy, ULP to discipline employee for 3 emails.

Holding : Employees do not have a statutory right to use the e-mail system for § 7 purposes, t/f the policy prohibiting employee use of the system for “non job-related solicitations” did not violate § 8(a)(1). But the EE’r did violate § 8 (a)(1); (3) by giving a warning for the 1st ,non-solicitous, email

Reasoning : The Policy : Employer has basic property right to regulate/restrict

employee use of company property. Union Carbide. Legitimate interest to control e-mail system as long as restrictions are nondiscriminatory. Republic Aviation inapplicable b/c not regulating organization rights, only the means to communicate. E-mail is not so different from other means of communication to depart from settled precedent.

Discriminatory Enforcement: As a matter of property and K rights, a employer may impose a rule banning all organizational notices (including charities) w/o being disparate treatment of unions. Dist. b/t organizational, personal, and for-sale notices. Disparate treatment must be B/C OF UNION OR PROTETED STATUS.

Board rejects that it’s simply an 8a1 violation for employer to restrict e-mail use generally. (Union didn’t argue this in court.) Went after the 8a3 discrimination b/c she was engaging in union activity violating general rule against using work email/equipment. She had been warned. When it comes to supporting or using email for an organization you can have a general rule prohibiting organizational support of entities not immediately involved in the workplace, t/f no 8a3 violation.

o General Counsel’s Brief in Roundy - nonemployee access case Facts : Nonemployee union agents peacefully distributed informational handbills

in front of retail stores. Company officials told the handbillers to leave and sometimes would call the police. The company has a broad no solicitation/no distribution policy, but has permitted other organizations/groups to handbill/solicit.

Argument : The board should retain its Babcock discrimination standard, notwithstanding adverse circuit court decisions.

Reasoning : Babcock rule = employers may prohibit non-employee distribution of

literature. Two exceptions: (1) inaccessibility and (2) discrimination.



o Discrimination Test: An employer may not exercise its usual right to preclude union solicitation and distribution on its property if the employer permits similar activity by other nonemployee entities in similar relevant circumstances.

Ask whether the employer permits, by rule or practice, similar activity by other outside organizations in similar circumstances.

Narrow exceptions ok but cannot frequently permit civic, commercial, or charitable solicitation.

Always violates law if employer motivated by anti-union animus or its asserted justification is pretext.

Essence of discrimination is failure to treat like things alike. Courts trying to say union activity is different in nature than others. The Act doesn’t permit a court/employer to make distinctions based on potential impact on the employer’s property or business. All activity has potential to impact negatively, but all are protected by § 7.

Argument : The employer violated § 8(a)(1) by discriminating against the Union’s handbilling activity.

Reasoning : The facts here are strongly discriminatory. The company permitted political solicitation on its property, encompassing controversial topics.

Argument : RG doesn’t apply in non-employer access cases and should be overruled.

Reasoning : RG dealt w/ whether an employer unlawfully interfered w/ protected activity when it disciplined an employee for using its e-mail system. Republic Aviation balancing test is inapplicable to nonemployee access cases (different employer-employee obligations). The employee discrimination standard from RG is too broad; less protective for employees than non-employee standard, t/f get rid of it.

Note: NLRB v. Town & Country Electric, Inc. and Pain Union Organizers as Protected Employees

o S.Ct. upheld Board’s interpretation of the definition of “employee” in § 2(3) to include “salts”--- workers who are also paid union organizers. Thus, T&C had violated §§ 8(a)(1) and (3) by refusing to hire union members who were going to be paid by the union while they attempted to organize the employer.

Broad language and broad interpretations in past S.Ct. decisions. Court said union employees are just moonlighting. Cannot be fired for misrepresenting their union jobs (§ 8(a)(3) violation); gives them better access to solicit members. Can be up front about it too and if is highly qualified, can challenge the employer for not hiring (can picket longer if seeking recognition and ULP).

Averting “Salts” through “Anti-moonlighting Clauses”- A facially neutral hiring policy only violates the Act if it is adopted for an antiunion purpose or applied in a discriminatory manner.

Courts require proof of antiunion purpose (10 (c) preponderance of the evidence).

Interest in Entrepreneurial Discretion



NLRB v. J.M. Lassing (6th Cir. 1960)o Facts : Retail gas station partnership used a common carrier system of gas delivery on

April 1, 1959. Three drivers joined the Union on Jan. 1, 1959 and the Union wanted to negotiate. Employer told the discharged the employees on Jan. 19, 1959. Union tried to negotiate next morning, but company said it had contemplated subcontracting out the work for a long time and the coming of the Union, w/ the added payroll expense was too much for the business.

o Holding : The change was made b/c of rsbly anticipated increased costs, t/f no discrimination against the three employees.

o Reasoning : Adkins: Change in operations motivated by financial/economic reasons is not a

ULP. Don’t really know if the union would have increased costs (maybe just bargained

for working conditions), but testimony re: talks w/ employer. The Union coming onto the scene was a new economic factor the employer had to take into account in calculating costs of operation. It was a rsbl anticipation of increased costs to sub-K the work.

Entrepreneurial, managerial decision. Be careful about reading 8a3 violations on core entrepreneurial decisions of how you manage costs. (Should an employer be constrained from sub-King out work if there is a union present w/o first bargaining w/ the union??? 8a5 violation. How does the court decide what is mandatory to bargain?)

Proof of antiunion animus b/c balancing the strength of the employer’s interest in being able to shut down part of its operations for legitimate cost-based reasons (as contrasted w/ the lack of any comparably strong employer interest in cases like Radio Officers (was treating union officers better to encourage union membership) and Republic Aviation).

Under Wright Line, antiunion may be proven, but the employer can prove that it would have made the same decision based on labor costs and get out of ULP.

o Textile Wkrs. Union v. Darlington Mfg. Co. (1969) Facts : Union narrowly won election the company opposed. Company (owned 17

plants - separate entities) resisted by threatening to shut the mill down. Employer testified that he couldn’t take advantage of new machinery being put in w/ competitive costs b/c the employees wanted higher wages; and so the mill was shut down and the property/equipment was auctioned off piecemeal.

Board found the mill was closed due to the antiunion animus of employer and violation of § 8(a)(3). Also found mill to be part of single employer group. Board ordered back pay for all employees until they obtained substantially equiv. worker were put on pref. hiring lists at the other mills. Also ordered to bargain.

COA denied enforcement; company has absolute right to close out a part or all of its business regardless of antiunion motives.

Holding : When an employer closes his entire business, even if the liquidation is motivated by vindictiveness twd the union, such action is not a ULP. BUT a partial closing is an ULP under § 8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plant so the single employer and if the employer may rsbly have foreseen that such closing would likely have that effect.



Reasoning : Some decisions are just matters of mgmt. and cannot violate § 8(a)(1),

whether or not they violate sound business judgment, unless they violate § 8(a)(3).

Discriminatory Complete Closing: o Union argues that an employer has right to go out of business w/o

violating the act even if such action is antiunion animus. Interfering w/ a businessman’s decision to go out of business is so fundamental that you need a clear manifestation from Congress that this is intended. This doesn’t exist.

o “Runaway shops” discouraged b/c they deprive the union of future benefits. But a permanent, complete liquidation yields no future benefit. May discriminate but this is not the type prohibited by the Act. Ends employer-employee rel.

Discriminatory Partial Closing:o Repercussions on what remains of the business b/c employer has

leverage for discouraging union activity. Remedies still available (i.e., reinstatement).

o Test - “If the persons exercising control over a plant that is being closed for antiunion reasons (1) have an interest in another business, whether or not affiliated w/ or engaged in the same line of commercial activity as the closed plant, of sufficient substantiality to give promise of their reaping a benefit from the discouragement of unionization in that business; (2) act to close their plant w/ the purpose of producing such a result; and (3) occupy a relationship to the other business which makes it realistically foreseeable that its employees will fear that such business will also be closed down if they persist in organizational activities, we think that a ULP has been made out.”

Remand b/c need finding of intent by the employer. (Intent not implied like in Radio Officers.)

Board found intent from employer’s antiunion speeches at Kiwanis club. Tell your mgmt. clients don’t do something like this if they are thinking of closing an operation or subcontracting part of it out. Manage your clients.

What about remedy? Can’t order him to reopen his business. Maybe can give the employees backpay until they find equiv. jobs. No chance to reinstate if they reopen business far away!

o Underlying Q: Nothing in the statute (only discouraging/encouraging union membership); how should we structure collective bargaining when a company experiencing financial difficulties. Hope you can protect jobs of workers and give them some voice but want employer to keep functioning and still make profit. How do you structure this relationship so that there is at least an opportunity for a dialogue before a decision is made to close a plant or part of operation or subcontract out the work?

The Scope of Protected Employee Activity



“Protected” Concerted Activity: Means Test

Three Elements - (1) concert, (2) object or purpose, and (3) means. What does mutual aid or protection mean?

NLRB v. Washington Alum. Co. (1962)—Group Walk-out to protest Emp. Cond. Facts : Company discharged seven employees for

leaving work in the machine shop w/o permission claiming that the shop was too cold to work in. Shop was not insulated and doors were frequently open to the outside air. Furnaces weren’t cutting it; constantly complained; foreman mentioned to one employee if they had guts they would leave. Six workers stayed behind when foreman persuaded them to stay.

o Board found the conduct was concerted activity to protest the failure to supply adequate heat; a § 8(a)(1) ULP; directed reinstatement and backpay for the employees.

o 4th Cir. refused to enforce the order b/c employees just left w/o affording the employer an opportunity to avoid the work stoppage and thus, no protected concerted activity.

Holding : The walkout was a protected concerted activity growing out of a labor dispute done solely to contest working conditions. This was protected by § 7 because the Act is broad enough to protect concerted activities whether they take place before, after, or at the same time a demand is made.

Rationale: The EE’s actions were reasonable and grew out of a labor dispute within the plain meaning of the Act.

o The 7 EE’s were not organized, had no representative, had to speak for themselves, and had no established procedure by which to take advantage of their unanimity of opinion in negotiations with the company, and took the most direct course to let the company know that they wanted a warmer place in which to work

o Actions emphasized the seriousness of their concerns about the conditions of their employment

o NLRA §2 (9): Labor dispute: Any controversy concerning the terms, tenure or conditions of employment

o The reasonableness of the worker’s decisions are irrelevant for the purposed of finding a labor dispute.


§ 7. Rights of Employees. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).


BUT their actions were justified where even the foreman’s statements about the conditions of coldness that were so aggravated on the day of the walkout that the concerted action seemed like a perfectly natural and reasonable thing to do.

Elk Lumber Co. (NLRB 1950) —Work slowdown not O.K. Facts: EE’r installed new equipment making lumber car loading easier and

then unilaterally reduced the rate of pay for its car loaders. EE’s subsequently engaged in work slowdown. They met with the EE’er’s rep over mutual concerns and he promised to investigate. EE’s were then let go

Holding: Not withstanding the lawful purpose of the concerted activity, the EE’s engaged in a work slowdown rather than an outright stoppage and the EE’r discharged the EE’s for failing to perform satisfactorily and not because of concerted activity

Rationale: The EE’s engaged in concerted activity for a lawful purposeo However, the slowdown was a refusal to accept the terms of

employment as set by EE’r without engaging in a stoppage, rather to continue to work on their own terms.

o The EE’r did not acquiesce in the slow down, rather they showed their concern during the meeting, and the EE’s knew that the work rate was unsatisfactory

Distinguishing Wash. Alum and Elk Lumber: Why protected when leave but not protected for continuing to work (slowdown)? If workers setting pace, not mgmt., employer cannot hire replacements (can do so during strike). Courts t/f don’t want to protect this kind of activity b/c there will be problems. — have cake and eat it too?

Note: Categorical Limitation on the Means Employed (Washington Alum.) Unlawful Activity: The NLRA does not protect conduct that is illegal

under the Act itself, other fed’; laws, or acts to compel an employer to violate the Act of another fed’l law.

o Activity prohibited by state law may still be protected where the state laws restrict activity protected by the NLRA or the RLA are preempted by those fed’l laws.

o The Law is presumed to have been drafted against a backdrop of State criminal and tort law and some concerted activity that violates state law will be unprotected. E.g., sit down strikes generally not protected b/c violations of state law.

Violent Activity: Violent conduct generally falls outside of the Act, and courts have found particular strikes unprotected where the walkout threatened to cause physical damage to the employer’s property. See Fansteel, and Marshall Car & Wheel.

o Actual or threatened violence against persons is also grounds for excluding concerted activity from § 7 protection, but the Board has also recognized that balancing of the severity of the conduct with



the potential restraint on the employees right to strike may be necessary.

o Clear Pine Mouldings: Threats or actual violence used to intimidate other EE”s in the exercise of their rights are unprotected

Mohawk Liqueur Co: Objective test that needn’t show the employee was actually intimidated

Breach of K: Conduct breaching a contractual duty may not be protected.o NLRB v. Rockaway: Failure to abide by no strike clause during the

term of a CBA was a breach of K that constituted a waiver of employee’s § 7 rights.

“Indefensible” or “Disloyal” Conduct: Jefferson Standard held a show of disloyalty to the employer that was unnecessary to carry on the workers’ legitimate converted activities.

o Relevance of Rsblness to Walkouts: The Board has continued to extend protection isolated spontaneous employee walkouts w/o assessing whether the employee’s response was reasonable or proportional to the employer conduct. BUT, refusal to leave an employer’s premises after a spontaneous walkout may be unprotected.

IMPORTANT DISTINCTION: Different analysis for purpose/objective (must be related to the workplace) and means used.

o Jefferson Standard (1953) - disloyal means Facts: Original Paint case = unprotected. Handbills dist. by union around the

community didn’t say anything about the labor dispute. Merely attacked the paint as being inferior product and support the union in effort to arrive at CBA w/ employer and don’t buy that paint until union is back to work. Technicians picketed EE’r’s refusal to renew arbitration of discharges in the ne CBA, but did not strike and continued to draw full pay. The picketing changed to include disparaging handbills about the EE’r’s treatment of the city of Charlotte as a 2d class city, and the poor broadcast quality it provided to Charlotte as a result. 10 Technicians thought responsible were laid off

Issue : Is the means of attacking a product appropriate for purposes of negotiating a better CBA.

Holding: This type concerted activity is not protected by the Act because it is separate form the labor dispute and were of such a demonstration of detrimental disloyalty as to provide “cause” for termination

Rationale: The Taft-Hartley Act, § 10 (c) provides that no order of the Board shall require the reinstatement of any individual as an EE who has been suspended or discharged…for cause. There is no more elemental cause for discharge of and EE than disloyalty to his EE’r

Absent a labor dispute the handbills would have been grounds for discharge

o The Handbill attack related itself to no labor practice, but to the finance and public relations policies that were the mgmt’s responsibility



o A continuing attack initiated while off duty, upon the very interests which the attackers were paid to conserve

o Forcing the EE’r t pay for such activities is inimical to the Act The Fortuity of the coexistence of a labor dispute is no decfense

o The EE’s took pains top separate the attack from the disputeo Handbill omitted all reference to the labor dispute

Diverted attenuation from it Attacked policies with no discernable relationship to it

The Only connection to the dispute was the undisclosed purpose or motive of bringing some financial pressure to extract form the EE’r a concession

These tactics were hardly less indefensible than acts of physical sabotage Links the inferior product to the labor dispute. Now ok? Link it to the strike.

o Eastex, Inc. v. NLRB (1978) – Bargaining Position & Protecting Wages Valid Purp. Facts: Union seeking to bolster support and gain new members prior to bargaining

decided to distribute newsletters to Co. EE’s in non-working areas of EE’r’s premises during non-working time. 2 sections of the paper addressed proposed incorporation of the “right to work” statute in TX’s constitution and addressed the presidential veto of an increased min. wage. EE’r denied permission to distribute the newsletter to certain EE’s and Union personnel and the Union filed ULP chare. Board found § 7; § 8(a)(1) violation and the COA enforced.

Holding:

o § 7’s “mutual aid and protection” clause protects EE activity outside of the direct employment relationship with the EE’r and extends to EE’s resort to administrative and judicial forums and appeals to legislators to protect their interests

o The distribution of the newsletter by EE’s in non working areas during nonworking time was protected because it implicated only the EE’r’s management rights which were not shown to be prejudiced in any manner, and it is undisputed that the Union undertook the distribution in order to boost its support and improve its bargaining positions

Rationale: Without deciding the precise boundaries of mutual and or protections, political sections of the newspaper were still protected where they called on workers to act together to better their working conditions

o Union security is central to the concept of strength through solidarity and a mandatory subject of bargaining

o The incorporation of right to work into the TX constitution is significant because it would become more difficult to modify or repeal

o The Union’s call regarding minimum wage is concerted activity for the mutual aid or protection of workers because min wage affects wage levels derived from collective bargaining, and

o Concern by pet. EE’s for others might gain support for them at some future time

o The EE’r’s property rights were not implicated because the EE’s already had access to the property rights



o EE’r alleged no prejudice to its mgmt rights

o EE’s degree of intrusion does not vary with the content of the newsletter, so the only cognizable property interest is in the preventing EE’s form distributing literature on EE’r’s property

o Board has not engaged in discerning between material that is connected or attenuated from the central concerns of self-organizing or collective bargaining

o EE’r conceded that the EE’s had a right to distribute material relating to CBA and organizing, the incremental intrusion on the EE’r’s rights from their distribution together with the other sections is minimal

o Off-premises Political Activity: The Board has not ruled yet, but Eastex n. 18 suggests that such activity, while not protected on Ee’r’s property because of lack of sufficient connection to workplace concerns, might nonetheless be protected as within “mutual aid or protection” See Ford Motor Co. (Purely political tract uprotected).

Protests Over Supervisor Identity: NLRB v. Oakes machine; Bob Evans Farms: Supervisor identity is not a legitimate EE interest and therefore not protected.

Refusal to Cross Picket Lines: May be protected, but EE’s may also be replacedo NLRB v. Browning-Ferris Industries : Truck driver’s refusal protected, but EE’r could

hire replacementso Overnite Trans . : Hiring replacements for refusal to cross picket lines was unjustified

because business not significantly disrupted

Gen. Counsel’s Memo: Effective Remedies in Organizing Campaigns:o The GC is advocating resetting the arbitration deferral standard to pre-olin.o GC is mostly taking issue with the burden of proof in Olin and the presumption of an

arbitration award’s validity: Olin looks to whether there is a palpably wrong decision, arbitrator had all facts,

and the statutory rights are parallel with issue being arbitrated. Party attempting to defeat deferral must prove arbitrator did not have facts,

etc . . . This party will usually be the worker. GC wants to reset burden of proof to party who is advocating for deferral: prove

contract had statutory right incorporated in it and arbitrator was presented with the statutory issue, and arbitrator applied and articulated correct principles. (keeps palpably wrong standard)

Er will want deferral usually, putting the burden on Er.o Making Er tell arbitrator the proper law under the NLRA.

Effort to make it more difficult to have deferralo Procedural Changes:

Pre-Arbitration: Wants to refer to Office of Advice on whether to defer when union brings a claim to NLRB first.

Regional office will need to investigate. Then if all seems hunky-dory, send it to arbitration.

This memo will have a certain effect on the Regional Offices.



Could have Obama voted out of office by the time cases applying this new standard reach the board, and board could have a whole new composition.

Individual Employee Action as “Concerted” Activity: An individual EE’s conduct may, nonetheless be deemed concerted activity under § 7.

NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984) — You Can’t Make me Drive!o Facts : EE garbage truck driver refused to drive a truck, which, the previous day,

the repair station because of brake problems. The CBA contained a provision stating that it was a breach for EE’r to require EE’s to operate unsafe vehicles, and that it was not a breach for EE to refuse. Board ruled EE”s refusal concerted activity under § 7 according to longstanding Interboro doctrine. COA denied enforcement.

o Holding: (Whether an activity was concerted is merely the threshold question, the ultimate question is whether the conduct was protected under § 7.)

Individual activity to enforce rights under a CBA, as long as the EE’s action is based on a reasonable and honest belief that he is being asked to perform a task that he is not required to perform under his CBA, and the action is reasonably directed toward the enforcement of a collectively bargained right, is concerted activity just as it would have been had he filed a formal grievance

Whether the EE’s conduct was protected under the act is not at issue here because it was not passed on by the Board or the COA

o Rationale: Interboro doctrine—an individual’s assertion of a right grounded in a collective

bargaining agreement is recognized as concerted activity and therefore accorded the protection of § 7.

Assertion of a CBA right is an extension of the concerted action that produced the agreement.

The assertion of such a right affects the right of all EEs covered by the CBA

The task of defining the scope of § 7 rights is for the Board in the first instance and on an issue that implicates its expertise in labor relations, a reasonable construction by the Board is entitle to considerable deference—we cannot say that the Board’s view is unreasonable.

When an EE invokes a right grounded in the CBA he does not stand alone—he brings to bear on his EE’r the power and resolve of all his fellow EE’s

Allowing individual enforcement of CBA rights as concerted activity serves Congress’ purpose of mitigating the EE’r-EE inequality that persists beyond collective bargaining

Breathes life into the promises contained in the CBA as well as the entire proves envisioned by Congress as a means of achieving industrial peace

To be sure the primary tool of invoking CBA rights is the grievance process, but it is natural for EE’s to first voice their opposition to their EE’r before or perhaps in place of filing a grievance

ILLUSTRATION 1



Individual v. Concerted Protests: Individual protests and allegations of a sole EE that they are being treated unfairly as an individual are not covered

Obey Now, Grieve Later: CBA’s commonly read to require EE’s to perform job assignments and then grieve rather than refuse assignments they believe not covered, but there is a safety exception.

Individual Protests and Individual Action as a Prelude to Group Action: Single EE’ conduct must be with the consent or authority of the other EE’s

o Alleluia Cushion, (1975): Worker who wrote a letter to regulatory board complaining of safety issues was protected absent evidence that the other EE’s disavowed such representation

o Meyer I, (1984): Board repudiated Alleluia, stating that EE conduct could only be protected if engaged in with or in the authority of the other EE’s

o Meyer II, (1986): following D.C. Circuit rejection of Meyer I, the Board adhered to its original interpretation of the Act as a discretionary matter, the D.C. Circuit then deferred as a reasonable interpretation of the Act under Cheveron.

Individual Conduct in preparation for, contemplation of, or that truly brings a group complaint to the attention of management is concerted activity

o Mushroom Transportation, (1964): Concerted activity “encompasses those circumstances where individual EE’s seek to initiate or to induce or to prepare for group action as well as individual EE’s bringing truly group complaints to the attention of management.”

Individual conduct that is the natural outgrowth of group activity is covered.o Salisbury Hotel: Complaint to Dep’t of Labor after EE’s had agreed to complain to mgmto Every Woman’s Place, (1986): Single EE contacted Labor Dep’t after several EE’s had

complained to mgmt was concerted activity.

o NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) Facts: EE investigated or theft, and called in for an interview

surrounding allegations of stealing chicken from the lunch counter. She requested her union steward but was denied, and the interview continued. Her story checked out, but then she admitted to taking free lunches, which everyone did and even the HQ was not sure as to the policy in that store. She was interrogated again, and the EE’r refused her request for her Union rep again. Board held this violated § 8 (a)(1) because she reasonably believes the interview might result in discipline. 5th Cir. Denied enforcement.

Holding: The COA impermissibly encroached upon the Board’s function. The Board’s construction here, while not required by the Act, is permissible, and the Board’s application of that meaning in the reconciling conflicting interests of labor and management, the balance struck by the aboard is subject to limited judicial review.

Rationale: The Board’s construction of § 7 creates statutory rights of an EE to refuse to submit to an interview without a union rep. where he reasonably fears that discipline may result.



Quality Mfg. and Mobil Oil Corp. shape the limits of the right:o The right inheres in § 7’s guarantee of the right to act in concert for

mutual aid and protectiono Only in situations where the EE requests representationo Only where the fear of discipline is reasonableo Exercise of the right may not interfere with legit EE’r prerogatives

and the EE’r is free to carry on the investigation without the interview

o No added bargaining duty with the union rep. EE’r/EE confrontations clearly fall within the literal wording of § 7

o Even though alone, the EE seeks “aid or protection”o The Union rep protects the interests of the entire CBU by ensuring

that the EE’r is not imposing punishment unjustly The Board’s construction of § 7 plainly effectuates the most fundamental

purposes of the act, where requiring the EE to attend alone perpetuates the inequality that the Act was designed to eliminate and bars recourse to the safeguards the Act provided to redress the perceived imbalance of economic power between labor and Mgmt

Asking the EE to deferred representation until he has already been “adjudicated” and disciplined or discharged would substantially increase the burden of vindication and diminish the effectiveness of representation where the EE’r’s focus during the grievance procedure would be defending its actions rather than reexamining them.

o Remedies for Weingarten Violations: Limited depending on whether EE was disciplined for underlying conduct or for invoking the rights

Taracorp Indus., (1984): No reinstatement or Backpay where underlying conduct was cause for dismissal

There is also no “Exclusion” of confessions obtained in absence of union rep.o Weingarten Rights in a Non-Union Setting: None, the EE may request a coworker as a

witness/rep., but the EE’r does not have to accede, and the EE may be disciplined for refusing to interview without rep.

Union Waivers of Employee Rights to Engage in Protected Activity

o NLRB v. Magnavox Co. of Tenn., 415 U.S. 322 Facts: Union IUE challenged the validity of Company’s rule prohibiting Lit.

Distribution on any of its property where the rule was made pursuant to the CBA. Here the EE’s sought to distribute literature in support of the CB-ing Rep. Board found an § 8 (a) (1) violation following its earlier ruling in Gale Products but the COA denied enforcement finding that the Union had waived the lit. Distribution rights.

Holding: Union cannot contractually waive EE’s rights to distribute literature advocating for the displacement of the current bargaining rep. on non-working premises during non-working times.

Rationale: EE’s have the right recognized in § 7 of the Act to form, join, or assist Labor Org.’s or to refrain from such activities.



The ban on literature distribution may interfere with the exercise of § 7 rights; however, the only issue was whether the union could waive those rights.

o The Union may wave other rights such as the right to strike, BUTo It is difficult to assume that an incumbent union has not self-

interest of its own to serve by perpetuating itself as the bargaining representative

o The place of work is uniquely appropriate for dissemination of views concerning the bargaining representative and th3 various options open to the EE’s

o Banning in-plant solicitation that is in nonworking time might dilute ¶ 7 rights, and violate the policy f the Act in § 1 to protect the exercise by workers of full freedom of association, self-organization and the designation of representatives of their own choosing.

o Moreover a limitation of the right o in-plant distribution of literature to EE’s opposing the union does not give fair balance to § 7 right for EE’s supporting the union.

Powell (Concurring and Dissenting): Agrees that the Union may not waive the in-plant solicitation rights of those disaffected from the union, but disagrees that the Court should reach into the CBA and nullify a bargained for term of the K, thereby creating a windfall for the union and depriving the EE’R of bargained for consideration.

Notes : Restricting the authority of exclusive representative to waive the free association and free expression §7 rights of EE’s supports free and effective collective bargaining by insuring that economically strong EE”rs cannot force the unions to sacrifice at the bargaining table any of the rights upon which the unions’ continued existence as effective bargaining agents may depend.

o Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983) Facts: Union and EE’r had negotiated a no strike or walkout clause in the CBA

and then violated 4 times. All four times the union leadership had been disciplined more severely, and the arbitrators had upheld disparate discipline finding that the union leader’s had an affirmative duty to uphold the no strike provisions. In 1977 the Union EE’s refused to cross another union’s informational picket line, and the EE’r ordered the Union President and vice-president to cross the picket line. Instead they negotiated a settlement b/w the other union and the EE’r. They were suspended for 25 days/ the other EE’s for 10 days. The Board found § 8 (a)(1) and (a)(3) violations and the 3rd Cir. Enforced holding that the only disparate Tx allowed is when the CBA expressly states that the officials have and affirmative duty to prevent woke stoppages

Holding: The union may only waive statutorily protected rights through explicit, clear, and unmistakable

Rationale: Once the Board finds that the EE’r violated § 7 rights, the EEr’ bears the burden of explaining the legitimate business purpose for the violations, then the Board must balance the opposing interests.



The EE’s actions towards the union membership did discriminate on the basis of union membership.

The EE’r’s assertions that there is an implied duty among Union leaders to enforce no strike/work stoppage agreements does not mean that the EE’r may assume that a union official is required to attempt to enforce a no-strike clause by complying with the EE’r’s directions and impose a penalty on the official for declining to comply.

(EE’r also argues that the Union waived the statutory protections against discrimination on the basis of union leadership status in the face of the previous arbitration awards and buy not changing the language of the CBA subsequent to the awards)

The Union may waive economic rights but may not bargain away its members’ economic right, but it may not surrender rights that impair the EE’s choice of their bargaining representative.

The Union may bind its officials to take affirmative steps to end unlawful work stoppages, but any waiver of statutorily protected rights must be “explicitly stated”, clear, and unmistakable.

The prior arbitration agreements were not clear and unmistakable evidence of a duty where arbitration decisions are inconsistent, sporadic, or ambiguous, and

o There were only two prior decisionso And each agreement contained a provision limiting the binding

effect of the Arb. Decisions to the term of the current CBA

Employer Support or Domination of a Labor Organization

NLRA § 8 (a)(2): [It Shall be an Unfair Labor Practice for the Employer —] to dominate or

interfere with the formation or administration of any labor organization or contribute financial or

other support to it: Provided, That . . . an Employer shall not be prohibited from permitting

employees to confer with him during working hours without loss of time or pay.

Electromation Inc., 309 NLRB 990 (1992) — “No good deed goes unpunished”o Facts: EE’r experiencing financial loss made unilateral changes to EE benefits package.

When EE’s became disgruntled EE’r met with them and formed action committees to address issues. EE’r controlled the formation and goals of the action committees. During the meeting process, but before implementation of any proposals the Union (of which the EE’r was unaware) demanded recognition. EE’r withdrew participation in the Action committees and informed EE’s that any further meetings b/w mgmt and EE’s would have to wait until after the election.

o Holding: The EE’r organized action committees were an EE”r dominated/controlled labor organization because:



The EE’r organized action committees were an EE”r dominated/controlled labor organization because:

They fit the statutory definition under § 2(5) where their purpose was to address EE disaffection concerning conditions or employment through the creation of a bilateral process to reach bilateral solutions based on EE-initiated proposals

The EE’r dominated the action committees in their formation and administration and unlawfully supported them

Rationale: Any EE representation committee can meet the statutory definition of labor org. under § 2(5) even without a formal meeting or constitutional structure if:

The EE’s participate,o Here the EE’s participated in the action committees

The Org. exists, at least in part, for the purpose of dealing with EE’rso Here the activities of the committees constituted dealing with an

EE”r These dealings concern “Conditions of work” or other statutory subjects

such as grievances, labor disputes, wages rates of pay, or hours of employment

o The subject matter of that dealing concerned conditions of employment

Further the organization meets the statutory definition if ito Has a as a purpose the representation of EE’s, ando EE’s participate and deal with the conditions of work or other

statutory subjects Here the EE’s acted in a representational capacity

The Employer created the committees, provided material support, organized the committees, managed the committees, and were the impetus for their continued work where, at first the idea was not well received by the EE’s

he EE’r presented the committees as a Hobson’s choice to the EE’s: either accept things as they are or work bilaterally with management to undertake the bilateral exchange of ideas within the framework of the committees.

Antiunion motive is not necessary element of 8 (a)(2) violation Concurrence: EE’r overrode the wishes of the majority of EE’s and established

the committees, also overriding the wishes of the EE’s as to member selection, subject matter of bargaining (no wages), and effectively placed itself on both sided of the bargaining table

What about EE free choice?o NLRB v. Newport News Shipbuilding , 308 U.S. 241 (1939): The SCOTUS held that an

EE’ controlled representation plan violated § 8 (a)(2) even though the EE’ in question overwhelmingly approved of the committees.



8 (a)(2): Remedies: Domination v. Interference and supporto Interference and Support: Recognition withheld until certificationo Domination: Disestablishment of the organization

Crown Cork & Seal Co. and the Delegation of Managerial Authorityo Crown Cork & Seal Co , 334 NLRB 699 (2001)

Facts: Employer set up a sociologically advanced system of management where-by much of the front-line managerial responsibilities were handled by production teams composed of EE’s.

The teams “decide and do’ on a variety of work-place issues, including production, quality, training, attendance, safety, maintenance and discipline short of suspension or discharge.

Teams implement a variety of decisions with no managerial oversight and make other recommendations to a managerial team, including more severe disciplinary recommendations.

Plant manager testified that he has never overruled these decisions, even when he disagreed…in fact its not exactly clear what the plant manager actually did do?!?

Holding: The rationale in General Foods applies here (distinguished in Electormation). The 7 committees are not labor organizations b/c their purpose is to perform essentially managerial functions and thus they do no “deal with” the EE’r within the meaning of § 2(5) of the Act.

Rationale: The production teams performed managerial functions, and those reconditions that they did pass up the chain of command more closely resembled the types of decisions a traditional supervisor might pass along to his superiors. In fact it is exactly this interaction b/w the 2 managerial bodies that distinguishes this interaction from other interactions where abn EE body and managerial body go back and forth to reach a resolution

Proposals to Amend § 8 (a)(2) (TEAM Act): Proposals to allow EE’rs greater latitude in forming EE involvement programs to resolve or deal with issues relating to the conditions of employment.



NLRB DETERMINATION OF BARGAINING AUTHORITY • NLRA § 9 (a): Representatives designated or selected for the purposes of collective bargaining . . . shall be

the exclusive representative of all the EE’s in such unit for the purposes of collective bargaining in

respect o rates of pay, wages, hours of employment, or other conditions of employment: Provided , That

any individual shall have the right to present grievances to their EE’r and to have such grievances

adjusted without the intervention o the bargaining representative

• NLRA § 9 (c): Whenever petition shall have been filed alleging that a substantial number of EE’s wish to be

represented for collective bargaining and that the EE’r declines to recognize their representative, or that

the certified bargaining representative is no longer a representative, or the EE’r alleges that one or more

labor org.’s have claimed recognition, the Board shall investigate and direct an election and shall certify

the results

**Free Choice Act would have eliminated election and certified on cards only

Congress chose to regulate recognition rather than leave it up to the economic power of the unions.

Congress Believed that the government provision of elections would:

1. Minimize conflict among rival organizations

2. Make it more difficult for Employers to impose a company-supported union

3. Make it more difficult for employers to play one group of employees against the other

4. Generally reduce the conflict over recognitional issues

Obtaining Representative Status through the NLRB’s Election Procedure

Can’t form what was classically called a company union.

Why take such an adversarial perspective on relationships b/t mgmt. and workers? 8(a)(2) may address a concern that employer sponsored unions will lull employees to become apathetic to conditions of their employment. The employer really controls both sides of the table. Deceptive twd employees b/c total control resides w/ employer. This concept of deception is in the background of 8(a)(2).

Is there flexibility under § 8(a)(2) to reorganize the workplace without being accused of creating and dominating a company union? Have to look at § 2(5), the definition of a labor org. IF employer gives enough autonomy (no supervisor in the group but the employer delegates mgmt. authority to the team) and makes final decisions that a supervisor would make (employer doesn’t deal w/ any of it), can get around an 8(a)(2) problem.

The problem in more modern work settings is doctrine dealing w/ setting up communications devices (Crown Cork). Discussion on p. 269 (committees set up that do not deal with mgmt.) Given



the differences in the work place today---SHOULD 8(a)(2) BE CHANGED? Rephrase to permit more flexibility? When the statute was enacted, had a lot of company unions (Budd case -classic example); made it more difficult. Tension as to whether 8(a)(2) really applies anymore… want to give workers more voice.

9(b): constraints on appropriate bargaining units. No professionals w/ nonprofessionals. Don’t put guards with non-guards (obviously, want guards to keep plant safe).

o petition for a craft and litigate what constitutes an appropriate bargaining unito cases come up when noncompete clauses are drafted

3 ways to get recognized:o electiono agreemento toxic environment - board has authority to issue a bargaining order w/o employees having an

election.

Concept of employee free choice - Free Choice Act - Passed by House but not Senate. Designed to make much easier to get recognition faster and bargain faster. More voice in workplace and more union representation.

Access: Babcock, Lechmere, Nutone and Avondale, ExcelsiorRegulating Elections: Threats, Factual misrepresentations, Inlamatory, Promisies, interrogations, Poling and SurveillanceBoard Methods of Regulation: ULP and 8(c), Laboratory Conditions (General Shoe)

Appropriate Bargaining Units: § 9 (a) requires “an appropriate bargaining unit”o Defined by job classification rather the particular holders of jobso Unit questions arise in 2 contexts:

Single facility Should all nonsupervisory EE’s be grouped together Should the unit contain only a limited number of job classifications

Single v. multi-facility Should all o the EE’s in a job classification at other of the EE’r’s facilities

within a particular geographic area be grouped togethero Question of Considerable strategic importance

2 phases: election & bargaining Each side wants to maximize its chances of winning the election And should the union win, wants to ensure the strongest hand possible in

negotiations and administration. The Union gets first stab at determining the bargaining unit in its petition for

certification Union has a choice of stipulating to “compromise units” suggested by the

EE’r or holding out for a hearing Research indicates a decreased election success rate of 15% where the union

goes to election with a unit different from the one it originally petitioned But unions also fare much better if elections are held within 2 months of

petition



Statute requires an appropriate bargaining unit NOT the most appropriate bargaining unit

EE’r often seeks to alter the petitioned-for unit to expand the number of included job categories

If the parties cannot agree to a unit, a hearing will be held at regional office ƒDeterminations by regional director are subject to discretionary review by the Board

Appropriate Bargaining Units

o Employer wants bigger bargaining agreement b/c then less likely the union is to win. Takes more time to organize. Is there a shared community of interest?

o NLRB Unit Determinations: Substance and Procedure

American Hospital Ass’n v. NLRB , 899 F.2d 651 (7th Cir. 1990) Facts: Hospital association protested the Board’s use of its rulemaking

authority to recognize only 8 bargaining units in the acute-care hospital setting: Physicians, registered nurses, other professionals, medical technicians, skilled maintenance, clerical workers, guards, and other non-professionals. The Hospital industry objected to any rule requiring the recognition of more than the statutory minimum, 3 units.

Holding: The Board’s use of its rulemaking authority to eliminate discretion as to appropriate bargaining units from the decisional process was itself discretionary and well warranted, reasoned, weighed conflicting arguments, and was entitled to judicial deference

Rationale: The hospital industry objected to any rule what-so-ever, since it would only accept a minimum number of units already mandated in the statute, but the Board was justified in seeking to establish a rule that would produce certainty and predictability in the face of its failed attempt to use common law to arrive at a loose standard

o Hospitals want fewer units to drive down bargaining costs and give themselves a greater bargaining advantage

o Unions want more units that are homogenous because it makes collective bargaining easier due to commonality of the interests involved.

o The rule itself does not cover the entire health-care industry, and leaves and open-ended exception for cases in which a party can demonstrate exceptional circumstances.

o Board considered the possible alternatives, decided against them, and gave plausible reasons for its choice.

American Hospital Ass’n v. NLRB , 499 U.S. 606 (1991) Facts: The hospital industry sought review claiming that “in each case” from §

9(b) meant that the Board had to make individualized determinations of appropriate bargaining units and could not designate them in advance through its rule making powers.

Holding: The Board is due substantial deference in the use of its rulemaking authority to develop standards for the exercise of its jurisdiction and where it



develops a rule based on its expertise and extensive consideration to Congress’ concerns and the policies of the Act.

Rationale: The Phrase “in each case” does not mean that the Act requires a case-by-case determination of appropriate bargaining units, but that whenever there is a disagreement the Board shall resolve the dispute (“whenever necessary”).

o The Board is certainly allowed to develop rules to guide its discretion either through the process of case-by-case adj. or the exercise of its rulemaking authority.

o Cannot find a basis for petitioner’s contention that the rule delineating appropriate bargaining unit for an entire industry is qualitatively differing form prior rules establishing presumption that certain units would be considered appropriate in certain circumstances

Rule here is not irrebuttable and contains and exception Must still apply the rule in case-by case basis

o Congress concerned about possible disruption of healthcare and injury to the public when it passed the bill extending NLRA coverage to private health care institutions, but rejected the Taft proposal of limiting health care bargaining units to 5.

o The admonition by Congress to the Board to prevent proliferation is not law and the petitioner cannot argue that 8 bargaining units represents a proliferation

o The rule is neither arbitrary nor capricious because the Board relied on 13 years of experience in developing the rule, gave extensive consideration to the issue of the number and kind of bargaining units, and created an exception where extraordinary circumstances would make application of the rule arbitrary by ignoring substantial differences a given acute-care institution and the others upon which the rule was developed.

Friendly Ice Cream Corp. v. NLRB , 705 F.2d 570 (1st Cir. 1983) Facts: Union sought and won recognition of single-store bargaining unit

despite attempts by store chain to have the Regional director certify a larger unit (all stores in the U.S. was initially proposed). EE’r refused to bargain and appealed a bargaining order again arguing against the appropriateness of the CBU.

Holding: The Board’s determination that the EE’s at the restaurant constituted an appropriate bargaining unit was within its discretion and supported by substantial evidence in the record.

Rationale: The Board is not required to select the most appropriate unit, only an appropriate unit and the BOP is on the EE’r to show that the Board’s unit is clearly inappropriate. While the Board should not ignore the EE’r’s interest in maintain enterprise-wide labor relations, its primary focus should be the EE freedom of choice in the exercise of their rights under the act and EE freedom can tip the balance in determining which of 2 equally appropriate units should be preferred.

o Critical consideration is whether the EE’s comprising the unit share a community of interest and the Board should consider several factors



Geographic proximity of the stores in relation to each other Level of EE interchange b/w the various stores Degree of autonomy exercised by store mgr’s Extent of union organization History of collective bargaining desires of the affected EE’s EE’r’s organizational framework Similarity in skills, EE benefits, wages and hours of work

o Board is not bound to follow any rigid rule and no factor is determinative

o Board has developed administrative policies to guide it in making determinations including the presumption that single store units are appropriate

o Control of the local store Mgr of those areas most directly affecting the restaurant’s EE’s is one of the most weighty factors for determining the appropriateness of the single store bargaining unit.

o Here he was in fact autonomouso The Board’s Policy on Unit Determinations:

First the Board examines the petitioned for unit, if that unit is appropriate then the inquiry ends

The Board may then look to the alternative units proposed by the parties Then the Board may select a different unit, usually selecting the smallest appropriate

unit encompassing the petitioned for EE classificationo Proposed Rulemaking: Appropriateness of Single Location Bargaining Units

The Board proposed a rule to govern single-locations units in all industries except public utilities, construction and ocean-going maritime firms

15+ EE’s at that location No other EE’r location within one mile At least one § 2 (11) supervisor at that location

Rule really didn’t do anything different than the adj’s had done, but it was hoped it would cut down litigation and conserve Board resources, as well as promote stipulated election agreements

Republican Congress killed it…kind of since it really didn’t do much to change the outcomes of cases

Judicial Review of Unit Determinations and Other Representational Issueso Leedom v. Kyne , 358 U.S. 184 (1958) — § 9(b)(1) = narrow COA for violation of the Act

Facts: Voluntary labor org (the Association) representing 233 professional EE’s petitioned for certification from the NLRB and intervening competing labor org. sough to have he CBU expanded to cover 5 other categories. The Board refused but said that 9 EE’s from the 5 proposed categories should be included in the professional CBU because of community of interest. The Association opposed, the CBU, but one the election anyways. Then petitioned D. Ct. to set aside the Board’s CBU determination as overstepping its authority under §9(b)(1) that requires Professionals consent for inclusion on non-pro’s in it s bargaining unit.

Holding: The Board acted in excess of its delegated powers, by combining professional and nonprofessionals in a CBU without majority consent form the professionals, and the Federal courts had review power because the inference is



strong that Congress intended the statutory provisions governing general Jd. to control where the absence of Jd. would obliterate a statutory right

o Narrow scope: Don’t want to encourage collateral attacks in D.Ct. If Board has acted in excess of delegated powers, contrary to express provision of the Act. Very hard to make out (can probably get if you put guards in a unit b/c that’s pretty specific).

o Employer’s “Technical § 8(a)(5) Cases”: Employers can always gain judicial review of representational issues merely by refusing to bargain and converting the case into a ULP proceeding.

Forces the union to file a charge under 8(a)(5) w/ the Board. Board will not revisit rep issue; will affirm earlier determination, find the employer

guilty of a refusal to bargain, and order it to bargain. The employer sits back and waits for the Board to petition for enforcement under

§ 10(e), or may file its own petition in the COA under § 10(f). The court then reviews the underlying rep issue when deciding whether to uphold the

Board’s finding of a 8(a)(5) violation. Delays bargaining for about a year and a half to three years. Will the employees who

orig. voted for the Union still really care about it. If employer bargains to impasse w/ the Union (employer may do that if thinks over time that support over time will weaken b/c of delay), only real option is to give in to whatever employer wants or STRIKE (if strike, then employer may permanently replace the worker).

o Unions have no comparable means of converting a rep issue into an ULP case to get judicial review. Leedom is all that is available to them. But delays would take longer than just to wait a year and hold a new election. Run to court and present legal theory that board violated authority (collateral attack on Board’s authority) to make a determination of authority.

Should the statute be amended? No sign it will be amended. Understand the Union is being constrained in challenge, but employer has method of refusing to bargain to get at it. Just don’t find cases where Union is unhappy. Skews court doctrine in one direction.

o Free Choice Act was supposed to address these issues re: private sector unions. Delay, combined w/ anti-union campaign, even if employer loses then engage in add’l delay before bargaining and hope that Union support will be weaker and weaker. Act would have required bargaining within 10 days of election. Sent to Mediator w/in 90 days of Bargaining, then to an arbitrator within 30 days.

o Special Issues Arising in Unit Determinations Craft vs. Industrial Units: Orig. standard separate identity of craft groups, etc.,

discretionary factors applied. Issue has declined significantly w/ AFL-CIO agreement. Mallinckrodt (NLRB 1966): Craft severance determinations thus depended on multi-factor analysis:

Whether proposed unit consists of a distinct group of skilled workers performing the functions of their craft on a nonrepetitive basis, or of employees constituting a functionally distinct dept., working in trades/occupations where a tradition of separate rep. exists.

The history of CB of the employees and the plant involved, and at other plants of the employer, w/ emphasis on whether existing patterns of CB are



productive of stability, and whether that stability will be unduly disrupted by a change.

Extent to which employees in the proposed unit have est’d and maintained their sep. ID during the pd of inclusion in a broader unit, and the extent of their participation in the rep. afforded them to obtain sep. rep.

History/pattern of CB in the industry. Degree of integration of the employer’s production processes, incl. the extent

to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.

Qualifications of the union trying to carve out a separate unit, incl. experience in representing employees like those involved in the severance action.

“Contingent” Workers: Def: employees of temporary agencies who work for long pds of time at a single user company. Complexities arise when unions attempt to org. “contingent” workers. Consent requirement makes it hard to organize these types of workers.

Accretion - Restrictive criteria b/c a finding of accretion precludes the employees at issue from expressing preferences in a secret-ballot election. TEST = accretion only when the add’l employees have little or no separate group identity and when the add’l employees share an overwhelming comm’y of interest w/ the preexisting unit to which they are accreted. May be barred if the group had been in existence at the time of recognition r cert., yet was not covered in the ensuing K OR subsequently coming into existence had not been part of the larger unit to which their accretion is sought.

Multiemployer Bargaining Units - Much more complicated than accretion of single employer. Judicial assent for formation of multiemployer units. Requires the consent of both of each employer and of the union rep. The Board then does not conduct initial cert. elections. The union must est. its majority status of the employees of each employer member of the unit.

o Grocery stores: If in a region where unions are successful, most grocery store employees will be organized by unions. Q becomes for employers - do they want to bargain separately or together. If separate - will the Union try to drive up salaries in one store and if union won’t go along and sets up strike (business goes down, then goes to other stores not being struck). Theory goes that stores will be better off. Good for unions b/c cuts out the competitive marketplace over our improved working conditions.

o Only way you get multibargaining is through consensual agreements after parties have est’d bargaining relationships and will bargain in this context. THEN Q becomes how one employer can get out of it! Can get out of it but it’s not all that easy.

o M.B. Sturgis, Inc. and Oakwood Care Center When supplier employer supplies employees to perform services for a user employer,

the Board may treat the supplier and user as “joint employers” that may both have obligations twd the same employees.

M.B. Sturgis (NLRB 2000): held that employees who are SOLELY employed by the USER employer doesn’t require either employer’s consent to the unit, but rather



applies trad. comm’y of interest principles to determine whether the requested unit was appropriate under 9(b). Each employer is obligated to bargain w/ the union over the terms that it controls.

Oakwood Care Center (NLRB 2004): Overruled Sturgis to go back to the consent rule. Said the text of the act (employer unit being the broadest unit) reflects that Congress has not authorized the Board to direct elections in units encompassing the employees of more than one employer, but employers can consent. Fragmenting undermines effective bargaining b/c restricts supplier’s options in bargaining. Effective representations means employees be grouped by common interests AND by common employer. The nonconsensual mixing of employees of different employers vitiates that basic principle.

Suppliers usually in India nowadays.o Wrap-up of Material on bargaining unit. Key things: Procedures, Court Review of

Determinations, Understand Tensions b/t Key Areas Where you Run into Tensions (Single store vs. multiple stores, craft vs. plant/industry, specifics of statutes and way they impact the decisions), Considerations for Bargaining Units.

Regulation of the Conduct of Elections

Access to the Employee Electorate

o Access: Babcock, Lechmere, Nutone and Avondale, Excelsior

o Regulating: Elections Threats - Learned in Darlington, can close shop. Can you threaten to close? No ULP

unless threat/promise but what about predictions? Factual Misrepresentation Inflammatory Promises Interrogations, Polling, and Surveillance

o Board Methods of Regulating Elections: Order to cease and desist ULP - § 8(c) (look at statute carefully) and order to cease and desist and order new

election. Final order so subject to judicial review. Laboratory Conditions - General Shoe - refusal to certify election (no real free

choice). Get out from under § 8(c) (employer speech is not evidence of ULP—only of a nature that negated free choice of workers) so no judicial review, not subject to appeal. Would have second election.

o Underlying Issues: Why are we doing this? Do we really think employers engage in threats that the employees can’t discount it as being rhetoric? Why don’t we trust workers to be able to evaluate what the Union/Employer is saying and make their decision? Why do we think employees need this protection AND is it effective? Are we infringing free speech?



§ 8(c): The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

o Nutone and Avondale (1958) Facts :

Nutone - Supervisors interrogated employees and solicited reports re: the organizational activities of other employees. Several employees were discharged. Company distributed antiunion literature then after made an anti-solicitation rule (cannot post signs or distribute literature on company property or solicit or campaign on company time) applying to all employees (whether for or against the union). Union lost representational election.

Avondale - Individual employees solicited union membership and violated a rule against solicitation. Mgmt interrogated employees and threatened to close mill and take benefits away. 3 employees laid off.

Issue : If the employer engages in antiunion solicitation, that if engaged in by employees would constitute a violation of a no-soliciation rule, does this necessarily violate the act (regardless of the way the controversy arose or whether the employer’s conduct really did create an imbalance)?

Holding : There must be some basis, in the actualities of industrial relations, for a finding that the enforcement of a valid no-solicitation rule by an employer who is at the same time engaging in antiunion solicitation constitutes an ULP. If opportunities through other means of reaching employees are at least as great as the employer’s ability to promote union views, there is no basis for invalidating otherwise valid rules.

Look to the location of the plant and of the facilities and resources available to the U, the opportunities for effectively reaching the employees w/ a pro-union message, etc.

Reasoning : Coercive antiunion solicitation runs afoul of the Act (§ 8(c) “employer free

speech” provision) and is a ULP. The Union never requested the employer to make an exception. The Court

wouldn’t assume that the request would be rejected as a matter of law. (Maybe a board could conclude as a matter of industrial experience.) “Certainly the employer is not obliged voluntarily and w/o any request to offer the use of his facilities and the time of his employees for prounion solicitation.”

Labor orgs are not protected in the use of every possible means of reaching the minds of workers, nor are they entitled to use a medium of communication simply b/c the employer is using it.

In Nutone the Board’s findings were upheld and the COA’s finding of discriminatory enforcement of the non-solicitation rule was overturned—the 5th’s rejection of the Board’s findings of discrimination and the discharges in Avondale were affirmed, but the Threats and interrogation ULP’s were upheld (not even contested on appeal)

This standard actually gives the Board a lot of flexibility in deciding, in an exercise of its industrial expertise, that such employer conduct significantly diminishes the ability of unions to communicate w/ employees.



o Captive Audience Speeches and Broad, Privileged No-Solicitation Rules: An employer may assemble and address a captive audience of employees, but violates the Act by denying a union’s request to reply to a similar assembly. Bonwit. BUT this was abandoned in Livingston Shirt, requiring an employer to grant such requests to reply only in “special circumstances” when an employer maintains either an unlawful broad no-solicitation rule or a privileged no-solicitation rule.

o Employer Control of Employee Audience: Employees have no statutorily protected right to leave a mtg which the employees were req. by mgmt. to attend on company time and property to listen to mgmt.’s noncoercive anti-union speech designed to influence the outcome of a union election. Litton Sys., Inc. Employers can prohibit Qs during captive-audience mtgs and can exclude employees who are union supporters.

o The Board’s General Shoe Doctrine and the Peerless Plywood Rule. General Shoe: Board asserts authority to overturn elections where “laboratory

conditions” for eliciting employee preferences have been impaired even when the conduct at issue does not rise to the level of a ULP violative of §§ 8 or 8(c).

Peerless Plywood: Board sets aside elections when an employer or a union has delivered a speech “on company time to massed assemblies of employees w/i 24 hours before the sched. election. Interferes w/ “sober and thoughtful choice” and undue adv. to party w/ last word. ONLY applies to speeches w/i 24 hrs. Can individually address voters, speak to them in voluntary setting, on their own time.

o Access Remedies for Serious ULPs: Where an employer’s response to an organizing effort is unlawful/serious in nature, the Board has ordered certain forms of union access (bulletin boards, speech time) to the employer’s premises as a remedial measure.

o Excelsior Underwear (1966) - employer must provide names/addresses of employees Facts : Employers failed to supply the union w/ the employees’

names/addresses and unions lost elections. Issue : Whether an employer’s refusal to provide a union w/

names/addresses of employees eligible to vote in a representation election should be grounds on which to set that election aside.

Holding : ADJUDICATED RULE = Within seven days after the Regional Director has approved a consent-election agreement entered into by the parties, or after the Regional Director or the Board has directed an election, the employer must file w/ the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The RD in turn, shall make this info. available to all parties in the case.

What is the REMEDY? And would it be sufficient years later? Reasoning : POLICY = want employees to make a free and reasoned choice.

Employees need an effective opportunity to hear the arguments concerning representation for a better position to make a fully informed and rsbl choice.

Balancing Interests - Any employer interest in secrecy is outweighed by the substantial public interest in favor of disclosure.



o No infringement on employee rights. An employee exercises his rights by voting for or against representation.

o No danger of harassment on employees. Mere possibility is insufficient basis for denying the opportunity altogether.

Narrows Babcock and Nutone: The existence of alternative channels of communication is relevant only when the opportunity to communicate made available by the Board would interfere w/ a SIGNIFICANT employer interest. HERE, employer has no significant interest in the secrecy of employee names and addresses.

Adjudicative Rulemaking: Didn’t follow APA. Made it prospective. Didn’t even apply to case before them! Wyman-Gorman (1969) says yes, this was rulemaking, but still enforces the subpoena as a product of valid adj.

Example of the Board’s authority to prescribe fair election conditions under General Shoe.

Regulation of the Conduct of the Election: Permissibility of the Content of Communication with EE’s

o LRB v. Golub Corp. (2d Cir. 1967) - threatening speech Facts : Employer sent letters, invited employees to dinner to

talk over the unionization, and made a speech arguing against the union.

Narrow Issue : What constitutes a threat under § 8(c)’s exception?

Holding : Employers can prophesize that unionization will decrease or wholly eliminate work opportunities, increase workloads, or create greater rigidity in personnel relationships. Such predictions come w/i the protection of § 8(c) when employer would take steps solely from economic necessity and w/ regret.

Reasoning : Threat of reprisal means a threat of retaliation and this in turn means not a

prediction that adverse consequences will develop but a threat that they will be deliberately inflicted in return for an injury.

Factual predictions are OK. Speech made it clear that he would not aim to w/draw special privileges, etc.

Dissent : Context of the language makes it a threat from the perspective of the employees. Such a matter should be left to the Board’s expertise.

o Determining Likely Impact of Employer Speech = OBJECTIVE TEST: The Board does not concern itself w/ the actual impact of speech or other conduct on the specific employees involved. Rather, determines, based on its understanding of “industrial reality,” whether the conduct was rsbly likely to have interfered w/, restrained, or coerced them in the exercise of their § 7 rights.

o § 8(c) bars any evidentiary use of protected speech in a ULP proceeding. E.g., for proof of antiunion animus.


OK!

Not OK!

Yes


o NLRB v. Gissel Packing Co. (1969) - threatening speech Facts : At talks, pres. said (1) strikes before almost put company out of business, (2)

financial problems would close the plant, (3) old employees couldn’t find new jobs, and (4) other companies in the area went out of business after unionization. Also sent letter and distributed pamphlets. Made a personal appeal the day before the election. Board found that under the TOTC’s the EE’r’s speech had violated § 8(a)(1)

Test : Assessment of the precise scope of the EEr’s expression must be made in the context of its labor relations setting. An employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by §§ 8(a)(1) and 8(c).

Must take into account economic dependence of the employees on their employers, and the necessary tendency of the former, b/c of that relationship, to pick up intended implications of the employees that might be more readily dismissed by a more disinterested ear.

So long as the communications do not contain a “threat of reprisal or force or promise of benefit” mgmt. may make a prediction as to the effects of unionization. BUT, the prediction must be carefully phrased on the basis of objective fact. UNLESS decision already made.

o MUST be capable of proof. HERE , the Board could rsbly concluded that the intended and understood import of

the message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of economic realities.

Employer had no support for is basic assumption that the U would strike. Employees were particularly sensitive to rumors of plant closings and would

take them as threats. — Isn’t this a subjective standard? Not Objective? Employer can avoid coercive speech ULP by avoiding conscious overstatements

he has reason to believe will mislead employees. Court did say that § 8(c) is an implementation of the 1dt Amendment

o The Gissel Test: Show predictions concerning the effects of unionization of the company by (1) careful phrasing on the basis of objective fact (2) to convey an employer’s belief (3) as to demonstrably probable consequences (4) that are beyond the employer’s control.

Low profit margin, in the area where the plant is located that the Union has org’d other companies in a similar competitive product market and the Union has been demanding similar wages in terms of conditions of employment at each of those companies. Union would be interested in protecting deal it obtained for other workers and don’t want to undercut that plant. This would be objective prediction.

Distinction b/t threat and prediction is “wishy-washy” to Lynch.

o Crown Cork & Seal (D.C. Cir. 1994): Example of a prediction. Employer did not commit ULP by predicting that the union would insist on terms similar to those found in its 12-plant master agreement w/ the employer and that such terms would imperil two extremely cost-sensitive projects that were necessary to maintain current employment levels.

o Determination seems very fact based and dependent on the evidence that the EE’r is able to or has produced to support his predictions.



o A Drafting Exercise (p. 331): Employer runs a risk b/c never know whether the alleged ULP would turn out to be one or not. If no ULP the workers claim the employer committed then they can be permanently replaced. Rsbly accurate that economic strikers can be permanently replaced.

“If we allowed the union to increase your benefits, we would have to raise or prices and this would also cost us business and require cutbacks.” More problematic b/c depends on financials. Unclear whether this is prediction or threat.

“We won’t mess around. If we determine that we can’t operate w/o incurring higher labor costs, we will completely shut the plant down. There is no way that the union can help you.” This is probably a threat! Phrase this some other way.

Two tracks for challenging campaign tactics

(1) File “objections” under Board’s representational procedure [orders new election]. General Shoe.

Objections must be filed w/i 7 days of the election. Must be based on conduct occurring during the “critical period” (the pd

between the filing of the petition and the election). Prepetition conduct may be considered if it adds “meaning and dimension” to related post-petition conduct.

(2) File a charge under § 8(a)(1) pursuant to ULP procedure [and can get order to cease and desist and post notice stating the employer was found guilty].

Can reach pre-petition conduct. Must be filed w/ 6 mo. of the alleged ULP.

o General Shoe Corp. (NLRB 1948) - ensuring laboratory conditions for elections Facts : Supervisors visited the individual employees at their

homes after working hours to try and get them not to vote for the Union. The day before the election president summoned the employees in groups of 20-25 to his office (locus of final authority in the plant) to read them an antiunion speech.

Holding : Conduct that creates an atmosphere, which renders improbable a free choice, will sometimes warrant invalidating an election (even though the conduct may not constitute a ULP).

HERE, the conduct created an atmosphere calculated to prevent a free and untrammeled choice by the employees.

Reasoning : Looking at the method used by the president and the supervisors, they went so

far beyond the presently accepted custom of campaigns that the Board is not justified in assuming the election results represented the employees’ own true wishes.

It’s the Board’s job to provide a LABORATORY in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.



o Caron Int’l (NLRB 1979): The Board rejected a per se approach (ULP always sets aside election). Misconduct warrants setting the election aside requires an assessment of the # of violations, their severity, the extent of dissemination, the size of the unit, and “other relevant factors.”

Factual Misrepresentations

o Shopping Kart Standard: The Board does not probe into the truth or falsity of campaign propaganda, except where deceptive practices “improperly involve the Board and its processes, or the use of forged documents render the voters unable to recognize the propaganda for what it is.”

o Midland Nat’l Life Ins. (NLRB 1982) Facts : The day before an election, the Employer distributed campaign literature to its

employees w/ their paychecks. Subject of the document was another union-represented plant, containing numerous misrepresentations of fact designed to portray the union as staffed by highly paid officials and employees who were ineffectual as bargaining reps and as a consequence employees would suffer a loss of job security and compensation.

Holding : The Board will not probe into the truth/falsity of the parties’ campaign statements, and will not set elections aside on the basis of misleading campaign statements. The Board will intervene in cases where a party has used forged documents which render the voters unable to recognize the propaganda for what it is.

Reasoning : Elections are set aside, not on the basis of the substance of the representation,

but the deceptive manner in which it was made. As long as the campaign material is what it purports to be (i.e., propaganda) the employees can evaluate it themselves. Shopping Kart std gives definite results which are predictable and speedy.

The rule furthers the goal of consistent and equitable adjudications by applying uniformly to the objections of both unions and employers. Not too protective.

Dissent : Puzzled by the distinction b/t forgery and other kinds of fraud. Today’s employees may be better educated, but “we do not honor them by abandoning them utterly to the mercies of unscrupulous campaigners.”

Note : Tension b/w threats and propaganda: In El Dorado Tool the “wall of shame case” the EE’r included their own plant name on a tombstone where as in Midland they only referenced other EE’rs. Still, under threat doctrine the Board is protective but not under Fraud and misrepresentation?

o Note: Are Employees Influenced by Campaign Conduct?: A Review of the Empirical

Literature: Getman study shows unions would have won 46% to 47% of the 31 elections if the employer had campaigned entirely cleanly (and 53% to 75% if there had been no campaign at all), but only 3% to 10% if every employer had campaigned with the highest intensity and greatest illegality identified in the example.

An employer may commit a ULP but the remedies are not severe. The U will give up eventually.



Employees come in pre-disposed as to whether they want a union or not. The campaigns do not influence the workers all that much. (342)

Racial and Religiously Based Speech

o Honeyville Grain, Inc. v. NLRB (10th Cir. 2006) - conduct, religious/racial speeches. Facts : Union agents stated that Honeyville is run by

Mormons and give money to the Mormon church, that companies have tax incentive to give profits to churches, which should be shared w/ workers instead. Only made in one meeting (out of about 10).

Test : Sewell (NLRB 1982) - Board set aside an election where employers (over 4 months) distributed anti-African-American propaganda materials focused on the union’s support for the civil rights movement. The burden is on the challenging to demonstrate that the religious/racial remarks were inflammatory or formed the core of the campaign. Once satisfied, the burden shifts to the party making the remarks to prove that such comments were truthful and germane. The court will set aside the decision if the uninhibited desires of the employees cannot be determined in an election.

Inflammatory = statements tending to excite to excessive or uncontrollable action or feeling.

Holding : The Union’s conduct here did not so lower the standards of campaigning that the uninhibited desires of the employees could not be determined in an election. Even if the evidence were fully credited, Honeywell failed to est. that the Union’s conduct amounted to a “sustained inflammatory appeal” or a “systematic attempt to inject religious issues into the campaign.” Religion was not the core theme of the campaign.

If you get into racial statements, if it’s a consistent, inflammatory act, then the Board will set aside the election and order a new one. BUT no ULP.

Promises and Grants of Benefits

o NLRB v. Exchange Parts Co. (1964) - conduct, promises/grants of benefits. Facts : Employer sent employees a letter re: the “empty promises of

the Union” and “the fact that it is the Company that puts things in your envelope.” After mentioning a number of benefits, the letter said: “The Union can’t put any of those things in your envelope---only the Company can do that.” A detailed statement of the benefits granted by the company since 1949 and an estimate of the monetary value of those benefits accompanied the letter.

Not a conditional bribe; didn’t depend on the outcome of the union election. Issue : Whether § 8(a)(1) prohibits conferral of economic benefits on his employees,

in isolation, where the employer’s purpose is to affect the outcome of an election. What’s really wrong w/ a promise? Nothing taken away. Should it be treated

as a ULP? Why can’t the employees benefit from the improvement in their wages and still understand that the reason the employer is doing this is the Union? So little confidence in the worker that the worker can’t evaluate and still make a free choice?



Holding : With antiunion motive established, an employer may not confer benefits without violating § 8(a)(1).

Reasoning : The danger inherent in well-timed increases in

benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if not obliged.

Insulating the employees from calculated good will like this doesn’t really deprive employees from anything that has lasting value.

Underlying concern? Could say this case is premised at least in part on the notion that it is unfair to allow employers to “bribe” employees during the campaign when the union, which does not control wages and working conditions, does not have the same tactic available to it.

o The Board and the courts consistently hold that an employer’s offer of a benefit to employees conditioned on their opposition to or rejection of a union should be treated the same as threats against their support of a union.

THE TESTPresumption - Board’s practice is to infer that a grant of benefits that coincides w/ employee union activity was improperly motivated and interfered w/ the employees’ § 7 rights. Burden - Employer must establish “that the timing of the action was governed by factors other than the pendency of the election. The employer can meet this burden by showing, e.g., that the grant of benefits

was the product of a previously est’d company policy, and that it did not deviate from that policy following the onset of the union campaign.

o NLRB v. Savair Mfg. Co. (1973) - Exchange Parts rule applies to Unions conferring benefits Facts : “Recognition slips” circulated prior to election. An employee who signed the

slip before the election became a member of the U and would not have to pay an initiation fee/fine if the U was voted in. The U won the election 22 to 20.

COA denied enforcement of the Board’s bargaining order. S.Ct. affirms. Issue : Waiver of fees = increase in benefit? Holding : The influence of these slips may have had a decisive impact in this case

where the change of one vote would have changed the result [coercive], thus the U committed a ULP under Exchange Parts.

Reasoning :s Tool the U could use to their advantage b/c employees respect their

coworkers’ views on unionization issues. By permitting the U to offer to waive an initiation fee for those employees

signing a recognition slip, the Board allows the union to buy endorsements and paint a false portrait of employee support during election campaigns.

Dissent : Well-est’d that an “unconditional” offer to waive initiation fees, where the

waiver offer is left open for some pd of time after the election, is not coercive



and does not constitute a ULP. There is no evidence that the fee was normally imposed for the sole purpose of removing it during a labor campaign.

Distinguishable from Exchange Parts b/c (1) her the benefit is only contingent and small, and (2) the fist is missing b/c made by union rather than employer (source of benefits) (the U cannot make the same threat by offering a benefit which it would take away if it lost the election).

Note: This was through an 8(a)(5) ULP charge/collateral attack of the EE’r.

Interrogation, Polling, and Surveillance

o Fine line b/t polling and interrogating. If you do it in the office of the supervisor and the locus of authority and do it more than once, then you have interfered w/ a free election.

o Always advise clients that they can talk to the workers about why a Union is a bad idea from the perspective of mgmt. BUT different thing to have them in locus of authority and ask them how they feel about union.

o Overview: Permissible to recognize card majority of union, but can’t FIND OUT in this way.

Must follow criteria for polling (make clear that no adverse impact… best off if have neutral T do the polling for you).

Surveillance: Can’t take photographs of who’s on picket line, etc. Can be ULP or at least interference to cause election to be set aside.g

o Timsco Inc. v. NLRB (D.C. Cir. 1987) Facts : GM and son of president asked a maintenance employee and asked what was

up w/ unionizing and said “You know, who’s ever behind this organizing is going to screw up a lot of jobs for a lot of people.” Later employee came to GM’s office for LOA and GM and asked “in confidence” why employees wanted a union. Also approached employee in his work area and asked what the employees wanted. Another exchange about whether the U would challenge the vote of another employee and asked about his vote. Next the pres. asked the employee if he was in the union and stated he didn’t think the U was a good idea. Another employee involved w/ company pres. asking about the U. Small workplace. Resulted in a tie-vote secret ballot.

Bourne Factors of Coercive Questioning : The background, i.e., is there a history of

employer hostility and discrimination? The nature of the information sought. The identity of the questioner, i.e., how high

was he in the company hierarchy (can he hire and fire)?

Place and method of interrogation (locus of authority)?

Truthfulness of the reply. Holding : The Board could rsbly conclude here that the questions were motivated by

the improper purpose to elicit specific info. concerning union strategy so that the



Company could better plan its own antiunion strategy. This was enough to disrupt laboratory conditions so as to require a rerun election.

o Systematic Polling of Employees: The Struksnes Safeguards. Absent unusual circumstances, polling of employees by an employer will violate § 8(a)(1) UNLESS: (1) the purpose of the poll is to determine the truth of a union’s claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in ULPs or otherwise created a coercive atmosphere.

o Surveillance or Creating Impression of Surveillance ALWAYS unlawful. An employer’s surveillance of its employees’ union activities is unlawful REGARDLESS of whether the employees are aware of the surveillance. Creating the impression of surveillance also violates the Act.

Also cannot photograph or videotape protected activities w/o a showing of proper justification (coercive tendencies thus violates § 8(a)(1)), e.g., employer has a rbsl basis for anticipating picketline misconduct or where documenting unlawful secondary activity.

UNION photographing or videotaping of employees’ § 7 activities, absent legitimate explanation, is objectionable conduct.

Advising clients on avoiding discipline in elections/regulation of campaigns:o Don’t have to stay absolutely neutral. To protect yourself in the event you’ll

think you’ll win anyway, then stand neutral. Don’t forge a document (misrepresentations cases). Don’t misrepresent as to the procedures of the Board itself and how the

Board operates. (Otherwise, won’t assess the truth/falsity---too many things said. But the Board goes back and forth on this Q.)

o Can convey anti-union message as long as couched in prediction, not threat, and not making any promises.

o Don’t interrogate the workers. Don’t ask them any Qs about whether they’ll vote for the union.

NLRB-Compelled Recognition Without an Election

More Fundamental Q: Whether an employer should have to recognize a union when the union presents cards signed for over 50% of the workers. Free Choice 2007 was going to require employers to recognize the union when they had over 60%. Need a statute to have this b/c of S.Ct. cases.

o Can refuse so long as you do not commit simultaneous ULPs in the process.

o Gissel and Linden. Must determine whether those two decisions cut for the discretion of the Board to ever go back to the Joy Silk doctrine. If they can go back, then



they can achieve what some of the 2007 statute was trying to achieve (employers would have to recognize card majority unless good faith doubt and demonstrate basis for that doubt). Increases potential for unions to succeed more quickly b/c don’t have to go through election campaign.

o How much do S.Ct. cases determine/dictate that this is the valid interpretation of the statute and this must be what the Board does in the future?

NLRB v. Gissel Packing Co. (1969) - the Gissel bargaining order—did Taft-Hartley remove power to order bargaining w/o election as a remedy of ULP’s

o Facts : The U waged an organization campaign, obtained authorization cards from a majority of employees in the appropriate bargaining unit (w/o any coercion), and then, on the basis of the cards, demanded recognition by the employer. All 3 employers refused to bargain on the ground that authorization cards were inherently unreliable indicators of employee desires; and they either embarked on, or continued, vigorous antiunion campaigns that gave rise to numerous ULP charges.

Board found that refusal to bargain violated § 8(a)(5). Sounds like Joy Silk but what Board had been doing was not a Q of whether good faith doubt, but if you commit ULP that are serious enough then it inhibits free choice, (laboratory conditions) then its an 8(a)(5) violation for refusing card majority.

How do you distinguish b/t the three categories of cases created by this opinion? How does Linden impact this?

COA said refusal to bargain did not violate 8a5 and refused to enforce the Board’s order directing the employers to bargain on the basis of Taft-Hartley, which enabled the Board to certify by secret ballot elections under §9 (c), but withdrew bargaining duty on the basis of cards, in the absence of NLRB cert., unless the employer knows independently of the cards and there is in fact no representation dispute.

o Holdings : Board Authority: The Board has authority to issue such an order on a lesser showing

of employer misconduct, where there is also a showing that at one point the union had a majority.

Remedy: In its discretion, the Board can issue a bargaining order. Consider the extensiveness of an employer’s unfair practices in terms of their

past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects by the use of trad. remedies is slight and that employee sentiment once expressed through cards would be better protected by a bargaining order, then they should issue one.

o Reasoning : Joy Silk - an employer could lawfully refuse to bargain w/ a union claiming

representative status through possession of authorization cards only if he had “good faith doubt” as to the U’s majority status. Under Joy Silk, an employer could refuse a bargaining demand and seek an election instead “w/o a valid ground t/f.”

Aaron Bros. - A bargaining order would issue if an employer’s “course of conduct” gave indications as to the employer’s bad faith —e.g. reneging n an agreement to bargain upon verification of cards by 3d party

Board says an employer can insist to election regardless of subjective motivation so long as not guilty of misconduct. Can demand election w/ no



comment. Can’t refuse to bargain if (1) knew through Strunksnes poll the U had majority, and (2) can’t refuse initially b/c of appropriateness of the unit and then later claim he doubts union strength.

Board authority for recognition other than election – Unions not limited to elections by the Act or by Taft-Hartley

§ 9(a) refers to reps as the one “designated or selected” by a majority of the employees. Doesn’t specify precisely how that rep is to be chosen; just needs “convincing evidence of majority support” (here by possession of cards signed by a majority).

An employer can test his doubts as to the majority in a secret ballot, unless he engages in “contemporaneous ULPs likely to destroy the U’s majority and seriously impede the election.”

Remedy for a § 8(a)(5) refusal to bargain - Cease-and-desist (10(j) injunctions) as only remedy would reward the

employer and allow him to profit from his refusal to bargain. Only way to effectuate employee rights is to reestablish the conditions as they

existed before the employer’s unlawful campaign. The Court expresses a resorative purpose to the order: not all ULP’s will result in

Bargaining orders, rather, the EE’r’s conduct must be such that it undermined the election process and that likelihood of a fair election expressing the true desires of the EE’s is now slim — who has to show this?

Framework:o “Gissel I” case - “outrageous” and “pervasive” ULPs (must the U have majority of cards???

Not clear whether Board has authority when non-majority). Hallmark violations thought to be particularly coercive and have lasting effect are

actual/threatened plant closure, other threats of job loss, and § 8(a)(3) discharges. In GC brief. Really should depend on the facts of the case before the Board & COA’s have refused to enforce for failing to address why other remedies will not work

o Intermediate case - If not outrageous, but still threatening, and the Union had card majority, then Board can issue bargaining order.

But how bad do ULPs need to be?o “Gissel II” case - fair election conditions for a rerun cannot be restored through traditional

remedies. Bargaining order cannot issue.

Linden Lumber (1974) — EE’r have no duty to seek and electiono Issue : Whether employers confronted w/ bargaining demands by unions

presenting strong proof of majority support must either (1) bargain or (2) file for an election themselves under § 9(c)(1)(B).

o Holdings : An employer, otherwise guiltless of ULPs, does not violate

§ 8(a)(5) merely by refusing to recognize a union even though the employer at the time had “independent knowledge” of the Union’s valid card majority.

The U can either file for an election or press ULP charges against the Employer under Gissel (much more time consuming).


BARGAIN?

OR FILE FOR ELECTION?


An employer is under no obligation to recognize a U that demonstrates majority support via a card showing or any means other than a Board election.

The union seeking recognition (rather than the employer) has the burden of filing an election petition.

Employer remains free to dispute the appropriateness of the bargaining unit.o Reserved Q in the Case—Binding Agreements/Polling: An employer that agrees to be

bound by a means of determining majority status other than a Board election (e.g., a poll or a “card check”) cannot disavow the results b/c doesn’t like them. Also, an employer MUST extend recognition if a U receives majority support in its own poll (not the case for Unions if lose in poll—still free to ask for Board election).

o Set up framework the way employers are able to react to presentations of a card majority. As long as don’t commit ULPs, can insist on election. If ULPs then they potentially open up the possibility of a bargaining order/cease and desist orders (likelihood of bargaining order being effective not strong).

Note: Section 10(j) as a Tool in Organizing Cases: GC Memo on Eff. Remedies (Dec. 20, 2010)o GC’s commitment to seek Section 10(j) injunctive reinstatement as a

quick and effective remedy for an employer’s serious unlawful conduct during union organizing campaigns. Defined as to whether there is a likelihood of ULP and issue an order.

o Purpose = touchstone should be prompt and effective relief to best restore the status quo and recreate an atmosphere in which employees will feel free to exercise their Section 7 right to make a free choice regarding unionization.

Notice-Reading: Have employee read a notice (w/ official of plant present) Access to Bulletin Boards Allow Access to Excelsior List (before reaching level of being able to petition for

elections) Order backpay of anyone discharged

o Symbolic remedies that the employer is not all-powerful in context of organizing campaign. Employees can observe that and learn that the Board will protect them while they’re organizing. GC refers to it as “nip-the-bud” cases.

OUSTING AN INCUMBENT UNION

The means by which a union, having obtained bargaining authority, may have that authority revoked. Also, addressing when this authority may be challenged by an employer, disaffected employees, or a rival union.

Bars to an Election

The Certification, Election, and Recognition Bars

o Brooks v. NLRB (1954) - election year bar



Facts : Union was duly certified after winning majority vote after an election. A week after the election and the day before the certification, nine of the thirteen employees delivered a letter to the employer saying that they didn’t want to be represented by the Union. Employer refused to bargain w/ the union.

Board Working Rules A certification, if by election, must be honored for a “rsbl” period, ordinarily a

year, “unless unusual circumstances.” “Unusual circumstances” previously found in 3 situations: (1) the U dissolved

or became defunct; (2) due to schism, substantially all members/officers of the U transferred affiliation to a new local or int’l; (3) the size of the bargaining unit fluctuated radically w/i a short time.

Loss of majority support after rsbl pd could be questioned by: (1) employer’s refusal to bargain, or (2) petition by rival U for a new election.

If the initial election resulted in majority for “no U,” the election (unlike certification) did not bar a second election w/i a year. [Since abrogated by § 9(c)(3).]

Taft-Hartley Amendments Employees could petition the Board for a decertification election. § 9(c)(1)(A)

(ii). An employer, if in doubt of U’s majority claimed w/o formal election or beset

by confl. claims of rival Us, could petition the Board for an election. § 9(c)(1)(B).

After valid cert. or decert. election, the Board could not hold a second election until a year had elapsed. § 9(c)(3).o Board applied one-year limit w/o “unusual circumstances”

provision. Board certification could only be granted by an election. § 9(c)(1), though an

employer would still be under a duty to bargain w/ a uncertified U that had a clear majority.

Board found employer committed a ULP under §§ 8(a)(1) and 8(a)(5). 9th Cir. enforced the order to bargain but won’t commit to 1 yr.

Holding : Whenever a union wins an election, there should be a period of time for bargaining (at least one year’s protection) before the employer can ask for a new election.

One year pd may run from the date of certification rather than the date of elections (w/i Board’s discretion). If employer refuses to bargain then runs from date of commencement of GF bargaining. Mar-Jac Poultry (NLRB 1962).

Employer can refuse to bargain if he has fair doubts about the union’s continuing majority.

Reasoning: If employees are dissatisfied, should submit grievance to the Board. If

employer has doubts, should petition Board for relief, continue to bargain until Board gives some indication his claim has merit.

Employers shouldn’t engage in self-help. Congress set up formal mode of selection/rejection of Us w/ aim of industrial stability.



o The Recognition Bar: Voluntary recognition (w/o election but by agreement) constitutes bar to election for a “rsbl time” for parties to reach agreement on first K. Keller Plastics (NLRB 1966). Typically takes a year to negotiate a first K, but Board adjudicates case-by-case. Looks to degree of progress made, taking into account “attendant problems” of establishing initial terms and conditions, and whether parties were at impasse.

o The Contract Bar - bars an election among employees covered by a valid and operative CBA of rsbl duration.

Requirements and Duration In writing and properly executed Contain “substantial terms and conditions of employment” sufficient “to stabilize the

bargaining relationship,” including a termination date. Bars a decertification petition filed by employees or rival union for only 3 years, even

if the K is longer.o Contracting employer and union are barred for the entire K term.

The Window and Insulated Periods Window period - 30 day period 60-90 days prior to the expiration date of the K - rival

union, employer, employees seeking decertification can only file in this period. Insulated period = 60 day period following the expiration of the 30 day window.

Gives the parties 60 days to negotiate “free from the ‘threat of overhanging rivalry and uncertainty.”

o Slightly different in health care context. Not mandated by terms of NLRA.

Premature Extensions Extension of prior agreement, w/ or w/o modifications, prior to the beginning of the

insulated pd as measured by the original agreement. Does not bar an election if the petition is timely filed during the 30 day pd as

measured from the expiration term of the original agreement BUT after that point - new three-year K bar. See Republic Aviation.

Lifting the Bar Schism - when there is a fundamental split w/i the union over basic policy issues

which reaches form the local to the highest levels of the international, and where the employees have taken affirmative steps to change the incumbent b/c of these differences.

Defunct - no longer able or willing to represent the employees; a temporary inability to function will not suffice.

Disclaimer - aff. disclaims interest in continuing to represent employees, even though it is capable of doing so. If the Board determines that it is the result of collusion b/t two unions, the K bar will remain in place.

Withdrawals of Recognition During the K Term Bar only applies to election petitions, not to employer withdrawals of recognition.

BUT a union’s continuing majority status is irrebuttably presumed during the term of a K, up to a 3-year maximum.

Auiciello (1996): Just after the union accepted K offer, employer withdrew recognition b/c evidence came up casting doubt on union’s majority status that it had gathered just before the union accepted the K The courts agreed the withdrawal was unlawful in light of the new K. No dice b/c employer using this right as leverage. This



skews the bargaining relationship and makes CBAs vulnerable to a postformation challenge that would not serve the Act’s goal of achieving industrial peace.

The Special Case of Construction Industry Prehire Agreements: John Deklewa - although 8(f) agreements are enforceable through 8(a)(5) and 8(b)(3), they do not erect a K bar.

The Blocking Charge Policy: Under Board’s policy, agency declines to proceed with an election when ULP charges involving the unit are pending. Purpose - protect employee free choice. Can be lifted if the Regional Director finds that a fair election can still be held, or if the charging party files a “Request to Proceed.” Can delay significantly the ability of the employer to decertify the union.

The Means of Ousting an Incumbent Union

Note: Employee-Initiated Decertification Petitions: Employees may seek to oust union via decertification petition under § 9(c)(1)(A)(ii). Must be supported by 30% showing of interest. (Board’s blocking charge policy—unions file ULP charges to stave off elections that may result in their ouster.) Can only file in 90-60 window period or insulated period.

o When a K is due to expire (90 up to 60 days before) - window starts that goes for 30 days. A petition by the employees that no longer wants a union can be filed to the Board. Lets the employer known to cease and desist from bargaining w/ that Union until the expiration of the K. An election will then be held by the board to see if that Union should represent the employees.

o Another union coming in has to give NOTICE w/i the 30-day window that they will challenge the rival union.

o If no decertification request, then know for the last 60 days of the K, that you can bargain away! And if you get another K during those 60 days have another 3 years (contract bar rule kicks back in).

Allentown Mack Sales and Srv., Inc. v. NLRB (1998)o Background & Issue : Acc. to precedent, employer has 3 options: (1) can request a

decertification election (during window or when K expires); (2) w/draw recognition and refuse to bargain (after K expires); or (3) conduct a poll (consistent w/ standards). Latter two are ULPs unless employer can show GF rsbl doubt re the U’s majority support. Issues whether the Board’s standard for employer polling is rational and consistent w/ the NLRA and whether factual determinations supported by the record.

o Facts : Several statements made to managers suggesting that the incumbent U lost support among employees. (14/32 implicated as not wanting the U. A U rep told manager he though employees didn’t want the U.) Employer polled and U lost 19 to 13. U Filed ULP charges.

Lower courts held polls violated §§ 8(a)(1) and (a)(5) b/c no “objective rsbl doubt” re the majority status of the U.

o Holdings : The standard for justifying polling the workers as to whether a majority of them

support the union is a “good-faith reasonable doubt.” On these facts, there was a “good-faith reasonable doubt” and so the court reverses on

this issue. Didn’t consider probative evidence.o Reasoning :



Not irrational to require the same factual showing to justify a poll as to justify an outright w/drawal of recognition (majority), even though it leaves employers w/ no legal incentive to poll. It may be a puzzling policy, but not so irrational to be “arbitrary or capricious” w/i the meaning of the APA. It would be irrational to set the polling standard higher OR lower, so making the same not irrational.

Camera standard = whether a rsbl jury could have reached the Board’s conclusion (7/32 employees made statements and the Board disregarded an 8th employee’s stmt and the info. re the entire night shift not wanting the U and the stmt that the U rep though employees didn’t want a U). The Board’s finding here rests on refusal to credit probative circumstantial evidence.

Court characterizes the Board’s conduct as fact-finding. If they wanted to get rid of the GF rsbl doubt standard altogether as a substantive matter, they can, but “when the Board purports to be engaged in simple factfinding, it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Cannot reject some pieces of evidence but must view all evidence in its entirety.

o Rehnquist’s Concurrence/Dissent : Disagrees that the good faith rsbl doubt standard is rational and consistent w/ the Act. Inconsistent to impose the same standard on two actions (polling and unilateral w/drawals of recognition). The std for unilateral w/drawals should be higher.

o Breyer’s Concurrence/Dissent : Disagrees w/ the factual holding. Doesn’t see how one could plausibly argue that these findings of the board fall outside their delegated authority (Camera = must merely be rational). The Board, drawing upon both reason and experience, has said it will “view w/ suspicion and caution” one employee’s statements “purporting to rep the views of other employees.” (hearsay?) This is not unrsbl to say the stmt cannot support an objective rsbl doubt. Court substituting its own judgment for that of the Board.

In Class : There were all kinds of inconsistencies and problems with the EE’r’s polling: majority pollced were new hires sunj. To heightened pressure (experimenter error). Nothing in this case is clear except the GFRD. Doesn’t really matter after Levitz Furniture!

Both the majority and Rehnquist suggest that it would be rational for the Board to require a greater evidentiary std for RM elections than for polling.

Note: Levitz Furniture: Curbing Unilateral Withdrawal of Recognition by Employerso Levitz Furniture (NLRB 2011): The Board eliminated the “good faith

doubt” defense. Loss of majority in fact would be the only valid defense to an unlawful w/drawal of recognition charge. To withdraw recognition from an incumbent union, must have actual proof. Presumption that you commit ULP when you withdraw recognition unless you can prove at that point, there was no longer a card majority.

o Good faith rsbl doubt is now the basis for polling. (After polled, results can be basis for absolute proof under Levitz or risk a § 8(a)(5) charge.) To get election, must show rsbl uncertainty.

o Still problem if employer w/draws recognition and didn’t have absolute proof. What’s the remedy?

Standard is C&D order with order to bargain, BUT for how long is the union protected from decertification?



NLRB says no less than 6 mo.s and no more than 1 year Court’s have been hostile and said to go have an election!

Note: Remedy for Unlawful Withdrawals of Recognition: Standard remedy = cease and desist order and a bargaining order. To restore to the U the bargaining opportunity which it should have had in the absence of unlawful conduct and to prevent the possibility that the wrongdoing employer would ultimately escape its bargaining obligations as the result of the predictably adverse effects of its unlawful conduct of employee support for the U.

A “Rsbl Time” to Bargain After an Unlawful Withdrawal of Recognition? o Lee Lumber (NLRB 2002): How long are you protected under that bargaining order for

another challenge to decertification? “Rsbl” time is between 6 months and one year when the union’s majority status cannot be challenged.

o 6 months is typical amt of time needed to negotiate a renewal agreement.

Other Remedies: Where an employer has unlawfully refused to bargain in making unilateral downward changes in the employees’ wages or working conditions, the remedy will include an order to make the employees whole.

OBTAINING BARGAINING AUTHORITY OUTSIDE OF THE NLRB ELECTION PROCESS

When employers may voluntarily recognize unions as exclusive bargaining agents for their employees. How do we protect free choice of employees that do not want the union?

Recognition: Election, Card Majority, Recognitional Picketing. Unions ay obtain voluntary recognition from employers by demonstrating majority support through

cards or other means. Policy - promote statutory goals favoring voluntarism and CBing. Thus, the Board has never applied its election-preference policy to bar recognition of majority unions.

Unions seek to bypass elections by “card check” agreements from employers agreeing to abide by results of a card showing.

Voluntary Recognition

Validity of Authorization Cards

o CARDS: “Know when to hold ‘em, know when to fold ‘em.” Concerns over Cards:

Social Pressure: Concerns in Gissel. What is wrong with social pressure? Infringing on free choice, maybe. But employers can use social pressure against a union.

Misinformation or lack of information: Cards may indicate that they are merely for the purpose of obtaining an election. Employees may not understand what they’re signing/authorizing.

Elections provide a clearer picture of employee preferences at a given moment in time: Card campaigns take longer; some of the employees who



signed first may have changed their mind. Why is the snapshot of preference important?

Do elections provide employer a one-sided advantage?: Through their antiunion campaigning in captive audience speeches, access issues, is it harder for unions to get their message out? Implicit assumption that an employer may not know about the Union card campaign, thus he cannot fight back. Questionable assumption, b/c unions like to make the employer aware of their campaign. This makes it easier to prove ULP charges, state of mind, and awareness.

States enacted laws, constitutional amendments requiring secret ballot for all labor elections: GC said that NLRB will sue the states to determine if NLRA preempts these. But can an agency sue a state? Preemption could be used as an affirmative defense if NLRB is trying to enforce card majority board order to remedy employer ULPs.

o Card Challenges: One way to challenge cards is through alleging misinformation. (Gissel)

Forum: Regional office will hold hearings. NLRB generally does not like to look too deeply into the amount of

misinformation being used. Another way to challenge is if bargaining unit is appropriate. (Bernhard-Altmann)

o NLRB v. Gissel Packing Co. (1969) - misrepresentations during card check Facts : U had majority by cards, req. the employer to bargain, and offered to submit

the signed cards to a neutral third party for authentication. After employer declined to bargain, claiming a good faith doubt of majority status b/c of the cards’ inherent unreliability, the U petitioned for election.

Holding : Unions can establish a bargaining relationship by means other than a Board election under the Act. Card majorities are valid and not inherently unreliable. Single-purpose authorization cards (cards that make clear that the signer is authorizing the U to act as agent) are presumptively valid.

Reasoning : On cards not reflecting free choice: see above. On cards obtained through misrepresentation and coercion (and t/f inferior to

elections): see above.o Employees should be bound by the clear language of what they sign

unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature.

o None of the following undermines the validity of a single-purpose card: (1) that the card will be used to get an election, (2) that employee had the right to vote even if signs card, (3) that the card would be secret ---just to get election.

o The Board does not count as evidence of majority support authorization cards signed by employees who have also signed in support of another union. The agency, however, will count cards that repudiate cards signed for a rival union.


UNION


Requirement of Majority Status at the Time of Recognition

o Besides construction industry, an employer may recognize and bargain w/ a U as excl. bargaining agent for its employees only if the U is the rep of a majority of employees in an appropriate unit.

o oooo Bernhard-Altmann v. NLRB (1961)

Facts: U intitiated org’l campaign at B-A’s knitwear mfg. plant. Employer signed “memorandum of understanding” when employees were striking (unrelated) recognizing the U as bargaining rep of all production and shipping employees. U said they had card majority. Never checked cards against the employee roll b/c didn’t have majority. U agreed to stop the strike though. After, a formal CBA was signed.

Board found a direct deprivation of the non-consenting majority employees’ org’l and bargaining rights under § 7.

Holding : It was an ULP (§§ 8(a)(1), (2) and 8(b)(1)(A)) for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees, although in fact only a minority of these employees had authorized the union to represent their interests. Remedy = cease bargaining and ordered election.

If an employer takes rsbl steps to verify union claims, themselves advanced only after careful estimate he can readily ascertain their validity and obviate a Board election.

Reasoning : Rejects that majority at CBA matters b/c no majority at memorandum date (employer support takes away free choice). Rejects that employer’s good faith belief in majority rep matters. Employer was careless and gives the U the power to completely frustrate employee free choice. Scienter, t/f is not element of the ULPs involved here. Not undue burden to take rsbl steps to ensure U majority is valid.

o Voluntary Recognition Bar: The Board held that all voluntary recognitions erect a bar to an election or withdrawal of recognition for a “rsbl time.” Dana Corp. and Metaldyne (NLRB 2004) held no temporary bar when the agreement was reached b/t the U and employer before cards evidencing majority status were obtained. Reasoned that elections were the best


§8 (a)(2): It shall be and unfair labor practice for an EE’r—to dominate or interfere with the

formation or administration of any labor organization or contribute financial or other support to it,

Provided, that subject to rules and regulations made and published by the Board pursuant to § 6, and

EE’r shall not be prohibited from permitting EE’s to confer with him during working hours without

lass of time or pay;


method for determining whether employees desired union representation. 3-2 Bush decision. Dissenters argued bar is good policy for industrial peace and stability and that the doctrine had been welled settled.

o Majestic Weaving (NLRB 1964) (recognition conditioned on a subsequent majority) held that an employer’s recognition of the U expressly conditioned on its subsequent demonstration of majority support is still unlawful as § 8(a)(2) support. Characterized as an “assisted majority.”

o Keller Plastics (1966) (recognition bar) held that when you do recognize a union on a card majority, the rsbl period under which the Union majority cannot be challenged is 6 months to a year.

Dana Corp. (2007): Bush board reconsiders recognition bar. Board concerned w/ employee free choice. Happening at the same time that Free Choice Act is in Congress (act and Dana at odds). Not totally overruled, but sets up a system of decertifying based on employee concerns.

Modifications: o Union must immediately notify Board of Recognition and post

notice to employees. No elections will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition of their rights, and within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition.

o Valid petition will be supported by 30% of the unit employees. (including sigs from before as well as after recognition.)

o But, Employer must bargain w/ union during these 45 days. But how can bargaining go well if it is uncertain that union will

be around after 45 days? If petition is presented, any CBA will not take effect until after

an election. Free choice act would have wiped out this opinion.

o National Right to Work Act Currently in Congress: Would seriously erode strength of Unions. They still have the DFR, but the

employees don’t have to pay their fair share of dues. Check-off dues from employee wages is used to help unions get funds. Otherwise

can’t process grievances. W/ no dues, all money for political purposes is gone. Class warfare w/i the same middle class: Republican right is middle class, so are

public employees.

o “Prehire” Ks in the Construction Industry: § 8(f) permits what Bernard-Altmann says you cannot do. In the construction sector, employers can enter CBAs w/ an independent (that is, not otherwise employer-supported) union BEFORE the union has demonstrated majority support. Workforce is much more temporary and fluid. Hiring halls are most efficient way to get temp workers.



o Doctrine: The Successor Bar (CURRENTLY NOT IN EXISTENCE) When a company is a successor to another company, typically supposed to bargain w/ union in the successor company. Rsbl period of time for union to establish majority support during the transition.

NLRB overturned this doctrine in early 2000s. Obama Board has indicated that it will take amicus brief on this issue.

Successor Bar may revert back into existence.

o Note: The Kroger “After-Acquired” Facility Doctrine: The parties to a CBA may lawfully agree that the CBA automatically extends to a new facility upon proof of the union’s majority support among the affected employees. Even where no express provision containing application of the CBA to the new facility on proof of majority, the Board will read that condition into the agreement as a matter of law (for agreement to be lawful).

Does Dana Corp. apply to After-Acquired facilities? A Rep. Board might apply it.

The Doctrine of Employer Neutrality

o Bruckner Nursing Home (NLRB 1982) Facts : Two rival unions began org’l activities at a nursing home.

Local 144 notified the employer that they had a card majority. Local 1115 notified the employer that they were still organizing and so not to extend rec. to any other U. 1115 filed charges under 8(a)(1) and 8(b)(1)(A). Card count held a couple days later and 144 rep’d a majority of the employees. But Employer refused to bargain pending the ULP charges filed by 1115. The 1115 claims were dismissed so the Employer executed a CBA w/ 144. 1115 filed new charges.

ALJ said 1115 had “colorable claim” to rep. based on its continuous efforts to obtain employee support (even though only had 2 cards vs. like 90% by 144). Thus, employer violated 8(a)(2). Ordered employer to w/draw and w/hold recognition until cert. in a Board-conducted election.

Holding : No longer find violation of 8(a)(2) in rival union initial organizing

situations when an employer recognizes a labor org. which represents an un-coerced, unassisted majority, before a valid petition for an election has been filed w/ the Board.

MUST still have actual majority support for employer recognition. Bernard-Altmann.

To stop an employer from recognizing a union that has majority, another union must show 30% support to force an election.

Reasoning : Midwest Piping doctrine: Employers can’t favor one union over another. In a

rival U situation, an employer cannot render “aid” to one of two or more U’s through a grant of recognition in advance of a Board-conducted election. A rival claim must be presented in the form of a rep. petition in order to have a “real question concerning representation.”

o Later on, Board removed rq. that a rep. petition actually be filed. U just had to show they had a “colorable claim” (standard used by the ALJ), i.e., a claim that was not “clearly unsupportable” or that was not “naked.”



The doctrine has been abused by rival Us using to “buy time” for support or simply “frustrate” its rivals. Looky here where 1115 only has a few cards and 144 has “overwhelming support.”

o This actually impedes and frustrates employee free choice where, as here, the employees have made their free choice and the employer has recognized that choice.

The rule also takes care of dual card problems (i.e., when employees sign cards for more than one union). When more than one U has 30% support, the reliability of the cards is called into doubt b/c people sign dual cards. An election solves this.

o Rival Union Challenges to an Incumbent Union: RCA del Caribe (NLRB 1982) held that mere filing of a rep petition by a rival union does not permit an employer to cease bargaining, and any K executed after the petition has been filed will be ull and void if the challenging U wins the election.

o Decertification Petitions: Decert petitions do not require the suspension of bargaining w/ the incumbent (so as not to influence the impending decert election). Employer remains under a duty to bargain in good faith, subject to the actual-loss-of-majority in fact rule (only valid defense to an unlawful w/drawal of recognition charge under Levitz Furniture).

o Note: Card-Check and Neutrality Agreements: Unions trying to bypass elections and campaign rules get these agreements through

economic/political pressure and at the bargaining table (negotiating CBAs), economic leverage.

Card-check agreements = provide for rec. once the employer or a neutral T has confirmed that the U has pained auth. cards from a specified percentage of the bargaining unit (ranging from majority to 65%).

Neutrality provision = can’t say derogatory things about the other party during an org’l campaign, etc. Varies widely by agreement.

Enforceable under Linden Lumber which said election pref. policy does not extend to agreements to abide by a poll or card check: an employer that agrees to honor the results of a poll or card check then refuses to bargain violates § 8(a)(5).

Under Kroger, employers must honor agreements to recognize the U as the rep. of employees in “after-acquired” stores and to apply the CBA to them upon proof of majority support of the U. Us can also agree to NOT attempt to org. the employees at some other facility by express agreement.

Regulation of Organizational and Recognitional Picketing

§ 8(b)(7) (paraphrased) - It’s a ULP for a Union to picket, threaten to picket, or cause to be picketed any employer where an object is forcing or requiring an employer to recognize or bargain w/ a union, or forcing or requiring the employees of an employer to accept or select the union, unless the union is currently certified,:

(A) where the employer has lawfully recognized in accordance w/ this Act any other labor org. and a question concerning rep. may not appropriately be raised under section 9(c), or

(B) where w/i the preceding 12 mo a valid election under 9(c) has been conducted, or(C) where such picketing ahs been conducted w/o a petition under section 9(c) being filed w/i a rsbl



pd of time not to exceed 30 days from the commencement of such picketing: Provided, that when such a petition has been filed the Board shall direct an election as the Board finds to be appropriate and shall certify the results: Provided further, That nothing in this sub¶ prohibits any picketing or other publicity for the purpose of truthfully advising the public that an employer does not employ members of, or have a K w/i, a labor org., unless an effect of such picketing is to induce (secondary boycotts).

Nothing in this section will permit any act which is otherwise a ULP under section 8(b).8(b)(7) does NOT apply when:

U picketing to protest employer ULPs. See Blinne fn. 29. Unrecognized Us picket employer in support of a particular demand that can be satisfied w/o

recognition. See Blinne fn. 29. “Area standard” picketing aimed at causing the employer to adopt employment terms at his

enterprise commensurate w/ those prevailing in his locale.

Blinne Construction (NLRB 1962)o Facts : Board reconsiders a ruling that the U violated 8(b)(7)(C). All three laborers at Blinne

signed cards for U rep. Blinne wouldn’t rec. and transferred one employee to destroy the U’s majority. U picketed for > 30 days for: (1) recognition of the U; (2) payment of U wages; (3) protest Blinne’s ULPs. U filed ULP charges w/i 30 day pd alleging violations of 8(a)(1), (2), (3), and (5). The Regional Director dismissed the 8(a)(2) and (5) charges and that’s when the U filed a rep petition under 9(c). Parties reached a settlement on the other two charges.

o Holding : The object of the picketing was recognition and so the section applies. § 8(b)(7)(C) requires a timely petition and such a petition was not filed despite the ULPs of the employer and thus the U violated 8(b)(7)(C).

If U confined its picketing to protest the discriminatory transfer of the employee and the payment of wages at a lower rate than prescribed by law, 8b7 would not apply and the U would not have committed a ULP.

o Reasoning : Section 8(b)(7) only limits picketing for an object of recognition/bargaining or for

an object of organization, UNLESS already certified. If not certified, still only barred in 3 areas (subsections (A)-(C)).

(A) and (B) are clear (immunity periods): where a U has been lawfully rec. and a Q concerning rep. cannot appropriately be raised, or where the employees w/i the preceding 12 months have made known their views concerning representation, both the employer and employees are entitled to immunity from rec. or org. picketing for prescribed periods.

(C) concerned w/ “blackmail” picketing: Even where picketing is otherwise permissible, such picketing is ltd to a rsbl pd of 30 days unless a representation petition is filed before the 30 days run out. Then can have an expedited election pursuant to the petition and a 8(b)(7) proceeding (normal rep. procedures apply---showing of a substantial interest and a preelection hearing BUT the employer MUST file the 8(b)(7) charge).

o (B) + (C) = If picketing U rejected in a VALID election, then barred from picketing for 12 months. Policy = quick resolution to the dispute.

o (C) - no time limit on publicity picketing. U not certified. did not file rep petition during the 30+ day picket. U argues that they

were picketing for a lawful purpose and employer had duty to rec. the U. BUT



explicit language of 8b7 doesn’t exempt them. The Board’s reading here is in line w/ the policy to resolve rep. disputes by election whenever possible. Thus, there is a violation.

Us MUST file the rep petition w/i 30 days. When ULPs prevent a free and fair election, the rep. case will be held in abeyance until the ULP charges are resolved.

The Employee Free Choice Act of 2007: Intended “to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for ULPs during organizing efforts, and for other purposes.” http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.800.EH:

REGULATION OF THE PROCESS OF COLLECTIVE BARGAINING

Collective Bargaining and the Good Faith Requirement

ISSUES: What kind of remedy would deter Unions/Employers from engaging in violations of § 8(a)(5). Critical in the area of first-time Ks. Should you have to bargain if you want to subcontract out the work to India where you don’t’ have a

statutory duty to bargain?

NLRB v. Ins. Agents’ Internat’l Union (1960) - models of the bargaining process - economic conflict is cool

o Facts: Insurance Union and Insurance Company could not reach an agreement as to a new CBA despite the union’s attempts to bargain in good faith at the table. The Board found that the Union’s actions outside of the negotiating table (slow down tactics) were constructive ULP’s for failure to Bargain under § 8 (b)(3) in part b/c they were unprotected by § 7.

o Holding: The Board’s may not intrude into the substantive aspects of the bargaining process and it exceeded §8 (b)(3); (d) by inferring lack of good faith from the tactics it used to exert economic pressure in the course of the good-faith bargaining negotiations

o Rationale: The Union’s actions are not forbidden by the NLRA but neither are they protected under § 7.

The DTB was not sweepingly conceived of and the DTB is essentially a corollary of the EEr’s duty to recognize the union — nothing more.


§ 8(b)(3): “It shall be an unfair labor practice for a labor organization or its agents . . . to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 9(a).”§ 8(a)(5): “It shall be an unfair labor practice for an employer . . . to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).”§ 8(d): “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached . . . .”


Recognized tension b/w the DTB and the principle that parties need not reach agreement on a particular term of the K

1947— Congress afraid that the Board was forcing EEr’s to K and wrote in the Good-faith Bargaining test in § 8(d) of the Taft-Hartley Act.

Congress also imposed reciprocal duties on the unions in § 8 (b)(3) Congress’ policy was that imposing reciprocal duties on the parties promoted the

over-all design of achieving industrial peace: narrowed issues, clarified the demands, etc…

By attempting to regulate the choice of economic weapons that may be used as part of collective bargaining, the board places itself in a position to exercise considerable influence upon the substantive terms of the K.

The use of economic pressure is not at all inconsistent with the DTB and it does not matter that the type of activity here is not protected from disciplinary action by § 7.

The standards in § 8 (b)(3) are too general and not designed to allow the board the power to sit in judgment over the type of economic pressures exerted by the union.

o If you’re an employer, how do you protect yourself against this? Employer can discipline/discharge these workers. Court is saying a slowdown is not protected under § 7. Just because it’s unprotected doesn’t mean the union is violating 8(b)(3).

NLRB v. American Nat’l Ins. Co. (1952) - the problem of “surface bargaining”o Facts: Union and Mgmt could not agree to a new CBA where the Union proposed an

unlimited arbitration clause, and where the EE’r proposed a mgmt. clause covering certain conditions of employment (which the Rep. refused). Parties impassed and the Union filed charge for failure of DTB. The Board rejected the ALJ’s findings that the Co. had a right to negotiate on the Mgmt. clause because it covered conditions of employment and issued an order prohibiting the clause and ordering the Co. to bargain with the union.

o Holding: The duty to bargain collectively is enforced through the statute § 8(d) and the factors must apply on a case-by-case basis to avoid the Board intruding into the substantive terms of the CBA

o Rationale: The duty to bargain is implicit in the NLRA and was made express when Congress made it the 5th ULP

Taft-Hartley says that the DTB does not compel agreement or the making of a concession

The Board proposes a different test for DTB than found in § 8(d) and held that the EEr’s counterproposal was a per se violation of the DTB.

If the EE’r had simply refused to agree to the arb. Clause, the Board concedes that there would have been no ULP

But board maintains that the inclusion of the mgmt. clause covering some conditions of employment was a derogation of the EE’s rights under the statute

The Board may not pass upon the desirability of the substantive terms of labor agreements

The DTB is to be enforced by application of the good faith bargaining standards of § 8(d) to the facts of each case rather than an outright prohibition

o Dissent : Where the employer tells the union that the only way to obtain a K as to wages is to agree not to bargain about other working conditions, the employer has refused to bargain about those other working conditions. Closing off an area of bargaining is a violation of § 8(d).



NLRB v. A-1 King Size Sandwiches, Inc. (11th Cir. 1984) - “surface bargaining”o Facts: Company and Union bargained, meeting 18 times over 11 months but could not reach

an agreement beyond a few terms of lesser importance. The Company essentially insisted on unilateral control over numerous terms and conditions of employment that were all mandatory subjects of bargaining under the act. The attempted retain compete control over all discipline and discharge, layoff and recall, wages and wage increases without allowing recourse to grievance procedures or arbitration, denied the non-discrimination clauses, and responded to the Union’s objections to the breadth of the management rights clause with an even broader proposal

o Holding : The Board Correctly inferred bad faith form the Company’s insistences on proposals that are so unusually harsh and unreasonable that they are predictably unworkable.

o Rationale: It was clear that the parties had “reached the point when hard bargaining ends and obstructionist intransigence begins.”

Company insisted on unilateral control over virtually all significant terms and conditions of employment including:

Discharge and discipline Layoff and recall Subcontracting and assignment of unit work to supervisors

Company required workers to surrender statutory right s to bargain or strike, without offering any incentive

Denied the union any voice whatsoever concerning work and safety rules, time studies, production quotas, O-T assignments, transfers retirement, demotions, and EE qualifications

Vague Standard = . No predictability! Workers who strike, employer can hire permanent replacements. 8a5 can protect the workers if they go on strike, but the standard is so vague that Union can never really be sure to tell the workers they are safe. If Union is wrong, those workers are out of work!

o NLRB v. Reed & Prince Mfg. , 205 F.2d 131, 134–35 (1st Cir. 1953) Holding: “If an Ee’r can find nothing whatever t agree to in and ordinary current-day

K or in some f the union’s related minor request, and if the EE’r makes not a single serious proposal meeting the unions at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith.”

o Predictability of Bargaining Obligations and ULP Strikes Board and the court’s have failed to develop predictable standards in the area of EE’s have to bet their jobs on what they believe to be an ULP strike

Board’s remedies for § 8 (a)(5) violations are generally limited to bargaining orders and do not include imposition so substantive terms.

If EE’s strike and it is later determined that they struck to protest unlawful bad faith bargaining, at strike’s end they can displace replacements hired and will be owed backpay if reinstatement is denied

If not an unlawful bad faith bargaining the EE’s will not be entitled to backpay or reinstatement.

o Procedural Rigidity



The principal cases deal with substantive rigidity — the Board’s authority to review the procedural aspects of the parties’ negotiations, however, would seem to fit within § 8(d)’s statement of the “mutual obligation” of the parties “to meet at reasonable times and confer in good faith

o Boulwarism : Where the company sought to avoid last minute 11th hour bargaining due to unrealistic initial bargaining positions, they polled their own workers to determine what their real issues were and issued a proposal from which it would not budge (although willing to entertain facts the pollsters may have missed).

NLRB v. G.E., 418 F.2d 736 (2d Cir. 1969): The court found that G.E. violated § 8(a)(5) because their communications of their bargaining position to its EE”s caused it to become so locked into its initial position that alternative proposals (even those entailing no additional costs) were rejected out or hand

But what about exclusive bargaining rights of the Union and “direct dealing” prohibitions

Remedies for Bad Faith Bargainingo H.K. Porter Co. v. NLRB (1970) - REMEDIES for bad faith bargaining

Facts: Union and Ee’r in an 8-year struggle over one term of the CBA — Check off’s of Union dues. The Board and the COA found that the employer violated the DTB and directed EE’r to grant a clause to the union providing for the checkoff of union dues

Holding: Where the parties are unable to reach an agreement, the Board’s rem. Powers are limited to the policies of the Act and the Board has no power to direct the substantive terms of a CBA in violation of the freedom to K.

Rationale: The objective of the Wagner Act was to allow ensure that EE’rs and EE’s could work together to establish mutually satisfactory working conditions, not to allow government to regulate the terms and conditions of employment.

Congress found in 1947 that the Board had been going too far and amended the act to prevent the Board from taking more and more control of the terms of CBA’s

Congress added the non-compulsion provision to § 8 (d), which applies not just to finding when a violation has occurred, but also limits the remedial powers of the Board

The Board’s remedial § 10 powers are broad but limited to carrying out the policies of the Act.

Allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based —private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the K.

o In some instances the Board is permitted to require restoration of the status quo ante as a remedy

Fireboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964): The Board, with the court’s approval ordered the EE’r who had unilaterally contracted out the unit work ( a mandatory bargaining subject) and laid of the unit EE’s, to reinstate the closed operation and reinstate the EE”s with back pay.



First time Bargaining : The success rates of newly certified units in achieving first time CBA’s is low—around 55–57%.

o Over half of all ULP charges occur in the context of first-time bargainingo The G.C. had urged the board to make greater use of 10(j) relief and/or “special remedies” as

part of the Board’s order in the first K caseso Make-Whole Relief: Ex-Cell-O Corp , 185 NLRB 107 (1970): ALJ recommended that the

Board make the EE’s whole for all monetary losses sustained as a result of the company’s unlawful refusal to bargain. The Board held that it lacked the authority to permit the punishment of a particular respondent and that the EEr’s refusal to bargain with the newly certified union was in the exercise of its right to seek judicial review of the boards rejection of its objections to the election

Essentially the remedy would require the EE’r to compensate the EE’s for losses they incurred as a consequence of their EEr’s failure to agree to a K he would have agreed to if he had bargained in good faith

Highly speculative and would require the EE;r to accept responsibility as though he had agreed to the contractual provision

The Dissenting members: The rule against speculative damages targets speculative injury—not amounts. Here the injury is the failure to bargain depriving the workers of their statutory rights—damages may always be calculated.

o Is this a violation of H.K. Porter? ENORMOUS tension. Only the D.C. Cir. likes this type of relief. (Tiidee case.)

o NOT a common remedy.

Retroactive Relief: If ongoing bargaining relationship, the power to get a remedy has a lot more bite b/c have an obligation to bargain to impasse w/o altering terms/conditions of emel. and that obligation is breached, then board has power to reinstate the status quo before you engage in unilateral activity.

Interest Arbitration: Once card majority certified, union would request bargaining and w/i 10 days employer must bargain. If not w/i 90 days, would then call in Fed’l Mediation Conciliation service and go into mediation. If no K after another 90 days, goes to arbitration. FMCS rules. Interest arbitrators appointed by FMCS would set terms of the agreement (how many terms would they set? Unclear in legislation). This K would last for two years instead of three.

Disclosure Obligations

If can’t regulate tactics (e.g., slowdowns) b/c they are core, are there areas in the context of 8a5 where the board does regulate tactics or create obligations.

NLRB v. Truitt Manuf. Co. (1956) - failure to share - grievance arbitrationo Are there certain areas where refusal to share info. (demanded by union of employer) is

an 8(a)(5) violation? Can this be a per se violation of 8a5 or do we always look at totality of circumstances (bad faith).

o Facts : Union representative asked for wage increase. The employer said it couldn’t afford to pay the increase so the union asked the company to produce evidence substantiating this claim.



o Holding : Board applied the wrong standard by ruling that employer’s failure to supply financial info. to the union constituted per se a refusal to bargain in good faith and so the case should be returned to the board.

o Reasoning : Agree w/ the Board on the facts, so don’t disturb finding that must share the info. but won’t say it’s true in every case. Must look at TOTALITY.

o Notes : Still interpreted as a per se rule. (Just need a skilled negotiator.) Bargaining is about a dialogue, and so if you put up a defense of failure to pay,

you chill the dialogue. Also, real issue here is asymmetrical information.

NFL Labor Dispute: Careful how they crafted refusal for financial records. Just said they wanted the extra billion. If they had said it was for financial necessity would have needed to divulge financial records according to this case. Can’t say competitive advantage b/c the league doesn’t really compete against any other serious league. Plead that you can’t afford to pay then have to give up the records.

Detroit Edison Co. v. NLRB (1979) - failure to share - necessary to successfully arbitrate on behalf of workers

o Not a failure to share info. in order to create bargaining relationship, but failure that union needs to successfully engage in grievance arbitration. When obligation, what factors get considered? Goes to remedy (board order).

o Facts : Ten employees applied for promotions, but none of them received an acceptable score on a battery of aptitude tests, so the job was filled w/ an applicant from outside the bargaining unit. Board ordered test scores of employees. Enters remedy side.

o Holding : Employees must agree to have the records divulged.o Reasoning :

Must protect integrity of the test. Can be overcome by giving it to a third party neutral check the validation on the test instead, but union wanted to see the test.

o (Arguably info. that should be kept secret.) BUT why should the assumption of the court be that the union would use the info. in a negative way.

Not REALLY a regulation of a tactic. If you don’t share enough info., can’t do their jobs. Thus, you can say it’s not really a regulation of tactics like American Ins.

Impasse

When you reach moment of impasse, what kind of changes can the employer make? Underlying concern = at some point employers have to be free to respond to market changes. If wages go up above where the prior K provided, the employer has an interest in being able to respond to that change in order to not lose his employees. At what point is employer permitted to act? Want entrepreneurial discretion but don’t want to undermine the ability of the union to have voice as to what the new K should include from the perspective of the workers. This tension becomes difficult in the sit

NLRB v. Katz (1962)o Facts : After bargaining w/ union, gave unilateral change in conditions of employment but

sick-leave days o Holding : The employer can’t make any changes until impasse.



Problem = how do we decide what is an impasse?o Reasoning : Unilateral action w/o discussion with the union does amt to a refusal to

negotiate about the affected conditions of employment under negotiation and necessarily obstruct bargaining.

If a Union has the ability to strike prior to impasse, can the employer have the right to lockout before impasse? This has never been clarified by the Supreme Court.

Letting employers do this early on seems to be a tactic. Engaging in unilateral change is a tactic that puts pressure on the union prior to agreement. Real tension w/ Ins. Agents.

o Different opinions on the sick leave policy presents a problem. Merit employees only given to 20 employees out of 50. Employer taking unilateral control over merit increases. Most changes in Katz itself DID undermine role of the union.

o Constrains ability of employer to respond to market forces.

Impasse: Fed’l mediation body determines when there is impasse. Can’t strike/lockout until you go before this governmental body for a determination.

o Must be overall (vs. piecemeal impasse) in all circuits except the 5th. o Implementation OK upon impasse. WHY? Breaks the impasse and t/f encourages future

collective bargaining. BUT stagnancy might pressure both parties into negotiation. o Following impasse, an employer may lawfully implement “proposals rsbly comprehended

w/i those it offered before impasse.” Taft Broadcasting (NLRB 1967).o Telescope Casual Furniture (NLRB 1998): an employer may use the implementation of less

favorable proposals as a bargaining tactic. Final offer and less favorable alt. presented. Just hardball bargaining.

Which terms survive the expiration of the K during bargaining, before impasse?o Linden Lumber - arbitration clauses don’t go past pd of when K expires b/c they are

consensual in nature.o Individual statutory rights. Notion that you can’t waive individual statutory rights unless

the K explicitly does it. So when K expires, do the terms of it wiaivng these rights end right when the K expires or does it continue on?

o Mgmt rights clause - means that employer gets complete discretion during bargaining. Waiver of obligation to bargain. When K expires, no longer have wavier operating so does everything that mgmt. has done itself to control does the fact that there’s this waiver continue after the K? Or does the clause expire and the employer to continue to control what it could under the K is the employer permitted to make changes the same as it could under the K (or b/c mandatory subject must bargain to impasse before making seame changes). Courts have looked at way employer has operated under mgmt. rights clause and looks at past practice. Did employer commonly operate control over this topic? If so, can continue to do so until new K comes into being. If not, must bargain.

o Permanent replacements after impasse w/ allegation of 8a5 violation.o What is status quo?

Check-off is not included (parties must explicitly agree). So if K expires, check-off can’t continue.

No-strike clauses are not part of the continued status quo. No operating of an explicit waiver of the statutory right to strike.

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K clause where employees agreed to cross picket lines to deliver goods. Items going to core of § 7 rights.

Duty to arbitrate doesn’t continue (though grievance process does). o Implicit notion of no impasse if employer willing to do more. Undermines role of union

as bargaining agent if you offer more (not a tactic---suggests not at impasse). Can offer less and decide there’s impasse and then go w/ less (tactic).

o If already had subcontracting, could continue to maintain subcontracting after impasse. o Mgmt rights clauses become the problem.

Notice and “Cooling-Off” Periods: 90 day period.. etc. See page 509.

National Emergencies: Private sector strikes. The pres. can intervene, have a commission provide a report of the risk to nat’l health/safety, and request that the gov’t go to the court and get an injunction against a strike by a Union that would endanger health/safety. Injunction runs for 60 days where commission continues to determine health/safety effects. If come to agreement, if don’t come to agreement, the employees have to try and accept that final last offer by the employer and the injunction has to be lifted.

Mandatory/Permissive Subjects of Bargaining

Three kinds of subjects: (1) mandatory, (2) permissive, (3) illegal.

Illegal - statutory rights of employees, can’t by K agree that a competing union at appropriate times would not be allowed to distribute literature. can’t bargain away certain rights on distribution of literature or access. ALSO, a Union trying to get employer to agree that the employer would engage in a secondary boycott against a competitor employer.

Mandatory - Must deal w/ wages, hours, and other terms and conditions. See 8a5 and 8d. Issue w/ employer-controlled entitlements, when we intro. coll. bargaining, which part of issues can the employer not act on UNLESS the employer first bargains?

o Closing part of business - do you have to bargain? Under Darlington, closing down your whole business is ok. Could have an 8a3 violation over some of these decisions if motivated by anti-union intent.

o Waivers of employee’s statutory rights. Penn Plaza, mandatory to waive access to a court to resolve an individual employee’s

rights under Title VII or a disability statute. Union waiving statutory rights and labeling it mandatory---wonder in opinion what

will happen down the road. Can the employer actually insist to impasse

Permissive - Bargaining about how you want to market goods, how to manufacture a certain type of car - something more environmentally friendly, etc. Goes to things in the market, not about wages, hours, and other terms and conditions of employment. Go to internal operations of unions.

Mandatory/Permissive Framework

o NLRB v. Borg-Warner (1958)

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Facts : The company submitted a “package” proposal covering economic issues but made the offer contingent upon a ballot clause (req. employees to vote before union can authorize strike)

Issue : If the union can insist on a no-strike clause, why can’t the employer insist on the process for the no-strike clause?

Court : The ballot clause: This really goes to HOW the union makes decisions. It

controls the way the union makes decisions. You can bargain about it but the court is not comfortable w/ employer conditioning a final agreement on the clause.

The recognition clause: may actually be illegal. Seems to be inconsistent w/ the statute itself that it would evade the duty to bargain w/ the certified rep. of the employees.

Dissent : Must do a case-by-case analysis w/ each clause. Give the “conditions of employment” clause an expansive reading. The right to insist is the right to “bargain.”

Getting around this : Insist on a certain mandatory subject AND implicitly let it be known that you’ll budge if you get the permissive subject. Is the decision just a tactical one?

Why not just let the parties freely bargain so long as it’s not illegal? Does the distinction really help to facilitate bargaining?

o Five Consequences for defining a subject as “mandatory”: the party who would control the topic unilaterally absent bargaining obligations

must bargain about decisions concerning the topic the noncontrolling party may use economic leverage if employees strike over the employer’s failure to bargain, they will be treated as

ULPs and strikers will get their jobs back after the strike is over midterm modifications of aspects of coll. agreements dealing w/ mandatory

subjects are unlawful w/o the consent of the other party the controlling party must bargain in good faith to impasse before implementing

changes concerning the subject

o Cafeteria Example: Is it mandatory to bargain over prices in an employer-operated cafeteria. Case law says lateral impact on the compensation of the workers.

Result: Calling things mandatory means that the employer will have to meet and confer w/ union over the subjects. Gives the Unions voice. BUT if the employer wants to introduce a new, significant techonlogy w/ a product that will result in some layoffs (effects) that may be a mandatory subject of bargaining but the decision to invest in the technology itself would be permissive (go to “core of entrepreneurial decisionmaking”).

o Midterm Bargaining: Subject gets isolated b/c of decision of employer to act unilaterally outside of bargaining; there the mandatory/permissive characterization has huge consequences.

Union can’t use economic pressure (e.g., strike) to achieve permissive subjects of bargaining.

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o Unilaterally implementing merit pay: How deeply into the concept does the employer have to bargain before unilateral change. In case, board says even though bargained and trying to implement, nevertheless didn’t bargain sufficiently about the objective standards. McClatchy II.

W/ any particular topic, must look at what constitutes the mandatory context of that topic.

o Interest Arbitration: Can agree that any issues unresolved by negotiations would be submitted to determination by an arbitrator. If the union wants to instead of striking, the topic is permissive. While permissive, even if you agree on it when you reach interest arbitration, the arbitrator can ONLY deal w/ mandatory subjects of bargaining, not permissive subjects of bargaining.

o Salary Arbitration Process in Baseball Context: mandatory subject of bargaining.

o Retiree Benefits: Pittsburgh Plate Glass Co. (1971) Facts : Bargaining over retiree benefits is a common industrial practice. Seems to

be in direct interest of the workers. Holding : Retiree benefits is a permissive subject. Reasoning : NLRA covers workers, not retirees. Retirees don’t fit w/i the statutory

definition of employee under the bargaining unit. Beefits are speculative, insubstantial, and the relationship b/t the inclusion of retirees and the overall ins. rate is uncertain.

o Should we get rid of this framework??? Look at remaining cases---are they justification for retaining the distinction or should we still just get rid of it (part of recommended reform)?

o Note: Card-Check and Neutrality Provisions Card-Check Neutrality: Not clear whether mandatory/permissive. May never know b/c there

are ways not to agree to mandatory subjects if you don’t get what you want on the permissive side.

Status of Major Entrepreneurial Decisions

o Fibreboard Paper Prods. Corp. v. NLRB (1964) Facts : Employer contracted out the maintenance work for cost-savings. Company

said maintenance work was too economically burdensome. When union found out they established a picket line at the company’s plant.

Union alleged violations of 8a2, 8a4, and 8a5. Holding : Reasoning : The continued employment of the employees is as a result at stake. No

real alteration of the Company’s basic operation (just labor costs). Concurrence (Stewart) : If decision deals w/ scope and direction of company,

should not be mandatory.

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General test not used. But the court says where the decision involves strictly labor costs, making that decision mandatory subject would promote collective bargaining and the goals of the NLRA.

Does bargaining on the issue promote collective bargaining?

Subcontracting: Doesn’t it always involve a removal of work prev. performed by the bargaining unit? How is this different?

Decisions at the “Core of Entr. Control”: Lack suff. direct impact on job security and working conditions. Bargaining not likely to make a contribution to decision-making process.

Sale and Franchise Arrangements: GM case

o First Nat’l Maintenance Corp. v. NLRB (1981) Facts : Employer wants to close a part of its business (w/ nursing home).

Employees get organized during interval and request to bargain. FNM loses money if the bargain. Give notice to workers their positions were terminated. K called for reimbursing FNM for cost of labor plus weekly fee.

Holding : If there is a benefit to labor management relations from bargaining on the subject that is not outweighed by the burden placed on conduct of business, the subject will be mandatory.

A weighing test. The two sections of the opinions are somewhat at odds.

One seems to say decision over partial closings are not mandatory (only effects):

o Due to need for speed in circumstances, secrecy.o Uncertainty in the COA presumption combined with harsh

remedies are too costly.o If the primary reason for the decision is labor costs, then the Er has

every incentive to bargain voluntarily.o There may be no other choice for the Er.

Then the second section of the holding talks about limitations.o The decision was a change in the operations. (leaving the market of

Greenpark) Is the logic of Ozark overruled by FNM? In this case there

was no change in the operations of the company. No impact on product market.

If operations are not changed, do the interests of EE/Union outweigh management rights?

The court wanted a clear-cut rule to alleviate uncertainty. Removing that fear of remedy from decision making process when

speed/secrecy are necessary.

o Dubuque Packing Co. (NLRB 1991) - current law

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Facts : Hog slaughter house/processing. Employer decides to move the slaughtering to a different location. Agreement is signed to keep 900 jobs in Dubuque, but the plant eventually closes due to economic issues.

Was this relocation a subject of mandatory bargaining? Test : GC must carry burden that work was relocated and there was no change in

operations, this establishes prima facie case of ULP. Then employer must show the work actually did vary in nature; or work was not relocated; or there was a change in scope and directions of operations; or even if there were labor costs, there were no concessions the Union could have made.

Benefit for labor management relations in the FNM Test is incorporated into the requirement that labor costs not involved or union not making adequate concession.

Burden on the Employer in the FNM test is incorporated into requirement of a showing of change in scope and direction.

Remedy could still be severe in work relocation, but maybe not as much as partial closing.

The need for certainty in a rule will increase with an increase in severity of remedy.

Circuit split on whether Dubuque is consistent with FNM.

o Regardless of these tests, there is always a duty to bargain over EFFECTS. Severance pay or preference in hiring at new locations would be effects

concessions. Major criticism : often too late for the Union to exact any adequate

concessions.o WARN Act:

If you have a firm of at least 100 employees, and your closing will put out at least 50, 60 days’ notice must be given to Union.

This might give some bite to effects bargaining. o Application of the tests seems to be by category: sub-K, partial closing, work relocation.

What does the management decision most look like? Then apply the test that applies to the decision that is most analogous.

Fibreboard has been applied to ALL Sub-k, not just sub-K based on labor costs, as the Case actually holds.

Multiemployer and Multiunion Union Bargaining

Bonanno Linen Services v. NLRB (U.S. 1982)o Facts : Bonanno belonged to a multi-employer bargaining unit (MEBU) and began

bargaining with Union. When they reached an Impasse over compensation the Union Whipsawed them and the other EE’rs locked-out. After a year Bonanno hired replacements and notified the union and the MEBU they were withdrawing from the unit. Union soon settled on compensation and tried to hold Bonanno to the new K saying they had never consented to the withdrawal

o Holding: An impasse is not an unusual circumstance justifying unilateral withdrawal from a MEBU once bargaining has already begun.

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o Rationale: Board has upheld MEBU’s as a factor in effectuating the policy of promoting labor peace through strengthened collective bargaining and has taken steps to increase stability of MEBU’s including —

Issuing guidelines for withdrawal Either party may withdraw with notice before bargaining After Bargaining parties may withdraw from MEBU with mutual consent of the

MEBU and Union, or If there are unusual circumstances

The BNLRB found in Hi-Way Billboards that an Impasse is not an unusual circumstance because it is usually only a temporary deadlock and

may be a tool for furthering bargaining The attempted bargaining with individual EE’rs in the MEBU also was not an

unusual circumstance because it was not destructive of the unit; although bargaining for agreements that would survive the group bargaining K or would

allow the union or EE’r to escape its effects destroy the bargaining unit and would be = failure to bargain ULP and = an unusual circumstance

Unusual Circumstances: o Violence and property damage by the union may count, although not argued in Bonannoo NLRB v. Siebler Heating & Air Conditioning: Failure of the MEBU to fairly represent

some of its members were unusual circumstances justifying the withdrawal of those members

Why is there not more multiemployer bargaining?o In Europe, this is the model. CBAs are set across the entire sector of the economy.

No concept of the individual bargaining unit. We are unique in that. Unclear about the common market. Now you have a competitive market place,

where the players are not companies in a sector, but the nations in the sector.o Very little in the U.S.

Coalition bargaining is permissible, but you cannot insist on it. One company, and lots of bargaining units in one company. Unions try to

coordinate negotiations at the same time and bargain as a unified front. Hospitals are not going to be likely, too much variation in the employees.

(Dr’s don’t want to bargain alongside maintenance.) Or when there are multiple plants (with different unions) in a single employer.

Midterm Bargaining

Note: Permissive Subjects and Midterm Modifications: Allied Chem. v. Pitt. Plate Glass (1971): Midterm modifications of clauses in a labor agreement dealing w/ permissive subjects do not violate the statutory duty to bargain. § 8(d) embraces only mandatory topics of bargaining. By once bargaining and agreeing on a permissive subject, the parties don’t make that the mandatory subject of future bargaining Duh. Remedy for unilateral midterm modification is breach of K not ULP.

Allied Chem. & Alkali Wkrs. v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971)o Holding: Midterm modifications of clauses in a labor agreement dealing with permissive

subjects to not violate the statutory duty to bargain.

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o Rationale: § 8 (d)(4) requires that a party proposing a modification continue in full force and effect all the terms and conditions of the exiting K until its expiration

But the Court must look to the provisions of the whole law and to its object and policy

§ 8 (d) encompasses only mandatory subjects of bargaining Read im pari materi, § 8 (d) (4) only prohibits midterm alteration of clauses that

address mandatory bargaining subjects. Regulates modifications and terminations so as to facilitate agreement in the place

of economic warfare Bargaining on permissive subjects does not make those subjects mandatory in the

future Since the parties were not required to bargain as to permissive subjects, the

purpose of facilitating accord on the proposal Is not on pint where one party seeks to modify permissive terms

The remedy for mid-term unilateral modification to a permissive term is BOK no ULP

Jacobs Manufacturing Co, 94 NLRB 1214 (1951)o Facts: The EE’r and EE union bargain in 1948 and reach a 2-year agreement where they

left open the option for renegotiation as to wages after one year. The parties never discussed pension plans, but did discuss and then drop group insurance coverage—where the EE’r subsequently improved the benefits

o Holding: Mandatory subjects of bargaining not covered by the CBA and not negotiated on must be bargained for if raised during midterm bargaining, but not mandatory subjects bargained for yet not explicitly covered.

o Rationale: You could say that under § 8(d), during the term of the agreement you don’t have to bargain at all. Or you could say that you do have to bargain about all mandatory subjects where there was no agreement during the renegotiation. Or you could say that § 8(d) only requires you to bargain about mandatory subjects that were not discussed during the negotiations

The Pension had never been raised, and as a mandatory subject of bargaining it may be raised and bargaining required during the midterm

The insurance had been raised and was dropped, and the EE’r unilaterally modified it—it was bargained for and the bargaining show that it was understood to remain unchanged during the term of the agreement

Tide Water parties are obliged to discuss mandatory subjects that are not covered by the CBA

Encourages labor peace and Simplifies and speeds the process of bargaining because it removes

pressure to negotiate and reach agreement as to all things that might become important in the future

o “Clear and unmistakable” waiver: 8(d) doesn’t relieve an employer of the duty to bargain over subjects neither discussed in negotiations nor incorporated as terms of the agreement. Only discussions constituting a “waiver” will have this effect. Test - “clear and unmistakable”---item in issue must have been fully discussed or consciously

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explored ad the union must have consciously yielded or relinquished in the give and take of negotiations.

o “Zipper” Clauses: “zip up” the agreement to preclude any further bargaining during its term. Gen. zipper clauses (561-62) = waiver of either side’s right to insist on bargaining over its proposals to add new terms, but do not relieve the other side (usu. the employer) of its duty to bargain before initiating unilateral changes in existing conditions of employment.

o Unilateral Changes During Term of Agreement: Employers, regardless of a zipper clause, MUST bargain to impasse before unilateral action on topics not covered by an agreement absent K language (perhaps sup. by bargaining history) that manifests a “clear and unmistakable” relinquishment of bargaining rights w/ respect to the particular matter involved.

Christmas Turkey example. Does this past practice est. the expectation of the turkey as in the K. Have to maintain the terms of the agreement that your negotiations suggested they accepted the rejection by the employer (ins. in Jacobs).

o Midterm Strikes: A strike during the term of an agreement may constitute a breach of the no-strike clause even if Jacobs subject. Lion Oil held where K provides a reopener pd on a term, the union may strike viol. § 8(d) (assuming proper notice and exhaustion of the cooling-off pd).

Milwaukee Spring II (NLRB 1984) - bargaining history caseo Milwaukee Spring I - this transfer of work is a mandatory subject of bargaining. Board

says as to mandatory subject during term of the agreement, the employer cannot act unilaterally unless it has U agreement under §§ 8(a)(5) and 8(a)(3). This is a breach of the wage clause b/c only trying to move it to pay lower wages. This interpretation was very constraining on employers who made decisions even for solely economic reasons.

o Facts : Employer, during term of CBA and w/o U’s consent, transferred assembly ops from unionized facility to unorganized facility. The employer proposed the move b/c lost a deal. The U rejected it but the employer moved anyway. The parties stipulate that the decision was economically motivated (not union animus) and the Respondent has satisfied its obligation to bargain over the decision and was willing to bargain over the decision.

Issue is § 8(d) duty to get U consent before implementing unilateral change that modifies the terms and conditions contained in a CBA.

o Issue : Whether a commitment to continue operations at Milwaukee was contained in the agreement (the wage clause) and t/f not subject to modification even after bargaining.

o Holding : The Board will not find a K modification violation unless it identifies a “specific term contained in the K” that has been modified.

o Reasoning : Must identify a specified term of the K that the company’s decision modified.

Nothing required the employer to keep the bargaining unit work in Milwaukee plant. Should have wrote in a work-preservation clause.

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Wage/Benefits Provision? The employer didn’t disturb the wages and benefits at its Milwaukee facility, just moved the work to a different plant w/ different workers, and so didn’t violate and wage/benefit provisions of the K.

Recognition provision? NLRB refuses to read rights into recognition clauses that “merely recognized the Ks’ coverage of specified employees.”

Having no basis for an 8(a)(5), there is no legal/factual basis for an 8(a)(3) violation either.

Policy: this encourages truthful midterm bargaining over decisions to transfer unit work. Makes employer disclose labor costs as reason for move and allows Us to volunteer wage or other concessions. U at better position to evaluate decisions.

o Statutory or Contractual Remedy/Jurisdiction? The board generally will not find an ULP and thus will leave a U to contractual remedies before an arbitrator if:

The employer’s interpretation of its K rights has a “sound arguable basis in the K” AND,

the employer was not motivated by union animus, acting in bad faith, or in any way seeking to undermine the U’s status.

UNILATERAL CHANGES Mandatory PermissiveIn Contract Arbitration & 8(a)(5)/

8(d) violation [Jacobs]Must demand arbitration as violating the K.

Not in Contract Arbitration [MSII]Issue: What does it mean to be in the K, not in the K? (1) “Clear and

unmistakable” waivers & (2) Zipper Clauses.

Effect of Zipper and Mgmt Rights Clauses on Midterm Bargaining Duties: B/c the U tried to rely on § 8(d) instead of the K, the U gave away the issue (assumed that the Company acted pursuant to a right under the agreement). Had they argued on the K, this would have gone to arbitration re: unilateral action w/ respect to a mandatory subject.

o Milwaukee Spring II teaches us to go to arbitration!o If you don’t take to arbitration, implicitly acknowledging that mgmt. has the right

to do this under the mgmt. rights clause (if there is a zipper clause). o Will no longer see these cases b/c courts/board is pushing this back into the K. Need

explicit clauses saying can’t subcontract, can’t transfer work. If vague, look at how mgmt. clause is drafted.

Mgmt rights clause K interpretation: Look at bargaining history, past practice, and strength of mgmt. rights clause itself.

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WEAPONS OF ECONOMIC CONFLICT: STRIKES, BOYCOTTS, AND PICKETING

Strikes and Employer Countermeasures

Economic Pressures and the Duty to Bargain

o NLRB v. Ins. Agents’ Int’l Union (1960): emphasizes role of strikes and eco. conflict. S.Ct. position that the use of economic weapons is generally not inconsistent w/ GF bargaining, and shouldn’t be regulated through §§ 8(a)(5) and 8(b)(3). Should be regulated through antidiscrimination principle embodied in §§ 8(a)(3) and 8(b)(2).

o Note: The Role of Economic Conflict in the Bargaining Process and the Causes of Strikes Labor - principal weapon = STRIKES (Collective w/drawal of

services of represented employees). Also may be supported by ancillary pressures (picketing of the premises/operations of suppliers/customers).

Success depends on o profitability of the firm and ability to raise prices

w/o losing market positiono ability of the U to impose prod. losses on the firmo financial resources of the firm to w/stand losseso the financial resources of employees to w/stand

losses. Board made clear that a conventional peaceful strike

doesn’t suspend the employer’s duty to bargain. Employer - principal weapon = MAINTAINING OPERATIONS.

Also, lockouts (refusal to allow employees to work pending the resolution of the dispute).

Strikers and Replacements

o The Mackay Radio Doctrine

Fundamental Q: Did § 7 protection of right to strike shift the entitlement of the employer to running the business to the U in the right to strike?

NLRB v. Mackay Radio (1938) - employer may maintain ops w/ PRs

Facts: Wireless communications Co. brought in personnel from other offices to San Fran. In response to a general strike, offering them permanent employment. The strike was unsuccessful and the union allowed the body of strikers to return except for 11 EE’s who had been active in the union—those had to apply for reinstatement. Ultimately only 6 of the replacements stayed and so only 5 strikers were not able to come back

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Holding: The EE’r discriminated against EE’s active in the union when it allowed all but 5 to be reinstated on the basis of union activity

Rationale: It is not an ULP to replace striking workers and to offer replacement workers permanent placement in exchange for accepting the employment during the strike. Thus § 13 protects workers’ right to strike but does not prohibit EE’rs from protecting and continuing their business

o But Strikers retain their EE status during the strike under § 2 (3) of the Act

o The evidence supports the finding that the preparation and use of the list, and action taken by the EE’r, were with the purpose to discriminate against those most active in the union, and therefore constituted an §§8(1) and 8(3) violation.

NLRB v. Fleetwood Trailers Co. , 380 U.S. 375 (1967) Facts: EE’r lost 50% of its workforce during strike and hired replacements,

while maintaining a temporarily reduced rate or operations. Strike ended, but EE’r said that it could not reinstate workers due to decreased operations. 2 Months later operations increased and EE’r hired new laborers rather than reinstate old EE’s

Holding: The refusal to reinstate striking workers, who were still EE’s, after operations increased 2 months later, requiring the EE’r to hire more workers was an ULP in violation of §§ 8(a)(1); (a)(3)

Rationale: An striker remains an EE of the EE’r until reinstated or he acquires regular and substantially equivalent employment

o Refusal to reinstate any of the striking workers had discouraged EE’s from engaging in protected activity

o EE’r must show legitimate and substantial business justification for his failure to reinstate workers, or the EE’r violates the Act without regard to its intent or antiunion motivation.

to the decision to declare that an employer may maintain operations w/ the aid of permanent replacements.

Laidlaw Corp., 171 NLRB 1366 (1968) : Economic workers who unconditionally apply for reinstatement at a time when their position s are filled by permanent replacements:

Remain EE’s ando Are entitled to full reinstatement upon the departure of the

replacements unless they have in the meantime acquired regular and substantially equivalent employment, or

o The failure to offer full reinstate was for legitimate and substantial business reasons.

Replacement Workers and Congressional Intent of the Act? Mackay declares the legitimacy of hiring replacements to continue business,

but this declaration was immaterial to the final opiniono G.C. conceded the point and

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o Based on precedent

NLRB Pub. Res. No. 44: If the strike was based on EE’r ULP then the board may reinstate workers to their jobs without prejudice, but where there was no ULP the strikers had no legal claim to restoration.

The Leg. Hx of the Act supports the conclusion that EE’rs may hire replacement workers during a strike at will, “The Mackay doctrine was not a judicial effort to minimize the pro-labor goals of the original Wagner Act. It was in fact, consistent with the law as understood by its framers, the Board, and by organized labor itself."

Taft-Hartley would later codify permanent replacement in 1947 by stating that replaced workers do not get a vote on Board elections.

There remains an element of risk for both parties when strikes occur because neither knows whether the Board will uphold a ULP:

o So labor doesn’t know if the strike will likely result in being permanently replaced, and

o EE’r doesn’t know if it will be caught b/w having to let go perm. Replacements and facing mandatory reinstatements with backpay to striking workers

Is the duty of loyalty —not to take action inconsistent with the continuation of the employment relationship— one-sided?

o Under Jefferson Standard: workers owed a duty of loyalty to the firm and were not protected when they engaged in product disparagement picketing in the course of the strike

o Why can EE’rs take actions that would effectively terminate the relationship but not EE’s

EE’rs face 2 risks when hiring replacementso That the strike will be deemed a ULP strike, and o The strike will end with a settlement requiring the displacement of

perm. Replacement workers by returning strikers Time limits?

o Brooks Research & Mfg. , 202 NLRB 634 (1973): Rejecting time limits on Laidlaw rights, but stating that EE’rs might reasonably require the EE’s to check in at reasonable intervals as to whether they still desired reinstatement

No duty of full-disclosure: EE’r’s may inform organizing workers of the right to hire permanent replacements in the event of a strike without informing them of their Laidlaw rights without committing a ULP

o Eagle Comtronics, Inc. 281 NLRB 515 (1982): EE’r statements that are consistent with the law cannot be characterized as coercive

o G.W. Galloway Co., 281 NLRB 262 (1985): EE’r violation where it told EE’s that it would “have to terminate and replace” EE’s who did not return to work.

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Note: Reinstatement Rights of Replaced Economic Strikers

Permanent TemporaryEconomic Yes, but employees have

Laidlaw rights.Yes.

ULP No. Strikers must be reinstated.

Yes.

Fleetwood: The failure to reinstate discourages employees from engaging in protected activity and t/f violates §§ 8(a)(1) and 8(a)(3). The employer can show it was done for legitimate and substantial business justifications to rebut the charge. BUT absent such a showing, the employer, w/o regard to its intent or antiunion motivation, violated the act.

Laidlaw: Strikers who apply for reinstatement when positions are filled by permanent replacements: (1) remain employees and (2) are entitled to fill reinstatement UNLESS - acquired equivalent employment or - the failure to offer full reinstatement was for legitimate and substantial business reasons.

o Duration of Laidlaw rights unclear.

Note: Strike Settlement Agreements

Waiver of Laidlaw Rights? May be a breach of the DFR by a U. Int’l Ass’n of Machinists (2d Cir. 1975) sustained an agreement extinguishing all reinstatement rights 4 1/2 months after the strike was settled b/c pd not unrsbly short, not intended to be discriminatory/misused, not way of employer trying to undermine status of the U, and was the result of GF bargaining.

Displacement of Replacement Workers: Seems to suggest no ULP. May file charge against employer for not telling employees the full scope of their rights. Must be careful re trying to deter workers from striking by telling them they could lose their jobs by permanent replacements.

o United Steelworkers of Am. , Case No. 8-CB-3963, 103 LRRM 1238 (1979): Union may lawfully seek to parcel out a limited number of jobs b/w strikers and permanent replacements on a nondiscriminatory basis such as seniority and/or job classifications

o Belknap v. Hale, 463 U.S. 491 (1983) : Replacement Workers are not preempted from bringing state law BOK suits against EE’rs. Also held that EE’rs could make a promise of continued employment subject to any settlement agreement without sacrificing Mackay rights to insist on retention for the permanent replacements

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Note: ULP Strikes

Mackay only applies in economic strikes NOT in ULP strikes (strikes called or prolonged b/c of one or more employer ULPs).

o Where caused by both impasse and a ULP, it is deemed a ULP strike so long as motivated in part by the ULP.

o If employer commits ULP during economic strike, a finding of causal connection b/t the employer’s conduct and the continuation of the strike coverts the strike into a ULP strike (even if not even a predominate factor).

Determining the “cause” of a strike: o ULP strikers get “bump” and back-pay from the date of an

unconditional application to return.o ULP strikers can vote in strikes that go beyond 1 yr. Replacements

cannot vote at all during ULP strike.o Doesn’t necessarily violate a no-strike clause in a CBA. Mastro

Plastics.o ULP strike does not constitute a strike whose object is the “termination

or modification” of an agreement triggering notice/cool-off obligations of 8(d). Mastro Plastics.

Courts will look to timing of strike, content of union leaflets and picket signs, employee statements at rallies, employee statements on unemployment ins. claim forms, etc.

Note: Honoring Picket Lines: Acting in solidarity by refusing to cross picket lines. By w/holding work from employer by refusing to deliver to certain store w/ economic strike going on, is that in breach of a no-strike clause? Fairly well-est’d that even a single employee’s decision to refuse to cross is “concerted” activity for “mutual aid and protection” w/i § 7.

May be unprotected for several reasons: o The picket itself may be illegal (e.g., a secondary boycott violating

8(b)(4)).o The employee may have waived any § 7 right by agreement. Standard

no-strike clause may cover sympathy strikes. The waiver of a statutory right must be SPECIFIC. If the employer and

sympathy striker have a no-strike clause, the board presumes that the employee is unprotected.

o Shift - employee needs explicit language saying that crossing picket line is NOT violative of the no-strike clause.

Can argue this either way. The Board says lean twd the general no-strike clause covers it.

Metropolitan Edison seems to run directly against this. Problematic. To further confuse, if the U raises it at the bargaining table and they talk about it and the K doesn’t say anything about it Indianapolis Power decisions say that if it’s raised at bargaining and the parties agree to disagree then no mutual

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intent to include the sympathy strikes w/i the clause, t/f no “clear and unmistakable” waiver of the employee’s statutory rights.

o Looks like no-strike clause DOES include refusal to cross picket line is unprotected.

The Role of Impact Analysis

§ 8(a)(3) discrimination w/ intent to encourage or discourage Union membership.

Undermines Mackay but does not overrule. Tried overruling Mackay by statute, but never passed.

Free Choice Act tries to avoid this problem of inherently destructive actions in first time bargaining situations mandated by interest arbitration. Combination of card rec. and interest recognition---comes into play dur. your first K. After that they’d strike.

NLRB v. Erie Resistor Corp. (1963) - super-seniority Facts: EE’r and the Union failed to reach an agreement on a new CBA and the

union struck (all 478 members participated). EE’r first shifted personnel to continue production at 15–30% production. Then EE’r notified strikers that they would be hiring perm. Replacement workers. To guarantee permanent positions the EE’r offered 20 yrs super-seniority to all replacements and strikebreakers. Devastating impact on the strike and union finally conceded to a new CBA. Many stikers were eventually laid off because they lost their seniority. Union filed ULP. ALJ said no, Board said yes, and COA found that absent a finding of specific intent, the EE’r basically found permanent replacements

Holding: EE’er’s actions were so inherently destructive and discriminatory towards the union and union activity that it carried its own indicia of intent But no finding of specific intent was needed, nor was it necessary to even reach the question because the injury to EE’s right outweighed the company’s business purpose.

Rationale: No need to establish subjective intent to prove a violation because some conduct by its very nature implicate intent where the natural foreseeable consequences of the actions warrant the inference.

o Sometimes evidence of subjective intent will impeach conduct, which, on its face appears to serve legit business ends and dispels the EE’rs claim of legitimacy.

o EE’r must be held to intent he foreseeable and inescapable consequences of his actions, which are a ULP unless the EE’r can justify his actions as something other than as they appear on their face.

o Conduct Speaks for itself—it is discriminatory and it does discourage union membership and whatever the claimed overriding justification may be,it carries with it unavoidable consequences which the EE’r not only foresaw but must have intended.

o The court’s must balance the purported business interest against the harm to EE’s rights to organize and engage in Union activity

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o Board made 5 findings: Unlike Mackay the super-seniority affected all strikers, not just

those who had been replaced. Super-seniority works to the detriment of strikers as compared

to non-strikers Super-seniority made available to striking workers were offers

of individual benefits and violated exclusive representation. Extending super-seniority to CBU EE’s as well as

replacements were a combination threat/promise that could be expected to undermine the strikers’ mutual interest and place the entire strike in jeapordy

Super-seniority heightened tensions, created a impediment to the union and union activity by creating a permanent reminder of the dangers of union activity with each successive layoff, and mad collective bargaining impossible for the rep.

Mackay didn’t apply because here the EE’er’s conduct was a far greater encroachment by adding super-seniority to replacement, rather than just permanent replacement

Notes: Where the EE’r uses super-seniority, and exceptional lure to attract replacements or strikebreakers, he is doing something more than providing a market check on union demands; he is taking extraordinary measures to beat back the strike.

Market-Based Checks?: Erie Resistor was an extraordinary measure, not reflective of what practices will be at the strikes end and t/f distorts the collective bargaining process. Nothing says have to hire replacements under the same terms and conditions of previous employment, but can’t be crazy.

Recall Rights: The EE’r does not have to recall CBU strikers ahead of other laid-off EE”s and may extend recall rights to non-union, or laid off replacements based on the expectancy of recall, the EE’er’s past business experience, future plans. Etc…

Giddings & Lewis, Inc. , 255 NLRB 742 (1981) : The Board found ULP wher the company did not follow its own recall policy, classified un-reinstated EE’rs on the basis of their protected activity, and recalled non-strikers ahead of its union EE’s.

Aqua-Chem - employers could extend recall rights to laid-off replacement workers if they had a “rsbl expectancy of recall” based on factors like the employer’s past business experience, the employer’s future plans, the length of the layoff, circumstances of the layoff, and what the employee was told regarding the likelihood of recall.

NLRB v. Great Dane Trailers (1967) - employee vacay benefits Facts : Workers went on economic strike. A bunch of them demanded their

accrued vacation pay from the company under the CBA (vested right?). The company said no, saying that all K obligations had been terminated by the strike and t/f none of the employees had a right to the pay. Shortly after the company announced it would grant vacation pay (in the same amts in under

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the K) to all employees who reported for work on a certain date. The company denied that these payments were founded on the agreement and said they were just a new policy.

o U could have said breach of K and simply req. the employer to go to arbitration to determine whether these are accrued rights under the K. U instead files 8(a)(3) after employer’s announcement.

o COA: Although discrim. there was no affirmative showing of an unlawful motivation to discourage union membership or to interfere w/ the exercise of protected rights.

Two-Prong Test for 8(a)(3) Violations (see flowchart above) : o Discriminatory o Discourages membership - includes discouraging participation in

concerted activities such as a legitimate strike. means that the finding of a violation normally turns on whether the discrim. conduct was motivated by an antiunion purpose.

Holding :o Erie Resistor - “INHERENTLY DESTRUCTIVE” category; held that

some conduct carries w/ it “unavoidable consequences which the employer not only foresaw but which he must have intended” and thus bears its own indicia of intent. If inherently destructive, employer has burden to show legitimate business purpose.

If it can be rsbly concluded that the employer’s discrim. conduct was inherently destructive of important employee rights, no proof of an antiunion motivation is needed and the board can find a ULP even if the employer introduces evidence that the conduct was motivated by business considerations.

If the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge IF the employer has come fwd w/ evidence of legitimate and substantial business justifications for the conduct.

o HERE, the company didn’t come forward w/ ANY evidence of legitimate motives for its discriminatory conduct.

Seems to run against traditional burden falling on GC.

Permanent Subcontracting of Unit Work under Great Dane: Great Dane: Besides going to 8(a)(3) and arbitration, U could have made

argument that on expiration of the K, have duty to bargain. Arguably, employer cannot alter their policy w/o bargaining (it’s a mandatory subject of bargaining --- duty to maintain terms of K). Argue 8(a)(5) and 8(d) violations.

Sub-K: Don’t have to bargain about the terms and conditions of employment of replacements for strikers. (Can’t sit down and bargain w/ the U!) Can’t offer anything better to replacements anything better than you’d offer to the union (violates 8(a)(5)). Do we treat subcontracting like hiring replacements (apply Mackay)? No effect of long-term division of the workforce like PRs. In between Mackay and Erie Resistor.

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Sets up entire F

RA

ME

WO

RK

!!!


Int’l Paper interpreted “inherently destructive” narrowly in a case involving subcontracting during a lawful lockout. Said Erie Resistor, Great Dane, and Metro. Edison hold that inherently destructive conduct is ONLY where “the employer treated employees w/i a bargaining unit differently depending on the degree of their union activity.”

Not clear how this will come out.

TWA v. IFFA (1989) - RLA case Facts : Junior replacement flight attendants allowed to keep positions to the

detriment (under the seniority bidding system in the expired CBA) of senior striking flight attendants.

Holding : An employer is not required to lay off junior crossovers in order to reinstate more senior full-term strikers at the conclusion of a strike.

Reasoning : o Consistent as a group: Everyone got to keep their seniority, nothing

changed, and bidding system stayed the same. Just that during the strike the strikers lost preferred rights as to location/schedule (just would have to wait for availability when they come back from the strike).

No discrimination and a business justification. The impact was probably comparatively slight, though they

don’t say this. Dissent : Like Erie Resistor b/c undermines mutual concern among strikers. It

is incentive for individual workers to try and save/improve their own positions by discontinuing support for the strike effort.

Here, employer came fwd w/ business justification and seems to dismiss the violation w/ the balancing test (inherently destructive prong of analysis). Ins. Agents also arguably applies b/c not discriminating, just tactics (though that’s not where the case goes).

THIS FRAMEWORK IS REAL. OMG! - Lynch. This initial classification is problematic b/c tells you everything but you don’t get any clarity from the opinions as to when to treat it as inherently destructive (well, def has to be discriminatory) or comparatively slight. Balancing test creeps into initial classification in terms of when inherently destructive. Whichever way you categorize, makes all the difference in the world.

What’s the basis for the initial categorization?

Christmas Bonus Hypo: The employer had a bunch of plants and one of them struck and productivity went down so didn’t get Xmas bonus. Business justification - productivity went down. Can say discrim. b/c on strike, took away their turkey.

Here, productivity was sufficient business justification.

o The Effect of Mackay on the Union’s Majority Status

An economic strike does not suspend an employer’s duty to bargain. Permanent replacements and the strikers they replace have the right to vote in Board elections.

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ISSUE: What is the effect of hiring replacements on the incumbent U’s majority status and the employer’s duty to bargain during and after an economic strike?

After expiration of the certification year, an incumbent U has rebuttable presumption of continuing majority status. Board’s approach was that employer could rebut by showing that, at the time of the refusal to bargain, either:

o The U did not in fact enjoy majority support, ORo The employer had a “good-faith” doubt, founded on a sufficient objective

basis, of the U’s majority support (Curtis Matheson).

NLRB v. Curtin Matheson Scientific, Inc. (1990) Facts : Board certified U as CB agent for production and

maintenance employees. CBA expired and employer made final offer on anew agreement which was rejected by the U. Employer then locked out the 27 bargaining unit employees and the U commenced an economic strike. Five employees immediately crossed the picket line. 19 strikers, 29 replacement workers were hired. Employer then w/drew recognition from the U and refused to bargain stating that no longer had majority of employee support.

Standard : Was there a good-faith doubt, founded on a sufficient objective basis, of the U’s majority support?

o Presumption of continued representation: New workers who were supporting representation is the same percentage of support at the time that the election was held.

o Board said (1) crossover didn’t support an inference of repudiation. (2) Resignation of two employees didn’t indicate opposition, but reduced the size of the bargaining unit, and (3) statements made by six employees were ambiguous at best. Finally, (4) hiring of striker replacements - use case-by-case approach - need add’l evidence of a lack of union support by replacements to be a significant factor in good faith doubt. T/f evidence insufficient to rebut presumption of continuing majority status.

o Tensions w/ the statute: Employee free choice and protecting bargaining relationship.

Holding : The presumption is rational. Reasoning (plurality) : The presumption that replacements oppose the

incumbent Union would, in effect, override the presumption of continuing majority status. May be an economic concern and not about Union support for refusal to cross the picket line.

o Replacement workers are capable of looking past the strike in considering whether or not they desire representation to the union (in response to argument that there in inherent conflict in U repping both strikers and replacements).

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o The Board’s approach is also consistent w/ NLRA policy of industrial peace. An anti-union presumption could discourage GF bargaining and chill employees’ exercise of statutory right to strike b/c an employer could eliminate the U just be hiring enough replacements.

Concurrence : This case presses the limits of deference. Acc. to Tex. Petrochems. Corp., cannot poll employees. Rehn has doubts that the Board may insist that a GF doubt be determined on the basis of sentiments of individual employees, but then not allow the only effective means of determining those sentiments.

Dissent (Blackmun) : The Board departs from prior cases w/o explanation. Dissent (Scalia) : The interests of the replacements is invariably opposed to the

interests of the strikers, it seems impossible to conclude that the employer did not have a rsbl, good faith doubt re the U’s majority status.

Alternate approach = show actual loss of majority status before w/drawing (see FN 8 of opinion). Hold a decertification election. Hard to decertify and hard to unilaterally w/draw w/o an election.

Lockouts

Temporary Repl (Am. Ship Bldg.)

Permanent Repl

Defensive YES (Brown) ?Offensive YES ? (needs to come from the

bargaining relationship---it’s troublesome)

Offensive-Permanent? If you let them offensively lock out and let them hire PRs and go for decertification, the really let employers destroy a U in a circumstance where the U hasn’t made the choice whether to really put the workers’ jobs on the line.

o American Ship Bldg. Co. v. NLRB (1965) - lockouts = cool Facts : Employer operates shipyards—highly seasonal business

concentrated in the winter months. Employer feared that a strike would come in the summer during worst time of shipping season. U assured employer that they wouldn’t strike but there had been wildcat strikes before. During the summer, the employer laid off most of its workers. Neg’d a new K after the lockout and the employees were recalled.

Trial Examiner found that the employer’s primary purpose in locking out its employees was to avert a particularly harmful economic consequence.

Board found that the layoffs were for economic coercion and this purpose is a ULP under §§ 8(a)(1) (coercion) and 8(a)(3) (discrimination).

o Lockouts are permissible to safeguard against loss where there is rsbl ground for believing that a strike was threatened or imminent. None here. (“Defensive” lockout principle.)

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Holding : Temporary lockouts and business shut-down do NOT violate §§ 8(a)(1) and 8(a)(3) when used solely as a means to bring economic pressure to bear in support of the employer’s bargaining position, after an impasse has been reached.

Reasoning : No evidence/finding that the employer was hostile to employees’ collective

bargaining or that the lockout was designed to discipline them. Can’t say the employer’s intention was to destroy/frustrate the bargaining process.

Doesn’t destroy U’s ability to represent strikers, just puts pressure on them. No Erie Resistor schism among workers. The lockout may dissuade employees from adhering to U position, but the right to bargain collectively does not include any “right” to insist on one’s position free from economic disadvantage.

There is nothing in the statute to imply that the right to strike “carries w/ it” the rights exclusively to determine the timing and duration of all work stoppages. This is more like Ins. Agents (a tactic).

The Board, despite Brown, does not have the general authority to assess the relative economic power of the parties in the bargaining process and to deny weapons to one party or the other b/c of its assessment of the party’s bargaining power. [Brown held no lockouts b/c gives employer too much power.]

Concurrence : Argues that the Court unnecessarily reached the Q of the validity of bargaining lockouts. The Board already balanced the necessary interests. The majority rejects the Board’s reasoning b/c they don’t think the lockout is inherently destructive. But this is a truncated definition of the right to strike, and not supported by the Act. This conduct does speak for itself (is inherently destructive) under Erie Resistor b/c it carries w/ it unavoidable consequences which the employer not only foresaw but must have intended.

o Note: Lockouts in Multi-employer Bargaining Units

Buffalo Linen (1957): Defensive lockout came from multiemployer bargaining context. The nonstruck companies locked out their employees in order to maintain a common front among all members of the association. Board held this was response to a “whipsaw” strike comes w/i expanded category of “defensive” lockouts. S.Ct. upheld as w/i Board’s policymaking discretion.

Multiemployer bargaining puts small businesses on an equal playing field w/ large Unions. Thus, we have conflicting legitimate interests here. It is the Board’s responsibility to balance these interests.

NLRB v. Brown (1965): The nonstruck members’ use of temporary replacements in tandem w/ the defensive multi-employer lockout did not violate §§ 8(a)(1) & (3). The closed business sued the open business in the multi-employer unit. S.Ct. didn’t see how the continued operations of Food Jet and their use of temporary replacements was any more destructive/hostile twd employee rights than the lockout itself. Keeping

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the business open preserved the multi-employer group and the common front essential to multi-employer bargaining.

o Pre-Impasse Lockouts: Darling & Co. (NLRB 1968) held that the absence of an impasse is a factor in determining whether a lockout was unlawfully motivated. It does not per se render a lockout illegal. The Board upheld the disputed lockout on the ground that the strike history of the bargaining unit justified the employer’s concern about a strike timed to occur during its busy season. Darling was affirmed in Lane v. NLRB (D.C. Cir. 1969), emphasizing that the Union was “strong” and had been recognized for a substantial period.

o Lockout Coupled w/ Hiring Replacement Workers Temporary Replacements: Is Brown limited to multi-employer bargaining????

Does an employer’s use of temporary replacements after locking out unit employees constitute action w/ an “inherently destructive” or “comparatively slight” impact on § 7 rights? (Erie Resistor - superseniority of 20 yrs for replacements)

o Factors (from Local 825): (1) duration of the temporary employment and whether a definite date of termination had been communicated to the union and employees, (2) whether the option of returning to work was available to the employees upon their acceptance of the employer’s terms, and (3) whether the employer had agreed to continue in effect the union-security clause from the old K.

In any event, what is the employer’s legitimate business justification? If “comparatively slight” s there proof of antiunion motivation? (Great Dane

- vacation benefits for leaving strike) Permanent Replacements: Maybe OK for legitimate business reason if imminent

strike deadline (Int’l Paper) or employees engaging in substantial violence (Johns-Manville).

Permanent Subcontracting?

o “Mutual Aid” Pacts: Employers call for nonstruck employers to pay to struck employers a share of the increased revenues accruing to the former b/c of a strike, or provide for payments to the struck firm out of “insurance funds” contributed by the participating employers. Employer strike ins. programs are not the subject of mandatory bargaining and so a U’s insistence of eliminating the ins. violated 8(b)(3). Operating Engineers Local.

o Partial Lockouts? Lockout non-probationary employees and keep probationary employees on the job. Can you do this under 8(a)(3), (5). Lynch: This is flat out discrimination---locks out only U members. Most of the time partial lockouts aren’t resolved this easily.

Bunting Bearings: D.C. Cir. held that the burden was on the employer to present evidence showing that the lockout was motivated by legitimate objectives. Interpreted Great Dane as holding that if an employer has “engaged in discriminatory conduct which could have adversely affected employee rights to some extent,” the employer must “establish that he was motivated by legitimate objectives.”

Subcontracting Struck Work

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o Land Air Delivery, Inc. v. NLRB (D.C. Cir. 1988) Facts : U authorized a strike, pursuant to the CBA, to protest the employer’s failure to

comply w/ certain grievance procedures. The employer subcontracted out work and all bargaining units eliminated. Teamsters got all violent against replacement workers and company property and so the employer filed a ULP claim. U entered into informal agreement for no more coercive acts. Strikes end. Then, the GM told the former strikers there was no work for them. The U filed under 8(a)(1), (3), (5).

Holding : If you want to subcontract during strike, must bargain w/ the U. (If just hiring replacements, don’t have to bargain re terms and conditions of the replacement workers.)

Why the distinction? Reasoning :

Hawaii Meat - Court interprets case narrowly to say “an employer may not be obliged to bargain w/ a union about permanent subcontracting during a strike when that subcontracting is necessary to the business purpose of keeping the plant continuously in operation and time of decision is of the essence.” Permanent subcontracting but the business justification was sufficient to justify.

The ALJ was amply supported in finding that there was no business necessity: Sub-K after 3 mo. of striking, had successfully operated dur. that period, after strike violence ULP settled, employees didn’t demand sub-K status, context of the past years of dispute.

How is this different from a lockout?

o Int’l Paper (D.C. Cir. 1997): An employer may implement a permanent subcontract during a lockout, just as it may do outside of the lockout context. Not automatically “inherently destructive.” Balancing test - impact comparatively slight and the employer in the particular context of this case had a legitimate business justification to subcontract out the work given the history/context of the dispute.

Courts try to deal w/ these cases w/i the framework as: is the action of the employer inherently destructive to § 7 rights, or comparatively slight? Does the employer have business justification? If yes, then have to show antiunion motive. Then still may have an § 8(a)(3) violation.

Regulation of Collective Action by Labor Organizations

Constitutional Limitations on Government Regulation

o Fundamental Q: Why isn’t picketing speech? Does it depend on what the signs say? Do we make distinctions b/t speech based on content? Why does labor law do this?!! Only way to justify is that b/c picketing is NOT just speech.

Underlying Assumption: Unions are highly organized interest groups. Sense of solidarity b/t workers so picket is a signal to a fellow U member to not cross the line. The discipline twd workers and consumers. Can have a negative impact on the business.

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o Teamsters, Local 695 v. Vogt, Inc. (1957) Facts : Union wanted all gravel pit employees to join the union.

When it sought unsuccessfully to induce some of the employees to join, some employees picketed the entrance of the place of business with signs reading, “The men on this job are not 100% affiliated w/ the AFL.” Drivers refused to deliver/haul goods to/from plant, causing substantial damage to the business. The employer sought an injunction to restrain the picketing since it was to induce the employer to force its employees to become union members.

WI S.Ct.: The picketing was for an “unlawful purpose” since a state statute made it a ULP for an employee(s) to “coerce, intimidate or induce any employer to interfere w/ any of his employees in the enjoyment of their legal rights . . . or to engage in any practice w/ regard to his employees which would constitute an ULP if undertaken by him on his own initiative.”

Holding : A State, in enforcing some public policy, whether its criminal or civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.

Injunction upheld. The policy enforced here is a valid one. WI has rational basis for the inference it drew concerning the purpose of the picketing (coercing the employer to coerce his employees).

Reasoning : Picketing, even if peaceful, is more than just communication of ideas and

cannot be immune from all state regulation. Involves patrol of a particular locality and induces action, irrespective of the nature of the ideas being disseminated.

Speech may be part of a course of conduct that violates a valid law. Giboney. Injunctions should be upheld even when arising in the course of a labor controversy, when such picketing is counter to a valid state policy in a domain open to state regulation. A picket that was in a single and integrated course of conduct was a conspiracy in restraint of trade violating state antitrust law.

Dissent : HOGWASH! There is nothing but speech here—advocacy of one side of a dispute that warrants First Amendment protection. WI policy is a blanket policy against all picketing (invalid?). Reads Giboney to hold that this form of expression can be regulated/prohibited only to the extent that it forms an essential part of a course of conduct which the State can regulate or prohibit.

o Labor picketing = economic pressure subject to rsbl state regulation rather than as a form of communication generally exempt from regulation by virtue of the First Amendment. Treated differently from political picketing. Why?

Calls for an auto. response to a signal, rather than a reasoned response to an idea. Retail Stores case.

“Speech plus” b/c it involves martial aspects (interfering w/ access and egress). But why not just regulate on access/egress?

A form of pressure applied by closely knit, powerful organizations. Supported by system of power (common eco. interests, loyalties, social pressures, eco. sanctions, and bureaucratic force). Makes it a less rational appeal to persuasion, more like eco. weapon.

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Can be regulated as part of an integrated scheme to affirmatively protect labor groups in their right to organize and pursue economic objectives by concerted action. Kind of like trading away constitutional rights?

o Producer vs. Consumer Boycotts ILA Case (1982): A Union boycott (protesting Soviet invasion of

Afghanistan) disrupted Allied’s shipments and so Allied filed secondary boycott charges under § 8(b)(4) and brought a damages action under § 303. The S.Ct. held that the ILA boycott was illegal and dismissed the 1st Amendment contention. “[C]onduct designed not to communicate but to coerce merits . . . less consideration under the First Amendment.” The labor laws reflect a careful balancing of interests in its policies and there are ways to express opposition to Russia that does not infringe on the rights of others.

Contrast NAACP boycott of white businesses; constitutionally protected despite threats by an NAACP official. Held to be economic strike and speech was protected.

Political-economic distinction b/t the two cases are manipulable. Consumer-producer distinction makes the two cases compatible.

Secondary Pressures

Section 8(b)(4)(A). It shall be an unfair labor practice for a labor organization or its agents . . . to strike for the purpose of securing an agreement prohibited by section (e).Section 8(b)(4)(B). Prohibits a union from pressuring secondary employers to “cease doing business” w/ the primary employer.Section 8(e). Declares unlawful certain contractual provisions thought to further secondary objectives. (E.g., won’t Section 10(l). Obligates the Board to give priority to charges alleging violations of §§ 8(b)(4), 8(e), and 8(b)(7), and requires BNLRB Regional Directors to seek interim injunctive relief in the district courts if they have “rsbl cause to believe that such charge is true.”Section § 303. Permits employers and others injured by § 8(b)(4) violations to sue directly in fed’l court to recover damages.

o To establish a violation of § 8(b)(4), a U must have used improper means in support of an improper objective.

Improper Pressures = Pressures directed at employees of “any person” to induce a work stoppage

(§ 8(b)(4)(i)). Pressures directed at “any person” (presumably representatives of employers)

that amount to threats, coercion, or restraint of such person (§ 8(b)(4)(ii)). Improper Objects =

Clause (A): forcing an employer to enter into a § 8(e) agreement or to join a union.

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Clause (B): Forcing any person “to cease handling products of any other employer” or “to cease doing business w/ any other person.”

o Provision preserves otherwise lawful primary strikes or primary picketing. PROBLEM = How do we determine what’s primary?

Clause (C): forcing an employer to recognize or bargain w/ a union if another union has been certified.

Provision states that the section does not make it unlawful to honor a picket line maintained at the premises of another employer. Provision also protects certain nonpicketing publicity.

o The Primary/Secondary Distinction: ? See Thorman book on reserve for a good explanation of secondary/primary picketing.

o “Ally” Doctrine: Always must define the “primary” employer. If the picketing takes place at the premises of another firm that is deemed to be an “ally” of the struck employer, the statutory prohibition of secondary-situs picketing does not apply.

Royal Typerwriter Co. (2d Cir. 1955) Facts : Royal service employees were on strike. Royal

had warranties that they would service the typewriters, so during the strike they had to contract out this work. Independent companies did service on these Ks and the customer sent Royal the unpaid repair bill and Royal paid the independent company directly. Union picketed four independent typewriter repair companies doing this work.

Holding : The independent repair companies were so allied with Royal that the Union’s picketing of their premises was not prohibited by § 8(b)(4)(B).

o Broad : Where an employer is attempting to avoid the economic impact of a strike by securing the services of others to do his work, the striking union obviously has a proper interest in preventing those services from being rendered.

o Narrow : An employer is not w/i the protection of § 8(b)(4)(B) when he knowingly does work which would otherwise be done by the striking employees of the primary employer and where this work is paid for by the primary employer pursuant to an arrangement devised and originated by him to enable him to meet his contractual obligations.

Reasoning :o Ebasco held that subcontracted work was ally b/c not “doing business”

w/ Ebasco (was ally) w/i the meaning of 8b4a and the Union t/f hadn’t committed a ULP. These allies would inevitably tend to break the strike. “The economic effect upon Ebasco’s employees was precisely that which would flow from Ebasco’s hiring strikerbreakers to work on its own premises.”

o By doing the work of the primary employer they secure benefits themselves at the time that they aid the primary employer.

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o Independents had notice of the strike and “farm-out” b/c of the existence of the strike, receipt of checks from Royal, and the picketing itself.

Cases put burden on secondary company. Concurrence : The independents so far associated themselves w Royal in the

controversy w/ its employees as to forfeit their privilege as neutrals. Emphasizes taking pay from Royal.

If they’re allies in one location, are they allies in other third party locations (not doing struck work) just b/c they become R-1.

Common Ownership/”Integrated Enterprise” Ally: Law is clear that the Union can post picket lines around a primary employer’s facilities urging other employees not in bargaining unit to refuse to cross picket lines. This is not directed to “any person” other than the primary employer under the proviso to § 8(b)(4).

Must have (a) common ownership, (b) common control, and (c) integrated operations.

Corporate Parents and Subsidiaries: If company has TV station and newspaper and TV people go on strike, b/c it is your employer that owns both, can the Union go picket the newspaper? Other businesses of that owner---cases ask is it a centralized labor relationship operation? Shifting of workers back and forth, same labor policy, how much day-to-day autonomy?

o “Common Situs” Problems: Second exception to the bank on secondary-situs picketing---the employees of the primary employer are performing work at the premises of a secondary employer.

Common situs problem in Royal: Situs of a true R-2, the company that bought the typewriters and the company coming in to do the worker’s jobs.

Moore Dry Dock (1950) - No ULP Facts : Samsoc = R-1, owns ship from

other company. The ship hauls goods to the U.S. from a foreign location on a regular basis. The company that had done the shipping in the past had been represented by U-1. Samsoc gets Greek crew at much less than U wages. U wants to bargain re the Greek workers and represent these workers and get them U wages. Dismissed rep case b/c foreign ship. Moore = R-2, has U workers, refuses to work on Samsoc’s ship. Keeps work from getting done on the ship, which puts pressure on Moore Dry Dock to stop doing business w/ Samsoc. The union picketed at the shipyard’s entrance after being denied permission to picket immediately adjhacent to the dock where the Phopho (ship) was located.

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PHOPHO


Holding : Picketing of the premises of a secondary employer is primary b/c it meets the following conditions: (a) the picketing is strictly limited to times when the situs of dispute is located on the secondary employer’s premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places rsbly close to the location of the situs; and (d) the picketing discloses clearly that the dispute is w/ the primary employer.

Reasoning : o (a) Ship was tied up on the dock.o (b) The crew was ready for sea, on board to serve purposes of Samsoc,

and not Moore. Prepping crew is normal business of a ship.o (c) Were as close to the ship as they could get under the circumstances.o (d) Careful that picketing was directed to Samsoc. Signs read Phopho

was hot. No attempt to interfere w/ other work at the Moore yard. Class Notes :

o Classic common situs situation. Clear that there’s no dispute w/ the Dry Dock. If there were a problem w/ deliveries that didn’t want to cross the picket line, Moore DD can tell them to come on the property and picket next to the SHIP. Tells them not to deal w/ the crew/ship, but then deliveries to the DD are fine.

o Concept is that you can get next to the work that is the work of the primary and picket that, if they won’t let you get near it, then other consequences, but Ship has option of letting you get near it or not.

Standard: Primary employees must be present and doing related work at the situs.

NLRB v. Denver Building & Construction Trades Council (1951) - ULP Facts : D&L = R-2, general contractor, subcontracted

G&P (R-1) to do electrical work. G&P is non-Union (only nonunion employees on the project), D&L Union wants them off the job so they protest to D&L for hiring non-Union sub. Said that union men could not work on the job w/ nonunion men. During strike/picket G&P were only men to work. D&L notified G&P to leave so they could keep working on the project. G&P sued.

o Why isn’t the GC R-1? If they were, then at the building site, the entity in control of the building site would be D&L---could you picket the whole building site?

o Case turns out the way it does b/c construction site, the labor problem is w/ the sub who is not using U workers. Why this is secondary then is b/c you’re bringing pressure to R-2 to cease doing business w/ R-1.

Holding : The union’s strike, for the purpose of forcing D&L to terminate its subcontract, is a ULP.

Reasoning : o The labor dispute is between the Union and G&P.o G&P employees were NOT D&L employees, and so D&L had not

control over their movement/replacement. The subcontract presents a

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different situation: The only way that the Union could obtain their purpose (not work w/ nonunion men) was to force G&P off the job. Must, then, have included among its objects, forcing D&L to terminate its K.

o The fact that the contractor ad subcontractor were engaged on the same construction project, and that the contractor had some supervision over the sub’s work, did NOT eliminate the status of each as an independent contractor or make the employees of one the employees of the other. (Not allies.) Had an established business relationship of “doing business” w/ each other.

Dissent : The presence of a sub does not alter the realities of the situation, the protest is the same: union men did not want to be compelled to work alongside nonunion men on the same job. This makes the right to strike dependent on fortuitous business arrangements that have no significance to the evils of the secondary boycott.

Existence of the subcontract makes it a dispute b/t the U and the subcontractor and not b/t the GC and the Union. Have a subcontract in place!

Concerns in the background re inflated construction costs.

General Electric (1961) - picketed premises owned by primary employer Facts : Independent contractors’ employees were only

allowed to use one gate. The reason for doing so was to insulate GE employees from the frequent labor disputes in which the contractors were involved. The UNION called a strike and picketed at all the gates including the one only for indep. contractors.

o The Board used Dry Dock standards to hold that the Union’s object in picketing at the separated gate was to enmesh these employees of the neutral employers in its labor dispute in violation of § 8(b)(4)(A) (object of forcing the indep. contractors to cease doing business w/ the Company).

Holding : Dry Dock can apply to picketed premises owned by the primary employer if the ULP picketing occurs at an area that is unconnected to the normal operations of the struck employer.

Reasoning : o The Union must minimize the effect of its picketing (as req. by

common-situs doctrine) on the operations of neutral employers utilizing the market.

o Even though the primary employer owned the premises, the location of the picketing at the primary employer’s locality is not necessarily conclusive of its legality.

o Dual objectives from Denver Trades was to balance interest to bring pressure to bear on offending employers in primary labor disputes and shield unoffending employers and others from pressures in labor disputes they are not involved in.

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CONTRACTORS ONLY!


o On remand, must determine the type of work that is being performed by those who use the separate gate, only a ULP f the indep. workers were performing tasks unconnected to the normal operations of the struck employer. This respects the balancing of objectives in DT. Even mixed use of the gate would not bar picketing rights.

Class Notes : Importing ally doctrine to common situs doctrine. Create separate gate is OK, but don’t have deliveries come to that gate that would be necessary for ordinary operations b/c undermine what U can typically do that primary strike to disrupt ordinary operations. Standard: Sub-Ks can’t be doing work intimately related to ordinary operations.

GE on Remand: The installation of showers and miscellaneous repairs that had once been done by GE’s employees were “necessarily related to GE’s normal operations” and the picketing was thus “primary.”

Relationship of GE/Moore Dry Dock/Denver Trades: RECOGNIZE the tensions in the classifications. Elec. work intimate to ordinary operations? Denver Trade still good law for construction sector. Moore Dry Dock for R-2 picketing w/ R-1 dispute (common situs besides construction sector). GE otherwise applies. The cases that create problems are:

Carrier Corp. (1964): The pickets against R-1 were on R-2’s property. Looks like common situs in Moore Dry Dock. BUT court doesn’t treat under Moore Dry Dock. Instead said like deliveries so treat under GE. Undermines distinction b/t looking at property when dealing w/ O as GE issue, and looking at property where some Third Party owns as Moore Dry issue.

Crystal Palace Market (9th Cir. 1957): Crystal O of property AND involved in dispute. Gave direct access. Applied Moore Dry Dock where R-1 actually owns the property. Board held the U couldn’t picket the entire site even though its dispute was w/ the O.

Markwell & Hartz (5th Cir. 1967): GC controls whole site; brings in two subs repped by Building & Trades U. UMW doesn’t like that they’re not represented by UMW. Now the Q is if M&H in control of whole site, is that like GE? The work is definitely interrelated and can picket all the gates. No, applies Denver Trades at the construction site. Can create a separate gate, and the U can only picket the gate where the subs are coming in. Like an exception b/c if site is controlled by R-1 (M&W) you will wind up w/ an interrelated test (GE) if out of the construction sector.

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Appeals to Customers of Secondary Employers

Note: Servette-DeBartolo and the “Publicity” Proviso to § 8(b)(4)

The Publicity Proviso: For the purposes of ¶ 4, nothing should be “construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor org.” that a product is produced by an employer w/ whom the U has a primary labor dispute, but distributed by another employer, “as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.”

Servette (1964): U dispute w/ a distributor. U asked supermarket managers to discontinue stocking merchandise supplied by Servette or they would handbill the market asking customers not to purchase items from Servette. Servette argued 8(b)(4)(i) inducement of work stoppage and 8(b)(4)(ii) threat/coercive handbilling warning. Court said the U was not seeking to induce a work stoppage, but were asking managers to make a decision w/i their control. The handbilling wasn’t unlawful b/c of the “publicity” proviso. Construed the word “produced” to reach distribution (Congress’s concern was that the U’s have freedom to appeal to public for support).

Bartolo (1983): Dep’t storeowner hired GC and tenants didn’t like that the GC paid employees substandard wages. The local building trades council handbilled the shopping center, asking people not to patronize any of the stores until mall owner met demands. R-1 = dep’t storeowner, R-2 = O and other tenants.

o NLRB & COA: Handbilling protected by PP b/c GC was a “producer” of the construction of the store and mall owner & tenants

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§ 8(b)(4) - It shall be a ULP for a labor org. or its agents (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is . . .

(B) forcing/requiring any person to cease using . . . in the products of any producer . . . or person, or forcing/requiring any other employer to recognize/bargain w/ a labor org. . . . unless such labor org. has been certified as the rep of such employees under section 9; Provided, that nothing continued in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.


were in a “symbiotic” relationship b/c they would benefit from GC’s “product.”

o S.Ct.: The handbills went beyond the reach of the proviso b/c they urged a boycott of the products sold by the dep’t store and co-tenants. Don’t address coercion or free speech issues. Said that the “symbiotic” relationship analysis strips the distribution requirement of its limiting effect; diverts the inquiry away from the relationship b/t the primary and secondary employers and twd the two secondary employers; also, too generous a std.

o Tree Fruits (1964) Facts: Union struck packagers and distributors of WA apples, and instituted a boycott

of the primary EE’r’s product —the apples— and picketed the apples at Safeway stores in and around Seattle. The picketers were given detailed instructions not to interfere with the business of the Safeway stores in any way. Board held that picketing in front of a secondary establishment was prohibited, but the COA set aside the order and remanded, holding that in order to violate 8 (b)(ii) (“threaten, coerce, or restrain”) there must be affirmative proof that substantial economic impact on Safeway had occurred or was likely to occur.

Holding: 8(b)(4)(ii) does not bar secondary consumer picketing of the primary product because Congress showed no intent to prohibit such peaceful picketing; rather, it was intended to prohibit secondary boycotts aimed at dissuading patronage of the secondary EE’r. The Picketing did not “threaten, coerce, or restrain” Safeway where it was limited to the WA apples product and was directed not to interfere with Safeway’s other business

Rationale: Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable; therefore, the Court will not ascribe to Congress a purpose to outlaw peaceful picketing absent the clearest indication of intent in the legislative history.

o All the legislative history show is an intent to prevent secondary picketing with a purpose of persuading the secondary EE’r’s customers to cease trading with him.

o Illustrates the difference b/w such conduct and peaceful secondary picketing directed only at the struck product

o Consumer picketing causes a decrease in demand due to diminished purchases of the struck product only

o Secondary Boycott’s of a secondary EE’r does not just follow the struck product; it creates a separate dispute with the secondary EE’r.

o Disagree with the COA that the test of 8(b)(4)(ii) is whether the secondary EE’r suffered or was likely to suffer economic loss.

Notes: Congress in the proviso seems to have explicitly excepted picketing from the proviso as inherently coercive. But this presents a problem for the Court because it was peaceful. Union is not trying to do any of the things that the Court had looked to to justify regulating picketing. If we really read the statute as prohibiting this then it might be unconstitutional violation of 1st Am. They seem to really be saying that what congress was really worried about was the economic impact on the secondary

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Safeco Title Ins. Co. (1980) Facts: Union struck Safeco Title Insurance Co. after bargaining to impasse

and picketed 5 local title Co.’s asking customers to cancel or not buy Safeco insurance. For the title Co.’s Safeco represented 90% of their business.

Holding: o Product picketing that reasonably can be expected to threaten neutral

parties with ruin or substantial loss simply does not square with the language or purpose of § 8 (b)(4)(ii)(B). PRIMARY PRODUCT.

o As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8(b)(4)(ii)(B) imposes no impermissible restrictions upon constitutionally protected speech

Reasoning: Distinguished from Tree Fruits on the basis of proportionate share of business. Here asking customers not to buy or cancel Safeco insurance b/c customers could reasonably expect that they were being asked not to do business with the secondary employer b/c of the share of business the primary had.

o In Fruits and Vegetables the apples were but one of many products carried by Safeway

o Boycotting Safeco was a de facto boycott of the title companies. This is classic secondary economic pressure (COERCION).

o No violation of 1st Amendment where boycotting of secondary employer spreads labor discord by coercing the party to join the fray.

Safeco vs. Tree Fruits: Over 30% don’t picket. Can still handbill in Safeco situation under DeBartolo.

DeBartolo v. Trades Council (1988) - handbilling not coercive Facts: On remand the Board held the handbilling proscribed by § 8(b)(4)(B)

(ii) as coercion. The 11th Cir. denied enforcement because of doubts about whether § 8(b)(4) could constitutionally ban peaceful handbilling not involving non-speech elements of picketing and strikes

Holding: Handbilling is not coercive. The Board’s reading of § 8 (b)(4) is too broad, making a ULP out of any communication to the public other than those the proviso specifically deals with and prohibiting peaceful handbilling where actual picketing of a secondary employer carrying a non-union product would be permissible, it is hard to see why handbilling would be afforded less protection.

Reasoning: o Serious 1st Amendment concerns because the handbills were truthful,

urged mall customers to follow a legal course of action.o Had the union simply been engaging in and educational effort it would

have been protected. None of the non-speech elements that incite action and which are inherently

more persuasive than simply passing out handbills that depend on the persuasive force of the idea

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Class Notes : If handbilling can’t be coercive, the proviso (re publicity other than picketing) can’t ever apply. Don’t need the proviso. Congress just trying to make clear how to interpret the term “coercion” w/ the proviso.

Picketing vs. Handbilling: What if handbilling is as effective as picketing, can you really say that handbilling really isn’t coercive? D.C. Cir. treated this kind of handbilling as coercive b/c it directly induced/encouraged a secondary strike.

Bannering: Is this a picket? The Board flip-flops. Bush says yes; Obama says no as long as stationary.

“Hot Cargo” Clauses

Nat’l Woodwork Mfrs. Ass’n (1967) Facts : Frouge Corporation was a general contractor on

a housing project. Frouge had a CBA in place with the Carpenters’ Int’l Union, whereby Frouge agreed to be bound by the rules and regulations agreed upon by local unions with contractors in areas in which Frouge had jobs.

o Frouge was thus subject to a provision that read “no member of this district council will handle any doors which have been fitted prior to being furnished on the job.”

o The carpenters in the area of Frouge’s construction generally fitted the doors on the jobsite; however, Frouge contracted to have pre-fitted, pre-machined doors delivered by Nat’l Woodwork Manufacturers Ass’n.

o The Union ordered its carpenters not to hang the doors delivered by NWMA at the jobsite. Frouge then withdrew the prefab doors and substituted blank doors, which were then fitted and cut by the union carpenters.

Procedural: The NWMA charged that by including the “will not handle sentence in the CBA”, the Union violated 8(e) by entering into an “agreement whereby the employer agrees to cease or refrain from handling any of the products of any other employer,” and that in enforcing the sentence against Frouge, the union violated 8(b)(4)(B) by forcing or requiring any person to cease using the products of another manufacturer.

o The Board Concluded that the “will not handle clause” was used by the Union to protect and preserve cutting out and fitting as unit work to be performed by the jobsite carpenters.

he maintenance against Frouge was thus, “primary.” Issue: Is the inclusion of a will-not-handle provision in a CBA a violation of

8(e), and its application against the primary employer a violation of 8(b)(4)(B)?

o Is this a hot-cargo clause? Holding: NO. The determination whether the will not handle sentence and its

enforcement must be made by asking (1) whether, under all the surrounding

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circumstances, the Union’s objective was preservation of work for the employees of the primary employer, or (2) whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.

Rationale: 8(e) exists to prohibit hot-cargo clauses, which prohibit employers from handling non-union cargo. But 8(e) tracks the language of 8(b)(4)(B) and (A), which does not reach employees’ activity to pressure their employer to preserve for themselves work traditionally done by them.

o The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis a vis his own employees. Basically treating the clause as a subcontracting of work issue.

o The board found that the objective of the “will not handle provision” was preservation of work traditionally performed by the jobsite carpenters. The legitimacy of such clauses was implicitly recognized in Fibreboard; thus, it is not a violation of 8(e). Doesn’t this get into the discernment of motives of the Union? (Tom).

Fibreboard also said that bargaining oon the subject was madatory by § 8 (a)95) as it concerned terms and condititions of employment.

FN 38: The surrounding circumstances to look to in making the determination of objective could include:

he remoteness of the threat of displacement by the banned product or services

The history of labor relations between the union and Er who would be boycotted

And the economic personality of the industry.

Class Notes - Critique of Work-Preservation (Antitrust Problem): What if whole construction sector Unionized in metropolitan area. Takes the reduced cost of prefabricated products out of the market. Is the Union policing a cartel by demanding these clauses?

o If work is superfluous, how do you figure out if it’s worth preserving?

Pressure by Co-employees - Houston Insulation Contractors Ass’n (1967) – o Facts : An employer purchased precut asbestos fittings in violation of its

agreement w/ the U that required the cutting to be done at the employer’s shop. Co-employees, members of a sister-local union, refused to install the precut fittings at another location in TX.

o Holding: S.Ct. affirmed the NLRB’s dismissal of a complaint under § 8(b)(4)(B). Action supporting co-employees is not secondary even though the economic interests of the sympathetic employees are not directly involved.

Union Signatory Clause vs. Standard Clause: If this was you will not handle products where doesn’t have a U label, clearly secondary (trying to force R-2 to unionize). Problem where The U says “employer will not handle products where the producer of that product doesn’t pay U standard wages.” Not a lot of guidance: look at the structure of the particular business, the history of labor relations to try to determine if this is secondary or not. The clause is like on 684, if the employer

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doesn’t have sufficient equipment . . . . Is it secondary b/c saying can’t use other truck company b/c need to pay more, or is it primary b/c it’s to preserve your own work b/c hurts your own wages. NORMALLY, U standard clauses are primary (a little bit case-by-case though). A U signatory clause is NEVER treated as primary (trying to alter R-2’s relationship w/ its employees).

Work Preservation vs. Work Acquisition: Primarily explained by concern re technology. Cases split out by holding that if the case char. the K clause not as trying to preserve work the employees hist. had, but rather see U to preserve work they NEVER had, that’s treated as SECONDARY. Does this make sense?

Recapture of Work Formerly Done: Factual matter where you draw the line.

“Union Signatory” Restrictions on Sale of Business: Typically are trying to follow the work and trying to preserve it, it’s often permitted BUT difficult to enforce through a work stoppage. Must enforce through arbitration. Remedy for arbitration is very complicated. Purchaser is really not a party to the agreement.

Note: “Right to Control” Doctrine of NLRB v. Enterprise Ass’n of Steam Pipefitters (1977):

Facts : Austin was a general contractor that awarded Hudik a subcontract for heating, etc . . . This contract specified that Austin would buy and install climate control units manufactured by the Slant/Fin co., and that this manufacturer would cut and thread the internal piping in these units.

o This contract conflicted with a rule in the CBA between the union and Hudik, the sub-K, that required threading and cutting to be done on the job site by the employees of Hudik.

o When the prethreaded units arrived on the site, the union employees of Hudik refused to install the units.

Procedure : Austin brought a charge against the union and the board conceded that the union’s refusal to install the units was based on a valid work-preservation clause covering work traditionally done by Hudik employees. However, it found that Hudik did not control the assignment of the work, Austin did. Thus, the object of the union’s pressure was either forcing Hudik to terminate its sub-K with Austin or forcing Austin to change its manner of doing business. This pressure was exerted against Hudik in order to change the behavior of Austin, and so it was secondary and illegal.

o The Court of appeals set aside the Board’s order, finding that the union struck Hudik to compel it to honor a work-preservation clause, which was valid and primary.

Issue : Is the Board’s right to control doctrine valid? Holding: Yes. The board’s emphasis on right to control work was not

erroneous. Rationale : The fact that Austin controlled the disputed assignment of work

meant that any labor pressure against Hudik necessarily included an object of ceasing to do business with Austin in violation of §8(b)(4)(B).

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Dissent : Under National Woodwork, the clause was primary because it was designed to benefit Hudik’s own employees and not to affect another employer’s personnel policies.

o It is inconsistent with National Woodwork to hold that because Austin maintained the right to control assignment of the disputed work, Austin was the target of the Union’s pressure.

o Hudik was not a neutral, and could have bargained with the union over premium pay or other substitutes for the lost work.

Shows GC to structure business in order to have shelter itself from work preservation clause. Puts the extra cost on Hudik.

Problem: If U sufficiently org’d an area by getting these clauses and shutting out the pre-cut material, the bargaining b/t U and GC wasn’t particularly adverse and the U polices that cartel. This introduces the T structure w/ the pressure back on the sub (agreeing w/ the U). The party that really wants to reduce the overall cost is the GC. Reintroduces the possibility of a more competitive market. Seems to be what underlies Enterprise. If you agree in a K that you are obligated to do something, then the U activity is in fact secondary. Cases really about when bargaining is meaningful re new technology and work preservation and whenever the employer operating in competitive market makes sense. Contrast where U has sufficiently org’d area to really police a competitive market in a way that takes the competition over the new technology out of the marketplace that’s really not adverse to the U when they’re bargaining about it.

Note: Industry-Wide Provisos to § 8(e) - B/c the garment and construction industries differ from others in their structure and history, their provisos provide exemptions from 8(e) that are different in scope

Garment Industry Proviso: Don’t worry about this.o The garment industry proviso is broader. It embodies an exemption

from §§ 8(b)(4)(B) and 8(e), and provides that NLRA cannot bar enforcement of hot cargo clauses by strikes or other economic pressures in the garment industry.

o Reasoning : The garment manufacturers would farm out manufacturing work to contractors that paid very low wages to their employees. This earned the manufacturers the label “jobbers.” Because it was so difficult to reach the contractors’ workers directly, unions then pressured the jobbers to do business only with unionized contractors.

o Practical result : It is lawful to enter into an agreement not to contract with nonunion shops, for a union to create work stoppages for the purpose of securing such an agreement (which would otherwise violate 8(b)(4)(A)), and for the union to create work stoppages for the purpose of forcing a manufacturer or jobber to cease doing business with a nonunion contractor (which would otherwise violate 8(b)(4)(B).

Construction Industry Proviso:

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o Meant in part to overrule Denver Trades but didn’t go all the way. B/c of frictions between union and nonunion workers on a construction site, you can have a clause in a K that says we U workers don’t have to work at a construction site where non-U workers are going to be present at that site.

o Limitations : The proviso does not protect agreements barring use at the

construction site of materials made elsewhere by a nonunion company (see National Woodworking).

A strike to obtain a hot cargo clause relating to job-site work is lawful, BUT a strike to obtain a hot cargo clause referring to off-site work violates §8(b)(4)(A) and subjects the Union to damages under §303.

A strike to enforce a lawful hot cargo clause violates 8(b)(4)(b) because its object is forcing the signatory employer to cease doing business with nonunion contractors, even if the contractor is doing work at the site.

Valid enforcement: demand for arbitration or a lawsuit, or other measures not proscribed by clauses (i) and (ii) of §8(b)(4).

o Connell Constr. Co. v. Plumbers (1975) Facts : The union sought to organize plumbing and mechanical

subcontractors in the Dallas, Texas area. It picketed a construction site under the supervision of the general contractor, Connell, until the GC agreed to use only sub-ks that were under contract with the union. The hot cargo agreement was limited in terms to mechanical sub-k work performed only at the job site.

Holding : This agreement falls outside the construction industry proviso because the union represented no employees of Connell or of other contractors on the job site, and hence the concern of avoiding job-site frictions was absent.

The proviso extends only to agreements in the context of CB relationships, and possibly to common-situs relationships on particular jobsites as well.

Ct. was afraid of “top-down” organizing of entire construction sites w/o ever consulting the employees affected.

o Woelke & Romero Framing, Inc. v. NLRB (1982): Deemphasized both the job-site friction and top-down organizing concerns identified in Connell. “We believe that Congress endorsed subcontracting agreements obtained in the context of a collective bargaining relationship—and decided to accept whatever top-down pressure such clauses might entail.” Top-down org. ok in construction sector (concern re non-Us having to work w/ Us on same site).

Note: Remedies for Union ULPs

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Section 10(l) Injunctions: For any charge alleging violations of §§ 8(b)(4)(A)–(C), 8(e), and 8(b)(7), the regional director is REQUIRED, upon a finding of “rsbl cause to believe such a charge is true,” to seek injunctive relief in the fed’l district courts.

o These injunctions differ from 10(j) injunctions in that 10(l) are issued w/o Board authorization and are mandatory on proper finding.

o Tension b/t primary jurisdiction w/ Board and running to court to get prelim. injunction.

Section 303 Damages Action: The exception to NLRA’s excl. admin. enforcement scheme, authorizing “whoever shall be injured in his business or property by reason of any violation,” of § 8(b)(4) to recover damages in fed’l district courts.

o Such actions may be brought by “primary” or “secondary” employers, as well as third parties suffering direct and foreseeable injuries.

o No punitive or injunctive relief, only compensatory. However, state tort law may provide these through supplemental jurisdiction, especially where the conduct was violent. No atty fees.

o § 303 and Board proceedings can be instituted concurrently. A Board determination that the union violated § 8(b)(4) will usually preclude those issues from being relitigated in court.

o Law uncertain re secondary/primary distinction, etc., when Us uncertain (Tree Fruits vs. Safeco picketing vs. handbilling) will push twd handbilling to not open themselves up to these damages.

Work Assignment Disputeso Employer works w/ two different Us who both claim the same work. §§ 8(b)(4)(D), 10(k),

10(l), and 303, sought to promote orderly resolution of underlying work-assignment disputes and to avert resulting work stoppages. Must analyze the effect and interplay of these sections.

o § 8(b)(4)(D) - Employer can file charge and Board has hearing as to which U should get the work. If the parties agree to voluntary dispute resolution mechanism, then don’t have to hold the 10(k) hearing.

o NLRB v. Plasterers’ Local Union No. 79 (1971) Facts : Texas State Tile & Martini Tile. 2 Us: Tile Setters (U-1) and Plasterers’

Unions (U-2). U-2 pickets employer and claims work of the mortar to receive the work. No CBA w/ U-2. The two Us under umbrella K to have trades council resolve dispute b/t U as to who gets the work .The trouble is the employer is not a part of the umbrella agreement and not a part of the hrg as to who gets the work. Trades Council says work goes to U-2. Employer wants U-1 so U-2 pickets. Employer then files an § 8(b)(4)(D) charge and U-2 argues under the statute, U-1 and U-2 already agreed to resolve.

Issue : Does a voluntary process agreed to by the Us not involving the employer protect the U from an 8b4D charge?

Holding : No. Employer was not a party and ought to be able to present why U-1 should get the work instead of the U-2.

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Reasoning : The 10(k) hearings don’t really bind anyone. The U that gets the work, the employer doesn’t necessarily have to assign it to them. But affects right to picket.

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