LABOR LAW
PROFESSOR STEINFELD
SPRING 2007
I.
The Evolution of Labor Relations Law
A. The Labor Problem and the Law
B. The Labor Injunction
Hostility to union activities
Unions regarded as criminal conspiracies – illegal deprivation of employer’s property or
interference with contracts.
Narrowed use when courts required employer show union was guilty of either an
illegal purpose or the use of an illegal means (violence).
Courts accepted that employees would be permitted to strike for their wages. Needed
another justification.
Permanent Injunction - Vegelahn v. Guntner
RULE: Peaceful picketing may be permanently enjoined.
a. Famous common law case – Mass. (1896)
b. TRO (injunction pendente lite) issued restraining union members from
interfering with P’s business by patrolling sidewalk or street in front or
around business premises to prevent scabs from entering.
c. D's used persuasion and threats of violence to prevent other workers
from crossing the picket line.
d. Ds conspired to prevent Ps from getting workmen, from carrying on
business until adopted schedule of business agreeable to the union.
e. Issue - May peaceful picketing be permanently enjoined? YES.
f. Opinion:
i.
Allen: patrol was unlawful interference with the rights of employer
and employed;
 Employer has right to engage all persons who are willing to
work for him at such prices as may be mutually agreed upon.
 Employed or seeking employment have corresponding right
to enter into or remain in the employment of any person
willing to employ them.
 Intimidation not limited to threats of violence or physical
injury to persons or property; includes persuasion.
ii. Holmes’s Dissent: Picket line isn’t automatically threatening;
workers publicizing their dispute with management. Shouldn’t be
unlawful to do in a group what’s lawful for one man to do alone.
Free Competition Doctrine: Court allows free competition
between businesses even when it resulted in an economic loss for
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one of the businesses, the court should also extend an analogous
right to engage in free competition through peaceful picketing to
employees as well.
g. Analysis: look at the OBJECTIVE then MEANS. Even when the
"ends" are lawful, if the "means" employed are unlawful the activity will
be enjoined.
Ends or purposes test - Plant v. Woods
RULE: Urging employers to persuade their employees to join a particular
union constitutes an enjoinable conspiracy, where there are not direct
threats of force or strikes.
a. Mass. (1900)
b. Union A (P) broke away from union B (D). D union told employer to
persuade P's members to rejoin D, communicating the idea to employer
that there would be trouble unless P's members rejoined.
c. P sued to enjoin D on theory that D's conduct constituted an unlawful
conspiracy.
d. Issue - Does urging employers to persuade their employees to join a
particular union constitute an enjoinable conspiracy, where there are no
direct threats of force or strikes? YES.
e. Opinion:
i.
Majority: Although workers may combine for some purposes, the
facts here indicate a highly coercive situation in which employers
were intimidated into persuading their employees to join a
particular union.
 Such conduct limits the freedom of both employer and
employee. It is not justified as "trade competition" and
should therefore be enjoined.
ii.
Dissent (Holmes): While the immediate purpose was not to raise
wages, the ultimate purpose was to achieve enough strength to
impose a higher wage scale. Thus the activities employed by D in
this context were necessary and proper.
 The majority has recognized that the organization of workers
to obtain power in order to better their economic position is
permissible as long as the end or purpose is good and the
means used are lawful.
f. Comment: Other situations where the objectives were deemed unlawful:
i.
Striking and picketing for the purposes of bargaining while the
company's employees were under one-year employment contracts;
ii.
A customer boycott to induce the employer not to use labor-saving
machinery; and
iii.
A strike to force a contractor to allow members of a striking union
to perform work already assigned to member of another union.
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C. Antitrust Laws
Sherman Act (1890): Congress declared unlawful “every contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several states or with foreign
nations.”
a. violations punishable as federal crimes, AG authorized to instituted
injunction proceedings, and persons injured in the course of business
given right to sue civilly for treble damages.
b. What it does:
 Makes it a crime to restrain interstate commerce.
 Crime to attempt to monopolize.
 Makes an injunction available ONLY if the action is brought by the
Attorney General.
 For private actions, only damages are available, not an injunction Section 7
c. objective was elimination of agreements between manufacturers or
suppliers to fix prices or regulate the supply of goods, but applied more
often to labor unions than to business corporations.
Sherman Act applied - Lowe v. Lawlor (Danbury Hatters) (1908)
RULE: Union activity falls within the proscription of federal antitrust
laws.
a. Lowe (P), unorganized hat manufacturers, brought suit against Lawlor
(D), United Hatters of North America, the union that represented
employees at 70 out of 82 hat manufacturers, in the country.
b. Manufacturer in CT hired non-union labor and would sell hats in NY more
cheaply, which posed a threat to shops that had already unionized.
c. Union (1) staged a strike in CT and (2) called a boycott of the wholesalers
and retailers who bought hats from CT manufacturer.
d. P's claim that D's actions constituted interference in interstate commerce
and thus they were entitled to damages under the Sherman Antitrust Act.
e. Opinion:
i.
Provisions of Sherman Act applicable to union activities, and, to
degree that unions combine or conspire to restrain interstate trade,
they will be liable for treble damages under the antitrust laws.
f. Comment: This ruling NO LONGER APPLIES. Was abrogated by
statute and case law - significant because significant hurdle for growth of
unions.
Local Strikes - Coronado Coal Co. v. United Mine Workers (1925)
RULE: If a strike has a "local motive" (meaning no interstate commerce
component - concerned with local wages/working conditions), it falls
outside of the gambit of the Sherman Act.
a. P coal company shut down mine with intention of reopening as non-union
shop. Workers revolted, causing property damage, personal injuries, two
deaths.
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b. P sued under the Sherman Act, claiming that a motive of the strike was to
"restrain or control the supply (of coal) entering and moving in interstate
commerce or the price."
c. On remand and retrial, evidence was produced indicating that the intent of
the strike wasn't merely local, but rather involved an intent to interfere
with interstate commerce. Thus, the Sherman Act was implicated and the
union was ordered to pay damages.
d. So long as its not directly aimed at raising the price of the
commodity but rather to increase labor standards - its not in
violation of the Sherman Act.
Clayton Act (1914): Intent of Act was primarily anti-trust but included two provisions
favoring labor. Goal was to fix problems arising out of cases resulting from Sherman Act
and to reverse Lowe. Provisions of Clayton Act were rendered impotent by a series of
Supreme Court decisions.
a. Labor of a human being is not a commodity or article of commerce – this
presents problems in applying Antitrust Acts to unions (Section 6).
b. Objectives – Normal objects of labor organizations are legitimate:
“nothing in the antitrust acts shall be construed to forbid members from
lawfully carrying out their legitimate objective” Mere existence of labor
union does not constitute a conspiracy, rather questions arise as to what
actions may be taken by union (Section 6).
c. Injunctive Relief - Individuals or corporations may seek injunctive relief
– this expands parties who may seek injunctions (under Sherman only the
Attorney General of the United States could seek injunction – individuals
could only seek damages) (Section 16).
d. Jurisdiction - Jurisdiction was withdrawn from federal courts to issue
injunctions in labor disputes (Section 20).
Secondary boycotts may be enjoined - Duplex Printing Press Co. v. Deering
(1921)
a. P manufactured printing presses for interstate commerce, running an
open shop so that they were able to undersell their closed shop
competitors. A machinists union wanted to impose a closed shop on P. D
attempted to dissuade P's customers from dealing with P by threatening to
interfere with the transportation, installation or maintenance of P's
presses.
b. P argued D should be enjoined from these activities as D was hindering P's
interstate commerce as prohibited under the Sherman Act and that the
limitation imposed on the issuance of injunctions by Section 6 of the
Clayton Act is inapplicable because Section 20 of the Clayton Act
imposes this limitation only in situations between "employers and
employees".
c. Issue: Are injunctions against secondary boycotts proscribed by the
Clayton Act?
d. Opinion:
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i.
ii.
Majority: The term "employers and employees" in Section 20 of the
Clayton Act includes only those proximately and substantially
concerned as parties to an actual dispute respecting the terms and
conditions of their own employment. Others are not within
the limitations on injunctions and hence "secondary"
boycotting activity is not protected from an injunction.
Dissent (Brandeis): Term "employees" should be broadly construed
to include all engages in labor. It is not confined to the legal
relationship between specific employer and its employee.
Norris-LaGuardia Act: (1932) This Act brought an end to the era of oppressive
injunctions and restricted federal judicial intervention in labor disputes.
a. Employee rights. Employees are granted freedom of association,
organization, and designation of representatives.
b. Agreements contrary to the Act are unenforceable. Any
undertaking between the employee and an employer contrary to the policy
of the Act is not enforceable in federal court, specifically including any
promise not to join a union (i.e., yellow dog contracts).
c. Limitation on injunctions. No federal court can issue an injunction in
a case arising out of a labor dispute, the effect of which is to prohibit
persons "interested" in dispute from:
i.
Ceasing to perform work or quitting employment;
ii.
Becoming a member of a labor organization;
iii.
Paying or withholding from person participating in labor disputes,
strikes, or unemployment any benefits, insurance, or other monies
due;
iv.
By lawful means aiding any person participating in the dispute who
has been challenged in any court;
v.
Publicizing the dispute by advertising, speaking, or any other
method not involving fraud or violence;
vi.
Assembling peaceably to promote their interests in the dispute;
vii.
Advising or urging others to do any of the acts herein mentioned;
and
viii.
Agreeing with others to do such acts.
Sit-down strike not a "combination" in restraint of trade - Apex Hosiery Co.
v. Leader (1940)
a. P sued D union for violating Sherman Act.
b. D represented 8 of 2,500 employees and wanted P to run a closed shop.
Union called a strike and sit-in. Aided by union members from other
factories, D seized the factory, changed the locks, engaged in sit-in for a
month and a half - during this time machinery was destroyed and
merchandise was not shipped (80% of which was to be shipped out of
state).
c. Issue: Under the Sherman Act, is a union's refusal to allow an employer to
ship goods a prohibited restrain on trade? No.
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d. Opinion:
i.
Sherman Act does apply to unions to some extent BUT aim is not to
police interstate transportation of goods and property RATHER to
prevent combinations which restrain free competition.
ii.
Act has never been applied to labor case unless there was some
form of restrain on commercial competition and unless the
restrictions on shipment operated to restrain commercial
competition in some way.
iii.
D's tortious acts had goal of forcing P to accede to D's demands the prevention of the removal of goods for interstate shipment was
an effect, but as not the goal, not violative of the Sherman Act.
e. Comment: Court noted secondary boycotts violate Sherman Act
since such boycotts curtail a free market by suppressing competition of
nonunion-made goods in interstate market.
Jurisdictional disputes - The Sherman and Norris-LaGuardia Acts - United
States v. Hutchenson (1941)
a. Anheuser-Busche contracted to build a new brewery, giving the job of
dismantling and erecting machinery to four of its employees who belonged
to a machinists union. A union representing A-B's carpenter employees
objected, claiming its members should have been given the job.
b. A-B and unions had agreements to submit all disputes to arbitration - D
refused and called a strike against A-B and a boycott of A-B products.
c. D's were indicted for conspiracy and combination in restraint of trade in
violation of Sherman Act.
d. Issue: Does a strike and boycott of employer's product by a union
constitute a criminal conspiracy where the union's purpose is to secure
work for its members? NO.
e. Opinion:
i.
Clayton Act and Norris-LaGuardia Act state that Congress intended
to provide guidelines listing activities protected from attack as
violations of the Sherman Act.
ii.
Section 20 (Clayton) specifically denies a court the power to
independently examine the quality of a union's "objectives" as a
basis for testing whether an activity is lawful - Act renders judicial
discretion very narrowly prescribed - if a union acts in its own selfinterest and does not collide with any other guidelines provided (i.e.
doesn’t act violently), court may not proclaim activity illegal.
iii.
Passage of N-G showed Congress' disapproval of narrow
construction of Clayton Act in Duplex and anticipates an era of
greatly broadened union activity.
Applicability of Norris-LaGuardia Act to secondary picketing - Burlington
Northern Railroad Co. v. Brotherhood of Maintenance of Way Employees
(1987)
a. Union Brotherhood of RR workers in dispute with a small RR in Maine.
Union pickets in Maine; none of the RR employees will work; union
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b.
c.
d.
e.
extends strike to all RR owned by parent corp., then to all RR's that
interchanged traffic with parent corp. --> this is secondary boycott.
District court enjoined extended picketing ruling that sections 1 and 4 of
the Norris Act were limited to employers having an ownership interest or
providing essential services or facilities to primary employer (the
"substantial alignment" test).
Court of Appeals reversed.
Issue: Is application of the Norris-LaGuardia Act limited only to
secondary employers who are "substantially aligned" with the primary
employer? NO.
S.C. opinion:
i.
Act does extend to RR's.
ii.
The Norris Act §4 is applicable to the case because a secondary
boycott falls under the definition of a “labor dispute” as defined by
the Act and hence, although secondary, federal courts do not have
the power to grant an injunction.
iii.
Narrowing the Act by a "substantial alignment" test would be
contrary to Congress' intention in passing the legislation.
iv.
Nothing in the Act distinguishes between permissible and
impermissible secondary activity. There are neither usable
standards nor administrative machinery to make such distinctions
in the railway industry.
D. Labor and the Constitution
Constitutional Protections - Thornhill v. Alabama (1940)
a. D was convicted of violating a State statute that prohibited a person from
picketing the premises or business of another. D had participated in a
picket line at a plant and had informed workers that "we are on strike and
do not want anybody to go there to work." There was no anger/threats of
violence used.
b. Issue: Is a statute that forbids picketing to disseminate facts in a labor
dispute a violation of the First Amendment? YES.
c. Opinion:
i.
Statute is unconstitutional on its face - violates First Amendment.
ii.
Picketing as Protected Speech - the dissemination of information
concerning facts of a labor dispute must be regarded as within the
area of free discussion that is guaranteed by the Constitution.
iii.
The group in power at any moment may not impose penal
sanctions on peaceful and truthful discussion of matters
of public interest merely on a showing that others may thereby
be persuaded to take action inconsistent with its interests.
iv.
Danger of injury to an industrial concern is neither so serious, nor
imminent, as to justify the sweeping proscription of freedom of
discussion embodied in statute.
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d. Comment: This was a case of "primary picketing" (i.e. picketing by
workers of the employer at the site of employment). In this situation the
SC held that "the dissemination of information concerning the facts of a
labor dispute must be regarded as within the area of free discussion
guaranteed by the Constitution.
Wagner Act (NLRA): (1935) Era of encouragement for labor - reflected in other
federal legislation regarding minimum wage, child labor, and social security laws.
Established on a permanent foundation the legally protected right of employees to
organize and bargain collectively through representatives of their own choosing.
Railway Labor Act (1926): the RLA was enacted as an agreement between interstate
carriers and railroad unions, which provides the means to settle disputes arising over
railroad worker’s rights and interests.
a. Adjustment Boards were established to settle differences in interpretations
of unions and employers contracts and to settle minor disputes arising
over working conditions.
b. Mediation Boards established to help with negotiations in the event of a
mediation breakdown.
c. A method was established to ascertain the legitimacy of labor
organizations. When employers challenged the authority of union
representatives who claimed the right to negotiate, the mediation board
was directed to conduct an election among the employees to determine
which union should prevail.
d. National Railroad Adjustment Board (NRAB) was established to assure
uniform interpretation of collective bargaining agreements among various
adjustment boards.
i.
Has 18 representatives each from labor and management. Ties
went to a neutral referee.
ii.
Decisions of Board enforceable in Federal court.
e. The RLA also covers air carriers - but air carriers do not participate in
the NRAB procedures to resolve their contract grievances.
i.
They utilize "system boards" and engage in more traditional
industrial arbitration.
Basic Provisions of Wagner Act. Established the legally protected right of
employees to organize and bargain collectively through representatives of their own
choosing.
a. Sections 3 and 4. Act created National Labor Relations Board (NLRB)
with jurisdiction over "unfair labor practices" and questions of union
representation and with power to issue and prosecute complaints under
section 10.
b. Section 7. Act established that employees have the right to organize,
form, join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
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c.
d.
e.
f.
g.
h.
activities for the purpose of collective bargaining or other mutual aid or
protection.
Section 8(1) (changed to 8(a)(1) under Taft-Hartley Act). Made it
an unfair labor practice for en employer to interfere with, restraint, or
coerce employees in the exercise of rights guaranteed under section 7.
Section 8(2) (changed to 8(a)(2) under the Taft-Hartley Act).
Employers are prohibited from unlawfully sponsoring or assisting a labor
organization.
Section 8(3) (changed to 8(a)(3) under the Taft-Hartley Act).
Employers are prohibited from discriminating against en employee
because of union activity.
Section 8(5) (changed to 8(a)(5) under the Taft-Hartly Act). Act
requires employers to bargain collectively with representatives designated
by its employees.
Section 9(a). Act designates representatives selected for the purposes of
collective bargaining by a majority of the employees in a unit appropriate
for such purposes as the exclusive representatives of all employees.
Section 9(b) and 9(c ). Provides the NLRB shall settle disputes with
respect to what the appropriate unit for bargaining should be and other
questions relating to election procedures.
Constitutionality of the NLRA - NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937)
a. Court found that labor strife at steel plant could conceivably cripple the
entire interstate operation of the company, and that provisions of the Act
were properly applied to the plant.
b. Court upheld NLRA stating that the term "affecting" commerce means
burdening or obstructing commerce or the free flow of commerce, or
having led or tending to lead to a labor dispute burdening or obstructing
commerce or the free flow of commerce.
Taft-Hartley Act (LMRA): (1947) Amended the NLRA. This was in response to a
rash of strikes after WWII that occurred in essential industries, causing many to view
union's strength as contrary to public good. The Act sought to temper strength of
unions.
a. Injunctions: were brought back and could once again be used as a
remedy by employers (thus superseding the NLA). Section 8(b): made
the following acts illegal and enjoinable:
i. secondary boycotts;
ii. strikes to compel an employer to commit an unfair labor practice;
iii. jurisdictional strikes over work assignments.
b. Restored gov’t neutrality: Act upheld the fundamental right to bargain
collectively, however, Section 7 was amended to provide that the right to refrain
from the activities listed in section 7 (i.e. concerted activity, union organization,
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collective bargaining) on equal footing with the rights granted. Move from policy
favoring labor organization to position of neutrality.
c. Collective Bargaining: Act extended gov’t regulation in negotiation of
collective bargaining agreements to include both the subject matter and
the conduct of bargaining. Imposed a duty on unions, as well as
employers, to bargain collectively in good faith.
d. Outlawed the "closed shop".
e. Federal Court jurisdiction: Section 301 provides that suits for
violation of collective bargaining agreements in industries affecting
interstate commerce may be brought by or against a labor organization as
an entity in any appropriate federal court.
Landrum-Griffin Act (LMRDA): (1959) Labor Management Reporting and
Disclosure Act amended the NLRA. Revelation of corruption of union leaders lead to
public support for union reform.
a. In general, the amendments to the NLRA were in keeping with the basic
purposes that underlain the Taft-Hartley Amendments.
i.
Loopholes in the secondary boycott provisions were closed;
ii.
Restricted the right of unions to picket for the purpose of organizing
workers or obtaining recognition from an employer; and
iii.
Provisions were enacted which restricted unions ability to coerce
employees in deciding whether or not to join a labor union.
b. Union’s Internal Affairs: for the first time, the Act regulated the internal
affairs of the union with certain provisions requiring that elections be held
periodically for local and national union officers and that union members
be assured the right to vote, to run for union office, and to comment upon
and nominate candidates.
i.
Other provisions prohibited the embezzlement of union funds or
property and the making of loans by a union to its officials in excess
of a stipulated amount.
E. Present Scope and Coverage of National Labor Legislation
Railway Labor Act
The National Labor Relations Act (NLRA)
Jurisdiction - Primary question for NLRA is whether a labor dispute in the business
involved would tent to affect or burden interstate commerce.
a. Labor dispute: includes any controversy concerning terms or
conditions of employment, or concerning the association or representation
of persons in negotiating, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and employee.
b. Commerce: consists of trade, traffic, commerce, transportation, or
communication among the several states, or between DC or any territory
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of the US and any state or DC, or within DC or any territory, or between
points in the same state but passing through another state, DC, or any
foreign country.
c. Affecting commerce: means "in commerce" or "burdening or
obstructing commerce" or "the free flow of commerce," or having led or
tending to lead to a labor dispute burdening or obstructing commerce or
the free flow of commerce.
i.
Board assumed jurisdiction in case where employer's interstate
shipments only consisted of 1% of total business output.
d. NLRB jurisdictional discretion: NLRB may decline jurisdiction in
instances where it finds the effect of interstate activities to be minute.
Under those circumstances, the NLRB refers the case to interested state
and local agencies.
i.
For NLRB's general policies regarding activities that are minute see
page 19 of Legallines.
Coverage of employers and employees
a. Employers covered: See Section 2(2) of the Act - page 24.
i.
Inclusions: all "persons" who act as employers or, directly or
indirectly, as agents of employers.
ii.
Exceptions: federal and state offices, Federal Reserve Banks,
those subject to the RLA, and labor unions (when not acting as
employers). Parochial schools are not covered.
1. Federal employees are covered by the Civil Service Reform
Act of 1979.
b. Employees covered: virtually any person within the meaning of the
term as is commonly used.
i.
Exceptions:
1. Employees specifically excluded under Section 2(3) page 24: Agricultural workers, domestics, independent
contractors, supervisors, and employees covered by the RLA,
managerial employees.
a. However, employees transporting agricultural
products or engaged in slaughtering, packing,
processing, or refining agricultural products are
covered.
2. Independent contractors: Disputes arise as to whether
an employee is covered. Courts use the test of "management
control over the performance of the work done" to
determine. If control is present, the person is an employee.
F. National Labor Relations Board (NLRB) - Organization, and
Procedure
NLRB is split into two separate and independent divisions: (1) the Board, which is the
adjudicatory body, and (2) the General Counsel's office, which handles elections
cases and litigates unfair labor practice cases.
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Organization of the Board:
a. Composition: there are 5-members on the NLRB, appointed by the
President (with Senate approval) and each serve for a term of five years.
b. Removal: of a member, can only be done by the president upon a finding
of malfeasance in office or neglect of duty proceeded by a formal hearing;
c. Panel: can sit as a full panel of 5 or may delegate panel down to 2-3 bring
majority.
d. Delegation of Powers: Board can delegate powers to regional directors
for cases involving union representation and reauthorization elections by
the board.
e. General Counsel: unfair labor practice charges can be filed at a regional
office by any person against an employer, union, or third party, then
regional director can issue a complaint.
Primary Functions of the Board: primary functions of the Board are: (1) to
determine if employee representatives are within industries under the jurisdiction of the
NLRA, and (2) to decide whether a particular challenged activity constitutes an unfair
labor practice.
a. Representation Cases: In these cases, Board has complete and final
authority, although much is delegated to field personnel.
i.
Election petitions are filed in regional offices.
1. Most are for permission to conduct an election to certify a
collective bargaining agent.
2. Some are for decertification elections.
3. Authority to enter union security agreements may also be
rescinded by election.
4. Petitions for a certification election may be filed by a union
seeking to represent a unit or by an employer who has
received a demand for recognition.
ii.
Regional staff makes an investigation to determine jurisdictional
coverage, appropriateness of the unit, voter eligibility, and whether
there is a sufficient showing of interest (30% of proposed unit).
iii.
Consent election agreements are encouraged. These allow the
Regional Director to conduct an election and resolve any disputes
that may arise in connection with it. Contested matters will be the
subject of a hearing before a regional hearing officer.
iv.
Election orders:
1. An election order will be made to conduct election in
approximately 30 days.
2. Elections conducted by secret ballot at the employer's
premises during working hours under the supervision of a
representative from the regional office.
3. A labor organization will be certified as the exclusive
bargaining representative if it receives a majority of the valid
votes cast.
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v.
Decisions by regional directors are subject to limited review by the
Board.
vi.
Representational issues are not directly subject to
judicial review. Can be reviewed in connection with an unfair
labor practice case arising out of situation.
b. Unfair Labor Practice Cases:
i.
A complaint is filed, then a preliminary investigation is made to
determine whether to proceed to a hearing after the General
Counsel (Regional Director) has issued a complaint.
1. Decision to continue prosecution is based on whether
following up would "effectuate the policies of the Act."
2. At this point proceedings are conducted with a view toward
reaching a settlement.
ii.
Trial examiner holds a hearing and issues an intermediate report
with recommended findings and remedial measures.
1. Complaining party may intervene at this proceeding
2. The report receives the same weight as a decision by the
Board itself, unless one of the parties files exceptions to the
report within 20 days.
iii.
If exceptions are timely filed, the Board assumes complete control
over the case.
1. Board reviews the record and the report.
2. Board may either (1) substitute its own findings and
remedial order for those of the examiner, or (2) adopt those
of the trial examiner.
iv.
If either party takes exception to Board's findings, party may take
the case to the appropriate federal court of appeals.
1. Court of appeals may set aside the Board's findings only if
the court concludes the Board's decision is not supported by
"substantial evidence on the records considered as a whole,"
or if the Board has made errors of law.
a. Appellate orders are enforced by contempt actions
brought exclusively by the Board.
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II. The Establishment of the Collective Bargaining Relationship
A. Protection of the Right of Self-Organization
NLRA Section 7 establishes the right of employees to band together to form unions, to
bargain collectively, and to engage in other concerted activities expressed in that
section. (see page 28)
Section 8(a)(1) - (5) and section 8(e) protects employees' organizational rights under
Section 7. (see page 29 and 34)
Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in section 7."
a. Thus, if an employer violates §8(a)(1) he also violates §§8(a)(2)(5) which respectively make it an unfair labor practice for employers to:
i.
Section 8(a)(2): forbids the formation of company unions;
ii.
Section 8(a)(3): forbids discrimination in hiring and firing based
on union membership;
iii.
Section 8(a)(4): forbids discrimination in the hiring or firing of
an employee who has asserted his rights before the NLRB; and
iv.
Section 8(a)(5): makings it an unfair labor practice for an
employer to refuse to bargain collectively with the representatives
of his employees.
**However, you must KEEP these sections distinct.
b. In giving effect to §8(a)(1) to protect the right to join a union, the NLRB
has emphasized the need to preserve the employee’s free choice.
Employers have certain rights under Act:
a. Section 8(c ) provides that the mere expression of views, argument, or
opinion "shall not constitute an unfair labor practice…if such expression
contains not threat of reprisal or force, or promise of benefit."
Restricting activities on company-owned property - solicitation and
distribution rules:
Solicitation: refers generally to verbal communications promoting and attempting to
organize a union campaign, it also includes the handing out of union authorization
cards.
i.
Restrictive Rules: The Board will impose more restrictive rules on
employee solicitation during his free time depending on the type of
business; i.e., when there is considerable contact with the public or
patients.
ii.
Off Duty Employees: a rule barring off duty employees from union
solicitation on company premises may be upheld as long as the Rule is
non-discriminatory.
14
1.
Limitations: NLRB wants to prevent undue interference with an
employee's statutory right to communicate with those who work on
different shifts. So, an employer's rule denying off-duty employees
entry to parking lots, gates, and other outside nonworking areas has
been held invalid.
Analysis:
a. the first thing that needs to be determined is whether the conduct is
occurring on the employer's property;
i.
in no, then is allowable;
ii.
if yes;
b. determine whether the solicitation is being conducted by employees or
nonemployees;
i.
if non-employees, the solicitation will probably be prohibited unless
exceptional circumstances exist (such as being secluded from
society);
ii.
if employees, then,
c. determine whether the conduct occurred during working hours, or the
employees free time;
i.
employers can prohibit solicitation during working time;
ii.
employers are generally prohibited from disallowing solicitation
during an employees free time;
d. the last thing that needs to be determined is whether the employer has
discriminated;
i.
if so, then the Board will find against the employer;
ii.
If not, then the Board will balance an employers rights with an
employee’s rights.
REMEMBER: ALWAYS look for a way to argue discrimination—it that can
be proved, the employer probably committed an unfair labor practice.
Employee solicitation - Republic Aviation Corp. v. NLRB (1945)
a. Employee was handing out union application cards during lunch break
and was fired for breaking a company rule stating there is no solicitation
on company premises (not limited to unions, can't solicit anything).
b. Issue: May an employer enforce a general nondiscriminatory nosolicitation rule to prevent solicitation of union support and membership
during nonworking time and to prevent the wearing of union badges? NO.
c. Opinion:
i.
General rule against overly broad restrictions on employee union
solicitations is ok. Board could properly presume that such
restrictions are "an unreasonable impediment to self-organization"
without requiring proof of actually interference with organizational
activities in each case.
15
ii.
iii.
No evidence was shown that employer was somehow understood to
be recognizing the union because of the steward's badges.
Rule is justified even if there may be alternate means of
communication.
Special Circumstances - Hospitals: although the Board generally requires
employers to permit employee solicitation on union matters during non-working time, it
has tolerated hospital bands on such solicitation in working areas devoted strictly to
patient care.
a. Caveat: but such solicitation must be permitted in other areas such as
lounges and cafeterias open to visitors and even to patients absent a
showing that disruption to patient care would necessarily result if
solicitation and distribution were permitted in those areas.
Beth Israel Hospital v. NLRB (1978)
a. Board found violations of 8(2)(1) and (3) when hospital prohibited
solicitation or distribution in "patient care and all other work areas"
and "areas open to the public, such as "lobbies, cafeteria…corridors,
elevators…etc."
b. Board ordered restriction not cover include the cafeteria and coffee
shop as (1) there was no indication that solicitation distribution
activities would disrupt patient care, and (2) there was no other
adequate location for effective employee communication.
Waiver of Solicitation Rights: a union may not, unless proof of exceptional
circumstances
exist, waive its members rights to distribute literature during non-working hours
NLRB v. Magnavox Co. (1974)
a. Company prohibited distribution of union literature in plants and
parking lots, even during nonworking hours in nonworking areas.
Union had agreed to this rule, which limited them to posting
notices on company bulletin boards. Company rejected union
proposal to change the rule.
b. A union may not, unless proof of exceptional circumstances
exist, waive its members rights to distribute literature during non-working
hours (violation of 8(a)(1)).
Solicitation or distribution by nonemployees: An employer may prohibit
solicitation or distribution on its premises by nonemployee organizers unless the
employees do not have sufficient alternative means of obtaining information concerning
organization advantages.
Balancing Test: accommodation between the employee’s §7 rights and the
employer’s property rights must be obtained with as little destruction of the
one as is consistent with the maintenance of the other.
16
a. In cases involving employee activity the Board can balance the
conflicting interests of employees to receive information selforganization on the company’s property from fellow employees
during non-working time, with the employer’s right to control and
use his property.
b. In cases involving non-employee activity the Board is not permitted
to engage in the same balancing
Inaccessibility Exception: where the location of a plaint and the living
quarters of the employees place them beyond the reach of reasonable union
efforts to communicate with them, employer’s property rights may be required to
yield to the extent needed to permit communication of information on the right
to organize.
a. This exception is a relatively narrow one, it does not apply wherever
non-trespassory access to employees may be cumbersome or less
than ideally effective, but only where the location of a plant and the
living quarters of the employees place the employees beyond the
reach of reasonable union efforts to communicate with them. Some
examples include:
b. logging camps, mining camps, and mountain resort hotels.
c. The burden of establishing such isolation is on the union and it is
heavy one.
Distribution on employer premises by nonemployees - Lechmere, Inc. v.
NLRB (1992)
a. P union attempted to organize D's employees (in retail store) by leafleting
their cars in a plaza parking lot, then by standing on a public piece of grass
between plaza and highway. Union got only 20% of employees contact
information and only resulted in one authorization card.
b. Union filed unfair labor practices charge claiming that D had wrongfully
excluded organizers from his property. NLRB found unfair labor practice
under Jean Country - ordered access and posting of notice that it would
not prohibit distribution on parking lot.
c. Issue: Is the NLRB authorized to determine nonemployee access to an
employer's property by balancing the degree of impairment to the
employee's section 7 rights against he degree of impairment to the
employer's private property rights and giving availability of alternate
access special significance in the balancing? NO.
d. Opinion:
i.
The Jean Country decision was too broad - this is not a situation
where "no reasonable effective" alternative was available to union.
Union was able to contact a substantial percentage of employees,
and use signs and picketing on grassy strip. Access - not success - is
the issue!
ii.
Babcock held that no obligation exists to require access by nonemployee union organizers unless the location of living quarters
17
and the plant create a unique obstruction which places the
employees beyond the reach of reasonable union efforts to
communicate with them.
e. Dissent (Blackmun):
i.
Majority misapplied Babcock - fact that this case held that
inaccessibility to a logging camp would justify entry does not
indicate that there would be no other circumstances which would
warrant entry. The union must first show that "reasonable efforts"
do not permit proper communication with employees.
ii.
There is a difference between a secluded private parking lot and the
one here which is open to the public without substantial limit.
Equal Access and Time: the union’s right to solicitation is generally fairly limited
under Republic Aviation and they have sought to establish channels of communication
roughly comparable to that of the employer, such as the right to address employees on
the shop floor during the workday, as employers often do.
a. The Supreme Court has held that the denial of equal time will ordinarily be
presumed lawful and the burden will be on the union (or general
counsel) to establish that union is seriously incapacitated from
communicating with the employees by different means. *[NLRB v.
United Steelworkers].
Captive Audience Doctrine: Board has announced a firm rule outlawing captive
audience speeches on company time within the 24-hour period prior to an election,
whether by the union or employer, because it interferes with the employee’s free choice
and thoughtful consideration of the matter. [Peerless Plywood; Kalin
Construction]
a. A violation of the Rule will result in the setting aside of an election victor
by the speaker violator and the ordering of a new election.
b. Caveat: the rule does not prohibit non-coercive employer or union
speeches before the 24-hour period , the dissemination of other forms of
propaganda even during the 24-hour period; or the delivery during that
period of campaign speeches on or off company property if employee
attendance is voluntary and on the employee’s own time.
c. Paycheck Process: the board has extended the logic of the captive
audience rule to an employer change in the paycheck process within 24hours prior to an election because of its coercive effect on employees (i.e.
believe if they don’t vote for the union will get higher pay).
d. Board concluded that section 8(c ) did not allow burdening the employer's
exercise of speech with an equal time requirement. Where a property
"broad" no-solicitation rule is in effect, equal time would be allowed.
[Livingston Shirt Co. (1953)] S.C. sustained this approach even where
coercive speech was used, but that if the no-solicitation rule "truly
diminished the ability of the labor organizations involved to carry their
message to the employees" because of lack of reasonable alternative,
access would be required. [NLRB v. United Steelworkers (1958)].
18
Duty to provide list of employee names and addresses: When a union petitions
for an election, the Board requires the employer to give the union a list of employee
names and addresses. Failure to provide the list has not be held an unfair labor practice
but may provide basis for setting an election aside.
Employee lists - Excelsior Underwear Inc. (1966)
a. Union lost a secret ballad to represent Excelsior's employees 206 to
35. Union challenged the election on the grounds that D refused to
give it a list of names and addresses of D's employees, meaning
union could not rebut a letter D mailed to its employees.
b. Issue: Must an employer accede to a unions' request for the names
and addresses of employees? YES.
c. Opinion:
i.
For elections to be fair, not only must there by no
interference, restraint, or coercion, but there must also be
freedom of choice. This requires informed voters.
Standards for Consent Elections: the NLRB established a disclosure requirement
that will be applied in all election cases:
a. Within 7-days after the Regional Director has approved a consent-election
agreement entered into by the parties; the employer must file with the
Regional Director an election eligibility list, containing the names and
addresses of all eligible voters.
i.
The Regional Director will then make this information available to
all parties in the case.
b. Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed.
c. The Board does not limit the disclosure requirement to the situation in
which the employer has mailed antiunion literature to employees’ homes
because it believes that access to employee names and addresses is a
fundamental to a fair and free election regardless of whether the employer
has sent campaign propaganda to employees’ homes.
d. Policy: this rule promotes free and reasoned choice by employees who are
considering an upcoming election because the employee can hear both
sides and then make a informed and reasoned choice.
*[Excelsior Underwear, Inc.].
B. Election Propaganda
The dissemination and distribution of election propaganda involves the pursuit of two
inconsistent goals: (1) the freedom of expression on behalf of employers, and (2) the full
freedom for employees in forming, joining, and assisting labor organizations of their
own choosing.
19
Section 8(c): the expressing of any views, argument or opinion, or the dissemination
thereof, whether written, printed, graphic, or visual form, shall not constitute evidence
of an unfair labor practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
Laboratory Conditions Test for reelection orders: in election proceedings, it is
the Board’s function to provide a laboratory in which an experiment may be conducted,
under conditions as nearly ideal as possible, to determine the uninhibited desires of
employees [General Shoe Corp. (1948)].
a. An election can only serve its true purpose if the surrounding
circumstances enable employees to register such a choice for or against a
bargaining representative.
b. The Board has a realistic recognition that elections do not occur in a
laboratory where controlled or artificial conditions may be established and
accordingly, the Board’s goal is to assess the actual facts in light of the
realistic standards of human conduct.
c. Board said that when conduct "creates an atmosphere which renders
improbable free choice" it may set aside an election and order a new one.
Dal-Tex Optical Co (1962):
a. Shortly before a rerun election employer made speeches to
employees that focused on risks (e.g. strikes, replacements, etc.)
that could occur if the union won, and the possible benefits that
could be lost when it bargains on a "cold-blooded business basis."
b. Board found speeches to be coercive and evidence of unfair labor
practice. Said it provided basis to set aside the election.
c. NLRB said they would look to the economic realities of the
relationship and would set aside elections where the employer
conduct had resulted in "substantial interference" with the election
without regard to the form of the statement.
i.
Thus, coercion may be found when threats of reprisal are
express or implied, even if couched as an assertion of the
legal rights of an employer.
ii.
Similarly, an employers statement to his employees
predicting the adverse economic consequences from
unionization may be held as coercive if such predictions are
based on factors over which the employer has
control or will result from his own volition and for his own
reasons.
These cases are difficult because there is a range between pure factual
prediction and pure threat of retribution. Board follows a case-by-case method
of approaching such questions, where same words in one context may not bring the
same decision if uttered in another - the level of employment in the area, employer past
dealings, etc., will be considered.
20
Noncoercive speech cannot be used as evidence of other employer
violations: Statements that are protected under the free speech provisions of section
8(c ) cannot be used as evidence of some other unfair labor practice by the employer
(such as bad motives or anti-union bias). [Pittsburgh S.S. Co. v. NLRB (1950)].
Coercive statements are not protected: an employer is free to communicate to his
employees any of his general views about unionism or any specific views about a
particular union, so long as the communication does not contain a threat of reprisal or
force, or promise or benefit.
a. Predictions: the employer may make a prediction as to the precise
effects he believes unionization will have on his company; however, the
prediction must be carefully phrased on the basis of objective facts to
convey an employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision already arrived at
to close the plant in case of unionization
i.
If there is any implication that an employer may or may not take
action solely on his own initiative for reasons unrelated to economic
necessities and known only by him, the statement is no longer a
reasonable prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion, and as such
without the protection of the First Amendment
ii.
Coercion may be found where threats or promises are express or
implied
iii.
Where the employer merely asserts how it legally intends to deal
with the union, this has been held not to constitute coercion
[NLRB v. Herman Wilson Lumber Co. (1966)].
b. Plant Closing: conveyance of an employer’s belief, even though sincere,
that unionization will or may result in the closing of the plant is not a
statement of fact, unless which is most improbable, the eventuality of
closing the plant is capable of proof.
*In other words, the threat of a plant closing is a retaliatory threat which
constitutes an unfair labor practice if not based on a predetermined
decision to close the plant. In such a case, an election can be set aside.
c. Cox Test: to determine whether a statement is coercive and not covered
by Section 8(c) the court will ask what is the listener hearing, and what
did the speaker intend to convey and have the listener understand.
**[NLRB v. Gissel Packing].
Statements held coercive - NLRB v. Gissel Packing Co. (1969)
a. When president heard employers were trying to unionize, he
spoke to employees emphasizing that the company was on
"thin ice" financially, that a strike "could lead to closing the
plant". President also distributed pamphlets talking about
plant closings and calling the union a "strike happy outfit".
21
b. NLRB found president's statements threatening rather than
mere predictions of "demonstrable economic consequences".
c. Issue: May an employer disseminate his beliefs with
respect to unionization independent of their economic or
factual substantiation? NO.
d. S.C. opinion:
i.
Employers may express their views about a particular
union and make noncoercive economic predictions,
but such predictions and views must be based on fact.
ii.
Any balancing of employer and employee rights must
take into account the economic dependency of the
employees. An employer's statements o belief about
the effects of unionization, however sincere, will be
seen as threatening unless they are simply economic
predictions based on demonstrable fact, about
consequences beyond the employers' control.
Nonfactual Statements: Statement that union is run by "strike-happy hoodlums"
and would force company out of business because of impossible demands was not based
on objective facts and thus coercive.
Predictions based on fact: A prediction that union would make certain demands on
employer that he would be forced to grant, at cost of impairing existing employee
benefits, has been held protected speech where shown to be based on previous dealings
with other unions in the same plant and thus based on objective facts. [NLRB v.
Lenkurt Electric (1971)]
Predictions not based on facts: Court says even sincere employer prediction that
plant "will or may" close as a result of unionization is by itself coercive, unless the
likelihood of closing was capable of objective proof. [Gissel]
Employer can cease business: Employer has ABSOLUTE RIGHT to go out of
business for any reason, including anti-union hostility. [Textile Workers Union v.
Darlington Manufacturing Co.].
Employer can cite history: NLRB has held that recitation of a history of closing
stores for "economic reasons" after successful union organizing was protected free
speech. [J.J. Newberry Co.]
Misrepresentations: Employers and unions are constrained from communicating or
doing anything that will have the effect of destroying the "laboratory conditions"
environment, including making factual misrepresentations.
Campaign Propaganda: the Board will NOT probe into the truth or falsity of
the parties campaign statements. Instead, assumes employees are capable of
recognizing campaign propaganda for what it is and determining truth for
themselves.
22
a. Caveat: the Board will intervene in instances where a party has
engaged in deceptive campaign practices which improperly involve
the use of forged documents which render the voters unable to
recognize propaganda for what it is.
b. Thus, the Board will set aside elections, not because of the
substance of the representation, but because of the deceptive
manner in which it was made; a manner which renders employee’s
unable to evaluate the forgery for what it is.
*[Midland National Life Ins. v. Local 304A (1982)].
Midland National Life Insurance Company
a. As long as material is what it purports to be - that is,
propaganda of one of the contestants - the Board will leave it
to the voters to evaluate content.
b. If there is forgery involved, the Board will intervene.
Inflammatory Appeals: a deliberate appeal to prejudice (such racial/religious
prejudice) interferes with an employee’s reasoned and untrammeled choice and
therefore will be cause to overturn an election.
a. Caveat: statements with racial overtones—such as the union’s position on
segregation or union financial contributions to civil rights groups—will be
appropriate but only if temperate in tone, germane, and correct factually
because employees are entitled to know these matters.
b. The burden will be on the party making use of the racial message to
establish that it was truthful and germane, and where there is doubt, it will
be resolved against him. *[Swell Mfg. Co.].
C. Other Forms of Interference
Employer Interrogation: employer interrogation of employees as to their desire to
be represented by a particular union is not coercive or intimidating on its face.
However, this practice is subject to very close scrutiny.
Anti-union environment: Absent an "anti-union" environment, one isolated
instance of questioning might not continue an unfair labor practice, and an
employer may of course listen to anything his employees volunteer to him.
To determine whether a particular interrogation interferes with, restrains, and
coerces employees must be found in the record as a whole, taking into
consideration 4-factors:
1. the background, i.e., is there a history hostility and discrimination;
2. the nature of the information sought, i.e., did the interrogator
appear to be seeking information on which to base taking action
against individual employees;
3. the identity of the questioner; i.e., how high was he in the company
hierarchy; and
23
4. the place and method of interrogation, i.e, was the employee called
from work into the boss’s office or was there an atmosphere of
unnatural formality.
*[NLRB v. Lorben Corp.].
Interrogation - NLRB v. Lorben Corp. (1965)
a. President passed around a paper asking employees to indicate yes
or no in answer to question "Do you wish [the union] to represent
you? All signed "No". Board found employer had no legitimate
purpose for this poll.
b. Issue: May an employer interrogate employees as to whether they
want a union to represent them if he doesn’t use coercion? YES.
c. Opinion:
i.
Employer interrogation of employees is not coercive on its
face - not unlawful unless circumstances as a whole indicate
that interrogation interferes with, retrains, and coerces
employees.
ii.
Here there was no coercion. Employer merely asked if
employees were interested in the union in response to
request that he speak to union representatives.
iii.
Totality of the circumstances rule: Is there a history of
employer hostility, what is nature of information sought,
what is identity of questioner (how high up), place of
interrogation (TEXT - 181).
Polling: absent unusual circumstances, the polling of employees by an employer
will be violative of NLRA §8(a)(1) UNLESS the following safeguards are
observed:
1. the purpose of the poll is to determine the truth of the union’s
claim of majority;
2. this purpose is communicated to employees;
3. assurances are given against reprisal;
4. the employees are polled by secret ballot; and
5. the employer not engaged in unfair labor practices or otherwise
created a coercive atmosphere.
*[International Union of Operating Engineers v. NLRB
(Struksnes Const. Co.)].
**NOTE: the NLRB never overruled the Lorbren standards, which deal with
essentially the same polling issue. Nonetheless, this standard is the preferable
one because of the “secret ballot” requirement.
Per Se Violative Polls: a poll taken while a petition for board election pending
does not serve any legitimate purpose or interest of the employer that would not
be better severed by the forthcoming election by the Board. In accord with the
Board’s policies, these polls will continue to be found violative of NLRA §8(a)(1)
[International Union of Operating Engineers v. NLRB (Struksnes
24
Const. Co.)].
Economic Coercion and Inducement:
Change in Employee Benefits: NLRA Section 8(a)(1) prohibits an employer from
conferring economic benefits on his employees shortly (in this case it was 2-weeks)
before a representation election where the employer’s purpose is to affect the outcome
of an election.
a. The action of employees with respect to the choice of their bargaining
agents may be induced by favors bestowed by the employer as well as
threats or domination.
i.
The danger inherit in well timed increases in benefits is clear—
employees are not likely to miss the inference that the source of
benefits now conferred is also the source from which future benefits
must flow and which may dry up in not obliged.
b. “The danger inherent in well-timed benefits is the suggestion of a fist
inside a velvet glove.”
c. Improper Purposes: employers cannot grant benefits which are
reasonably calculated to impede the employee’s free choice in an
upcoming election because this is an improper purpose that is prohibited
by Section 8(a)(1).
i.
The converse then, is if the employer has a proper purpose for
granting an increase it will not be held violative of the Act.
ii.
EX: if the employer has a policy of giving increases relative to the
increases in the community by unionized companies and grants
such an increase then is a “changing status quo” and is for a
permissible purpose—the retainer of qualified employees.*[NLRB
v. Exchange Parts].
d. Also, employer may not withhold general wage increase customary at a
specified time each year because his employees have elective to seek union
representation. [Pacific Southwest Airlines (1973)].
D. Union Misconduct Affecting Self-Organization
NLRA not only gives employees the right to organize, but also to refrain from
organization if they so desire, and it also contains provisions declaring certain union
activities as unfair labor practices—these were a result of the Taft-Hartley Amendments.
Section 7: gives the employee the right to refrain from all rights listed that
section, i.e., the right to organize, have representative agents, bargain collectively,
etc…
Section 8(b)(1): declares that is an unfair labor practice for a labor
organization or its agents to restrain or coerce employees in the exercise of their
rights guaranteed by §7.
25
Section 8(b)(4): prohibits various concerted activities to bring about
unionization (secondary boycotts and various other activities that use fraud or
intimidation).
Union Promise of Benefits: the union, like an employer, cannot grant benefits to
employees in an attempt to affect the outcome of an election; such as, granting a waiver
of the initiation fees for employees signing a recognition slip prior to the election,
because the interference has a decisive effect on the outcome of the election results
which does not truly represent the employee’s views [NLRB v. Savair Mfg. Co.].
E. Company Domination or Assistance
In furtherance of the Act’s purposes to protect the exercise of employee associational
rights and to ensure them freedom of choice concerning whether and by whom to be
represented; NLRA Section 8(a)(2) forbids employers to dominate, assist, or to
interfere with the formation or administration of a labor organization.
The following actions by employers have been found to violate Section 8(a)(2):
1. Creating a company or union;
2. Aiding the formation of a union;
3. Soliciting membership or financial assistance; and
4. The use of company facilities, checkoffs, and/or coercion in aid of a
particular union.
Test: When employer activity reaches a point where it is reasonable to infer that the
union is not truly representing the employees in disputes arising between the employer
and the employee, the employer has violated section 8(a)(2).
Employee Representation Committees: [NLRA Section 2(5) (“the term labor
organization means any organization of any kind, or any agency or employee
representation committee or plan…”) if the association of workers has a purpose of
representing the employees it means the statutory definition of “employee
representation committee or plan” under §2(5) and will constitute a labor organization
if it also meets the criteria of employee participation and dealing with conditions of
work or other statutory subjects.
a. Any group, including an employee representation committee, may meet
the definition of a labor organization even if it lacks formal structure, has
no elected officers, constitution or bylaws, does not meet regularly, and
does not require the payment of initiation fees or dues.
b. Thus, a group may be an employee representation committee within the
meaning of Section 2(5) even if there is no formal framework for
conducting meetings among the represented employees or for otherwise
eliciting the employee’s views.
*[Electromation].
Employer consultative committees - Electromation, Inc.:
26
a. labor unrest led to the creation of 5 action committees: (1)
absenteeism/infractions; (2) no smoking policy; (3) communication
network; (4) pay progression for premium positions; and (5)
attendance bonus program. The employer determined the makeup
of the committees, the responsibility and goals of each committee,
the number of employees allowed to sign up for each committee,
employees could not sign up for more than 1 committee.
Additionally, the employer paid the employees for the time they
spend attending the committees.
b. Section 2(5): The term “labor organization” means any
organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which
exists for the purpose, in whole or in part, of dealing w/
employers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
i.
Dealing w/ applies to situations beyond the negotiation of a
collective bargaining agreement, but it does not extend to an
organization performing essentially a managerial or
adjudicative function (ex. job enrichment program).
c. Before a finding of unlawful domination can be made under
Section 8(a)(2), a finding of a labor organization under Section
2(5) is required.
d. Section 8(a)(2) does not require anti-union animus, only
adverse impact on Section 7 rights.
e. Holding: The action committees were labor organizations under
§2(5) and the employer dominated them under §8(a)(2) because
the employer participated in the committees, thereby “dealing w/”
the employer; the subject matter concerned conditions of
employment; and the employees acted in a representational
matter... The fact that the employees were paid for their time
constitutes unlawful financing support as well.
“Dealing With” Requirement (Section 2(5)): the Supreme Court has held
that the dealing with language is broader than the term “collective bargaining”
and applies to situation that do not contemplate the negotiation of a collective
bargaining agreement.
a. The Board considers dealing with as a bilateral mechanism
involving proposals from the employee committee concerning the
subjects listed in Section 2(5), coupled with the real or apparent
consideration of those proposals by management.
b. Caveat: a unilateral mechanism such as a suggestion box, or
brainstorming groups, or analogous information exchanges does
not constitute "dealing with".
*[Electromation].
Domination Requirement (Section 8(a)(2)): although Section 8(a)(2) does
not define the specific acts that may constitute domination, a labor organization
27
that is a creation of management, whose structure and function are essentially
determined by management and whose continued existence depends on the fiat
of management, is one whose formation or administration has been dominated
under Section 8(a)(2).
a. In such an instance actual domination has been established by
virtue of the employer’s specific acts of creating the organization
itself and determining its structure and function.
b. Caveat: when the formulation and structure of the
organization is determined by employees, domination is not
established, even if the employer has the potential ability to
influence the structure or effectiveness of the organization.
*[Electromation].
Animus and Other Factors: Section 8(a)(2) does not require a finding of
antiunion animus or a specific motive to interfere with Section 7 rights. Thus,
the Supreme Court has found that the presence of antiunion motive is not critical
to the finding of a violation.
a. There is no basis in the statute to require a finding that the
employees believe their organization be a labor organization.
*[Electromation].
Purpose of the Employee Entity: Section 2(5) requires the Board to inquire
into the purpose of the employee entity at issue because it must determine
whether it exists for the purpose of dealing with conditions of employment.
a. Purpose is different from motive, and the purpose to which the
statute directs inquiry does not necessarily entail subjective
hostility towards unions—purpose is what the organization is set up
to do and may be shown by what it does.
b. If the purpose is to deal with an employer concerning conditions of
employment the Section 2(5) definition has been met regardless of
whether the employer has created it, or fostered its creation.
c. “Perhaps the most telling aspect of dependency is that the
committee cannot even make a decision about when it will meet
without prior approval from the employer” Chairman Gould.
*[Electromation].
Supervisors: (NLRA Section14(a)) supervisors are not specifically “employers”
or members of a labor organizations within the meaning of the NLRA. The Board
has taken the position that they will deal with the “supervisor issue’ on a case by
case basis under Section 14(a).
a. Section 14(a): provides that “nothing herein shall prohibit any
individual employed as supervisor from becoming or remaining a
member of a labor organization, but no employer subject to this act
shall be compelled to deem individuals defined…as supervisors as
employees for the purpose of any law either national or local related
to collective bargaining.
28
i.
This section, in effect, shields the employer from liability
when dealing with supervisors—moral of the story, don’t sell
yourself out to the company and join the union.
b. A problem arises when a supervisor sits on a committee because it
is very difficult to tell where that person’s loyalties lie—to the
employees or to the manager.
Union Negotiation before Recognition: Section 9(a) guarantees employees
freedom of choice and majority rule in their selection of a bargaining representative.
The Act, thus can place a non-consenting minority under the bargaining responsibility
of an agency selected by a majority of workers.
a. The grant of exclusive recognition to a minority union constitutes unlawful
support in violation of Section 8(a)(2) because the union which is favored
is given a marketed advantage over any other union in securing the
adherence of employees; notwithstanding that the employer and union
had a good faith belief that the union had majority status.
i.
This is because nothing in the language knowingly prescribes an
element of an unfair labor practice under Section 8(a)(2).
b. Card Checks: are the manner whereby the union goes around and
secures recruits by having employees join the union by signing or checking
the cards. Card checks are critical because an employer can only recognize
a union without a minority from by an election, but can never recognize a
minority without a majority from all card checks.
c. Remedy: redo the card check, or haven an election (which is the prevailing
trend).
*[Intern’l Ladies Garment Workers v. NLRB].
Negotiation with a union prior to formal recognition proscribed International Ladies' Garment Worker v. NLRB (1961)
a. The union asserted that it had a majority and the employer, without
checking, recognized the union as the exclusive bargaining
representative. As it turned out, the union did not have a majority.
i.
A grant of exclusive recognition to a minority union
constitutes unlawful support in violation of Section 8(a)(2),
because the union is so favored is given a marked advantage
over any other in securing the adherence of employees.
ii.
Again, intent is NOT required for a Section 8(a)(2) violation.
Methods of Determining Unlawful Domination or Support: Following are
major areas of activity likely to violate Section 8(a)(2)
a. Solicitation of membership: An employer may not actively solicit
union members (e.g., for a union favored by the employer, as opposed to
another union).
i.
BUT employer can establish rules permitting employees to solicit
for a union, provided such rules are not discriminatorily applied to
prohibit anti-union argument or solicitation by rival unions.
29
1. For example - an employer violated Section 8(a)(2) by
allowing one union to solicit on company time while
prohibiting solicitation by a rival union.
b. Undue Assistance: If an employer takes active part in the
establishment of a union or its affairs, the employer may be guilty of
unlawful "domination or assistance".
i.
Employer need not take part personally - a supervisor or other
party may be considered an agent acting on behalf of employer.
ii.
A violation of the Act has been found where the employer merely
aided in drafting the charter and by-laws that started the union.
iii.
An employer's anti-union campaign against one union, resulting in
the formation of a company union, was found to be unlawful
assistance.
iv.
It is unlawful for a company to recognize a union before a
substantial proportion of employees have been hired. [Deklewa v.
IABW (1987)].
c. Use of Company Facilities: Supplying company facilities (e.g., legal
services, office place, secretarial services, and printing or other
equipment) to one union while denying them to another, would be
unlawful employer support under Section 8(a)(2).
i.
Violation where employer grants access exclusively to one
union: Employer violated act by granting one union the use of
company premises, time to hold committee elections, and a motel
room to be used as a meeting place by the union, while refusing to
consider the claim of a rival union for recognition.
ii.
No violation where employer grants access to both
victorious union and rival union. Where an employer
introduced an employee to a union agent, allowed the agent to
contact employees in nonpublic areas of the premises during
working hours, and promptly recognized the union - NLRB
concluded there was not enough evidence to support finding of
unlawful "assistance". Board also found employer had permitted
access to premises by rival unions, had not solicited members for
the union, and had not recognized the union in question before it
represented a majority of employees or after another union had
filed a representation claim. [Mace Food Stores].
iii.
Distinction between "support" and "cooperation": In
another case, court of appeals held that an incidental benefit - in the
form of receipts totaling $120 a year from a coffee machine
operation on company premises - granted to one union over
another but not used to gain concessions from that union during
bargaining sessions, did not constitute domination or assistance.
[NLRB v. Post Publishing Co.]
Court held that mere "cooperation" would not be unlawful absent evidence
that it had been calculated to (or did) coerce employees.
30
d. Domination through union by-laws or constitutional
provisions: Provisions in a union constitution or by-laws that evidence
employer control will violate section 8(a)(2). Moreover, the absence of
any constitution, be-laws, or membership requirement other than
employment at the employer's plant is considered evidence of employer
domination.
i.
A by-law provision that gives the employer equal representation on
a "committee" governing the employee organization, plus the power
to determine which employees would sit on the committee, violates
the Act.
ii.
BUT, the employer may be represented on employee committees if
the employees so desire, and if such representation was not thrust
upon them and does not inhibit them from voicing their demands.
e. Employer choice between rival unions - Abraham Grossman
d/b/a Bruckner Nursing Home (1982)
a. One union had 2 signed authorization cards, while another union
had authorization cards from 80-90% of the employer’s employees.
The employer had 125 employees.
i.
In the case of a rival union, an employer who recognizes a
labor organization which represents an uncoerced,
unassisted majority, before a valid petition for an election
has been filed w/ the Board will not have violated Section
8(a)(2).
ii.
Once a petition has been filed, the employer must refrain
from recognizing any of the rival unions.
1. A petition for an election will be granted when the
rival union can show that it has 30% support through
the authorization cards.
Where there is no question with respect to the union that enjoys majority status,
an employer does not violate the Act by negotiating with the majority
representatives.
f. Linden Lumber: An employer confronted with a claim of a majority and
asked for recognition shall not be guilty of an unfair labor practice
(§8(a)(5)) when it refuses to recognize a union by signature cards. There
does not even have to be a good faith belief that the union does not
represent a majority. You do not have to petition for an election either.
g. Int’l Ladies & Abraham Grossman & Linden Lumber mean that an
employer is never going to recognize a labor organization as the exclusive
bargaining representative for fear of violating Section 8(a)(2). This
effectively means that the labor organization is going to have to petition
for an election every time.
31
F. Discrimination on the Basis of Union Membership
NLRA Section 8(a)(3) makes it an unfair labor practice for an employer to discourage or
encourage union membership in any labor organization by discrimination in regard to
hiring, tenure, or employment or with respect to any term or condition of employment.
Proving Discrimination: Cases that arise under Section 8(a)(3) involve the discharge
of employees, with the employer claiming the discharge was for a legitimate work
related reason, while the Board (or Union) claims that the employer’s true motive was
discrimination, i.e., retaliation for being a union member supporter.
a. It is clear that if discriminatory motive and discouragement of union
support can be shown, Section 8(a)(3) will be violated; such a discharge
will violate Section 8(a)(1) as well.
b. A violation can be found under Section 8(a)(1) simply by proof that the
impact on Section 7 rights outweighs any legitimate employer interest.
c. Under Section 10(c ), Board findings must be based on a
"preponderance" of the evidence.
d. Sections 10(e) and (f) provide that in reviewing Board decisions, courts
must uphold findings of fact if they are supported by "substantial evidence
contained in the record as a whole". [Universal Camera Corp. v.
NLRB (1951)]
e. Discriminatory motive is required for a Section 8(a)(3) violation.
i.
The General Counsel has the burden of proving that the
employee’s conduct protected by Section 7 was a
substantial or motivating factor in the discharge.
ii.
If this can be shown, the employer can prove, by a preponderance of
the evidence, that the employee would have been fired even in the
absence of protected conduct.
Examples of employer discrimination:
a. Discrimination in hiring or firing: An employer may not hire
or fire an employee on the basis of the employee's membership or
lack of membership in a union [Phelps Dodge Corp. v. NLRB]
b. Discrimination in tenure, terms, or conditions of
employment: It is unfair labor practice under Section 8(a)(3)
for an employer "by discrimination in regard to tenure or
employment or any term or condition of employer, to encourage or
discourage membership in any labor organization." An employer
may not discharge, lay off, demote, transfer, etc. where the decision
to do so is based on union considerations, or where the employer's
action would have the practical effect of encouraging or
discouraging membership in any labor organization.
32
Legal for Employer to Require Employee Join Union: Subject to State law
(Section 14(b)), an employer can enter into an agreement w/ the union to require union
membership 30 days after the signing of the CBA as a requisite of employment.
Union Security Agreements: Agreements that permit an employer to discharge an
employer for nonpayment of dues or initiation fees are allowed (under Section 8(a)(3))
Discriminatory Discharge: Employer may not discharge an employee where the
motivation for the discharge is to encourage or discourage union membership.
Violations of 8(a)(3) were found where:
1. Employer discharged a nonunion employee solely because he hat attended
a union organizational meeting, and
2. Employer discharged an employee who refused to join a companydominated union (this is also a violation of Section 8(a)(2)).
Discriminatory Lay-Offs: An employer may not lay off or suspend employee
because of his union activity.
Other Justifications Irrelevant - Edward G. Budd Manufacturing Co. v.
NLRB (1943) - page 44
a. An employer may discharge an employee for good reason, poor reason, or
no reason at all so long as the provisions of the NLRA are not violated.
i.
It is a violation of the NLRA Section 8(a)(3) to discharge an
employee because he has engaged in activity on behalf of the union.
ii.
Conversely, an employer may retain an employee for good reason,
bad reason, or no reason at all and the reason is not a concern of the
Board; however, an employer cannot retain an employee and then
use his poor work performance as a pretext for discharging when he
becomes union affiliated.
*[Edward Budd Mfg. Co. v. NLRB].
Scope of Review of NLRA Cases: S.C. limited role of appellate courts to
determining the "reasonableness and fairness" of the Board's decision - courts should
not interfere when choice is between two "fairly conflicting views" or when findings of
fact are supported by substantial evidence when considering the whole record.
"Substantial evidence" standard in a "mixed motive" case - Mueller
Brass Co. v. NLRB (1977)
a. One employee didn’t return to work until a week after his doctor
said he could. Another employee displayed sex toys in front of
female employees. The employees were active union proponents.
Both employees were discharged.
i.
Standard of review is that the Board’s determination must be
supported by substantial evidence on the record as a whole.
See also §10(e).
1. The Board’s determination is overturned when the
reviewing court cannot conscientiously conclude that
33
ii.
iii.
iv.
the Board’s determination is supported by substantial
evidence
Absent a showing of anti-union animus, an
employer may discharge an employee w/out
running afoul of §8(a)(3) for a good reason, a bad
reason or no reason at all.
The relevant question for §8(a)(3) is whether like cases are
treated differently when an employee is an active union
proponent.
Holding: Since the Board could not show that the employees
were fired for engaging in protected conduct (i.e. were
treated differently from other employees who engaged in the
same conduct), it failed to carry its burden.
Proof in "mixed motive" or "pretext" cases: Board has ruled that (1) a
prima facie case must be established by the General Counsel's showing that an
impermissible reason was a motivating factor for employer's action. Then (2) it is
up to employer to prove that its action would have been the same in the absence
of impermissible factor. [Established in Wright Line (NLRB - 1980), and
approved by SC in NLRB v. Transportation Management Corp. (1983)]
"Runaway" Shop: An analogous problem to discrimination arises when an
employer decides to close its plant and relocate elsewhere because of anti-union
animus.
a. There is a general agreement that if the employer’s move is
motivated by hostility toward and a desire to escape the union, the
action violates Section 8(a)(3).
b. It is well settled that an employer may not transfer its
business to deprive employees of rights protected by Section
7.
c. Caveat: the courts have been generally more willing than the Board
to countenance employer relocation triggered by worsening
economics to which the union substantially contributes.
d. Compare with Section 8(a)(1) cases. An employer fired an
employee on the basis of a false report that the employee had
threatened to use dynamite - this was done in good faith. The
discharge was found to be a violation of Section 8(a)(1). [NLRB v.
Burnip & Simms (1964)]
Dubuque Packing Co.: employer relocated an area of its business to save on
labor costs.
i.
Framework for analyzing whether a relocation constitutes a
mandatory subject:
1.
The Board has the initial burden of demonstrating that the
employer’s decision involved a relocation of work
unaccompanied by a basic change in the nature of the
employer’s operation.
34
2.
ii.
The employer may introduce evidence rebutting this by
showing that:
a.
The work performed at the new location varies
significantly from the work performed at the former
plant;
i.
Ex. Movement from labor-intensive to
automation.
b. The work performed at the former plant is to be
discontinued entirely and not moved to a new
location; or
c.
The employer’s decision involves a change in the
scope and direction of the enterprise.
3.
Alternatively, the employer can rebut this by showing that:
a.
Labor costs were not a factor in the decision; or
b. If labor costs were a factor, that the union could not
have offered concessions that could have changed the
employer’s decision.
Holding: Basically, any relocation case is going to come down to
whether the relocation occurred because of labor costs only.
Closing Down a Department - NLRB v. Adkins Transfer Co. (1995)
a. Two employees joined the teamster’s union. The union stated that
based upon applicable wages in the area, the employees were
entitled to a raise. Rather than pay the increased wages, the
employer discharged the employees.
b. Holding: The employer fired the employees because he could not
afford the union wages, not because of any animus towards the
union.
c. Employers are permitted to discontinue departments and discharge
employees, with or without cause, as long as said activities is not for
the illegal purpose of encouraging or discouraging union
membership.
Discriminatory Demotions and Transfers: Changes in employment conditions
based on legitimate economic considerations are permissible. BUT any change in the
employment conditions of an employee where the motivation for the change is to
"encourage or discourage" union activity violates section 8(a)(3).
a. Unfair labor practice for employer to reduce the seniority standing of an
employee because employee failed to pay union dues.
b. Employer violates Act if it gives union sole right to fix seniority levels of
employees, as this enables union to discriminate in favor of own members.
c. BUT, not a violation for contract terms to provide that seniority will be
determined by joint employer-union committee.
Shutting Down Operations - Textile Workers v. Darlington Manufacturing
Co.
a. Employer closed his plant after union won election.
35
b. An employer has the absolute right to terminate his business for any
reason he pleases, including anti-union animus.
c. Partial Closing: If the persons exercising control over a plant that is
being closed for anti-union reasons:
(1) has an interest in another business, whether or not affiliated w/ or
engaged in the same line of commercial activity as the closed plant, of
sufficient substantiality to give promise of their reaping a benefit from the
discouragement of unionization in that business;
(2) act to close their plant w/ the purpose of producing such a result; and
(3) occupy a relationship to the other business which makes it realistically
foreseeable that its employees will fear that such business will also be
closed down if they persist in organizational activities, an unfair labor
practice under section 8(a)(3) has occurred.
d. In summary, an employer commits a section 8(a)(3) violation when they
conduct a partial closing in an effort to chill unionism in any of its
remaining plants and they can reasonably foresee that it will have that
effect.
Supervisors - Automobile Salesmen’s Local 1095 v. NLRB:
a. The discharge of a supervisor will violate the Act only if it directly
interferes w/ an employee’s exercise of Section 7 rights.
b. Section 2(11): Supervisor means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to recommend
such action, if in connection w/ the foregoing the exercise of such
authority is not of merely routine or clerical nature, but requires the use of
independent judgment.
G. Remedies for Violation of the Right to Organize
Where judicial relief is sought by Board for failure to comply with NLRB order
concerning violations of employee rights under Section 7, the order generally takes the
form of cease and desist orders and/or orders requiring affirmative action
(e.g., reinstatement with back pay, preferential hiring).
Section 10(c): gives the Board the option of three main remedies for violations of
unfair labor practices:
1. It can issue a cease and desist order to remedy specific or general
conduct if the company has a long history of anti-union sentiment (in such
circumstances the Board can order an employer to “cease and desist in any
manner from interfering with an employees organizational rights).
2. It can issue orders for affirmative action; that is, it can order the
employer to fix a problem; or
3. It can order the reinstatement of employees who were discriminated
against, with or without backpay.
36
In addition to these three traditional remedies the board may also order, and in some
cases formulates novel remedies, such as:
1. posting notice in the plant that it has been found to have committed an
unfair labor practice;
2. mail notice stating that it has committed an unfair labor practice;
3. have a company official read the notice of unfair labor practice to
employees;
4. give union access to employer bulletin boards or parking lots;
5. reimburse the board for costs of prosecution the action; and
6. Company and some advisors may be held to be in civil contempt.
These are affirmative action remedies used in J.P. Stevens & Company (see Legalines
age 51)
Cease and Desist Orders: Usually directed against specific conduct. BUT where a
long history of violations or anti-union sentiment exists, a blanket order may be
imposed directing employer to "cease and desist" in any manner from interfering with
employee's organizational rights.
Orders for Affirmative Action: Board may order an employer to take affirmative
action in order to correct the effects of past unfair labor practices.
a. J.P. Stevens & Co. v. NLRB (1967):
i.
Court upheld Board order directing reinstatement in order to offset
an employer's "major campaign of illegal anti-union activity
spearheaded by retaliatory discharges."
ii.
NLRB could also require a notice of reinstatement be posted in all
employer's plants and a copy of notice to be mailed to all
employees. BUT Board CANNOT require employer to read the
notice to his employees on company time.
iii.
Also, facts in this case didn’t justify making employer provide
bulletin board to union for posting of notice of reinstatement.
Remedies for Discriminatory Discharge or in Hiring: the refusal to hire
employees solely because of their union affiliations is an unfair labor practice under
§8(a)(3), thus the remedial authority of the Board under §10(c) becomes operative.
a. The Board has three remedies under §10(c) for discrimination:
i.
issuance of a cease and desist order;
ii.
reinstatement or instatement of the aggrieved person; and
iii.
with or without backpay.
b. Reinstatement: is the conventional correction for discriminatory discharge
and the right to reinstatement cannot be doubted.
i.
The mere fact that the victim of discrimination has found
equivalent employment does not itself preclude the Board from
undoing the discrimination and requiring employment; but neither
does the remedy automatically flow from the Act itself when
discrimination has been found.
37
*[Phelps Dodge v. NLRB].
Discrimination in Hiring of Employees - Phelps Dodge Corp. v. NLRB
(1941)
a. Once an unfair labor practice has occurred, the Board’s §10(c)
powers come into play.
i.
§10(c): If upon the preponderance of the testimony taken the
Board shall be of the opinion that any person named in the
complaint has engaged in or is engaging in any such unfair
labor practice, then the Board shall state its findings of fact
and shall cause to served on such person an order requiring
such person to cease and desist from such unfair labor
practice, and to take such affirmative action including
reinstatement of employees w/ or w/out back pay, as will
effectuate the policies of this Act.
b. §2(3): employee shall include…any individual whose work has
ceased as a consequence of, or in connection w/, any current labor
dispute or because of any unfair labor practice, and who has not
obtained any other regular and substantially equivalent
employment…
c. Holding: The mere fact that the victim of discrimination has
obtained equivalent employment does not itself preclude
the Board from undoing the discrimination and requiring
employment. The Court suggests that Congress gave the Board wide
discretion to fashion remedies consistent \w/ the policy of the Act.
d. Rationale: The Act was not designed to correct private injuries, but
for the maintenance of worker’s self-organization.
ABF Freight System, Inc v. NLRB:
a. The Board could order reinstatement w/ backpay of an employee
who had been discharged in violation of §8(a)(3) but who had lied
under oath in the hearing before the ALJ.
Temporary Injunctions: Section 10(j) authorizes the Board in emergency situations
to seek temporary injunctions in federal district court restraining the employer or union
from continuing an unfair labor practice even before a hearing occurs. Board must have
reasonable cause to believe the unfair practice had been committed.
a. There are four prerequisites for obtaining a temporary
restraining order under §10(j):
i.
the filing of an unfair labor practice charge;
ii.
issuance of a complaint on the charge;
iii.
facts supporting the charge; and
iv.
a likelihood that the unfair labor practice will continue unless
restrained.
b. Temporary injunctions are not used much and typically on sought in
extreme cases of unfair labor practices, such as:
38
i.
ii.
iii.
iv.
The threat or use of violence;
extreme acts when an election is nearing; or
to stop a company from dismantling a plant (such as in Darlington
Mfg. Co.); or
in any other case when irreparable injury imminent.
Ordering Recognition of Union: When a company has committed such unfair
practices that dissipate a unions' majority support to the extent that it is doubtful that a
fair and free election could be conducted, the Board has ordered the company to
recognize and bargain with the union. [Gissel]
a. Miller v. California Pac. Med. Ctr.: to get the 10(j) preliminary
injunction, the Board must be able to show (1) a likelihood of success on
the merits; and (2) irreparable harm.
i.
If the Board demonstrates a likelihood of success on the merits,
irreparable harm is presumed.
ii.
If the Board has a fair chance of succeeding on the merits, the Court
must examine irreparable harm.
Notice: in cases of union unfair labor practices, the Board must seek a
preliminary injunction.
Runaway Shop Remedies:
Local 57 Ladies Garment Workers v. NLRB (1969)
a. Board ordered recognition and bargaining with the union at the
new plant locations. Court of appeals overturned bargaining order,
saying order nullified the rights of the new employees at the new
plant to make their own choice.
b. On remand, Board ordered company to provide union a list of
employees at new plant, to allow union access to bulletin boards for
one year and access to parking lots, and also to bargain upon proof
that a majority of the new employees had designated the union as
their representative.
H. Selection of the Collective Bargaining Representative
Employer Refusal to Bargain - Section 8(a)(5): it is an unfair labor practice for
the employer to refuse to bargain collectively with the representatives of his employees,
subject to the provisions of §9(a), which provides that the representatives selected by a
majority of the employees of the appropriate unit will be the exclusive representatives
for collective bargaining.
a. The grounds for finding an unfair labor practice are:
i.
the unit claims must be the correct one;
ii.
a majority of employees were in favor of the union at the time of the
employer’s refusal to bargain; and
iii.
the employer improperly refused to bargain.
39
Immediate Duty to Bargain: once a representative has been designated by a
majority of the employees, the employer is under an immediate duty to bargain
collectively.
Election Proceedings: §9 proceedings are commenced by a union petition for an
election; the employer may also file a petition for election when two or more unions
present conflicting representational claims and whenever a union puts in a claim for
recognition with it.
Decertification: Taft-Hartley Act added Section 9(c )(1)(A) which states that any
employee can file a petition alleging that a majority of the employees in the unit do not
wish to be represented by the current union. If Board finds this question to exist, may
order a decertification election.
Restriction of Section 9 Rights: Most important grounds upon which the Board
may decline to proceed to an investigation or certification have been:
1. the want of substantial interest on the part of the petitioning union;
2. the commission of unremedied unfair labor practices;
3. prior certification or the lapse of less than a year since the last previous
election; and
4. the subsistence of a valid collective bargaining agreement.
Substantial Interest Requirement: Board will proceed to investigation and
certification only when there is a showing of substantial interest by the union
(ordinarily authorization cards signed by at least 30% of the proposed bargaining
unit).
Grounds for Denying an Election:
a. Unremedied unfair labor practice: While an unfair labor
practice is pending, Board will not proceed to certification until the
issues are resolved—a union can waive its rights to pursue the
charge.
b. Election Bar: After any election, there cannot be an election for
another year, regardless of who wins.
c. Certification Bar: Earliest election date Union B can secure is
one year after Union A's certification. Meant to stabilize employeremployee relationships.
i.
Also a one year bar to decertification petitions.
d. Exceptions:
i.
Bargaining representative becomes unable or unwilling to
represent the employees in the bargaining unit;
ii.
When a schism occurs (local union disaffiliates itself w/ the
parent union); and
iii.
Employer expands or changes its operations.
a. General Rule: Less than 30% of the current workers
were working for the employer when the contract was
40
iv. Mergers.
executed or if less than 50% of the current job
classifications existed.
Contract Bar - effect of a valid collective bargaining agreement
The collective bargaining agreement itself can be a bar to an new election for
a period of 3-years.
a. The collective bargaining agreement must in writing and executed by all
the contracting parties covering:
i.
all employees in the rival union’s petition and all employees in the
appropriate bargaining unit;
ii.
it must grant exclusive recognition to the union as the exclusive
representative of all members in that unit; and
iii.
it must embody the substantial terms and conditions of
employment.
b. Once a contract meets all these requirements it will as act a bar to any
other election for the terms of the contract, but not to exceed 3-years.
c. 30/60-90 Rule: ordinarily contracts that constitute a bar to an election
will cease do so upon their termination; nevertheless, a rival union or a
decertification petitioner must bear certain other requirements in mind in
order for the petition to be considered by the Board:
d. The rival union must file its petition not more than 90-days nor less than
60 days before the termination of the contract.
e. If a new contract is executed in this period it will act as a bar provided that
it satisfies the above requirements and proved that no petition was timely
filed in the preceding “open” period of 30-days.
f. If a new contract was not executed when the 60-days expire, a petition can
be filed at any time prior to the execution of a new agreement.
Removal of Contract Bar - see Legallines page 53.
I. Determining Appropriate Bargaining Unit
a. §9(b): The Board shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights guaranteed by this
Act, the unit appropriate for the purposes of collective bargaining shall be
the employer unit, craft unit, plant unit, or subdivision thereof…
b. §9(a): Representatives designated or selected for the purpose of collective
bargaining by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in
such unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or conditions of employment…
c. The Board has historically favored smaller bargaining units for several
reasons:
i.
A large unit is difficult to organize;
ii.
Large units encompass varying interests, attitudes, & skills, creating
strains on the union’s ability to represent all of its constituents;
41
iii.
The smaller the unit, the more likely it is that an individual worker
will be effectively represented; and
iv.
Once the appropriate bargaining unit is determined for an election,
there is nothing preventing several small unions from re-grouping
into a single larger entity for the purposes of carrying out
negotiations.
d. In determining the appropriate bargaining unit, the Board looks for a
community of interest. Relevant factors include:
i.
Similarity in the scale & manner of earnings;
ii.
Similarity in employee benefits, hours of work, & other terms &
conditions of employment;
iii.
Similarity in the type of work performed;
iv.
Similarity in the qualifications, skills & training of the employees;
v.
Frequency of contact or interchange among the employees;
vi.
Geographic proximity;
vii.
Integration of production processes;
viii.
Common supervision & determination of labor-relations policy;
ix.
History of collective bargaining;
x.
Desires of affected employees; and
xi.
Extent of union organization. But see §9(c)(5) - extent to which
employees have organized shall not be controlling in determining
an appropriate bargaining unit.
Multi-Employer Bargaining: many employers carry on their businesses in a variety
of geographical areas, with different stores and retail chains throughout the country.
Where a union seeks to organize a company of this kind, it is possible to conceive a unit
comprising all the employees in the region, state, municipality, or all the employees
within a signal plant, office or store or a class of employees within a single store, office,
or plant.
a. As noted, the union will seek a smaller bargaining unit, and the company
will strive for a larger unit.
b. The Board generally prefers small bargaining units also; however,
§9(c)(5) does not require this nor indicate a preference for it.
c. Three considerations go into deciding between larger or smaller units:
i.
Principle of self-determination
ii.
Industrial stability
iii.
Efficiency of production
iv.
Industrial organization
v.
Status as "effective" bargaining unit
Single versus multi-location unit - NLRB v. Chicago Health & Tennis
Clubs, Inc. (7th Cir. 1977)
a. If an employer wants to challenge the appropriateness of a
bargaining unit, it must refuse to bargain under §8(a)(5).
b. The Court says that the Board must “respect the interest of an
integrated multi-unit employer in maintaining enterprise-wide
labor relations.” A careful reading of §9(b), has no such
42
requirement, though. In other words, this decision is largely resultoriented judicial bullshit.
c. In part 1 of the case, the Court rules that a district-wide bargaining
unit was appropriate because the local stores exercised little, if any,
authority over any of the terms & conditions of employment and
employees were frequently transferred between stores on a regular
basis.
d. In part 2, the health club’s individual stores had much more
autonomy so the Court upholds the Board’s determination that a
single store bargaining unit was appropriate.
Withdrawal from a multi-employer unit - Charles D. Bonanno Linen
Service, Inc. v. NLRB (1982)
a. P was part of an association of employers that created a multiemployer unit. An impasse was reached during negotiations. The
union conducted a selective strike against P. The other employers
locked their employees out. P hired permanent replacements and
notified the association that it was withdrawing from the unit.
i.
Advantages of multi-employer bargaining:
1. it enables smaller employers to bargain on an equal
basis w/ a large union & avoid the competitive
disadvantages resulting from nonuniform contractual
terms;
2. employers can make concessions w/out fear that other
employers will refuse to make similar concessions to
achieve competitive advantage; and
3. it enhances the efficiency of bargaining and reduces
strife, as it permits the union and employers to
concentrate their bargaining resources on negotiation
of a single contract.
ii.
whipsaw strike: is where the union strikes a single
employer in a multi-employer bargaining unit.
iii.
A party may withdraw from a multi-employer unit prior to
the date set for negotiation of a new contract or the date on
which negotiations actually begin, provided that adequate
notice is given.
iv.
Once negotiations have begun, withdrawal is only permitted
if there is mutual consent or unusual circumstances.
1. Unusual circumstances include (1) extreme financial
pressures; and (2) where a bargaining unit has
become substantially fragmented (i.e. where the union
executes an interim agreement that will survive a
unit-wide agreement). Impasse is not an unusual
circumstance. Additionally, temporary
interim contracts during a selective strike do
not create an unusual circumstance.
43
v.
vi.
a. Rationale: Impasse is a temporary deadlock,
which may be intentionally done in certain
cases to further the bargaining process. Similar
reasoning applies to the interim contracts: they
are temporary.
Multi-employer bargaining is completely voluntary (nothing
in §9(b) authorizes the Board to create a multi-employer
unit).
The Board can regulate bargaining stability, but it cannot
regulate the use of economic weapons.
Hospital Units: Board passed a substantive rule delineating the appropriate
bargaining units for hospitals; however, is so doing, it acted contrary to §9(b)’s
requirement that the Board decide the appropriate bargaining unit in each case.
Nonetheless the Supreme Court held that the Board did not act arbitrary and capricious
by going to rulemaking instead of adjudication. Thus, the court upheld the Board’s Rule
which established the following bargaining units for the health care industry:
1. all registered nurses;
2. all physicians;
3. all other professionals;
4. all technical employees;
5. all skilled maintenance workers;
6. all business office clerical workers;
7. all guards; and
8. all other employees.
*Thus, eight and only eight, units shall be appropriate for any hospital (subject to three
exceptions in special circumstances).
**[American Hospital Ass’n v. NLRB].
American Hosp. Ass’n v. NLRB: The Board can create a rule under its §6
rulemaking powers that creates an industry-wide rule for the appropriate
bargaining units. §9(b)’s use of “in each case” is not a limitation on this.
"Coalition" Bargaining: Where one large employer deals with several unions, a
union may strengthen its bargaining position by coordinating its bargaining efforts with
the other unions.
Employer must bargain - General Electric Co. v. NLRB: all of the unions
that negotiated w/ P showed up when one of them was negotiating as
“consultants.”
a. In general, both sides can choose who they see fit to represent them
in formal negotiations and neither can control the other’s selection.
i.
Exception: When the choice of representatives create a
conflict of interest that make good-faith bargaining
impractical.
44
ii.
Burden of proof: A party contesting another’s choice of
representative must make a showing of a clear and present
danger to the collective bargaining process.
b. Holding: So long as representatives are bargaining solely on behalf
of the employees at issue during that bargaining session, they may
include members of other unions.
Union Negotiating Committees: mixed union negotiating committees (i.e.
the union in negotiations brings other union negotiators from different unions to
the bargaining table, not to help in the formation of the collective bargaining
agreement by as “experts in negotiation”) are not per se improper absent of
showing of ulterior motive or bad faith, and an employer commits an unfair labor
practice unless it bargains with the such a group.
a. NLRA §8(b)(1)(B): the right to choose bargaining representatives is
a right of the employees and a corresponding right of employers to
choose whomever they want to represent them in formal
negotiations is fundamental to the statutory scheme.
b. In general, either side, can choose as it deems fit a representative
and neither side can control the other’s selection.
c. Exception: the freedom to choose a bargaining representative is not
absolute, and exceptions arise in situations infected with ill-will
which make bargaining impracticable. The employer has the
burden to demonstrate, when objecting to the employee’s selection
of a bargaining representative, to show a clear and present danger
to the collective bargaining process, which is a considerable burden.
d. Clear and Present Danger Test: there are only a few things which
constitute a “clear and present danger” to collective bargaining:
i.
conflicts of interest;
ii.
someone as a bargaining representative who has expressed
great animosity towards the employer;
iii.
a union established company in direct competition with the
employer;
iv.
an ex-union official added to employer committee’s to put
one over on the union; or
v.
someone who has made racial or ethical slurs on or against
the employer.
e. As a general proposition, the union may include members of other
unions on a negotiating committee because the union has an
interest in using experts to bargain, whether the expertise be on
technical, substantive matters, or on the general art of negotiation.
f. In filling that need, no good reason appears why the union may not
look to outsiders, just as the employer is free to do.
*[General Electric v. NLRB].
45
III.
Negotiation of the Collective Bargaining Agreement
A. Exclusive Representation and Majority Rule
Scope of Union Negotiating Authority: Once a union has been selected by a
majority of employees in the bargaining unit, it has exclusive authority to represent all
employees in the unit on matters that are properly the subject of collective bargaining
(Section 9(a)).
Individual Employment Contracts Superseded on Matters Covered By
Collective Agreement: Employer may not negotiate individual contracts with
employees, nor may it use existence of individual contract before certification as
grounds for refusing to bargain with unions. Not even exceptional
circumstances justify this!
Individual Contracts Permitted Where Not in Conflict with Collective
Agreement. See page 68 Telegraphers where SC recognized individual contract
might be valid in limited situations.
No justification for refusal to bargain - J.I. Case Co. v. NLRB (1944)
a. Employer negotiated individual contracts w/ employees. While
these contracts were still in effect, the union won an election and
tried to bargain w/ the employer; however, the employer refused,
stating that it could not negotiate until the contracts had expired.
i.
Holding: Individual contracts do not allow the employer to
escape its duty to bargain in good faith under §8(a)(5). Once
an employee is hired, the terms of the collective bargaining
agreement govern his employment.
ii.
Rationale: The purpose of the Act is to supersede the terms
of individual agreements so that employees may use their
bargaining strength to serve the welfare of the entire group
of employees.
Section 9(a) Supersedes Section 7 Rights of Individual Employees: Where a
union has exclusive authority under 9(a) to represent all employees in unit, individual
employees who engage in concerted activities without union approval are not protected
from discipline (including discharge) by section 7.
No individual bargaining of discrimination claim - Emporium Capwell
Co. v. Western Addition Community Organization (SC 1975)
a. a group of employees, who were dissatisfied w/ how the union was
handling discrimination, picketed the employer. They stated that
they would continue picketing until the employer sat down and
bargained w/ them. The employer subsequently fired them.
i.
§9(a) proviso: any individual employee(s) shall have the
right at any time to present grievances to their employer and
46
ii.
iii.
iv.
to have such grievances adjusted, without the intervention of
the bargaining representative, as long as the adjustment is
not inconsistent w/ the terms of a collective-bargaining
agreement then in effect.
1. §9(a)’s proviso was intended to permit employees to
present grievances and to authorize the employer to
entertain them w/out opening himself up to an unfair
labor practice claim.
The union must represent all of the employees in a unit in
good faith. A union’s refusal to process grievances against
discrimination is an unfair labor practice.
Once an exclusive representative has been selected, only they
may bargain w/ the employer with respect to the terms and
conditions of employment.
Notice, if there had not been a union, these employees’
actions would have been protected by §7.
B. Limits of Majority Rule and the Duty of Fair Representation
Recognizing that power resulting from union's exclusive bargaining authority may invite
abuse, law provides certain safeguards against unfair treatment by union of individuals
or groups within bargaining unit.
a. Exclusion of employees: In determining appropriate unit, Board will
exclude employees not having a community of interest or having
conflicting interests.
b. Duty to employees: Union has broad discretion but has a duty to
bargain fairly on behalf of all employees, including nonmembers, and
failure to do so may be an unfair labor practice.
c. Decertification: Union may be ousted by decertification election.
d. Landrum-Griffin Act: Provides protective standards and procedures to
assure proper conduct of union internal affairs.
e. Membership: Unit members will not automatically become union
members - unit members MUST become union members only if employer
and union negotiate a proper collective bargaining provision making
membership a condition of continued employment.
f. Nonmandatory subjects: may be adjusted by individual or minority
bargaining.
g. Additional Safeguards: 9(a) permits employees to present and adjust
grievances directly with the employer, as long as (i) adjustment is not
47
inconsistent with collective agreement, and (ii) union is given opportunity
to be present at adjustment.
h. Racial Discrimination by Union:
Duty owed to all employees in unit - Steele v. Louisville &
Nashville RR Co. (SC 1944)
a. union and employer agreed that only a certain % of the
workforce could be black.
i.
Once a union is elected, it represents all employees in
the unit and, therefore, has a duty to all these
employees.
ii.
A representative may make contracts that have
unfavorable effects on some of the members in a unit,
but they must be based on relevant differences (i.e.
seniority, type of work performed, competence, etc).
Obviously, race is not a relevant difference.
i. Military Service - Ford Motor Co. v. Huffman: military service
could be considered a reasonable relevant difference in bargaining.
C. Duty to Bargain in Good Faith (§§ 8(a)(5), 8(b)(3), 8(d))
Section 8(d): requires the employer and union to meet and confer at reasonable
times, and also to bargain in good faith.
Section 8(a)(5): makes it an unfair labor practice for an employer to refuse
bargain collectively with the employee’s representative.
Section 8(b)(3): makes it an unfair labor practice for a union or its agents to
refuse to bargain collectively with an employer, provided it is the representative
of his employees.
"Good faith" Standard: Each party must make sincere effort to reach agreement,
and must participate in negotiations to that end by meeting at reasonable times.
a. Present intent to agree: GF contemplates active participation in
deliberations evincing a present intention to find a basis for agreement
and a sincere effort to find a common ground. Section 8(d) does not
compel either party to accept a proposal or make a concession.
b. Subjective intent: GF is a subjective intent and usually depends on
external manifestations.
Deadlocked Negotiations: GF means more than going through the motions of
bargaining. If an impasse has been reached further meetings may be broken off until
circumstances change sufficiently to break the deadlock.
48
"Bad Faith": may be demonstrated by subjective nature of proposals made by a party
or by tactics and conduct employed.
Look to conduct of parties: Approach is to consider the total course of
conduct of the party, rather than isolated actions. A violation of 8(d) may result
from the "sum" of several incidents that looked at separately might not establish
bad faith.
Inferences of "bad faith": Each case is looked at separately, but Board and
courts will infer bad faith in certain situations. In these situations, actual motive
of party is irrelevant.
a. Content of proposals: NLRB looks at reasonableness of the
proposal in determining whether proposal was adopted for purpose
of frustrating negotiations and preventing agreement.
1. Employer retains full authority: Employer proposal
that offers terms that no responsible employee rep could
accept raises inference of bad faith (Alba-Waldensian
1967)
2. Employees lose benefits: A proposal that would result in
employees receiving less at end of the year following
certification than had received before union became
bargaining agent demonstrates a refusal to bargain in good
faith.
b. Conduct or tactics in negotiations
c. Dilatory tactics: Where an employer shifts position whenever an
agreement seemed to have been reached, he may be found guilty of
"bad faith" bargaining. BUT employer's withdrawing earlier offers
doesn’t in itself indicate bad faith, where none of his earlier
proposal had been unconditionally accepted by the union.
d. Demands that union drop pending charges: Court found
bad faith when employer made no effort to conclude an agreement
and threatened to postpone negotiations until union withdrew
certain unfair labor practice charges it had lodged against employer.
(NLRB v. Southwestern Porcelain Steel Corp. 1963)
e. "Take it or leave it" proposals: Employer who maintains a
"take it or leave it" attitude in negotiations may have engaged in bad
faith bargaining.
Inferences of bad faith from subject matter - NLRB v. King Size
Sandwiches, Inc. (11th Cir. 1984)
a. The employer essentially insisted on unilateral control over every
significant term & condition of employment.
i.
The Board may not compel concessions or otherwise sit in
judgment upon the substantive terms of collective bargaining
agreements; however, the Board can look to the substantive
proposals when surface bargaining is occurring.
49
ii.
iii.
iv.
1. Have to look at (a) the content of the proposals; and
(b) the position taken by the party.
The Court notes that the employer’s proposals would have
left the Union and employees w/ substantially fewer rights
and less protection than they would have had if they had
relied solely upon the Union’s certification (i.e. Employer
insisted upon no-strike clause and zipper clause).
The employer was asking employees to waive their statutory
rights to bargain (zipper clause) and strike, while offering no
incentive to surrender those rights.
Holding: The employer’s insistence was unreasonable; the
content involved the most significant terms & conditions and
the employer demanded the employees to waive statutory
rights while not giving them any reason to do so. Thus, the
Court upheld the Board’s determination that the substance
of the employer’s proposal demonstrated surface bargaining
– violating §8(a)(5).
Atlas Metal Parts Co. v. NLRB: A party is entitled to stand firm on a position
if he reasonably believes that he has sufficient bargaining strength to force
agreement by the other party.
D. Duty to Disclose Information (§ 8(a)(5), 8(b)(3))
When an employer refuses a wage increase demand by claiming economic inability
during bargaining, good faith requires the employer to allow the union to examine the
employer’s confidential books and records if the union requests.
a. Good faith bargaining necessarily requires the claims made be either party
to be honest claims.
b. Caveat: the Supreme Court noted, however, that in every case in which
economic inability is raised as an argument against increased wages it
does not automatically follow employees are entitled to substantiating
evidence, it will be determined on case by case basis.
*[NLRB v. Truitt Mfg. Co.].
NLRB v. Truitt Mfg. Co.: When an employer justifies the refusal of a wage
increase upon an economic basis, good-faith bargaining requires that, upon
request, the employer must substantiate its economic position by reasonable
proof.
a. The union must show that the information is relevant. Wages are
generally presumed to be relevant.
NLRB v. Acme Indus. Co.: the duty to disclose relevant information extends
beyond the period of contract negotiations and applies to labor-management
relations during the term of the agreement.
50
Balancing against the interests of others - Detroit Edison Co. v. NLRB
(1979): employer used a test for promotions. After all current employees failed to test,
outside employees filled the position. Union requested the test question, answer sheets,
and the score sheet for the employees. The employer refused. The Board had ordered the
employer to turn over the tests and answers to the union, but ordered the union not to
copy the tests. With respect to the score sheets, the employer had promised the
employees confidentiality; so it refused to turn them over, absent consent.
i.
§8(a)(5) includes a duty to provide relevant information need by a labor
union for the proper performance of its duties as the employees’
bargaining representative.
ii.
Holding: (1) The failure to turn the tests and answers over was an unfair
labor practice, but the Board’s remedy of ordering the employer to turn the
tests and answers over to the union failed to take into account the
employer’s interest in the security of these tests. (2) The employer’s
conditional offer to disclose did not violate §8(a)(5) because it held a valid
concern about preserving employee confidence in the testing program and
preventing the harassment of low-scoring employees.
Work slowdown not bad faith - NLRB v. Ins. Agents’ Int’l Union: The union
sat down at the bargaining table and tried to hammer out a deal, but it also was putting
economic pressure on the employer by having its employees use tactics to interfere w/
the employer’s business. The employer filed a §8(b)(3) claim.
a. “Collective bargaining is not simply an occasion for purely formal
meetings between management and labor, while each maintains an
attitude of take it or leave it; it presupposes a desire to reach ultimate
agreement, to enter into a CBA.”
b. The presence and use of economic weapons is part and parcel of
bargaining.
c. Negotiation positions are apt to be weak or strong in accordance w/ the
degree of economic power the parties possess.
d. Holding: Here, the Board is regulating the use of economic weapons. In
doing so, it is essentially regulating the substantive terms the parties will
reach, something the Act does not allow it to do.
e. Notice, though, §7 does not protect the employees’ conduct at issue in this
case. Thus, the employer could have exercised his own economic weapons
by firing these employees.
f. However, just because the employees’ conduct is not protected by §7 does
not mean that it constitutes an unfair labor practice under §8(b)(3). Again,
the rationale is that economic weapons are part of the bargaining process.
g. The Court also points out that Congress has outlawed certain economic
weapons in §8(b)(4) and §8(b)(7), meaning Congress would have outlawed
this conduct if it had wanted to.
On-the-Job Protests: a union does not fail to bargain in good faith in violation
of §8(b)(3) by sponsoring on the job conduct designed to interfere with the
employer’s business and place economic pressure upon him at the same time he
is negotiating a contract.
51
a. In Insurance Agent’s Inter’nl Union, the employees stopped
soliciting policies, failed to follow company procedures, and
engaged in morning sit-ins.
b. NOTE: none of these tactics were protected by NLRA §7.
Unprotected activities which are grounds for discharge are also
deemed to be unfair labor practices.
1. Employees, by engaging in such unprotected activity, risk
suffering the consequences of participating in such
activities—being fired.
2. But as long as the negotiations are conducted in good faith,
unprotected activities outside of the negotiations will not
taint the bargaining process.
*[NLRB v. Insurance Agents’ Intern’l Union].
Unilateral change in employment conditions - NLRB v. Katz: Union and
employer were engaged in contract negotiations, when the employer unilaterally
implemented 3 of its proposals.
i.
General Rule: No party may unilaterally change the core terms &
conditions of employment during negotiations.
ii.
Holding: An employer’s unilateral change in the conditions of employment
under negotiation is a violation of §8(a)(5).
iii.
When an employer unilaterally implements a change that is more
generous than which had been offered to the union, it is automatically a
violation of §8(a)(5) because it clearly shows that the employer is not
trying to reach a bargain w/ the union.
iv.
While the Board may not regulate economic weapons, it is authorized to
order the cessation of behavior which is in effect a refusal to negotiate, or
which directly obstructs or inhibits the actual process of discussion, or
which reflects a cast of mind against reaching agreement.
1.
Here, the unilateral implementation acted as a refusal to negotiate
and obstructed bargaining.
Negotiations: an employer is not required to lead with his best offer; he is free
to bargain. But even after impasse is reached he has no license to grant wage
increases greater than any he has ever offered the union at the bargaining table,
for such action is necessarily inconsistent with a sincere desire to conclude an
agreement with the union.
a. Wage Increases: the employer need not lead with his best offer, or
even need secure the union’s consent to implement a benefit;
however, he must first offer the benefit to the union at the
bargaining table and “bargain to impasse” on that very issue before
the employer can implement the change. If the company fails to do
so, it is conclusive bad faith.
b. An impasse is reached when there is a deadlock.
*[NLRB v. Katz].
52
Duffy Tool & Stamping v. NLRB: Parties reached impasse on one issue and
the employer unilaterally implemented a proposal that was less favorable than
the current system.
a. Unilateral implementation can occur when:
i.
the parties have reached a total impasse;
ii.
the union takes steps to delay or avoid bargaining; or
iii.
exigent circumstances require immediate change in the
terms & conditions of employment.
b. Rationale for total impasse rule: Each issue may serve as a
bargaining chip in the total scheme of things.
c. Note: When a party takes unilateral action, it can only implement
its last, best, and final offer.
Merit Increases and the Status Quo: a company is permitted to make changes to
the status quo without violating the duty of to bargain in good faith; however, the status
quo must be defined and standardized and not left to the whim and caprice of the
company. It must use objective criteria in defining the status quo. Moreover, if the
status quo is change (such as granting a merit increase after X number of working days
without an injury) and the company fails to implement that change, then that
also could be substantially departing from past practices and hence, a violation of a duty
to bargain in good faith.
a. EX: if a company regularly grants merit increases, “merit” must be defined
as some objective criteria, such as accomplishing a task or low
absenteeism. Then the company can make a unilateral change without
bargaining to impasse on the subject because it is not really making a
unilateral change, it is merely implementing company policy.
b. This can be viewed as an exception to the general rule that a company
must first bargain to impasse before implementing a unilateral change.
*[McClatchy Newspapers v. NLRB].
McClatchy Newspapers, Inc. v. NLRB: employer wanted to base wages
completely on merit. Union wanted seniority to control wages. The parties
reached impasse and the employer implemented its last proposal. There was no
definition of merit.
a. Again, generally speaking, a party may implement its last, best, and
final offer when impasse occurs.
i.
Rationale: It breaks the impasse and, therefore, encourages
bargaining.
ii.
Notice, this is likely to favor the employer and cause the
union to cave in.
b. This case involves a battle of regulating economic weapons vs.
regulating the bargaining process. See Ins. Agents case vs. Bonnano
Linen Serv. case.
i.
The Court notes that economic weapons are involved here,
but they go beyond pressuring the union to irreparably
undermining its ability to bargain. Thus, the Board was
53
primarily regulating bargaining stability, not economic
weaponry.
c. Holding: When the impact of a party’s last, best, and final offer so
greatly affects bargaining, the Board may prevent its
implementation.
i.
Here, the Board could prevent the employer’s merit proposal
because it was not defined, meaning it was completely
discretionary. This left the union completely in the dark
about how its employees were being paid. Obviously, this
leaves them in a precarious position in bargaining. The Court
noted that if “merit” had been defined, the outcome would
have been different.
Boulwarism: it may be an unfair labor practice for an employer to carefully present a
researched benefit package and then assume a “take it or leave it” bargaining position,
while at the same time undertaking an extensive publicity campaign aimed at the public
and its employees about the merits of the package and stating it will not horse trade or
give into a strike.
a. The Board, if fact, held such tactics did constitute unfair labor practices
because the company was unable to bargain fairly; that is, they were set on
implementing their proposal unilaterally adopted.
*[NLRB v. General Electric].
Remedies in event of failure to bargain in good faith: under §10(c) the Board
may impose several remedies for breach of duty to bargain in good faith: (see page 78)
1. the Board may order a bargaining order;
2. compensatory relief;
3. or any other remedy just under the circumstances (taking into consideration
the flagrancy of the violation);
4. BUT NEVER can the Board force an agreement upon the parties; the Board
may never order a party to accept a particular agreement.
E. Subjects of Collective Bargaining
Permissive, Mandatory, and Illegal Subjects of Bargaining: Subjects of
collective bargaining fall into three categories:
1. Those over which bargaining is required by statute (compulsory)
2. Those over which parties may bargain if the choose (permissive)
3. Those over which parties may not bargain under any condition (illegal).
Mandatory Subjects:
a. Section 8(d) requires employers and unions to bargain collectively on
"wages, hours, and other terms and conditions of employment".
b. Requirements include:
i.
Have to bargain in good faith;
ii.
Disclosure of relevant information;
54
iii.
iv.
Cannot unilaterally implement your proposals before impasse; and
A party can insist upon an issue until impasse & back this up w/
economic weapons.
v.
Must bargain collectively (8(d) and 8(a)(5))
c. Courts have found Mandatory subjects to include: (details - page 79)
i.
Retirement Plan Benefits
ii.
Work Assignments
iii.
Grievances
iv.
Safety Rules and Practices
v.
Management Functions Clause - NLRB v. American
National Insurance Co.
a. The employer insisted on management functions clauses for
several terms & conditions of employment, including
promotions, discipline, and scheduling.
1. The employer can insist on the management functions
clause to the point of impasse because it involves a
term & condition of employment.
2. Also, because this involves a mandatory subject of
bargaining, the employer can utilize economic
weapons.
Permissive Subjects: are thing which fall outside the terms “rates of pay, wages,
hours or employment, or other conditions of employment.” They are not statutory;
therefore, there is no duty to bargain over about these topics.
a. Under some circumstances, insisting upon bargaining to agreement on a
permissive subject may be a per se violation of §§8(a)(5) or 8(b)(3).
i.
Don’t have to bargain in good faith, but you can negotiate if you
want;
ii.
Not required to disclose information;
iii.
You can unilaterally implement; and
iv.
You cannot insist upon an issue until impasse & you cannot use
economic weapons to get a permissive issue through.
b. Cannot be prerequisite to mandatory subjects
c. Cannot be condition for overall agreement - NLRB v. Wooster
Division of Borg-Warner Corp. (1958)
the employer insisted on a ballot clause (employees vote before they would
go on strike and employer would have opportunity to submit proposal if
they voted in the affirmative) and a recognition clause (local affiliate would
be substituted for Int’l parent).
i.
Holding: These clauses were not mandatory subjects. Thus,
it was a violation of §8(a)(5) for the employer to insist on
them.
ii.
The union could have agreed to these two clauses if they
wanted to. Hence, permissive.
iii.
It is unlawful to insist on permissive subjects, but lawful to
insist upon mandatory subjects.
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iv.
To be a term & condition of employment, something must
affect the employer-employee relationship.
d. No duty to bargain on policy objectives
e. Management prerogative and union participation
f. Other Topics
i.
Subcontracting - Fiberboard Paper Products Corp. v.
NLRB (1964)
a. employer subcontracted out its maintenance work to save on
labor costs. Union filed §8(a)(3) and §8(a)(5) charges.
i.
§8(a)(3) charge was dismissed because the motive for
the subcontracting was economic and not due to antiunion animus.
ii.
§8(a)(5)
1. While not determinative, it is appropriate to
look to industrial bargaining practices to
determine whether something is a subject of
mandatory bargaining.
2. Labor costs cannot be the employer’s reason
for subcontracting.
a. The Court here noted that the decision
to subcontract did not alter the
company’s basic operation; the
maintenance work still had to be
performed in the plant; no capital
investment was contemplated; and the
company merely replaced existing
employees w/ those of an independent
contractor to do the same work under
similar conditions of employment.
iii.
Holding: An employer may not unilaterally
subcontract out union work because of labor costs.
Thus, subcontracting only violates §8(a)(5) when the
employer does so to save on labor costs.
iv.
Implications: If this were held to be a permissive
subject, the union would not be able to use economic
weapons; if it did, employees would not be engaging
in §7 activity and the employer could fire them. The
union could also face a §8(b)(3) charge.
ii.
Decision to terminate business - First National
Maintenance Corp. v. NLRB (1981)
Employer was a subcontractor. He was having economic difficulties w/
one of his clients so he decided to stop providing services there. The
employer had a partial closing, discharging employees working for this
client.
1. In general, §8(d) only applies to issues that directly affect the
employer-employee relationship. However, a decision that
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directly affects the employer-employee relationship, but
constitutes a change in the scope and direction of the
enterprise.
2. This creates 3 categories:
a. Issues that indirectly affect the employer-employee
relationship are permissive subjects.
i.
Ex. Advertising.
b. In general, issues that directly affect the employeremployee relationship are mandatory subjects; and
i.
Ex. Order of layoffs.
c. Issues that directly affect the employer-employee
relationship, but constitute a change in the scope and
direction of the enterprise, are a permissive subject.
3. As (b) would indicate, the employer must negotiate w/ the
union about the effects of any discharges.
4. Holding: An employer’s decision to conduct a partial closing
of his business is a permissive subject because although it
directly affects the employer-employee relationship, it
represents a change in the scope and direction of the
enterprise.
iii.
Transfer of Operation - UFCW, Local 150-A v. NLRB
(Dubuque Packing Co. 1993)
a.
employer relocated an area of its business to save on labor
costs.
i.
Framework for analyzing whether a relocation
constitutes a mandatory subject:
1. The Board has the initial burden of
demonstrating that the employer’s decision
involved a relocation of work unaccompanied
by a basic change in the nature of the
employer’s operation.
2.
The employer may introduce evidence
rebutting this by showing that:
a.
The work performed at the new location
varies significantly from the work
performed at the former plant;
i. Ex. Movement from laborintensive to automation.
b.
The work performed at the former plant
is to be discontinued entirely and not
moved to a new location; or
c.
The employer’s decision involves a
change in the scope and direction of the
enterprise.
3.
Alternatively, the employer can rebut this by
showing that:
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a.
ii.
Labor costs were not a factor in the
decision; or
b.
If labor costs were a factor, that the
union could not have offered
concessions that could have changed the
employer’s decision.
Holding: Basically, any relocation case is going to
come down to whether the relocation occurred
because of labor costs only.
iv.
Modification of retiree's benefits - Allied Chemical &
Alkali Workers v. Pittsburgh Plate Glass Co. (1971)
a.
Employer unilaterally decided to offer retirees the
opportunity to have the employer pay for Medicare’s
premiums, rather than stay on the company health plan as
had been negotiated.
i.
“Employees,” under the Act, does not encompass
retirees.
ii.
This treatment of retirees did not directly impact
employees so it was a permissive subject.
iii.
Holding: A unilateral change in retiree’s benefits
cannot be remedied by the Act, but may be attacked in
a breach of contract action.
v.
Douds v. Int’l Lonshoremen’s Ass’n: demand for employer to
recognize a larger bargaining unit was permissive; therefore, it was
a violation of §8(b)(3) for the union to insist on it.
vi.
NLRB v. Detroit Resilient Floor Decorations Local Union
No. 2265: it was a violation of §8(b)(3) for the union to insist that
the employer to contribute money for advertising (Managerial
Prerogative).
vii.
Ford Motor Co. v. NLRB: when management in its own
interest provides in-plant feeding facilities (permissive subject),
food prices and service may be considered a bargainable subject
viii.
Johnson-Batemen Co. v. Int’l Ass’n of Machinists: (1) is
something germane to the working environment? (2) is something
at the core of entrepreneurial control or fundamental to the basic
direction of the enterprise? (3) does something directly affect
employment security? The Court held that drug testing was
germane to the working environment, did not involve
entrepreneurial control, and directly affected employment security;
therefore, it was a mandatory term and condition.
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Illegal Bargaining Subjects: an illegal contract provision (one which violates the
law) is not mandatory, nor permissive, and is not even permissible for inclusion in a
labor
agreement.
a. It is an unfair labor practice to insist on the inclusion in the contract of an
illegal provision or use economic force in support of such a demand.
b. Even a voluntarily negotiated illegal provision is unenforceable and void.
ANALYSIS - the distinction between mandatory and permissive is needed in
order to determine:
a. whether a party must bargain in good faith if requested (required to do if
mandatory);
b. whether pertinent information must be disclosed (required if mandatory);
c. whether unilateral action may be taken without bargaining to impasse
(may done if permissive); and
d. whether instance backed by economic force is lawful (permissible if
mandatory; gray area if permissive).
e. whether an action constitutes an unfair labor practice.
i.
EX: in Fibreboard (below) the court held that subcontracting was a
mandatory subject of bargaining; hence, if it would have fired the
employees for picketing because it of their picketing it would have
been an unfair labor practice; on the other hand if the subject was
not mandatory, the picketing would have been grounds for being
fired and they would have committed the unfair labor practice.
**THUS CLASSIFY THE SUBJECT BEFORE APPLYING OTHER RULES!
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IV.
Strikes, Picketing and Boycotts
A. Rights of Employee Protesters Under the NLRA
Section 7: employees shall have the right to engage in…concerted activities for
the purpose of collective bargaining or other mutual aid and protection.
Section 8(a)(1): makes in an unfair labor practice for any employer to interfere
with, restrain, or coerce employees in the exercise of their §7 rights.
Section 8(a)(3) also outlaws employer discouragement of union membership—
which ha been broadly construed to encompass to encompass concerted activity
protected in §7 in support of a labor organization—which is accomplished by
discrimination.
Concerted Activity Defined: the term “concerted activity” is not defined by the Act
but it clearly embraces the activities of employees who have joined together in order to
achieve common goals.
a. A lone employee’s invocation of a right founding in his collective
bargaining agreement is a concerted activity in a very real sense.
b. caveat: of course, at some point an individual employee’s actions may
become so remotely related to the activities of fellow employees that it
cannot be reasonably said that the employee is engaged in a concerted
activity.
i.
Ex: the Board has held that if an employer was to discharge an
employee for purely personal “griping” the employee could not
claim protection of
ii.
The employee’s who may engage in concerted activities for “mutual
aid and protection” are defined by NLRA §2(3) to include any
employee, and shall not be limited to the employees of a particular
employer, unless the Act explicitly state otherwise.
iii.
This definition was intended to employees when they engage in
otherwise proper concerted activity in support of employees of
employers other than their own. The Board and courts have long
held that the mutual aid and protection clause encompasses such
activity.
*[NLRB v. City Disposal Systems].
Collective bargaining claims as concerted actions - NLRB v. City
Disposal Systems Inc. (SC 1984)
a. employee refused to drive truck he thought was unsafe; there was a
provision in the CBA which allowed employees to do just that. He
was fired for not driving. The employee argued that he was
engaging in concerted activity for the purpose of protection under
§7, and that the discharge violated §8(a)(1).
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1. Interboro Doctrine: An employee’s assertion of a right
grounded in a CBA is recognized as concerted activity
protected by §7.
2. The employee’s invocation of a contractual right must be
reasonable and honest.
3. When there is no contract, however, a single employee’s
assertion of a right is not concerted activity.
b. Holding: Employee’s reasonable refusal to drive the truck was
grounded in the CBA, meaning it was protected as concerted
activity under §7. Thus, the employer committed a §8(a)(5)
violation when he discharged the employee
B. Employer responses to Concerted Activities
C. National Labor Relations Act: Organizational and Recognition
Picketing
D. Secondary Pressure Under Taft-Hartley Act
E. 1959 Amendments
F. Hot Cargo Clauses
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