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Labor Law Outline
Labor Law (Pace University)
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Labor Law Outline—Leach
I.
The Development of the Regulation of the Labor-Management Relationship
A. INTRODUCTION
1. The NLRB governs the NLRA—it is the administrative agency that
oversees the application of the statute and is the agency that governs
labor-management relationships
 The NLRB is “pro-collective bargaining”—it strives to be objective
in the dispute
 There are 5 members appointed by the President. (There is an
informal agreement between the two parties that there will be 3
members from the party in power, 2 from the other).
 There is a Republican majority presently on the board since the 1st
Bush administration.
2. UNION-MANAGEMENT RELATIONS
a. DEVELOPMENT
 Things really began in the 1860s. Pre-Civil War, America
was largely an agrarian society. There were 3 major factors
leading to the creation of a new economy ( & the
development of unions): 1) Industrial Revolution—
technological and machinery advances (the fall of the
skilled craftsman); 2) Increase in the workforce
(immigrants migrating from abroad to the urban centers,
and migrants from the countryside to urban centers for
jobs) 3) Developments in Transportation—the Railroads! 4)
Tapping into abundant natural resources (iron, ore ect.)
 With a new economy, worker status changed: 1) no
relationship to boss personally (the rise of big business); 2)
workers became replaceable—thus the relationship
between employer and employee changed.
 Also, a small % of the population held the wealth—(the
“Robber Barrons” Carnegie, Rockefeller, risk capitalism).
 Workers began to talk to each other (the NLRA basically
enforces this ability—a basic human right) and then formed
worker associations (many immigrants came from a
union/guild background organizing along craft lines).
b. BURGEONING UNION MOVEMENT
 Employer reaction: company union, buying off union
activists, firing them, thugs (Molly Mcquires) violence,
legal action, threats, blacklists, surveillance
 Early legal Action: a) a “yellow dog” contract—worker
agrees not to join a union when he is hired; b) have workers
arrested for criminal conspiracy under a “combination” c)
the civil injunction
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Two major Labor Movements: 1) Knights of Labor
(1869) formed by six tailors in Philadelphia—they were
idealistic and philosophical—they wanted to end the 10 hr.
workday , child labor, women’s rights, everyone could join
except lawyers, doctors and gamblers. Big moment—the
Gould Boycott; 2) The AFL—formed by Samuel Gompers
(a cigar maker), an organizational genius, believed that
collective bargaining was the key/tool to change society.
One union at a time wouldn’t work, there needed to be
collective strength and loyalty. Unionism meant absolute
loyalty to the union. That the fight must be equals with
equals. In 1914 2 million members. Became more
successful than the Knights of Labor.
 Labor Movement Today: 35% in 1955 of the workforce
unionized, in 1995, only 10%. The private sector
unionization has leveled off (no longer is dropping!). The
public sector unionization has risen by a small %.
c. Early Common Law Cases
 Vegelahn v. Gunter (1896): The union was picketing
outside for a price schedule. They were using social
pressure and threats of personal injury, but there was no
actual violence. Patrolmen placed outside the factory.
Employer sought a preliminary injunction, which was
granted and then sought a permanent injunction. The
preliminary injunction was granted b/c court held that the
picketing by the union was not peaceful. ISSUE: Is the
nature of picketing a coercive activity so that the
permanent injunction should be granted? HELD: Yes, the
majority says that the very nature of picketing is coercive.
Importance of Case: Holmes’ Dissent—Holmes says, let’s
assume that picketing is coercive—it should nevertheless
be permissible if there is a justification for it. Here there is
justification because the workers are picketing for better
wages—this is a basic human struggle, an eternal struggle
that is necessary for the “battle to be carried on in a fair and
equal way.” Holmes points out that employers do this all
the time (driving down prices) so why is it wrong for
workers to do it?
 Note: Although Holmes was fighting for the workers, he
made a fatal flaw by assuming that picketing was coercive.
This has been assumed ever since and not challenged. Thus,
his fight was probably more harmful to the worker struggle.
The case is infamous for this.
 PLANT v. WOODS (1900): This involved a jurisdictional
dispute (under 8(b) & 4(d) of NLRA now) between two
unions. A magistrate judge investigates and finds that there
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was courteous behavior by the competing union, but that
there were implied threats of hurting the business if the
company hired from the other union. ISSUE: Should an
injunction be issued, if two unions are in dispute, and one is
making threats to the employer to stop business? HELD:
Yes, injunction issued because there is no justification
(unlike Vegelahn above) since it is two unions fighting).
IMPORTANT FROM CASE: Holmes’ dissent—he now
says that the courts are asking the right question—is the
activity justified? But here, they have made the wrong
decision—even if it is a jurisdictional dispute, it is justified
because this is just like Vegelahn—it is a fight to strengthen
their organization.
 Today, very few unions picket—it is highly regulated.
 Picketing v. Handbilling (Thornhill v. Alabama) EE was
convicted of loitering (walking up and down in front of
store with signs). Goes up to non-union EE and says we are
on strike, don’t go in there, EE walks away. There is an
Alabama law prohibiting any type of picketing. Rationale
for law is protection of the peace. SC says, 1st amendment
concerns, the statute is too broad, thus unconstitutional.
 Handbilling (passing out flyers) is protected by 1st
Amendment. Making the distinction is difficult, because
picketing does not mean physically blocking an entrance—
this is illegal. Had Holmes said he disagreed that picketing
was coercive, things maybe would have been different. The
current issue is the NY Rat. The GC of the NLRB has said
that it is not coercive, but there is an investigation about
whether or not “hand-billing plus” is coercive.
 Bowen v. Matheson: Getting together to destroy business
(even workers) is just a part of business.
 Mogul Steamship Case: Combinations are just a part of
business.
d. Sherman Anti-Trust Act and Case Application
 The Sherman Act was an effort to stop combinations and
conspiracies to restrain interstate trade.
 The Act does not refer to workers or unions at all: it says
“Every combination or conspiracy...”
 Historical Context: The Pullman Strike by Debs—the S.C
upheld an injunction but said it was not deciding whether
Sherman applied to unions.
 Loewe v. Lawlor (Danbury Hatters) (1908): D were
members of the United Hatters and wanted to unionize all
hat manufacturers. P refused to recognize the union—D
instituted a secondary boycott to put pressure on P to
recognize the union. ISSUE: Does Sherman Act apply to a
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secondary boycott by the union? HELD: Yes. The Supreme
Court holds that there is an effect on interstate commerce
and the statute clearly states that “any” combination which
obstructs commerce flow is a violation. The court looks to
the acts of the union as a whole. While the immediate
impact is negligible, the union boycott narrows the market
and thus intrastate activity affects interstate commerce. The
Court issued the injunction and triple damages.
 Note: The Union itself is not sued because it is not an entity
—it is an association, thus each and every individual
members were sued. When the union loss, Gompers called
for a moment of solidarity and one hour’s pay from every
member of the AFL-CIO was donated to cover the civil
damages.
 Coronado Coal v. United Mine Workers: The company
shut down and opened up under another name, so that it is
no longer unionized. Violence breaks out. TC says that it is
a local conflict and Sherman does not apply. Employer tries
to get it under Sherman b/c of the triple damages clause.
The case was remanded to determine the union’s intention
—held that the union’s intention was to control the coal
supply, and thus a violation of Sherman.
e. The Clayton Act and Case Application
 After the Pullman strike, Congress instituted an
investigation, the “Pullman Commission.” The Pullman
Commission concludes that Courts have been detrimental to
workers’ rights.
 In 1902, the Industrial Commission of Congress says that
individual freedom is not lost to collective bargaining.
 The Clayton Act: 1912. Pres. Wilson. Gompers calls it
“labor’s charter of freedom” because the Act aimed to limit
Sherman’s application to labor. § 6 of the Act stated that
labor is not commerce, and § 20 stated that Courts can not
issue injunctions for disputes between employee and
employer.
 Definitions: a) Primary dispute—between worker and
employer. As long as it is peaceful, it is justified and legal;
b) Jurisdictional dispute: Different unions fighting. Courts
said no—Holmes would say okay; c) Secondary boycott:
Court says no, Sherman Anti-Trust applies if there is any
effect, considering the aggregate, on interstate commerce.
 Definitions: Open Shop: choice to join the union; Closed
shop: hire union members only; Union Shop—after 30 days,
employee must become a member.
 Duplex Printing v. Deering (1921): 3 of the 4 printing
presses were unionized. Duplex was Open Shop, the union
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II.
wanted Closed Shop. The union (IAM) urges customers not
to buy from Duplex, and they threatened sympathy strikes,
they notified the trucking company, threatened blacklisting
those that crossed the picket line. Employer sought
injunction under Sherman Act. ISSUE: Does Sherman apply
to labor disputes now that Clayton is passed? HELD: Court
says the act is coercive—what union is doing is unlawful
and the Clayton Act could not have meant to protect
unlawful activity. Holmes’ dissent: the Clayton Act was
meant to stop judges’ from imputing there own prejudices in
deciding what was coercive—the union can have its
industrial struggles to the limits.
f. The Clayton Act and the Norris-LaGuardia Act
 Apex Hosiery v. Leader: P is a hosiery corporation that
ships in interstate commerce. The Union wanted closed
shop and instituted a violent strike at the plant. ISSUE:
Does Sherman proscribe the strike, in light of the Clayton
Act and Norris-La Guardia (striking legal)? HELD: No. The
Court looks to the purpose of the union (a closed shop) and
determines that the conflict is entirely local and that
Sherman applies to restrictions on the market, which the
union was not intending to do.
 United States v. Hutcheson: Supreme Court declares that
the parties must be left to fight it out for themselves if it is
local—Sherman must be read in light of the Clayton Act.
WAGNER ACT: CREATION OF THE NLRB & ITS STRUCTURE AND
PROCEDURE
B. ORIGINS AND CONSTITUTIONALITY
1. The first attempt was the National Industrial Recovery Act under
Roosevelt—held unconstitutional
 The Railway Labor Act: Statute aimed at peaceful settlement of labor
suites and at the interference with the right of employees to have
representatives of their own choosing. Under RLA, if you don’t vote for
the union, it assumes you are in favor. Taft-Hartley amended the NLRA
and says that you must affirmatively vote for the union. This act still
applies to those EE in transportation (trains, airlines, etc.).
 The policy behind the NLRA was to: foster industrial peace and to
counter the “inequality of bargaining power between ER and EE.”
2. WAGNER ACT OF 1935 (NLRA): Established the legally protected
right of EE to organize and bargain collectively through representatives
of their own choosing. The heart of the Wagner Act is Section 7:
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 have the right to refrain
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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).
 Section 7 in Bold was added by the Taft Hartley Act.
 Section 7 gives: a) the right to organize; b) to collectively bargain
and c) to engage in peaceful strikes and picketing.
 Sections 8(1)-(4) covers prohibited anti-union tactics.
 Section 9 concerns the NLRB elections and proceedings.
a. TAFT HARTLEY AMENDMENTS (1947):
 Section 8 (b) outlaws the following concerted activities, among
others: 1) violence and intimidation; 2) secondary boycotts (the
refusal to work for ER A unless he ceases to do business with
employer B, with whom the union has a real dispute; 3)strikes to
compel an ER to commit some unfair labor practice, such as
discharging an EE for belonging or not belonging to a particular
union; 4) jurisdictional strikes over work assignments.
 Section 8(a)(3) outlaws the closed shop, and permits only a limited
form of union shop. Section 302 prescribes and limits the terms of
pension and health and welfare trust funds
 Section 301 provides that suits for violation of CBA in industries
affecting commerce may be brought by or against a labor
organization as an entity in any appropriate federal courts.
 Section 14(b) permits individual states to outlaw the union shop.
b. Landrum-Griffin Act (1959): Sought to regulate the internal
affairs of unions. Union members were assured a right to vote, to
run for union office, and t comment upon and nominate candidates.
Every member given an equal right to attend and participate in
meetings.
C. ORGANIZATION, JURISDICTION AND PROCEDURE
1. ORGANIZATION
 The NLRB was established by the Wagner Act. The NLRB is both
prosecutor and judge.
 The Board: 5 members appointed by the Pres. for 5 year terms. The
Board is split, by unwritten agreement, 3-2 with the majority party
having 3 members. There is a chairman. 6 seats total. The Board is a
quasi-judicial administrative agency, and seldomly uses rule-making
authority
 The General Counsel (Rosenfeld): 1 person appointed—4 year term,
(though not set by statute). There are 32 regions in the country of the
GC.
 An EE files a charge for an unfair labor practice in a regional office.
The General Counsel regional offices investigate, and then decide
whether to proceed to a hearing before the ALJ. The ALJ then files a
decision with the Board. If no exceptions to the decision are filed,
the Board typically adopts the position of the ALJ. If there are
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exceptions, the Board hears the case. To get an order enforced, the
Board must secure enforcement by filing a petition in a federal court
of appeals. If a person desires to have a Board order reviewed, they
may file a petition under Section 10(f) it is a “person aggrieved.”
The person has a choice of court of appeals, where the ULP was
committed or where the person does business.
 The Standard of Review by the courts: if the Board’s finding of fact
are “supported by substantial evidence on the record considered as a
whole” then the courts must accept the finding.
2. STRUCTURE OF THE NLRA
 Section 2 sets forth definitions:
 Section 2(2) defines employer: includes any person acting (in the
interest of) as an gent of an employer, indirectly or directly…
 Section 2 (3) defines employee: [The hottest topic in Labor Law at
the moment, i.e. graduate teaching assistants]: Shall include any
employee, any individual whose work has ceased as a consequence
of, or in connection with any current labor dispute or because of an
ULP, and who has not obtained any other regular and substantially
equivalent employment. EXCLUDES: independent contractors,
supervisors
 Section 2(5) defines labor organization: organization of any kind, or
any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or
in part, of dealing with employers concerning grievances, labor
disputes, wage, rates of pay, hours of employment, or conditions of
work.
 Section 2(11) defines supervisor: Any individual having authority, in
the interest of the employer to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward or discipline other EE, or
responsibility to direct them, or to adjust their grievances, or
effectively to recommend such action, if the exercise of such
authority is not of a merely routine or clerical nature, but requires
the use of independent judgment. The SC has looked at this issue
twice with respect to nurses.
 Section 2(12) defines “professional employee”: predominantly
intellectual and varied work…involving consistent exercise of
discretion and judgment in its performance…
 Section 8(a) sets forth UNFAIR LABOR PRACTICES: There are
5 areas of interference by an employer: 1) interfere, restrain or
coerce EE in the exercise of section 7 rights; 2) to dominate or
interfere with the formation or administration of any labor
organization or to contribute financial or other support to it (i.e. to
establish a company union); 3)discrimination in regard to hire or
tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization
(Unless in the CBA negotiated membership in union as a condition
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of employment 13 days after employed—see sec. 8); 4) to discharge
or otherwise discriminate against an EE because he has filed charges
or given testimony under the NLRA; 5) to refuse to collectively
bargain with the representative of EE.
 Section 8(b) sets forth the Taft-Hartley additions that address
ULP of unions: 1) interfere with section 7 rights; 2) discriminate; 3)
refuse to bargain collectively; (4) no secondary boycott )Congress’s
attempt to rollback Clayton and Norris-LaGuardia Acts for unions to
do all kinds of activities (picketing, secondary boycotting,
extortion); (5) no excessive union dues; (6) no feather-bedding
(keeping a job that is not needed anymore); (7) no picketing to force
ER to recognize or bargain with the union
 Section 9 governs Representation Rights and Elections
 Section 10 governs the authorities of the Board to enforce rulings: a)
Board has power to prevent any person from engaging in any ULP;
b) filing a charge of ULP; c) testimony, etc.; d) power of Board to
modify findings; e) power to petition U.S. court of appeals for
enforcement; f) any person aggrieved by a final order of the Board
may obtain review of the order in the U.S. Court of Appeals where
ULP occurred, or where person resides or engages in business; (j)
Board has power to petition U.S. District Court to grant temporary
relief (i.e. TRO) once complaint has been issued.
3. JURISDICTION
 The NLRA does not cover all EE—city and state (public employees)
are not covered, but most states have a similar statute that covers
these EE (not Texas). But there is the Taylor law—no strike—lose 2
days pay I fstrike.)
 The NLRA does not reach purely intrastate commerce.
 2 Types of Jurisdiction: 1) legal: must be job in “interstate
commerce”; 2) discretionary: Board, as a practical matter has refused
to take cognizance of a great number of employers who though
technically within the reach of the Commerce Power, are excluded—
because the Board sets dollar minimum in order to be subject to it’s
jurisdiction. Retail: over $500K in gross volume of business; NonRetail: annual outflow or inflow o f $50K; etc. ($$ amount set forth
on pg. 95 of text).
 When filing a claim, must make sure ER is subject to legal
jurisdiction of the NLRA.
III.
PROPERTY RIGHTS v. RIGHT TO ORGANIZE
 Republic Aviation Corp. v. NLRB: “Solicitation of any type cannot be
permitted in the factory or office. An EE was soliciting union membership
by passing out application cards to EE on his own time during lunch
periods. He was discharged, and the NLRB found no animus toward union
activity. Three EE were discharged for wearing UAW-CIO union steward
buttons in the plant after being asked to remove them. The union at the
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time was seeking to organize the plant. ER argued that the rule has been in
place forever, long before union organizing began. Union claimed sec. 7
violation, a ULP. HELD: Board found a need to balance section 7 rights
with Employer’s property rights, and desire for rule of order. NLRB found
no discrimination toward unionism, but an interference with Sec. 7. Thus,
an 8(a)(1) violation. The SC agreed. Court holds that the Board can draw
inferences from the facts, if the inference is reasonably based upon the
facts proven. There is substantial evidence to support the Board’s finding.
Board Rule: Work time is for work. A no solicitation rule during work
time is presumed valid unless evidence of a discriminatory purpose.
Outside work time, during lunch, break, or before and after work, the EE
can use the time as he wishes, without unreasonable restraint, although he
is on company property. A rule is presumed to be an unreasonable
impediment and therefore discriminatory unless evidence of special
circumstances that it is necessary to maintain production and order.
Solicitation v. Distribution: The Board has more lenient rules for
solicitation than distribution because distribution involves handing things
out—which requires action on both parties part—distribution is restricted
in work area, allowed in break/lunch area.
Beth Israel Hospital v. NLRB: ER argues that patients are everywhere,
so no solicitation anywhere. Board holds that the ER has the burden of
showing that these areas (cafeteria, etc.) are for patients/public. Potential
interference is not enough for an across the board prohibition of
solicitation at any time. (If the rule is union animus, per se illegal).
The union also does not have the power to waive in a CBA the normally
applicable distribution and solicitation rights of EE.
Lechmere, Inc. v. NLRB: The union organizers were handing out leaflets
in the parking lot. They had put a full page ad in a paper which drew little
response, so began handing out leaflets in parking lot. ER informed them
of no solicitation rule on its property. After being asked to leave several
times, they moved to the public grassy strip, where they attempted to hand
out leaflets to cars entering and leaving. They recorded license plates
numbers and did mailing to EE. This effort resulted in one authorization
card. The union filed an ULP charge. Board found violation. SC HELD:
Distinction must be made between Sec. 7 EE and non-employees (union
organizers). No ER can be compelled to allow distribution of union
literature by non-employees on his property, unless “the location of the
plant and living quarters of the EE place the EE beyond the reach of
reasonable union efforts to communicate with them—then ER property
rights may be required to yield to the extent needed to permit
communication of information on the right to organize.
NON-EMPLOYEES: Board cannot use balancing test. There is no access
unless the exception above applies. The exception applies only if there are
no reasonable alternative means of access.
ACCESS to EE, not SUCCESS is the critical issue, although success may
be relevant in determining whether reasonable access exists.
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THRESHOLD QUESTION: Does the union have an alternative method of
communicating with EE? If yes, then ER property right prevails.
 OFF DUTY EMPLOYEES: They are still EE under the Act, and thus are
not strangers like organizing non-employees.
 AN ER CAN’T STOP EE unless ER shows justification.
REPRESENTATION ISSUES
 HOW DOES THE UNION BECOME LEGAL REALITY? There must
be a showing of interest—establishing a majority. Then four possibilities:
1) ask ER for recognition (ER can grant recognition voluntarily and a 9a
relationship is established and is legally enforceable); 2) ER doesn’t
recognize the union, the union pickets to coerce voluntary recognition,
under Sec. 8(b)(7)(c), for a reasonable time, not to exceed 30 days; 3) by
operation of law—employer may ask for card check—or agree to
alternative means for demonstrating majority—once ER knows that there is
a majority, then he is bound; 4) Section 9A—filing a petition for an election
and recognition that a majority of workers recognize the union and want the
union as the exclusive bargaining representative.
 REPRESENTATION CASE ISSUEs
 Pg. 129, example of representation petition.
 1) Jurisdiction—the NLRA must apply; 2) Is it appropriate for Board to run
the election (a lot of unions don’t trust the Board, claim there is a delay that
discourages employees); 3) Question if Petition is timely.
 If there has been an election w/in a year, the Board will not start an election
because it causes disruption at work. All unions are barred for 1 year—for
the same unit or a subdivision of that unit.
 [CLARIFY] 1 YEAR CONTRACT BAR PERIOD: Once a union wins an
election, there is a 1 year bar/period to get a contract, unless special
exceptions.
 [CLARIFY] WINDOW PERIOD: From 90 days prior to the expiration of
the contract and running for 30 days consecutive, there is a 60 day
insulation period for parties to renegotiate.
UNIT ISSUES
D. EMPLOYEE STATUS
 Who is an “employee” under the NLRA? The changing nature of the
employment relationship has an effect on this definition.
 Section 2(3) defines employee very broadly—includes “any employee”
 EX: Radio station WBIA unit includes volunteers. ER refuses to bargain
claiming that volunteer are not statutory EE. Files Unit Clarification
Petition to the Board. NLRB says a sine qua non of employment is to be
paid. Contrast with Seattle Opera—the NLRB distinguished this case b/c
volunteers received a lump sum of benefits at the end. The Board found
“elements of an economic relationship.”
 A union employee working at a plant to get workers organized is called a
“salt.”
 [CLARIFY]A lay person at a parochial school does not constitute an
employee because of the constitutional issue of separation of church and
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V.
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state. If a person promotes or fosters religious doctrine, they are excluded
from the definition. But if they do not promulgate religious doctrine, they
are not excluded (i.e. janitors, nurses).
[CLARIFY] Yeshiva Case: All the teachers/faculty have managerial
functions—they get together and make decisions—are they employees or
managers? If you are a manager, then the Board does not have jurisdiction.
INDEPENDENT CONTRACTORS: They are excluded from jurisdiction
of the NLRA. The threshold question is who controls what work is done? If
the employee controls it, then they are independent contractors. Ex: Singer
at Madison Square Garden. SC held that newspaper delivery boys were
employees. FACTORS: 1) Who controls the work? (Is IC an agent of ER?)
2) Who has entrepreneurial control? (business interest locked to ER?)
EX: Doctors—Amerihealth Case: Private Practice Doctors argued they
were controlled by the Insurance Co. and thus “employees.” Board found
that they have a right to do business with other insurance co., so
independent. Doctors can control economic destiny.
SUPERVISORS: Whether or not a supervisor (and thus excluded from the
Act) hinges on the requirement of the “exercise of independent judgment.”
There are several job descriptions of a supervisor—a person does not have
to do all of them to constitute a supervisor, just one, “exercising
independent judgment.”
The issue of supervisor was exacerbated by the Healthcare Industry, when
in 1974 Congress extended the NLRA to cover profit making healthcare
institutions.
EX: Healthcare Retirement Corp: LPN petitioned for Board. She would tell
subordinate, “this patient needs..” SC stated that you can’t rely on whether
it is “in the interest of the employer, the focus must be on the use of
independent judgment.”
The NLRA does not explicitly exclude managers, but the SC held that it is
implied, managers are excluded as EE.
Recommendations for Hiring: If they are effective and determinative, then
the person is a supervisor.
Performance Evaluations: If the appraisal is directly related to
increase/decrease of pay, Board holds that this is equivalent to an effective
recommendation and they are supervisors under the NLRA.
[CLARIFY] Kentucky River Case (2001): Scalia pounds the Board and
says that the use of professional independent judgment is telling someone
to do something.
Boston Medical (1999): Case concerned interns/residents. Board
determined they were not employees and shouldn’t collectively bargain—
they are students. The COA stated that the Board was dubious in its
reasoning, but affirmed, because of policy reasons do not want to interfere
with the “academic freedom” or “training relationship.” Also, they are not
getting paid. Is the issue of policy a ground for the Board to rest its decision
on? “No interference w/training relationship.” Union argued all professions
have training programs. In 1999, the Board reversed and interns/residents
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now EE, stating that they will deal with academic freedom cases on a case
by case basis. The current Board however is looking for a case to overturn
Boston Medical.
 NYU (2000): Graduate Teaching Assistants currently EE, but may change
w/ current Board. The ER argued that they don’t get paid-they get financial
aid regardless of working or not. Board says there is a “financial
relationship”—compensation for work done, so this argument fails. ER
argues that teaching is part of the curriculum, but Board stated that there is
no evidence that you are required to teach-you could do research, etc.
Board stated this was like Boston Medical, “two hats” one of student one of
EE. It then turned to policy question—interference w/ER academic
freedom, but rejected it, saying that the parties could confront it just like
any other issue in collective bargaining.
E. APPROPRIATE UNIT
Once you establish that they are “EE”, then the question is what is the
“appropriate” bargaining unit?
Section 9(b) sets forth the powers of the Board to determine the appropriate
unit.
The Board in making its unit determinations seeks an employee group which
is united by a “community of interest.”
Factors to determine “community of interest”: 1) similarity in the scale
and manner of determining earnings; 2) similarity in employment benefits,
hours, and other terms and conditions of employment; 3) similarity in the
kind of work performed; 4) similar qualifications, skills and training; 5)
frequency of contact or interchange among the EE;’ 6) geographic
proximity; 7) continuity or integration of production process; 8) common
supervision and determination of labor-relations policy; 9) history of
collective bargaining; 10) desires of the affected employees; 11) extent of
union organization (the union can’t say only that the unit consists of what
we have organized).
There is no right to a direct appeal to challenge the Board’s determination of
an appropriate bargaining unit—one can only appeal for procedural error,
the ER must commit an ULP.
[CLARIFY] Board has held there can be no one person unit for policy
reasons. But union can picket for as long as it wants (as opposed to 30 day
limit).
Focus is on the job, not the individual.
Units may change, the question for Labor lawyers is can the unit be this?
Parties can work out the unit themselves, there is no requirement to go to the
Board (“Horse-trading”).
The Board steps in to determine unit only if there is a conflict, and will review
the unit if a claim that it is not appropriate.
You only need “AN” appropriate unit, not “THE” appropriate one—must
show that it CAN NOT stand as a unit. There is no requirement for the most
perfect unit.
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Congressed passed the 1974 Health Care Amendments, stating that health care
employees had section 7 rights, but instructed the board to prevent the
proliferation of bargaining units in the health care industry.
American Hospital Ass’n v. NLRB: To comport w/Congress’s mandate,
Board created a rule about health-care bargaining units and it was sustained
by the Supreme Court. The rule sets forth that absent extraordinary
circumstances, appropriate units in hospitals will be: 1) all registered
nurses; 2) all physicians; 3) all professionals except for RNs and
physicians; 4) all technical employees; 5) all skilled maintenance
employees; 6) all business office clerical employees; 7) all guards; 8) all
non professional employees except for technical, skilled maintenance,
clerical employees and guards. A unit of five or fewer employees
constitutes an extraordinary circumstance. This rule was challenged
because ER said that it is beyond the Board’s authority to make rules and
units must be determined in “each case.” However, SC held that as an
administrative agency the Board has rulemaking authority—the Board may
set forth a standard to guide them in each case. SC held that the Board has
given Congress’s warning of proliferation due consideration with the
development of a standard, and that the Board’s rule was not arbitrary and
capricious, but carefully crafted and supported by substantial evidence on
the record.
MULTI-LOCATION UNITS
There is a lot of litigation over multi-location units.
NLRB v. Chicago Health & Tennis Clubs: Whether the Board abused its
discretion in certifying a single retail store as an appropriate bargaining unit
for CB where such a store constitutes only one of a chain of stores owned
and operated by the company. Two cases were combined into one. A single
Saxon store was not an appropriate unit, because the stores are virtually
identical, unionization district wide, highly integrated, and there is central
administration of personnel and labor relations. Contrastingly, the Chicago
Health clubs are not identical, there is minimal employee interchange, and
store managers have a significant degree of control over personnel and
labor relations, thus the presumption is not rebutted.
RULE: There is a rebuttable presumption that a single store is an appropriate
unit. In situations of multi-location units, the Board considers the
following criteria, no single factor alone being determinative: a) geographic
proximity of the stores in relation to each other; b) history of collective
bargaining or union organization; c) extent of employee interchange
between various stores; d) functional integration of operations; e)
centralization of management, particularly in regard to central control of
personnel and labor relations.
MULTI-EMPLOYER BARGAINING UNITS
Charles Linen Services v. NLRB: Whether a bargaining impasse justifies an
employer’s unilateral withdrawal from a multi-employer bargaining unit.
SC affirmed Board rules/guidelines for withdrawal from multi-employer
units: That any party may withdraw prior to the date set for negotiation of a
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VI.
new contract or the date on which negotiations actually begin, provided that
adequate notice is given. However, once negotiations for a new contract
have commenced, withdrawal is permitted only if there is “ mutual
consent” or “unusual circumstances” exist.
A multi-employer bargaining unit is of a voluntary nature.
In order to maintain the stability of the multi-employer bargaining unit, the
Board will enforce true interim agreements, and it is not an unusual
circumstance that allows an employer to withdraw from the multi-employer
unit.
General Electric Co. v. NLRB: Inclusion of other unions on a negotiating
committee does not allow the ER to right to refuse to bargain, so long as the
EE representative union sought to bargain solely on behalf of their
members.
REPRESENTATION CASE PROCEDURES
F. NOTICE OF ELECTIONS AND INFORMATION TO VOTERS
Board has a firm rule outlawing “captive audience” speeches on company
time within the 24 hour period prior to an election.
Excelsior Underwear, Inc.: The ER refused to give a list of the names and
addresses of its employees. The ER had written to EE during an election
campaign. The union objected to the election, one of the grounds was the
ER’s refusal to furnish the list. Board concludes that an informed electorate
is an element in making a choice a free choice as to the election. A wellinformed, free choice is essential to exercising Section 7 rights.
PER SE RULE: A list of the names and addresses of employees must be
provided to the union 7 days after the election is approved by the Board.
Failure to provide the list is a per se violation. The Excelsior Requirement
is not fulfilled unless full name of EE disclosed. There must be “substantial
compliance” with the Rule.
NLRB v. Wyman-Gordon: ER challenged procedural aspect of Excelsior
Rule saying that it was improperly implemented under the APA. The SC
disagreed.
Once there is an election, the Board has power to review the conduct during
the “critical period” (the date petition for election was filed and the date of
the election.) The Board standard for elections is “Laboratory Conditions.”
Violative conduct during the critical period includes threats and promises of
benefits. This will constitute an 8 (c) violation.
Elections are typically held 42 days after the petition is filed. But because of
issues that go to hearing, 75 days is the norm.
G. ENFORCEMENT OF REPRESENTATION CASES
Leedom v. Kyne: Whether an unlawful action by the Board (denying the
Association’s request to take a vote among professional EE to determine
whether a majority of them favored inclusion in a unit of non-professional
EE) affords a remedy. Yes, it is not a “review” it is an action to strike down
an order of the Board made in excess of its delegated powers and contrary
to a specific provision of the Act. The Board directly violated Sec. 9(b)(1)
by denying the vote.
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Representation cases are not final orders—thus there is no appeal to the Court
of Appeals. There is only direct review by the Board in representation
cases. The ER must commit an ULP to have review in the COA.
The Kyne exception is a narrow one, not to be extended to permit plenary
District Court Review of Board orders in certification proceedings.
H. POST ELECTION PROCEDURES
 NLRB v. Gissel Packing: ER says that there was a strike in the past. If you
vote for a union, there will be another strike, and you are too old to find
more work. Our financial situation is precarious, etc. The Union loses the
election 7-6. Board found an 8(a)(1) violation because it was a threat to
lose jobs, and that the election should be set aside, and an 8(a)(5) violation
of refusal to bargain in good faith. The SC reviewed the Board’s authority
to order the employer, to bargain with a union, where the ER had
committed an 8(c) violation of employee coercion. The SC held that there
must be a balance between Sec. 7 rights and ER right to free speech.
 RULE: Employer is free to express general views that are reasonably
provable. They must be objective facts beyond the employer’s control, and
the ER must show the “objective facts.” Otherwise, ER speech to influence
EE is a Section 7 violation.
 FACTUAL MISREPRESENTATIONS
 If there is a material misrepresentation, the Board held in Hollywood
Ceramics (later overturned by Shopping Kart Food) there should be a new
election if: 1) the misrepresentation was material; 2) at a time which
prevents the other party from making an effective reply; 3) so that there is a
significant impact on the election.
 RULE: (Shopping Kart Food Standard) Elections will be 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 of one party, the Board will not intervene.
But if it is untrue propaganda (a result of forgery, etc.) such that no voter
could recognize the propaganda “for what it is,” then there is a violation.
Thus the party must engage in “deceptive campaign practices” or
“document forgery” for the Board to intervene.
 INFLAMMATORY APPEALS
 Swell v. NLRB: An election was held at two plants in Georgia. Union lost
the election. Flyer with a black man dancing with a white woman referring
to “race mixing” and associating it with the union.
 RULE: The burden is on the party making use of a racial message to
establish that it was truthful and germane, and where there is doubt it will
be resolved against that party. The policy behind this is that racial
inflammations inhibit a reasoned decision by EE.
 Ex. flyer in class of stick figures linked together—Leach argued that you
can’t tell race of stick figures, and that slavery has meaning meanings. The
COA said that the flyer was an inference to slavery, but that it was
innocuous, not inflammatory.
 [CLARIFY] PROCEDURAL ERRORS
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Objections can be made if:
Board does not properly supervise ballots
Allows for electioneering around the ballot box—the Board has a standard
for electioneering—an “electioneering zone.”
 No captive audience speech 24 hours before an election (regardless of type
of speech).
 Food is de minimus, as are tee-shirts, but silk jackets are objectionable.
 [CLARIFY] If union makes a promise that they can control, it is still
objectionable.
I. INTERFERENCE WITH SECTION 7 RIGHTS
Conduct by Employers that violate section 7 rights:
POLLING
NLRB v. Lorben Corp (2nd Cir): ER prepared a paper with a question asking
if the EE wanted the union to represent you, with two columns, yes or no.
The Board held that the questioning constitutes coercive act and 8(a)(1)
violation because 1) EE don’t know purpose and 2) no assurance of no
reprisal. Court of Appeals agreed with Board that standard should be that
interrogation is unlawful where it is found to be coercive in light of all
surrounding circumstances, even if the EE is not informed of the purpose or
assured against retaliation.
Struksnes Construction Co. (D.C. Cir): ER conducts poll asking if EE
wanted him to bargain with union? There was no assurance against reprisal
and the signatures were personally solicited, thus identity known. Board set
forth standard: Questioning is inherently coercive, so polling is a violation
of 8(a)(1) unless: 1) purpose of the poll is legitimate, to determine union
majority; 2) purpose is communicated to employees; 3) assurance against
reprisal; 4) employees are polled by secret ballot; 5) employer has not
engaged in ULP or otherwise created coercive atmosphere.
Long established Board Policy—Polling is per se violation if election is
pending—begins when a petition is filed. Such polls are an 8(a)(1)
violation.
ASKING QUESTIONS/REQUESTS
Asking questions as opposed to polling—not every question will be unlawful,
it depends on the circumstances.
If the person is a known union adherent, then can ask
***Nature of the Question (How you ask it) is key** You can not require an
EE to make a demonstrative choice.
EX: Can’t ask, do you want a union tee or not? This requires the EE to make a
demonstrative choice. If the shirt is in the closet and EE gets it, then
secrecy is maintained so no demonstrative choice is made.
Johnnie Poultry Case: An attorney can engage in questioning of employees
by limited: 1) voluntary; 2) purpose communicated; 3) relevant to issues in
complaint; 4) no probing of subjective state of mind; 5) questioning not
coercive.
Free Speech: 1) ER can tell workers his opinion but 2) no threats or promises
of benefits.
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VII.
NLRB v. Exchange Parts: Whether an ER may confer economic benefits on
his EE shortly before a representation election. ER said to his EE “It didn’t
take a union to get benefits granted since 1949, the Company did that, and
the Union can’t put any of those things in your envelope and it won’t take a
union to get any of those things in the future.” The SC held that when the
ER’s purpose is to affect the outcome of the election, he may not promise or
confer benefits—the danger inherent in well-timed increases in benefits is
the suggestion of a “fist inside the velvet glove.”
Exception to No Benefits Rule: If the ER can demonstrate that the benefits
have nothing to do with the union or the election.
UNION MISCONDUCT AFFECTING SEC. 7 RIGHTS
EE have the right to refrain from forming, joining, or assisting labor
organizations. Sec. 8(b)(1) declares it an ULP for a union or its agents to
restrain or coerce EE in the exercise of rights guaranteed by Sec. 7
Section 8(b)(4) prohibits various concerted activities to bring about
unionization.
The scope of 8(b)(1) is much narrower than 8(a)(1)—a union can promise
economic benefit (point out economic advantages) in an effort to get
members.
Unions can not waiver union initiation fee in exchange for a “recognition slip”
by employees before the election.
EMPLOYER UNFAIR LABOR PRACTICES
J. DOMINATION/ASSISTANCE OF A LABOR ORGANIZATION
 Section 8(a)(2) forbids ER to dominate, assist or to interfere with the
formation or administration of any labor organization. To do so is an ULP.
 Historical context: The Ludlow massacre—Ludlow was a Rockefeller
town. UMW held a strike, the National Guard killed 45, including women
and children. “Poison Ivy” (Ivy Lee) did PR campaign to convince public
killed by something else. Then Rockefeller comes up with company union.
1947 most hotly debated item of Taft-Hartley.
 Electromation, Inc.: Whether action committees composed in part, of ER
employees constitutes a labor organization within Sec. 2(5) and whether the
ER conduct via the “Action Committee” is in violation of 8(a)(2) and (1).
There were 5 areas the Action Committee was involved in: a) absenteeism;
b) no smoking policy; c) communication network; d) pay progression; e)
attendance bonus program. Composed of 5 or 6 employees and 1 or 2
management. ER paid for supplies, time to meet. There was a demand for
recognition of a union.
 RULE: Board looks to determine if a labor organization: 1) employees
participate; 2) organization exists for the purpose of “dealing with”
employers; 3) dealings concern “terms and conditions of employment.”
Then the Board turns to whether it is dominated by the ER: a labor
organization that is the creation of management, whose structure and
function are essentially determined by management, and whose continued
existence depends on the fiat of management, is one whose formation and
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
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administration has been dominated under (8)(a)(2). Inquiry is into the
purpose of the organization.
“Dealing with employers” is defined broadly—not limited to collective
bargaining.
There is no requirement of anti-union animus—no need to prove intent to
have an 8(a)(2) violation.
The only SC case on the issue is Newport News Shipbuilding—holding that
there is no requirement of employer good-faith motive.
ILGW v. NLRB: The union threatens to go on strike. Employer asks what
union wants, they sign a contract—no one checks to see whether the union
had a majority status before. After signing, there is an undisputed majority.
An EE files a charge that there was no majority at the time of recognition.
ER argues good-faith recognition. Union argues that they have a majority
now, so no harm, no foul. SC held that when you bargain w/o a majority of
employee support, you are aiding the union and this is a violation of 8(a)
(2), employer acts at his own peril. Recognition before a majority skews an
employees free choice. Recognition before a majority is at least assistance
of a labor organization, thus a violation of 8(a)(2).
EX: What if a minority votes for recognition, a year goes by and no one
disputes it. Is there a violation? No.
RULE: Statute of Limitations under 10(b) representation objection must be
filed within 6 months. If there is no objection within 6 months of
recognition, then the action is barred under 10(b).
[CLARIFY] What if Employer agrees to a union members only contract?
There is nothing per se illegal. There is no bar quality for an election.
Under 8(f), pre-hire agreements in the construct industry are not an unfair
labor practice because of the special nature of the job. They are not
enforceable until the person is hired. This is only in the construction
industry.
Bruckner Nursing Home (NLRB): 2 fighting unions, one has 90 cards the
other 2. The minority union claimed the Midwest Piping Doctrine, that it
had a “colorable claim” for representation. ALJ found a colorable claim.
The Board before had established the Midwest-Piping Doctrine which held:
An employer gave unlawful assistance to a labor union when the employer
recognized one of the two competing unions, both of which had filed
representation petitions, it was PER SE unlawful to recognize one union
over the other. The Doctrine was then modified removing the requirement
that a petition actually be filed. If a union had a “colorable claim” meaning
not “naked or clearly unsupportable” then the employer must exhibit strict
neutrality until the election. Determining what was a “colorable claim” left
the Board with no clear standards.
Bruckner abandoned the Midwest Piping Doctrine and established the
new Rule: An employer may recognize a union that has a clear majority
before a valid petition for an election has been filed. Once the petition is
filed, then the employer must adhere to strict neutrality.
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To file a petition for an election, a union needs to demonstrate 30% support.
For an intervening union to file a petition, they must demonstrate 10%
support.
 Article 20 of the AFL-CIO Constitution allows for unions to petition the
AFL to stop jurisdictional disputes between unions.
K. DISCRIMINATION
Elements of a violation: 1) an act of discrimination (discriminatory conduct
(fired, suspension, etc.) (a written warning or oral warning is not
discriminatory conduct); 2) knowledge/animus—employer must know that
the employee engaged in protected conduct; 3) conduct; 4) causal
connection.
An employer discrimination claim is under 8(a)(3)
A claim of union discrimination is under 8(b)(2)
Budd v. NLRB: The COA reviewed the Board’s order. Walter Weigand is a
drunk and brought the Duchess (a girlfriend) to work. Weigand was
organizing for the union. Board found an 8(a)(2). The COA held that you
can fire for any reason, or no reason at all, but can not fire for engaging in
union activity.
Timing is an element of proof. Weigand had continued to misbehave, and the
ER did nothing. He was only fired when he began organizing for the union.
The key in discrimination cases is MOTIVE. Look to the employer’s
motive for an 8(a)(3) violation. (As opposed to 8(a)(1) and (2) violations,
no motive required). Motive is presumptively relevant.
Other reasons for firing can be determined as pretextual, if the
motivating factor is discrimination.
Wright Line “Dual Motive” Rule: The General Counsel has the burden of
proving that the employee’s conduct protected by sec. 7 was a substantial or
motivating factor in the discharge by a preponderance of the evidence. The
Employer can avoid a finding of violation by proving by a preponderance
of the evidence that the discharge was for job-related reasons (an
affirmative defense).
A prima facie case: a) discrimination was a substantial or motivating factor in
the discharge; b) the employer shows other reason for
discharge/disciplinary action; c) the “but for test” by the GC.
Mueller Brass Co. v. NLRB: Stone goes to doctor, doctor sends him to the
hospital, he is there until May 4th. He doesn’t come back until the 18th. He is
fired. Rogers fired for sex-toy incident. RULE: Motive is the controlling
factor. Management is for management. There must be substantial evidence
to establish a reasonable inference of the Employer’s
animus/discrimination. COA found that in both cases fired for legitimate
reasons. DISSENT: Court should not re-try the case and should defer to the
Board if there is substantial evidence to support their finding.
In a discrimination case, the employee must have engaged in protected
activity under sec. 7. Concerted Activity—talking to others about problems
on the job, questioning a policy on behalf of other employees, etc.

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Under 10(a) there must be substantial evidence on the record to make a
reasonable inference of discrimination.
10(a) also gives the Board the authority to prevent ULP.
10(b) Board has the authority to issue/serve a complaint of an ULP. Charge
must be filed and served within 6 months of the ULP occurring.
The Board has the authority to toll the 6 month SOL.
A complaint of ULP can be amended at any time.
Rules of Evidence are not controlling for a Board hearing because it is an
administrative agency, but they are employed for practical purposes (not
strictly enforced).
The standard employed by the Board in discrimination cases is “by a
preponderance of the evidence.”
10(c) requires that the testimony before the Board (the hearing) shall be
recorded.
10 (e) gives Board the power to petition a court to issue an injunction or
temporary relief, if the findings of the Board are supported by substantial
evidence on the record considered as a whole.
Universal Camera Co. v. NLRB: 10 (e) was enacted to emphasize that the
Board is the expert—and if a reviewing court is faced with 2 clear
reasonable choices, it must defer to the Board’s ruling, and not review the
facts de novo.
PARTIAL CLOSING
NLRB v. Adkins Transfer (6th Cir): The company has a long term
relationship in CB with the Teamsters. Two maintenance people hired, they
want to join the union. Employer shuts down maintenance department, says
it is simply a question of costs. Board finds violation. 6th Cir. reverses and
finds that there was no illegal motivation to shut the maintenance
department down and that the motive was purely economic. Thus COA
states no substantial evidence to support the Board’s finding of a violation.
Runaway Shop: If an employer shuts down “because of the union” and
relocates elsewhere, there is a general consensus that this a violation of
Section 8(a)(3). However, there is disagreement about when an Employer
relocates because of things effected by unionization (wage increases, etc.).
General Rule is that if there are “sound business reasons” or a “business
necessity” for relocating, and there is no-union animus, then the relocation
is not a violation. Such a reason includes anticipated increased costs. This
seems somewhat absurd because how often is it that the employer nurtures
“anti-union animus” which is not economically based? (besides Walmart
family).
Ex: Rapid Bindery (2nd Cir). ER states that they are relocating because of
cramped and outdated factory. But the ER did not make these changes until
the organizing drive. 2nd Cir. said this is a legitimate economic motive.
Textile Workers v. Darlington (SC): Sellinghouse in NY, mill in SC.
Organizing drive at SC mill. No doubt employer is hostile toward union—
threatens to shut down. He shuts down SC mill. Union files 8(a)(3)
discrimination, 8(a)(5) refusal to bargain, and 8(a)(1) ULP. Board finds
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Miliken an entire business, and thus a partial closing. Here the two places
were separate corporate entities, but owned by the same SH.
To determine if an entire business, look to “common ownership” in the
business.
RULE: If discriminatory motive, you can not partially close a business. You
can shut down the business entirely (but not relocate). The partial closing
has a “chilling effect” on other employees and “chills” unionism/
REMEDIES: a) cease and desist order; b) make whole (backpay,
reinstatement).
Washington Aluminum: Employees walked out because it was too cold,
there was no union involved. They were fired. Filed a charge of
discrimination. Board found a violation, because there was concerted
activity, protected under Sec. 7. SC affirmed. There is no need for the
concerted activity to be union-activity, must be simply concerted activity
protected under the Sec. 7.
Note on Supervisors: Although supervisors do not enjoy statutory protection
under the NLRA, they may not be disciplined for: a) testifying before the
Board or in the processing of an EE grievance; b) refusing to commit an
ULP; c) as a pretext for discharging a pro-union crew. Must prove that the
discharge of a supervisor violates the NLRA if it “directly interferes” with
an employee’s exercise of §7 rights.
L. PROTECTED ACTIVITY (DISCRIMATION CONTINUED)
NLRB v. City Disposal System: Whether Employees honest assertion of his
right to be free of the obligation to drive unsafe trucks constituted
“concerted activity” under Section 7. SC agrees w/Board. Dissent states
that not every breach of CBA is concerted activity, there must be something
more.
INTERBORO DOCTRINE: If an individual is asserting a right grounded in
the collective-bargaining agreement, this is “concerted activity” protected
under Sec. 7.
Reasonable construction by the Board of “concerted activity” achieves
deference by the Courts.
Not Concerted Activity: Obscene language, violence, a strike if no strike
provision in CBA.
Weingarten, Inc. (SC): ER suspects stealing by EE. Calls worker in for an
investigation. EE believes that conversation will lead to discharge, and asks
for co-worker/union representative to be present. ER refused. Board found
violation, SC agreed. The representative’s presence is an assurance to other
employees in the bargaining unit that they too can obtain his protection if
called upon to attend a like interview.
Epilepsy Foundation Case (Board): Weingarten Right extends to non-union
employee requests. Employer can not continue with the meeting and must
investigate in another manner. Present Board may overturn this case.
Rule: Weingarten Right: Concerted Activity includes denial of a request for
a co-worker/union representative to be present at a meeting.
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Eastex v. NLRB: Employees sought to distribute a union newsletter in nonworking areas during nonworking time urging support for union and
discussing the proposal of right to work state incorporated in Texas
Constitution, and the federal minimum wage. ER refused to allow
distribution. Board held this is a 8(a)(1) violation. SC held: Mutual aid and
protection is far broader than what the employer argues—there does not
have to be a “specific dispute” between employer and employee. All of
these things discussed in newsletter related to labor discourse, and thus fall
under mutual aid and protection, and thus protected activity.
Unprotected activity includes:
Unlawful concerted activity by EE. EX: wildcat strike (a strike w/o union in
violation of no strike provision). EX: striking to induce ER to fire dissident
within the union
Use of economic pressure to support demands falling outside scope of
mandatory bargaining—employees participating in such pressure are
engaging in unprotected activity.
The method of protest is in direct violation of federal law. EX: secondary
boycott.
Methods contrary to the “spirit” of the NLRA. EX: peaceful picketing to
bargain with ER to end racial discrimination was not protected, because it
sought to supercede the exclusive representative.
Violation of criminal and tort laws of the state
Jefferson Standard Broadcasting Co (SC): Company negotiates with union,
no strike provision. Employees picket on breaks and after work, handbill
that says ER has bad services, attacks the capability of the company. ER
fires 10 EE. Union files complaint. Board finds it unprotected activity,
because handbill had nothing to do with labor dispute. SC agreed.
Rule: Disparaging product of Employer is not protected activity.
Elk Lumber Co: ER reduced pay. EE decided to work less. Found: Not
protected activity.
Rule: Partial Work Stoppage is not protected activity. Employees can not
partially slow down work. They must strike.
[CLARIFY] If employer asks for overtime work and EE refuses, this is not an
intermitten strike. Not a strike for one time refusal. If EE refuses several
times, then this is an intermittent strike.
Handbook requirements that prohibit EE from discussing wages or benefits is
a sec. 7 violation of concerted activity.
Constructive Discharge: When conditions are made so onerous that EE quits
sua sponte—Board will look at 2 elements: 1) whether conditions so
difficult they forced EE to resign; 2) ER caused or tended to cause the
conditions.
M. RIGHTS OF STRIKERS
NLRB v. Mackay Radio: When on strike and the strike ends, do employees
get their jobs back? Here, strike replacements were used by ER. ER gives
replacements the option to stay. Offers striking EE positions if the positions
are not filled by replacements. ER fills the positions of those that supported
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the union and leaves the positions open for non-union supporters. Board
found discrimination in reinstatement. It was an ULP to discriminate in
reinstating striking employees by keeping out certain of them for the sole
reason that they had been active in the union.
Two types of replacements: 1) temporary and 2) permanent.
It is an open question whether an employer must first hire temporary workers
before hiring permanent workers.
Two types of strikes: 1) economic and 2) unfair labor practice.
RULE: If EE striking for economic gain, then the ER has a right to continue
his business and hire replacement workers. If it is an ULP, then ER loses
the right to replacement workers.
While an employee is on strike, his status is still as an “employee.”
An employer can threaten to permanently replace workers. The employer can
not threaten to fire.
1991 the House passed the Workplace Fairness Act, but it did not pass in the
Senate. The Act would have barred permanent replacements in most strike
situations.
Clinton passed executive order (now gone) barring the grant of federal
contracts to ER who hired permanent replacements.
NLRB v. Erie Resistor (SC): ER offered a 20 year seniority bonus for those
that cross the picket line. The strike failed. ER lays off those that have
actually been employed longer, because of seniority bonus. Board finds
discrimination. COA reverses. SC reverses COA, finding discrimination.
RULE: Subjective Intent is not necessary—if the natural and foreseeable
consequences of the act results in a violation of Sec. 7, then intent may be
reasonably inferred. The ER may counter by claiming that his dominant
purpose was not to discriminate but to accomplish business objectives.
Buffalo Linen: Multi-employer bargaining unit. Union calls for a strike at one
of the member’s plants. (A whipsaw). The other member companies locked
out employees—this is legitimate as a defensive tactic.
RULE: A lock-out is only authorized when reasonably believed necessary by
the ER to anticipate a strike which would otherwise to have been timed to
cause undue harm to the employer’s equipment or business. (Includes
multi-employer units). Can only lock out as a defense.
American Ship Building v. NLRB (SC): Work is seasonal because lake can
freeze. Since 1952, contracts w/8 different unions. Here bargaining with
union, reach impasse. Employer fears strike, union promises no intention to
strike. Laid off employees until further notice because of labor dispute.
Union files charge claiming a lock out. Issue is whether an ER may use
temporary lay offs as an economic weapon solely as a means to bring
economic pressure to aid the ER’s bargaining position upon impasse. SC
holds that the temporary lay-offs do not constitute a violation because the
motive is defensive—for economic bargaining power only, in fear of strike,
not for anti-union animus. This case stands for an example of economic
justification supporting an ER’s pre-emptive measures.
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NLRB v. Great Dane Trailers: ER agreed to pay EE vacation benefits if EE
worked X amount. EE strike, and later demand the vacation pay from the
company. The company refused to pay, asserting that contractual
obligations had been terminated by the strike. But ER then agreed to pay
vacation benefit to those who returned to work on July 1. ISSUE: Can ER
reduce benefits accrued under CBA if workers go on strike? No, if no
economic justification is set forth—the ER is discriminating.
GREAT DANE RULE: If ER conduct is “inherently destructive” of
important employee rights, no proof of anti-union motivation is needed,
and Board can find an ULP even if motivated by business considerations. If
ER conduct affects EE rights in a “comparatively slight” way, then an antiunion motivation is needed to sustain the charge if the ER has come
forwarded with substantial business justifications for the conduct. (The ER
may come forward in either case with a proper Wright Line defense of
business justification.)
Laidlaw Corp: Union filed notice to strike. ER threatened that if they strike,
they will lose their jobs, a clear 8(a)(1) threat. They strike, ER hires
permanent replacement. Massey crosses the picket, and two weeks later
allowed to return to work, but as a new EE (no seniority). The Company
hired new EE rather than offer positions to strikers. The strike began as
economic, but turned into ULP when Massey was not reinstated after
crossing the picket line. ER argued substantial business justification
RULE: An striker remains an employee under the NLRA if he has not found
other regular or substantially equivalent employment elsewhere, and is
entitled to reinstatement—equivalent to his prior employment (equal pay,
equal position).
The right to reinstatement does not expire upon original application—when a
position becomes open—the striker (economic or ULP) if available, is
entitled to full reinstatement, absent a legitimate and substantial business
justification by ER for failure to offer complete reinstatement (ER carries
the burden).
VOTING: If an EE strikes for more than a year (economic strike only) they
lose their voter status.
SYMPATHY STRIKE: EE respects a lawful picket line (whether or not by
his own union) at another company; or picket line at his own company but
he is not a union member but respects the picket line. In either event,
general consensus that if it is a lawful strike, the EE stands in the shoes of
the striker, and is engaging in “mutual aid and protection” under Sec. 7
However, if strike is unlawful, it is not protected activity in either situation.
A union may waive the right to strike in a no strike clause in the contract.
The Board has found that a general no strike clause also waives the right to a
sympathy strike. (Although past Democratic Boards have held that you
must have specific language in the contract to waive the sympathy strike as
well).
There are not many Sec. 7 rights that are waiveable because they are inherent
rights—the right to engage in a strike is basically the one waiveable right.
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Metropolitan Edison Co. (SC): The contract had a no strike clause, and EE
strikes. Union official suspended longer than other EE. ER argues that they
have a duty to uphold the contract. Whether an ER may discipline union
officials more severely than other union employees for participating in an
unlawful work stoppage? No. This is selective discipline and violates 8(a)
(1) and (3). To have the ER dictate to union officials (via threat of
punishment) what is their job in relation to EE, is inherently destructive and
frustrates the labor policy that union is the exclusive representative of EE.
A union may contract a duty, ancillary to the promise not to strike, to take
additional measures to stop unlawful strikes. If such a waiver is in the
contract, it must be “clear and unmistakeable” (all waivers of sec. 7 rights
must be “clear and unmistakeable).
Teamsters v. Voght (SC): ER sought an injunction to restrain picketing in
state court. State court granted injunction. Question of State action under
14th Amendment. SC decides, looking at Thornhill v. Alabama, that
picketing can be more than speech, and can lose protection. Picketing cases
are under rational basis review—must present a valid rational state policy
—even if peaceful, can be enjoined if there is a valid state policy.
General Rules Re Picketing: Peaceful picketing is protected. Violence, or
threat thereof, is not protected. (Even if subsequent peaceful picketing).
DeBartolo Corp.v. Florida Gulf Coast (Publicity Proviso): Exception to
the secondary boycott/no threat to neutral or secondary employer: Publicity,
other than picketing, for the purpose of truthfully advising the public,
including consumers, that a product or products are produced by an
employer with whom the labor organization has a primary dispute and are
distributed by another employer.
Remedies for Sec. 7 violations: 1) cease and desist orders; 2) make whole
remedies (reinstatement, backpay plus interest [minus interim earnings],
loss wages and benefits).
If a worker lies about what they have earned—they lose the right to backpay
(Board issues backpay quarterly, worker must disclose his employment).
Sure-Tan (SC): Court recognized tension between immigration and labor
laws—but held that once employed, undocumented workers are
“employees” under the statute and have section 7 rights.
Apra Fuel Oil: knowingly hired undocumented workers. Board held entitled
to backpay up until reinstatement, reinstated once papers in order
(overruled by Hoffman Plastics).
Hoffman Plastics: No backpay or reinstatement for undocumented workers
illegally fired.
GC Memo: Board will not seek backpay even if ER knows that EE is
undocumented.
VIII. DEFERRAL TO ARBITRATION
 § 301 deals with suits by and against labor organizations
 § 301 is very hospitable to the use of arbitration procedures in CB.
 Steelworkers Trilogy Cases:
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SC ordered arbitration and said the issue is whether the case may be
arbitrated, if so the arbitrator decides.
Warrior & Gulf: Order to arbitrate should not be dismissed unless the
arbitration clause can not be reasonably construed so as to favor
arbitration. Doubts should be resolved in favor of arbitration.
Steelworkers v. Enterprise: Discharge found to be too severe by
arbitrator, and ER challenges finding. SC holds that arbitrator has been
given the authority to enforce the contract, he has been selected by the
parties, thus he has the power to resolve the dispute.
Steelworkers v. Nolde Bros.: Contract was expired, ER says we fired the
EE during the life of K, but arbitrator had not issued decision. SC holds that
contract arbitration clause continues for those grievances in progress.
[CLARIFY] Lincoln Mills: Union called for strike to protest discharge of
worker. Filed for arbitration. There is not a no strike clause. SC held that
federal should be employed over state law, and that if there is a grievance
procedure in CBA, then a strike is prohibited.
Concurrent Jurisdiction of the NLRB and Arbitrator
Two Types of claims: a) refusal to bargain (Employer has K and has
breached the agreement, or has made a unilateral change); b)
discharge/disciplinary scenario
Board has waffled a lot on jurisdiction between NLRB and arbitrator
Question—is it a work assigment (then arbitration) or a representation
case (NLRB, but may defer to arbitration if issue has been arbitrated).
Carey v. Westinghouse (SC): Whether issue over work assigned from one
union to another union’s unit within the company. The SC held that it is not
clear whether a work assignment or representation issue, but that it could
go to arbitration (to aid in resolving the dispute before it was forced into the
strike stage) and then the NLRB could decide whether to defer to the
arbitration. Result of case: SC mandate of strong presumption in favor of
arbitration.
Representation issues are for the Board to decide (here a unit clarification
petition to the Board) but the Board will most likely defer to the arbitral
award.
Prior Boards would defer on contract interpretation issues, but not on
representation or discrimination issues, this was called the Spielberg
Standard: 1) defer on contractual issues; 2) review—is the arbitral award
repugnant to labor policy? If not, defer to the arbitral award.
The Board has the power to adjudicate an arbitration decision on an ULP
charge, but Board has considerable discretion to respect an arbitration
award and decline to exercise its authority over the ULP charge.
New Board Policy on Deferral (Olin Corp): Arbitrator has adequately
considered the ULP (and thus deference given by the Board) If 1)
contractual issue is factually parallel to the unfair labor practice issue; and
2) the arbitrator was presented generally with the facts relevant to resolving
the ULP. The Board will also consider whether the arbitral award is “clearly
repugnant” to the NLRA, and this means that unless the award is “palpably
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IX.
wrong” (not susceptible to an interpretation consistent with the Act), the
Board will defer to arbitration decision.
 Burden in Deferral Cases: The party seeking to have the Board reject
deferral and consider the merits of a given case must show that the standard
has not been met.
 Dissent in Olin: The Board is abandoning its statutory obligation.
 United Technologies Corp (NLRB): Board reinstates the Collyer Doctrine
which states that the Board should defer to parties’ grievance-arbitration
machinery even in cases of unilateral changes (violations under 8(a)(5)and
discharge cases under 8(a)(3).
 Hammontree v. NLRB (Circuit): The NLRA and the LMRA do not
preclude the Board from requiring that a claimant to exhaust contractual
grievance remedies (arbitration) before the Board hears an 8(a)(3)
discrimination claim. The Board’s deferment policy is reasonable.
BARGAINING RIGHTS
 NLRB v. Gissel Packing (SC): Three cases combined—with similar facts
—involved the question of union cards and ER’s refusal to bargain. In each
case, the union obtained authorization cards from a majority of employees,
and on the basis of the cards, demanded recognition by the ER. Board
orders CB. SC reviews the Board’s practice:
 CURRENT POLICY ON CARD CHECK: When confronted by a
recognition demand on the basis of cards, the ER need not grant recognition
immediately, but may, unless he has knowledge independent from the cards
that the union has a majority, decline the demand and insist upon an
election, either by a request that the union file an election petition or by
filing one himself. However, if the ER commits an independent and
substantial ULP disruptive of election conditions, the Board may withhold
the election, or set it aside, and issue a bargaining order.
 Traditional approach to Card Check (Joy Silk): ER could lawfully
refuse to bargain if he had a “good faith doubt” as to the union’s majority
status. He could then insist that the union seek an election. The Board could
find a lack of good faith and enter a bargaining order if 1) independent ULP
were evidence of bad faith seeking to dissipate union majority; or 2) ER
came forward with no reason for having any doubt and thus in bad faith.
 Aaron Brothers: Board shifted the burden to the GC to show bad faith and
that only if the ULP was “so severe” then Board could order CB.
 SC HOLDS that the use of authorization cards have been consistently
accepted by the Court as a means to evidence majority support. (Although
issue of peer pressure to sign and coercion, this is present with elections as
well).
 Board has authority to issue a CB order because otherwise the ER could
refuse and refuse to delay election. To determine when election and when
CB order look to type of ULP:
 1) if it is a serious, pervasive violation (threats, discharge, promise of
benefits) then no fair election is possible, so CB grant;
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2) not as serious (no discharge, threat) then Board must consider the a)
extent of ULP and b) likelihood of recurrence in the future (election may be
possible);
3) Minor violations—order an election.
Three types of cards: 1) elect union as representative; 2) dual purpose card
—membership and election authorization; 3) election authorization.
Cumberland Farms: An EE is bound by the card they sign unless fraud by
solicitor—told it was just for an election but it was a representative card.
Employer has a right to demand election when confronted with a demand
for recognition (Taft Hartley allows ER to file petition for election).
Circuits (particularly 2nd) do not agree with the Gissel decision and have
found ways around it. (p. 325-26).
Con Air: Union was gaining w/support and getting more authorization
cards every day, but then the ER committed an ULP. Board granted a CB
order b/c union would have had majority.
Gourmet Foods v. Warehouse Employees (NLRB): no CB order if no
majority support among employees—no non-majority bargaining order.
Thus Gissel limited to majority bargaining orders where there is a
pervasive ULP that makes an election impossible, or a pretty severe ULP,
then it is at the Board’s discretion to determine whether to issue the CB
order.
Linden Lumber v. NLRB (SC): Whether an ER (absent the commission
of an ULP) may decline to bargain with a union having a card majority and
whether the ER must accompany any such refusal with a petition for a
representation election. The Board held that it was not unlawful to refuse to
accept evidence of majority status other than a Board election, regardless of
the good or bad reasons for the refusal by the ER. The ER does not have to
petition for the election, the union must file the petition. SC upheld the
Board ruling, 5-4.
Dissent: 9(a) clearly states that if there is a majority, then the ER has to
bargain (the Canadian Rule was almost adopted by the Court).
Brooks v. NLRB (SC): Issue is what is the duty of the ER toward a duly
certified union if, shortly after the election which resulted in certification,
the union has lost, without the ER’s fault, majority of the employees from
it’s membership. SC held that the Board’s rule of one-year certification
presumption of majority status valid.
RULE: A certification based on a Board election, must be honored for a
“reasonable period, ordinarily, “one year” in the absence of “unusual
circumstances.”
“Unusual Circumstances” are found in at least three situations: a) the
certified union dissolved or became defunct; b) substantially all of the
members and officers of the certified union transferred their affiliation to
another local or international; c)the size of the bargaining unit has changed,
fluctuated radically with a short time.
Rationale behind the rule: stability—a legal decision—a fixed time for
bargaining, the union needs ample time to carry out its mandate, revocation
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X.
of voter choice should be serious, not easy to do, prevent ER from delay, so
he must begin bargaining, prevents informal and short-term recall.
LOSS OF MAJORITY STATUS
 There is a presumption of majority status for 1 year after the election. After
1 year, this presumption is rebuttable.
 If a union is not election-certified (there is voluntary recognition by the ER)
then the bargaining time is a reasonable time (as opposed to 1 year).
 If a contract is in effect, there is an irrebuttable presumption of majority
status for the life of the contract, up to three years. (Ex: 6 year contract,
irrebuttable presumption for 3 years).
 REBUTTABLE PRESUMPTION RULE: After the 1st year, an ER may
rebut the presumption of majority status. An ER may rebut the presumption
by showing that at the time of refusal to bargain: 1) the union did not in fact
enjoy majority support, or 2) the ER had a “good faith” doubt, founded on a
sufficient objective basis, of the union’s majority support.
 NLRB v. Curtin Matheson Scientific (SC): Whether the Board must in
determining whether an ER has presented sufficient objective evidence of a
good faith doubt, presume that striker replacements oppose the union.
Board has a long established presumption that the new hires are in the same
position as the person before—a presumption of pro-union, but the Board
has flip-flopped over time and came to conclusion that there should be nopresumption and there should be a case by case approach. SC said this was
rational and consistent with NLRA.
 RULE: No presumption approach to striker replacements, and the Board
will take into account the particular circumstances surrounding each strike
and the hiring of replacements. The ER must come forth with some
objective evidence to substantiate his doubt of continuing majority status.
 Allentown Mack Sales v. NLRB (SC): Macktruck Co. becomes Allentown
Mack Sales. It hires 32 of 40 original workers. A number of employees
suggested in interviews that if a vote were taken in the new company, the
union would lose. ER refused to recognize the union as the bargaining
agent. The ER conducted a poll, supervised by a priest, in which the union
lost 19 to 13. The union filed an ULP charge, 8(a)(5), refusal to bargain
because ER had no good faith doubt as to majority of union. ALJ found the
company was a successor and that the successor inherits the duty to
bargain. ALJ found poll lawful, but threw was no objective basis to have a
good faith doubt as to majority status.
 SC (Scalia’s semantics lesson): The Board has a right to set unitary
standards for polling, RM elections, and withdrawals of recognition—it
does not make good sense, but it is rational. The standard is upheld, but
semantics are wrong—“good faith doubt” doesn’t mean disbelief, it means
uncertainty. Here, the Board could not have found that the company lacked
a genuine, reasonable uncertainty about the continuing support of a union
by a majority of EE. Although the ALJ found that 20% was not enough to
show good faith doubt, Scalia states that the number is between 20% and
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XI.
50%. Scalia states that here, there is enough to show reasonable uncertainty,
not necessarily disbelief, but good faith doubt means uncertainty.
 Levitz Furniture Co. (NLRB): A majority of the Board found that,
consistent with Allentown Mack, it would adopt a different and more
demanding standard for an ER’s withdrawal of recognition of an incumbent
union than for filing of an ER petition for a representation election. (Did
not address the standard of “uncertainty” for polling).
 RULE AFTER ALLENTOWN MACK: If ER wants: a)an election—
must have reasonable good faith doubt (uncertainty); b) to withdraw
recognition—certainty—an actual loss of majority; c) polling—the Board
has not decided yet—but for now—reasonable good faith doubt
(uncertainty).
 GC MEMO RE STANDARDS:
 In cases of “actual loss” there should be an investigation to see if the
evidence of an actual loss has been “tainted” by a prior unremedied ULP, or
if the ER had sponsored the petition or coerced EE into signing the petition,
or EE were misinformed as to the purpose of the petition, or misled as to
what document they were signing (similar to rule on authorization cards).
 The burden is on the ER to show actual loss.
 Hearsay is permissible as evidence for demonstrating reasonable
uncertainty in a petition for an election (but not for polling or withdrawal of
recognition).
EXCLUSIVE REPRESENTATION
N. NATURE OF THE BARGAINING RELATIONSHIP
 Section 8(d) defines collective bargaining. “Meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and
conditions of employment...but such obligation does not compel either
party to agree to a proposal or require the making of a concession...”
 Wagner believed that collective bargaining was “escorting the employee
representative to the door of the employer—what occurred behind the door
was left to the parties.”
 J.I. Case Co. v. NLRB (SC): Employees were offered individual one-year
contracts. About 75% of EE accepted the contracts. Union petitioned for
representation and was certified. The ER refused to bargain over terms
covered in the individual contracts. There was little left to bargain except
hiring. Board found an 8(a)(5) violation, refusal to bargain. SC affirmed the
Board. A CBA is not a hiring agreement—it is more akin to a business
contract between the ER and union.
 RULE: Individual contracts, no matter what the circumstances that justify
their execution or what their terms, may not be availed to defeat or delay
the NLRA to exclude the contracting employee from a duly ascertained
bargaining unit, nor may they be used to forestall bargaining or to limit the
terms or conditions of the CB agreement. The rights under the NLRA are
“public rights.” The individual contract may not be effective as a waiver of
any right under the NLRA.
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An individual contract is not per se unlawful, but it cannot take away
individual rights.
Individual contracts that confer better benefits than the CBA may be legal,
if they do not subtract from the CBA (not a SC holding, but suggested in
dicta). The Board has the authority to determine whether or not benefiting
individual contract is valid.
Certainly individual contracts can supplement the CBA.
Emporium Capwell v. Western Addition Org. (SC): Whether, in light of
the national policy against racial discrimination in employment, the NLRA
protects concerted activity by a group of minority employees to bargain
with the ER over issues of employment discrimination. Here, the CB
agreement, prohibits racial discrimination, but the minority EE don’t think
it does enough, and want to negotiate with ER. They picket and handbill,
and are fired. Their NGO files an 8(a)(1) charge. Board finds conduct is not
protected, EE can not usurp CB representative. COA says that there is an
exception concerning racial discriminaton. SC: The major principle behind
CB is majority rule—some will be left out—there are units of bargaining to
foster a commonality of interest. The Landrum Griffith Act provides for
procedural requirements to assure that minority voices are heard in the
union (member bill of rights). There are also remedies already in place (i.e.
the grievance).
Dissent: The minority members are “prisoners of the union.”
RULE: A minority group may not bypass the Union and bargain
directly over matters affecting minority employees, and not at all on
the tactics used in this particular attempt to obtain such bargaining.
(picketing and handbiling).
Major points from case:
Internal groups w/in union may feel ignored. Appropriate remedies include:
challenging appropriate bargaining units, can vote union out, can file
individual grievance if it is consistent with CBA, duty of fair representation
claim against union.
Steele v. Louisiana & Nashville RR (SC): W/o telling EE, union makes a
deal with ER to no longer have black EE. Black EE could not be members
of the union. Steele, a black EE was replaced by white EE and given harder
work at a lower position, he sued. Case falls under RLA.
RULE: The Union is not representative of individuals, it is a representative
of the whole collectively. With this relationship, there are corollary duties,
and one such duty is the duty to protect equally the interests of the members
of the craft—duty to exercise fairly the power conferred upon it on behalf of
all those for whom it acts—without hostile discrimination against them.
The union may not consider “irrelevant and invidious” distinctions against
employees.
A union may make discriminations on relevant differences concerning
employment.
Union must act fairly, impartially, and in good faith. It may act
incompetently, just not invidious or irrelevantly discriminatory toward EE.
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Ford Motor v. Huffman (SC): Extended Steele principle to the NLRA.
Unions may not arbitrarily discriminate they must act reasonable.
O. GOOD FAITH BARGAINING
 Taft Hartley added section 8(d) because there was a concern that the Board
was getting too involved in the CB process.
 Statutory requirements of Good faith bargaining: 1) meeting at
reasonable times and confer and 2) if agreement is reached and party
requests it—it must be put in writing (does not have to be written to be
enforced—when the agreement is reached—it is enforceable).
 NLRB v. A-l King Size Sandwich (11th Cir): Union claims that ER
refuses to bargain—claims “surface bargaining.” They have met 18 times,
and no agreement—parties have agreed to recognition clause, jury duty pay,
leave of absence. ER basically had final say in everything—left the union’s
participation in the process virtually meaningless.
 RULE: The Board may infer bad faith from the actions of the parties alone
that there was no true intent to reach an agreement—is the proposals are so
unusually harsh and unreasonable that they are predictably unworkable.
 The Board, in evaluating good faith is not precluded from examining the
substantive proposals put forth
 Zipper Clause: Standard in contract—that the agreement is complete and
there is no right to bargain anything else. Also, normally includes no strike
provision—even if an ULP is committed.
P. DUTY TO FURNISH INFORMATION
 The NLRA is silent as to the duty to disclose information
 NLRB v. Truitt Co. (SC): Whether the duty to bargain in good faith under
8(a)(5) requires an employer to turn over to the union upon demand
information in the possession of the company which the union claims is
important to informed bargaining. Here, the union wants financial
information because the ER claims that a raise will break the company.
 DUTY TO DISCLOSE RULE: All information that is relevant and
necessary to bargaining must be disclosed upon request.
 Long-standing policy of Board that if the ER claims the inability to pay (i.e.
raises the issue) then they must prove it. (Duty to disclose).
 Similarly, if the ER doesn’t raise the claim, then there is no duty to
disclose.
 What must an ER say to raise the claim? There is an open question if the
ER must say it directly—if they must say it directly, though, the rule would
become meaningless because an ER could craft language to get around the
rule.
 There is a distinction from financial inability to pay and a competitive
advantage claim (We can’t pay vs. we won’t pay). There is no duty to
disclose.
 EX: “Get back in the black” was reasonable to construe as a claim of
financial inability to pay.
 Once shown the financial inability to pay, if the union persists, then that is
bad faith bargaining on the union’s part.
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Any information related to wages, hours, etc. is presumptively relevant.
Detroit Edison v. NLRB (SC): Company gave aptitude tests. The union
requested exams and exam validation. ER turned over test-validation study,
but refused to turn over the actual exams. Union filed an ULP charge,
claiming that the actual exams were relevant and necessary to arbitration.
Two issues: 1)) Did Board abuse its discretion in ordering the Company to
deliver the copies of the test battery and answer sheets? Yes, no justification
for a remedy granting such scant protection to the Company’s undisputed
and important interests in test secrecy. 2) Turn over the actual tests? No, the
ER’s interest of confidentiality supercedes the Union’s relevance to
bargaining claim. The tests should be turned over only if consent by EE.
 RULE: The Board must balance interests in determining when
confidential information must be turned over—union interests in arguably
relevant information do not always predominate over all other interests.
 Many attorneys have since argued that Detroit Ed. Stands for the refusal to
turn over personal files of employees, but the Board has held that mere
speculation of confidential information does not outweigh a claim of
relevance by the union.
Q. ECONOMIC PRESSURE
 NLRB v. Insurance Agents’ Union (SC): Whether a union, which desires
to reach an agreement on contract terms, violates 8(b)(3) by refusing to
bargain collectively, because during the negotiations it seeks to put
economic pressure on the ER to yield to its bargaining demands? Here the
union sponsored on the job conduct designed to interfere with the carrying
on of the ER’s business. Board found violaton. SC overturned, holding that
economic pressure is not per se bad faith because economic weapons are
part of the bargaining relationship. Economic pressure is a strategy in
bargaining and is not forbidden by the NLRA.
R. UNILATERAL CHANGES
 NLRB v. Katz (SC): Is it a violation of the duty to bargain collectively for
an ER, without first consulting a union with which it is carrying on bona
fide contract negotiations, to institute changes regarding matters which are
subjects of mandatory bargaining and which are in fact under discussion?
(i.e. to make a unilateral change?) YES.
 RULE: If it is a mandatory subject of bargaining (i.e. terms and conditions
of employment), then the ER may not make unilateral changes if bargaining
is in process. The ER must bargain to impasse on mandatory subjects of
collective bargaining.
 When is impasse? Further bargaining will not result in agreement..
 “Implementation after Impasse” Rule: Once impasse is reached, the ER
can implement unilateral change. The ER must implement the last best
offer.
 Duffy Tool v. NLRB: After union won election, ER put forth a “no fault”
absence policy. The union rejected it. The ER implemented it unilaterally in
the midst of bargaining. Board found an 8(a)(5) violation, because although
the parties were deadlocked on the attendance policy, they were not
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XII.
deadlocked on all of the mandatory bargaining issues and so had not
reached an “overall impasse.”
 RULE: An ER can not implement a change in part during bargaining,
unless an exigency action required to stave off disaster.
 McClatchy Newspapers v. NLRB: Contract is expiring. ER wants to
change to merit system, union wants to keep wage scale. They agree to
grandfather in wage scale—the new employees subject to new proposal.
Union’s only role in the new proposal is non-binding recommendations to
ER. Board finds a violation on the theory: McClatchy I: waiver of the right
to bargain. COA finds “de-collectivization of bargaining” by which the
employer bypasses the union’in setting wage rates. Remanded..
 McClatchy II: Board fashioned an exception to the “implementation after
impasse” rule—an ER can not act take unilateral action to eliminate the
process of collective bargaining. (Here, the ER refused to state any
“definable, objective procedures and criteria for determining merit and thus
the union would not be able to bargain knowledgeably).
 ER makes 3 arguments: 1) rule is arbitrary and capricious; 2) the Board has
no authority to craft the exception to the implementation rule; 3) Board
treats wages as a permissive subject and they are not. COA says that the
Board created the impasse rule, and thus can create exceptions to it—they
have rule-making authority. Also, Court said in 3) the attorney playing
semantics—that wages are a key component of CB and the Board was
attempting to save bargaining, and this was a sufficient basis for why
making the rule.
 This case is a good illustration of judicial review of the Board’s rule
making.
 Boulwarism: ER rejects the usual “horse-trading approach” to bargaining
and presenting terms and stating they are fair—take it or leave it, this is a
firm and fair proposal. Boulwarism is illegal—the ER must do the dance,
even if the boulwarism is in good faith (really a fair and firm proposal).
 Under 9(a) and 8(d) it is a violation if the ER makes a unilateral change on
a mandatory subject before reaching impasse.
SUBJECTS OF BARGAINING
 The duty to bargain extends to each and every subject embraced within the
statutory phrase, so that it is an ULP for either the employer or union to
refuse to bargain about such a subject upon the request of the other
(Mandatory subjects). There are other subjects that fall outside the phrases,
“wages, hours and other terms and conditions of employment” and which,
therefore are not statutory. Under some circumstances, insisting upon
bargaining to agreement on a non-statutory subject may be a per se
violation of either Section 8(a)(5) or 8(b)(3).
 Permissive subject: no duty to bargain.
 Mandatory subject: bargain to impasse.
 Marathon negotiations, nor concessions are required under the NLRA.
 NLRB v. American National Insurance (SC): Union presents proposals.
Employer rejects the mandatory arbitration proposal b/c they state they
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have mgmt functions that are not subject to arbitration. Board finds the
proposal by mgmt of the mgmt rights clause is per se illegal. SC rejects the
Board’s holding that bargaining for the management functions clause is per
se illegal, per se, an ULP. SC states that the purpose of the NLRA is
industrial peace and reaching voluntary agreements.
RULE: The duty to bargain collectively is to be enforced by application of
the good-faith bargaining standards of Section 8(d) to the facts of each case
rather than by prohibiting all employers in every industry from bargaining
for management functions clauses altogether. (Mgmt. Function clause not
per se illegal—case by case basis).
MANDATORY SUBJECTS:
Wages (pay rates, premium pay, shift differential, stock option plan,
pensions for current employees, bonuses (not gifts), overtime pay, merit
pay, parking discounts, thrift plan contributions).
Hours of Employment( start time, shift work, weekends off, lunch and break
times, etc.)
Other terms and Conditions of Employment: (Work rules; discipline;
hidden surveillance cameras; job-bidding procedures; drug testing for
current employees; medical examinations; seniority provisions; shift
preference; assignments; polygraph exams; layoffs; recalls; promotions
within the unit; merging or changing health plan unless mere change in
carrier; zipper clause; union access to plant; bulletin board use; safety; rules
on telephone usage; breaks and talking at work; uniform allowance; length
of contract, etc.)
If a bonus is part of the pay structure (not discretionary) then it is
mandatory.
PERMISSIVE SUBJECTS:
Unless a subject bears a DIRECT, significant relationship to the terms of
employment, the subject is permissive.
Placement in the unit or scope of the unit; internal union matters; stewards
to be selected jointly by ER and Union; industry promotion plan; interest
arbitration (unless in the CBA); promotion to supervisor and selection of
individual as supervisor; calling a strike; performance bond; hold harmless
release; pre-employment drug testing; use of court reporters at negotiations;
tape recordings of grievance meetings; withdrawal of lawsuit concerning
funds or Board charge; Agency fee amount paid by non-union members;
etc.
ILLEGAL SUBJECTS: Any topic that violates the NLRA such as closed
shop; preference for steward other than super-seniority for layoff purposes;
hot cargo clause; contractual benefits for union members only.
“Hot Cargo Clauses” are legal in only certain industries [UNITE, textile
and garment industry]
NLRB v. Borg Warner (SC): ER presented proposal that required
employees to vote yes or no on the contract proposal, and if it is rejected,
ER has 72 hours to amend it and present it again for a second vote, before
EE can go on strike. Also, doesn’t want international union as a joint
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bargaining agent, just the local. ISSUE: Whether ballot provision is a
mandatory subject or permissive? Permissive—although the ballot
provision affects the relationship between EE and their union, the ballot
provision does not directly settle a term or condition of employment.
Because it is permissive, the ER does not have to bargain to impasse.
Likewise, the preference for local union over international is decided a
permissive subject.
RULE: A mandatory subject of bargaining must settle a term or condition
of employment, and must go to impasse before implementation by the
employer.
Ford Motor v. NLRB (SC): ER always refused to bargain about in-plant
food and beverage prices. ER informed the union that cafeteria and vending
machine prices would be increased, and rejected the Union’s request to
bargain over both price and services and to supply information relevant to
Ford’s involvement in food services. SC upheld the Board in finding that
the vending machine prices were mandatory subjects of bargaining (while
making no special mention of the lack of reasonable eating alternatives).
The availability of food during working hours and the conditions under
which it is to be consumed are matters of deep concern to workers and thus
is a bargaining subject.
CONTRACTING OUT
Fibreboard Paper Products v. NLRB (SC): Whether the contracting out
of work being performed by employees in the bargaining unit is a
mandatory subject of collective bargaining? Yes, workers are being
replaced (terminated) and the purpose of the statute, industrial peace, is
served by it being a mandatory term, and it is well within the literal
meaning of “terms and conditions of employment.”
RULE: Contracting out work being performed by EE in the bargaining unit
is a mandatory subject of bargaining (in this case) if: a) the decision to
contract out the work does not alter the Company’s basic operation and b) it
does not abridge the employer’s freedom to manage the business (it is a
mere replacement).
Looking at industry practice is not determinative, it is evidence that
can be used to make a determination whether a subject is mandatory
or not.
[CLARIFY] First National Maintenance v. NLRB (SC): ER is having
economic disputes with a subcontractor. The union becomes the
representative of EE. ER shuts down part of its business for purely
economic reasons, and EE lose jobs. Must an employer, bargain with the
union over its decision to close part of the business?
RULE: BALANCING TEST: Bargaining over management decisions that
have a substantial impact on the continued availability of employment
should be required only if the benefit, for labor-management relations and
the collective bargaining process, outweighs the burden placed on the
conduct of the business.
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DISSENT: Believes that the presumption set forth by the COA that there is
a duty to bargain, but that presumption is rebuttable is the appropriate rule.
If the decision turns exclusively on labor costs, then the partial closing is a
mandatory subject of bargaining.
But if there is nothing the union can do about it—there is no hiring of
replacements, then there is a fundamental change in the business and it is
not mandatory bargaining.
RULE: The employer must always bargain (mandatory) over the effects of
shutting down a business (i.e. severance pay, training funds, recall rights,
bumping rights, etc.).
Dubuque Packing Co. (DC circuit): Whether there is a duty to bargain
regarding the relocation of an operation. Board set out rule and Circuit
found it rational
STANDARD FOR DUTY TO BARGAIN IN RELOCATION CASES:
A) PRIMA FACIE CASE: GC has the burden to establish that the ER’s
decision involved a relocation of unit work unaccompanied by a basic
change in the nature of the ER’s operation. If burden met, he has
established a prima facie showing that the employer’s relocation decision is
a mandatory subject of bargaining.
B) EXEMPT FROM DUTY TO BARGAIN IF THE DUTY TO
RELOCATE INVOLVES (Rebutting prima facie showing): 1) a basic
change in the nature of the employer’s operation, 2) a change in the scope
and direction of employment; 3) situations in which the work performed at
the new location varies significantly from work at the former location; 4)
situations at which the work performed at the former plant is to be
discontinued entirely and not moved to the new location
C) DEFENSE (BY A PREPONDERANCE OF EVIDENCE) 1) that
labor costs (direct/indirect) were not a factor in the decision; or 2)
(bargaining would be futile) that even if labor costs were a factor in the
decision, the union could not have offered labor costs concessions that
could have changed the employer’s decision to relocate.
WARN ACT (Worker Adjustment and Retraining Notification Act) 1988:
Employer must give notice to unions if plant is relocating or closing, minus
some exceptions (p. 480).
Allied Chemical and Alkai Workers v. Pittsburgh Plate Glass (SC): ER
makes a midterm unilateral modification of benefits for retired employees.
Board held that it is mandatory subject. SC reversed. SC looks at whether
retirees are 1) employees under the Act and 2) retiree benefits mandatory
subject because of its effect on current employees?
RULE: 1) Retired employees are not employees under the Act—they have
no community of interest, not purpose of NLRA to include retired
employees. 2) Retiree benefits are not mandatory—they do not vitally
affect the “terms and conditions” of employment of the current employees.
(It is speculative at best).
Section 8(d) sets forth obligation to bargain and Notice provisions:
All terms remain in effect during the life of the contract
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60 day written notice must be given to make changes to terms of contract
Written notice to Federal MCS.
Written notice to State agency
President has the National Emergency Invoking Power to stop a strike
Hospitals: all periods are 30 days longer for notice of strike. Must give 10
full day notice in writing for a strike at a hospital.
 Healthcare industry also has “cooling off” period like under the Railway
Act.
XIII. SUCCESSORSHIP
 NLRB v. Burns (SC) (5-4): Established a number of significant principles
on the question of the duty of a successor to bargain with the predecessor’s
union:
 (1) When a company hires as a majority of its workforce (in an appropriate
bargaining unit) employees from a unionized predecessor, it has a duty to
bargain with the union, but is not bound by the terms of the CBA (does not
have to honor the pre-existing CBA)
 Elements of Burns Successorship: “Same business” means: 1) same
work 2) same setting 3) same supervision 4) same structure 5) majority of
union members carry over.
 Duty to Bargain does not carry over when: a) when recruitment by the
successor results in “an almost complete turnover of employees” (as long as
no purposeful avoidance because of union membership); b) successor’s
“operational structure and practices” differ from those of the predecessor,
the former bargaining unit is no longer appropriate; or c) the successor has
a good faith reasonable doubt that the union continues to represent a
majority within the unit.
 (2) Duty to bargain ordinarily does not commence until the successor has
hired as a majority of its workforce the former employees of the
predecessor.
 The Court repudiated the Board’s earlier ruling that the predecessor’s CBA,
even if expired or for other reasons not deemed independently binding on
the successor, set the starting wages and working conditions.
 The successor is ordinarily free to establish its own starting wages and
working conditions.
 Perfectly Clear Exception: Although a successor is ordinarily free to set
initial terms on which it will hire employees of a predecessor, there are
instances in which it is perfectly clear that the new employer plans to retain
all of the employees in the unit and in which it will be appropriate to have
him initially consult with the union before fixing terms. (dictum).
 That the successor was not bound by the pre-existing contract was
unanimously accepted by the SC.
 Bargaining begins at the announcement level (ER can set terms and then
offer them to EE)—not at the terms of the CBA unless the perfectly clear
exception applies.
 Fall River Dyeing v. NLRB (SC): Sterlingwale had two types of
businesses—dyeing and finishing, it begins liquidating, New company
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started, repurchased remaining inventory. 7 months after Sterling closes,
new company opens—advertises in newspaper for employees. Hires 11
previous employees. By January, 36 of 55 are former EE (70%). In April,
49.3% are former EE. ER is only doing commission work, but everything
else is the same as former company. Union argues they are Burns
successors. ER argues a hiatus—we advertised, and there was no majority
at final hiring (49.3%).
BURNS SUCCESSORSHIP RULE: Based on totality of circumstances,
whether new company has hired “substantial assets of its predecessor and
continued, without interruption or substantial change, the predecessor’s
business operations.” Focus on whether “substantial continuity” between
the enterprises. Apply Burns’ elements to determine whether “substantial
continuity.”
In conducting analysis, Board takes into account whether employees who
have been retained will understandably view their job situations as
essentially unaltered
WHEN SUCCESSOR’S OBLIGATION TO BARGAIN ARISES: The
duty to bargain begins when a SUBSTANTIAL AND REPRESENTATIVE
COMPLEMENT exists in a particular employer transition. The Board looks
at whether: 1) the job classifications designated for the operation were
filled or substantially filled and 2) whether the operation was in normal or
substantially normal production. It also considers 3) the size of the
complement on that date and the time expected to elapse before a
substantially large complement would be at work, and 4) the relative
certainty of the employer’s expected expansion.
CONTINUING DEMAND RULE: The successor’s duty to bargain at the
“substantial and representative complement date” is triggered only when
the union has made a bargaining demand. If a premature demand is made, it
remains in force until the moment employer attains the “substantial and
representative complement.”
Dissent: These are separate companies and the full complement rule
should be in place.
Golden State Bottling (C): There was an unlawful discharge against
Golden State. All American purchased Golden State and continued to
operate business w/no substantial change Board orders All American a
successor and orders back pay and reinstatement. All American is joint and
severally liable because they knew of the ULP when they purchased the
business. SC agrees.
RULE: A successor of a business is joint and severally liable for an ULP
because they are a bona fide purchaser (knew of the ULP) and it would be
far too easy to avoid judgments by selling the business.
The Union will always send notice to potential purchasers of the ULP
Howard Johnson v. Detroit Local (SC): (a sec. 301 claim as opposed to
ULP). Family leased their real property to Hojo and sold it the personal
property, thus Hojo became the direct operator of the facilities. It was an
“assets sale.” Hojo did not hire a majority of the former employees. SC
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XIV.
distinguished its decision in Wiley, which it stated was decided on narrow
grounds—in Wiley, there was a merger and the unionized company
disappeared—however a majority of the previous EE remained with the
merged company—thus the Court held that the merger does not
automatically terminate all rights of the employees covered by the
agreement, and in appropriate circumstances, the employer may be
required to arbitrate with the union under the agreement.
 Court refused to extend Wiley here—this is an asset sale and the union
has a remedy to enforce their contractual obligations against the family who
leased the property to Hojo and there is no majority of employees hired (no
substantial continuity of identity in the workforce hired) and no express or
implied assumption of the agreement to arbitrate.
 DISSENT: Bootstrap argument—to make the number of prior employees
the sole determining factor is in error.
DUTY OF FAIR REPRESENTATION
 Deals with the relationship between EE and their representative.
 Statute says nothing about the standard for individual EE representation.
 STANDARD THAT APPLIES TO UNIONS:
 Steele v. Louisville: No hostile discrimination in an invidious manner.
 REMEDIES:
 Both 301 actions (employer) and duty of fair representation (union) have a
statute of limitations equal to ULP charge—six months.
 IBEW v. Foust: Union fails to file grievance within the filing date set forth
in CBA. EE sues claiming breach of duty of fair representation. SC court
held no breach.
 RULE: Union must be reckless or commit wanton negligence, mere
negligence is not enough.
 If the standard were mere negligence the labor movement would go
bankrupt.
 Airline Pilots Ass’n v. O’Neill (SC): Continental files for bankruptcy Cuts
salaries by 50%. 2 year strike. ER started to fill positions by bidding
process. They make agreement with the union and settle. Allow for 3
different options: 1) settle and have access to job bids; 2) severance pay;
and 3) keep individual claims against company and then have chance at
bids after people who chose option 1. The union’s agreement was
reasonable—the settlement seemed necessary, and a voluntary return to
work would merely precipitate litigation over the right to the bid positions.
 DUTY OF UNION RULE: The duty of the union to the bargaining unit is
akin to a fiduciary duty to beneficiary. It can not be so far outside
reasonableness as to be wholly irrational arbitrary. (a wide range of
reasonableness. 3 Components of the Duty: 1) serve interests of all
members without hostility (a nondiscriminatory fashion); 2) good
faith; and 3) avoid arbitrary conduct.
 The duty applies to grievances, contracts, negotiating, etc.
 There is no duty of adequate representation, just representation that is
equal, non-discriminatory and in good faith.
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Even if a union’s decision is bad in retrospect, this does not mean it was an
irrational or arbitrary decision at the time.
Vaca v. Sipes: Owens files class action against union because they refused
to take his grievance under CBA grievance procedure. Union argues it
should be before the Board. Issue is Garmen—whether Board has exclusive
jurisdiction over matters under NLRA.
RULE: An employee may bring a duty of fair representation claim in the
NLRB or in Court. The Court has jurisdiction to fashion a remedy for the
breach of a DFR claim.
There is no absolute right to have a grievance taken to arbitration—the
union must consider the grievance and decide whether to pursue it. Also the
union may settle a grievance, as long as it is in good faith.
Union News: ER thinks someone stealing. ER fires everyone. Union
negotiates and says fire only morning ER. Morning ER sues for breach of
DFR. Court finds no breach—the union acted in good faith, and based on
the evidence at the time, the union was acting in the best interest of all
employees at the time—the collective interest of the employees.
Under the duty of fair representation, if there is a promise to take it to
arbitration, the standard of duty is higher.
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