LL Outline
1/11/2016 9:43:00 PM
Preliminaries

Who is NOT an employee?
o
Supervisor - Hire, transfer, suspend, assign, responsibility to direct, or to
effectively recommend such action, if such authority if not merely clerical
but requires the use of independent judgment.
o
Independent contractor – control of the manner in which the work is done
o
Confidential employee – access to confidential info of employer related to
personnel
o
Managerial employee – great discretion to pledge the assets of employer
o
“contingent” i.e. temp workers (can’t be unionized w/o consent of temp
agency)

Bargaining Unit
o
Must share a “community of interest.” Same supervision important.
o
Professional employees §2(12) cannot be in a bargaining unit with nonprofessionals, unless they agree by majority vote
Conduct & Remedies

§7 fountainhead of rights

cannot fire an employee, for displaying interest in union (chilling effect) §8(a)(1)
violation
o
mixed motives – if anti-union animus was a “factor for consideration,”
then employer must show (burden shift) by a preponderance of evidence
that would have been fired anyways.

Solicitation/Access
o
Employees can distribute literature, or other organizing/expressive activity
outside working hours, on company property (republic aviation)
o
For non-employee unions:

Where the location of a plant and living quarters of employees
place them beyond reach of reasonable union efforts to
communicate with them, only then will access be granted.

CA: union always has a rights in shopping center to access except
for residence or “modest retail establishment” (pruneyard, fashion
valley mall)
o
Email – since its employer’s system, can forbid union email as long as no
discrimination, unless email is only practical communication.

Injunctions
o
Can only grant injunctions if there is violence or fraud, or inability of law
enforcement to protect property.

Employee Polling & Surveillance
o
o

Can poll, if no election petition has been filed, if it does the following:

The purpose is to determine the truth of union’s claim to majority

This purpose is communicated to employees

Assurances against reprisal are given

Employees polled using a secret ballot

No unfair labor practices or otherwise coercive atmosphere.
Employee violates §8(a)(1) if it engages in surveillance.
Speech, Threats, & Promise of Benefits
o
Unfair labor practice, assess from eyes of person threatened.

Court of appeals not supposed to overturn threat decision as long
as there is substantial evidence (almost any) of a factual nature to
support decision
o
Speech v. Threat

Utterances must be in the background of coercion/course of
conduct, standing alone they are not unfair labor practices

§8(c) expression of any views/opinions shall not constitute
an unfair labor practice, if no threat of reprisal or force or
promise of benefit.
o

Cannot give/promise a benefit, unless discretionless
Employer Domination
o
§ 8(a)(2) cannot dominate or interfere with formation or administration
of any labor org or contribute financial or other support. Du Pont De
Nemours
o
remedy for “dominate” is disestablishment, remedy for “assistance” is
cease and desist

Closings
o
Employer can go completely out of business, but cannot partially close to
chill future organizing, §8(a)(1) violation. Look to integration with other
enterprises to see if partial or total closings. Must show:

Interest in another business sufficient to promise reaping benefit
from the discouragement of unionization of that business

Act to close plant with purpose of producing such result

Occupy a relationship to other business which makes it realistically
foreseeable that its employees will fear that such business will be
closed down if they exercise §7 rights.

Secondary Boycott
o
§8(B)(4(i) forbids union to induce employees of secondary employer to
strike, force/coerce any person from doing business

§10(l) shall injunction
o
“primary” employer is the one labor has dispute with
o
“secondary” is the “neutral”


“allies” are not considered “secondary”

performing struck work with knowledge

connected, common ownership, control, work integration
Common Situs rules

Sub-contract means can’t strike the common situs (of the
general), can only strike the sub-contractor.

Gates - cannot picket gates used exclusively by secondary
employees.

But if the contractors were sufficiently related to the normal
operations of primary site, can picket the gate

Ambulatory pickets – can picket at a neutral site, if primary
workers are there

Picketing must be limited to times when situs of dispute
located on secondary premises

Primary employer engaged in normal business at the situs

Picketing is reasonably close to the situs

Picketing clearly discloses that the dispute was only with the
primary employer
o
Publicity Proviso

Union can truthfully inform the public, inc. consumers, that
products produced by a primary employer are distributed by a
secondary, “other than picketing” so long as such publicity does
not induce secondary employees to refuse to perform work.
(consumer boycott)

Note on merged products  if the secondary picketing/publicity
were directed against a product representing a major portion of a
neutral’s business and reasonably likely to threaten neutral with
ruin or substantial loss, outside of publicity proviso.
o
1st amendment – pure speech, including handbilling, is not coercion within
meaning of §8(b)(4) and is therefore protected by 1st amendment.
Election Issues

Contract bar?

Misrepresentations
o
Board will no longer set aside elections on the basis of misleading
campaign statements, unless fraud

Captive Audience
o
No captive audience speeches 24 hours before election
o
Employer can give noncoervice anti-union speech during working hours,
doesn’t have to give union anytime during meeting.

Appeals to Racial Prejudice
o
As long as party limits itself to truthfully setting force other’s position on
racial issues and does not seek to exacerbate racial feelings, its OK

Threats
o
No threat of reprisal or force or benefit
o
CAN make a prediction as to the precise effects unionization will have on
company, provided it is carefully phrased based on objective fact as to
probable consequences beyond management’s control or decision
already arrived at.?
o
This IS a threat if employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessity.

Card Check Agreement
o
Recognition Bar

No recognition bar unless: employer notified of their right within 45
days to file a decertification, and they do not.

Organizational & Recognitional Picketing
o
When no union has organized the employees and there has not been a
recent election, a union can engage in recognitional picketing for a
reasonable time (not to exceed 30 days), during which time someone
must file an election petition under §9(c)

§10(l) shall injunction
o
Proviso – peaceful picketing that truthfully advertises public that company
is non-union OK, “mixed-motive” OK, as long as union not stopping
business/deliveries.
o
“Area Standards Picketing” is lawful
Collective Agreement

Hot Cargo Agreements - §8(e) makes it an unfair labor practice for any labor org
and employer to enter into a contract to boycott another employer or product, or
assist union in a secondary boycott.
o
“shield” agreements OK – primary work preservation – addressed to
contractual relationship of primary employer, not to labor relations in
other places.

“Work preservation” agreements can be defeated in construction
by drafting the subcontract rules to change who is a neutral.
o

Quick enforcement in federal court §303?
Jurisdiction disputes – when two unions want the same work from one employer
o
§10(k) NLRB directed to do hearing and issue a resolution, don’t always
defer to employer.
o

§10(l) shall injunction
Employee Protesting – concerted activity over labor dispute protected even if no
union
o
Labor dispute covers any dispute over wages, terms, conditions of
employment


o
Not concerted activity if no consultation w/ other employees
o
Not proteted: unlawful, violence, breach of K
Unprotected concerted activity
o
Disloyal activity (disparaging own company’s product)
o
Partial strikes
o
Picketing for illegal objectives
Strikebreakers
o
Employers have a right to permanently replace economic strikers (but not
unfair labor practice strikers); can otherwise deny reinstatement if striker
engaged in misconduct. Can vote in NLRB election for 1 year after layoff

No legal presumption that replacements don’t favor incumbent
union.
o
Note if employer genuinely changed its business operations and requires
fewer workers, it must establish preferential rehiring list.

“inherently destructive” of right to organize/strikebreaking
o
Super-seniority credit is so inherently destructive that it per se if a
violation of §8(a), anti-union animus implied.
o
Punishing union officers more severely for wildcat strike
o
If “comparatively slight” employer has to give evidence of legitimate
business purpose.

“Good Faith” Bargaining
o
can be using lawful economic weapons (even if not protected) AND still be
bargaining in good faith
o
Impasse

Cannot insist upon non-mandatory (permissive) subjects of
bargaining to the point of impasse


o
Retirement/applicants are permissive
After Impasse

Can lockout

Can unilaterally impose last best offer
Board cannot analyze terms of CBA for fairness; bad faith cannot be
measured by the content of the proposal
o
If subcontracting over significantly similar work, duty to bargain
(fibreboard). No duty for small, or very big (scope or direction) items.

Even if no duty to bargain over the decision, must still bargain on
the effects on labor.

Relocations (not partial closings) are more like Fibreboard
subcontracting, and duty to bargain; unless employer overcomes
presumption that this was no a change in basic scope/direction of
enterprise.
o
Failure to put on any affirmative evidence in support of one’s position
constitutes a failure to bargain in good faith - Truitt
o
Creating a system that admits of no compromise is bad faith bargaining –
General Electric

Enforcing the Collective Agreement
o
Courts fashion common law of remedies to enforce CBA – Lincoln Mills
o
Enforcing arbitration

Arbitration should be ordered unless it may be said with positive
assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute (inc. past practices)

Arbitration award is legitimate so long as it draws “its essence”
from collective agreement (inc. credibility judgment)

A case need be arbitrated after expiration of CBA only if dispute
arose before expiration or involved a vested right.

Contrary to public policy – must be dominant, well-defined, not
arising out of generalized “public interest.” – the reinstatement,
not conduct, must violate public policy

If contract gives arbitrator power to enforce and interpret statute,
cannot go to federal court to enforce statute
o
Enforcing No-strike

A no-strike clause will be implied, of equal breath, to an arbitration
agreement.

Implied exception to Norris-LaGuardia act for enforcing the CBA.; if

Parties do indeed have an obligation to no-strike and
arbitration
o

Employer can only get injunction after order to arbitrate

Injunction appropriate under equity
Note reverse-boys market injunction (compelling employer to arbitrate
something)
Remedies

Back-pay includes employee mitigation, no consequential;
o

No back-pay for illegal immigrants, even though still employees under act
Bargaining Order
o
Where employers had done egregious unfair labor practices, and the union
then lost the resulting election, where authorization cards were
unambiguous, and union once possessed majority.
o
“hallmark” or “serious violations” ex. Discharges, threats to close plants,
promise of benefits.
Star 11-10
1/11/2016 9:43:00 PM
1/11/2016 9:43:00 PM