I. Workers Unions, and the Economy (1967)II. The Common Law

a. Criminal Conspiracy i. Philadelphia Cordwainers (Commonwealth v. Pullis) (Phil 1806)- p40

(BAD LAW)- combinations of craftsmen criminal conspiracy that was selfish on the part of the members and against the public welfare

b. Death of Criminal Conspiracy Doctrinei. Commonwealth v. Hunt (1842), p42-

1. F: Horne accepted pay below the labor organizations (“Society’s) pay schedule. At the Society’s insistence, his employer fired him. Horne fired a complaint against the Society for forming a combinations and excluding him (Horne) from his trade as a bootmaker.

2. H: Horne looses. Society is not guilty. 3. R: Men can agree together to exercise their own acknowledged rights,

in such a manner as best to serve their interests. 4. This agrees with the basic libertarian position

c. The Labor Injunctioni. Picketing

1. Vegelahn v. Guntner (Mass. 1896), p46a. F: Two employees/D of Vegelahn/P established a picket

line of 2 men in front of the building. They used persuasion and threats of violence to prevent other workers from crossing the picket line. P got an preliminary injunction from Holmes which enjoined the workers from resorting to threats, express or implied, of violence and physical harm to body or person and from physically or otherwise obstructing entry to the premises, and from inducing employees to break their lawful Ks. However, Holmes ruled that the patrol, so far as it confined itself to persuasion and giving notice of the strike, was lawful, and limited his injunction accordingly.

b. R: Peaceful picketing may be permanently enjoined.c. Holmes Dissent:

1. Takes the libertarian position: no malice no tort2. A combination of people doing on any

one of them may lawfully do by himself is lawful. This injunction is overbroad. The ct allows free competition bw businessman and therefore should allow this.

d. Ep: would accept Holmes position for picketers who have committed no infractions, but if they have any record of using force, then the picketing can create an implied threat of force that should be categorically blocked b/c policing them at every moment is too hard.

ii. Conspiracy1. Plant v. Woods (Mass. 1900), p53

a. F: Union A broke away from Union B. Union B talked to employer about persuading Union A’s members to join Union B. B made no direct threats, but it was communicated

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to the employer that he would be in trouble unless A’s members joined. A sued to enjoin B on the theory that B’s conduct was an unlawful conspiracy.

b. H: Injunction was issued against Bc. R: Even where there are no direct threats of force or strikes,

urging employers to persuade their employees to join a particular union constitutes an enjoinable conspiracy.

c. Two forms of combos created simultaneously in 19th century: 1. corporations/capital 2. Unions/workers3. Libertariana- we don’t care what either do collectively, as long as you could

have done it individually.

III. The Antitrust Lawsa. The Sherman Act, p1 of Supp.

i. First Antitrust Wave: doesn’t differentiate bw labor and management b. Loewe v. Lawlor (“Danbury Hatters”) (1908) BAD LAW- involved a primary dispute, bw Loewe and his striking workers, and a secondary boycott, in which the union sought a boycott of the wholesalers and retailers of Loewe’s hats.

ii. US SC held that the Sherman Act applied to combinations of workers at least where the union boycotted goods that crossed state lines

iii. The Clayton Act (1914), p5 of Supp.1. §6 – labor of a human being is not a commodity or article of

commerce the antitrust laws do not apply to them2. Second Antitrust Wave: §6 and §20 general exception for labor

and agriculture3. Clayton act does not disappear b/c of NRLA- if you get together

across firms you could get a antitrust violation 4. Secondary Boycotts Injunctions under the Clayton Act

a. Duplex Printing Press Co. v. Deering (1921), p67i. Judge Pitney

ii. F: Duplex Printing Co./P was an open shop which manufactured printing presses in Michigan. Duplex has few competitors are all unionized, but 2 of them insist terminating their contracts with the unions unless Duplex becomes unionized. Have the union contract are making Duplex’s competitors loose money. Duplex says no. The International Association of Machinist/D tried to persuade Duplex into a closed shop by encouraging Duplex/P’s major customers to boycott Duplex’s printing presses (no one would haul or install or operate the presses) in NY. P brought an injunction against D.

iii. H: The injunction against the secondary boycott is granted.

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iv. R: §20 of the Clayton Act restricts the issuance of an injunction against certain specified conduct only when those acts are committed by parties proximately and substantially involved in the dispute concerning terms and conditions of their own employment. Others not within the limitations on injunctions and hence “secondary” boycotting activity is not protected against an injunction.

v. Brandies Dissent: The term “employees” should be broadly construed and not confined to the legal relationship between a specific employer and its employees. Here the employees are acting in their own self interest, which negates any malice. This is what §6 was getting after.

vi. Ep thinks Pitney was right—Ep thinks that the majority read the statute correct, although it ignores the history that the statute was a response to Danbury.

iv. The Norris LaGuardia Act of 1932- General Info.1. §3 outlawed yellow dog Ks as a matter of public policy

a. Ep loves YDK and say that it keeps the labor mrk competitive and stable

2. recognized that individual employees bargaining on their own could not exercise actual liberty of K

3. §4 limited injunctions, section §7 and §13 limited the procedural conditions of issuing injunctions

4. §6 no officer or member of a union or union itself could be made liable for the unlawful acts of individual members

5. §8 clean-hands doctrine6. §9 injunctions can only cover the specific acts7. §10 required certification of appeal of temporary labor injunctions8. §11 jury trials for contempt proceedings9. Hitchman Coal & Coke Co. v. Mitchell (1917), p77

a. F: workers sign the yellow dog contract b/c they wanted protection from the union; the firm would pay monopoly wage to the workers; the workers get wage stability and don’t have to pay union dues

b. US SC upheld injunction against unions to prevent them from trying to unionize a mine where the workers signed no-union contracts

c. Hitchman repealed by Norris-LaGuardia statute.

v. Application of Antitrust Laws to labor unions under the Norris-LaGuardia Act

1. Apex Hosiery Co. v. Leader (1940), p81a. Judge Stone

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b. F: Apex Hosiery Company (P) sued the union (D) for treble damages for violating the Sherman Antitrust Act. Union represented 8/2,500 employees and called a strike and a sit in in order to get P to sign a closed shop agreement. Union/D, aided by members from other factories, seized the factory, changed the lock and engaged a sit in for a month and a half. During which time, some equipment was damaged and orders were not filled. The company only had 3% of the interstate market.

c. H: Union wins, this does not violate the Sherman Antitrust Act b/c it only restrains the sale of employee’s services to employer and however much they curtail the competition among employees, they are not themselves combinations or conspiracies in restraint of trade or commerce under the Sherman Act.

d. R: The Act has never been applied to a labor case unless there was some form of restraint on commercial competition and unless the restrictions on shipments operated to restrain commercial competition in some way like a secondary boycott (illegal under Sherman act see Loewe v. Lawlor (1908))

e. Re:i. Sherman act was to prevent combinations which

restrain free competition, not this. ii. The delay in hosiery shipments was not intended and

had no effect on the prices in the hosiery market. iii. If this violated the Sherman act, practically all strikes

would. 2. United States v. Hutcheson (1941), p86

a. F: Anheuser-Bush, a brewer, depended on interstate commerce to obtain materials and to sell finished products. Anheuser gave work to IAM (a union) and the UBCA(D/ a different union) believed it should have gotten the work. The UBCA struck and boycotted Anheuser’s products.

b. H: UBCA(union) wins.c. R: No criminal liability may be imposed, pursuant to the

Sherman act on a union which, because of a jurisdictional dispute w/ another union (ie to secure work for its members), calls for picketing the employer and a boycott of the employer’s product.

d. Re: The very meaning of the §20 of the Clayton Act and §4 of the Norris-LaGuardia Act is that C intended that all acts does w/n the specified guidelines are protected from attack as violations of the Sherman Act. §20 denies cts the power to independently examine unions reasons for striking.

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IV. Modern Labor Legislationa. Railway Labor Act of 1926

i. §2 –no YDKii. it took along time to go through mediation and arbitration sections,

iii. the act only regulated carriers manufacturing couldn’t be regulated b/c manufacturing was not part of interstate commerce.

iv. No lock outs or strikes. v. You can only break a labor K with the consent of the union.

b. National Labor Relations Act of 1935i. No longer industry specific

ii. NLRA is constitutional under the commerce clause1. NLRB v. Jones & Laughlin Steel Corp. (1937), p97

a. Justice Hughesb. Re: A labor strike in a steel plant could conceivably cripple

the entire interstate operation of the company/commerce. iii. “sit down strikes” – (strikers occupied struck plants and were supplied by

sympathizer outside the plant) are illegal. iv. Purpose of NLRA-

1. promote industrial peace 2. redress inequality of bargaining power.

v. Two key features:1. Management has a duty to bargain in good faith. 2. Management must bargain with the exclusive bargaining agent of the

employee.vi. § 9 (a): employees have the right to have agents bargain for them, in “units

appropriate” to that purpose.1. Deciding what those units are “appropriate” is a complex and very

important.2. Firms generally favor negotiating with all their employees in one fell

swoop. a. here the fatal defect is that the largest group will get the most

gains. If you try to allow for minorities, you have a hold out pblm.

i. the reason that this happens is that there monopoly wages given out

3. § 9 (b) protects professional employees (presumably fewer in number) by keeping them from being subsumed into the larger union unless they agree to it.

4. the greater the degree of heterogeneity w.n the workforce the harder it is to make a collective bargaining agreement

c. Taft-Hartley Act of 1947 i. response to strike waves and widespread public perception of abuse of union

power ii. outlawed closed shop

iii. §7 workers can refrain from union activityiv. §8(b) unfair labor practices from unions

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v. more see p104vi. Created a federal mediation board that could declare “cooling-off” period to

a striked. Landrum-Griffin Act of 1959(Labor-Management Report and Disclosure Act) -

regulates the internal affairs of labor organization, p106; i. no more “hot cargo” see §8(e)

ii. Concerned with union corruption. e. §9 (a) Exclusive bargaining

i. legislation is the most efficient device of enforcing unionsii. there was a lot of exclusion under the Wagner act and the exclusion became

less under the Taft Hartley act.

V. Jurisdiction, Procedures and Organization of the NLRBa. NLRB Machinery and Procedure

i. Sets up secret ballots to determine collective bargaining representation.ii. Adjudication and prosecution functions were separated in 1947 to curb

abuse. iii. Taft Hartley Amendments §3, §4 provided for strict and unique separation

of adjudicative and prosecuting fns (the General Counsel).iv. GCs refusal to issue a complaint is not reviewable by the Board or, in

general by the courtsv. ALJ hears the complaint and if exceptions are filed, the Board will review

the casevi. If Respondent does not voluntary comply w/ a Board order, the agency must

secure enforcement by filing a petition in a federal court of appealsvii. § 6 of NLRA allows the board to make rules, but usually it does so through

adjudication. 1. NLRB v. Aerospace Co. (1974): US SC said that was an ok method

viii. Challenge to rule making ability of NLRB1. American Hospital Association v. NLRB (1991), p122

a. Justice Stevensb. F: NLRB/D announced a substantive rule defining 8

bargaining unions appropriate for acute care hospitals. The Hospital association/P challenged the validity of the rule, claiming that the NLRA §9(b) requires individual determination in each case and that the rule was arbitrary and capricious b/c it ignored differences bw heath care hospitals.

c. H: NLRB wins: it has the pwr to make the rule and the rule is not arbitrary and capricious as it is supported by substantial evidence and reasoned analysis.

d. R: The NLRB has the authority under the NLRA to promulgate a general rule outlining the unit appropriate for the purposes of collective bargaining for an entire industry.

e. Re: The language in §9(b) of “decides each case”” is not a limitation of the rule making powers of §3,4,5 of the NLRA. The language of §9(b) comes into operation only when there

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is a particular dispute about the appropriateness of a particular unit.

f. Ep says this is an easy decision b/c §6 clearly grants this pwr to the board

b. Jurisdictioni. NLRB v. Catholic Bishops (US SC 1979), p122

1. NRLB doesn’t have jurisdiction over religious schools, that would raise constitutional issues over control of religion.

2. Statute covers all employers and employees. Here the Court is keeping itself out of a dubious statute by narrowing its scope to avoid the problem.

ii. Independent Contractors1. NLRB v. Hearst Publications, Inc. (1944), p134

a. Justice Rutledgeb. F: The NLRB determined that those newsboys who are full-

time employees and sell at full-time established spots form a stable group w/ relatively little turnover ( must be bargained w/), in contrast to schoolboys and others who sell as bootjackers, temporary and casual employees.

c. H: Ct upholds the NLRB’s positiond. R: The mischief at which the Act is aimed and the remedies

it offers are not confined exclusively to “employees” within the traditional legal distinction separating them from independent contractors.

e. Statutory Fix was implemented in Taft-Hartley (1947): explicitly excludes any IC from coverage under the labor laws §2(3).

i. But omits any actual definition of IC, so doesn’t usefully overturn Hearst.

2. Deference to the NLRB in deciding who is an employeea. NLRB v. United Insurance Co. (1968), p137

i. Justice Blackii. F: Insurance Company claims its debit agents were

independent contractors and the NLRB found them to be employees. Debit employees work off site and set their own house, but do not have the independence nor initiative or decision making authority of independent contractors.

iii. R: The NLRB’s decision was based on law and fact and will not and should not be set aside just because a court would, as an original matter decide the other way.

iv. Ep: anti-deference in this case. B/c the statute doesn’t authorize a specific determination of who is an employee, the court should make its own best determination.

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v. But Ep says this case came out right. You cannot allow an employer to get around a regulatory scheme by relabeling the employees.

3. “Right of control test” a. NLRB has applied since the 1947 Amendments b. someone is NOT an independent contractor if the person for

whom the services are performed retains the right to control the manner and the means by which the result is to be accomplished or whether he controls only the result.

III. Supervisory, Managerial and Confidential personnel; NLRA § 2(11); 2(3)1. NLRB v. Bell Aerospace CO. (1974), p140

a. Justice Powellb. F: Board certified a union as the bargaining representatives

of 25 buyers. Company says that buyers cannot unionize b/c they are managerial employers. Board says Act only excludes those managerial employees that are part of the “formulation and implementation of labor relations.”

c. H: Board’s new def. includes too many managerial employees-- here buyers are excluded from the NLRA and are not afforded union protection.

d. After Aerospace: Unionization and collective bargaining is confined to “touch” employees

i. ie operators, technicians, maintenance personnel and clericals—implementers of the directives of supervisors, managers and engineers.

ii. Middle managers and others engaged in knowledge-based proactive roles are outside the statutory scheme, even if they have similar concerns over job security and fair treatment w/no greater ability to influence personnel decisions of dep. Heads and other executives.

e. statue acts like managerial employees > supervisors i. EP: managerial employees < supervisors.

ii. Ep: managerial employees should not be exempted in the statue.

iii. Ct got the case dead wrongf. On remand the Board says that the mangers are employees

within the meaning of the Act (in other words they ignored the US SC)

i. In general, the court has been more aggressive in saying that there are exemptions for classes of workers than the Board.

2. NLRB excludes certain “confidential” employees from the Act’s protection if they assist and act in a confidential capacity to persons who exercise managerial functions in the field of labor relations.

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3. §9(b): Board should not include professional workers w/n the bargaining units that encompass nonprofessional employees unless a majority of such employees vote for inclusion in such unit.

4. Def of professional: §12(2)5. NLRB v. Yeshiva Univ. (1980)-

a. Justice Powellb. full time faculty members at a large private university were

all managerial employees b/c of the faculty’s role in such matters as faculty appointments, the setting of the curriculum, admission standards and degree requirements

c. grad student can be unionized6. NLRB v. Health Care &Retirement (1994) –

a. Justice Kennedy b. RNs are managers;c. Ginsburg dissent- you can’t say that any professional who

supervises anyone is a supervisorVI. Protection of Concerted Activity

Concept of Discrimination and of Interference, Restrain, or Coercion

a. Employers Motives; §8(a)(3)i. Edward G. Budd Manufacturing Co. v. NLRB (3d Cir. 1943), p165

1. F: In 1933, at the employer’s suggestion, the employees of Budd formed an association and elected representatives to confer w/ management. D cooperated w/ the association and treated even its extremely slovenly representatives w/ extraordinary leniency. In 1941, the UAW had a fail organization attempt. UAW charged D w/ unlawfully supporting and dominating the employee’s association and unlawfully discharging two employees (who had been kept on while they were stool pigeons of the management) for their union activities. Weingand deserved to be fired but he was not until his union activity was discovered.

2. H: Employer looses, must disband the association and reinstate the two employees.

3. R: An employer may discharge an employee for a good reason, a poor reason, or no reason at all, so long as the provisions of the NLRA are not violated.

ii. Phelps Dodge Corp. v. NLRB (1941), p171 - §8(a)(3) prohibits an employer from discriminating in both hiring and dismissal based on union membership or activities.

iii. Proof of employer motive in a mixed motive or pretext case; §8(a)(3)1. NLRB v. Transportation Management Corp. (1983), p173

a. Justice Whiteb. F: Employee claims he was discharged for his union activity.c. R: The Employees must make out a prima facie case

showing that an impermissible reason was a motivating

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factor for the employer’s action. Then it is up to the employer to prove that its action would have been the same in the absence of the impermissible factor.

d. O: Affirms the Wright Line approach: The Employee carries the burden of persuasion that antiunion animus contributed to the employer’s decision to discharge and employee, a burden that does not shift, but that the employer, even if it failed to meet or neutralize the Employees showing could avoid the finding that if violated the statute by demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved in the union. Employer who establishes the “same decision defense” defeats liability entirely.

e. Ft. 6 shows NLRA allows dismissal for employee for cause §10(c)

f. O2: Under Title VII for employment discrimination, even where an employer established a same-decision defense, there could be a statutory violation and basis for a prospective remedial order.

b. Violations Based on Employer’s (or Union’s) Actionsi. Radio Officers’ Union v. NLRB (1954), p179

1. F: Three Cases a. Union member in arrears w/ his dues placed on the bottom of

assignment listb. Union member denied job b/c not it good standing w/ union.c. Gaynor: Nonunion worker denied retroactive wage increase

that union obtained for its members and union specified that nonunion would not receive wage increase.

2. H: An employer violates §8(a)(3) if he treats nonunion members or union members not in good standing differently from union members

3. R:a. a & b Violate 8(a)(3) b/c encouragement of a union

membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of the union, these employers are presumed to have intended such encouragement.

b. Gaynor: The union is the exclusive bargaining agent for both members and nonmebers the employer cannot (without violating § 8(a)(3)) discriminated on the bases of such membership, even if union K required him to do so.

4. Re: Disparate treatment is inherently conducive to increased union membership. Employer held to a foreseeability, not an intents std for 8(a)(3).

ii. Language/US SC of 8(a)(3) indicates that there are two elements required

for a violation:

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1. explicit discrimination in regard to hiring or tenure or some term or condition of employment

2. this discrimination encourages or discourages union membership.iii. Republic Aviation Corp. NLRB (1945), p185

1. Justice Reed2. F: Republic (D) fired four employees, one for violating the soliciting

rule by distributing union membership application cards and three others for wearing shop steward buttons before any union had been recognized.

3. Q: May an employer enforce a general nondiscriminatory no-solicitation rule to prevent solicitation of union support and membership during nonworking time and to prevent the wearing of union badges?

4. H: No, this violates and employee’s §7 rights and the discharge the employees for doing so is a violation of §8(3).

5. R: No restrictions may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.

a. Two rebuttable presumptions are at work: i. First, a neutral rule prohibiting solicitation during

working hours can be applied against employee union solicitation in the absence of proof that it was adopted for the purpose of discouraging §7 protected activity.

ii. Second, the enforcement against union solicitation of even a neutral rule prohibiting all solicitation outside of working hours on company property is illegal, unless, the company demonstrates “special circumstances [that] make the rule necessary in order to maintain production or discipline.

1. This ruling is valid in workplaces where there are alternative means of communication.

6. Re: The Ct must balance the employer’s right to “production or discipline” and the employees’ §7 rights of organizations.

7. EP: allowing the union guys on the property constitutes a physical taking. But that has to be allowed, b/c otherwise the whole statute falls apart.

a. common law trespass must give way to the statutory labor rights.

8. Employer should get anti-union rules into place from day one (like no solicitation). If they are put in after organization starts is suspicious

9. Ep: reasonably sensible bright line solution.10. O: Most anti-nuisance measures will fail before other key rights.

I.E. you can’t block leaflet distribution (by Jehovah’s Witnesses or

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union people) on littering grounds unless you can show the problem is ridiculously severe.

iv. NLRB v. Babcock & Wilcox Co. (1956), p198 – 1. Justice Reed2. no obligation exists to require access by non-employee organizers

unless the location of living quarters and the plant create a unique obstruction which places the employees beyond the reach of reasonable union efforts to communicate with them. Babcock did not find that such conditions exist.

Accommodation of §7 Rights and Employer Interests

c. Interest In Excluding “Outsiders”i. Lechmere, Inc. v. NLRB (1992), p199

1. Justice Thomas2. F: The United Food and Commercial Workers Union claimed that

Lechmere (D) illegally barred it from distributing literature on Lechmere’s (D) property. The workers lived in a large metropolitan area and the union was not able to contact a substantial percentage of the employees.

3. I: Union Access to employer property4. H: The NLRB is NOT authorized to determine nonemployee access

to an employer’s property by balancing the degree of impairment to the employee’s §7 rights against the degree of impairment to the employer’s private property rights and giving availability of alternate access special significance in the balancing?

5. R: The NLRA only confers the “no restriction on the rights of employees to discuss self-organization among themselves unless the employer can show the restriction is necessary to maintain production or discipline” on employees. § 7 simply does not protect nonemployee except in the rare cases where show that the inaccessibility of the employees makes reasonable attempts to communicate with the employees ineffective. Rare cases are those like logging camps, mining camps etc where people live on the employer’s soil.

6. White Dissent - The Judicial role is a narrow one and should not overturn the Board’s rulings (Chevron deference). Babcock recognized that employees have the right to learn from others about self-organization.

7. Ep: the availability of other means of access doesn’t change the employees right to talk to each other on the premises. That makes it questionable whether they can keep of non-employee organizers. Lechmere wrongly decided.

ii. NLRB v. Town & Country Electric, Inc. (1995)-

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1. the definition of “employee” in §2(3) of the NLRA includes workers who are also paid as union organizers.

2. The Board and USSC found that Town & Country had violated §§8(a)(1) and (3) by refusing to hire union members who were going to be paid by the union while they attempted to organize the employer.

d. Interest in Entrepreneurial Discretion/Shutting Down Operationsi. NLRB v. J.M Lassing (1961), p212

1. Per Curiam2. F: Employer had a meeting in 1958 where it decided that it was

going to get rid of its truck drivers and adopt a common carrier system of gas delivery as soon as anything occurred that would increase cost, and in any event when the truck licenses expired on April 1, 1959. A union attempt occurred in Jan of 1959 and the employer fired the organizing employees and refused to recognize the union. NLRB found a §8(a)(1), 8(a) (3) and 8(a)(5) violations.

3. H: The NLRB’s violations are overturned.4. R: A company may suspend its operations or changes its method of

doing business, which the resulting loss of employment on the part of certain employees, as long as its change in operations is not motivated by the illegal intention to avoid its obligations under the NLRB. A change in operations motivated by financial or economic reasons is not an unfair labor practice under the Act. The fact that employer accelerated his change is of no importance.

5. EP: Employer could also be safer if they just negotiated first, then eliminated the union

6. If a union is formed, the employer must negotiate, but they don’t have to offer more than the outsource option. But they must make an effort to see if the union will give them an equal or better rate then the outsiders.

7. Ep: the issue of whether we get rid of these particular employees and contract out was never contemplated in the statute. So we have to look at the statute as a quasi-constitution and look at its purpose and scope.

a. If you find a memo saying that we need to do this to avoid unions, case closed. But usually you won’t find that kind of smoking gun. Nothing will be written down.

b. Very difficult to figure motivation for these actions: firms are constantly making decisions about what to contract out and what to keep in (core competencies)

8. EP: The case is probably decided wrongly. A firm can’t just refuse to negotiate and cut the unit of its business in question b/c it fears that a union will raise costs. That would be animus towards the union.

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9. The danger of the labor statute is that it forces us to reevaluate each action through the lens of the labor law and shut down the free market system of adjustments by those who have the information.

ii. Textile Workers Union v. Darlington Manufacturing Co. (1965), p2161. Justice Harlan2. F: Darlington Manufacturing Co. (D) operated one textile mill that

was part of a conglomerated dominated by the Millikin family who operated a number of other mills. Union won election, employer made good on his threat to close and the plant closed down. NLRB and court found an 8(a)(3) violation. US SC says no 8(a)(1) violation.

3. Q: Does an employer have an absolute right to go out of business even if its motive is to frustrate the section 7 rights of its employees?

4. H: No, though D was the sole employer for the operations of its mills, its actions may have repercussions on the remaining businesses.

5. R: If a person in control closes a plant w/ a. antiunion animus b. has a sufficient interest in another business as to enjoy a

benefit of discouraging organization of that businessc. acts to close the plant w/ the purpose of producing such a

resultd. and occupies a relationship to the other businesses that makes

it realistically foreseeable that the employees of the other businesses will fear similar treatment if they persist in organization activities,

e. a 8(a)(1) violation will be found f. Note: organizational integration of plants or corporations is

not necessary.6. O: An employer could completely close his entire business b/c of a

union. 7. EP: This would probably have to be prevented under the statute,

even if more efficient, b/c it would make it too easy to circumvent worker organization. The statute forces some efficiency reductions.

8. EP: The irony is that the union’s won, and now there is no textile industry in the United States. One of the reasons unions (and management) in union industries are the key supporters of tariffs.

9. EP: the result here is correct wrt the statute

The Scope of Protected Activitye. § 7: applies to all employers, whether union or not

i. This is one of the reason’s why the law is so important, applies to every workplace environment.

ii. It is protected if their action to be about improving their work conditions, not about sabotaging the workplace.

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iii. Doesn’t matter if the workers know about the statute. All they have to show is that destruction of the employer’s value is not their primary concern.

iv. you can organize:1. even on the premises (technical trespass)2. activities that are a technical breach ie strike

f. “Protected” Concerted Activity: Means Testv. NLRB v. Washington Aluminum Co. (1962), p226

1. Justice Black2. F: Employees were discharged for leaving their work in the

machine shop w/o permission b/c the shop was too cold (this is technically a breach of K). It was extremely cold, the employees had complained about the cold in the past (but not that day), and their foreman said that “if those fellows had any guts at all, they would go home.” The seven employees were part of a small group of employees who were wholly unorganized.

3. H: The walk out was a concerted activity protected under §7 under the NLRA. The employer’s discharge of these workers was an unfair labor practice under §8(a)(1) of the NLRA.

4. R: Employees do not lose their right to engage in a concerted activity under §7 b/c they do not present a specific demand upon their employer to remedy a condition they find objectionable.

5. O: This case acts like §7 protects all concerted activities except those which are unlawful, violent or in a breach of contract.

6. O2: Activity is protected even if not designed to lead to union organization.

7. CL: Under old common law regime, they could be fired for any reason or anytime.

vi. Elk Lumber Co. (NLRB 1950), p2851. F: Pay was lowered to fixed rate instead of a per piece rate..

Carloaders/Workers found it unsatisfactory and engaged in a work slow down. Workers informed their employer of the slow down. Five workers (who were not part of the concerted slow down ½), worked more slowly and were fired b/c their work was unsatisfactory although employer did not set a rate.

2. R: Partial or intermittent strikes or work slowdowns are not protected under the NLRA.

3. Activity that is prohibited by federal law is not protected (including activities forbidden by the Act or encouraging employers to violate the Act). State law violations do not automatically mean that an action is not protected by the Act b/c NLRA preempts state law.

4. dominant view is that layoffs are the best solution a. usual explanation is that you are betteroff with 80 100%

workers than 100 80% workers b/c i. indeterminacy of cut wages

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ii. mass firing eliminates some of the accusations of for cause

vii. Condonation 1. an employer is held to have waived its rights of discipline if it

expressly or impliedly condoned employee misconduct. 2. The NLRB holds that there must be clear, convincing, and positive

evidence that the employer agreed to forgive the unprotected conduct, and that an offer of restatement alone, at least before the company completes its investigations does not constitute such evidence

g. Protected Concerted Activity: Objectives Testviii. Eastex, Inc. v. NLRB (1978), p243

1. Justice Powell2. F: Employees of Eastex (P) were denied permission to distribute a

union newsletter on employer’s property (but not in a working area) during nonworking time. The newsletter contained both directly union material and indirect union material/political appeals (ie register to vote in general election and support minimum wage laws).

3. I: Protected “concerted Activity” under §7 and 8(a) (1) of NLRA4. H: The distribution on an employers premises of literature

containing appeals for “political” actions to improve the conditions of employees in general is a “concerted action” within the protection of §7.

5. R: a. Efforts to improve the terms and conditions of employment

are within the protection of the Act even thought they are through channels outside the immediate employee-employer relationship.

b. The Board is not required to distinguish among distributions of protected matter by employees on an employer’s property on the basis of the content of the distribution, so long as the employer has not proven that its management interest or any meaningful intrusion on the employers property rights would be prejudiced by the distribution. This follows Republic Aviation.

h. Individual Employee Action as “Concerted” Activityi. NLRB v. City Disposal Systems Inc. (1984), p253

1. F: Employee/P was fired for refusing to drive a truck b/c employee had genuine doubts about the reliability of the trucks brakes. Employee made no reference to the provision of the labor agreement, which contained a safety clause. Employee filed a grievance which the union declined to process. The employee then filed an unfair labor practice charge. The NLRB found a §8(a)(1) violation concluding that employee had engaged in a concerted activity since his

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protest was to enforce the interests of the employees covered by the agreement.

2. H: Employee wins. The individual assertion of a right grounded in a collective agreement “concerted action” w/n the meaning of the NLRA §7.

3. Rule: a. Std. of Review: Ct is only looking to make sure

NLRB’s decision is reasonable.b. As long as the individual employee’s reasonably and

honestly believes he is invocating a right grounded in a collective bargaining agreement that invocation is “concerted activity” w/n the meaning of §7 of the NLRA (Interboro doctrine) b/c it is an extension of the concerted action that produced the CBA and effects all employees covered by the CBA

4. Dissent: O’Connor – This case turns every violation of the collective bargaining agreement into an unfair labor practice, which Congress did not want. Congress gave regular courts, not the NLRB jurisdiction over contract claims (which is what this is).

5. O: § 9(a) all grievances are subject to individual control—the union can make a decision to bring the suit or not, but the worker can bring the grievance on his own.

6. O2: Vaca v. Sipes - the union has a fiduciary duty to provide fair representation to all its workers. Ignores 9a. Grievance w/ the condition of the fleet

a. the worker has a §7 right to pursue the claim on his own

Union Control of the Right to Engage in Protected Activity

b. NLRB v. Magnavox Co. of Tennessee (1974), p272i. Justice Douglas

ii. F: Company had for years prohibited employees from distributing literature at its plants and parking lots even in nonworking hours and areas based on a right the union gave to the company to issue rules for the maintenance of orderly conditions on the plant property. The union was allowed to post notices on company bulletin boards. The company rejected a union proposal to change the rule and the NLRB found a §8(a)(1) violation.

iii. H: A union can waive some rights ie the right to strike, but a union may NOT waive the right to distribute literature because this involves the choice of a bargaining representative which is important to a employees §7 rights and we do not want the incumbents unions to bargain in such a way to prevent other potential competition.

iv. Re:

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1. the place of work is uniquely appropriate for dissemination of views concerning bargaining representation

2. that dissemination of the various labor viewpoints is something the courts will foster.

v. Dissent: Stewart- A union should be able to waive its own rights to disseminate information, but it should not be able to waive the rights of potential unions to disseminate information.

vi. EP: agrees w/ the majorityc. Metropolitan Edison Co. v. NLRB (1983), p277 (we didn’t read)

i. the right to strike is NOT inherent in the right to be a union its waiveable

ii. R: Employer cannot punish the union leaders more heavily than regular workers b/c the union leaders failed to take the step unilaterally defined by the employer and deemed necessary to abate a strike.

1. You can K around this presumption and be able to punish leaders more

iii. Ep believes that you should be able to discriminate against union leaders

Employer “Support” or “Domination” of a “Labor Organization”

c. NLRA §8(a)(2)’s prohibition of “company unions”i. Ep likes company unions b/c workers could have good input in ways

to increase productivity, etc which would be win/win situations where the company could get greater productivity and the worker could be rewarded for his suggestion

1. want both union & suggestion box2. Get information from anybody and implement through

channels. ii. NLRB v. Streamway Division, Scott & Fetzer (6th Cir. 1982),

p2851. F: Company had created a committee to talk to the workers.

The workers had previously failed to organize and while the committee was in place, the organization efforts failed again.

2. Q: What constitutes a labor organization under §2(5) of NLRA and was this company committee one such that it violated §8(a)(2)?

3. H: No violation, the committee was just a one-way communicative device that did not deal/bargain w/ the employer

4. R: The committee is not a labor organization b/c a. the committee members are not representative

because there is a continuous (every 3 month) rotation of committee members

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b. there is no employer hostility or anti-union animus-the committees was not formed in an effort to head off union organization

c. neither the employees, the Committee or the union considered the committee a labor organization – there was no effort of committee members to bar second unionization attempt

d. Act requires dealing, and for something to be dealing, it must be concerted or collective and it must have some give and take (not just a one-way communication).

i. .Since bargaining over “working conditions” is covered under the statute, it is incredibly broad. The court here is trying to find a way to make the definition more reasonable and narrow.

5. O: Reform proposals: trying to fix the basic problem. Trying to make sure company unions don’t prevent outside organization, but also preserve their basic functions.

6. Ep thinks that the committees look more like dealing than communicating. Here it is two directional, by multiple people.

iii. Electromation, Inc. (7th cir. 1994), p2911. F: After Electromation (D) established action committees to

find generally acceptable solutions to the company’s problems, the Union (P) filed a complaint alleging that the committees were dominated by Electromation, making them company unions

2. H: The employee action committee violated §8(a)(2), was a union, and the employer dominated and impermissibly assisted the employee action committee.

3. R: a. A labor organization that is the 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 is dominated by the company.

b. §2(5) requires:i. employees participate

ii. organization exists at least in part for the purpose of “dealing with” employers and

iii. these dealings concern “conditions of work”. iv. All three are meet by the action committees

here.

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4. Concurrencesa. Devaney: The action committees violate §8(a) b/c they

gave the employees the illusion of bargaining w/ a representative, but in truth they didn’t have that because of the extent of employer domination

b. Oviatt: the employers and employees could have direct communication like the committees w/o violating §8(a)(2) if they were discussing problems such as productivity and efficiency instead of the problems in which labor unions typically bargain ie wages.

iv. Distinction bw Electromation and Streamway: 1. In E, employees were representatives2. in E, “dealing with” is given a broader interpretation (in E,

dealing with applies to situations that do not contemplate the negotiation of a collective bargaining agreement)

3. in E there is a distinction made bw purpose and motive such antiunion motive is not critical of an 8(a)(2) violation.

4. Ep says that the definitions are hopeless, both cases are clear company union, the only difference is that in Electromation, there is more structure.

v. Carpenter Steel Co. (NLRB 1978), p305- 1. eliminated the disparity in treatment between an affiliated

and an unaffiliated union when the union was found to have been dominated by an employer.

2. After Carpenter, if the employer had dominated the union ct orders disestablishment despite affiliation.

3. If the employer had only interfered, and not dominated recognition should be withheld until certification.

V. Facilitation of Exclusive Representationa. NLRB Conditions for setting up an election

i. you need to show that a substantial # of workers (about 30%) are interested in having an election

1.this does not mean that they commit themselves to voting for a unionii. you need to wait 1 year until you have another election

1. EP thinks this is a reasonable rule b/c there needs to be some degree of permanence in an election so that the entire plant is consumed in electionsiii. General rule is that a union can get 3 years to establish itself, and then an

employer can ask for an election1. Exception: change circumstances rule- if there is a rapid change, you

can petition the NLRB for a dispensation from the 3 year ruleiv. Who votes:

1.unions get a clear advantage of picking how many outlets/plants they want to have vote for a union.

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v. §8(c) : unions can compete between each other, but the employer may not get involved

1. Ep thinks this creates a surreal world. 2. If you allow firms to make promises, the unions will never win.

§8© is very important.vi. There is no parallel to 8© for unions

1. There is nothing that restricts what a union must say2. but the range and power of a union are less than what an employer may do

Restraint and Coercion in the Election Processb. Threatening Speech vs. §8(c)

i. NLRB v. Golub Corp. (2d Cir. 1967), p3441. Judge Friendly – thinks employees are smart2.. F: Company/Grocery Store/Golub makes letters and speeches regarding the bad things that will happen if the employees unionize.3. Q: What is the distinction between what an employer is not allowed to say because of 8(a)(1); & 7 and what is an employer allowed to say under §8(c) and the first amendment4. H: Employer made predictions, not threats.5. R: An employer may make predictions of adverse consequences, but not threats of retaliation or reprisal for unionizations.6.Dissent (Hays): You can’t read things w/o their context. The majority will allow employers to communicate implied threats to employees simply by stating that circumstances will cause them.

ii. General Shoe Corp. (NLRB 1948), p352b. F: Employer summoned groups of 20 employees into his

office and gave antiunion speeches on the night before elections and sent foreman to union member homes to campaign against unionization. The NLRB set aside the election.

c. H: Although the employers actions are protected by 8(c) , and the conduct does not constitute an unfair labor practice, the NLRB may find that the election fails its own administrative standards for a free election and invalidate it

d. R: i. NLRB: for this election there wasn’t “laboratory

conditions” ii. In an election proceeding, it is the Boards job to find

out the uninhibited desires of the employees, while the employers conduct may not constitute and unfair labor practice, the board may nonetheless invalidate it.

e. Dissent: Reynolds & Gray – If the expression or dissemination of views, arguments or opinion by an employer is to be afforded the full freedom which the Act envisages, it follows that the Board cannot

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justify setting aside elections merely b/c the employer avails himself of the protection which the statute specifically provides.

f. O: Setting aside and election is a more powerful remedy for which you need a lower burden of proof than an unfair labor practice which you just get an injunction for.

ii. NLRB v. Gissel Packing Co. (1969), p358 (I)1. Justice Warren2. F: Shortly before a representation election, an employer (D) who had

no objective basis to rely upon, predicted that unionization would force the company to go out of business. Appeal from NLRB finding of an unfair labor practice by the employer- violation of §8(a)(1).

3. H: Upheld the NLRB’s ruling that the employer violated unfair labor practices.

4. R: An employer is free to make a prediction to his employees as to the precise effects he believes unionization will have on his company only when such prediction is

a. carefully phrased on the basis of objective fact (not just sincere belief) as to

b. the demonstrably probably consequences c. that are beyond the employers control and d. are truly the employers belief. e. The statements may not contain a threat of reprisal or force or

promise of benefit.5. Reasoning: Employer §8(c) right must be balanced against the fact

that employees are economically dependent on their employers, and as a result, are more likely than disinterested persons to interpret pronouncements by the employers as threats.

b. Factual Misrepresentations and Inflammatory Speechi. Midland National Life Ins. V. Local 304(A), United Food & Commercial

Workers (NLRB 1982), p3691. F: Local 304(A) (P) objected to the distribution of highly misleading, antiunion literature distributed by Midland (D) on the morning of the representation election. P had less than 4 hours to respond and lost the election by a vote of 107 to 107. NLRB hearing officer had recommended that a new union representation election be held.2. H: NLRB certifies the election b/c the court will not longer probe into the truth or falsity of the parties’ campaign statements, and will not set aside elections on the basis of misleading campaign statements.3. R: The court will set an election aside because of the deceptive manner is which it was made, meaning an manner which renders employees unable to evaluate the forgery for what it is,” but not because of the substance of the representation. Believes employees are smart4. Dissent- Would keep the Hollywood Ceramics Rule:Not allow statements that are a substantial departure from the truth, looks at

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whether there has been time for an effective reply and is the representation “reasonably expected” to have a “significant impact” on the election? Believes employees need protection. 5.O: Rejects Hollywood Ceramics Rule.6. O2: Mgment talked about what the union did down the street; the management exaggerated about misappropriations

1. in a torts case there would be a common law action for fraud b/c the statements that are far enough away from the truth

c. Offers and Inducementsi. Employer: NLRB v. Exchange Parts Co. (1964), p390

1. Justice Harlan2 .F: Exchange Parts Co., an employer (D) announced the bestowal of new benefits on employees shortly before union representation election was to be held; the union subsequently lost the election. Benefits were timed to induce employees to vote against the union, but it is not clear that if the union won, the benefits would be lost.3. H: Yes, the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, interferes with the protected right to organize (§8(a)(1)) despite the fact that the benefits may be permanent and unconditional. Benefit is a “fist within a velvet glove”4. this case is not caught by 8© because this is not a promise of benefit, this is an actual benefit5. EP says this is dumb b/c there was no fist—there was no implied condition or implied threat. But his tactic is not allowed b.c it could be a very effective tactic to break a union.6. O: 8(a)(1)- unqualified benefits constitutes coercion, b/c we need this for the basic integrity for the labor statute

ii. Union: NLRB v. Savair Manufacturing Co. (1973), p3951. Justice Douglas2. F: Union sent out “recognition slips” prior to a union election.

Employees who signed the slips did not have to pay the union initiation fees, but were not bound to vote for the union. It resulted in a 22 -20 elections.

3. H: Unions cannot provide inducements prior to an election.4. R:

a. US SC says that allowing the union to buy endorsements creates a false impression about the real support of the union during a campaign.

b. Employees who sign under such circumstances may have a false sense of obligation to vote for the union or they may sign under a sense of apprehension about repercussions that might follow if they do not sign and the union wins.

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5. White Dissent- union is different from employer and should not be treated the same ie Exchange parts. there is no coercion, b/c employees will never have to pay the money if the union doesn’t win

6. Ep- unions would never give this if they didn’t think it would work

d. Equality of Accessi. NLRB v. United Steelworkers of America (1958) (“Nutone &

Avondale”), p4001. Justice Frankfurter2. F: Employer has a “no solicitation” rule, but the employer himself

engages in antiunion solicitation that if engaged in by employees would constitute a violation of the rule. The union did not ask the employer to make an exception to the rule (which the employer had done in the past for charities); the union did not attempt to show that the no-solicitation rule truly diminished the ability of the unions to get messages to employees.

3. H: The very enforcement of the rule is not an unfair labor practice.4. The court qualifies this by saying that “we do not at all imply that

the enforcement of a valid no-solicitation rule by an employer who is at the same time engaging in antiunion solicitation may not constitute an unfair labor practice, all we hold is that it does not here” b/c there was no pleading that the no solicitation rule truly diminished the ability of the labor organizations involved to carry their message to the employees.

5. EP: the employees should have just made a requestii. Excelsior Underwear Inc. (NLRB 1966), p408

1. F: The Union (P) that sought to represent Excelsior’s (D) employees challenged the representation election, which it lost, upon Excelsior’s (D) denial of its request for a list of the names and addresses of the voting employees.

2. H: An employer cannot use his §7 rights (ie refraining from union activity) to not disclose the names and addresses the election will be set aside.

3. R: When a representation election has been scheduled, the employer must file with the regional director an election eligibility list, containing the names and addresses of all eligible voters which will be made available to all the parties.

a. The disclosure is not limited to situations where an employer contacts employees at their homes.

4. Re: We want to provide equal access to all arguments and information so the employees can make a fair choice.

5. Ep says that the complaint should have been made before the election.

6. Ep says that the per se rule is appropriate (but it should have done by rulemaking) but that individual case by case discretion in this instance would be a nightmare

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7. Ep says that the employer still has the advantage even though the union go the list

a. Union may not want to ask for a list of names at the beginning because the unions may not want the employer to know that they are going to attack

Advantage of starting private means that the counter attack won’t take place, but if you keep it private, the employer could start giving out raises and stuff that employer wouldn’t be able to do if there were a campaign going on.

b. the court says that the mailing list isn’t a trade secret Ep says maybe the mailing list is a trade secret

because the union could give the names and addresses to rival firm that is unionized

iii.§ 8(b)7 Recognitional Picketing – not allowed as a means a forcing an employer to deal w/ the union

Obtaining Recognition without an Election

e. The Preference for Electionsa. NLRB v. Gissel Packing Co. (1969), p412 (II)

Justice Warren1. F: Employers refused to bargain with unions having authorization cards from a majority of employees. The employers then waged anti-union campaigns and committed numerous unfair labor practices. Employers doubt on union majority was not based on “good faith” and NLRB found a refuse to bargain violation under 8(a)(5). Employers also committed 8(a)(1) violations. 2. Q: Can duty to bargain arise w/ a board election (Y)? Are union authorization cards reliable enough to show majority status (Y)? Is a bargaining order an appropriate remedy is this situation (Y)?3. H: A bargaining order is the proper remedy for employer refusals to bargain where independent unfair labor practices have made holding a fair election unlikely or have undermined a union’s majority. (??? Here one was not issued???)

4.R: a. A union does not have to be certified by the Board to

invoke bargaining obligation 1. Management is better off w/ second election than a union can compensate for they order a collective bargaining order

b. Majority status may be established by other means, such as participation in a strike, or strike vote or by authorization cards.

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C. §9© allows an employer to test GOOD FAITH doubts and to petition for an election, but it does not relieve and employer of the obligation to bargain with a majority representative.

d. Ep: you can only set asides the cards on the grounds that the employees were misrepresented/defrauded to in that they said that the cards were only for an election and not for the union.

5. O: Cumberland Shoe doctrine- if the card itself is unambiguous (ie states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election, it will be counted unless it proved that the employee was told that the card was to be used SOLEY for the purpose of obtaining and election. 6. O2:

a. 9(a) – “designated or selected”i. “designated” is to take in account a nonelection

b. §9© - petition- the same std for union/ employerii. 9©- talk about authorization cards, thresholds, running the campaign and the count

c. Warren goes back to the CL rule- minor breaches do not constitute no contract. Therefore here, a minor breach does not mean a order to bargain order

i. the statute doesn’t have remedies for breaches warren adds them in. .

1. minor breach no 8(a)(5) rule; employer gets a margainal adv

2. major breach NLRB will designate the union and you will have to bargain

3. there are no monetary penalties for the labor statute- Ep thinks they should use monetary sanctions and ability to order new electionsii. Under the NLRB there is only:

1. cease a desist (victory to the party who has done wrong)2. bargaining order

iii. Ep really thinks they should add a fine provision so that you can have intermediate remedies.

VI. Regulation of the Process of Collective BargainingExclusive Representation

d. J.I. Case Co v. NLRB (1944), p469i. Justice Jackson

ii. F: Case (D) signed individual contracts of employment with about ¾ of employees. Subsequently, a union was selected as the collective bargaining representative for Case (D) employees in a Board

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election. Case (D) refused to bargain on any matter covered in the individual contracts claiming that those contracts had to be honored until they expired. However, Case (D) was willing to bargain on any matter not covered by those contracts. The NLRB (P) held that the refusal to bargain was a §8(a)(5) violation. Case (D) appealed.

iii. H: Individual contracts no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay any procedures or rights under the NLRA.

iv. Other: they don’t decide if individual Ks may add to provisions in the collective bargaining K (??)

1. Ep Says: Prior at the time of the K, you cannot give some employees sweeter deals—unions are very suspicious of merit raises

v. O: the statute doesn’t allow to give more benefits except in sports and talent

- union can say that the collective bargaining can leave all wages up to the individual employee

b. Emporium Capwell Co. v. Western Addition Community Organization (1975), p476

i. Justice Marshallii. F: Although a collective bargaining agreement provided for

arbitration to resolve charges of racial discrimination by an employer (D), and the union agreed to press charges against the employer, two black employees, attempting to bypass their union’s individual grievance system sought to bargain with the employer (D)themselves to get larger scale race reform. When that didn’t work, the black employees picketed and got fired.

iii. H: A group of employees, who claim that they have been discriminated against on the basis of race by the employer, may not bypass their elected bargaining representative to deal directly with the employer.

Good Faith Bargaining Positions and Practicesc. NLRB v. Insurance Agents’ International Union (1960), p485 and p605

i. Justice Brennanii. F: The NLRB (P) argued that the union (D) failed to bargain

collectively in good faith b/c it sponsored employee work slowdowns at the same time it was involved in K negotiations. NLRB found an §8(b)(3) violation.

iii. H: A union does not fail to bargain in good faith in violation of §8(a)(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 it is negotiating a K.

iv. Re:1. there is no inconsistency bw the application of economic

pressure and good-faith collective bargaining

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2. Telling the employees what tactics they can (strike) and cannot (this) do would amount to the NLRB’s entrance into substantive aspects of the bargaining process to an extent C has not condoned.

3. Good faith of §8(b)(3) Ct can only control what employees do at the table.

Surface Bargainingd. NLRB v. American National Insurance Co. (1952), p492

i. Justice Vinsonii. F: American (D) refused to bargain with the union over things

covered by its “management function clause” (meaning promotions, discipline, and work schedules). The NLRB(P) filed a complaint that D:

1. interfered w/ the §7 rights of employees b/c the clause contained conditions of employ

2. unfair labor practice of 8(a)(1) and (a)(5). iii. H: Is it not per se unlawful for an employer to bargain for a

management functions clause in an employment agreement b/c the NLRB cannot directly or indirectly compel concessions from either party to bargaining.

iv. R: The NLRA requires only that parties bargain in good faith. The duty to bargain collectively is to be enforced by application of the good faith bargaining standards of §8(d) to the facts of the case rather than prohibiting all employers in every industry from bargaining for management functions clauses altogether.

v. Minton Dissent –The fact that management insisted on this clause or refused to settle unless the union accepted the clause is evidence of an unfair labor practice and bad faith.

e. NLRB v. A-1 King Size Sandwiches , Inc. (11th Cir. 1984), p498i. F: A-1 (D) insisted on a managements rights clause which gave to

the employer the sole right to set salaries, grant increase, hire, fire, have full control over work schedules and working conditions. Aside from being a hard bargainer and making second proposals less likely to be accepted than the first, there is no evidence that the Company had any anti-union animus. The Union charged and the NLRB (P) held that D failed to bargain in good faith by engaging in surface bargaining and not attempting to reach an agreement violating §8(a)(1) and (5).

ii. Q: Whether the content of D’s bargaining proposals together with the positions taken by the D are sufficient to establish that D entered into the bargaining w/ no real intention of concluding a collective bargaining agreement.

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iii. H: Yes, the Board correctly inferred bad faith from the D’s insistence on proposals that are so unusually harsh and unreasonable that they are predictably unworkable.

iv. R: 1. The Act does not require either party to reach an agreement

and the Board cannot compel them to do so or to make any concession. However, the duty to bargain in good faith requires more than engagement in sterile discussion and the board may consider the substance of the proposals that the parties have made.

2. EP: Good faith negotiators never go backwards, but this happens all the time in regular Ks, ie buy early

v. Re:1. The ct defers to the Board’s findings and only review to

determine if there is substantial evidence to support its findings.

2. After months of bargaining, D insisted on unilateral control over virtually all significant terms and conditions of employment. D crossed the line of good faith bargaining into a position of obstructionist intransigence.

f. Boulwarism- Lemuel R. Boulware (GE) strategy of polling employees as to their desires and formulating a “firm, fair” offer from which it would not budge unless the union presented new info, and then to market the offer aggressively to the employees was found to violate §8(a)(5)

Disclosure Obligations

g. NLRB v. Truitt Manufacturing Co. (1956), p508i. Justice Blackii. F: Union wanted wage increase. Employer said it would go out of business,

but refused to provide the union access to evidence to substantiate the employers claim. Employer refused based on the fact that union had no legal right and employer’s books were not relevant, not because the request was too burdensome or would be injurious to its business.

iii. H: When an employer refuses a wage demand by raising a claim of economic inability during bargaining, good faith (§8(a)(5)) requires the employer to allow the union to examine the employer’s confidential books and records if the union requests.

iv. R: 1. If such an argument is important enough to assert, it is

important enough to produce proof of its accuracy. Good faith honesty.

2. Claims about insolvency disclosure obligations; Claims about competition no disclosure obligations*

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v. Caveat: Each case will have to be decided individually, it is not true that every time and employer raises and economic inability claim union is entitled to substantiating evidence.

vi. Frankfurter Concurrence: Good faith turns on the totality of the conduct ie previous relations bw parties etc., not on one thing. Here the board just looked at one thing and the case should be returned to the board for it to reevaluate.

vii. Ep says this decision isn’t that important anymore because there is a lot of info

viii. O: CL rules on disclosure- while there may be no general duty to disclose, a selective disclosure of bad news is fraud.

h. Detroit Edison Co. v. NLRB (1979), p511i. Justice Stewartii. F: Employer gave test to 10 union members who bid for a vacancy. None

passed, so employer hired outside union. Union wants to file a grievance and wants info. Employer refused to give union a copy of the statistically validated psychological aptitude test, answers and scores b/c union did not obtain individual employees consent and employer had spent much $ on tests and there was no guarantee of secrecy.

iii. H: The employer’s duty to bargain in good faith does not required him to divulge to the union representing its employees the tests and test results achieved by individual employees in a statistically validated psychological aptitude testing program in the absence of individual employee consent.

iv. R: You don’t have a disclosure obligation to the extent that it would damage you intellectual property.

v. Ep says that it is crazy that the union should be able to get the info. The employee owns the grievance the employee can ask his own score

vi. EP says this is the right result, but the wrong trackvii. Always disclose under a strong promise of confidentiality

The Concept of “Impasse”

i. NLRB v. Katz (1962), p519i. Justice Brennanii. F: The NLRB/P found that Katz, an employer/d had violated §8(a)(5) by instituting unilateral changes on §8(d) mandatory bargaining subjects during the course of union negotiations. One of his changes was clearly more generous than what Katz/D had offered to the union and the other two were discretionary and would make at least some employees better off. These unilateral changes occurred before any impasse had been reached. There was no other evidence of employer bad faith.viii. H: An employer’s unilateral change in conditions of employment under

negotiation is a violation §8(a)(5) because it is a circumvention of the duty to negotiate which frustrates the objectives of §8(a)(5) as much as a flat refusal to negotiate on those subjects does.

ix. R:

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1. The Board may hold such unilateral action to be an unfair labor practice in violation of §8(a)(5), without finding the employer guilty of overall subjective bad faith.

2. once you reach impasse, all you can give them as your last best offer. This reminds you of Exchange Parts

x. Caveat: There may be some instance where unilateral action could be justified or excused.

xi. Management can never compete w. unions to get workers b/c the moment you allow employers to one up the union, they will never reach an agreement b/c otherwise the manufacturer will be able to bargain to impasse and 1 up the union latter and try to push out the union

1.. Asymmetry- manufacturers can delivery unilaterally, but unions cannot

Subjects of Mandatory Bargainingf. NLRB v. Wooster Division of Borg- Warner Corp. (1958), p529

i. Justice Burtonii. F: During negotiations w/ the union. Wooster (D) insisted on a

contract that contained 1) an advisory pre-strike vote of all union and nonunion employees as to D’s last offer and 2) a clause excluding the certified international union as the party to the K and substituting the noncertified local instead. The union filed charges w. the Board alleging refusal to bargain §8(a)(5).

iii. H: An Employer’s insistence upon terms which are not mandatory subjects (See §8(d)) bargaining is a refusal to bargain in good faith.

iv. O: It is lawful to insist upon matters w/n the scope of mandatory bargaining.

v. Frankfurter Concurrence in part–would have allowed the ballot clause b/c it its not clear it is outside the bargaining range of the vague 8(d)

vi. Harlan Concurrence and Dissent – The NLRB should not determine what should be bargained by two parties, only that they should bargain. Recognition clause was, but ballot clause was not (very similar to a not strike clause which would be allowed b/c in governs employer/employee relations and here ballot was not allowed by maj. b/c it governed union/employee relations.)

1. “contravened specific requirements in the act”- i. you cannot let he workers bargain directly with

the management b/c the union is the exclusive bargaining agent

vii. mandatory/permissive/prohibited1. “Permissive” – if both sides agree to it, it becomes part of the

K whether or not it is a wage, hour or terms and conditionsa. you can propose it, but not insistb. ither side can give an absolute veto over the

permissive term

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2. Statute: wages, hours and terms and conditions of employment are words of limitation and not words of expansion

viii. EP thinks that both these terms are prohibited1. One cannot bargain away the right to organize, the right for

exclusive representation, right to collective bargaining.2. Ep things that the ballot question is an offshoot of the right to

exclusive representation ( Harlan is right and Maj. Is wrong)

ix. ep says we shouldn’t ask mandatory or permissive, but instead prohibited

g. Fibreboard Paper Products Corp. v. NLRB (1964), p543i. Justice Warren

ii. Facts: upon expiration of collective bargaining agreements, and employer (D) decided, for legitimate business reasons, to K out maintenance work previously performed by union members to independent contractors and refused to negotiate this matter with the union.

iii. R: Contracting out b/c it is the replacement of employees in the existing bargaining union with those of an independent Ktor to do the same work under similar conditions of employment, even if planned for legitimate business reasons, is a mandatory subject of collective bargaining.

iv. Stewart Concurrence: employment security is a condition of employment, but NOT those management decisions which are fundamental to the basic direction of a corporate enterprise, or which impinge only indirectly on job security should not be understood as subjects of mandatory bargaining

v. ep thinks it is a big inconvenience for employers to have to bargain b/c they cannot rapidly negotiate with the outside firms.

vi. Ep disagrees with this b/c he thinks the language means for workers who already have contracts, not whether they have a K or not

VII. Weapons of Economic Conflict: Strikes, Boycotts, and Picketingh. Strikers and Replacements

i. NLRB v. Mackay Radio & Telegraph Co. (1938), p6071. Justice Roberts2. F: Mackay (D), after filling 6 out of 11 vacancies created by

striking employees, only rehired strikers who were otherwise not active in union activities.

3. H: Discrimination in rehiring striking employees on account of their union activity violates §§8(a)(1) and (3) in regard to tenure of employment.

4. R: An employer may permanently replace strikers with permanent replacements in order to carry on his business, but

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he may not discriminate against the striking employees the employer is rehiring based on their level of union involvement.

5. Re: A striker remains an employee under §2(3) of the Act therefore discrimination in rehiring is prohibited.

6. O: §13 there is a right to strike and nothing in the statute shall be construed so as to interfere with or impede or diminish in any way the right to strike

a. Ep: section 13 should be read to prevent permanent replacements

b. “interference” should be read broadly, like §87. grizzly truth is after a strike, the workforce is going to go

down if the firm has made structural changes the workers are better off w/ replacement

8. Ep thinks that mackay radio is wrong and that is should go back to a Republic Aviation balancing test

9. Ep says under the statute, Replacement workers look too much like Fibreboard contracting out

ii. an employer is required to displace even permanent workers who have made an unconditional application for reinstatement in an unfair labor practice strike (a strike that was caused by or continued based on an employer’s unfair labor practice), but not for an economic strike.

iii. Unfair labor practice strikers receive other benefits ie back pay, voting (even after 12 months unlike counterpart under §9©) , can get away w/ more misconduct (§10©) see p 619

iv. a strike b/c of an unfair labor practice does not violate no-strike clauses in Ks and does not trigger cooling off obligations of 8(d)

v. replacement workers are generally bound by the traditional union K vi. Strike workers who didn’t get rehired are given priority if the firm

decides that it does need more workers. vii. after strike, if there is a layoff, the replacements are probably the

first to go because they are bound by tradition union Ks and are less senior

1. once you are done working of the backlog of work, the reinstated workers would be the first to go permanent workers look like temporary workers

2. knowing this, firms generally hire back less then they will need and work off the backlog slower because they want to keep the replacement workers who are less likely to strike

a. you do this though overtimei. The Role of Impact Analysis

i. NLRB v. Erie Resistor Corp. (1963), p6231. Justice White2. F: In order to encourage strikers to return to work and to hire

replacements, Employer/Erie offered 20 years “super

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seniority” (20 years would be added to each non-striker and replacement’s actual service record for the purposes of determining layoffs priorities according to seniority) to those who would stay on the job.

3. H: A legitimate business purpose is not always a defense to an unfair labor practice charge. Even thought, the employer’s offer of super seniority may have been motivated by a legitimate business interest in keeping production up, by its nature, it worked to discriminate between strikers and nonstrikers and thereby discouraged membership and participation in the union and its collective action.

4. R: Two things are required for an §8(a)(3) violation: 1. encouraging or discouraging union membership and 2. discrimination

5. Ep says this is clearly republic aviations in the strike context

ii. Trans World Airlines, Inc. v. Independent Federation of Flight Attendants (1989), p637

1. Justice O’Connor2. F: TWA had a system of seniority in terms of schedules and

where the flight attendants were based. Union goes on strike and TWA both hires replacement workers and offers junior workers the opportunity to stay on in schedules and home bases that they wouldn’t have been able to get in terms of their seniority. The post-strike rehiring would go by seniority and would be preferenced by seniority.

3. H: Under the RLA, an employer is not required to displace employees who worked during the strike in order to reinstate striking employees w/ greater seniority.

4. R: When taking back strikers, the employer need not displace junior employees who stayed on the job during the strike

5. Re: People take a risk when they strike, b/c the permanent replacements do not need to be discharged, it would be the more junior employees and that isn’t fair to do to the more junior employees.

6. Brennan Dissent: Balancing test: Necessity of the employer’s action vs. employees right to strike. This will severely hurt the abilities of the employees to strike.

7. Blackmun Dissent: it should all be decided on the facts of each case whether the employer needs to use this tool or not.

iii. NLRB v. Curtin Matheson Scientific, Inc. (1990), p6451. Justice Marshall2. F: Negotiations broke down and D locked out 27 employees.

5 crossed the picket line and 29 permanent replacements were hired. After conversing w/ one of the replacement, D decided that it doubted the union’s majority statute and

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withdrew recognition. Board found a §8(a)(1) and (5) violations.

3. H: Union wins. The Board can have no presumption either way as to whether replacement workers support the union.

4. R: It is rational for the NLRB to require actual evidence of nonsupport in determining whether an employer’s failure to negotiate is based on good faith reasonable belief in lack of union support.

5. Notes: a. Upon certification by the NLRB as the exclusive

bargaining agent, a union enjoys an irrebuttable presumption of majority support for 1 year.

b. During that time, an employer’s refusal to bargain with the union is per se an unfair labor practice under §8(a)(1).

c. After that year, the presumption continues, but is rebuttable by showing that at the time of the refusal to bargain, either (1) the union did not in fact enjoy majority support or (2) the employers had a good faith doubt, founded on a sufficient objective basis of the union’s majority support.

6. Scalia Dissent: It is without question that the economic interest of the striker replacement rests in opposing the union. Thus the presumption is rational.

j. Lockoutsi. American Ship Building Co. v. NLRB (1965), p655

1. Justice Stewart2. F: Employer reasonably feared a strike, had reached an

impasse at bargaining and as a result laid off workers at a time where he had little work. Union claimed that there would not be a strike. Union sued as an unfair labor practice. There was no evidence of bad motive or union hostility or that the employer used the lockout to achieve an improper bargaining objective or that it was hostile to the union.

3. H: An employer is free to temporarily lay off employees solely as a means to bring economic pressure to bear in support of its bargaining position after an impasse has been reached b/c the employers true motive was to reach settlement.

4. R: a lockout is not inherently discriminatory against concerted union activity

5. White concurrence: The Ct should not have reached the issue of the validity of lockouts and says that the lockouts are unfair labor practices and that the ct should have followed Erie and said that that conduct speaks for the motives.

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6. Note: a. The union can call a strike and continue to negotiate.

Management does not have the same freedom.b. Management must bargain to impasse before they can

call a lockout. If they could lockout anytime, they would have a powerful way of destroying the union by calling a lockout, hiring replacements, and thereby displacing the union workers.

c. When management calls a lockout, they can only bring in temporary replacements. Otherwise they would be too powerful. Ep: right rule.

k. Subcontracting Struck Worki. Land Air Delivery, Inc. v. NLRB (D.C. Cir. 1988), p667

1. Judge Silverman2. F: Faced w/ a strike ( after impasse) Employer

permanently replaced employees w/ subcontractors. There was no showing of employer necessity to hire permanent subcontractors.

3. R: An employer may not permanently replace striking workers w/ subcontractors.

4. Re: A material difference exists between replacing strikers with employees and subcontractors. In the event of the former, the union, in theory, may be able to win the allegiance of the new employees. In the latter, the employer has unilaterally decertified the union by hiring permanent subcontractors.

5. Ep believes that this is the right result given the statute, even though the firm is worse off w/o the right to hire subcontractors

6. strategically- if you are a firm, you are often better if you are starting w/ small independent K firms, so that you don’t have to deal w/ labor issues

Regulation of Collective Action by Labor Organizationsl. Constitutional Limitations of Gov. Regulation

i. Teamsters, Local 695 v. Vogt, Inc. (1957), p6741. Justice Frankfurter2. F: Union picketed the entrance of employer’s plant to

unsuccessfully induce some of the employees to join the union. Wisconsin statue prohibits picketing in absence of a labor dispute.

3. H: The statue is constitutional b/c the policy of Wisconsin enforced by the prohibition of picketing is a valid policy b/c the picketers are trying to coerce, intimidate or induce the

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employees to join a union (violating employee’s §7 right not to join a union).

4. R: A State in enforcing a public policy whether it is of criminal or civil law, whether it is announced by its legislature or its courts can constitutionally enjoin peaceful picketing aimed at preventing the effectuation of that policy.

5. Re: Frankfurter goes back to the “Inherently Coercion” line in Vegelahn

a. coercion of the union is defined as broadly as coercion was defined by the firm

6. Douglas Dissent: He would return to the Giboney test: picketing can be regulated or prohibited only to the extent that it forms an essential

part of a course of conduct which the State can regulate or prohibit.7. O: In general, labor picketing appears to have been treated as

a form of economic pressure subject to reasonable state regulation rather than as a form of communication generally exempt from regulation by the first amendment.

f. Secondary Boycottsi. Howard Lesnick defs.

a. Secondary Boycott: If the picketing union intended to subject the secondary employer to a loss of the services of his employees broader in impact than would be directly caused by the unavailability, as a result of the complete success of the strike, of the services of the primary employees then it should be illegal. b. Primary Boycott: If you shut down the secondary only to the amount that a complete strike would, then it is a primary boycott.

ii. Ep likes the Frankfurter/Green def of Secondary Boycott: A combination to influence A by exerting some sort of economic or social pressure against persons who deal with A.iii.. Secondary boycotts were illegal at common lawiv.. § 8(b)(4)(A)’s purpose was to reinstate union liabilities for such boycotts v.. Prohibited under §8(b)(4)(A)-(B), 8(e), 10(l) of the NRLA and §303 of theLabor Management Relations Act vi. At CL

a. if you induced someone breach a K at common law, this was actionableb. A CL there was no 2ndary boycott as long as there was no fraud, coercion or defamation (must make the representation to a 3rd party)c. the CL law is much easier on unions, then the law under the NLRB

1. anything that would get you in trouble at CL ie force will get you in trouble with the labor statuted. § 8(4)(b)- they treat coercion and inducement the same

vii. Two troublesome features of the statutea. its “any individual” and there is no distinguishing bw customers, long term business associates, subcontractor.

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b. the situs makes a differenceviii. .see more pg684ix. Paul Weiler- . you must be specific as to what your grievance is. You must

say “don’t accept X’s products at the A&P”, x.. Lesnick and Weiler would amend 8(b)(4) to allow people to trace hot cargo

as far as it goes, but no further.

xi. Ally Doctrine: an exception to the ban on secondary situs picketing1. Ally can be extended to mean other operations under

a. common ownership b. common control c. integrated operations

2. NLRB v. Business Machine, Local 459 (Royal Typewriter Co) (2d Cir. 1955), p689

a. F: Royal manufactured sold typewriters and had warranty/service agreements to fix the typewriters. Royal’s servicemen went out on strike and Royal told its service contract customers to select an independent repair company and then Royal will pay the bill. Royal’s servicemen picketed the independent repair company’s property and were charged w/ and §8(b)(4)(A) violation.

b. H: Royal’s servicemen can picket another company who is providing services that Royal’s servicemen would do if they weren’t on strike.

c. R: An employer is not within the protection of §8(b)(4)(A) when he knowingly does work which would otherwise be done by the striking employees of the primary employer and where this work is paid for by the primary employer pursuant to an arrangement devised and originated by him to enable him to meet his contractual obligations.

d. Hand Concurring: The Union could picket the secondary even if it caused the secondary’s men to strike (which it did not here).

e. Ebasco Case, p692: Ebasco subcontracted out to Project his work. When there was a strike E subcontracted out more work. Judge Rifkind says that these two employers are in cahoots Union can picket Project

1. Rifkind says that this is an exception. You are not asking them to “cease doing business at arms length” – you can’t put pressure on the retail store, but you can put pressure on people who had common business. 2. EP thinks that what matters is if the secondary party is at arms length transaction is the right distinction to make

f. Ep’s rule: Tactics that are too effective are illegal.

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v. Common Situs Problems: Exception to the §8(b)(4)(A): no picketing on secondary employer rule.

1. Sailors’ Union of Pacific & Moore Dry Dock (NLRB 1950), p697a. F: The sailor’s Union which had a labor dispute w/ Samsoc

(ship owner), picketed Samsoc’s ship while it was tied up in the Moore Dry Dock (P). P’s employees stopped working in the ship and P claimed that the picketing was an illegal secondary activity.

b. H: Union wins (the picketing was primary and not secondary). Union can picket here because the right of the union to be able to picket a site of its dispute is greater than the right of the secondary to be free from picketing in a controversy in which the secondary is not involved.

c. R: The picketing of the premises of a secondary employer is allowed if it meets ALL the following conditions:

i. the picketing is strictly limited to times when the situs of the dispute is located on the secondary employer’s premises;

ii. at the time of the picketing, the primary employer is engaged in its normal business at the situs;

iii. the picketing is limited to the places reasonable close to the location of the situs and

iv. the picketing discloses clearly that the dispute is with the primary employer.

v. All of the conditions were met here.d. Ep thinks this decision is correct

2. NLRB v. Denver Building & Construction Trades Council (1951), p701

a. F: Union (D) had a dispute with nonunionized subcontractor. Union picketed a construction site of the unionized general contractor in order to force the latter to release the subcontractor.

b. H: Employer wins. A labor organization commits an unfair labor practice, within the meaning of §8(b)(4)(A) by engaging in a strike, an object of which was to force the general contractor on a construction project to terminate its contract with a certain (nonunionized) subcontractor on that project.

c. Re: the judge said that the union did not have a dispute w/ the general contractor, (which would be primary and legal), instead the union had a dispute w/ the subcontractor the boycott of the general is a secondary boycott and illegal.

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d. Douglas Dissent: Picketing would have been legal if there was no sub. The right to strike, guaranteed by §13, should not be dependent on fortuitous business arrangements (of hiring a sub rather than just putting nonunion men on the job). Dispute is just bw union and nonunion employees

e. EP thinks this case is wrongly decided with respect to the labor law. Ep thinks that the Construction exception to 8(e) meant that the Denver case is not nearly as important as it appears

3. Local 761 International Union of Electric, Radio & Machine Workers v. NLRB (1961), p705

a. F: GE, fearful of becoming embroiled in the labor controversies of its independent contractors, set aside a separate plant gate for their sole use; the Union (D) on a strike again GE picketed the i.c.’s gate. Employer charged an 8(b)(4)(A) violation.

b. H: Remanded to Board to determine the type of work the subcontractor was engaged in.

c. R: i. Picketing is unlawful when directed against the

secondary employer where the independent workers were performing tasks completely unconnected to the normal operations of the struck employer, as construction on employer’s buildings.

ii. On the other hand, picketing is lawful where the secondary employer, although using a separate gate, is performing work which “aides” the primary employer. Such picketing is then protected.

iii. Thus, secondary employers who either perform essential work for a struck employer, or perform “mixed work” which more than unsubstantially benefits the struck employer, may not invoke §8(b)(4)(A) to ban picketing at the separate gate.

d. Ep: thinks this case is wrongly decided, we don’t want to exceptions to the primary rule. Primary site means picketing should be ok. “International Rice forever”

4. NLRB v. Fruit and Vegetable Packers, Local 760 (1964), p715a. Justice Brennanb. F: Local 760 (D) in a dispute w/ growers of Washington

State apples, picketed several Safeway supermarket stores for the purpose of discouraging customers from buying specifically Washington State Apples.

c. H: The secondary picketing of retail stores, limited to an appeal to the customer of said stores not

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to buy the products of certain firms against which the picketers are on strike, is NOT violative of §8(b)(4)(ii)(B).

d. Re: i. There appears to be not bar on secondary boycotts

aimed at the primary employer’s goods sold by the secondary employer when the public is not asked to withhold its patronage from the secondary employer.

ii. A complete boycott of the secondary would be illegal, and the fact that sales of apples have dropped are not grounds for finding an illegal secondary boycott.

e. Harlan dissent: some people may not know what the picket is about or simply refuse to cross the line the effect of this rule may be broader that the ct intends.

i. Also, some stores ie gas stations only sell one product, so a picket of just one product would be a picket of the whole store.

5. NLRB v. Retail Store Employees Union, Local 1001 (Safeco Title Insurance Co.) (1980), p720

a. Justice Powellb. F: Union had a dispute w/ Safeco. Union picked 5 other

companies whose sale of Safeco’s policies constituted over 90% of their business. Picket signs asked customers not to buy Safeco’s products

c. H: Union looses: this violate §8(b)(4)(ii)(B) of the NLRA.d. R: Secondary picketing against consumption of the

secondary’s primary product leaves responsive customers no realistic option other than to boycott the secondary altogether.

i. Therefore picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the primary product or to cease doing business w. the primary employer.”

e. EP says that this is an integrated business and therefore a primary boycott.

1. This case seems to say: i. In order for you to invoke the ally doctrine,

there has to be some reallocation of the business of the primary site to the secondary site2. The boycott has to be peaceful and has to be targeted, ep says that if the target that is so big that you shut the secondary down, than that is good b/c you are not going to have as much spillover.

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7. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1988) p725

a. Justice Whiteb. F: Wilson Co. was building a shopping mall which P owned.

Wilson contracted with High Co. to do the work. Neither P nor the 85 mall tenants were involved in Wilson’s selection of a contractor. Union (D) became involved in a dispute w/ High and the union began distributing truthful, peaceful handbills at the mall entrances asking customers not to shop at any of the mall stores.

c. H: Union wins, handbilling is allowed. Handbills are no more than persuasive and do not “threaten, coerce, or restrain any person to cease doing business with another, within the meaning of §8(b)(4)(ii)(B).

d. R: i. §8(b)(4)(ii) prohibition of secondary boycotts requires a showing of threats, coercion or restraint. This is in contrast to §8(b)(4)(i)’s prohibition of secondary strikes, which requires only a showing of inducement or encouragement.

ii. The proviso allowing publicity to inform consumers should be viewed as a clarification of §8(b)(4)’s meaning rather than as an exception to a general ban on consumer publicity. iii. picketing is different than handbilling

d. Ep says this opinion is troublesome b/c the saving proviso §8(b)(4)(D) is not broad enough in this case

e. White does the same thing as Brennan and says that they are going to read to statute not to offend the first amendment

f. Law: leaflet anywhere; picket at the site

g. “Hot Cargo” Clauses- §8(e)1. National Woodwork Manufacturing Association v. NLRB (1967), p731

a. Justice Brennanb. F: The NLRB (D) determined that a contract provision by which a

general contractor agreed not to use prefitted doors (unless they were made by a union) at the jobsite was not a secondary boycott of prefitted door because it was traditional for the union carpenters to fit the doors themselves. Ct of appeal reversed. Union charged w/ 8(e) and 8(b)(4)(B) violations. The NLRB determined that the clause violated §8(e) and the union did not appeal that determination

c. R:

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1. Where a boycott is used as a shield to preserve customary jobs, rather than as a sword to gather new jobs, it is not a violation of the §8(b)(4)(B) proscription against secondary boycotts or 8(e) hot cargo violations. C meant §8(e) and 8(b)(4)(B) to prohibit only “secondary” objectives.

2. unions can’t do this if your motivation is upstream domination, but you can do it if it is work preservationsd. . EP says that this is an attempt to unionize the whole countrye. The union won on construction sites wrt services preformed on the

premises, but not wrt to the goods coming on site. i. this is essentially Fibreboard ii. ep doesn’t like this decision

2. NLRB v. Enterprise Association of Steam & General Pipefitters, Local NO. 638 (Austin Co.) US SC 1977, p740

a. F: Union had a lawful work preservation clause in its labor agreement with Hudik (A subcontractor of Austin/general contractor). Hudik (subcontractor) hired the union. General contractor’s K w/ the owner of site said that Austin should buy plumbing units from Slant. The union refused to install certain plumbing units purchased and required to be installed b/c Slants units came cut and threaded.

b. H: The Board (which was reaffirmed by the Ct), recognized the general legality of the work preservation agreement, but concluded that it was an improper secondary pressure in violation of §8(b)(4)(B) b/c the union was asking Hudik to do something not within its control.

c. R: Even a valid work preservation agreement may have an unlawful aspect in application.

3. Industry Wide Provisos to §8(e), p7424. Remedies for Unfair labor practices 10(l) and 303, p745

VIII. Enforcement of Collective Bargaining Agreement (CBA)a. Arbitration and the Courts: §301 of the Taft Hartley act

i. Textile Workers Union v. Lincoln Mills of Alabama (1957), p799

1. Justice Douglas2. F: Union/P and employer/D have a collective

bargaining agreement which requires arbitration to settle disputes. Employer refuses to arbitrated and brought suit in federal district ct. District ct concluded that it had jurisdiction and ordered the employer/D to arbitrate the dispute w/ the union.

3. H: Union wins, arbitration ordered.4. R: §301 gives federal district cts jurisdiction in

controversies involving labor organizations in industries affecting commerce, but also authorized

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federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements including agreements to arbitrate.

a. to find out what the federal common law you look at state CL, that the custom and local practices of the plant

5. Re:a. §301(a) fed. Jurisdictionb. §301 (b) unlike at CL, a union, although an

unincorporated association, can sue and be sued as an entity in fed cts.

c. judgment enforceable only against assets of the union

d. Douglas likes custom6. O: At CL: no enforcement of executory agreements

to arbitrate7. if employer refuses to arbitrate and arbitration was in

the K, this is a material breach the employee is no longer bound to a no strike clause and b/c its a material breach releases the other side and not just an action for damages

8. All the legal process guys hate this decision b/c this is a state law K claim and Erie says there is no federal CL and Douglas ignores

ii. United Steelworkers of America v. American Manufacturing Co. (1960), p805

1. Justice Douglas2. F: Employee was injured at work and accepted

settlement based on a permanent partial disability. The employee wanted his job back and the employer refused. The agreement said the employer could discharge for cause. Arbitration was provided for all disputes arising under the K. The union asked for arbitration and the D/employer refused on the basis that this type of dispute was not covered under the arbitration clause.

3. H: Under a K requiring mandatory arbitration, all grievances must go to arbitration no matter how frivolous or meritless they may appear to a court.

4. R: Where the parties have agreed to submit all questions under the K to arbitration, the fn of the cts is to determine whether the claim by the party seeking arbitration is covered by the K.

5. There is no arbitration requirement under the NLRA

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6. The strong presumption for arbitration is found in §4 of the Norris LaGuardia act

a. N-G: no labor injunctions, but you need injunctions to get arbitration

7. Two views: a. we like industrial peace, so we will allow to

strike brennan insuranceb. no strike, go to arbitration

8. Ep says the presumption of arbitrarily won’t make a difference in the end results, this wills still be frivolous

iii. United Steelworkers v. Warrior & Gulf Navigation Co.

(1960), p8071. Justice Douglas2. F: A collective bargaining agreement provided for

arbitration of all K disputes except those which are “strictly a function of management.” When the employer/D refused to submit to arbitration, the Union’s/P grievance over its contracting out work, the Union/P brought suit.

3. R: Union wins. In the absence of any express provision excluding a particular grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where the K contains a “no strike” clause, the exclusion clause is vague, and arbitration clause is quite broad.

4. Brennan dissent: the majority is right that the inquiry in to the merits of the grievance should be limited tot the search for an explicit provision which brings the grievance under the cover of the exclusion clause ½

5. This was decided before Fibreboard6. If the CL of the shop dominates, you are never going

to get a summary judgment. Shops have a lot of customary rules.

7. there is strong retreat after the Douglas position about what was and what was not arbitral

iv. Steelworkers Trilogy (Douglas)-1. Presumption/Default towards arbitration as means of

resolving disputes if there is a hint of arbitration in the K2. But justice Douglas cannot make arbitration a

mandatory term w/n the system you can K away from arbitration, but Douglas has a be a presumption towards arbitration

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3. Douglas reads management preservation clauses narrowly and arbitration clauses broadly

4. Therefore if you don’t want arbitration, you should be very detailed and limit ability for people to get arbitration.

a. Ep says that the union won’t mind b/c they don’t want to waste their resourcesv. John Wiley & Sons v. Livingston (1964) – it is for the

courts to decide whether a dispute is substantively arbitral under a collective bargaining agreement and it is for an arbitrator to decide if a dispute is procedural arbitral.

iv. Litton Financial Printing Division v. NLRB (1991), p8201. Justice Kennedy2. F: Production workers were covered by a collective

bargaining agreement (CBA) that contained a broad arbitration clause and provided for lay-offs by seniority if ability and aptitude were equal. CBA expired and a year later employer laid off 10 employees (6 of which were the most senior employees of the plant). Employer/D refused to submit the issue to the grievance procedure of the old CBA (the second step of which was arbitration) and refused the negotiate over the layoffs. The Board found 8(a)(1) and (5) violations.

3. I: Arbitration after expiration of an agreement4. H: Employees loose, no duty to arbitrate.5. R:

a. Nolde Bros. does not suggest that any grievance concerning terms and conditions of employment will transcend the K. The grievance must arise under the CBA; that is it must involve:

i. facts and occurrences that arose before the expiration or

ii. post-expiration actions that infringe a right that accrued or vested under the CBA.

b. Although certain provision of an expired CBA cannot be unilaterally changed until after bargaining to impasse, this is to protect the statutory duties to bargain (which do not include to arbitrate) which are not grounded in the K itself.

c. A requirement for mandatory arbitration is a consensual surrender of economic power which does not transcend the CBA. Hilton-Davis Chemical Co. (1970).

6. O: Nolde Bros Inc. v. Bakery Workers – Employer was required to arbitrate the issue of severance pay for employees that were fired 4 days

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after the expiration of the CBA because even thought the dispute arose after the expiration of the collective bargaining contract, the dispute clear arises under that contract because the severance wages were a accrued or vested right earned by the employees during the term of the K.7. Ep agrees w/ decision

8. O/Note: Once you have a judgment from an arbitrator, very little judicial review is allowed. EP thinks that Douglas has a point b/c it would be a waste of the cts time and money for de novo review

b.. Injunctions; i. is there a credible claim on the merits? Y go to 2ii. is the legal relief adequate by law- Y no injunction

- can you be fully compensated in damages, or will there be irreparable harm? If fully compensated

c. No-Strike Obligationi. Boys Markets, Inc. v. Retail Clerks Union, Local 770 (1970), p845

1. Justice Brennan2. F: Employer/P and Union/D had a labor agreement providing that grievances related to the application and interpretation of the K should be resolved by adjustment and arbitration and that during the life of the agreement, there would be no strike and no lockout. A dispute arose when nonunion employees rearranged merchandise at the store and the Union insisted the work be redone. Employer refused and Union called a strike. Employer went state ct to get and injunction and the Union removed to federal ct hoping that the ct would apply the rule in Sinclair saying that the anti-injunction provisions of the Norris-LaGuardia act forbid federal cts from issuing injunctions.3. Q: Do the anti-injunction provisions of the Norris-LaGuardia Act prohibit a federal court from enjoining a strike violating a “no-strike” clause? 4. H: This is clearly and arbitral issue, Union looses, injunction can be issued by federal courts against the Union strike. 5. R: The anti-injunction provisions of the Norris-LaGuardia Act do not preclude a federal district court from enjoining a strike over an arbitral issue in breach of a no-strike obligation under a collective bargaining agreement which calls for binding and final arbitration of all K disputes.6. Re:

a. we don’t want forum shopping under N-LG only fed cts couldn’t grant injunctions, but state courts still could

b. EP: this makes the union better ex ante, b/c now managmetn knows they can hold the union to its word

c. Wide view: Brennan says now that we have cured defects in the bargain process, we will use the CL to decide the rules ie. as long as the K wasn’t made under duress, we will enforce it

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i. Ep’s viewd. Narrow view: we will let the arbitration work, if you make a

no strike clause, you can have an injunction to make you uphold it. Arbitration is a quid pro quo for no strikes/no lockouts we will give an injunction to enforce it.7. O:

a. the Norris-LaGuardia act you could get an injunction if there was danger of physical harm

8. EP thinks that an injunction in this case is appropriate, but wouldn’t if it were something like recognition picketing.

ii. Buffalo Forge Co. v. United Steelworkers of America (1976), p8541. Justice White2. F: P&M Union and Employer had a no strike clause and a provision

that called for arbitration in instances where the grievance involved a question of the meaning an application of the provisions of the agreement. Union claimed the work stoppage did not violate the agreement and Employer claimed that it did. Employer went to court asking for a preliminary injunction against the strike during the arbitration and before the arbitrator’s decision as to whether the strike was permissible under the no strike clause.

3. H: Federal court may not issued and injunction by §4 of the Norris-LaGuardia act because the P&M employee’s strike was not over and “arbitral grievance” in and hence was not within the narrow exception of the Norris-LaGaurdia Act established in Boys Markets. Whether this is a violation of the no-strike clause agreement is a question should go to the arbitration and if arbitrator says that it is a violation, White would be willing issue and injunction.

4. R: Federal Court may not enjoin a sympathy strike 5. Re: White is concerned that even preliminary injunctions often settle

the issue and that the arbitrator might be swayed by the ct’s interpretation of the facts.

6. Steven’s Dissent: Cts could issue preliminary injunctions w/o usurping or precluding the arbitrator decision. Ep agrees w/ Stevens.

7. EP: thinks that this is a greater cause for an injunction w/o arbitration than in boys b/c since it is a sympathy strike, there is even less of a reason not to issue an injunction

a. the union has no excuse for strike, b/c they have no grievance

iii. Jackson Bulk Terminals, Inc. v. International Longshoreman Assn. (1982), p863

1. Justice Marshall2. F: Union announced that it’s

members would not unload any ships coming from the USSR pursuant to Carter’s embargo on grain shipments. Union refused to

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unload a shipment of superphosphoric acid. Collective bargaining agreement contained a broad no strike clause and channeled all disputes to a grievance procedure culminating in arbitration.

3. H: Norris LaGuardia act is applicable to work stoppages due to political disputes no injunctions allowed, but ct can order arbitration.

4. R: Critical element for deciding if the N-LG is applicable is to determine if the employer-employee relationship is the matrix of the controversy—here it is.

5. O: The court found that the boycott here was s secondary boycott under the NLRA in that the source of the boycotts was not a dispute with the employer but a political dispute w/ a foreign nation.

iv. Complete Auto Transit, Inc. v. Reis (1981), p865- §301(b) of LMRA Wildcat strikers (union employees who strike against the union leadership’s will), officers and union members are all shielded from personal liability for damages arising out of a breach of a no strike clause

v. Carbon Fuel CO. v. United Mine Wkrs (1979), p865- §§301(b) and (e) show that union is not responsible for damages of

wildcat strikers in violation of no strike agreement absent evidence that Union had instigated, supported, ratified or encouraged the wildcatters.

vi. Ep thinks that the NLRB should be able to review the decision of the arbitrators

IX. Problems of Business Transformationb. Successorship Obligations Under the NLRA §8(d)

i. NLRB v. Burns Security Services (1972), p8931. Justice White2. F: W had a K to provide security guards, but lost that

K to Burns. Union had won an election just a few months before under the employment with W. A majority of the employees hired by Burns were in the bargaining unit and Burns hired them to do identical work at the same place. Burns knew all the facts regarding the union with his predecessor.

3. H/R: a. Burns/successor employer has a duty to

bargain wit the union b/c Burns could not have entertained a good faith doubt about the union majority status.

b. However, Burns/the successor employer is not bound to observe the substantive terms of the collective bargaining contract agreed to by the preceding employer (W).

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4. Re: A mere change of employers or ownership does not affect the force of the NLRB’s certification within the normal operative period if a majority of employees after the change in ownership or management were employed by the preceding employer.

5. Rehnquist Dissent: he would not require a the NLRB’s bargaining order nor the requirement to be bound by the substantive terms of the K.

6. Other: a. No duty to hire predecessors employees, but

successor cannot decline to hire employees solely because they are members of a union. The latter is an unfair labor practice under §8(a)(3).

b. This rule does not apply when the ownership transfer is effected by the sale of a controlling interest of stock in a corporation. For this type of transfer, courts have held the continuing corporation had a duty to bargain with the incumbent union and was also bound by the terms of any existing collective bargaining agreement.

c. there are efficiency advantages to hiring employers who already have been doing the job.

d. in bankruptcy, you can repudiate a contract and the company does not have to uphold the union k

7. Ep thinks this is a horrible decision; the employees wouldn’t have to go to the Burns because of §7 rights not to join a union. Plus, next time to get around it, the new company will hire only 30% of the union

ii. Fall River Dyeing & Finishing Corp. v. NLRB (1987), p908

1. Justice Blackmun2. F: Fall River/D/Employer purchased the equipment

and other assets of a defunct corporation, Sterlingwale. Fall River continued to operate the same commission (but not the converting) business and many of the same employees were hire through news paper ads. The Union/P, which represented the employees under S, demanded Fall River/D bargain with it in Oct. 1982. Fall River refused. By Jan of

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1983 there was a majority of S employees working for Fall River, but by April, S employees were a minority. Union filed unfair labor practices under §8(a)(1) and (5).

3. H: Fall River is a successor and in must bargain w/ the union

4. R:a. Where a union has a presumption of a

majority status, this status continues despite a change in employers.

b. If the employer is a successor of the old employer, and employed a “substantial and representative complement” of employees (a majority of the successor’s employees were employed by the predecessor) the successor has an obligation to bargain with the union.

c. To determine if the new employer is a successor, ct uses a “substantial continuity” test:

i. Whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervision; and whether the new entity has the same production process, produces the same products and has the same body of customers

5. O:a. After a union has been certified, it is entitled to a conclusive

presumption of majority statue for 1 yr. b. After 1 yr., the union is entitled to a rebuttable presumption of

majority support. c. Continuing Demand rule: when a union has made a premature

demand that has been rejected by the employer, this demand remains in force until the moment when the employer attains the “substantial and representative complement”6. Powell Dissent: Here there was no substantial continuity and D had not completed his hiring, so we shouldn’t force bargaining with this union b/c in might not be the union that the majority of workers (once they are all hired) desires.7. Ep thinks this decision is wrong

iii. Golden State Bottling Co., Inc. v. NLRB (1973)-

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a. NLRB may issue a bay-pay and reinstatement order against a purchaser of a business who buys w/ knowledge of the sellers unremedied unfair labor practices.

iv. Howard Johnson (didn’t read)- if the old firms survives it is against the old firm which the union has the obligation and not the new firm who hired the labor.

vi. EP: a. if all the assets go to another corp. and there is a change in control,

the labor action should attach w/ the assetsb. One employer goes out of business and replaced by another: Ep says

that you would not want the successor to have the union obligation (economics)- This way you can have an efficient transfer of employeesc. Ep thinks both these case are wrong, but that they do show that this

comes back to Fibreboard: not what the relationship bw employer and employee, but the contracting out of work and assets

X. Preemption of State Authority - the NLRA contains no preemption provisionsa. Garner v. Teamsters Union (1953), p989

iii. F: teamsters were peacefully picketing on the platform of the company to get the employees to join the union (so this is not an implied threat). Both the NLRA and Penn 8(b)(2) would have been violated. An 8(b)(2) violation was not only arguable but it was admitted.

iv. set aside a state court injunction against picketing violating § 8(a)(2)

v. NLRB has primary jurisdiction as an expert agency to obtain uniform law

vi. State’s application of own law could upset the balance that Congress struck in the NLRA

vii. Ep thinks this decision dead wrong b/c it simply means that the employer doesn’t have any rights whatsoever unless the general council wants to enforce them. The employer can’t go to the NLRB, but needs to go to the general council and get the general council to pursue the claim. IF the GC doesn’t pursue the claim, you are out of luck.

1. Usually in preemption you cannot enforce conflicting things, but you can enforce duplicable

c. San Diego Building Trades Council v. Garmon (1959), p991i. Justice Frankfurter

ii. F: Union/D peacefully picketed, and P (employer) sought to get an injunction. Union claimed that they are trying to educate the employees and the public and this is a noncoercive picketing. The employer says the union is trying to get the employer to sign an agreement to only hire union labor. NLRB refused to look at the case b/c there was not enough interstate commerce. The CA state ct found a 8(b)(2)

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violation, enjoined the conduct and awarded the employer damages. The US SC found that the state’s injunction conflicted w/ the NLRB’s authority, but didn’t rule on whether the state ct could issue damages based on state law.

iii. H: CA ct can not award damages for peaceful picketing b/c allowing the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.

iv. R: State law and state tribunals cannot regulate conduct that is protected by §7 or prohibited by §8 of the NLRA. Nor can states regulate conduct that is arguable protected or prohibited by the NLRA unless and until the NLRB has determined that the conduct is in fact not protected or prohibited.

v. O: 1. NLRB can’t give damages, but can give an injunction2. Ep thinks that the state courts could be able to decide

if the unions have made a wrong, and let the union pursue its claims if it doesn’t like them

3. Garmon exception: if state interest is greater ie. If there is violence. Ep says only to allow the employer to go to the board would be too little too late and be an unconstitutional taking

4. some defamation is allowed as long as it would be normal w.n labor negotiations

d. Farmer, Special Administrator v. United Brotherhood of Carpenters, Local 25 (1977), p999

i. Justice Powellii. F: Farmer/P a member of a local union/D, because involved

in policy disagreements with other officials in the union while serving as vice president of the local. P claimed that he subsequently was subjected to personal abuse and harassment and was treated discriminatorily in job referrals through the union hiring hall. P/Farmer filed a damages action in state court for

1. discriminatory job referrals 2. grievous emotional distress 3. breach of his membership K, 4. breach of the hiring hall provision of the CBA.

The state trial ct dismissed all but the second claim as being preempted, but P got damages on the second count.

iii. Q: May a state ct entertain a tort action against a union and its official for emotional disturbance?

iv. H: Yes, b/c the state has a substantial interest in protecting its citizens from outrageous conduct. However, here the jury

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verdict was not granted b/c the trial ct did not separate out the NLRA related evidence (= employment discrimination) and its consequences from the intentional infliction of emotional distress evidence.

v. R: 1. The Court has recognized exceptions to the Garmon

rule whena. the conduct is unprotected b. there is an overriding state interest involved

which is deeply rooted in local feeling and responsibility and

c. there is little risk that state action will interfere with effective administration of national labor policy. Exceptions have been recognized in defamation and violent tortuous activity cases.

vi. Re:1. Ct must balance state and federal interest2. A state court can determine the tort action without

touching the merits of the underlying labor dispute. v. Ep thinks the union should win: there is a lot of ruff and tumble in union politics. IF there is just words and not violence, ep thinks they shouldn’t allow the action b/c it will end up eating the system

e. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1978), p1007

i. Justice Stevensii. F: Employees were picketing on employer’s property b/c of

employers use of a subcontractor who would not hire through the union hiring hall or agree to local standards. Employer told them they couldn’t picket there. Employer got an injunction for trespass b/c ct felt that the trespass was in the longstanding exception for conduct which touched interests so deeply rooted in local feeling and responsibility that pre-emption could not be inferred in absence of clear congressional intent. US SC found the union conduct is arguably prohibited or protected conduct.

iii. Q: Whether and under what circumstances, a state court has power to enforce local trespass law against a union’s peaceful picketing on the employer’s private property?

iv. H: There is no risk to the NLRA protections by the state ct ruling on trespass state ct can rule on the issue and Union looses.

v. R: The critical issue is whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the NLRB.

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1. If it is identical preemption b/c risk of interference with the unfair labor practice jurisdiction of the NLRB.

vi. Re: State law only concerns the trespass and is not looking at the picketing. Since the employer demanded that the Union discontinue the trespass before it initiated the trespass action, the Union had fair opportunity to present the protection issue to the NLRB the Union retains meaningful protection against risk of state error.

vii. Justice Stevens is overruling half of Garmon on the “arguably prohibited” side: he is letting the state go forward and if it doesn’t work out the NLRB can step in

viii.

Read 1154 Vaca v. Sipes

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