labor law stephen b. forman george mason university school of law

LABOR LAW STEPHEN B. FORMAN

GEORGE MASON UNIVERSITY SCHOOL OF LAW

CLASS #1Course Overview; Evolution of the Labor Laws; NLRB Jurisdiction, Organization and Procedure

Course Administration Course Overview Evolution of the Labor Laws and

Overview of NLRA Provisions NLRB Organization Unfair Labor Practice Proceedings Representation Proceedings NLRB Jurisdiction

CLASS #1Course Overview

1 Course Overview, Evolution Of The Labor Laws,NLRB Jurisdiction, Organization And Procedure

2 Interference, Restraint And Coercion3 Election Propaganda, Other Forms Of Interference,

Restraint Or Coercion, Union Misconduct4 Company Domination, Interference Or Assistance5 Discrimination And Remedies For Unfair Labor

Practices6 Selection Of Bargaining Representative7 Appropriate Bargaining Unit8 Securing Bargaining Rights Through Unfair Labor

Practice Proceedings9 Company Withdrawal Of Recognition Of Incumbent

Union10 Negotiation Of The Collective Bargaining Agreement,

The Duty To Bargain In Good Faith, The Duty ToDisclose Information And Subjects Of CollectiveBargaining

CLASS #1Course Overview Continued

11 Subjects Of Collective Bargaining, The Effect Of TheStrike On The Duty To Bargain And BargainingRemedies

12 Protected Concerted Activity13 Employer Responses To Concerted Activities14 CLASS DEMONSTRATION - COLLECTIVE

BARGAINING15 Organizational And Recognition Picketing16 Secondary Picketing And Consumer Appeals17 The Collective Bargaining Agreement And Grievance

And Arbitration18 MOCK ARBITRATION19 MOCK ARBITRATION20 Judicial Enforcement Of Collective Bargaining

Agreements21 Judicial Enforcement Of The No-Strike Clause; The

Role Of The NLRB And The Arbitrator

CLASS #1Course Overview Continued

22 Successorship23 Preemption Of State Labor Laws24 The Right To Fair Representation25 Union Security And The Encouragement Of Union

Activities26 Discipline Of Union Members And The Effect Of The

NLRA27 To Be Announced28 Current Labor Issues And Course Exam Matters

CLASS #1Evolution of the Labor Laws and Overview of the NLRA

The Wagner Act (1935)• sections 7, 8

The Taft-Hartley Act (Labor Management Relations Act of 1947)• sections 7, 8(b), (c), (d), 9(c), 10(b), (j),

14(b), 301, 303 Landrum-Griffin Act (Labor Management and

Reporting Disclosure Act of 1957)• sections 8(b)(7), 8(e), (f)

Health Care Institution Amendments of 1974

CLASS #1Section 7 Employee Rights

§ 7. Rights of employees as to organization, collective bargaining, etc.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)

CLASS #1Section 8(a) Employer Unfair Labor Practices

§ 8. Unfair labor practices (a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)

CLASS #1Section 8(b) Union Unfair Labor Employment Practices

§ 8(b) Unfair labor practices by labor organization. It shall be an unfair labor practice for a labor organization or its agents--

(1) to restrain or coerce employees in the exercise of the rights guaranteed in section 7

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3)

(3) to refuse to bargain collectively with an employer

(4) (i) to engage in, or to induce or encourage any individual to engage in, a strike or (ii) to threaten, coerce, or restrain any person where in either case an object thereof is ---

(7) to picket or cause to be picketed any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization unless such labor organization is currently certified as the representative of such employees where -

CLASS #1NLRB Organization and Procedures

The Board The General Counsel The Administrative Law Judges The Regional Offices Unfair Labor Practice Procedures Representation Procedures

CLASS #1Jurisdiction and Coverage of the NLRA

Territorial US Section 2(2) Exclusions Assertion of Commerce Coverage Section 2(3) Definition of Employee

• interns and residents• salts• supervisors• managerial employees• confidential employees• independent contractors

CLASS #1Section 2(11) Definition Of A Supervisor

(11) T h e term " superv isor" m ean s an yin dividual h aving au thority, in th e in terest o fth e em p loyer, to h ire, transfer, su spend , la yoff, recall, p rom ote, d ischarge, assign ,rew ard , or d isciplin e o th er em ployees, orresp onsib ly to d irect them , or to ad just theirgrievan ces, or effectively to recom m en d su chaction, if in connection w ith th e f oregoing th eexercise of su ch au thorit y is n ot o f a m erelyroutin e or clerica l n ature, b ut req uires th eu se of in depend en t ju dgm ent

CLASS #2Interference, Restraint and Coercion

Section 8(a)(1) Union Buttons and Insignias No Solicitation/No Distribution Rules

• facial invalidity, unlawful promulgation, unlawful enforcement

Non-Employee Access Rights Off-Duty Employee Access Rights Captive Audience Speeches Excelsior Underwear Rule E-Mail

CLASS #2Section 8(a)(1) Unfair Labor Practice

§ 8(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7

CLASS #2No Solicitation/No Distribution Rules For Employees

NOTICE

SOLICITATION BY EMPLOYEES ON COMPANY PROPERTY DURING WORKING

TIME IS PROHIBITED

DISTRIBUTION OF LITERATURE BY EMPLOYEES ON COMPANY PROPERTY

DURING WORKING TIME OR IN WORKING AREAS AT ANY TIME IS PROHIBITED

CLASS #2No Trespassing Notice

NOTICE

SOLICITATION AND/OR DISTRIBUTION OF ANY LITERATURE BY NON-

EMPLOYEES ON COMPANY PROPERTY IS PROHIBITED

CLASS #3Election Propaganda, Other Forms of Interference, Restraint or Coercion, Union Misconduct

TWIGS Threats

• balance free speech with uncoerced employee free choice

• overturning elections if laboratory conditions are violated, even if not ULP

• direct or implied threats (unlawful) versus predictions (lawful)

Factual Misrepresentations During Election Campaign• racial inflammatory appeals

Timing of Laboratory Period

CLASS #3

Interrogation and Polling Spying or Surveillance Granting (or promising to grant)

Benefits Withholding Benefits Remedies Union Misconduct

CLASS #3Section 8(c) Free Speech Provision

S ection 8(c) E xpression of v iew s w ithou tth reat of reprisa l or force or p rom ise of b enefit

T h e exp ressing of an y v iew s, argum ent,or op inion , or th e d issem ination th ereof,w heth er in w ritten, p rinted , graph ic, orv isual form , sh all n ot con stitute or b eev idence o f an u nfa ir labor p ractice u nd eran y of th e p rovision s of th is su bchapter, ifsu ch expression contain s n o threat of rep risa lor force or p rom ise of b enefit

CLASS #4 Company Domination, Interference or Assistance

Section 8(a)(2) Section 2(5) - What is a Labor

Organization Domination, Assistance, Interference

• continued recognition of incumbent union in face of rival union organizing

• initial recognition of union when a rival union is also organizing


Sec. 8 (a) It shall be an unfair labor practice for an employer- (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board

pursuant section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay

CLASS #4Section (2)(5) Definition

(5) The term 'labor organization' means any organization of any kind, or any agency or employer representation committee or plan, in which employees participated and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work

CLASS #5 Discrimination and Remedies for Unfair Labor Practices

Section 8(a)(3) ULP And Section 10(c) Just Cause

Pretext and Dual Motive Cases And Burden Of Proof• small plant doctrine

Court Standard For Review Of Board Decisions

Constructive Discharge


§ 8 It shall be an unfair labor practice for an employer—

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

CLASS #5Section 10(c)

No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause.

CLASS #5 Discrimination and Remedies for Unfair Labor Practices

Limitations on backpay remedy• after acquired evidence• illegal aliens

Closing Employer’s Business• complete business closing• partial business closing

Limited Protection For Supervisors Reinstatement and Mitigation Of Damages Statute Of Limitations Injunctive Relief Under Sections 10(j) and 10(l)

CLASS #6 Selection of Bargaining Representative – Section 9

Voluntary Recognition• neutrality and card check agreements

Types of Elections (RC, RD, UD, UC) RM (union demand for recognition; loss of support) Showing of Interest

• exception - expedited election under 8(b)(7)(C) Blocking Charge Unlawful Employer Assistance Fluctuating Workforce Timeliness of Petition

• section 9(c)(3) statutory bar (1 yr)• administrative bar (6 months)• certification bar (1 yr)• voluntary recognition bar (reasonable time)

CLASS #6

Contract Bar Doctrine• open period; insulated period; expanding unit

Accretion Election Procedures

• Board poster; commerce questionnaire• consent elections• hearing and direction of election• eligibility list• notice of election• pre-election conference and election observers• balloting, challenges, objections• run-off and re-run elections

CLASS #6Contract Bar Doctrine

K Starts K Ends

Post K Termination Period

K period

K bar

Open Period

InsulatedPeriod

CLASS #6Runoff and Rerun Elections

Eligible 17Union A 8Union B 8Neither 1




Eligible 18Union A 9 Union B 9Neither 0


Runoff Election

Nullity and Rerun Election

Certification of Results

CLASS #7 Appropriate Bargaining Unit

Community of Interest Standard• Multi-factor analysis• Special rules for craft employees and

grouping professional and non-professional employees

• Special rules for health care facilities• Guards• Supervisors

Single Location vs Multiple Locations• Single location presumption

CLASS #7 Appropriate Bargaining Unit

Multi-employer Unit• Recognition• Withdrawal• Coordinated Union Bargaining

Temporary Employees Review of Representation

Proceedings• 8(a)(5) refusal to bargain challenge

CLASS #8 Securing Bargaining Rights through Unfair Labor Practice Proceedings

Obtaining Union Recognition• recognition through a voluntary card

check or non-NLRB election• employer refusal to do card check• RC election• Gissel bargaining order

CLASS #9 Company Withdrawal Of Union Recognition

Withdrawal Of Recognition• certification and recognition bars• employer withdrawal of recognition - actual

union loss of majority support (Levitz Furniture Co.)

• RM petition to decertify union – good faith uncertainty (Levitz Furniture Co.)

• polling employees - Allentown Mack

CLASS #10Negotiation of the Collective Bargaining Agreement and the Duty to Bargain in Good Faith

Sections 8(a)(5) and 8(b)(3) Individual Employee Contracts Good Faith Bargaining Surface Bargaining Hard Bargaining vs. Bad Faith

Bargaining Regressive Bargaining


(5) to refuse to bargaincollectively with therepresentatives of hisemployees, subject to theprovisions of section 9(a)

§ 8(a) It shall be an unfair labor practice for an employer—

CLASS #10Section 8(b)(3) Unfair Labor Practice

§ 8(b) It shall be an unfair labor practice for a labor organization or its agents--

(3) to refuse to bargain collectively with an employer,provided it is the representative of his employees subject to the provisions of section 9(a)

CLASS # 10Section 8(d)

Section 8 (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, [notice period [prior to making changes]

CLASS #10The Duty to Disclose Information

Disclosure of Information• bargaining unit/non-bargaining unit

A Union Strike While Still Bargaining• Employer Obligation to Continue Bargaining• Employer Action Against Strikers

• protected strike/unprotected strike Employer Pre-Impasse Unilateral Action/Post

Impasse Action

CLASS #11Subjects of Collective Bargaining

Mandatory, Permissive and Illegal Subjects of Bargaining and Their Effect on the Duty to Bargain

CLASS #11Differences Between Mandatory and Permissive Subjects of Bargaining for a New Contract

Cannot Refuse to Bargain at Request of Other Party if mandatory

Cannot Insist to Impasse on Inclusion of Item in the Contract if permissive

Cannot Unilaterally Implement Without Bargaining to Impasse if mandatory

Cannot Refuse to Disclose Relevant Information Requested by Other Party if mandatory

CLASS #11Mandatory Bargaining Subjects That Can Be Unilaterally Changed Without Bargaining After Contract Expires

No Strike Clause Requirement to Arbitrate

Grievance Union Shop and Dues Check-off

CLASS #11Collective Bargaining Subjects

Sub-contracting Shutting Down Part of the Business for

Economic Reasons Relocating the Business Effects Bargaining Mid-term Contract Modifications Effect of the Strike on the Employer’s

Right to Act Unilaterally

CLASS #11Mid-term Contract Modifications

Subject is Included in CBA not required to

bargain at request of other party

cannot modify w/o other party’s consent

Subject is not Included in CBA must bargain at

other party’s request if mandatory subject

can modify mandatory subject after bargaining to impasse; can modify permissive subject w/o bargaining

CLASS #12Protected Concerted Activity

Section 7 Rights Concerted Activity

• individual vs. concerted activity• asserting CBA rights• asserting statutory rights• Weingarten rights?

Protected Activity• working conditions outside employers

immediate control

CLASS #12Protected Concerted Activity

Unprotected Activity• product disparagement/disloyalty• unprotected objective/unprotected

method of employee protest• partial strike, slowdown, intermittent

strike, sit-down strike CBA waiver of right to strike

• sympathy strike; ULP strike

CLASS #13Employer Responses to Concerted Activities

TYPES OF EMPLOYEE ACTION• unprotected strike• economic strike• sympathy strike• ULP strike

TYPES OF EMPLOYER RESPONSE TO STRIKE• fire strikers• temporarily replace

strikers• permanently replace

strikers• superseniority to

replacements and non-strikers

• withholding benefits from strikers

CLASS #13Employer Lockouts

Defensive lockout Multi-employer lockout Offensive lockout Lockout replacements

CLASS #14Class Demonstration - Collective Bargaining Negotiations

Stephen B. Forman - Major Container Company

Henry Morris, Jr. - United Paperworkers International Union, AFL-CIO

CLASS #15Organizational and Recognitional Picketing

Section 8(b)(7) What is Picketing Organizational or Recognitional Objective Area Standards Picketing Section 8(b)(7)(C)

• 30 days; reasonable time• expedited election proviso• informational picketing proviso

• appeal to the public• no effect on deliveries

CLASS #15Section 8(b)(7)

8(b)(7) It is a ULP for a union to picket or threaten to picket where an object thereof is forcing or requiring an employer to recognize or bargain with a union or forcing or requiring the employees to accept the union as their representative, unless such union is currently certified as the representative of such employees: (A) where the employer has lawfully recognized any other union and a QCR may not be raised (B) where within the preceding twelve months a valid election has been conducted, or (C) where such picketing has been conducted without a petition being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, direct an election : Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a union, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.

CLASS #15Section 8(b)(7)(C)

Union Pickets & Files Election Petition Within 30 Days

Union Picketing Less than 30 Days W/O Filing Petition

Union Picketing More than 30 Days W/O Filing Petition

Company Does Nothing

Normal Election No Election No Election and Picketing May Continue

Company Files 8(b)(7)(C)

Expedited Election

No Election but NLRB Issues Complaint and Seeks 10(l) Injunction

Company Files 8(b)(7)(C) and an Election Petition

Expedited Election

CLASS #16Secondary Picketing and Consumer Appeals

Section 8(b)(4)(B)• 10(l) injunction; 303 action

Secondary Boycott Moore Dry Dock Common Situs Standards Ambulatory Situs Allied and Single Entity Doctrines General Electric Primary Situs Doctrine Tree Fruits Consumer Picketing Doctrine

• merged product and single product exceptions Consumer Handbilling

CLASS #16Section 8(b)(4) Prohibition

A secondary boycott is the application of economic pressure upon a person with whom the union has no dispute regarding its own terms of employment in order to induce that person to cease doing business with another employer with whom the union does have such a dispute.-Inducement of P’s employees to strike is primary concerted activity-request to Company S to cease buying product of Company P is primary product boycott-attempt to coerce Company S to cease buying from or supplying Company P by appealing to S’s employees to engage in a work stoppage or by appealing to S’s customers to boycott S’s product is unlawful secondary activity

CLASS #16Secondary Picketing and Reserved Gate

NEUTRAL GATE

NEUTRAL SITE(supermarket)

Moore Dry Dock Situation

PRIMARY GATE

(beer deliveries)cashiers

PRIMARY SITE(Schlitz Beer Distributor)

General Electric Situation

NEUTRAL GATE PRIMARY GATE

(outside janitors) (beer drivers)

CLASS #16Consumer Picketing and Handbilling

NEUTRAL SITE(supermarket)

PRIMARY GATE

(beer deliveries)

NEUTRAL GATE

PICKETS WITH SIGNS SAYING DON’T BUY SCHLITZ BEER

NEUTRAL GATE

HANDBILLS SAYING UNION IS ON STRIKE AGAINST SCHLITZ BEER-PLEASE DON’T SHOP AT SUPERMARKET

CLASS #17The Collective Bargaining Agreement and Grievance and Arbitration

Contract Interpretation Disputes• negotiating history• custom and practice

Discipline Cases (just cause)• factual proof• level of punishment• industrial due process• progressive discipline

Burden Of Proof

CLASS #17

Selection Of Arbitrators’ And Their Qualifications

Splitting Awards Transcripts, Oaths Evidence Role Of Law

CLASS #20Judicial Enforcement of Collective Bargaining Agreements

Suits to Compel Arbitration Under Section 301• substantive law in 301 action• does the CBA require arbitration?• 301 jurisdiction in state or federal court• presumption of arbitrability

• substantive arbitrability• procedural arbitrability

Enforcement of Arbitrator’s Decision• reasons for overruling arbitrator

• fraud, lack of due process,exceeding scope of authority provided by CBA, public policy, manifest disregard of the law

CLASS #20Actions Available to Aggrieved Party for Breach of Contract

+301 suit to compel arbitration+8(a)(5) ULP charge+301 suit for breach of contract if

no arbitration clause in the CBA

CLASS # 21Judicial Enforcement of the No-Strike Clause; The Role of the NLRB and the Arbitrator

Judicial Enforcement of the No-Strike Clause•Boys Markets Injunction for breach of no-strike clause

•sympathy strike exception

CLASS #21Remedies Available to Employer faced With A Boys Market Strike

+301 action to enjoin strike/compel arbitration

+301 action for damages caused by the strike

+8(b)(3) ULP; request for 10(j) injunction

+discharge strikers

CLASS #21 The Role of the NLRB and the Arbitrator (conduct which allegedly violates the CBA and the NLRA)

Post-Arbitration Deferral Cases• Spielberg Mfg standards - deferral:

• Where the arbitration proceedings were fair and regular

• Where all the parties agreed to be bound by the arbitration decision

• Where the arbitration decision was not repugnant to the Act’s purpose and policies

• Where the issue involved in the ULP was presented to and considered by the arbitrator

CLASS #21 The Role of the NLRB and the Arbitrator (conduct which allegedly violates the CBA and the NLRA)

Pre-Arbitration Deferral Cases• Collyer policy – deferral:

• Where there is no claim of employer antagonism to employees’ exercise of their NLRA rights

• Where the employer has agreed to resolve the merits of the dispute through arbitration

• Where the dispute requires interpretation of the CBA

CLASS #21Judicial Deference to Arbitration under Title VII

Waiver of EEO Rights in CBA?•Alexander v. Gardner-Denver•Gilmer v. Interstate/Johnson Lane

Corp.•Wright v. Universal Maritime

Service

CLASS #22Burns Int’l Security Services and Fall River Dyeing & Finishing Corp.

Situation (1)

Burns case

Union certified

One year

purchase

Situation (2)

Falls River case

Union certified

One year

purchase

CLASS #22Successorship

Successor’s Obligation to Accept the Predecessor’s CBA?

Purchaser’s Right to Set Initial Terms and Conditions?• Perfectly clear exception

Successor’s Obligation to Recognize the Union That Represented Predecessor’s Employees?• Majority of workforce predecessor’s employees?• Continuity of workforce?• Substantial and representative complement?


Purchaser’s Obligation to Hire Predecessor’s Employees?• 8(a)(3) discrimination prohibited• D.C. Displaced Workers Protection Act


Recognition Bar After Purchase? Contract Bar of Successor’s CBA? Alter Ego and Stock Purchases Successor’s Liability for

Predecessor’s ULPs?

CLASS #22Successorship And Duty To Arbitrate

Howard Johnson Co. sale of assets situation

Successorship clauses in CBA

Class #23Overview of Preemption of State Labor Laws

Analytical Approaches to Preemption• substantive rights theory• primary jurisdiction theory

Garmon Arguably Protected/Arguably Prohibited Preemption

Machinists Free Play Preemption Exceptions• deeply rooted local interests• state law only touches activity that is of

peripheral concern to federal labor law

CLASS #23Preemption Applied to Representation, Collective Bargaining and Enforcement of Collective Bargaining Agreements

Choosing Bargaining Representatives

Collective Bargaining Matters• statutorily mandated benefits• severance pay• unemployment compensation

CLASS #24The Right to Fair Representation

Source of Duty of Fair Representation Remedies for ULP Violation of DFR Jurisdiction for DFR Lawsuits DFR Statute of Limitations DFR Lawsuit Remedies

• injunctive relief?• punitive damages?• compensatory damages?• attorneys’ fees?• jury trial?

Standard for Duty of Fair Representation

CLASS #24When May a Court Find the Employer Has Breached the Labor Contract?

Arbitration Decision for the Company

Union Refuses to Proceed to Arbitration

Union Breaches DFR

Court may find breach of contract

Court may find breach of contract

Union Does Not Breach DFR

Court will usually enforce award

Court may not find breach of contract

CLASS #25Union Security

8(a)(3) Proviso for Union Shop Forms of Union Security

• union shop• agency shop• maintenance of membership

Right to Work State Religious Exemption Dues Check-off Beck Rights De-authorization Petition

CLASS #26Disciplining Union Members Under The NLRA

External enforcement of a union rule (to affect member’s employment status) is ULP

Internal enforcement is lawful if rule does not invade or frustrate labor policy, rule reflects a legitimate union interest and rule is enforced in a reasonable manner (e.g. not through violence) against union members who are free to resign from the union and thereby escape the rule.

CLASS #26Disciplining Union Members Under The NLRA

CONDUCT

Crossing picket line

Resigning membership and crossing picket line

Exceeding production quota

Fling decertification petition

Filing ULP against union

Truthfully testifying against union

Crossing CBA unlawful picket line

Expel? Fine?

yes yes

yes yesyesyes

no

nono no

no no

no no

GOOD LUCK TO EVERYONE

labor law stephen b. forman george mason university school of law

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labor law stephen

labor laws nlrb jurisdiction

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provisions of section

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course overview evolution