Organization of Labor Union
Have Plant X that is unorganized & Union A decides that they want to organize Ws & become bargaining
rep for Ws … how to accomplish this?
 Need to get Ws to join A by sign authorization cards via solicitation (B can’t interfere per §8a1 & Ws
§ rights = can organize
o Two types of cards Union Membership Card & Request for Election Card
Basic Rule: EMPLOYEE may solicit, but NON-EMPLOYEE may be restricted unless is impossible to
reach the Ws per BabcockWilcox (Impossible = mining camp)
Non-Employee Organizer:
o Try to get a job at the plant – lots easier to organize or get an insider via
 Picket outside plant in public forum (B can prevent access to parking lot  Lechmere)
 Must file a petition for election (i.e. 30% support) w/in 30 days else violate §8b7C)
 Contact Ws via “covert” means … taking plate #s & calling Ws homes
Employee Organizer:
o Republic Aviation: B can’t have no solicitation rule that prevents Union solicitation during nonwork time or from advertising Union (buttons) b/c violate §8a1 unless special circs (re
patients/customers)
 Per §8a3 – B can’t fire W for Union activity
 Wrightline – W must prove §8a3 violate // B rebut proving would have reached same
decision to fire W w/o Union– i.e. result would have been same based on violation of rule
o Pretext – reason given is a sham
o Dual motive – unlawful motivation & lawful one (valid business reason)
 No longer use “in-part” motivation (Union a part of decision  violation)
 B is allowed to make captive audience speeches (per §8c) & not have to give Union response
(Livingston Shirt & NuTone)
o B speech can’t be coersive/threatening … but can reveal actual decided consequences (i.e. Union
comes in – we close shop)
 B can close an entire shop for any reason – inc entrance of Union
 BUT can’t close PART of company b/c of Union unless can meet Wrightline standard b/c this
closing signals to other Ws at Bs other plants Union = Close  violate §8a1&3
Petitioning for Recognition
 Once have majority of Ws signed authorization cards – can demand recognition from B … B’s options
o Per §8a5 – B may recognize majority Union w/o election & commence bargaining
o B files a petition for a recognition election §9c1B
o B no bargain & Union must file petition w/ NLRB for an election per §9c1A (Linden Lumber)
 Or, if Union has 30% of cards signed by potential bargaining unit, U can petition Board per §9e1
NLRB’s Role in Elections Once Petition is Filed
 Decide if need to proceed w/ investigation & certification
o Does Union have enough support to force election
o outstanding/unremedied ULP suits (those must be resolved before election can occur)
o Was there a prior certification election w/in 1yr for that unit – if so =bar to new election (§9c3)
o contract bar rule: if have valid CBA – runs for 3 yrs … CBA will bar a new election for 3yrs
from signing of agmt (Union can petition for new election 90-60 days before end of contract … &
period of 60 days prior to expiration to negotiate new contract – insulation period …there will not
be an election if incumbent can make a new contract)
 Prevents Union from locking into B – but have a period – so can encourage stability
 if the Union is defunct for some reason – then there is no contract bar rule // if Union can’t
perform the functions as expected – then defunct
 if there’s been a chiasm in Union (conflict b/t local union & national/IN org) then no bar rule
 Determine the Appropriate Bargaining Unit per §9b
o Must be compatibility of jobs (i.e. same job type) – done on case by case basis & Board decision
will be upheld if supported by substantial evidence
 Must hold election w/in 30days of investigation if there are no problems
Campaigning for Recognition

Both sides can make speeches (Shopping Kart & Midland Ntnl Life Ins), Board won’t set aside
election for trickery/misrepresentation … only for deceptive practices (i.e. forgeries) & inflammatory
appeals – Ws are smart enough to figure out what is truth/fiction (reversal from Hollywood Ceramics)
 §8c – expression of views ≠ ULP unless is threat of reprisal/promise of benefit/coercive
o B tell W how it legally intends to deal w/ Union ≠ coercive (Herman Wilson Lumber)
o Predict adverse consequences based on objective factors ≠ coercive
 Might be coercive if predictions are based on things that B controls
o B can’t campaign by granting benefits to Ws unless were agreed upon prior (Exchange Parts)
 Union can promise benefits – but can’t threaten Ws to get Pro-Union Vote (per §8b1A)
o Can’t make inflammatory appeals in election propaganda (Sewell Manuf)
 B can’t poll Ws about Union unless: Purpose of poll is to determine truth of Union majority claim;
Purpose is told to Ws; Ws are told no reprisals; Secret ballot; B not done ULP or other coercive acts –
not meet these, then violate §8a1 – per Struksnes
 If B commits really egregious ULP – Board can order remedy of Mandatory Bargaining (Gissel
Packing: B destroy majority by firing Union leaders, unfair benefits/raises, threats)
o For minor ULP, Board is to issue Cease & Desist Order
Elections
 Excelsior Underwear: w/in 7 days of election being announced, B must give NLRB contact info of all
Ws qualified to vote in election  info gets to Union & insures informed voters
 Peerless Plywood Rule: no one can make a captive audience speech w/in 24 hours of election b/c
election must be based on laboratory conditions (General Shoe– elections = ideal to get true W desire)
Who can Vote in the Elections
 Current Ws in the potential bargaining unit that is being organized (inc replacement Ws)
 If there is a ULP Strike – then all ULP strikers
 If there is an economic & its w/in 12mnths – all economic strikers (§9c3)
Union Wins the Election
 Union becomes the certified bargaining agent for all Ws in bargaining unit & B must bargain in good
faith w/ the Union (as per terms in §8a5, §8b3, §8d)
o B must immediately begin negotiating CBA w/ Union (duty to bargain in good faith
o No automatic review of election – to get Board review, B must refuse to bargain & U file §8a1
Boss wins the Election
 Per §9c3 – Union can’t hold another election for 12 months – assuming no ULPs took place
Creating the Collective Bargaining Agreement
 Duty of Fair Representation owed to Ws by Union (Steele) (Means that Ws can’t indiv bargain w/ B)
 Duty to bargain in good faith owed by both sides – must provide relevant info re bargaining position
o Collective bargaining presupposes a desire to reach agreement – to create a CBA
 But §8d doesn’t compel either party to accept a proposal or make a concession
o No bad faith implied if Union strikes or B does a lockout
 B must negotiate until reach an impasse – can’t make unilateral decisions on terms of contract
o If impasse is reached, B can put into effect final, good faith offer (per Katz)
 Must be an impasse on whole bargain – not just one issue (per Duffy Tool)
 HK Porter – Board can’t force parties to accept contract provisions //
 Ex-Cell-O – Board can’t write CBA for the parties if they don’t reach agreement
7 GA Law Rev 617
Mandatory Subjects of Bargaining
 American National Insurance: There are 3 types of collective bargaining
o Mandatory Subjects of Bargaining (MSB) – included in wages, hours, term/condit of
employment (those terms is like accordion .. meaning shifts
o Permissive Subjects of Bargaining (PSB) –not illegal – might be bargained over (voluntary) ..
can’t bargain to impasse & insist on them as condition to reach agreement
 Corp org, # supervisors, general business practice, plant location mngmt prerogatives
o Illegal Subjects of Bargaining – closed shop … things illegal under statute
 If B/Union refuse to bargain on PSB… then no ULP, but if refuse to bargain on a MSB  ULP
o But if condition acceptance of PSB on MSB, then is ULP per Borg-Warner (it’s a violation statute
if you refuse to bargain on mandatory based on insistence of inclusion of a permissive term)
History of Mandatory Subjects of Bargaining
 Pre1962 – no obligation to bargain over decision to subcontract, close part of plant – instead obligated
to bargain over effects of decision // statute not cover mngr decision motivated by $$$ of operations
 Town & Country: any management decision effecting job security = MSB
o Job security = term/condition of employment
o Ozark Trailer (1966) – B decision to make major change in business is MSB b/c Ws invest time
into their work for B  Ws have interest in protecting of livelihood if change effects them
 Fibreboard (1964): decision of B to subcontract out Union jobs to Nonunion Ws in attempt to save $
o Is MSB b/c subcontract of this nature (i.e. straight up substitution of jobs) = MSB
 1st National Maintence (1981): B decision to close down unprofitable part of a business
o Only MSB if decision is based on things that Union can influence via bargaining
 no expectation that Union become equal partner in management of company
 Otis Elevator: United Tech bought Otis & transfer all tech support to CT & Ws no move/ no job
o Not MSB b/c essence of Bs decision = fundamental  of nature of business  no bargaining
 Dubuque (1994) three layer analysis on determining MSB regarding business relocation
o B may unilaterally take action w/ decisions that lie @ core of entrepreneurial control
 Exempting from duty to bargain relocations:
 Basic change in nature of Bs operation
 Change in scope/direction of enterprise
 Situation where work at new place differs significantly from work at old
 Work at old plant is being permanently discontinued & not moved to new place
o Bs motivation for moving
 Directly/Indirectly by labor costs – must bargain
o B may relocate w/o negotiating where union can’t/won’t offer sufficient concessions (Futility)
 Dorsey Trailer: if it can be shown that labor costs are in part a reason for decision to relocate  MSB
Modern Conception of Terms and Conditions of Employment (TCE)
 Retirement plan benefits = MSB
o How pay retirement benefits = PSB b/c not effect TCE for current Ws (Allied Chemical)
 Work assignments (reclassification/transfer) = MSB b/c TCE
 Relocation – depends on results of Dubuque test
 Safety standards = MSB b/c is TCE (also many CBA inc references to OSHA
 Management function clause (i.e. B retain control over specified areas) = MSB (Amer Ntnl Ins)
 Performance of Unit Work by B = MSB when Union claims is taking work from Ws
 In-Plant Food Service – B wants to make changes in price, ava, eating area = MSB b/c TCE
Moore Dry Dock – Dealing w/ 2ndary Boycotts/Picketing
 Picketing the premises of 2ndary B is primary if:
o Picketing is limited to times when situs of dispute is on 2 ndary B premises
o Primary B is engaged in its normal business at the situs at the time of picketing
o Picketing is limited to an area close to situs & picketing clearly states dispute is w/ primary B
 Denver Bldg: if dispute w/ a specific subK on construct project – can’t picket entire jobsite
 Douds: can picket subK that Primary has hired to replace striking Ws b/c he’s ≠ unconcerned party
 General Electric: if there’s separate gate reserved for indep Ws – can’t picket b/c Union must minimize
impact of strike on 2ndary Bs – but Gate must be reserved for work unrelated to normal operations
Exceptions to Prohibition on 2ndary Boycott
 Activity that might cause neutral Ws to request not to cross picket line is OK if Union striking is
certified & strike is authorized (i.e. approved by Union Members)
 Publicity Strike – informational to inform the public (Tree Fruits – picket telling store customers not to
buy WA apples is OK // deBartolo – no OK if interferes w/ deliveries)
 Specific Product boycott instead of total boycott on 2 ndary B (targeted boycott)
Lincoln Mills – Dealing w/ Arbitration
 Federal Courts have jurisdiction to order arbitration if CBA has an arbitration clause
 Lucas Flour: if a state court is presented w/ arbitration issue – must apply federal common law
o Generally the inclusion of a no-strike provision implies an arbitration clause (& vice versa)
 Warrior Gulf – apart from what was specifically excluded – all stuff must be considered included in
CBA & subject to arbitration
 United Steelworkers v Enterprise: if the Court disagrees w/ arbitrator’s interp of CBA – still must
uphold arbitrator’s decision & enforce arbitrator’s award – arbitration is the final say
Successor Employer
 John Wiley & Sons: if a merger retains the identity of the unit that negotiated the CBA – can’t make
the Union forget the agreement
o As a matter of Fed Common Law – a merger not destroy the right to arbitrate under the existing
CBA – if there’s a sufficient continuity of identity
 Burns Security: Successor B need not be saddled w/ non-productive work rules of predecessor – can
create new workforce, refuse to accept existing CBA (unless agree to do it
o But if hire a majority of old Ws– then must honor old CBA & bargain w/ representative Union
Hudgens – Dealing w/ Free Speech Rights
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Danbury Hatmakers: Union concerted activity is prohibited by Sherman Act
Duplex Printing: 2ndary Boycotts aren’t protected from injunction under Clayton Act
Apex Hosiery: Sherman no apply Union … restraint in trade = combinations trying to control market
Hutchenson: strike/boycott ≠ criminal conspiracy under Norris LaGuardia
Burlington N RR: 2ndary Boycotts are OK
Hearst Publication: develop right to control test – if B has right to control W  W = employee
Magnavox: Union can’t restrict Ws right to distribute literature during nonwork hours
Savair: it’s a ULP for Union to get recognition slips during election on promise of no dues
Electromation: B dominated committees – created by B & B dictate membership terms of committee
Intnl Garment Ws: negotiation w. Union prior to formal recognition is forbidden
Mt Healthy: if W is able to prove discriminatory purpose in firing, B must show violation of Co rule
Budd Manufacturing: W can’t be fired for union activities
Mueller Brass: improper firing –improper motive & disparate treatment in like cases b/c A-Union
Darlington Manuf: B not have exclusive right to close shop if motive is to frustrate Ws §7 rights & are
multiple locations & B only closing 1 location
Phelps Dodge: B can’t refuse to hire W b/c is in Union & Board can compel hiring
General Electric ULP for B to attempt to refuse to bargain w/ union – regardless of who the reps are
Joy Silk doctrine: if Union present majority cards – B must bargain UNLESS there is a good faith
doubt as to majority basis
Brooks: if Union loses majority after winning election – B must still bargain w/ Union for reas period
Curtin Matheson: Post certify – Union presumed majority for 1yr – then B can challenge w/good faith
Emporium: Union represent ALL Ws & W can’t individually bargain w/ B once get Union represent
Steele: Union represent ALL Ws – duty of fair representation
A-1 King Size: B/U must bargain in good faith, but Board can’t force parties to agree to terms in CBA
JI Case: Once the bargain unit is approved … then bargain rep must represent ALL employees –
regardless of their membership in the Union
Acme: B has oblig to give Union relevant info to help Union rep Ws – part of good faith duty
Insurance Agents: Union work slowdown ≠ bad faith in bargaining
Land Air: B can’t replace striking Ws w/ subKs w/o bargaining about it
City Disposal: 1 worker can engage in collective activity for benefit of all W – it continues CB process
MacKay Radio: when rehiring strikers, B can’t discrim against Ws b/c of their union involvement
Erie Resistor: B can’t give special benefits to induce Ws back from strike b/c is discrim & ULP
American Ship Bldg: employer can do a lockout w/o having a ULP charge – to force bargaining
Great Dane: B must show that discrim conduct was motivated by legit objectives
Metro Edison: B can’t punish union official (W) for failing to abate strike
Dorchy: There is no absolute Const right to strike
Vogt: evolution of picketing – Absolute free speech picketing can be controlled by legit gvt purpose
Gibbony: peaceful picketing can be enjoined if its contrary to a public policy
Thornhill: a state can’t pass a statute that prohibits peaceful picketing for any reason
Crown Cafeteria: only kind of picketing that’s allowed after 30days – picketing that truthfully advise
public that employer not employ Union labor … can’t have purpose/object organizational/recognition
General Motors: Ws not have to be active in Union, but must pay dues to cover costs of CBA/represent