Labor Law – Fall 1999
Professor Leonard Court
OUTLINE
I.
Evolution of Labor Relations
A. “Labor Problem” & Law
1. “master & servant” – one owned the labor of another. Employees either accepted employer’s terms or
quit – no negotiating.
2.
3.
Federal period – mixture of free & unfree labor – slaves, apprentices & indentured servants.
a. craftsmen – engaged in a trade
b. apprentices – learning from craftsmen .. public learned that apprentices worked for lower wages than
did craftsmen.
c.
1st type of primitive labor union – craftsmen banded together to limit number of apprentices who
could enter a trade. Craftsmen also attempted to strike when someone would hire outside of
craftsmen league, they would hold up their work & stop the trade process.
d.
These early organized labor-like unions were treated in courts of law as criminal conspiracies.
Manufacturing process evolved into more efficient production. Four consequences of rise of factories:
a. Division of labor & eroded need for craft skills. Craftsmen’s previous complete trade was divided
into specific parts. For example, where shoemakers once were trained in all aspects of making shoes,
people were now assigned to specific tasks such as making soles or making uppers or assembling
pieces.
b.
Marked growth in factory system. More people were able to find work.
c.
Management developed because someone had to oversee factory process & all employees in the
factory. New class of employees as managers marked first form of employment discrimination.
Managers were WASP & workers were primarily immigrants.
d.
Workplace rules developed. Two theories: (1) contract b/w employer & employees; (2) masterservant where master has liability for servant’s actions so that master can restrict servant’s actions to
specific realm in order to limit employer’s liability.
B. Rise of Labor Movement
1. City central “trade unions” – of the 1830s – federations of local journeymen’s unions began to form in
some cities.
a. 1st labor union - Nat’l Trades Union – federation of city centrals which was organized for purpose
of setting 10-hour work days. Did not survive depression of 1837.
2.
Followed by national craft unions of 1850s – sparked by railroad, was aimed at making the product of one
city competitive w/ product of another & making wage competition an element of price competition on
regional & national basis.
3.
Knights of Labor – quickly grew but declined just as quickly due to lack of leadership. Concentrated on
moral & political education, cooperative enterprise & land settlement.
4.
Replaced in 1866 by AFL (Amer Federation of Labor) – merely a federation & not a union in & of itself.
Has series of national craft unions that belong to it. Major goals were economic unionism (achieved
through collective bargaining) & exclusive union jurisdiction.
a. Local – governs all union members in a given area. Another type of local represents specific trade
within area.
b.
AFL’s philosophy was economic power. Believed in power of strike & collective bargaining.
C. Judicial Intervention
1. Early use of Criminal Sanction – Conspiracy charge against employees for striking. Combination of
employees was illegal not necessarily the act of striking.
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2.
Civil actions – Injunctions – primarily suits to enjoin union activities. Cts recognized general right to
advance interests of workers but this right was tightly circumscribed. Activity could not be “inimical to
public welfare” & union could not use force.
a. Objectives test – legality of union activity depended on how a ct choose to construe union objectives.
(1) Vegelahn v. Gutner (Sup. Ct. Mass., 1896) – as long as picket line stayed w/in few people &
practiced merely persuasion, it is lawful. Held – “no one can lawfully prevent employers or
persons wishing to be employed from exercise of their rights.”
(a) Dissent – numbers don’t necessarily increase the threat ... it is the act itself. Workers’ needs
could justify even intentional infliction of temporary damage to employer’s business – short
of force or threat of force, organized action should be permitted.
(2) Plant v. Woods (Sup. Ct. Mass., 1900) – case of disputing unions in which one union attempted
to prevent members of another union from securing employment.
(a) Rule - case of equal rights, in which each individual has same right as all other individuals to
dispose of one’s labor with full freedom. One has no right to be protected against
competition but has right of freedom from malicious & wanton interference, disturbance, or
annoyance.
(b) Held – need for protection of organization was not sufficient to justify interference w/
employer’s right to be “free of molestation.”
(c) Dissent – unity of organization is necessary to make contest of labor effectual.
(3) Mogul Steamship Co. v. McGregor, Gow, & Co. (1889, pg. 25) - One steam company organized
to drive out competitor.
(a) Held – Acts which intentionally damage another’s trade are actionable if done w/o just cause
or excuse. D was justified in acting as it did b/c of D’s right “to carry on their own trade
freely in mode & manner that best suits them, & which they think best calculated to secure
their advantage.”
3.
Antitrust Laws
a. Sherman Antitrust Act of 1890 – passed by Congress to curtail business abuse in time when corps
were achieving great economic power. The Act purported to outlaw certain types of conduct (chiefly
monopolization & restraint of trade) that were considered harmful to public interest.
(1) Act was first used against organized labor rather than against corps. Cts believed unions posed
greater threat to society than did individual corps.
(2) Pullman strike – Amer Railroad Union initiated strike against wage cuts. The strike resulted in
widespread violence & property damage.
(a) Atty General (rather than employer) obtained Sherman Act injunction restraining union
members from interfering w/ railroads or encouraging others to do so “by threats, persuasion,
force or violence.” Founders of the union were jailed for violating injunction.
(3) Loewe v. Lawlor (Danbury Hatters case) (Sup. Ct. 1908) – ct first considered Sherman Act as
applying to unions. Found that Act covered employment & labor issues.
(a) Held – any combination of activities that is a restraint of trade or commerce among the
several states violates Sherman Act.
(4) Coronado Coal Co. v. United Mine Workers - (Sup. Ct., 1925) – action under Sherman Act for
treble damages against union for damages resulting from a violent strike.
(a) Held – When intent of those unlawfully preventing manufacture or production is shown to be
to restrain or control the supply entering & moving in interstate commerce, or the price of it
in interstate markets, their action is a direct violation of Sherman Act.
b.
Clayton Act – presumably made clear that federal cts are not to be involved in labor disputes.
(1) two sections of the Act applied specifically to unions:
(a) § 6 – antitrust laws should not be construed to prohibit existence of labor organizations or to
prevent labor unions from “lawfully carrying out legitimate objects thereof.”
(b) § 20 – barred use of federal injunctions in disputes b/w employer & employees, or b/w
employers of employees, involving terms & conditions of employment.
(2) company unions – developed during this time, as employee representation plan or works
council, typically instigated, financed & controlled by employer. Dependent on employer
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approval for taking any significant actions, company unions built up company spirit & provided
against penetration by outside unions.
(3) Duplex Printing Press Co. v. Deering (Sup. Ct., 1921) – upheld injunction issued to break
secondary boycott imposed by union (whose members refused to work on printing presses
manufactured by Duplex b/c Duplex had refused to recognize unoin).
(a) Sup Ct created two loopholes to Clayton Act: (1) activity lawfully done; (2) legitimate
objectives.
(b) As to § 6, ct held it was not available to shelter union, since it protected only “lawful”
carrying out of “legitimate” objectives. Ct found secondary interference w/ property right
was neither lawful nor legitimate.
(c) As to § 20, ct found “by natural meaning of the words used” applied only to workers
involved in actual dispute – not to union members boycotting activities in plants of other
employers.
D. Legislative & Constitutional Protections
1. Employers came up with devices to thwart unions:
a. “yellow-dog contract” – provision of employment K in which employee promised not to join union
during period of employment. Hitchman Coal & Coke Co. v. Mitchell – Sup Ct gave legal effect to
such Ks.
b.
“objectives test” – cts used this test to decide according to their views of social & economic policy
the question whether employees’ demands justified their combining to inflict injury on employer.
c.
Ex parte injunction – Employers would sneak into ct w/o other side & obtain ex parte injunction.
This would in essence stop the strike b/c once union was forced to stop picketing, it’s effort lost
momentum & conflict b/w employer & union ceased.
d.
Strike breakers – persons whose sole job was to stop strike but who posed as employees. In OK,
strike breakers are illegal. Cannot hire persons during strike who consistently are hired during such
strikes at various plants.
2.
Statutes that attempted to give boost to labor unions: Railroad Act & Norris-LaGuardia Act. Labor
law is presently based on four major pieces of federal legislation: (a) Norris-LaGuardia Act – passed in
1932; (b) National Labor Relations Act (NLRA) or Wagner Act – passed in 1935; (c) Labor
Management Relations (Taft-Hartley) Act – passed in 1947 (amended NLRA); (d) LaborManagement Reporting & Disclosure (Landrum-Griffin) Act – passed in 1959 (again amended
NLRA).
3.
Sherman Act Revisited
a. Apex Hosiery Co. v. Leader (Sup. Ct. 1940) – strike against shipping plant’s product. $800,000
worth of hosiery left on the dock & not able to get shipped.
(1) Ct of app reasoned that Sherman Act has application to anything that has substantial impact on
commerce. $800,000 worth of hosiery was merely 3% of hosiery business in US – not considered
a significant impact.
(2) Sup Ct looked at (a) legislative history of Sherman Act – aimed at policing interstate commerce
& transportation of goods – prevention of restraint on free competition. (b) Sup Ct has never
applied Sherman Act unless it was sure there was some restraint of competition. 3% is not a
statistical restraint of competition.
4.
Norris-LaGuardia Act – basically removed power of fed cts to enjoin coercive activities by unions that
did not involve fraud or violence, except under limited circumstances.
a. Policy – The worker, “though he should be free to decline to associate w/ fellows, must have full
freedom of association, self-organization, & designation of representatives of his own choosing to
negotiate terms & conditions of his employment; & must be free from interference, restraint, or
coercion of employers … in these activities.”
b.
Effect – placed no affirmative obligations upon employers to negotiate w/ unions. Rather, sought to
aid union organizing & collective bargaining by changing common law precedents on union’s role in
society. Together w/ subsequent state enactments, the Act permitted unions to exert effective
economic pressure against employers.
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5.
c.
US v. Hutcheson (US Sup Ct, 1941) – Union picketing & boycott activities against employer, as part
of jurisdictional dispute w/ another union, did not violate Sherman Act.
(1) Rule –Sherman Act allows for criminal penalties. Under Sherman Act, no intention to prosecute
unions for using strikes, picketing, boycotts & other coercion having reasonable connection to
wages, hours, health or safety, or establishment & maintenance of collective bargaining. Primary
targets, rather, were: (a) union attempts to prevent use of cheaper material, improved equipment
or efficiency; (b) union attempts to compel hiring of useless & unnecessary labor; (c) union
extortion of business; (d) union cooperation w/ businesses in enforcing price-fixing schemes; &
(e) union attempts to wrest work from other unions already in established collective bargaining
relationships.
(2) Rationale – Norris-LaGuardia Act establishes public policy in favor of legitimate union activities.
In this light, § 20 removes all such allowable conduct from the taint of being “violations of any
law of US”, including Sherman Law. Purpose of § 20 is to protect labor’s traditional weapons.
(3) Effect – since Hutcheson, antitrust laws rarely have been applied against union activity—& then
only where collusion b/w labor & management caused restraint in interstate trade.
d.
Burlington Northern R.R. Co. v. Brotherhood of Maintenance of Way Employees (Sup Ct., 1987) Under Norris-LaGuardia Act, fed cts do not have power to enjoin secondary picketing of one
employer in railway labor disputes that arises from an otherwise lawful strike against another
employer. Applies to cases under both NLRA & Railroad Labor Act.
(1) Substantial alignment test – scope of lawful activity confined to activities that further union’s
economic interests in a labor dispute & that are directed at primary employer & other
substantially aligned employers – those having an ownership interest in, or providing essential
services or facilities to primary employer.
(2) Reasoning – Ct looked at legislative history – RR not exempt from Norris-LaGuardia Act.
Purpose of Act was to abolish, for purposes of labor immunity, distinction b/w primary activity
b/w immediate disputants’ & secondary activity in which employer & members of union do not
stand in proximate relation of employer & employee.
e.
Secondary boycott (example) – In situations where ABC Small RR is subsidiary of ABC RR & has
line which connects to ABC RR which has line that connects to XYZ RR & union boycotts ABC Small
RR, there is no ownership or economic intercourse b/w Small RR & XYZ RR so XYZ is secondary to
boycott. XYZ cannot be subject to boycott b/c they continue to do business w/ Small RR.
Railroad Labor Act (1926) – Railway was primary means of transportation. Labor & management came
together & drafted statute &submitted it to Congress who adopted it.
a. Set up the following:
(1) Duty to Negotiate – imposed duty on both sides to use “every reasonable effort to make &
maintain agreements.
(2) Adjustments Bds – meant to help resolve differences in interpretations of already existing
contracts & minor disagreements;
(3) Mediation Bds – 5 members appointed by Pres, created to deal w/ more major disputes but could
not impose settlement if two sides did not agree. Could send to arbitration;
(4) Binding Arbitration – can make decisions for the sides. Individuals in specialized field of
arbitration ... arbitration is preferred method of dissolving disputes.
If this failed & no settlement reached, must notify US Pres that going on strike. Pres puts together
committee who investigates & issues report (1) giving objective view of dispute; (2) suggesting best
resolution. Report is made public in order to test public response to parties’ actions. Then, 30-day
cooling off period. After this, strike can be called. Railroad Labor Act does not just govern railway
but all forms of public transportation, including airlines.
b.
6.
Amended in 1936 to apply to airlines. Today, basis for collective bargaining in rail & air
transportation.
Labor Activity & the Constitution
a. Thornhill v. Alabama (Sup Ct, 1940) – Alabama statute prohibited anyone involved in labor disputes
to picket. Sup Ct used First Amendment to strike down restrictive statute, holding that “the danger of
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injury to an industrial concern is neither so serious nor so imminent as to justify the sweeping
proscription of freedom of discussion embodied in [the statute].”
E. Wagner Act - Company unions – Amendment to Railway Labor Act to outlaw company unions. Natl RR
Adjustments Bd – looking at K language when disagreement & trying to figure out disagreement.
1. Federal government began encouraging unionization. 2 significant factors in growth of union movement
beginning in mid-1930s:
a. fed gov’s policy of giving active encouragement to unionization & collective bargaining; &
b. formation of Congress of Industrial Organizations – distinct from AFL. CIO comprised of unskilled
laborers from mass production industries. Originally, part of AFL but split b/c of different
philosophies. Two organizations are now merged.
2.
Three limitations to Wagner Act:
a. concerned primarily w/ organizational phase of labor relations;
b. concerned exclusively w/ activities of employers which were thought to violate certain rights
guaranteed by Act;
c. left substantive terms & conditions of employment entirely to private negotiations.
3.
Two critical sections of Wagner Act:
a. Every employee has right to band together;
b. Collective bargaining.
F. Taft Hartley Act – passed in 1947 to bring balance b/w unions & employers. President Truman vetoed Act
but was overruled by Congress.
1. § 7 under Wagner Act (pg. 78) established three things employees could do:
a. join unions,
b. collective bargain, &
c. engage in strike activity.
2.
Taft Hartley expanded § 7 – employees also have right not to join unions. Right of employees to oppose
unions.
3.
Taft Hartley outlined things unions could not do.
a. § 8(a) – employers cannot do: TIPS
Threaten employees b/c of pro-union views;
Interrogate anybody in labor about the union campaign;
Promise things will get better;
Spy
These prohibitions applied only to employers and not to unions originally.
b.
§ 8b – unions cannot do:
(1) union sanctioned or endorsed violence at picket line or acquiescence to violence;
(2) prohibits secondary boycotts;
(3) prohibits strikes to encourage unfair labor practices;
(4) prohibits jurisdictional strikes over who gets work assignments.
(5) imposed duty to bargain in good faith;
4.
Taft Hartley allows suit in fed ct to enforce collective bargaining agreements.
5.
Two problems w/ unions:
a. Leadership of unions – leaders essentially appointed by political persons.
b. Closed books – unions kept accounting books closed so that members did not know what their dues
money was going towards.
G. Landrum-Griffin Act (1959) – passed to open up leadership process & financial records of unions. Financial
records show salaries of top union officials, which can be used against unions during elections. Also shows
where unions are making political contributions. Act ensured democratic operation by opinion up election
process w/in union.
1. Generalizations about unions:
(a) effect of union wage increase is more for less educated;
(b) b/c unions want to maintain membership, larger percentage of wage increases goes to younger
workers, who will be members for longer time;
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(c) unionized workforce more stabilized than nonunionized shops;
(d) subjectivity is less in unionized shops;
(e) union members are less satisfied w/ work than are nonunion members b/c nature of union is to keep
tension w/in workplace;
(f) unions raise nonunion wages w/in workforce b/c nonunion shops have to compete w/ union wages in
order to keep employees.
H. National Labor Relations Bd (NLRB) – Act passed under commerce clause.
1. NLRB jurisdiction
a. state & fed gov employees are excluded from NLRA. Fed gov employees cannot strike.
2.
b.
issue arbitration – companies don’t agree on K, arbitrator decides K compromise. Gov as arbitrator
imposes solution.
c.
Employee exclusion:
(1) Agriculture
(2) Independent contractors – those employees that hold themselves out to other employers to do
same job; have own capitol investment in job, such as buying own supplies; compensation is
structured by job, not hourly.
(3) Supervisors – ensure loyalty to company;
(4) Managerial employees – common law exclusion;
(5) Confidential employees – executive’s secretary. Can’t let info get out to public or to union.
Structure:
NLRB
Regional Office
Reg Dir. Inves Attys.
General Council
ALJ
a.
Procedure for filing Unfair Labor Charges –
(1) File charge w/ regional director
(2) Assigned to investigator .. Never allow investigator to come on premises to interrogate witnesses.
If dispute of evidence, case goes on.
(3) Employer files answer.
(4) Administrative Law Judge hears case
(5) If investigator determines no disputed evidence, parties can appeal to general council.
(6) Appeal Administrative Law Judge’s decision to NLRB. Then appeal to fed app ct. Can go to DC
Cir (home of NLRB), where unfair labor practice was committed, or to district in which home
office is located.
b.
Unions represent employees in three ways:
(1) Employers voluntarily recognize union as representative
(2) Election process;
(3) Fed gov forces co to recognize union b/c co has committed number of labor violations.
c.
Election Process – key people in election process are investigators.
(1) Petition filed w/ NLRB & investigators make decisions: (1) what type of election; (5) union
describes bargaining unit it seeks; (7a) recognition request. If employer recognizes that union has
majority of employees, he voluntarily accepts union. Employer cannot count union cards. (6a)
how many employees in bargaining unit?; (6b) have you had 30% sign up yet?
(2) Investigation by NLRB – how big is bargaining unit?
(3) Authorization cards – include language, “I agree to select this union to petition NLRB for
election on my behalf & I also agree to join if union is elected.”
(4) Election petition – signing of cards.
(5) Employer can request hearing by ALJ b/c: (1) lead men – person who could be supervisor –
excluded or included; (2) appropriateness of bargaining unit; (3) delay.
(a) Issue of consent – If employer consents to election, will negotiate several points: (1)
schedule election on a payday; (2) designate location of election. Supervisors &
management cannot be seen from election room. (3) time for election – an hour before &
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after change in shifts or allow workers to come into election during working hours done by
departments.
(b) Unions typically want Mondays as election day.
(c) Downside of hearing – regional director may choose date of election.
(d) List of Voters
(e) Set up polling place. Attorney should inspect place. Observers from either side. Employer’s
observer cannot be manager. Observer makes sure everything goes well during voting. List
of Voters – observers help recognize voters as they come in. Challenged vote – don’t
recognize employee or believe he is manager. Challenged vote is marked & is only opened
& counted if it would make a difference in outcome of election.
(f) Nothing employer can do in court system to stop election. However, employer does have
remedy. Commit unfair labor practice – refuse to bargain.
II. Part Two – Establishment of Collective Bargaining Relationship
A. Protection of Right of Self-Organization
1. Interference, Restraint & Coercion
a. § 8(a)(1) – extends to employees right to join union. Right is emphasized by NLRB through
recognition of employees’ “free choice.” Employees must not be physically intimidated in deciding
whether to support union. Employees should have access to relevant info, should use info to estimate
probable consequences of union being selected or rejected, should appraise consequences in light of
own preferences to determine whether vote for union promises to promote or impair their self-interest.
Ideally, employees should be free from restrictions which unduly obstruct flow of relevant info.
b.
Restrictions on Solicitation & Distribution
(1) Republic Aviation Corp. v. NLRB (Sup Ct, 1945) – Restricting activities on company-owned
property – Employees’ right to organize conflicts w/ employer’s property rights when organizing
activity is conducted on company property. Although Sup Ct has held employer must tolerate
some inconvenience in this respect to safeguard employees’ § 7 rights, cts & Bd permit employer
to impose certain nondiscriminatory restrictions upon solicitation & distribution of materials
during working hours on company premises.
(2) Beth Isreal (1978) – diff rule for health care - cannot solicit or distribute during working time in
patient care facilities. But can solicit in other areas open to visitors & even to patients, absent
showing that disruption to patient care would necessarily result if solicitation permitted.
(3) NLRB v. Magnovox – Union cannot waive employee’s right to distribute literature during nonworking hours. Union’s access to bulletin Bd is not a fair substitute. May be adequate to
preserve status quo but not to give union’s adversaries adequate access to workers.
(4) Lechmere Inc. v. NLRB (Sup Ct, 1992) – Where union has access to employees outside
workplace premises, union not justified in trespassing on employer’s property.
(a) Rule – Employer cannot be compelled to allow distribution of union literature by
nonemployee organizers on his property. Exception – where location of plant & living
quarters of employees place employees beyond reach of reasonable union efforts. Exception
does not apply where nontrespassory access to employees may be cumbersome or less-thanideally effective.
(b) Sup Ct rejected balancing test that weighed three factors: (1) degree of impairment if access
should be denied; (2) degree of impairment of private property right if access granted; (3)
availability of reasonably effective alternative means.
(5) Union’s Quest for Equal Access – Republic Aviation & Lechmere limited union access to
employer’s property. Employees may communicate union info only during nonworking hours &
paid union organizers have access only in rarest circumstances (typically, when employees live
on company property).
(a) Bonwit Teller, Inc. v. NLRB (1951) – Denying union’s request for captive audience of
workers on shop floor is unfair labor practice b/c of § 7 right of employees to hear both sides.
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(b) Livingston Shirt Co. (1953) – Bd departed from Bonwit Teller decision, concluding that §
8(c) forbade condition of exercise of employer’s right to speak noncoercively upon its
willingness to afford union comparable time. Employer does not commit unfair labor
practice if he makes preelection speech on company time & premises to employees & denies
union’s request to reply.
(c) NLRB v. United Steelworkers (1958) – employer’s denial of union’s request to depart from
valid no-solicitation rule was not in itself an unfair labor practice.
(d) In area of NLRB remedies, Bd has ordered that union be given access by employer to
company property, either to solicit employees during nonworking time or to deliver a
“captive audience” speech.
(e) Peerless Plywood (1953) – firm rule outlawing “captive audience” speeches on company
time w/in 24-hr period prior to election whether by company or by union. Any campaigning
during this time must be one-on-one.
(6) Excelsior Underwear Inc. (1966) - High standards of disclosure are necessary so that prompt
disclosure of requested info, such as employee names & addresses, should be required in all
representation election. W/in seven days of consent to election, employer must file w/ Regional
Director an election eligibility list, containing names & addresses of all eligible voters.
Disclosure is necessary to insure an informed electorate. Disclosure will also eliminate necessity
for challenges based solely on lack of knowledge as to voter’s identity. Failure to comply is not
unfair labor practice but is grounds for setting aside election. [laboratory condition]
(7) NLRB v. Bell Aerospace Co. (1974) – Sup Ct held that Bd is not precluded from announcing new
principles in an adjudicative proceeding & that choice b/w rulemaking & adjudication lies in first
instance w/in Bd’s discretion.
c.
Election Propaganda
(1) Threats of Reprisal – One of most difficult & controversial problems in protection of freedom
of self-organization is degree of freedom of expression allowed employers. Problem involves
pursuit of two inconsistent goals: (1) freedom of expression; (2) full freedom of employees in
forming, joining & assisting labor organizations.
(a) Under Wagner Act, NLRB severely limited employer’s freedom of expression.
(b) NLRB v. Virginia Electric (1941) – Sup Ct rejected contention that all employer speeches or
literature necessarily interfered w/ free employee choice & violate § 8(a)(1). Expression of
any view or opinion by employer will not constitute unfair labor practice if such expression
contains no threat of reprisal or force or promise of benefit. However, statements that on
their face contain neither threat or promise may nonetheless be found coercive b/c of context
in which uttered.
i. Approach to assess coerciveness of employer:
- What actions threatened;
- Were threats, under all circumstances, likely to be taken seriously; &
- How widely were threats disseminated?
(c) General Shoe Corp (1948) – NLRB held that under § 8(c) Bd has power, as to elections won
through communications or conduct which could not be held an unfair labor practice, to set
aside election results & order new election. [Laboratory condition]
(d) Dal-Tex Optical Co. – election victory for employer set aside b/c of employer’s threats &
promises of benefits.
(e) NLRB v. Gissel Packing Co. (Sup Ct, 1969) - Employer is free to communicate to
employees any general views about unionism or any specific views about particular union, as
long as communications do not contain a threat of reprisal or force or promise of benefit.
Employer may also make prediction as to effects of unionization on company as long as
prediction is carefully phrased on basis of objective fact.
i. Holding – Employer can, in the least, avoid coercive speech simply by avoiding
conscious overstatements he has reason to believe will mislead his employees.
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ii.
Reasoning – Since employer has considerable economic power over employees, its
statements may influence employee conduct far more than statements outside employeremployee relationship. Important in determining whether employer’s communication w/
employees is legitimate “free speech” or unfair labor practice.
(f) Midland Nat’l Life Ins. Co. v. Local 304A (NLRB, 1982) - Bd no longer probes into truth or
falsity of parties’ campaign statements & does not set aside elections on basis of misleading
campaign statements. Bd intervenes in cases where party uses forged documents which
render voters unable to recognize propaganda for what it is. Set aside election not b/c of
substance of representation, but b/c of deceptive manner in which made.
i. Laboratory conditions standard – election can serve its true purpose only if
surrounding circumstances enable employees to register choice for or against a
bargaining representative.
(g) Gummed Products Co - Ultimate consideration is whether challenged propaganda has
lowered standards of campaigning so that uninhibited desires of employees cannot be
determined in election.
(h) Hollywood Ceramics Co –- election should be set aside only where misrepresentation or
other similar campaign trickery, which involves substantial departure from truth, at time
which prevents other party from making effective reply (“11th Hour Statements”), so that
misrepresentation, whether deliberate or not, may reasonably be expected to have significant
impact on election.
(i) Shopping Kart – [overruled Hollywood] elections set aside not on basis of substance of
representation, but deceptive manner in which it was made. Where, due to forgery, no voter
could recognize propaganda “for what it is,” Bd intervention is warranted.
(j) Sewell Mfg. Co. – Bd will not tolerate election propaganda w/ sole purpose of inflaming
racial feelings. Burden of proof on party making use of racial messages to establish truth &
germane .. where doubt as to truth, it is resolved against him. Where proven, Bd can require
new election. Held – Some race remarks allowed but only if “temperate in tone, germane &
correct factually.”
d.
Other Forms of Interference, Restraint or Coercion
(1) NLRB v. Lorben Corp. (2nd Cir, 1965) - Interrogation is unlawful only where found coercive,
restraining, or in interference w/ employees’ rights in light of all surrounding circumstances.
(a) Held – While questioning can have coercive effect if purpose not explained & no assurances
against retaliation, absence of these two factors, w/o more, fails to show coercion w/in
meaning of § 8(a)(1).
(b) Reasoning – Employer interrogation of employees as to their desire to be represented by
union is not coercive or intimidating on its face. Factors to consider in each case to
determine whether interrogation is coercive:
i.
Background – history of employer hostility
ii.
Nature of info sought – info on which employer can base taking action against
individual employee
iii.
Identity of questioner – company official
iv.
Place & method of interrogation – bosses office or lunchroom
(2) Struksnes Construction (D.C. Cir., 1967) – Employer’s polling of employees is unlawful unless
the following safeguards are observed:
(a) Purpose of poll must be to determine validity of union’s claim that it represents
majority;
(b) Employees must be aware of this specific purpose;
(c) Employer must give assurances against reprisals;
(d) Poll must be conducted by secret ballot;
(e) Employer must not have engaged in previous unfair labor practices or otherwise created
“coercive atmosphere.”
Polls taken during an election proceeding remain a violation of § 8(a)(1)
9
(3) NLRB v. Exchange Parts Co (Sup Ct, 1964) - Purpose of § 8(a)(1) is to establish “right of
employees to organize for mutual aid w/o employer interference.” § 8(a)(1) prohibits not only
intrusive threats & promises but also conduct immediately favorable to employees undertaken w/
express purpose of impinging upon their freedom of choice to vote in election.
(a) Held – Employer is not free to violate § 8(a)(1) by conferring benefits simply b/c it refrains
from other more obvious violations. Beneficence of employer is likely to be ephemeral if
prompted by threat of unionization which is subsequently removed.
(b) Reasoning – Danger inherent in well-timed benefits increases – employees will infer that the
source of the benefits now conferred is also the source from which future benefits must flow
& which may dry up if not obliged.
(c) Complicated issue in actual practice where benefits are already planned before
announcement of election but actual conferral of benefits was not scheduled to take place
until time b/w announcement & actual election. By giving benefit, employer violates unfair
labor practice by inticing votes. But if don’t give benefit, violate by taking away benefits for
purpose of punishing employees for supporting union.
e.
Union Misconduct Affecting Self-Organization
(1) § 8(b)(1)(a) – counterpart of § 8(a)(1) applied to unions. Outlines actions unions cannot take
during elections. Also serves two other functions: (1) protects union members against
disciplinary action taken by union; (2) provides remedy before NLRB for some forms of
discrimination or oppression by union representative against unpopular individuals or minority
groups.
(a) § 8(a)(1) prohibits promises by employers. § 8(b)(1) allows unions to make promises. T/f
two provisions not parallel. Reasoning – Union cannot get anything (benefits, pay raises,
etc.) w/o bargaining w/ employer. If union cannot make promises, it has little to offer
employees.
(b) Another difference b/w § 8(a)(1) & 8(b)(1) is that of social pressure. Employers cannot shun
workers who support union, but Unions are allowed to shun nonunion members.
(2) Unions subject to same “laboratory conditions” test as employers w/ respect to election
propaganda or other vote-getting activities. Even where union’s behavior is not severe enough to
warrant unfair labor practice under § 8(b), it can invalidate election if found to upset requisite
laboratory conditions for elections.
(3) Unions have two sources of income – (1) union dues, fees & assessments; (2) stock market
investments.
(4) First three things unions bargain for after election:
(a) union shop – every employee must join union;
(b) dues deduction from pay check;
(c) compulsory & binding arbitration, coupled w/ requirement that employees be fired only for
good cause
2.
Company Domination or Assistance
a. § 8(a)(2) forbids employers to dominate, assist or to interfere w/ formation or administration of any
labor organization.
(1) This section grew out of disapproval for company unions.
(2) Test – When employer activity reaches point where it is reasonable to infer that union is not truly
representing employees in disputes arising b/w employer & employee, employer has violated
§8(a)(2).
b.
“Company unions” – two distinct types:
(1) joint committees on which both employee & management representatives served. Functioned
primarily as forum for discussion & consultation. Met only when management was present;
(2) employee committee – made provision for separate meetings for employee representatives w/o
management present. Membership incident of employment but no association dues so company
unions had no treasury & was unable to undertake activities independent of employer.
c.
“Quality circles” – incorporating rank & file workers in company decisions.
10
3.
d.
Report of Senate Committee on Labor on Wagner Act – § 8(a)(2) does not outlaw free &
independent organizations of workers who choose to limit their cooperative activities to the limits of
one company. Provision designed to prevent interference by employers w/ organizations of their
workers that serve as collective bargaining units. Organization paid by employer for representing
employees cannot command, even if deserving it, full confidence of such employees.
e.
Electromation, Inc (NLRB, 1992 ) – Businesses have been trying to legislate out of this decision b/c
it takes problem-solving tools away from employers & employees working together. From employer
standpoint, best preventative defense against unions entering a workplace are employee organizations
that empower employees & keep them happy. For this reason, employers are pushing for legislature
to overturn Electromation.
(1) Other things to do to build workplace morale other than employee organizations include: (1)
training sessions; (2) create caring atmosphere – ask about employees’ families & ask what
employees think about their jobs & their views on how to improve jobs.
(2) Three-part test for finding employer unlawfully dominates organization - (1) employees
participate, (2) organization exists, at least in part, for purpose of “dealing with” employers, & (3)
these dealings concern “conditions of work” or concern other statutory subjects. Acts of
employer domination over labor organization include organization that is creation of
management, whose structure & function are essentially determined by management, & whose
continued existence depends on fiat of management.
(3) Held – experimental committees set up by management w/ employee participation may constitute
“labor organizations” & thus violate § 8(a)(2).
(4) Oviatt concur – Essential question should be: whether entity is created w/ any purpose to deal w/
grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work.
(5) Raudabaugh concur – Factors to consider in whether employer dominates employee organization:
(1) extent of employer’s involvement in structure & operation; (2) whether committees are
substitute to collective bargaining; (3) whether employees have choice to be represented by
traditional union; (4) employer’s motives in establishing employee participation programs.
f.
Int’l Ladies’ Garment Workers v. NLRB (Bernhard-Altmann TX Corp.) (Sup Ct., 1961) - § 8(a)(2)
makes unlawful employer support of a minority union & gives no consideration to mens rea so that
“good faith” belief is no defense.
g.
Abraham Grossman d/b/a Bruckner Nursing Home (NLRB, 1982) - Cannot voluntarily recognize
one union when two are competing – must go through election process.
Discrimination - §8(a)(3) – unlawful for employer to discourage or encourage membership in any labor
organization by discrimination in regard to hiring or tenure of employment, or w/ respect to any term or
condition thereof.
a. Edward G. Budd Mfg. v. NLRB (3rd Cir. 1943) – Employer puts up w/ misbehavior from employee
for quite some time (drinking on job, not showing up, bringing women to job) b/c employee was
“labor union steward.” When employer got word that employee was fraternizing w/ more radical
union, employer fired him, citing his misbehavior as reason. Ct determined employer’s reasons were
pretext & that employee was fired for anti-union animus.
(1) Rule – If employer allows bad course of conduct to continue w/o discipline, employer will lose
lawsuit based on termination & ct will determine employer fired employee for unlawful reasons.
(2) Critical question – What have we done to similar employees who have done similar acts?
Employee fired b/c engaging in union business during work hours – Can fire him only as long
as employer has uniformly enforced the no solicitation rule. For example, girl scout cookie sales,
sports pools, etc. Looking for improper motive.
b.
Discrimination Requirement
(1) Wright Line - § 10(c) – based upon preponderance of evidence. General Council has burden of
proving employee conduct protected by § 7 was substantial or motivating factor in discharge.
(2) mixed motive case – employer can rebut by showing by POE, discharge for job related reasons
despite anti-union animus.
(3) Pretext case – McDonnell-Douglass – (1) employee proves p/f case of discrimination; (2)
employer articulates legitimate business reason for discharge; (3) employee shows reason pretext.
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(4) NLRB v. Transportation Management Corp (Sup Ct, 1983) – McDonnell-Douglass framwork
works in mixed motive cases as well. Held it was reasonable & w/in Bd’s power to base unfair
labor practice violation on “partial anti-union motivation.” Test – discharged employee would
not have been discharged were it not for employee’s efforts to form union.
c.
Mueller Brass Co (1977) –appropriate standard of review – Employer’s motive is controlling factor.
Discrimination consists in treating like cases differently.
d.
Judicial Review of Bd Fact-Finding
(1) NLRB v. Adkins Transfer Co. (6th Cir, 1955) – can employer shut down business when union
comes in? Only discrimination as encourages or discourages membership in union is proscribed
by Act. Company may suspend its operation or change its business methods so long as change is
not motivated by illegal intention to avoid obligations under Act. It is well-settled that employer
may not transfer its situs to deprive employees of rights protected by § 7.
(a) Runaway shop – relocation for anti-union animus.
(2) Textile Workers Union v. Darlington Mfg. Co. (Sup Ct, 1965) – employer has absolute right to
terminate his entire business for any reason, but that right does not include ability to close part of
business no matter what the reason.
(a) Regarding § 8(a)(1) violations – certain business decisions will, to some degree, interfere
w/concerted activities by employees. But it is only when interference w/ § 7 rights
outweighs the business justification for employer’s action that § 8(a)(1) is violated.
(b) Reasoning – If persons exercising control over plant closing for anti-union reasons (1) have
interest in another business of sufficient substantiality to give promise of reaping benefit
from the discouragement of unionization in that business; (2) act to close their plant w/
purpose of producing such result; & (3) occupy relationship to other business which makes it
realistically foreseeable that its employees will fear that such business will also be closed
down if persist in organizational activities, unfair labor practice has been committed.
e.
4.
Supervisors
(1) Supervisor protection is ancillary under NRLA. - Discharge of supervisor is a violation if it
“directly interferes” w/ protected employee’s rights. The “directly interferes” test replaced the
“pattern of conduct” test.
Remedies for Unfair Labor Practices – Where judicial relief sought by Bd for refusal to abide by NLRB
order concerning unfair labor practice, remedy generally takes form of cease & desist order &/or requiring
affirmative action (i.e. backpay, etc.).
a. Phelps Dodge Corp. v. NLRB (Sup Ct, 1941)
(1) Refusal to hire two employees solely b/c of their affiliation w/ Union is unfair labor practice
under § 8(3). Discrimination in hiring is akin to discrimination in firing. Accordingly, b/c
Congress granted Bd power to reinstate wrongfully terminated employees, Bd also has
reinstatement powers regarding employees who were discriminated against in hiring process.
(2) Mere fact that victim of discrimination has obtained equivalent employment does not itself
preclude Bd from undoing discrimination & requiring employment. Bd can award backpay from
date of discrimination, less actual earnings & moneys which the worker could have earned during
backpay period but which he unjustifiably refused to earn.
b.
Remedy Issues:
(1) Backpay – rationale – P would have been hired but for his status as union supporter – t/f he is
due wages in the form of backpay, which begins running at time should have been hired & stops
when case goes to trial. Jury awards backpay.
(a) Does not act as deterrent to employers.
(2) Equitable Remedy – Reinstatement – using inherent powers of judicial system to put things
back to status quo. Judge reinstates.
(a) Reinstatement looks like a deterrent but does not act like one b/c reinstatement does not last
long. Many employers retaliate against employee once reinstated or employee fears
retaliation so that he does not accept reinstatement.
(3) Mitigate Damages:
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(a) ask for income tax records & W2 forms to determine how much employee made in wages
since failure to hire. Under NLRA, figure may be provided by Bd.
(b) Can subpoena records from new employer – two advantages to this approach: (1) info will
be accurate; (2) will give D settlement leverage b/c new employer now knows about
employee’s past problems.
(c) Job applications/resumes – employee has affirmative obligation to find like employment &
evidence of sending out resumes is evidence of exercising affirmative obligation.
(d) Also look for periods of time where out of job market (school, health problems, etc.).
Unemployment compensation is not mitigated in 10th Cir.
(e) Employer has burden to prove mitigation. Must show jobs were available in market.
(4) Front Pay – done w/in judicial system & not in NLRB hearings. Concept – b/c of problems w/
reinstatement, it is not an appropriate remedy & does not put employee back to status quo.
Award front pay for reasonable time until employee finds a job. Can act as deterrent. Judge
awards front pay b/c it is an equitable remedy.
(5) Salting – union hires employee to apply & be hired by employer in order to spy on employer &
start a union. Sup Ct has held this practice OK & these persons are considered employees for
purposes of NLRB protections.
(6) “Notice to Employees” (Pg. 130 of supp.) – Bd can order that company official read Bd’s
remedies for an unfair labor practice to employees on company time.
(7) NLRB petition (Pg. 125 of supp.) – Bd will consider petitions for election unless subject to K
bar rule – when have signed collective bargaining agreement & agreement is for reasonable time
(max 3 years), no election for another union 90 to 60 days prior to expiration of collective
bargaining. K b/w union & employer serves as “bar” to petition ofr cert or decert by parties
thereto for entire period of K. Rule bars employer even where contracting union is not certified.
c.
ABF Freight System v. NLRB (1994) – Bd can weigh severity of employee’s delinquency (lying
under oath) against severity of employer’s initial statutory violation in discharging for anti-union
reasons. Former will not automatically outweigh latter when fashioning remedy.
d.
Remedies for Employer Coercion & Discrimination
(1) Weaknesses are identified in Bd’s traditional remedies in cases of employer coercion &
discrimination under §§ 8(a)(1) & (3):
(a) traditional remedies of backpay & reinstatement are not preventative in nature.
i.
Backpay
- from employee’s point of view is merely compensation for what has been lost;
from employer’s point of view is punitive as a financial penalty. Fine too small
to have deterrent effect.
- Measure backpay not by the wages the guilty employer failed to pay, but rather
the net loss suffered by employee after deduction of any wages earned in
interim. By minimizing employer’s liability, take away deterrent effect.
- Proposal – double backpay w/ no setoff – did not pass Congress.
ii.
Reinstatement – dismissed employee gets job back & other workers see power of
collective action & labor law protection.
- Employee often reluctant to return for fear of subsequent retaliation.
- Employees who return are often gone w/in one or two years.
(b) Gissel Bargaining Order – Bd can delay or rerun an election to ensure outcome is untainted
by illegal intimidation or can order employer to bargain w/ union w/o election. (NLRB v.
Gissel Packing Co.)
B. Selection of Representative for Purposes of Collective Bargaining
1. Appropriate Bargaining Unit (ABU) – employer gets to choose who votes. Pg. 125 of Supp, block 5 –
describes unit
a. §8(a)(5) – requires employer bargain collectively w/ properly designated representative of employees
in ABU. First step is selection of bargaining rep & designation of ABU.
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b.
§ 9 – representative chosen by “majority of employees in a unit appropriate for such purposes” is to
be “exclusive” representative of all employees in unit. Bd determines group of jobs to comprise
bargaining unit.
(1) Unit is comprised of job classifications & not specifically of those particular persons working in
such jobs. Is everyone doing same type of work?
(2) What is commonly known as “appropriate bargaining unit” might be more accurately denoted
“appropriate election unit” since employees represented in different election units may choose to
regroup as single unit for purposes of negotiations.
(3) Determination of ABU by NLRB is not prerequisite to bargaining – employer & union are
generally free to informally agree on unit.
(4) When Bd selects unit, it does not have to select the optimal unit but only an appropriate unit.
(a) Bd’s juris to make unit determinations is at heart of our system of collective bargaining &
has a pervasive impact on industrial relations.
(b) Unions likely favor small bargaining units b/c they are easier to organize.
(c) Employers prefer large units in sense of resisting union.
(d) Fragmented units – more than one unit w/in a company.
(e) When large unit wins, worse on employer b/c strike potential & its impact is greater.
(5) Limitations on § 9(b):
(a) protects right of craft employees to be represented separately.
(b) forbids grouping of professional & nonprofessional employees into one unit.
i.
Professional employee - § 2(12) – one whose work is predominantly intellectual,
requiring constant exercise of discretion & judgment & knowledge of an advanced
type acquired thru specialized instruction.
ii.
Justification – professionals paid on higher wage scale & w/ different methods of
payment (salary v. hourly). Difference can lead to conflict of interest (instead of
paying hourly employees overtime, will just have salaried professionals work longer
hours for same pay)
(c) forbids Bd to include w/in single unit both guards & nonguards.
c.
Criteria for Unit Determinations
(1) Bd’s unit determination generally is in form of endorsement or veto of unit requested by
petitioning party.
(a) “Appropriate” – no requirement to be “only,” “ultimate,” or “most” appropriate unit.
(2) In making its unit determinations, Bd seeks an employee group which is united by community
of interest, & which neither embraces employees having substantial conflict of economic
interests nor omits employees sharing unity of economic interest w/ other employees in election
or bargaining constituency.
(a) In making judgments about “community of interest” in these different settings, Bd will look
to factors such as:
i.
similarity in scale & manner of determining earnings;
ii.
similarity in employment benefits, hours of work & other terms & conditions of
employment;
iii.
similarity in kind of work performed;
iv.
similarity in qualifications, skills & training of employees;
v.
frequency of contact or interchange among employees;
vi.
geographic proximity;
vii.
continuity or integration of production processes – production line;
viii.
common supervision & determination of labor-relations policy;
ix.
history of collective bargaining;
x.
desires of affected employees;
xi.
extent of union organization.
(3) American Hospital Ass’n v. NLRB (Sup Ct, 1991) – Acute care hospitals are the only industry
w/ preset bargaining units. Sup Ct upheld NLRA rule defining ABU in acute care hospitals as
14
requiring only 8 units, w/ following exceptions: (1) cases of extraordinary circumstances (such as
creating units w/ fewer than 5 employees); (2) cases in which nonconforming units already exist;
(3) cases in which union seeks to combine two or more of the eight specified units. Ct found rule
not arbitrary & capricious b/c acute care facilities do not differ in substantial ways relating to
appropriateness of units & any substantial differences are covered in exceptions to rule.
d.
Single-Location v. Multi-Location Unit
(1) May Department Stores (1943) – NLRB favored union’s claim for smaller unit in order to
encourage collective bargaining. (no class discussion)
(2) § 9(c)(5) added to Taft-Hartley Act as result of decisions such as May. “Extent of organization”
cannot be sole reason for establishing unit but is relevant factor. (no class discussion)
(3) NLRB v. Frisch’s Big Boy Ill-Mar, Inc. (1964) – single store in chain-store operation is
“presumptively appropriate.” (no class discussion)
(4) Dixie Belle Mills, Inc. (1962) – presumption that one plant of multi-plant industrial operation is
an appropriate unit. (did not discuss in class)
(5) NLRB proposal (1995) develops rule on appropriateness of single-location bargaining units in
all except construction industries & maritime trades. Single-location units appropriate except in
extraordinary circumstances provided 15+ employees are at location, that employer does not have
another location w/in a mile, & that supervisor is present at location. (did not discuss in class)
(6) NLRB v.Chicago Health & Tennis Clubs, Inc. (Sup Ct, 1978) - Single store bargaining unit is
inappropriate where chain of stores are completely integrated functionally as to hiring &
training, exemplified also in (1) frequency of transfers b/w stores & lack of actual individual
identities & in (2) history of collective bargaining throughout chain as whole & not concentrated
in individual stores. However, single store bargaining unit is appropriate where no prior history
of collective bargaining, employee transfer b/w clubs is minimal, individual clubs operate w/
degree of autonomy, making chain less centralized.
(a) Rationale – Bd has broad discretion in forming bargaining units. In making unit
determinations, Bd must effect policy of Act to assure employees fullest freedom in
exercising rights, yet at same time respect interest of an integrated multi-unit employer in
maintaining enterprise-wide labor relations.
e.
Multi-employer & Coordinated Bargaining
(1) Approximately 40% of American workers are covered by collective bargaining agreements
negotiated on multi-employer basis.
(2) Multi-employer bargaining – number of employers w/in an area or industry may band together
to bargain as group w/ single union which represents employees at all companies. Negotiations
usually carried on b/w int’l union & association of employers in same market. Single master
agreement is usually signed. Then, subsidiary agreements dealing w/ individualized problems
may be worked out b/w employers & local unions.
(a) Master K or Agreement – what is negotiated in multi-employer bargaining. Supplemented
by local agreements. Less frequent, less expensive negotiations take place. Helps union b/c
employers may be more willing to act as a group rather than going out individually (such as
initiating large benefits increases).
(b) Benefits of Multi-employer bargaining – less expensive, less frequent & more informed
negotiations. Employees like it b/c it strengthens union. (more listed on pg. 290).
(c) Disadvantages of Multi-employer bargaining – Wide-reaching strike potential. Results in
undue restraints on competition. May discourage entry of new competitors in industry.
(d) Bd cannot direct an election for an initial union representative in a multi-employer unit – can
only be organized consensually, after representative has been designated.
(e) Charles D. Bonanno Linen Service, Inc. v. NLRB (Sup Ct, 1982) – w/drawing from multiemployer bargaining unit
(1) Rule - Bd guidelines for w/drawal from multi-employer units: any party may w/draw
prior to date set for negotiations of a new K or date on which negotiations for new K
15
have commenced; however, w/drawal is permitted only if there is “mutual consent” or
“unusual circumstances.”
(2) Held – Impasse is not an unusual circumstance justifying w/drawal from multiemployer unit. As a recurring feature in bargaining process, impasse is only a temporary
deadlock in negotiations. Further, impasse may be intentionally brought by one party in
negotiations. Accordingly, allowing employers an escape from multi-employer unit
when impasse arises is not justified.
(3) “Coordinated” or “Coalition” Bargaining – single large company confronted at
bargaining table by representatives of a number of different bargaining units w/in that
company.
(a) General Electric Co. v. NLRB (2nd Cir, 1969) - Mixed-union negotiating committee
is not per se improper. Absent showing of “substantial evidence of ulterior motive
or bad faith,” employer commits unfair labor practice if it refuses to negotiate w/
such a group.
i.
Rule – § 7 of NLRA gives employees the right to bargain collectively
through representatives of their own choosing. Exceptions to general rule
are limited to instances infected w/ ill-will, usually personally, or conflict
of interest as to make good-faith bargaining impractical.
ii.
Policy considerations for including members of other unions in bargaining
process: (1) union has interest in using experts to bargain; (2) it increases
communication b/w all parties so that reduces ability of Company to play
one union against the other.
iii.
Company cannot say whom the union can choose to represent them.
iv.
Lockout – reverse of strike – employers throw out employees.
2.
Review of Representation Proceedings
a. NLRA has no provision for direct judicial review of Bd determinations, such as for ABU
determinations, made in course of representation proceedings.
(1) § 9(d) – provides judicial review of cert or decert rulings only when such review is incidental to
restraining unfair labor practice.
(2) § 10(f) – party may have review if “aggrieved by final order” of Bd, but decisions made during
representation proceedings are not final orders. Can only get judicial review by committing
unfair labor practices. Record of representation proceedings become part of the record in
judicial review of unfair labor practices.
(3) T/f, NLRB rulings on representation proceedings are subject to review only after:
(a) party to election files unfair labor practice charge w/ respect to election; &
(b) Bd issues “final order” w/ respect to charge.
b.
Leedom v. Kyne (Sup Ct, 1958) - Bd order in certification proceeding is not a “final order” & t/f is not
subject to judicial review, except as it may be drawn in question by a petition for enforcement or
review of an order restraining an unfair labor practice. However, cases that can be categorized not as
“review” under § 9 but as action to strike down Bd’s order as excessive of delegated powers &
contrary to specific prohibition of Act are subject to review.
(1) Held – Bd exceeded its power in certifying as ABU a unit which contained professionals &
nonprofessionals w/o professionals’ permission or vote. When Bd attempted to exercise power
that had been specifically w/held, Dis Ct had power to set aside the certification even though
certifications are not “final, reviewable orders.”
(2) Dissent – disagrees w/ Ct’s decision b/c Congress limited types of judicial review in § 9(d) so
that these time-consuming procedures would not threaten to frustrate basic natl policy of
preventing industrial strife & achieving industrial peace by promoting collective bargaining.
c.
Boire v. Greyhound Corp (1964) – Sup Ct ultimately held that Dis Ct did not have juris to enjoin
election since question of Greyhound’s status as employer was factual w/in power of Bd to decide.
Whether Greyhound possessed sufficient indication of control to be an “employer” is essentially a
factual issue, unlike question of Kyne, which depended solely upon construction of the statute.
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C. Securing Bargaining Rights Thru Unfair Labor Practice Proceedings
1. Other than thru § 9 election proceedings & voluntary recognition of unions there are other ways for union
to secure representative status – through unfair labor practice proceedings brought against employer –
typically that employer improperly refused to bargain pursuant to § 8(a)(5).
a. Three situations give rise to bargaining through unfair labor practice proceedings:
(1) Employer rejects union’s showing of majority support through authorization cards & engages in
coercive unfair labor practices to undermine that support.
(2) Employer rejects union’s showing of majority support & insists on election w/o engaging in
unfair labor practices.
(3) Employer extends bargaining rights to union & then w/draws recognition claiming that union no
longer has majority support.
b.
2.
All of these situations raise the question whether in particular circumstances a union should be
required to demonstrate its representative status through a secret-ballot election rather than through
unfair labor practice proceedings in which there is reliance upon authorization cards or earlier
designations which now may be inaccurate.
NLRB v. Gissel Packing Co. (Sup Ct, 1969)
a. Cumberland Shoe doctrine – if card is unambiguous, it will be counted unless it is proved that
employee was told that the card was used solely for purpose of obtaining election.
b. Traditional interpretation of Wagner Act - Union did not have to be certified as winner of Bd
election to invoke bargaining obligation; could establish majority status by other means under §
8(a)(5)—by showing convincing support by a union-called strike, strike vote, or by possession of
cards signed by majority of employees.
c. Secret elections are generally the most satisfactory & preferred method of ascertaining union majority
support. But this does not mean that cards are thereby totally invalid, for where employer engages in
conduct disruptive of election process, cards may be most effective way of assuring employee choice.
d. Held –
(1) Employer can insist on secret ballot election, unless he engages in contemporaneous unfair labor
practices likely to destroy union’s majority & seriously impede election.
(2) Authorization cards are themselves reliable enough to show majority support as long as cards
state clearly & unambiguously on their face that signer designates union as his representative.
(3) Bd is not limited to cease-&-desist orders where employer refuses to bargain by committing
unfair labor practices. If Bd could enter only such orders, it would in effect be rewarding
employer & allowing him to profit from his own wrongful refusal to bargain, while at the same
time severely curtailing employee’s right freely to determine whether they desire a representative.
e.
Evolution of Bd’s treatment of authorization cards:
(1) Joy Silk doctrine – employer could lawfully refuse to bargain w/ union claiming representative
status thru cards if he had “good faith doubt” as to union’s majority status. Bd could enter
bargaining order in two ways: (1) finding that employer’s unfair labor practice was evidence of
bad faith, showing that employer was seeking time to dissipate union’s majority; (2) finding that
employer had come forward w/ no reasons for entertaining any doubt & must have rejected
bargaining demand in bad faith.
(2) Aaron Brothers rule – shifted burden to General Counsel to show bad faith. Employer “will not
be held to have violated his bargaining obligation simply b/c he refuses to rely on cards.”
(3) Approach announced at oral argument in this case – abandoned Joy Silk doctrine. (1)
employer could not refuse to bargain if he knew that a majority of his employees supported union;
(2) employer could not refuse recognition initially b/c of questions as to appropriateness of unit &
then later clam that he doubted union’s strength.
f.
Things to take from Gissel:
(1) Employer’s good faith/bad faith doubt regarding strength of Union through authorization cards is
largely irrelevant.
(2) Key to issuance of bargaining order is commission of serious unfair labor practices that interfere
w/ election processes & tend to preclude holding fair election.
(3) § III(A) of opinion – “An employer can insist on secret ballot election, unless he engages in
contemporaneous unfair labor practices likely to destroy union’s majority (as shown through
authorization cards) & seriously impede election.”
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(4) § III(B) – Authorization cards are reliable indicia of employees’ desire to be represented by
union. Signed cards are essentially K. T/f reliable unless employer can show fraud in
inducement or misrepresentation by Union in getting signatures.
(5) §III(C) – Bd can enter bargaining order as remedy for § 8(a)(5) refusal to bargain when employer
has committed independent unfair labor practices which have made holding of fair election
unlikely or which have in fact undermined Union’s majority status. BUT –no per se rule that
commission of unfair labor practice will automatically result in § 8(a)(5) violation & issuance of
order to bargain.
g.
In most cases since Gissel, Bd has simply recounted employer violations & made conclusory finding
on question whether they were severe enough to preclude fair election.
3.
NLRB v. General Stencils – criticized Bd for failing to establish criteria defining when employer
violations were serious enough to warrant bargaining order. Suggested three methods to articulate
position on bargaining orders: (1) best course is rulemaking procedure to hold hearings & formulate
general principles; (2) Bd could announce general principles in a specific case; (3) Bd could fully explain
in each case what it considers to have precluded a fair election & why.
a. on remand– declined to formulate general principles. Dissent found at least two situations in which
bargaining order would be warranted in nearly all cases: (1) significant benefits granted during
organizing campaign; (2) repeated discriminatory acts.
4.
Gourmet Foods, Inc. v. Warehouse Employees of St. Paul – Bd declined to issue “non-majority
bargaining order” (union has never in past demonstrated majority support but employer has committed
serious violations that would otherwise warrant bargaining order). Third Circuit ruled that Bd had power
to enter non-majority bargaining orders & on remand Bd did so. However, Bd ultimately determined that
it is outside B’d power since NLRA requires a majority rule principle & rendering non-majority
bargaining order would be outside purposes/policies of Act.
5.
Linden Lumber Civ. Summer & Co. v. NLRB (Sup Ct, 1974) - Unless employer engaged in unfair labor
practice that impaired election, union w/ authorization cards purporting to represent majority, which is
refused recognition, has burden of taking next step in invoking Bd’s election procedure. Employer is not
required to bargain w/ union having authorization card majority.
a. Union faced w/ an employer refusing to recognize majority cards has two options: (1) file for
election; (2) file unfair labor practice charge
b. Ct rejected requirement that employer’s refusal to bargain be based on good faith doubt as to
employee support of union. Instead, approved Bd policy of not examining employer motives where
there are no unfair labor practices affecting conditions for fair election.
6.
Brooks v. NLRB (Sup Ct, 1954) - To allow employers to rely on employees’ representations after an
election (presumably that majority of employees no longer support union) to refuse to bargain is inimical
to purpose of NLRA – industrial peace.
a. Following rules evolved under original Wagner Act:
(1) Certification, if based on Bd-conducted election, must be honored for “reasonable” period,
ordinarily one year, in absence of “unusual circumstances.”
(2) “Unusual circumstances” were found in at least three situations: (a) certified union dissolved or
became defunct; (b) as result of schism, substantially all members & officers of certified union
transferred affiliation to new union; (c) size of bargaining unit fluctuated radically w/in short
time.
(3) Loss of majority support after “reasonable” period could be questioned in two ways: (a)
employer’s refusal to bargain or (b) petition by rival union for new election.
(4) If initial election resulted in majority for “no union,” election – unlike certification – did not bar
second election w/in a year.
b.
NLRA was amended by Taft-Hartley to provide:
(1) Employees could petition Bd for decertification election for an opportunity to chose no longer to
be represented by union.
(2) Employer, if in doubt of majority claimed by union w/o formal election can also petition Bd for
election.
(3) After valid certification or decertification election, Bd could not hold second election in same
bargaining unit until year lapsed.
(4) Bd certification could only be granted as result of election.
18
7.
Process:
a. During first year after election, Union has unrebuttable presumption of majority status.
Employer must bargain in good faith.
b. After first year, (& presumably not when labor agreement is in place) Majority status becomes a
rebuttable presumption. Employer can rebut by establishing EITHER:
(1) that at time of refusal to bargain Union in fact no longer enjoyed majority representative status;
(2) That employer’s refusal to bargain was predicated on good faith & reasonably grounded doubt of
Union’s continued majority status. Employer must show asserted doubt based on objective
considerations & must not have been advanced for purpose of gaining time in which to
undermine union.)
c.
Bartenders Assoc. v. Local 510- Upon expiration of “certification year,” presumption of majority
status continues, but becomes rebuttable.
d.
Midwest Piping Doctrine – Employer must refrain from recognizing either of two unions which are
presenting conflicting recognition claims in an election proceeding; favoring one union unfairly
accords it prestige & induces employees to support it.
e.
Employer is generally free to test union’s continuing majority upon expiration of K by: (1) refraining
from recognizing & bargaining w/ union, precipitating an unfair labor practice; or (2) petitioning for a
representation election.
f.
NLRB v. Curtin Matheson Scientific, Inc. (Sup Ct, 1990) - New employees hired in nonstrike
circumstances are presumed to support union in same proportion as employees they replace. Also,
during strikes, there is no presumption of replacement opposition to union. Bd can refuse to adopt
presumption that striker replacements oppose union where presumption is rational & consistent w/
Act.
(1) When certified by NLRB as exclusive bargaining agent, union enjoys irrebuttable presumption of
majority support for one year. Any refusal to bargain during this time is per se violation. After
first year, presumption continues but is rebuttable. Employer may rebut presumption by
showing: (1) union did not in fact enjoy majority support; (2) employer had “good faith” doubt
of union’s majority support.
III. Negotiation of Collective Bargaining Agreement
- B/f Railway Labor Act & NLRA, economic force largely determined whether employer would recognize
union, what subjects would be discussed, what kinds of bargaining techniques would be used, & what pressure
tactics to use outside bargaining room.
-
NLRA now regulates all of these areas & mandates that both parties have a duty to bargain about “wages,
hours, & other terms & conditions of employment.”
-
Congress has to a considerable degree replaced a bargaining structure based on voluntarism & economic force
w/ one based on legal compulsion.
A. Exclusive Representation & Majority Rule – Once union selected as representative of majority employees in
bargaining unit, it has exclusive authority to represent all employees in unit on matters that are property
subject of collective bargaining.
1. J.I. Case Co. v. NLRB (Sup Ct, 1944) - Individual K, no matter what circumstances justify execution or
what terms, may not be availed of to defeat or delay procedures prescribed by NLRA as to collective
bargaining, nor to exclude contracting employee from duly ascertained bargaining unit; nor may they be
used to forestall bargaining or to limit or condition terms of CBA. Individual K cannot effectively waive
any benefit to which employee otherwise entitled under NLRA.
a. Held – While ct does not hold that under no circumstances can individual enforce an agreement more
advantageous than a collective agreement, it does hold that the mere possibility that such agreements
might be made does not mean generally that individual Ks may survive or surmount collective ones.
Majority rules & if parties collectivize the employment bargain, individual advantages or favors will
generally in practice go in as contribution to collective result. Cannot except individual Ks generally
from operation of collective one b/c some may be more individually advantageous.
b. Rationale – Collective bargaining b/w employer & union results in an accord as to terms governing
hiring & work & pay in the unit. Result is not an employment K; no one has job by reason of it & no
obligation to any individual ordinarily comes into existence by way of it.
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2.
CBA – Parties are employer, management, & union. Employees are third party beneficiaries.
a. Union philosophy is to set up pay scales so that all persons w/in a job description make the same
wages & advancement is based solely on seniority. This takes away from management any discretion
in compensating good employees better than others. Union controls pay.
3.
Emporium Capwell Co. v. Western Addition Community Organization (Sup Ct, 1975) - Civil rights
group filed charge against employer, not union.
a. Rule – By adopting majority rule, Congress did not authorize tyranny of majority over minority
interests. (1) Confined exercise of powers to context of bargaining unit. (2) Undertook w/ LandrumGriffin amendments to assure that minority voices are heard as a function of democratic institution.
(3) By very nature of exclusive bargaining representative’s status as representative of all employees,
Congress implicitly imposed duty fairly & in good faith to represent interests of minorities w/in unit.
b. Holding – No unique status to race that gives minorities right to bargain outside CBA. If collective
bargaining is going to work, must stick to it & recognize that it covers entire unit & not just union
members. Elimination of discrimination is appropriate subject of bargaining & employer may have
no objection to incorporating into CBA the substance of his obligation not to discriminate.
c. Rationale – Rationale behind concept of collective bargaining is principle of majority rule. If
majority of unit chooses union representation, NLRA permits them to bargain w/ employer to make
union membership condition of employment, imposing their choice on minority. Congress sought by
majority rule to secure to all unit members the benefits of their collective strength & bargaining
power, in full awareness that superior strength of some individuals or groups might be subordinated to
majority’s interest.
d. Dissent – Majority’s decision makes union members prisoner to union. While employees may
reasonably be required to approach union first, as “exhaustion” requirement before resorting to
economic protests, they should not be under continued inhibition when union response is inadequate.
4.
Grievance Procedure – Supervisor  Plant Manager or Human Resources Director  Joint Adjustment
Bd  Binding Arbitration
a. Ownership of grievance is primarily w/ union, not aggrieved employee. C/a against union for failing
to properly represent employee through grievance procedure. Br/ duty to represent all interests in
good faith, including minority interests.
5.
b.
Garner-Denver (not in book, Sup Ct) – collateral estoppel & res judicata do not apply to binding
arbitration b/w employer & union for race discrimination cases b/c of actions under Title VII.
Individuals can bring Title VII discrimination claims in fed ct. Reasoning – Congress specifically
gave these individuals right to such claims & cannot deny their right when they have not individually
bargained away such right.
(1) two remedies – (1) under K; (2) under Title VII.
c.
NY Stock Exchange case (not in book, Sup Ct) – binding arbitration is final & cannot bring separate
fed claims where employee makes personal K for binding arbitration rather than merely collectively
agreeing to such.
Limits of Majority Rule – J.I. case & Emporium Capwell make clear that interests & wishes of
individuals & minority groups w/in bargaining unit must be subordinated to exclusive-bargaining status of
majority labor organization.
a. In defining ABU, Bd will attempt to exclude workers who have conflict of interests, or who lack
community of interests, w/ unit in which election is held. Excluded group will be able to select own
majority representative or none at all.
b.
Decertification election – employees have periodic right to vote out union. Frequency of such
elections is limited by election-bar & certification-bar rules & by K-bar rule, by which incumbent
union can insulate itself against decertification for up to three years.
c.
Bill of rights for union members – purpose to guarantee substantial measure of democratic rights &
procedures w/in internal affairs of union so that minority groups w/in union have opportunity to
modify union policies.
d.
Worker in bargaining unit does not automatically have to become union member – only becomes so if
employer & union negotiate collective bargaining provision making membership condition of
20
continued employment - union-shop provision. Employee does not necessarily have to be union
member but must pay union dues as a service fee for union’s representative service.
(1) Beck (sup ct decision not in book) – non-union member is not required to pay proportion of union
fees that union pays to political contributions. Reasoning – majority rule is for purpose of
collective bargaining, not for purpose of political contribution.
e.
§ 9(a) explicitly preserves to individual employees the right to present & to process grievances.
f.
Duty of fair representation – most significant limitation upon union’s power to accommodate
minority. Duty enforceable by civil actions in fed & state ct. Br/ duty is also an unfair labor practice.
(1) Steele v. Louisville & Nashville R. Co. (Sup Ct, 1944) – source of duty of fair representation.
(a) Rule – § 2(4) of Railway Act provides, “Employees shall have right to organize & bargain
collectively through representative of their own choosing.” § 2(2) requires carriers to
bargain w/ representative so chose & excludes any other union from representing the craft.
(b) Holding – Language of Act, read in light of purposes of Act, expresses aim of Congress to
impose on bargaining representative the duty to exercise fairly the power conferred upon it in
behalf of all those for whom it acts, w/o hostile discrimination against them. Statute requires
union, in collective bargaining, to represent non-union or minority union members w/o
hostile discrimination, fairly, impartially & in good faith.
(2) Ford Motor Co. v. Huffman – P asserted that union had violated its duty of fair representation by
discriminating on basis of prior military service, issue not ordinarily considered directly relevant
to wages & working conditions. Sup Ct held that disputed provisions did not evidence br/ of
union’s duty of fair representation.
B. Duty to Bargain in Good Faith
1. § 8(d) – to “bargain collectively” is performance of mutual obligation of employer & representative of
employees to meet at reasonable times & confer in good faith w/ respect to wages, hours, & other terms &
conditions of employment, or negotiation of agreement, or any question arising thereunder, & execution of
written K incorporating any agreement reached if requested by either party, but such obligation does not
compel either party to agree to proposal or require making a concession.
a. Above definition gives rise to problems such as what is “reasonable” time b/w meetings? Also,
requirements to “meet” & to “confer” are not clear.
2.
b.
NLRB v. A-1 King Size Sandwiches, Inc. (11th Cir., 1984) - Employer insisted on unilateral control
over virtually all significant terms & conditions of employment, including discharge, discipline,
layoff, recall, subcontracting & assignment of unit work to supervisors. Employer’s bargaining
(insisting on proposals that were so unusually harsh & unreasonable that they were predictably
unworkable) is clearly indicative that employer had little desire to work towards agreement or K,
constituting violation of §§ 8(a)(1) & (5).
c.
NLRB v. Cummer-Graham Co. (1960) – although no-strike clauses normally are coupled w/
arbitration clauses, Ct of App held that a party could lawfully insist on one w/o the other & that such
are matters for management & labor to resolve on bargaining table w/o Bd intervention. Approach is
to consider party’s total course of conduct, rather than isolated actions. Thus, violation may result
from “sum” of several incidents, when looked at separately might not establish bad faith.
d.
NLRB v. Herman Sausage Co. (1960) – If insistence on certain provision is genuinely & sincerely
held, it may be maintained forever though it produces stalemate to bargaining process.
e.
Chevron Oil Co. v. NLRB (1971) - employer may utilize its economic strength to engage in hard
bargaining w/ weaker union w/o ct finding that it engaged in bad faith bargaining.
f.
Atlas Metal Parts Co. v. NLRB (1981) –employer is entitled to advance position sincerely held,
regardless employer held different position at earlier time. Party is entitled to stand firm on position if
he reasonably believes that he has sufficient bargaining strength to force agreement.
Duty to Disclose Information – duty to bargain in good faith may require one part to provide other w/
info at bargaining table – refusal to furnish info can be unfair labor practice.
a. NLRB v. Truitt Mfg. Co. (1956) - When employer seeks to justify refusal of wage increase upon
economic basis, good-faith bargaining requires that upon request employer attempt to substantiate its
21
economic position w/ reasonable proof. Good-faith bargaining means that claims should be honest &
able to be reasonably proved.
b.
NLRB v. Acme Indust. Co. – duty to disclose financial info “unquestionably extends beyond period
of K negotiations & applies to labor-management relations during term of agreement.”
c.
Detroit Edison Co. v. NLRB (1979) - Duty to bargain collectively imposed upon employer by
§8(a)(5) includes duty to provide relevant info needed by union for proper performance of its duties as
employees’ bargaining representative.
(1) Held – Remedy selected by Bd (ordering employee to hand materials directly to union) does not
adequately protect security interests of the tests b/c no remedy if union violates that security
interest. No absolute rule that union interests in arguably relevant info must always predominate
over all other interests, however legitimate. Also, conditioned disclosure of test scores upon
consent of very employees whose grievance is being processed by union.
(2) Rationale – Union’s bare assertion that it needs info to process a grievance does not automatically
oblige employer to supply all info. Duty to supply info turns upon circumstances of particular
case.
3.
NLRB v. Ins Agents’ Int’l Union (Sup Ct, 1960) – Union does not commit unfair labor practice in
violation of §8(b)(3) during collective bargaining by simply putting economic pressure on employer to
yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere w/ employer’s
business. Such conduct does not evidence lack of good faith
a. Rule – § 8(b)(3) provides “It shall be unfair labor practice for labor organization … to refuse to
bargain collectively w/ employer, provided it is the representative of his employees.
b. Rationale – Presence of economic weapons in reserve & actual exercise on occasion by parties, is part
& parcel of system that Wagner & Taft-Hartley Acts have recognized.
4.
NLRB v. Katz (Sup Ct, 1962) - Employer violates duty to “bargain collectively” when, w/o first consulting
union, institutes changes regarding matters which are subjects of mandatory bargaining under § 8(d) &
which are in fact under discussion. Such activity circumvents duty to negotiate & frustrates objectives of
§ 8(a)(5) much as does flat refusal to negotiate. Bad faith may be inferred from certain circumstances w/o
considering party’s intent.
a. Rule – Duty to bargain collectively found in § 8(a)(5) is defined by § 8(d) as duty to “meet & confer
in good faith w/ respect to wages, hours, & other terms & conditions of employment.”
b. Rationale - NLRB is authorized to order cessation of behavior which is in effect a refusal to negotiate,
or which directly obstructs or inhibits actual process of discussion, or which reflects a cast of mind
against reaching agreement. Unilateral action by employer w/o prior discussion w/ union amounts to
refusal to negotiate about conditions of employment under negotiation & obstructs bargaining. It
follows that Bd may hold such unilateral action to be unfair labor practice in violation of § 8(a)(5) w/o
also finding employer guilty of overall subjective bad faith.
5.
Boulwarism – “Take it or leave it.”
a. NLRB v. General Electric – Employer says bargaining is waste of time, employer refuses to change
mind & tells union to take proposal or leave it. Proposal is not bad faith. Issue is whether employer’s
conduct in bargaining approach – not content of proposal– is bad faith. Bd says this is not good faith
bargaining – must play game of making outrageous proposals & engaging in lengthy negotiations.
b.
Boulwarism plays itself out today w/in negotiation process. Coming to negotiations & offering final
settlement first – “this is the high or low that my client will accept.”
c.
Bd looks at: (1) conduct inside negotiation room; (2) content of negotiation; (3) conduct outside
negotiation room. Violation of any three of these can lead to finding of bad faith.
d.
NLRB v. Montgomery Ward – duty to bargain “in good faith” is an obligation to participate actively
in deliberations so as to indicate a present intention to reach agreement.
C. Subjects of Collective Bargaining
1. Two views to worker participation in decisions regarding structuring manufacture of company’s products:
(a) Management contends that sound economic policy demands these decisions be made on basis of
efficient utilization of resources & that those who invest in company & those who manage it are best
equipped to make such decisions.
22
(b) Workers argue not only that they are able to contribute to informed decision-making on such matters
but also that they too have “invested” time & energy in enterprise so that proper to afford them
significant participation.
2.
Language of §§ 8(d) & 9(a) are read to command bargaining upon each subject embraced w/in critical
phrase – “rates of pay, wages, hours, & other conditions of employment” – but intention was probably not
to define scope of collective bargaining. These are mandatory bargaining subjects (required by statute)
– all others are permissive (may bargain if choose) if not illegal (may not bargain).
a. Two rules developed under this list:
(1) Duty to bargain extends to each & every subject embraced w/in statutory phrase, so that it is an
unfair labor practice for either employer or union to refuse to bargain about such subject upon
request by other.
(2) Other subjects falling outside phrase – “wages, hours & other terms & conditions of
employment” – are not statutory & there is no duty to bargain as to these.
b.
Three settings in which the task of classifying bargaining subjects as mandatory arises:
(1) unfair labor practices for employer refusing to bargain on a requested subject;
(2) employer makes unilateral change w/o consulting w/ union;
(3) employer or union demands other to concede to certain position as condition to reaching
agreement. Striking to enforce permissive terms of bargaining.
3.
NLRB v. Amer. Nat’l Ins. Co. (Sup Ct, 1952) - Ct rejects Bd’s finding that bargaining for a clause
proposed by employer was, per se, an unfair labor practice. Duty to bargain collectively is to be enforced
by good faith bargaining standards of § 8(d) to facts of each case rather than by prohibiting all employers
in every industry from bargaining for management functions clauses altogether b/c such clauses fall w/in
“other conditions” term of § 8(d).
a. Rule – Taft-Hartley Act retained good faith test of bargaining & contains express provision that
obligation to bargain collectively does not compel either party to agree to a proposal or require
making concessions. T/f, Bd may not, either directly or indirectly, compel concessions or judge
substantive terms of CBA.
4.
NLRB v. Wooster Division of Borg-Warner Corp. (Sup Ct, 1958) – (would not see today) Although
employer met good faith requirement as to mandatory bargaining, such good faith does not license
employer to refuse to agree based on some proposal which is not mandatory subject of bargaining.
a. Rule – Together, §§ 8(a)(5) & 8(d) establish employer’s & union’s obligation to bargain w/ each other
in good faith w/ respect to “wages, hours, & other terms & conditions of employment.” Duty limited
to those subjects & w/in that area neither party is legally obligated to yield. On other matters, though,
each party is free to bargain or not bargain & agree or not agree. Employer can insist on mandatory
term as condition of agreement but cannot insist on permissive terms.
b. Rationale – Does not mean that bargaining is confined to statutory subjects but it does bar employer
from proposing & insisting upon non-mandatory clauses for sake of not reaching agreement.
c. Reason Borg-Warner most likely requested a “ballot” clause - Most strike votes are taken in public
where union can manipulate vote by raising passions of employees before taking vote & can influence
vote by peer pressure w/ strategically placed supporters throughout crowd to urge other employees to
vote for strike.
d. Representation clause sought to include international union b/c of money – if suit arises under K, int’l
union has more money to pay damages than does the local chapter.
e. Prof ‘s suggestion – always reserve one mandatory term of bargaining as your breaking point. B/c
cannot condition your consent to agreement on permissive term. If permissive term is important to
you, raise it early & offer mandatory term as something to trade for permissive term. Don’t initially
get agreement on mandatory terms b/c leaves no bargaining position.
5.
Mandatory-Permissive Distinction
a. Bargaining subjects are divided into three categories:
(1) mandatory,
(2) permissive, &
(3) illegal – unfair labor practice to insist upon inclusion in K of an illegal provision or to use
economic force in support of such demand.
23
b.
Mandatory/permissive distinction made to determine: (1) whether party must bargain in good faith if
requested; (2) whether pertinent info must be disclosed; (3) whether unilateral action may be taken
w/o bargaining; & (4) whether insistence backed by economic force is lawful.
6.
Douds v. Int’l Longshoremen’s Assoc. – multi-employer bargaining unit. Union wanted to have same
collective bargaining agreement for all east & west coast ports. 2nd cir recognized importance of knowing
parties to K (which ports) but parties are not a mandatory term so demanding such as a condition to
agreement constitutes bargaining in bad faith.
7.
NLRB v. Detroit Resilient Floor Decorators Local Union – Union proposes provision for employer to
contribute to fund for marketing needs. Company agreed to clause but reserved right to challenge legality
of clause as mandatory. Did this to avoid strike & to continue in negotiations. Ct held clause permissive
& allowed employer remove it from agreement.
8.
Ford Motor Co v. NLRB (Sup Ct) – In plant food services & prices w/in scope of mandatory bargaining.
Employer raised price of soda in vending machines (in reaction to Coca-Cola raising employer’s price).
Mandatory term b/c prices affect employees’ take-home wages. More pay for soda, less money take
home. T/f employer had to negotiate w/ union before raising price of soda.
9.
Johnson-Bateman Co. v. Int’l Assoc. of Machinists – Drug-testing is mandatory subject.
10. Fibreboard v. NLRB (Sup Ct, 1964) – company found more cost effective to K-out jobs & shut down
division. Union hostility did not motivate decision but was merely economic. Bd found refusal to bargain
& ordered company to reinstate department, bring back employees, pay full backpay & bargain.
Employer’s argument – not “American way” to force me to stay in business. Sup Ct affirmed Bd’s order,
finding that contracting out of certain work falls w/in literal meaning of “terms & conditions of
employment” b/c such contracting out results in termination of employees. T/f employer cannot move out
one group of employees & bring in another group w/o bargaining.
a. 2 situations where employer could K-out:
(1) bargaining agreement is no longer in effect;
(2) negotiate into bargaining agreement to be able to K-out or past practice – have done it before w/o
union complaining. If parties ignore bargaining agreement, look to their actions – intent of
parties & not words of K is essential.
11. First Natl Maintenance Corp. v. NLRB (Sup Ct, 1981) – when employer goes out of business, need not
bargain that decision, but must bargain about effects of decision, such as severance packages. Sup Ct
reviewed & interpreted Fibreboard to require case-by-case balancing of employer’s need for
“unencumbered decision-making” against benefits to labor-management relations & bargaining process
from bargaining over particular management decision.
12. United Food & Commercial Workers, Local 150-A v. NLRB (Dubuque Packing Co.) (D.C.Cir., 1993) a. Rule – Under First Nat’l Maintenance Corp, employer’s decision to close part of its business is not
mandatory subject of bargaining. Under Fibreboard, replacement of union labor w/ subcontractor
workers is mandatory bargaining subject.
b. New test adopted by Bd on review here – Initially, burden on NLRB General Counsel to establish that
employer’s decision involved relocation of unit work unaccompanied by basic change in nature of
employer’s operation. If carries this burden, p/f that employer’s relocation decision is mandatory
subject of bargaining. Employer, then, may produce evidence rebutting p/f case by establishing that
work performed at new location varies significantlly from work performed at former plant,
establishing that work performed at former plant discontinued entirely & not moved to new location,
or establishing that employer’s decision involves change in scope & direction of operation.
Alternatively, employer may establish affirmative defense: (1) that labor costs were not factor in
decision; (2) that even if labor costs were factor, union could not have offered labor cost concessions
that could have changed employer’s decision to relocate. (Example of this today is moving company
to Mexico where wages are only $3 as opposed to minimum wage here).
c. Held – New standard adopted by Bd for evaluating claims is acceptable reading of NLRA & Sup Ct
precedents. Such standard applied to present case demonstrates that employer committed unfair labor
practice for relocating plant w/o bargaining w/ union.
24
d.
6.
Three layers of analysis involved in new test:
(1) Objective – show change - Category of entrepreneurial control – where objective differences
exist b/w old & new plants, an entrepreneurial decision is deemed to have been taken, &
employer permitted to relocate w/o negotiating.
(2) Subjective layer – whether labor costs were factor in employer’s relocation decision.
(3) Futility provision – permits employer to relocate w/o negotiating where union either would not
or could not offer sufficient concessions to change its decision.
Allied Chemical & Allied Workers v. Pittsburgh Plate Glass Co. (Sup Ct, 1971) - employer can make
mid-term change to passive terms of bargaining agreement.
a. NLRA does not include w/in scope of “workers” retired employees, b/c nowhere in Act’s history is
any evidence that retired workers are to be considered w/in ambits of collective-bargaining
obligations. Further, NLRA grants union representation status over employees in ABU. Retired
individuals are not members of such unit b/c appropriate employees are those “of the Employer’s
plant ... working on hourly rates, including group leaders who work hourly rates of pay.” Also,
common practice of including retirees in pension bargains cannot change law & make into bargaining
unit “employees” those who are not.
b.
Although third-party interests are relevant where they vitally affect terms & conditions of bargainingunit employees, such is not the case w/ retiree insurance.
c.
Employer did not commit unfair labor violation b/c such is prohibited only when it changes a
mandatory term rather than a permissive subject of bargaining, & retiree ins packages are not a
mandatory subject.
D. Role of the Strike & Third Party Impasse Resolution
1. Premises of Collective Bargaining & Role of Strike
a. Collective bargaining is system for fixing price of labor w/o gov regulation of whole structure of
wages & prices.
b.
2.
3.
Two factors make collective bargaining work:
(1) long negotiations over terms of CBA tend to bring about agreement or at least narrows
disagreement;
(2) strike – collective bargaining works only b/c there comes a time when both sides conclude that
the risks of losing through a strike are so great that compromise is cheaper than economic battle.
Facilitating Voluntary Agreements
a. Strike is to be used as last resort only, which encourages parties first to exhaust all attempts at direct
negotiations as well as third-party intervention in order to reach settlement which will reflect parties’
private interests.
b.
§ 8(d) – elaborate procedural requirements for modifying or terminating existing agreement.
- § 8(d)(1) – requires that any party desiring to terminate or modify existing CBA must serve
written notice on other party at least sixty days prior to expiration date of K.
- Party must offer to meet & confer w/ other party for purpose of negotiating new K or K
containing proposed modifications.
- § 8(d)(3) – w/in 30 days of submitting written notice, moving party must inform Federal
Mediation & Conciliation Service to mediate or conciliate the dispute. Conciliation or
mediation agency has purpose to bring parties to agreement on terms of K through use of
informed & creative persuasion.
- § 8(d)(4) – time limits for striking. 60-day cooling off period – Union may not strike to
terminate or change CBA w/o first giving employer 60-days’ notice & offering to negotiate.
Reasoning – prevents hasty strikes over K disagreements. Only required for strikes aimed at
terminating or modifying K.
c.
Pres has right to impanel Bd of inquiry to intervene in strikes that will imperil natl health or safety.
(1) United Steelworkers v. US – Ct limited role of courts under natl emergency provision to
determination of whether national health or safety is imperiled by strike.
Effect of Strike Upon Duty to Bargain
25
a.
Employer’s Duty – to bargain until (1) agreement reached; (2) genuine impasse develops; (3) br/ of
negotiations occurs w/o employer’s fault. Unless strike violates K or law, strike does not
automatically relieve employer of duty to bargain.
(1) NLRB v. Ins Agents Int’l Union – union’s resort during negotiations to peaceful work stoppage
– even if regarded as unconventional, peculiarly disruptive & indeed obnoxious by common
standards – does not in itself violate duty to bargain in good faith.
b.
No duty to bargain w/ union over terms on which strike replacements are hired.
(1) Land Air Delivery, Inc. v. NLRB (D.C.C., 1988) - Whether employer must bargain w/ union
before subcontracting work, even during economic strike.
(a) Rule – Individual contractors not covered by NLRA. Employer, absent economic strike, is
obligated to bargain w/ union before deciding to subcontract. Employer faced w/ economic
strike is entitled to replace strikers permanently w/ new employees. Further, employer may
not be obliged to bargain w/ union about permanent subcontracting during strike when
subcontracting is necessary to business purpose of keeping plant continuously in operation &
time of decision is of essence. When employer hires permanent replacement workers rather
than individual contractors, strikers have right to first refusal when position becomes
available & after strikers voluntarily offer to return to work.
(b) Held – B/c employer did not demonstrate economic necessity for hiring permanent
subcontractors as strike replacements, & b/c significant difference b/w replacing strikers w/
permanent employees & replacing them w/ permanent subcontractors, employer was
required to bargain w/ union over permanent subcontracted replacements. Failure to bargain
violates §§ 8(a)(1), (3), & (5).
(c) Rationale – Distinction b/w replacing strikers w/ permanent employees & replacing them w/
permanent subcontractors – striking union may be able to gain allegiance of some
replacement employees who, combined w/ strikers, could provide union w/ continued
majority support but it does not help union to gain support of subcontracted replacements.
E. Bargaining Remedies
1. H.K. Porter Co. v. NLRB (Sup Ct, 1970) – Justice Black, who wrote this opinion, is very liberal & prolabor. Held – While Bd has power under NLRA to require employers & employees to negotiate, it is w/o
power to compel employer or union to agree to any substantive contractual provision of CBA.
a. Rule – Bd may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon
substantive terms of collective bargaining agreements. § 8(d) was Congressional attempt to prevent
Bd from controlling terms of CBA.
2.
Ex-Cell-O Corp (NLRB, 1970) - Trial examiner does not have power under NLRA to issue compensatory
remedy requiring employer to make employees whole for any monetary losses suffered on account of
employer’s unlawful refusal to bargain b/c § 10(c) does not contemplate or permit damage awards in form
of punishment.
a. Rule – § 10(c) of NLRA directs Bd to order person found to have committed unfair labor practice to
cease & desist & “to take such affirmative action including reinstatement of employees w/ or w/o
back pay, as will effectuate policies of Act.”
b. Rationale – Difference b/w § 8(a)(3) & § 8(a)(5) - someone loses a job through 8(a)(3) violation.
Compensatory damages merely return that worker to status quo. In § 8(a)(5), no one loses a job & do
not know what status quo would be so cannot justify compensatory damages on speculative return to
status quo.
3.
Int’l Union of Elec., Radio & Mach. Workers AFL-CIO v. NLRB (D.C. Cir, 1974) – impossibility to
calculate make-whole remedy justifies not awarding compensatory damages.
IV. Part Four - Strikes, Picketing & Boycotts
- Three major issues in this section:
(1) Limitations imposed by NLRA upon employer’s right to discipline or otherwise interfere w/ employees
who engage in concerted activities;
(2) constitutional limitations on power of state & federal govs to regulate strikes, picketing & boycotts; &
(3) legality of these concerted activities under NLRA.
A. Rights of Employee Protestors Under NLRA
1. Protected & Unprotected Concerted Activity
26
a.
§7 grants employees right to engage in concerted activity – this language held to guarantee right to
strike & picket. Not necessary to have union sponsoring concerted activity, or anywhere on scene in
order that such activity be protected as “concerted activities for mutual aid or protection.”
(1) Key phrase in collective bargaining – “concerted and protected activity” – does not require
presence of labor union.
b.
§13 expressly grants employees right to strike, subject to certain qualifications, & by implication
grants right to picket.
c.
NLRB v. City Disposal Systems, Inc. (Sup Ct, 1984) – Union refused to file unfair labor practice
charge on employee’s behalf so employee filed it himself.
(1) Rule – § 7 provides that “employees shall have right to join or assist labor organizations, to
bargain collectively through representatives of their own choosing & to engage in other concerted
activities for purpose of collective bargaining or other mutual aid or protection.”
(2) Held – One person can engage in concerted activity as long as such activity is done in interest of
others & activity is protected.
(3) Test for whether assertion of right under agreement is sufficient:
(a) Requirement that employee have a right;
(b) Assertion – whether knowledgeable or not;
(c) Both objective & subjective – Objective reasonable belief that employer’s actions violated
employee’s right; Subjective honest belief of such violation.
(4) Rationale – Joining union individually is considered concerted, protected activity b/c one person
who joins union acts in interest of entire union & strengthens entire union by his individual
membership.
d.
NLRB v. J. Weingarten, Inc.– employee could not be coerced into giving up his right to presence of
steward at interrogation w/ employer. Bd held that employer’s exertion of pressure on employee to
submit to interview, which she had reasonable fear would result in discipline, constituted coercion of
employee in exercise of “concerted activities … for mutual aid or protection.” Assistance of union
steward is to safeguard not only particular employee’s interest, but also interests of entire bargaining
unit by exercising vigilance to make certain that employer does not initiate or continue practice of
imposing punishment unjustly.
(1) Way to get around this is for employer not to “discuss” allegations w/ employee but for employer
to just discipline employee. Employer should receive sufficient info from interrogating other
employees so that he has reasonable grounds for discipline w/o asking employee’s side of story.
(2) Justification for steward’s presence – Protecting individual protects collective bargaining process.
e.
Eastex, Inc. v. NLRB (Sup Ct, 1978) – Employees wished to circulate newsletter in nonworking areas
during nonworking time to urge employees to support union. Newsletter discussed the state’s “right
to work” statute & increasing minimum wage. Employer refused employee requests to circulate
newsletter & Union filed unfair labor practice charge. Employer claims it did not commit an unfair
labor practice b/c distribution of newsletter is not w/in “mutual aid or protection” language b/c it does
not relate to a specific dispute b/w employees & employer over issue that employer has right or power
to affect.
(1) Rule – “Mutual aid or protection” clause protects employees from retaliation by their
employers when they seek to improve working conditions through resort to administrative &
judicial forums. Employees’ appeals to legislators to protect their interests as employees are w/in
scope of this clause.
(2) Held – As to right to work statute info, Ct deferred to Bd’s finding that such info was protected
b/c union security is “central to the union concept of strength through solidarity” & “a mandatory
subject of bargaining in other than right-to-work states.” As to minimum wage info, Sup Ct
found that minimum wages effect employees enough indirectly so that such info is for mutual aid
& protection of employees.
f.
“Unprotected” Concerted Activity – Even though activity may be “concerted” & it may clearly be
for “mutual aid or protection,” it does not necessarily follow that such activity is immune from
discipline, for it may still be unprotected. Activity has been held unprotected when employee conduct
is either in violation of law or is so fundamentally contrary to dictates of employment relationship as
to warrant characterization as “indefensible,” or “reprehensible” or “disloyal.” Concerted activity
falls outside § 7 if its objective is contrary to terms or spirit of NLRA or allied federal legislation.
27
(1) Jefferson Standard Broadcasting Co. Case (Sup Ct, 1953) - Employees w/in unit launched
attack on quality of company’s television broadcasts, in form of handbills past out w/in
community. Handbills did not reference union, labor dispute or collective bargaining. Employer
discharged some of employees w/in unit for sponsoring handbills.
(a) Rule – § 10(c) of Taft-Hartley Act provides that “No order of the Bd shall require
reinstatement of any individual as an employee who has been suspended or discharged, or
the payment to him of back pay, if such individual was suspended or discharged for cause.”
(b) Held - Employees should not be reinstated b/c their materials are not protected b/c it has
nothing to do w/ bargaining agreement. Instead, material merely constitutes disloyalty to
employer, which is not a protected activity. This handout attacked employer w/ no attempt
towards furthering resolution of bargaining dispute.
(2) Illegal Strikes – following are illegal under NLRA:
(a) primary activity:
i. violent strikes
ii. strikes during 60-day cooling of period of §8(d)
iii. partial or intermittent strikes
iv. strikes seeking to compel discrimination against certain employees [§8(b)(2)]
v. strikes seeking to compel featherbededing agreements [§8(b)(6)]
(b) secondary or primary activity
i. strikes seeking to coerce employer to execute agreement containing “hot cargo”
provisions [§8(b)(4)(A)]
ii. strikes seeking to coerce recognition of bargaining agent in defiance of certification
[§8(b)(4)(B)]
2.
Employer Responses to Concerted Activity
a. Workplace Fairness Act (1991) – Amendment to NLRA, to not allow employers to hire permanent
replacements during strikes.
(1) Act was not going to pass House. B/c federal contractors are subject to executive orders, Clinton
attempted to add essentially the workplace fairness act into executive order which incorporated
anti-discrimination statutes for contractors & gave affirmative duty to eliminate discrimination.
This attempt was overruled.
(2) In Congress now – Dept of Labor attempting to issue broader amendment to executive order.
Proposed criteria – whether “clear record” as to discrimination will hinder getting federal K. This
makes mere accusations taint the “clean record” – even false accusations.
(a) Prof Court told stories about totally false accusations that he has encountered in his practice.
False accusations of quid quo pro sex discrimination – a woman falsely claimed that she was
required to have sex for promotions. This demonstrates the problem w/ making mere
accusations have any effect upon the workplace.
b.
NLRB v. Mackay Radio & Telegraph Co. (Sup Ct, 1938) - B/c strikers retain their position as
employees, any discrimination against them in their reinstatement or failure to reinstate is prohibited
by § 8. Employer could have refused reinstatement on grounds of skill or ability. But the finding that
employer prepared & used a list w/ purpose of discrimination against those employees most active in
union constitutes an unfair labor practice.
(1) Rationale – It was not an unfair labor practice to replace striking employees w/ others. Not an
unfair labor practice for the employer to offer that these replacement continue as permanent
workers. Not an unfair labor practice for employer to restate only so many strikers as there were
vacant positions.
c.
NLRB v. Erie Resistor Corp. (Sup Ct, 1963) – It is unfair labor practice for employer to offer 20
years of super-seniority to strikebreakers & permanent replacements of strikers.
(1) Rule – Situations which appear on their face to be discriminatory conduct by employer but for
which employer has legitimate reasons present situations of weighing interests of employees in
concerted activity against interest of employer in operating business & of balancing in light of
Act & its policy the intended consequences upon employee rights against the business ends to be
served by employer’s conduct.
d.
NLRB v. Truck Drivers Local Union – before Erie, Sup Ct upheld defensive multi-employer
lockouts as legitimate employer response to union concerted activity. Ct reasoned that, “Although
28
Act protects right of employees to strike in support of their demands, this protection is not so absolute
as to deny self-help by employers when legitimate interests of employees & employers collide…
Ultimate problem is balancing conflicting legitimate interests.
e.
American Ship Building Co. v. NLRB (Sup Ct, 1965) - B/c employer’s use of lock-out solely in
support of legitimate bargaining position is not in any way inconsistent w/ right to bargain collectively
or w/ right to strike, employer did not violate § 8(a)(1). B/c employer’s only intention for lock-out
was to bring about settlement of labor dispute on favorable terms, employer did not violate § 8(a)(3).
Accordingly, employer violates neither § 8(a)(1) nor § 8(a)(3) when, after reaching bargaining
impasse, employer temporarily shuts down plant & lays off employees for sole purpose of bringing
economic pressure to bear in support of his legitimate bargaining position.
(1) § 8(a)(1) – To establish violation of § 8(a)(1), must show that employer interfered w/, restrained,
or coerced employees in exercise of some right protected by § 7. Lock-out may dissuade
employees from adhering to position they initially adopted in bargaining, but right to bargain
collectively does not entail any “right” to insist on one’s position free from economic
disadvantage.
(2) § 8(a)(3) – prohibits discrimination in regard to tenure or other employment conditions to
discourage union membership. Finding of violation under this section turns on employer’s
motivation. Lock-out does not carry w/ it implication that employer acted to discourage union
membership or otherwise discriminate against union members. Purpose of lock-out was to bring
pressure upon union to modify demands.
(3) Strikes & layoffs are meant to have co-existence – extension of one another.
f.
NLRB v. Great Dane Trailers, Inc. (Sup Ct, 1967) - While on strike certain employees demanded
employer honor their accrued vacation pay. Employer refused on basis that its contractual obligations
under CBA were terminated by strike. However, subsequently honored vacation time to certain nonstriking workers, claiming that it issued new vacation policy.
(1) Rule – § 8(a)(3) violations require finding discrimination & resulting discouragement of union
membership.
(2) Held – B/c some employees who met paid vacation requirements were given their benefits &
those employees who met requirements but who also engaged in concerted efforts were denied
their benefits, Ct found discrimination capable of discouraging membership in labor organization.
g.
What cts look at to determine whether employer had unlawful animus to discourage union
membership:
(1) Conduct considered inherently destructive to § 7 rights;
(2) If adverse affect is “comparatively slight,” then must prove anti-union hostility but employer
must first come forward w/ legitimate business justification. Burden of proof rests w/ employer
to prove legitimate business practice.
h.
Laidlaw Corp. (NLRB, 1968) – When position became vacant, Massey, an economic striker, was
available & entitled to full reinstatement unless legitimate & substantial business justifications for
failure of complete reinstatement. Offering employment as new employee or as employee w/ less
rights than accorded by full reinstatement where such offer is unrelated to economic needs & is meant
only to penalize Massey for engaging in concerted activity, was inherently destructive of employee
interests & violated §§ 8(a)(1) & (3).
(1) Rule – By virtue of § 2(3) of NLRA, individual whose work ceases during labor dispute remains
an employee if he has not obtained other regular or substantially equivalent work. Employer
refusing to reinstate strikers must show action due to legitimate & substantial business
justification.
(2) Ct must engage in balancing test, weighing interest of employee to honor strike against
employer’s interest in replacing or disciplining striking employees or reverting to self-help.
(3) Economic strike – don’t have to rehire strikers; Unfair labor practice strike – can only hire
temporary replacement workers during strike & must reinstate strikers.
29
i.
TransWorld Airlines v. Ind Federation of Flight Attendants – employer not required at cessation of
strike to restore strikers w/ greater seniority to positions held by junior employees who chose not to
honor strike. Perhaps discrimination but also legitimate business reason to put pressure on strikers to
return to work.
j.
Employee Refusals to Cross Picket Lines (1) Metropolitan Edison Co. v. NLRB (Sup Ct, 1983) – Employer may not impose more severe
discipline on union officers than on union members for violating no-strike clause, unless K
expressly waives protection for officers or establishes duty on officers to take steps to prevent
unlawful work stoppages. To fulfill such duty, employer can only require union officer take
reasonable efforts to end strike.
(a) Rule – Disciplining union officials more severely affects their protected interests but only
constitutes §8(a)(3) violation if employer is unable to present legitimate explanation for
conduct. If employer can do so, Bd must strike proper balance b/w asserted business
justifications & invasion of employee rights. Further, union may waive its statutorily
protected rights. Such waiver promotes labor peace & clearly falls w/in range of
reasonableness accorded bargaining representatives. Waiver imposes no constraints on
employees’ ability to choose union representative. Ct will not infer waiver from general
contractual provision unless explicitly stated.
(b) Rationale – Right protected is not limited to joining union but also covers fully participating
in union activities, including holding union office.
k.
Unfair Labor Practice Strikes – Bd seems to treat unfair labor practice strikes more favorably than
economic strikes concerning reinstatement of workers & concerning their rights to vote in
representation elections held during strikes. Privilege of economic striker to participate in election
expires 12 months after commencement of strike but does not lapse for strikers in unfair labor practice
strike.
(1) Important, then, to determine “cause” of strike – whether economic or unfair labor practice.
(2) “Conversion” doctrine – where strike is initiated over bargaining demands or demands over
recognition (economic strike) but, during strike, employer commits unfair labor practice, strike
will be held to “convert” from economic strike to unfair labor practice strike if employer’s action
prolonged strike beyond date it would have terminated in due course as economic strike.
(a) Strikers who are permanently replaced during economic phase of strike are not entitled to
immediate reinstatement but strikers replaced after date of conversion are.
(3) Mastro Plastics Corp. (Sup Ct) – strike is precipitated by unlawful discharge so that compliance
w/ 60-day waiting period not necessary & participation in strike did not expose strikers to loss-ofstatus provision of § 8(d). Also, conventional no-strike clause in labor K should be read to bar
only economic strikers. If employees strike b/c of unfair labor practice & strike itself not
unlawful, strikers entitled to reinstatement during or after strike, even if necessary to discharge
replacements hired during strike.
(a) Mastro Plastics doctrine refined by NLRB so that only strikes protesting serious unfair labor
practices are entitled to foregoing protections.
(4) Another distinction b/w unfair practice & economic strikes – although economic striker who
engages in unprotected activity & is discharged cannot secure reinstatement, Bd has power to
reinstate striker discharged for unprotected activity when participating in unfair labor practice
strike.
(a) NLRB v. Thayer Co – Bd, in determining whether reinstatement would effectuate policies of
act, must balance severity of employer’s unfair labor practice (which provoked the strike)
against whatever employee misconduct may have occurred during strike.
(b) Kohler Co. – employee misconduct (engaging in unprotected activity) does not automatically
preclude compulsory reinstatement b/c: (1) employer’s antecedent unfair labor practice may
have been so blatant to provoke employees’ action; (2) reinstatement is only sanction that
prevents employer from benefiting from unfair labor practice of discharging striking
workers.
(c) Clear Pine Mouldings (1984) – rejected Thayer-Kohler approach & adopted objective test to
govern employee threats – “whether misconduct is such that under circumstances existing, it
30
may reasonably tend to coerce or intimidate employees in exercise of rights protected under
Act.” Rejected previous balancing test – “Nothing in statute to support notion that striking
employees are free to engage in violence or misconduct in proportion to individual estimates
of severity to employer’s unfair labor practice.”
B. Constitutional Limitations on Gov Regulation
1. Two constitutional doctrines affect power of federal or state govs to restrict use of concerted action to
enforce demands of labor union against employer, other employees or competing unions:
a. due process of 5th & 14th Amendments – guarantee that no one shall be deprived of “life, liberty
or property w/o due process of law.”
b. 1st Amendment freedom of communication
2.
5th & 14th Amendments
a. Dorchy v. Kansas (Sup Ct, 1926) – Ct held right to conduct business (whether a liberty or
property) is valued & interfering w/ business w/o just cause is unlawful. Neither common law
nor 14th Amendment confers absolute right to strike. Ct found strike in question not protected by
Const b/c it did not involve controversy over wages, hours or conditions of labor, discipline of
employee, or employment of nonunion labor; nor was it sympathetic strike in aid of others
engaged in controversy. Did not discuss in class.
(1) Neither Dorchy nor any other opinion has discussed parameters for strikes that would enjoy
constitutional protection.
b.
United Federation of Postal Clerks v. Blount– upheld blanket statutory ban upon strikes by fed
employees. Right to strike in private sector is given by fed legislation, not constitution, & denial
of right of public employees strike is rooted in public interest & historical tradition. Public
employees do have constitutional right to organize in labor unions.
c.
Int’l Broth. Of Teamsters, Local 695 v. Vogt, Inc. (Sup Ct, 1957) – Mere fact of picketing does
not automatically justify its restraint w/o investigation into conduct & purposes. Neither state cts
nor legislatures can enact blanket prohibitions against picketing. Picketing for unlawful objective
is not protected, even if carried on in peaceful manner.
(1) Rule – A State, in enforcing some public policy, whether of its criminal or civil law, &
whether announced by legislature or by cts, can constitutionally enjoin peaceful picketing
aimed at preventing effectuation of that policy. Thornhill v. Alabama – held
unconstitutional a state statute that had been applied to ban all picketing & broadly
assimilated peaceful picketing in general to freedom of speech & as such protected against
abridgment by 14th Amend. Constitutional protection afforded picketing depends upon
purpose for which it is issued & manner carried out. To be protected, must be conducted in
peaceful manner & for lawful objective.
(2) Dissent – Where no rioting, no mass picketing, no violence, no disorder, no fights, no
coercion – indeed nothing but speech – the principles announced in Thornhill should give
advocacy of one side of dispute First Amendment protection.
d.
Int’l Longshoremen’s Assoc. v. Allied Int’l, Inc. (Sup Ct, 1982) – In response to political
situation in Russia, union ordered union members to stop handling cargo coming from or going to
Soviet Union. Sup Ct held this was not a political boycott protected by free speech but was an
illegal secondary boycott.
e.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council (Sup Ct,
1988) – §8(b)(4)(ii)(B) held to permit union to distribute handbills at shopping mall urging
customers not to patronize mall tenants b/c of labor dispute b/w union & construction company
building department store, provided no violence, picketing, patrolling, or intimidation.
31
(1) Rule – § 8(b)(4) of NLRA outlaws secondary boycott that takes form of inducing employees
of neutral or secondary employer to engage in work stoppage. Also forbids union to
“threaten, coerce, or restrain any person” who is neutral or secondary employee, which is
interpreted by Sup Ct to ban picketing at secondary site directed to customers there. The
section, though, protects “publicity, other than picketing, for purpose of truthfully advising
public, including customers, that product or products are produced by employer w/ whom
labor union ha primary dispute.”
(2) Rationale – Handbilling is distinct from picketing b/c handbills depend entirely on persuasive
force of idea & picketing is a mixture of conduct & communication which has purpose of
exerting influences.
f.
Hudgens v. NLRB (Sup Ct, 1976) – Union members at warehouse of Butler Shoe Company
picketed warehouse & Butler Shoe Store in shopping mall. Mall manager threatened picketers w/
criminal trespass if they did not leave. Unfair labor practice violation filed against mall manager,
not employer.
(1) Rule – Property will be treated as public & accessible to protestors if there is nothing to
distinguish it from any other town or shopping center except fact that title to property is held
by private corp rather than by municipal. This originally was held to apply to corporateowned towns & shopping malls but application to malls was subsequently overturned.
(2) Held – Short of “company town” situation, no constitutional right to enter private property to
engage in speech.
(3) Rationale – Case can be evaluated under three sources: (1) NLRA; (2) freedom of speech;
(3) hybrid of the two. Under NLRA, Bd’s task is to resolve conflicts b/w § 7 rights & private
property rights & to seek a proper accommodation b/w the two. This task is in contrast to
duty of ct in applying First Amendment, which requires that expression must not be
restricted by gov “b/c of its message, its ideas, its subject matter or its content.”
g.
Hudgens (on remand) – Bd held threats violated § 8(a)(1).
(1) Balancing test –
(a) economic strike deserves at least equal deference to protections afforded organizational
activity;
(b) situation where Butler employees picketing & intended audience is not only other
employees but also potential customers;
(c) not picketing on Butler’s property but on private mall property where the mall owner
was not a “neutral bystander” but had a financial interest in success of its store tenants.
In finding mall owner’s property rights must succumb to picketers’ rights, simply
subjecting mall businesses to same risk of § 7 activity as similar businesses fronting
public sidewalks.
h.
Third party labor violations, such as mall manager in Hudgens do not trigger any action against
employer. These third party violations also go on their record in event that third party is ever
unionized & subjected to subsequent unfair labor practice charges.
i.
Jean Country– Bd adopted three-prong test weighing: (1) strength of § 7 interest, (2) strength of
property interest, & (3) availability of alternative means to communicate union’s message to
intended audience.
(1) Lechmere Inc. v. NLRB – repudiated Jeans test as far as it applies to access to private
property by non-employee union messengers. Balancing test appropriate only where nonemployee organizers had no reasonable access to employees other than on company property
– usually just those rare instances where employees work in geographically remote or
inaccessible locations.
C. National Labor Relations Act
1. Organizational & Recognition Picketing – Unions use work stoppages & picketing as means of
pressuring employees to join & employers to bargain.
a. Strikes coercing recognition despite prior cert of rival union - §8(b)(4)(C) makes unfair labor
practice to call strike or induce work stoppage against employer to obtain recognition as
bargaining agent where another union certified.
(1) requirements to establish violation of §8(b)(4)(C):
32
(a) valid, current certified union – presumption of cert conclusive one year after election.
§ 8(b)(4)(C) bars coercion until cert officially vacated by NLRB.
(b) Unlawful tactics – include inducement of strikes thru visits, letters to employees, or
picketing. If picketing, not intended to induce work stoppage, no violation.
(c) Prohibited objective – objective of coercive activity must be recognition of uncertified
union in order to violate §8(b)(4)(C). Recognition as partial objective violates §, as does
recognition of portion of employees in ABU.
(2) Exempt conduct – not unlawful under §8(b)(4)(C):
(a) refusal to cross picket line – employees may refuse to cross at place of business of
employer other than own, where strike approved by union entitled to recognition by that
employer.
(b) Publicity concerning product – union may publicize that product is produced by
employer w/ whom has primary dispute & is distributed by another party.
b.
C.S. Smith Met Market Co. v. Lyons – laborers, as much as businessmen, are free, in absence of
legislation, “to inflict damage in struggle of competition so long as they abstain from violence,
fraud or other unlawful conduct.” Work stoppages, picketing & boycotts may cause economic
loss but only if inflicted in pursuit of legally justifiable object. Further, union members may have
substantial interest in employment relations of an employer although none of them is or ever has
been employed by him. Employment relations of every employer affect working conditions &
bargaining power of employees throughout industry in which he competes. Considered interests
of employer & employee as well as union and competitors.
c.
Varying issues involved in recognition picketing situations:
(1) Employer seeks to avoid interruption of business & to maintain union-free environment;
(2) Employees have interest in hearing union’s message but also in making uncoerced decision
regarding unionization & in interrupted employment;
(3) Public has interest in learning facts of labor dispute & in continued operation of business;
(4) picketing union seeks membership & to achieve bargaining status.
d.
§ 8(b)(4) – when union can & cannot engage in picketing for purposes of recognition:
§ 8(b)(4)(C) – no strikes or picketing when another union is certified & in place. If voluntarily
recognized w/o election, union is not protected from competitive union conducting recognition
picketing. If “valid” election held & employer wins, 12-month ban on picketing applies to
organizational picketing.
e.
Hod Carriers Local 840 – Blinne Construction (NLRB, 1962) – picketing for multiple purposes.
(1) Rule – § 8(b)(7) does not proscribe all picketing for recognition or organization. A
“currently certified” union may picket for recognition or organization of employees for
whom it is certified. Even unions not certified are barred from recognition picketing in only
three general areas:
(a) § 8(b)(7)(A) – situations where another union has been lawfully recognized & question
concerning representation cannot be appropriately raised.
(b) § 8(b)(7)(B) – situations where, w/in preceding 12 months, “valid election” was held.
(c) § 8(b)(7)(C) – even where such picketing is not barred by (A) or (B) & is otherwise
permissible, picketing is limited to reasonable time & is not to exceed 30 days unless
representation petition is filed prior to expiration of that period. However no time
limitation under (C) where picketing merely advises public that employer does not
employ members of, or have K w/, union unless effect of such picketing is to halt
pickups or deliveries or performance of services. After file election petition, union can
continue picketing. Expedited election process shields employers & employees from
adverse affects of long picket.
(2) Held – (1) Difference b/w “currently certified” & majority status, so that § 8(b)(7) does not
apply to unions w/ majority status where they are not “currently certifed” by Bd. (2) Unfair
labor practice claims are no defense to § 8(b)(7)(C) charges b/c Congress intended that,
except to limited extent set forth in first proviso, Bd is to follow tried & familiar procedures
it typically follows in representation cases where unfair labor practice charges are filed .
f.
Union hiring hall – employment agency that will fill jobs w/ union members – mostly skilled
workers. The hiring hall either conducts an apprentice program or training workshop. Union
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bargains for a provision in the collective bargaining agreement requiring the union hall to become
employer’s exclusive source of new employees.
g.
NLRB v. Local 3 (2nd Cir, 1963) – GSA remodeling post office. Local 3 picketed b/c GSA chose
contractor represented by different union. Picketed front, side & back (loading dock) entrances.
(1) Look at object & purpose of picketing. Permissible picketing – disseminating info to
inform public as individuals about dispute. “Advising the public” – statutory language
pertinent.
(2) Two distinct types of picketing:
(a) signal picketing – influence other union members not to render services to employer.
Purpose is economic pressure.
(b) Publicity picketing – sole purpose is informational.
(3) Under statute, must be concerned w/ subjective intent of picketing & must also consider
circumstances.
h.
Two provisos of § 8(b)(7)(C) – (allow extension of time for picketing)
(1) expedited election (discussed in Hod Carriers);
(2) informational picketing – look at effect union intends from picketing?
(a) Local Jt. Exec. Bd. Of Hotel Employees (1961, Bd) - picketing, in order to be sheltered
by proviso, need not be “purely informational” & free of any recognitional object so that
even recognition picketing may be validated if requirements of proviso otherwise met.
The two conditions recognition picketing must meet in order to be excluded from its
prohibition on such picketing are: (1) truthfully advising public & consumers that
employer does not employ members of, or have K w/, labor organization; (2) “unless an
effect of such picketing is to induce any individual employed by any other person in
course of his employment not to pick up, deliver, or transport any goods or not to
perform any services.”
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