LABOR LAW – CRAVER – FALL 2010
I. INTRODUCTION
NLRA
§7 – protected activity and nonprotected activity
§8 – unfair labor practices by employers/unions
§9 – representatives and elections
§10 – prevention of unfair labor practices
§13 – Right to strike protected
§14 – Other limitations
-NLRB: 5 member Board, can sit as 3 (and must have 3 for a quorum)
-U.S. has employment-at-will: unless you are a member of a protected class, you can be fired without cause
-Only a substantial public policy reason can protect from a firing without good cause (i.e. refusal to falsify docs)
-For protection, you have to have (1) employee involvement, which is (2) concerted
-If you have illegal activity, it is almost per se unprotected
-NLRB says you can’t do a “slow down” or be disloyal to the employer
-A labor organization doesn’t have to be a large union; it merely needs to be a group of employees who organize
§8(a)(1): employer can’t restrain or coerce employees in the exercise of protected rights [like 8(b)(1)(A)]
§8(a)(2): employer can’t dominate or interfere with or financially support a labor organization
§8(a)(3): employer can’t discriminate to encourage/discourage support of a union [like 8(b)(2)]
§8(a)(4): employer can’t retaliate against an employee for filing charges or giving testimony under the Act
§8(a)(5): employer can’t refuse to bargain; doesn’t have to agree, just bargain in good faith [like 8(b)(3)]
§8(b)(1)(A): union can’t restrain or coerce employees in the exercise of protected rights [like 8(a)(1)]
§8(b)(1)(B): union can’t restrain or coerce an employer in the selection of representatives for bargaining
§8(b)(2): union can’t cause or attempt to cause an employer to discriminate against an employee
§8(b)(3): union can’t refuse to bargain in good faith, provided it is the representative of employer’s employees
§8(b)(4): union restricted from putting pressure on a secondary party doing business with primary employer
§8(b)(5): cannot have a discriminatory or excessive initiation fee
§8(b)(6): union can’t cause or attempt to cause employer to trade money for services
§8(b)(7): union can’t picket to force recognition when it is not the recognized representative at that employer
-it’s legal to make a prediction about the effects of unionization, but illegal to make a threat
-Monetary jurisdictional standards (total $ volume of business): NLRB’s requirements for exercising its power (p26)
-The board may not narrow the standards established in 1959, so the vast majority of private businesses are covered
Exclusions from coverage under the NLRA:
-Independent contractors
-Supervisory and managerial employees
-Other: agricultural laborers, domestic servants, railroad/airline workers (covered under Railway Labor Act)
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II. RIGHT OF SELF-ORGANIZATION
§8(a)(1): employer can’t restrain or coerce employees in the exercise of protected rights [goes with 8(b)(1)(A)]
§8(a)(2): employer can’t dominate or interfere with or financially support a labor organization
§8(a)(3): employer can’t discriminate to encourage/discourage support of a union [goes with 8(b)(2)]
§8(b)(2): union can’t cause or attempt to cause an employer to discriminate against an employee
-Two basic cases: (1) Representation cases and (2) Unfair labor practices cases
-The union only has rights if it has the support of a majority of workers (see §9)
-Union must win a majority of the votes cast to become the bargaining representative
-After the election, you have seven days to file an objection (challenging pre-election conduct)
If the employer wins, the union alleges that employer made threats, etc.
If the union wins, the employer alleges that union made false promises, etc.
-The union/employer can also challenge post-election procedures (based on one side’s refusal to bargain)
-Six month statute of limitations on an unfair labor charge
-You can only charge an employer or a labor organization, not an individual
-There is no review of a decision not to issue a complaint
-No punitive damages available; only back pay
-The NLRB does not give advisory opinions except for jurisdiction
§8(a)(1) – two types of violations
-Independent 8(a)(1): when employer has independently violated 8(a)(1)
-Derivative 8(a)(1): when employer has also violated 8(a)(2), (3), (4), or (5) = automatic 8(a)(1) violation
-You don’t have to prove that the particular individual was restrained or coerced, but simply that the employer’s
conduct has a natural tendency to so – a reasonable employee would be restrained or coerced
A. Access to Premises for Union Organizers
-Issue: Can nonemployee union organizers enter private property to distribute union information?
-Babcock held that employers can restrict entry to their private property, except in cases where there are no other
alternative means of contact (i.e. employees at resorts, logging camps, etc.)
-In Lechmere, Court reiterated Babcock – Employers can prevent union reps from accessing their property
“An employer cannot be compelled to allow distribution of union literature by nonemployee organizers on
his property” unless “the location of a plant and the living quarters of the employees place the employees
beyond the reach of reasonable union efforts to communicate with them
-Plant’s location in a metro area not enough in itself to open employer’s premise to organizers (Monogram Models)
B. Solicitation and Limits on Solicitation
-Union organizers must solicit during non-working hours (breaks, meal periods, pre/post work)
-If a working employee wants to solicit another employee, they both must be on nonwork time
-For literature distribution, it must be non-work time and non-work premises
-Handing out authorization cards is considered solicitation and not literature
- Union may not waive employee right to solicit or distribute (NLRB v. Magnavox)
-An unlawful restriction of solicitation/literature distribution is an 8(a)(1) violation
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-Employers can’t have a discriminatory rule: i.e. you can put up anything you want on the bulletin board but not
union literature; you can talk to your friends and family on your cellphone but cannot accept union solicitation
-Board applied rule to email: if you allow employees to use it for personal use you cannot restrict solicitation use
-Employer rules prohibiting solicitation not in and of themselves violations, but “coercive antiunion solicitation and
other similar conduct” constituting an “imbalance in communication” are unfair labor practices (NuTone)
-Two critical exceptions to solicitation/distribution rights:
1) Healthcare facilities: The Board has said that you may ban all solicitation and distribution in any area of
immediate patient care (excludes gift shop, cafeteria, hallways)
2) Retail stores: The Board has taken the position that you may ban all solicitation and distribution in the selling area
of a retail establishment (binds both employer and union, even nonwork time)
-Usual rule is that employees have right to wear buttons (but can ban if too large, in poor taste, or there’s a uniform)
C. Employer/Union Speech & Gifts/Benefits
Issue: What free speech rights do employers have to speak against the union?
-Gissel Packing: employer is free to tell “what he reasonably believes will be the likely economic consequences of
unionization that are outside his control” but cannot make “threats of reprisal to be taken solely on his own volition”
-To have a legal prediction (as opposed to an unlawful threat):
1) Must be based on objective fact
2) Demonstrably probable consequences
3) Beyond the control of the employer
-Labor costs are not entirely beyond the control of the employer, but employer can make a lawful prediction of
higher labor costs and consequences if similar situations have occurred elsewhere
Issue: Can employer enforce no-solicitation rule but also make antiunion speeches as well?
-Bonwit Teller: if you violate your own privilege rule, you can no longer enforce the privilege
-Livingston Shirt: in the absence of either an unlawful broad no-solicitation rule or a privileged no-solicitation rule,
an employer does not commit an unfair labor practice if he makes a pre-election speech on company time and
premises to his employees and denies the union’s request for an opportunity to reply
-May Department Stores Co.: Employer cannot make antiunion speeches at working time and place while
simultaneously enforcing a no-solicitation rule and refusing the union’s request to address the employees
-An employer may not solicit employees to participate in antiunion videos (Allegheny Ludlum Corp.)
Issue: Can employer offer well-timed increases in benefits to thwart the union organizing campaign?
NLRB v. Exchange Parts Co.: No, because the action “interferes with the protected right to organize”
-If there is a union organizing campaign going on, and all the sudden the employer offers new and increased
benefits, it will almost always be found to be an 8(a)(1) violation
-Exception: if the employer usually reviews benefits and announces increases at this time of year, it’s not a violation
-Neither employers nor labor organizations may provide gifts of meaningful value to influence employee voting
-Violence and threats of violence to deter union organization are clearly unlawful
D. Surveillance
-If employer deliberately utilizes surveillance or sends an agent to report back on organizing activity, it’s a violation
-If employer gives the employee the impression that they have been spied on – 8(a)(1) violation
-The line is solicitation of information/surveillance: once employer crosses that line, it’s a violation
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E. Interrogation
Issue: When does employer “interrogation” of employees become a violation of the NLRA?
-Blue Flash Express: the test is whether, under all the circumstances, the interrogation reasonably tends to restrain or
interfere with the employees in the exercise of rights guaranteed by the Act
-Several factors go into the determination:
1) Who is doing the questioning (first line supervisor less coercive than higher-up)
2) Where the questioning is occurring (shop floor less coercive than manager’s office)
3) The extent of the questioning (more extensive = more coercive)
4) The type of the questions (more specific = more coercive)
5) Totality of the circumstances
6) Openness of the employee
-If any hint in the questioning that a certain response could have a negative effect, the questioning is a violation
-The Board revised the Blue Flash factors in Struksnes (violates Act unless the following are observed in poll):
(1) The purpose of the poll is to determine the truth of a union’s claim of majority,
(2) This purpose is communicated to the employees,
(3) Assurances against reprisal are given,
(4) The employees are polled by secret ballot, and
(5) The employer has not engaged in ULPs or otherwise created a coercive atmosphere
-in order to poll the workers to determine if the union has achieved majority representation, the employer has to (1)
have a valid purpose, (2) make clear that there is no threat of retaliation, and (3) conduct the poll by secret balloting
-If employer conducts the poll and verifies union’s claim, they can no longer refuse to grant recognition
F. Domination & Minority Support
-Company unions are a classic violation of §8(a)(2): “domination”
-“Action Committees” comprised of employees and management representatives that discussed and resolved various
issues constituted unlawful domination (Electromation)
-Are “Action Committees” or similar groups labor organizations?
1) Does the committee consist of some employees
2) Does the committee act in a “representative” capacity? (speaking for other employees)
3) Does the committee deal with the employer with respect to working conditions?
If yes to all three, it’s a labor organization
-If the committee is a labor organization, the company cannot “dominate” the committee
-If there’s no back and forth negotiation, no “dealing with” and therefore no labor organization (thus no domination)
-However, if the company solicits input and takes action, that is an unfair labor practice
-Employer can’t use the committee to solicit grievances and resolve complaints in attempt to stave off the union
-Committees/groups that did not “deal with” management but rather exercised authority to operate the plant by
making decisions regarding production, quality, training, etc. were not “labor organizations” (Crown Cork & Seal)
Issue: Can employer recognize union even though only a minority of employees authorized representative support?
-Int’l Ladies Garmet Workers’ Union (Bernhard-Altmann): it is a violation of the NLRA if the employer grants and
a union accepts recognition when the union does not have a majority (even if both did so in good faith)
-Both employer and union committed ULPs; Board ordered the recognition discontinued and an election to be held
-It is unlawful for employer to negotiate an agreement with a minority union that is conditioned upon the union’s
attainment of majority status before the agreement becomes effective (Majestic Weaving Co.)
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LABOR LAW – CRAVER – FALL 2010
-In construction industry, employer does not violate §8(a)(2) by making a pre-hire agreement with an unassisted
union – there is a rebuttable presumption of majority support when a union security agreement results in majority
union membership on a project to which a pre-hire agreement applies (Pacific Erectors)
-In most cases, the worst that can happen is that the Board will order a new election
-In rare cases, the Board will order the employer to recognize the union and bargain with them
G. 8(a)(3) Discrimination
-To prove an 8(a)(3) violation, you have to show:
1) That the fired employee engaged in protected activity (in support of the union)
2) That the employer has knowledge of the activity (normally a supervisor who reports it)
3) That the employer discriminated in some way (most commonly by firing the employee)
4) That the employer has an antiunion motive (but if first 3 are present, 4th usually inferred)
5) That the action discouraged/encouraged support for the labor organization
-You can’t just fire key organizers as a weapon to discourage union support and organization – §8(a)(3)
-What if an employee is engaging in protected activity, but also is doing bad work?
-If the employer took into account the protected activity, it is a violation unless the employer can show that it would
have taken the same action regardless of the protected activity (Wright Line)
-If gender or race is a motivating factor, this is a per se violation, but if the employer can prove that it still would
have fired the employee, there will be no reinstatement/back pay
-If employer tolerated employee’s marginal performance, he can’t fire him once they discover his protected activity
H. Union Security Agreements
§14(b) – Nothing in this Act shall be construed as authorizing the execution or application of agreements
requiring membership in a labor organization as a condition of employment in any State in which such is
prohibited by law
-There are exclusive hiring halls and non-exclusive hiring halls
-In exclusive hiring halls, employer agrees to hire only employees from the union hiring hall
-In non-exclusive hiring halls, employer can hire whoever it wants, but can request that the union refer an employee
-An exclusive hiring hall can charge a referral free to a non-union member who seeks to use it, but cannot refuse to
allow a non-union member to use the hiring hall
-If the hiring hall is non-exclusive, the union can discriminate against non-union members
-You can give a preference to employees who live in a certain geographic area
-A “closed shop” is where you have to be a union member to become employed; outlawed in 1947
-A “union shop” is where you must become a union member within a certain period of time; still technically legal
-An “agency shop” is where you do not have be a union member to become employed but have to become a
“financial core member” within a certain period of time (aka initiation fee and dues); currently legal
-Unions may charge nonmembers reasonable fees for use of hiring hall, but excessive fees will violate §8(b)(1)(A)
-Unions operating a nonexclusive hiring hall may lawfully refuse to refer nonmembers to jobs (Dupont & Co.)
-Issue: Can employer refuse to bargain with certified union over union’s proposal for adoption of an agency shop?
-General Motors Corp.: Agency shop is not an ULP, therefore employer was not excused from his duty to bargain
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-Int’l Brotherhood of Teamsters: A hiring hall arrangement to be lawful must contain protective provisions:
(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based
on, or in any way affected by union membership or requirements
(2) The employer retains the right to reject any applicant referred by the union
(3) The parties to the agreement post…all provisions relating to the functioning of the hiring arrangement,
including the safeguards that we deem essential to the legality of an exclusive hiring agreement
-It is the “true purpose” or “real motive” in hiring/firing the constitutes the test
-The existence of discrimination may be inferred from the facts by the Board (Radio Officers’ Union)
Beck rights: At least once a year, the union has to notify its members that (a) they have the right to resign from the
union, and (b) they have the right to object to union expenditures that employees find inappropriate
-One way to insure that the union gets its dues each month is to have a “check off” agreement with the employer by
which the dues are deducted monthly from the employee’s paycheck (employees sign authorization form)
-Employees w/ religious objections can opt out of dues, but must pay equivalent to non-religious non-labor charity
-If the union expels a member for any other reason than failure to pay dues, it cannot seek that employee’s discharge
-Twenty-two states have “right to work” laws which prohibit union security arrangements, which effectively
prevents requiring employees to be union members (even “financial core members”)
-A union can use the word “member” even if it only means “financial core member” (Marquez v. SAG)
I. Union Expenditures
-Full union members cannot object to union expenditures (voluntary membership), but “financial core” members can
object to what they consider to be inappropriate expenditures (Ellis)
-The union can spend the money on activities reasonably related to collective bargaining:
(1) negotiating the contract
(2) administering the contract
-Ellis discusses other union expenditures:
(1) National conventions (permissible)
(2) Social activities (permissible)
(3) Publications (permissible)
(4) Organizing (not permissible, later approved)
(5) Litigation (permissible, limited to bargaining unit) (6) Death benefits (probably permissible)
-Ellis test: “whether challenged expenditures are necessarily or reasonably incurred for the purpose of performing
the duties of an exclusive representative of the employees in dealing with the employer on labor mgmt issues”
-Ok: anything related to bargaining rights, related to the agreement, national publications, professional development
-Not Ok: political, ideological, lobbying expenditures
-Agreements requiring “membership” in a labor union which are expressly permitted by the proviso to 8(a)(3) are
the same agreements expressly placed within the reach of state law (Schermerhorn I)
-States may not only prohibit the execution and application of union security agreements, but may enforce their laws
by appropriate sanctions (Schermerhorn II) – basically, state “right to work” laws are legal
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J. Concerted Activity
§7 – Employees 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 mutual aid or protection, and shall also have the right to refrain from any
or all such activities except to extent that right may be affected by an agreement requiring union membership
-Requirements for rights/protection under §7 (“Protected concerted activity”):
(1) Must involve employees, (2) Must be “concerted”, (3) Must be appropriate conduct (illegal = not protected)
-City Disposal Systems: “Constructive concerted activity” because the individual is asserting a right effectively on
behalf of the rest of the employees (the right emanates from the collective agreement)
-Employee’s action must be an honest belief, a reasonable belief, and taken “for purposes of collective bargaining or
other mutual aid or protection” (Interboro)
-In Washington Aluminum, workers who were not organized under a CBA walked out because of cold conditions in
the factory; this was found to be a protected activity and company held to have violated 8(a)(1)
-examples of concerted activity: see pp137-138
-Slow downs are not protected (Elk Lumber) – You have to work or strike
-Efforts by nonstriking employees to generate a consumer boycott are unprotected (Hoover Co.)
-Employees cannot make “sharp, public, disparaging attacks” on the company or its products (IBEW Local 1229)
NLRB v. Weingarten: Where there is a collective bargaining relationship and the employer calls an employee in for
an “interview” and the employee reasonably fears that discipline against them “can reasonably be expected to
follow” he may request that a union representative be present
-The employer does not, however, have to tell the employee of this Weingarten right
-No Weingarten right arises if the employer intends merely to communicate a disciplinary decision previously made
-The employer may not limit the role of a representative to that of a silent observer
-The Weingarten right does not extend to non-union employees (no fellow worker representative)
K. Strikes
Issue: Is a strike automatically unprotected because it violated no-strike clause?
-Mastro Plastics v. NLRB: No, when a strike is motivated by ULPs and not economic reasons
-The prohibition against “any strike” in the agreement deals solely with strikes with economic motivations
-If employees join a proscribed strike, they lose their protected status as employees and their right to reinstatement
-Court says that §8(d) only refers to strikes intended to accomplish “termination or modification” of the collective
bargaining agreement…the “loss of status” provision of 8(d) does not apply to strikes in response to ULPs
-If you have a strike during the last 60 days of the contract that is economically motivated and/or aimed at
“termination or modification” of the agreement, the strike is not a protected concerted activity (Mastro Plastics)
-If it’s a relatively minor unfair labor practice, a strike is not concerted protected activity if it violates a no-strike
clause; employees have right to strike unconditionally for serious unfair labor practices (Arlan’s Dept. Store)
-Following a work stoppage in violation of a no-strike provision, an employer may punish the strikers universally,
randomly, or in proportion to guilt (Midwest Precision Castings Co.)
-BUT in the absence of an explicit contractual duty imposed on union officials, an employer’s disparate disciplining
of them more severely than other employees for merely participating in a work stoppage in breach of a no-strike
clause would violate §8(a)(3) (Metropolitan Edison Co.)
-Strikes over abnormally dangerous working conditions (i.e. radiation) don’t constitute a strike
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Issue: If workers strike, can employer fire the workers? Can the employer replace the workers?
Mackay Radio & Telegraph Co.: If workers strike for economic reasons, employers cannot fire the workers but
can replace the workers with permanent replacements, and employers are not bound to discharge those hired
during the strike to fill the places of the returning strikers
-When the employer is “guilty of no act denounced by the statute” it has a right, in order to keep its plant in
operation, to hire permanent replacements for strikers and deprive the strikers of immediate right of reinstatement
-However, employer cannot discriminate in deciding which employees it reinstates
-If employer offers a justification for their conduct, that legitimate justification will balance against worker rights
-In order to take advantage of their reinstatement rights, unreplaced economic strikers must make an unconditional
application for reinstatement, either personally or through their union
-An employer has to offer unconditional reinstatement to striking employees whom it discharged before it hired
permanent replacements, since the termination of economic strikers is a per se ULP (Int’l Van Lines)
-Economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by
permanent replacements (1) remain employees, (2) have preferential recall rights, and (3) may still retain
representation voting rights for twelve months afterward (Laidlaw)
-An employer need not offer former economic strikers reinstatement to jobs that are not the same or substantially
equivalent to their old jobs, even when workers are qualified to fill them (Rose Printing Co.)
-When a strike has been called because of employer’s unfair labor practices, the employer is not legally free to hire
permanent replacements and must reinstate strikers upon their request (Collins)
-By definition, you can only have an unfair labor practice strike if there has actually been an ULP
-If you are were replaced by a permanent worker, you retain voting rights for 12 months
-If you were replaced by a temporary worker, you retain voting rights indefinitely
-If you are a permanent replacement, you do have voting rights
-If you are temporary replacement, you do not have voting rights
-Union and employer may place time limits on reinstatement rights of economic strikers if period fixed:
(1) is not unreasonably short
(2) is not intended to be discriminatory or misused by either party for discrimination
(3) was not insisted upon by the employer to undermine the status of the union
(4) was the result of good faith bargaining
-If the employer first commits ULPs during the course of an on-going economic strike, the strike becomes an unfair
practice strike (Pecheur Lozenge); to convert an economic strike into an unfair labor strike, the employer’s unlawful
conduct must actually be found to have prolonged or intensified the work stoppage (F.L. Thorpe & Co.)
-During an economic strike, the employer can temporarily subcontract the work of the strikers, but if the employer
attempts to permanently subcontract it may have to bargain with the union
-In the absence of an applicable no-strike obligation, an employer may not terminate employees who honor a
primary picket line at another employer’s premises
-If the employee who honors the picket line has not been affected by the unfair labor practice, he is an economic
striker, even if the strike is an unfair labor practice strike
-If the employee (i.e. truck driver, “sympathy striker”) refuses to cross the picket line, the employer may
permanently replace him, but the replacement must cross the picket line
-A general no-strike clause in the contract normally does not cover sympathy strikes (Children’s Hosp. Med. Ctr.)
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Issue: At the end of a strike, is an employer required to displace employees who worked during the strike?
TWA v. Independent Federation of Flight Attendants: Returning striking employees cannot bump out junior
“crossovers” – employer is not required to lay off the permanent replacements or displace the junior “crossovers”
from their location assignments (crossovers went back to work during the strike to get better locations)
-Court distinguishes Erie Resistor because employer is not giving fictional seniority; the positions are not open so
there are no “vacancies” as would be required in the CBA
-Employers can’t give “super-seniority” to permanent replacements for layoff / recall purposes only (Erie Resistor)
-Post-strike bonuses to those who worked during strike not supported by valid business justification (Rubatex Corp.)
-Seasonal employer permitted to recall permanent replacements laid off at the end of the preceding season ahead of
unreinstated strikers because replacements had a reasonable expectation of recall (Mike Yurosek & Son)
-Employer can give temp replacements pay increases, but must bargain with the union if it wants to raise wages of
permanent replacement employees (union will likely oppose, but employer only has to reach a “good faith” impasse)
-Multi-employer associations are when a number of independent employers get together and decide to negotiation
with the union as a group (multi-employer/multi-unions groups are completely consensual)
-Any employer can give written notice of intent to leave the multi-employer unit if negotiations haven’t begun, but if
negotiations have begun then employer needs permission from the other members or an extraordinary circumstance
-It’s an 8(b)(3) violation (refusal to bargain) if union refuses to bargain with multi-employer association
But often the targeted firm agrees to bargain with the union, waiving the 8(b)(3)
L. Lockouts
-A “whipsaw strike” is when union strikes one employer, hoping that one will give in and the others will follow
-In response to a whipsaw strike at one of the employers, the other members of the multi-employer association may
decide to close as well and “lockout” their workers (lockouts are the employer’s defensive weapon against strikes)
Issue: May employer associations lawfully use temporary lockouts as a defense against whipsaw strikes?
-Buffalo Linen Case: Yes, b/c they have valid business justification of maintaining integrity of employer association
- When a union engages in a whipsaw strike and that employer continues operating with temporary workers, the
other employers in the organization can still lockout and also hire temporary workers (Brown)
The lockout is defensive; the other employers hire temporary workers to maintain competition
-However, if there was a whipsaw strike, the struck company has hired permanent replacements, and the other
employers lockout, the employers who lockout cannot hire permanent replacements
-When a union strikes some members of a multiemployer unit, some employers lockout, and some employees ask to
work during lockout, employer may tell them they can return to work if they resign from the union (Gleason)
Issue: After reaching bargaining impasse, may an employer use a lockout as a weapon of economic pressure?
-American Shipbuilding: Yes, no ULP when employer temporarily locks-out to support a legit bargaining position
-If the employer has locked out employees simply to avoid an inopportune stoppage of work, it might be considered
a legitimate lockout – but in this case the employer locked out to improve its bargaining power
-To use lockout as an offensive weapon, you have to be able to demonstrate:
(1) a good faith bargaining impasse
(2) a justifiable business reason
(3) no antiunion motive
-If you can prove that reason the employer is taking some kind of action is antiunion motive, per se 8(a)(1) violation
-A pre-impasse lockout probably ok if it doesn’t threaten the union’s survival (Darling & Co.)
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-The hiring of permanent replacements is inconsistent with a lawful lockout and a violation (Ancor Concepts)
M. Plant Closings
-Darlington Mfg. Co.: You can go out of business for any reason, including an antiunion motive
-The “purpose and effects” test – you have to have both an “illegal purpose” and a “foreseeable effect”
-Even if your decision to shut down the business has a chilling effect on union organizing, it is not an unfair labor
practice unless the closing has a chilling effect on YOUR business
-An employer who closes a plant engages in an unfair labor practice 8(a)(3) violation if:
1) Employer has an interest in another business
2) Employer has an antiunion purpose for the plant closing
3) It is reasonably foreseeable that other employers will derive an antiunion benefit
-If the employer can show that the employees made no reasonable effort to find other employment commensurate
with their skill and experience, backpay will be reduced (employees have to mitigate damages)
N. Employee Misconduct
-In Kohler, the Board established a balancing test: if employees engage in misconduct during a strike and are fired,
we will balance the seriousness of the employer’s violation with the seriousness of the worker’s misconduct
-In Clear Pine Mouldings, Inc., the Board changed the Kohler rule: if you engage in any misconduct, you are done
-The new standard is: “whether the misconduct is such that, under the circumstances existing, it may reasonably tend
to coerce or intimidate employees in the exercise of rights protected under the Act” (McQuaide)
-If the misconduct occurs during an economic strike, employer can fire for any misconduct; the circumstances of
Clear Pine apply only to misconduct during an unfair labor strike
-The Court says that if the employer fires an employee because it received (incorrect) information that the employee
was planning on violence or sabotage, this is not unlawful
-But if firing occurs during an organizing campaign or other protected activity in which the employee is involved,
the employee is protected from termination because of the effect the firing might have on the organizing campaign
III. SETTLEMENT OF REPRESENTATION QUESTIONS (see Checklist Handout)
§9(a): Representatives selected for purpose of collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions
of employment
(b): The Board shall decide in each case whether the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof:
PROVIDED, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit
includes both professional employees and employees who are not professional employees unless a majority of
such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate
for such purposes on the ground that a different unit has been established by a prior Board determination,
unless a majority of the employees in the proposed craft unit votes against separate representation or (3)
decide that any unit is appropriate for such purposes if it includes, together with other employees, any
individual employed as a guard to enforce against employees and other persons rules to protect property of
the employer or to protect the safety of persons on the employer's premises; but no labor organization shall
be certified as the representative of employees in a bargaining unit of guards if such organization admits to
membership, or is affiliated directly or indirectly with an organization which admits to membership,
employees other than guards.
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(c)
(1) Whenever a petition is filed by either employees or the employer, the Board shall investigate the
petition and if it has reasonable cause to believe that a question of representation exists shall provide
for an appropriate hearing upon due notice. Hearing is conducted by an officer of the regional office
(2) In determining whether a question of representation affecting commerce exists, the same
regulations and rules of decision shall apply irrespective of who files the petition or the relief sought
(3) No election shall be directed in any bargaining unit or any subdivision within which, in the
preceding 12-month period, a valid election shall have been held. Employees engaged in an economic
strike who are not entitled to reinstatement shall be eligible to vote in any election conducted within
12 months after the commencement of the strike. In any election where no choice on the ballot
receives a majority, a runoff shall be conducted, the ballot providing for a selection between the two
choices with the most valid votes
(4) Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the
purpose of a consent election in conformity with regulations and rules of decision of the Board.
(5) In determining whether a unit is appropriate for the purposes specified in subsection (b) the
extent to which the employees have organized shall not be controlling.
(d): Whenever an order of the Board made pursuant to section 10(c) based in whole or in part upon facts
certified following an investigation pursuant to subsection (c) of this section and there is a petition for the
enforcement or review of such order, such certification and the record of such investigation shall be included
in the transcript of the entire record required to be filed under section 10(e) or 10(f), and the decree of the
court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and
entered upon the record in the transcript
(e)
(1) Upon the filing with the Board, by 30 per centum or more of the employees in the bargaining unit,
of a petition alleging they desire that authorization be rescinded, the Board shall take a secret ballot
of the employees in the unit and certify the results to the labor organization and to the employer
(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any
subdivision within which, in the preceding 12-month period, a valid election shall have been held
O. Requirements/Restrictions under §9
-Under NLRA, any appropriate unit is acceptable (could be narrow “craft” units, or very broad “industrial” units)
-Three important exclusions 9(b)(1)-(3):
1) Professional employees do not have to be incorporated in w/ non-professional workers
2) Craft units may be excluded if a previous different craft unit was already designated
3) Plant guards may not be incorporated in w/ any other workers
-Armored car drivers with weapons are “guards” for purposes 9(b)(3), but unarmed courier guards are not
P. Election Requirements, Bars, etc.
-Employees are eligible to vote in the representation election if they were employed on the “voter eligibility date”
-In determining whether temporary employees are eligible to vote, Board has applied two different tests:
(1) “Reasonable expectation test” – employees with a reasonable expectation of continued employment
(2) “Date certain test” – employees whose terms of employment remain uncertain
-Statutory requirements that must be satisfied before Board will take jurisdiction of petition:
1) Within Board’s jurisdiction (in an industry affecting commerce)
2) Timely petition filed by proper party
3) Appropriate showing of interest (30%)
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-Bars to an election:
1) Prior valid election within the past 12 months
2) During the life of an existing contract, Board does not allow certification/de-cert. petitions to be filed
Must be binding written agreement of definite duration consistent with Board requirements
-Petition will only be entertained during the “window” – no greater than 90 days or less than 60 days before the
termination of the existing agreement
-However, if the old contract expires, you can file a petition until a new contract takes effect
-If the contract is a three year contract with a “re-open” clause, the 90-60 day “window” only occurs at the end of
the 3 years (not in the re-open phase), however, if it is a longer contract, the window still occurs at the end of 3 years
-If the contract has illegal clauses and affects employee rights (i.e. union security clause) then contract is not a bar
-BUT if it doesn’t affect employee rights (i.e hot cargo, antitrust) the contract is still a bar
-No bar to an election/challenge for 45 days if employer recognizes union majority by means of cards (Dana Corp.)
-Conduct that is violative of §8(1)(a) automatically interferes with the exercise of a free election because it interferes
with Board “laboratory conditions” (Dal-Tex Optical Co.) – the Board will set aside the election
-Board may decline to set aside the election if ULP was isolated and too minimal to have an effect (Caron Int’l)
-Board won’t set aside election for misleading statements, only coercive or deceptive tactics (Midland Nat’l Life)
-Voter eligibility: you have to be on last payroll before the election, and have to be employed on day of the election
-If you’re an unfair labor practice striker, you’re eligible to vote indefinitely
-If you’re a non-replaced economic striker, you’re eligible to vote indefinitely
-If you’re a perm-replaced economic striker, you’re eligible to vote for 1 year after strike began
-If you’re a permanent replacement, you get to vote
-If you’re a temporary replacement, you don’t get to vote
-If you’re on layoff, you’re eligible to vote if it appears likely that you will be recalled
-To win certification, you must get a majority of the employees who vote
-You have 7 days to challenge validity of the election
-There is no direct judicial review of a Board representation determination, because they are not “final decisions”
However, employer could simply refuse to bargain and force the union into court
-Nobody may give a “captive audience” speech within 24 hours of election (Peerless Plywood)
Employer can do this by having a mandatory mass meeting on the premises
Union can do this by having a bullhorn truck and pulling up to the plant
-Employer must give the Board names and addresses of everyone in the unit after the union has successfully
petitioned for an election (Excelsior Underwear)
Issue: Does a District Court have jurisdiction of an original suit to vacate the determination of the Board?
-Leedom v. Kyne: Yes, when the Board acts in excess of its powers (i.e. when it contravenes the statute)
-Union can’t waive the initiation fee for the individuals in the unit who signed authorization cards, but can offer to
waive the initiation fee for everyone in the unit if certified (can’t condition the waiver of the fee on signing the card)
-A “split paycheck” is when employer gives the worker two checks, one representing the union fee and the other for
the balance; split paychecks permissible but must be initiated more than 24 hours before election (Kalin Constr. Co.)
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LABOR LAW – CRAVER – FALL 2010
-Gissel: If you say to the person who is being solicited that the authorization card is being solely/exclusively used to
get an election, the authorization is invalid – must represent desire to be represented, not desire for an election
-On the other hand, it is ok if the union says that the card will probably be used to get an election
-If the card is procured by misrepresentation or coercion (objective standard), the card will be held invalid
-If the employer has good faith doubt that the union has majority status, it may request an election (if it simply
denies recognition, this is bad faith and Board will issue a bargaining order)
Q. Remedy for Bad Election
-If the Board finds ULPs and sets aside election, does it call for another one or issue a bargaining order?
-Three categories:
1) Some minor unfair labor practices but did not interfere – remedy is new election
2) Unfair labor practices interfered with election – appropriate remedy is bargaining order
3) Extreme unfair labor practices – bargaining order even w/o proof of majority
-Remedial bargaining orders are most frequently issued in cases involving §8(a)(3) discharges of union activists,
threats to layoff union supporters, or to close unionized facilities, and similar “hallmark violations”
-If employer has committed hallmark violations and union has majority support, Board will issue a bargaining order
-Board has progressively narrowed second category (only “hallmark violations”) and has all but eliminated the third
-When employers fire prominent union organizers, this has a “chilling” effect on union support - §8(a)(1) violation
-The Board has historically evaluated the situation at the time of the election, not at the time at which they are
considering issuing a bargaining order (don’t want to reward employer’s delay)
R. Employer Duty to Bargain After Election
Issue: If after union wins election, a majority of employees say they don’t want it, can employer refuse to bargain?
-Brooks v. NLRB: No, the employer is bound by the election results for a year – there is a twelve month period
where you cannot have another representation election or a decertification election
-If the employer refuses to recognize, it is a per se 8(a)(5) and the Board will issue bargaining order
-Temporary restraining order against employer under 10(j) if they refuse to bargain if they have no right to refuse
-One year after certification, the employer can ask for an election or, if he has fair doubts about the union’s
continuing majority, he may refuse to bargain further with it
-Where you have a voluntarily recognized union, there was a conclusive presumption of majority support for a
“reasonable period of time” up to about 12 months (during which Board won’t entertain a decertification petition)
-The question is whether the union is still “on the scene” and attempting to negotiate
-Mere inaction during certification year will not constitute waiver of a union’s bargaining rights
-An employer is also bound to bargain for the period during which an existing labor contract is a bar to an election,
despite good-faith doubts about the union’s continuing majority (whether union certified or recognized voluntarily)
At the end of the three year period, majority support becomes a rebuttable presumption
-A bonafide but mistaken belief in uncertified union’s majority can’t support recognition (Garment Workers)
-An employer “may withdraw recognition from an incumbent union only where the union has actually lost the
support of the majority or bargaining unit employees” (Levitz Furniture)
-Employer must demonstrate “reasonable good faith uncertainty as to incumbent union’s continued majority status”
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LABOR LAW – CRAVER – FALL 2010
Issue: Can an employer disavow a CBA because of a good-faith doubt about a union’s majority status at the time the
contract was made, when the doubt arises from facts known to employer before contract offer had been accepted?
Auciello Iron Works: Employer can’t make an offer and then disavow it after the union has accepted it; if employer
had reason to believe that union didn’t have majority, it should have questioned before the offer was accepted
-Three things employer could have done:
1) Withdraw offer and petition for an election on basis of good faith doubt
2) Withdraw offer and refuse to bargain further on basis of good faith doubt
3) Withdraw offer and investigate (conduct its own poll)
-As soon as the union accepted the employer’s offer and the contract was created, there is a conclusive presumption
of majority support (it was a rebuttable presumption before the contract)
-If there is a tie vote in the certification election, the union is decertified (must have majority)
-In a successorship situation, when there was a union in the predecessor company, the successor employer must
recognize the union BUT does not have to recognize the previous agreement (must bargain for a new agreement)
-The Board acted within its discretion in refusing to adopt a presumption of replacement opposition to the union;
such opposition should be instead determined on a case-by-case basis (Curtis Matheson Scientific, Inc.)
-A contract of “unreasonable duration” is not a bar to a determination of representatives, and such a contract may
not bar full statutory collective bargaining, as to any group of employees in an appropriate unit covered by such
contract, upon the certification of a new representative for them (American Seating Co.)
-The “serious doubt” that is sufficient to rebut the presumption of a union’s continuing majority following expiration
of the certification year has two components: (1) a reasonable basis in fact, and (2) good faith
-When employer decides to conduct a poll to determine whether incumbent representative continues to enjoy
majority support, must be able to demonstrate that objective considerations provide it with a “reasonable doubt”
IV. UNION COLLECTIVE ACTION
S. Union Discipline
-Where the union imposes discipline on someone, the procedural aspects of it regulated under Landon-Griffith Act
-Requirements: (1) Notice, (2) Time to prepare a defense, (3) Full and fair hearing
-Union on strike, employee 1 resigns and goes back to work & employee 2 does not resign and goes back to work –
union can expel both of them for crossing the picket line (expulsion of the member who resigned is protected)
-The critical date is not when the employee resigned but when the employee did the action for which the union is
disciplining the employee (did they go back to work before the resignation?)
-The union can fine employees who cross the picket line if they are still union members
-But the union cannot fine employees who were not members at the time of the disciplined action
-If the union goes to court to enforce the fine, the state court will enforce it as a contract action
-If an employee goes back to work during a lawful work stoppage, union can expel the employee
-The only grounds under which an employer may terminate an employee for not being a union member is when the
employee does not pay the initiation fee or dues
-If member of the union violate union rules, the union has the right to enforce those rules
-Union can’t, however, estop a member from resigning before strike is over or tell employee that he may not resign
-If the union tries to do anything other than expel the member who resigned (i.e. fine them), it’s an ULP
-Union does not have jurisdiction to collect a fine if employee has left union or is only a financial core member
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-All mailed resignations take effect at 12:01 AM the day following their postmarks (Pattern & Model Makers Ass’n)
-Union discipline that frustrates an overriding federal labor policy will be held to violate §8(b)(1)(A)
-If there is a no-strike clause in the contract, and the union strikes, and a member goes back to work, it is an unfair
labor practice for the union to discipline the employee (Laborers Local 135)
-Union may not discipline members who refuse to honor a picket line by a sister union when such action is
prohibited by a no-sympathy strike contractual provision (District 50 Local 12419)
-Unions cannot fine an employee for filing a petition with the NLRB, but you can expel the employee who files a
petition, because expulsion is “defensive” (Blackhawk Tanning Co.)
-While “unreasonable” fines may be more coercive than “reasonable” fines, all fines are coercive (Boeing Co.)
-Union discipline imposed on supervisor-members in response to their performance of certain job functions may be
found to coerce the affected employer with respect to its selection of grievance adjustment or bargaining
representation and thus contravenes §8(b)(1)(B)
-Union can fine supervisor members who perform rank-and-file work during strike (Florida Power&Light Co.)
-Union can’t fine supervisor members for performing customary supervisory functions (Amer. Broadcasting Cos.)
T. 8(b)(7) Picketing
§8(b)(7): Union cannot picket or cause to be picketed, or threaten to picket or cause to be picketed, any
employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees, or forcing or requiring the employees of an employer to
accept or select such labor organization as their representative, unless such labor organization is currently
certified as the representative
(A) where the employer has lawfully recognized in accordance with this Act any other labor
organization and a question concerning representation may not appropriately be raised under § 9(c)
(B) where within the preceding 12 months a valid election under § 9(c) has been conducted
(C) where such picketing has been conducted without a petition under § 9(c) being filed within a
reasonable period of time not to exceed 30 days from the commencement of
PROVIDED, That when such a petition has been filed the Board shall forthwith, without regard to the
provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor
organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results
PROVIDED FURTHER, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or
other publicity for the purpose of truthfully advising the public that an employer does not employ members
of, or have a contract with, a labor organization, unless an effect of picketing is to induce any individual
employed by any other person in the course of his employment, not to pick up, deliver or transport goods or
not to perform any services.
-Certain picketing that is entirely peaceful is still enjoinable based on 1 st Amendment issues
-Empire Storage: the ends and means must be reasonable or the picketing is an unfair labor practice (“speech-plus”)
Handbilling is always ok though, because it is pure speech
-Because of the confrontational aspect of picketing, no blanket 1st Amendment protection
This “confrontational aspect” is what differentiates handbilling from picketing
Issue: Is peaceful picketing by a union with the aim of recognition an ULP under §8(b)(1)(A)?
-Curtis Bros.: No – recognition picketing is only an ULP subject to regulation by the Board if it involves violence,
intimidation, and reprisal or threats (conduct involving more than the general pressures implicit in economic strikes)
-Board is authorized to regulate peaceful recognitional picketing only when it is employed to accomplish objectives
specified in §8(b)(4)
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-Recognitional picketing is when the union is trying to get recognition; organizational picketing is when the union is
trying to get workers to sign authorization cards (usually both are together)
-Target for recognitional is employer; target for organizational is employees
-If you are the incumbent union and the employer withdraws recognition, you can continue picketing because you
were the certified and recognized union
-If handbilling has no picketing, 8(b)(7) doesn’t come into play
-If picketing has no organizational/recognitional objective, 8(b)(7) doesn’t come into play
8(b)(7)(A) prohibits picketing where another union has been lawfully recognized
8(b)(7)(B) prohibits picketing within 12 months of a valid election
8(b)(7)(C) prohibits picketing that has been conducted without the filing of a certification petition within a
reasonable amount of time not to exceed thirty days
-As soon as a union puts up a picketing line, if it is impossible to file a petition in the next 30 days (i.e. contractual
bar), Board will find a per se 8(b)(7)(C) violation
-As soon as the Board certifies election results, union must end picket, since it is within 12 months of valid election
-If there’s a violation of (A) or (B), there’ll almost always be a violation of (C) (“no amount of time is reasonable”)
-If picketing is having a strong effect on the employer, the “reasonable amount of time” might be less than 30 days
INQUIRY for §8(b)(7):
Do we have picketing or threats of picketing?
Is its motive organizational or recognitional?
Does it fall under (A) already recognized union, (B) within twelve months of election, or (C)?
-If union pickets and just says “this employer does not have a union”, object of the picketing is arguably recognition
-Employer seeking to stop unlawful picketing pursuant to 8(b)(7) must go to court to get a temporary restraining
order to enjoin the union’s actions (picketing or even threat of picketing)
Blinne Construction Co.: If employer conducts a Struknes poll, majority of employees vote for union, employer
refuses to recognize and union pickets for recognition, union must still file a timely petition for recognition
-Where you have what looks like a 8(b)(7)(C) violation, a meritorious 8(a)(5) charge is a defense to 8(b)(7)(C)
-If union pickets and does not file a petition within 30 days but claims an ULP, it will violate 8(b)(7) if the ULP is
not found to be a meritorious 8(a)(5) ULP complaint
-In the case of 8(b)(7)(C) complaint and allegations of 8(a)(5) violation, Board evaluates the 8(a)(5) first and only
looks at the 8(b)(7)(C) if it determines that there is no 8(a)(5)
-If the Board finds no meritorious 8(a)(5), it will immediately enjoin the 8(b)(7)(C) picketing
-No monetary penalties come into play unless union ignores court order to cease and desist
-The Board can issue a bargaining order less than 12 months after a valid election if a union lost the election and the
employer conducts a poll that finds that a majority of employees support the union seeking recognition
-If the union is picketing purely in reaction to unfair labor practices, there is no 8(b)(7)
-However, if the union is picketing in reaction to flagrant unfair labor practices and also demanding recognition, the
Board will likely issue a 10(j) injunction and a bargaining order
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LABOR LAW – CRAVER – FALL 2010
-Employer grants recognition to Union A where Union A did not have majority support
-Union B pickets for recognition, 8(b)(7)(A) does not apply b/c there has not been “lawful recognition” of another
organization, but there is no defense to 8(b)(7)(C); however, Board will not issue an order b/c of 8(a)(2) violation
U. 8(b)(7) Publicity Proviso
-The “publicity proviso” of 8(b)(7)(C) exempts picketing that is for an informational purpose, but this exception is
negated if the picketing has the effect of disrupting the employer’s business
-If there are only one or two disruptions, the Board will hold the publicity proviso valid
Crown Cafeteria: The “publicity proviso” requires that picketing (1) be addressed to the public and be truthful and
(2) not induce other unions to stop deliveries or services
-Supreme Court has not given 1st Amendment protection to picketing because there is a confrontational aspect
-Picketing solely to protect an employee’s discharge and not for recognition not an ULP (UAW Local 259)
-Picketing by incumbent union to compel employer to comply with existing CBA not an ULP (Sullivan Elec. Co.)
-Employees engaging in recognition picketing in violation of 8(b)(7) lose their protection (Claremont Polychemical)
-Uncertified union can’t engage in extended picketing to enforce a 8(f) prehire agreement (Iron Workers Local 103)
-A threat to picket by a union that can’t lawfully picket is an automatic 8(b)(7) violation (A-1 Security Serv. Co.)
-In Claude Everett Construction Co., the union put up a picket line saying that the employer has substandard wages
and benefits, and the picket went on for more than 30 days w/o a petition being filed
-If sole object is to protest the substandard conditions, there is no 8(b)(7) violation (“area standards” picketing)
-“Area standards” picketing by nonemployees is only protected conduct when the union can demonstrate that it has
meaningful evidence that the target firm actually provides its employees with substandard wages and benefits
-If it is truly “area standards” picketing, no recognitional object at all, and the publicity proviso does not apply
V. 8(b)(4) Secondary Picketing
§8(b)(4): It is an ULP for union
(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in
an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or
(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any labor or employer
organization or to enter into any agreement which is prohibited by section 8(e)
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise
dealing in the products of any other producer, processor, or manufacturer, or to cease doing business
with any other person, or forcing or requiring any other employer to recognize or bargain with a
labor organization as the representative of his employees unless such labor organization has been
certified as the representative of such employees under the provisions of section 9 (but primary
strikes and picketing not prohibited)
-For 8(b)(4) violation, you have to have means prohibited by (i) or (ii) where an object is (A) or (B)
-Primary party is the employer with which union has the dispute (the entity “who can give the union what it wants”)
-The primary party typically has a business relationship with the secondary party (usually a supplier or purchaser)
-Union cannot “enmesh” the innocent secondary employer in the labor dispute
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LABOR LAW – CRAVER – FALL 2010
-Courts are authorized to grant actual damages for 8(b)(4) violations
Issue: May picketers induce non-primary employees to honor the picket line at the employer’s premises?
NLRB v. Int’l Rice Milling Co.: A union may ask or encourage, but not induce, individual employees of neutral
employers only as they happen to approach the picketed place of business (this is primary, not secondary, activity)
-You can ask secondary employees to honor the picket line at the premises of the primary employer
-You can’t ask the secondary employees to effectively honor the picket line elsewhere (only at primary premises)
Moore Dry Dock: union can picket just outside the shipyard and can ask anyone working on the ship and making
deliveries to the ship to honor the picket line and not go to the ship
-This is an “ambulatory situs” because the situs is movable (the boat); this is also a “common situs” because more
than one employer is on the premises (both temporarily and permanently)
-Four rules to comply with Moore Dry Dock:
(1) Picketing strictly limited to times when the situs of dispute is located on secondary employer’s premises
(2) At time of picketing primary employer is engaged in its normal business at the situs
(3) Picketing is limited to places reasonably close to the location of the situs
(4) Picketing discloses clearly that the dispute is with the primary employer
-If the ship is in the drydock but none of the primary party employees are present at the drydock, the union cannot
picket the drydock, because the primary employer is not present and/or not “engaged in its normal operations”
-Ambulatory situs usually involves trucks; the Courts and the Board have held that the union can follow and picket
the truck (but if the primary company is using a third party shipping company, the union cannot follow the truck)
-The truck, as an ambulatory situs, operates like a mobile Int’l Rice Milling situs:
-If the truck driver works for primary employer, union can ask the driver not to drive the truck
-The union can also ask the secondary employees not to unload the primary employer’s truck, but cannot
ask the secondary employees to refrain from doing anything else
-Secondary employer cannot fire its employees who honor the strike by refusing the unload the truck from
the primary employer (refusal to unload that particular truck is protected activity)
-The picketers can picket outside the location where the primary employer’s truck is parked, and can ask
secondary neutral employees not to enter the primary situs (i.e. unload the truck)
-The driver, as a primary employee, is a protected striker if he decides to honor the picket and not drive
Issue: Can a union engage in a strike when an object is to force the gen con to terminate its contract with a sub-con?
-Denver Bldg. & Constr. Trades Council: If object of a strike is to force the gen con on a construction project to
terminate its contract with a certain sub-con on project, even if there is a mixed legitimate object, strike is an ULP
-If you have a dispute with one of the sub-cons on the project, you cannot enmesh the other sub-cons or the gen con
-If there’s no evidence at all of inducement, no ULP (but the “signal” of the picket usually constitutes inducement)
-There may be circumstances where a gen con assumes such substantial control over sub-cons that it would be
regarded as a primary employer and thus be subject to sub-con union picketing (Roslyn Americana Corp.)
W. Mixed Gates & Work-Relatedness
-General Elec. Co.: GE sets up one gate for the exclusive use of independent contractors; union pickets that gate
-If a company has a separate gate for independent contractors who come on the premises, the question is whether the
work of the contractors is “related to the normal operation” (construction work almost always found to be unrelated)
-If unrelated, look to Moore Dry Dock standards
-Distinction between “related” & “unrelated” rests upon type of work being done by picketed secondary employees
-If you can clearly distinguish, the courts will likely say that you cannot appeal to the secondary employees
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LABOR LAW – CRAVER – FALL 2010
-If it is installation/maintenance work in an existing building, the union can ask those workers to honor the picket
line, but not if the work is construction/installation work in a new building
-If the gate has a “mixed purpose” (i.e. some are doing maintenance work and some are doing new construction), the
D.C. Circuit said that you can picket and appeal to both (Teamsters Local 901) – but can’t if clear they’re secondary
-Markwell & Hartz, Inc.: Picketers have right to picket at gates where deliveries are being made to the primary situs,
but do not have the right to appeal to the subcontractor employees
-If the delivery was to the secondary employer (i.e. the subcontractor), the picketers can tell the deliveryman that
they have a dispute with the gen con but cannot induce him to honor the picket line
-Gen con and every sub-con is separate – each craft is a separate situs; ULP if there is evidence of inducement
-Moore Dry Dock completely controls construction cases
-When you are the gen con, you are responsible for the entire contract, so even if only the superintendant is there,
primary employer is present at situs & engaged in its normal operation
-If there is a separate gate just for subcontractor employees, cannot picket that gate
-At a mixed gate, you can only appeal to the primary delivery people
-Markwell & Hartz applies to construction, General Electric applies to manufacturing (and service)
-So “work-relatedness” test does not apply to construction; for construction (1) Every single craft is a separate situs,
and (2) All the work done at the construction site is unrelated (so apply Moore Dry Dock)
X. Ally Doctrine & Consumer Picketing
Issue: what happens when primary employer directs its repair contract customers to other companies and pays them?
-Royal Typewriter Co.: The “ally” doctrine: the other shop becomes an ally of the primary employer
(1) Other employer is doing struck work (but for dispute would have been primary work)
(2) Primary employer is paying for the work
(3) There is an actual agreement between the primary and secondary employers
-Secondary employer becomes an extension of the primary employer
If secondary employer stops doing Royal’s work, they regain their secondary status
-Picketing employees can ask the secondary employees not to work on the Royal repairs and also do not have to
limit their appeal to only the work of the primary employer
-In Tree Fruits, the union picketed supermarkets and asked customers not to buy Washington apples
-This action is not coercion within the meaning of 8(b)(4)(ii) because there is no inducement of anyone to stop work
and picketing “only persuades the customers not to buy the struck product” (de minimis economic impact)
-In Safeco Title Insurance Co., union picketed local title companies that sold Safeco insurance
-Court held the picketing as illegal and distinguished Tree Fruits: Where the struck products are the main products
of the store and secondary picketing against consumption of the primary product leaves responsive consumers no
realistic option other than to boycott the secondary company altogether, this is a violation of 8(b)(4)(ii)(B)
-ULP: “Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss”
-There is a publicity proviso which permits handbilling
-You can handbill for a total store boycott, but you can’t picket for a total boycott (confrontational aspect)
-If the picketers advocate for a boycott of only a specific product but the handbillers are asking for a total boycott,
the handbilling is unlawfully modifying the picketing (too broad = violation)
-Typically placards = picketing, leaflets = handbilling (also any confrontation usually will be found to be picketing)
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-In Servette, Inc., the union requested managers of retail chain stores not to handle goods from Servette and
threatened to pass out handbills asking the public not to buy named items distributed by Servette
-Court held that this did not violate 8(b)(4)(i) since there was no inducement to cease work; union’s behavior did not
“threaten, restrain, or coerce” the retailers within the meaning of 8(b)(4)
-If the union threatens something it could lawfully do, that threat is not prohibited
-In DeBartolo Corp., union has a dispute with a construction company building a department store in the mall and
handbills outside mall asking customers not to shop at any of the stores in the mall
-Court found a symbiotic relationship between the other stores in the mall and the “magnet” department stores
- DeBartolo II (on remand) essentially finds that handbilling can never be coercive (if peaceful)
-If your handbilling has an object of preventing business of targeted employer, and it induces employees to stop
work, you have lost the publicity proviso shield
-Pure handbilling, even if you are speaking, is permitted
-However, if the handbilling becomes in any way confrontational, the action becomes picketing under 8(b)(4)(ii)(B)
Y. Hot Cargo Agreements
§8(e): It shall be an ULP for any labor organization and any employer to enter into any contract or
agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from
handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or
cease doing business with any other person, and any contract containing such an agreement shall be to such
extent unenforceable and void
PROVIDED, That nothing in this subsection shall apply to an agreement between a labor organization and an
employer in the construction industry relating to the contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of a building, structure, or other work
§8(e) – prohibition of “hot cargo” provisions
-Employer and union cannot have a “hot cargo” agreement in which the employer agrees not to handle the struck
product (even if the agreement is obtained peacefully or voluntarily)
-A strike to obtain a “hot cargo” provision is an unfair labor practice
-No damages, however, for a violation of 8(e) as opposed to 8(b)(4) or 8(b)(7)
-In Sand Door, the CBA had a clause stating that “workmen shall not be required to handle nonunion material”
-The voluntary observance of a hot cargo provision by an employer does not constitute a violation of 8(b)(4)(A)
-Today the clause from Sand Door would be prohibited by 8(e)
-There is an exemption for “hot cargo” agreements in the construction industry and in the garment industry
-Unions in the construction industry can strike to get the clause, but they cannot strike to enforce the clause
-The garment industry, however, can strike to get and strike to enforce the clause
-The construction industry proviso must involve construction work being done at the job site
-If the materials were manufactured elsewhere, they are not covered by the proviso
-Two exemptions from the anti-trust laws for organized labor (must satisfy either requirement):
(1) If agreement or clause is part of a collective bargaining agreement
(2) If agreement limited to a particular job site or sites
-The Court in Connell said that “the 8(e) proviso’s authorization extends only to agreements in the context of
collective bargaining relationships and…possibly to common-situs relationships on particular jobsites as well”
So if you don’t have a collective bargaining relationship, constrained to particular job site
-If you have a collective bargaining relationship, you can have a clause that says “all job sites, no nonunion
subcontractors” but if you don’t have a relationship, you can only restrict to a particular job site
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-No punitive or treble damages for labor-related antitrust violations
Issue: When can a union say “we’re not going to handle struck work”?
-If principle concern of the union is preserving bargaining unit standards and work, purpose is primary (permissible)
-If principle concern of the union is whether other firms have a union contract, purpose is secondary (prohibited)
-If the purpose if primary, you can strike to get the clause
-In Nat’l Woodwork Mfctrs. Ass’n, union had agreement: “we will not hang doors finished outside of the jobsite”
-Court finds that the purpose of this agreement was not related to union or nonunion productions to preserve the jobs
of the carpenters at the jobsite, so the agreement was permissible (“work preservation” not “work acquisition”)
-However, if union’s employer had given up the right to determine how doors arrive, union can’t refuse to hang door
-Work preservation = primary, permissible under 8(e); Work acquisition = secondary, prohibited by 8(e)
-The critical thing is whether the work has been “traditionally done” by bargaining personnel
-Among the primary purposes protected by the Act is “the purpose of preserving for the contracting employees
themselves work traditionally done by them.” (Pipefitters)
-Int’l Longshoremen’s Ass’n: Don’t look at what the longshoremen used to do because technology had changed their
jobs; instead, look to see if work that they were doing was the “functional equivalent” of what they used to do
-Whether an agreement is a lawful work preservation agreement depends on “whether, under the surrounding
circumstances, the Union’s objective was preservation of work for bargaining unit employees, or whether the
agreement was tactically calculated to satisfy union objectives elsewhere” (Nat’l Woodwork)
-A lawful work preservation agreement must pass two tests:
1) Objective must be preservation of work traditionally performed by employees represented by the union
2) Contracting employer must have power to give employees the work in question – the “right of control” test
-In judging legality of a thoroughly bargained and apparently reasonable accommodation to technological change,
question is not whether the rules represent the most rational or efficient response to innovation, but whether they are
a legally permissible effort to preserve jobs (it’s irrelevant whether or not the work is inefficient or redundant)
-Because work preservation clauses are primary activity, you can strike to get the clause AND strike to enforce the
clause unless the employer gives up control over the work by making an agreement with a third party
Z. §303
LMRA §303:
(a) It is unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any
labor organization to engage in any activity or conduct deemed as an ULP in §8(b)(4) of the NLRA
(b) Whoever is injured in his business or property by reason of any violation of subsection (a) may sue
therefore in any district court of the U.S. subject to the limitation and provisions of §301 without respect to
the amount in controversy, or in any court having jurisdiction, and shall recover the damages sustained and
the cost of the suit
§303 is the damages provision of the LMRA
-Either primary or secondary employees may sue for damages under §303 (Deena Artware)
-if you have a violation of 8(b)(4), you get actual damages but no punitive damages
-the only way you can get punitive damages is if you violate a state law that is not preempted (Morton)
-if there is violence involved with secondary activity, the state law is not preempted
-no damages before the Board; must sue for damages in court (but sometimes 8(b)(4) violation can be res judicada)
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V. FEDERAL PREEMPTION UNDER THE NLRA (AA)
§14(c): Board has the discretion, by rule of decision or by published rules, to decline to assert jurisdiction
over any labor dispute involving any class or category of employees, where, in the opinion of the Board, the
effect of such labor dispute on commerce is not sufficiently substantial to warrant exercise of its jurisdiction
PROVIDED, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would
assert jurisdiction under the standards prevailing upon August 1, 1959
Three separate preemption doctrines:
1) Primary preemption – subject to Labor Board jurisdiction (arguably prohibited by §8 or permitted by §7)
2) Permissive preemption – conduct is not protected or prohibited (permitted but outside NLRA)
3) §301 preemption –courts have power to enforce collective bargaining agreements (concurrent jurisdiction)
-If you have a §301 state court action, federal law must be applied (state contract law preempted)
-Under §14(c), states may fill the “no man’s land” and can assert jurisdiction where the NLRB has declined
jurisdiction but the courts are preempted from acting
-If courts enjoin action that is arguably protected or arguably prohibited, you can ignore the injunction (preempted)
-If court temporarily enjoins action to decide whether it has jurisdiction, however, usually have to obey injunction
Issue: When do states have jurisdiction? When do states not have jurisdiction?
-Garmon: If the conduct is arguably prohibited by §8 or arguably protected by §7, the state law is preempted by
NLRA and the issue is for the Board to decide (state and federal courts must defer to the NLRB)
-Matters of “peripheral concern” not regulated by the Board
-States also have jurisdiction and are not preempted in situations involving a “compelling state interest”
-When a state court issues an injunction, union must appeal the injunctive order to highest state court, however:
-If ULP has been filed, federal court may enjoin enforcement of the state court injunction (Capital Serv.)
-A jurisdictional question involving state preemption must be resolved according to federal law
-A state court has no power to hold a person in contempt for violating an injunction from a preempted court
-Lockridge: when conduct is protected (regarding union policy), state cannot regulate it
-Doesn’t matter what you call it if underlying circumstances are arguably protected or arguably prohibited
-Even if the state can provide greater relief than what would be available under the NLRA, federal law still preempts
Four critical exceptions to preemption:
(1) §301 or §303 claims – state courts have concurrent jurisdiction but must apply federal law
(2) Peripheral Concern – state courts have jurisdiction (i.e. state wage laws, worker’s comp laws, etc.)
(3) Deep & Traditional State Interest – state courts have jurisdiction (i.e. preventing violence, fraud, etc.)
(4) Fair Representation – state courts have concurrent jurisdiction but must apply federal law
-Unlike primary preemption, which is arguably protected or arguably prohibited, when there is conduct that is
neither arguably protected nor prohibited it is “permissive conduct” (states may not regulate)
-State cannot regulate free speech right of employer to speak against or in favor of the union (Brown)
-States may not enhance weapons or remedies available under NLRA (Wisc. Dep’t of Indus., Labor & HR v. Gould)
-States cannot escape preemption by exercising spending power instead of regulatory power (Gould)
-A municipality cannot interfere and require the company to enter into an agreement (Golden State Transit)
-State-established minimum standards not preempted (Met Life v. Massachusetts)
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-State tort action by an employee against union and its officials seeking damages for intentional infliction of
emotional distress not preempted (Farmer v. Carpenters)
-State libel suits based on defamatory statements made during an organizing campaign not preempted (Linn)
-In Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, carpenters didn’t like that Sears was
using non-union carpenters, picketed on Sears property, and when they didn’t leave, Sears called in state authorities
-Court found that (a) this is a matter of peripheral concern, and (b) it is exceedingly rare where union has the right to
be on private property so state can apply their trespass laws (but employer must first order union off premises)
Summary of preemption (from Belknap):
-State regulations and causes of action are preempted if they concern conduct that is actually or arguably either
protected or prohibited by the NLRA, but not if a “peripheral concern” or a “compelling state interest” (Garmon)
-State regulations and causes of action are preempted if they concern conduct that Congress intended to be
unregulated, like conduct that was to remain a part of the self-help remedies left to combatants in labor disputes
(Wisc. Employment Relations Comm’n)
VI. DUTY TO BARGAIN (479-604)
§8(a)(5): employer can’t refuse to bargain with the representative of his employees (subject to 9(a))
§8(b)(3): union can’t refuse to bargain with the employer of the employees it represents (subject to 9(a))
-The employer must deal with the workers through the union (if it doesn’t, 8(a)(5) violation)
§8(d): To bargain collectively is the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an agreement or any question
arising thereunder, and the execution of a written contract incorporating any agreement reached if requested
by either party, but such obligation does not compel either party to agree or make a concession
PROVIDED, That where there is in effect a collective-bargaining contract covering employees in an industry
affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party desiring such termination or modification:
(1) serves written notice upon the other party to the contract of the proposed termination or
modification 60 days prior to the expiration date thereof, or in the event such contract contains no
expiration date, 60 days prior to the time it is proposed to make such termination or modification;
(2) offers to meet and confer for the purpose of negotiating a new contract or a modified contract
(3) notifies the Federal Mediation and Conciliation Service within 30 days after such notice of the
existence of a dispute, and simultaneously therewith notifies any State or Territorial agency
established to mediate and conciliate disputes within the State/Territory where the dispute occurred
(4) continues in full force and effect, without strike or lockout, all the terms and conditions of the
existing contract for a period of 60 days after notice is given or until the date the contract expires,
whichever is later
The duties imposed upon employers, employees, and labor organizations by paragraphs (2), (3), and (4) shall
become inapplicable upon an intervening certification of the Board…and the duties so imposed shall not be
construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a
contract for a fixed period, if such modification is to become effective before such terms and conditions can be
reopened under the provisions of the contract. Any employee who engages in a strike within any notice period
specified in this subsection, shall lose his status as an employee of the employer engaged in the particular labor
dispute, for the purposes of § 8, 9, and 10, but such loss of status shall terminate if and when he is reemployed by
such employer.
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Whenever the collective bargaining involves employees of a health care institution, the provisions of this
section 8(d) shall be modified as follows:
(A) Notice for § 8(d)(1) is 90 days; notice of § 8(d)(3) is 60 days; contract period of § 8(d)(4) is 90 days.
(B) Where bargaining is for an initial agreement following certification or recognition, at least 30 days'
notice of the existence of a dispute shall be given by labor organization to the agencies set forth in § 8(d)(3)
(C) After notice is given to the Federal Mediation and Conciliation Service under either clause (A) or (B)
of this sentence, the Service shall promptly communicate with the parties and use its best efforts, by
mediation and conciliation, to bring them to agreement. The parties shall participate fully and promptly in
such meetings as may be undertaken by the Service for the purpose of aiding in a settlement of the dispute.
-J.I. Case: an individual contract doesn’t bar an election; only thing that bars an election is an existing CBA
-Nothing prevents an employee from making a contract, provided it is not inconsistent with a collective agreement;
however, the employee may not incidentally exact or obtain any diminution of his own obligation or any increase of
those of employees in the matters covered by the collective agreement
AB. Duty to Bargain Requirements
-When a union is selected as the bargaining representative, the union becomes the exclusive bargaining
representative for that bargaining unit (majority rule – doesn’t matter if you voted no)
-But, there are exceptions:
-Union can specifically authorize its members to negotiate independently (i.e. sports)
-Individuals can directly discuss their personal grievances with their employer, provided
1) No agreement decided that is contrary to the collective bargaining agreement
2) Union has the right to be present
-A violation of a no-strike clause is unprotected activity
Issue: May employees attempt to represent other employees if they believe union is not acting sufficiently?
-Emporium Capwell Co.: No; where there is a majority bargaining agent, that agent is the exclusive bargaining agent
-The employees were attempting to represent other employees – this is unprotected activity
Issue: May employer may one initial “best offer” and not negotiate further with the union?
-General Electric Co.: Board said “take it or leave it bargaining” is inconsistent with bargaining in good faith
-2d Circuit held that “best offer first bargain” is not per se forbidden because employer doesn’t have to make a
concession, however, GE’s publishing of its offered terms in the newspaper and its inflexible stance was a violation
-Employer cannot engage in conduct deliberately designed to disparage the union
-An employer who (1) meets with the union’s bargaining committee, (2) explains its bargaining position, (3) makes
some concessions, (4) agrees on some issues, and (5) does not engage in regressive bargaining won’t violate 8(a)(5)
-An employer’s substantive proposals can be seen as bad faith bargaining, especially if combined w/ delaying tactics
-Regressive proposals not necessarily indicative of bad faith: the good/bad faith line is drawn “where the cumulative
effect of the employer’s proposals effectively negates the union’s ability to act as representative of the employees
-Good faith of the employer is judged on totality of the circumstances: whether the “totality of the employer’s
conduct…manifests a mindset at odds with reaching an agreement” (South Carolina Baptist Ministries)
-Employer’s preelection speeches concerning its intentions in negotiations may be unlawful (Overnite Transp. Co.)
-Acts not in themselves ULPs may support an inference that a party is acting in bad faith (Insurance Agents’ Union)
-But the fact that you use unprotected tactics does not necessarily mean that you are acting in bad faith (id.)
-The parties must make a “serious attempt to resolve differences and reach a common ground”
-Neither party has to make any concessions; they merely have to “meet and confer” in good faith
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-The employer can’t “bargain with the union through the workers” but the employer can tell the employees its offer
as long as the communications are not designed to bargain w/ the employees
-Under 8(c), both employer and the union have the right to share their view
-If there’s a multi-employer group, and the union negotiates a contract with one unit, it can present the terms from
the first contract as a “pattern terms” that it will not budge from; this is not an 8(b)(3) failure to bargain
-A “management rights clause” takes certain subjects off the bargaining table
Issue: May an employer bargain for a management rights clause?
-American Nat’l Insurance Co.: An employer can include a management rights clause (not a per se violation), but a
management rights clause that is too broad will be found to be a failure to bargain in good faith
-In this case, the clause stating that “rates of pay, wages, hours, and conditions of employment” was too broad
-One of the rights you have under §7 is to bargain through agents of your own choosing (GE)
AC. Mandatory Subjects of Bargaining
Mandatory: Both sides have to discuss – wages, hours, and “other terms and conditions of employment”
1) Does it significantly affect the workers/labor conditions?
2) Is the decision amenable to resolution through the bargaining process?
3) Does it involve a significant change in the operation of the business?
Permissive: Neither side has to discuss – pretty much everything else
-“Mandatory subjects” include wages, hours, and working conditions
-If it’s a mandatory subject, the parties can require one another to bargain over it and/or strike, but you cannot
require the other party to bargain over a permissive subject (instead, suggest and tie it to a mandatory subject)
-Employer can’t insist on joint negotiations w/ 2 unions representing separate units of employees (F.W. Woolworth)
-Employer can refuse to negotiate w/ a previously violent employee serving as a union agent (King Soopers, Inc.)
-No duty to bargain when there’s “clear and present danger” to the collective bargaining process, but this is rare
-Both unions and employers may withdraw from multi-employer bargaining by giving timely, unequivocal notice
prior to negotiations (Bonanno)
-Absent unusual circumstances, however, no party can unilaterally withdraw during negotiations
-Withdrawal is always permissible upon the mutual consent of the union and the multi-employer association
Issue: Can parties be ordered to bargain?
-H.K. Porter: Court can order parties to bargain and can hold them in contempt if they do not
-But neither the Court nor the Board can order the parties to agree to anything (no duty to agree)
Issue: Can Board order the employer to provide a compensatory remedy to the employees?
-Ex-Cell-O Corp.: Board cannot order the employer to provide monetary relief or “make whole” remedies to
employees, even if the employer unlawfully refused to bargain (some states, however, permit “make whole” relief)
-Either party has the right to use economic clout to defeat the other party at the bargaining table
Issue: Can an employer unilaterally make changes on matters subject to mandatory bargaining? (like hours/wages)
-Katz: No, it is a violation of the duty to bargain collectively in good faith for an employer to unilaterally institute
changes regarding matters which are subjects of mandatory bargaining under §8(d) and are under discussion
-Once the employer reaches an impasse, the employer can unilaterally implement a wage increase, but only less than
or equal to the wage increase offered to the union during negotiations (cannot increase more than offered)
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-Employer may declare impasse when there’s no realistic possibility that continuing negotiations would be fruitful
-Employer’s unilateral decrease of benefits during negotiations may also violate 8(a)(5) (U.S. Pipe & Foundry Co.)
-Employer who unilaterally implements less favorable terms does not violate the Act (Telescope Casual Furniture)
-Employer can unilaterally implement a wage increase pre-impasse if it can show a legitimate business justification;
the employer must show occurrence of an extraordinary unforeseen event that requires immediate economic action
Issue: Has employer not bargained in good faith where it claims that it cannot afford to pay higher wages but refuses
requests to produce info substantiating its claim?
-Truitt Manufacturing Co: A refusal to attempt to substantiate a claim of inability to pay increased wages may
support a finding of a failure to bargain in good faith (decided case-by-case)
-Inquiry is whether under the circumstances of the case the statutory obligation to bargain in good faith has been met
-The employer must make it clear: I have the inability to pay! AND The union has to request the information
“The duty to bargain unquestionably extends beyond the period of contract negotiations and applies to labormanagement relations during the terms of an agreement” (Acme Industrial Co.)
-Neither ballot clause nor recognition clause come within the scope of mandatory bargaining (Wooster Division)
-Union seeking to challenge discriminatory hiring practices may obtain employer info containing race, national
origin, and gender of job applicants, but must show reasonable basis for its belief (Hertz Corp.)
Issue: Is “contracting out” of work being performed by bargaining unit employees a statutory subject of bargaining?
-Fibreboard: Yes – a stipulation with respect to the contracting out of work performed by members of the
bargaining unit might appropriately be called a “condition of employment” (test for “conditions of employment”)
-Where there is an established practice, and the union has accepted the employer’s right to act unilaterally in some
case, it is not a mandatory subject of bargaining (Westinghouse Elec. Corp.)
Exceptions to required bargaining: (1) Established past practice, and (2) Management rights clause
AD. Closing/Relocating Business
Issue: Must employer negotiate with the certified employee rep. over its decision to close part of its business?
-First Nat’l Maintenance Corp.: No, because the harm likely to be done to an employer’s need to operate freely in
deciding whether to shut down part of its business for purely economic reasons outweighs the incremental benefit
that might be gained through the union’s participation in making the decision (therefore not a mandatory subject)
-Initially, burden is on NLRB GC to establish that employer’s decision involved a relocation of unit work
unaccompanied by a basic change in the nature of the employer’s operation (Dubuque Packing)
-Employer can produce evidence rebutting this by either establishing that the work at the new location
varies significantly from the work performed at the former plant, that the work at the former plant is to be
discontinued entirely, or that employer’s decision involves a change in scope and direction of the enterprise
-Alternatively, the employer can offer a defense that (1) labor costs were not a factor in the decision or (2)
even if labor costs were a factor in the decision, the union would not have offered labor cost concessions
that could have changed the employer’s decision to relocate
-The Dubuque Packing test does not apply to subcontracting decisions in which “virtually all that is changed
through the subcontracting is the identity of the employees doing the work”
-When the employer’s relocation decision is motivated by union animus, violates 8(a)(1),(3),(5) (Vico Products Co.)
-Duty to bargain over effects requires timely notice and bargain “sufficiently before implementation” (Korematsu)
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AE. Scope of Duty to Bargain
Issue: Whether and when do employers have to bargain over certain terms in the agreement? (pensions/healthcare)
-The Jacobs Manufacturing Co.: If you have what would otherwise be a mandatory subject, and it was not discussed
in the prior negotiation, it remains a mandatory subject
-If the employer wants to prevent the union from forcing it to bargain subsequently on mandatory subjects during
the life of the contract, it can execute a “zipper clause”:
The parties have had the opportunity to discuss every term of interest, the agreement is complete, and they
forego the right to bargain over anything else over the life of the contract
-A zipper clause says that the status quo will be maintained during the life of the contract
-A management rights clause authorizes the employer affirmatively to act unilaterally
-Exhaustion theory (employer): if the issue was thoroughly discussed, and there is nothing in the contract, the
employer has “exhausted” its duty to bargain over the subject
-Waiver theory (union): by thoroughly discussing the issue, the union has waived its right to later demand
bargaining over the subject
-A third theory is that the absence of a mandatory subject (i.e. healthcare) in an agreement, despite the fact that it
was discussed in negotiations, implies that union has yielded on the subject
-All three theories require “meaningful negotiations”
-Under any of these theories, if the union comes in and demands bargaining on the subject during the contract, the
employer can say no (effectively rendered a permissive subject of bargaining)
-If employer wants to act unilaterally (in the absence of a management rights clause), it has to consult the union first
and notify the union that it intends to make a change
-You cannot insist upon, or strike/lockout over, a permissive subject
-The mandatory subjects discussed in bargaining but not ultimately in the agreement are permissive subjects
§8(d) has some specific provisions that you do have to comply with in re-opening negotiations
(1) Serve 60-day written notice of intent to implement/negotiate change on the other side
(2) Offer to meet and confer with the other party about the intended change
(3) Notify federal mediation conciliation service within 30 days of the deadline date
-Period of no-strike/no-lockout for 60 days or until the end of the contract, whichever is later (“cooling off” period)
-Rights arbitration is about rights of an existing contract;
-Interest arbitration is about rights of a future contract
-Employer or union, but not employee, have right to request arbitration
-Federal court cannot issue an injunction in a labor dispute; however, federal courts can order arbitration under §301
-In the event of a substantial breach, union cannot reject the contract, but can strike
-If you strike over an issue that is not subject to arbitration, federal court cannot enjoin it
-Where it is arbitration, and one side refuses to go, the assumption is that it is arbitrable; the burden is on the party
refusing to prove that the issue is not subject to arbitration
-If you have an arbitration clause, you’re going to arbitration (and that ruling will stand)
-However, in the public sector, courts are much more likely to reverse arbitration decisions
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-As long as the arbitrator’s award “draws its essence” from the contract, it will stand
-If arbitrator’s award will resolve the ULP, court will defer to the arbitrator’s decision unless it is “palpably wrong”
AF. Successorship and Duty to Bargain
What is a “successor”?
-The major question: Is there “substantial continuity” in the business? (true successorship = substantial continuity)
Issue: Was successor employer bound to bargain and respect terms of previous employer’s negotiated CBA?
-Burns Int’l Security Services: No – in a successorship situation, where the bargaining unit remains unchanged
and a majority of the employees hired by the new employer are represented by a recently certified bargaining
agent, the employer will be ordered to bargain with the incumbent union, but will not be bound by the
substantive terms of the previous collective bargaining agreement
Holding either the union or the new employer bound to the substantive terms of an old collective bargaining contract
“may result in serious inequities”
Issue: Is Burns limited to situations where the union only recently was certified before the transition in employers?
-Fall River: No – Burns still applies to bind successor employer when period of time is greater
-Under the “continuity doctrine”, when a union makes a demand for recognition, it continues and the union does not
have to make a new demand for recognition every week (it continues until there is a “representative complement”)
-All that is required is a rebuttable presumption of majority status in the successor firm
Satisfied if a majority of the employees in the successor came from the predecessor
-Union must demand recognition from the successor firm (firm doesn’t have to recognize if they don’t)
-If union has demanded recognition, and a majority of employees in successor were from predecessor firm, you must
grant recognition and bargain with the union (assumption is that 100% of predecessor’s employees want union)
-If employer has a reasonable doubt that the predecessor union has majority support, employer has three options
1) Can conduct a Struksnes poll
2) Can file a certification petition with the Board
3) Can withdraw recognition, but must be able to demonstrate that the incumbent union has clearly lost its
majority (for the first two options you only need a reasonable belief)
-Successor employer is not bound by existing contract agreement unless there is an explicit or implicit
adoption of the contract (bound to recognize and bargain, but not bound by agreement)
-However, where the successor firm is found to be an alter ego (i.e. sham sale, no true successor), the successor
company is bound by the prior contract
-Successor firm does not have to bargain over the initial terms of employment? (can set initial terms of employment)
-However, if it’s clear that successor plans to hire most or all of predecessor employees, then successor likely will be
forced to set initial terms of employment
-A rebuttable presumption of continuing majority status applies during the period of bargaining following a
successorship transition (MV Transp.)
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VII. FAIR REPRESENTATION (AG)
Issue: Whether RLA imposes on a union the duty to represent all employees in the craft w/o discrimination because
of their race, and, if so, whether the courts have jurisdiction to protect against the violation of such obligation
-Steele v. Louisville & Nashville Railroad: Yes – there is an implied duty to be free from invidious discrimination
-Union has a duty to represent nonunion or minority union members of the craft without hostile discrimination,
fairly, impartially, and in good faith
-The duty applies during the life of the contract and during the negotiations for the contract
-State courts must apply federal substantive law for fair representation (preempted)
Issue: Do individual employees have an absolute right to arbitration?
-Vaca v. Sipes: No – individual employees do not have an absolute right to arbitration
-If an employee brings suit alleging breach of duty of representation, Court doesn’t decide whether the grievance is
meritorious, merely whether the union has acted in good faith in deciding not to take the grievance to arbitration
-Tripartite standard from Vaca: to not act with intent that is “arbitrary, discriminatory, or in bad faith” applies to
union contract negotiations as well as to contract administration (Air Line Pilots Ass’n)
-If union acted in good faith in refusing to go to arbitration, no unfair labor practice
-A “wide range of reasonableness” must be allowed a statutory bargaining representative in serving the unit it
represents, subject to good faith and honesty of purpose in exercise of its discretion (Ford Motor Co. v. Huffman)
-Employee can sue employer alone, union alone, or both
-But, if employee sues employer for breach of contract, he must also prove that he has exhausted all of his
contractual remedies (so must show that he attempted to go to arbitration)
-Or, if employee sues union for refusing to take case to arbitration, he must also prove that the grievance is
meritorious (so must show that employer violated contract somehow)
-If union fails to file a grievance on behalf of its employee because of a negligent mistake, is the union liable for the
error? Depends – the more “ministerial” the act is, the more likely the court is to find a violation
-“Mere negligence, even in the enforcement of a collective-bargaining agreement, would not state a claim for breach
of the duty of fair representation, and we endorse that view today” (Steelworkers v. Rawson)
-Certain employee rights, such as the right to vacation pay or retirement benefits, have been held for some time to
“vest,” inhering in individuals; such rights survive the expiration of the labor agreement (except seniority rights)
-If union has breached its duty of fair representation, the arbitrator’s award is tainted and will be thrown out
-If the employer alone discriminates (no union failure), not an unfair labor practice (just a civil rights violation)
-If there has been a breach of contract, the damage needs to be apportioned between the employer and the union
-The employer is initially entirely liable, because there would have been no damages without the breach in contract,
however, the union becomes primarily liable for future lost wages for failing to take the grievance to arbitration
-From date of termination until date of tainted award, employer is liable
-From date of tainted awarded to trial, union is primarily liable and employer is secondarily liable
Hines v. Anchor Motor Freight
-Employee alleges that union has breached its duty of fair representation by conducting no investigation of charge
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LABOR LAW – CRAVER – FALL 2010
-If the union does absolutely nothing at all to seek out information that employee says will help contest the claim, it
might be a breach of fair representation (depends on reasonableness)
-Union has an obligation to take minimal effort on that person’s behalf (otherwise a “conscious disregard”)
-If employee proves erroneous discharge and union’s breach of duty, he is entitled to remedy against both
-In a disciplinary case, the employer must prove just cause
-But in a §301 case, the employee must prove that employer did not have just cause
-No punitive damages for contract breach or fair representation breach
-Where a labor organization fails in its duty to represent an employee fairly, 8(b)(1)(A) violation
-Almost anything that would violate a civil rights law would violate duty of fair representation
-Recklessness (done in good faith) is probably not enough to breach duty of fair representation
-When union officials with access to relevant employer information prevent employees from filing even cursory
investigations of employee grievances, they may be found guilty of fair representation breaches
-Exhaustion of internal remedies is not required when a union appeals procedure cannot result in reactivation of the
employee grievance or an award of compete relief (Clayton v. UAW)
-Even if employee is only a financial core member, union must represent them (same for religious objector)
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