open

I. INTRODUCTION TO LABOR LAW



EARLY COURTS: Outlawing as tortious concerted activities which relied upon methods, such as

strikes and picketing, which the courts though inherently intimidating or foreboding of violence or

which set economic goals, such as improved wage scale or closed shop, that thought to be antisocial or

unfairly restrictive of freedom of others. Means or objective when pursued by single person were

lawful were enjoined as civil conspiracies when pursued by group of employees. Over time state courts

treated peaceful strikes, picketing, and boycotts as economic duress justified by legitimate employee

self interest (Vegelahn v. Guntner – wage raising, Plant v. Woods – closed shop)



NATIONAL LABOR RELATIONS ACT TIMELINE: Railway Labor Act of 1926  National

Industrial Recovery Act of 1934  Wagner Act of 1935 [Unions raises wages/working conditions w/o

direct gov’t reg.]  Norris Laguardia Act [no injunctions] Taft Hartley Act of 1947 [gov’t netural

on unionization, more regulation of labor process]  Landrum Griffin [union reporting reqs.]



EXCLUSIVE REPRESENTATION AND MAJORITY RULE: Employee becomes entitled by

virtue of NLRA as a third party beneficiary of all benefits of the collective trade agreement, even if on

his own terms he would yield to less favorable terms. The individual hiring contract is subsidiary to the

terms of the trade agreement and may not waive any of its benefits. (J.I. Case Co. v. NLRB, 321 U.S.

332 (1944), even if negotiate individual K’s before union selected, 8a1/8a5)

 Result: Employer forbidden when there is duly selected majority bargaining representative to

bargain with individual employees and minority unions concerning wages and working

conditions or to refuse to bargain with majority selected union.



CONFERRAL OF A BENEFIT DURING ORGANIZING CAMPAIGN: Employer grants of

benefits immediately prior to an election are believed to be tantamount to a threat of employer reprisal.

NLRA bars an employer attempt to trade upon its superior economic position not only in the form of a

threatened loss of benefits if the union is voted in but also in the form of a promised grant of benefits if

the union is rejected.8a1 established the right of employees to organize for mutual aid without employer

interference, which prohibits not only intrusive threats and promises but conduct immediately favorable to

employees which is undertaken with the express purpose of impinging upon their freedom of choice for or

against unionization and is reasonably calculated to have that effect. (NLRB v. Exchange Parts, 375

U.S. 405 (1964), benefit conferral violates 8a1)



K RIGHTS GENERALLY: Individual right to K trumps interests of workers to improve conditions

collectively (Vegelhan/Plant)  NLRA rights of workers trump right to K individual (JL Case) 

Not want employers economic power interferes with the choice of employees to choose union vs. non-

union (Exchange Parts)



II. UNION ORGANIZING, UNION RECOGNITION, AND CB’ING



Employee Organizing and Employee Communication

COMMUNICATION: (1) Fundamental to organizational activity [talk about unionization at work is 1st

step]; (2) Law restricts what employers otherwise able to do to open up space for organization activity and

is a limitation on economic freedom of employers







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NO SOLICITATION RULES (EMPLOYEES): Unlawful within meaning of 8a1 company rule which

forbade solicitation of any king on company property and which was enforced against employees soliciting

for the union on nonworking time. No defense that no-solicitation rule adopted before advent of union, not

motivated by anti-union bias, and applied non-discriminatorily against all forms of solicitation.(Republic

Aviation Corp. v. NLRB, 324 U.S. 793 (1945), 8a1/8a3]

 PRESUMPTIONS: (1) Employer can promulgate and enforce a rule prohibiting union solicitation

during work hours, and rule presumed valid in the absence of evidence that it was adopted for a

discriminatory purpose. (2) Not within province of an employer to promulgate and enforce a rule

prohibiting union solicitation by an employee outside of working hours, although on company

property, and rule presumed to be an unreasonable impediment to self-organization and

discriminatory in absence of special circumstances that make the rule necessary in order to maintain

production or discipline.

 NOTE: When dealing with employee solicitation for the union on company property, necessary to

accommodate employees’ interest in access to union communications with employers interests in

the security of its property, efficiency of its operations, and maintenance of discipline



ENFORCEMENT OF NON-SOLICITATION RULE/EQUAL COMMUNICATION : Enforcement

of a valid non-solicitation rule by an employer who is at the same time engaging in anti-union solicitation

may not constitute ULP unless some basis, in the actualities of industrial relations for such a finding.

Employer not obliged to voluntarily and without any request offer the use of his facilities and time of his

employees for pro-union solicitation. Denial of equal time presumed lawful. (NLRB v. United

Steelworkers of America (NuTone and Avondale), 357 U.S. 357 (1958), 8c)

 Alternative channels: In determining whether or not enforcement of non-solicitation rule in

individual case is ULP, NLRB may find relevant alternative channels available for communications

on the right to organize.

 Alternative arguments: Discriminatory application of NSR to union/employer, captive audience.



DIFFERENT WORK CONTEXTS: HOSPITALS AND HEALTH CARE INSTITUTIONS [POST

1974 amendments which brought hospitals under the NLRB’s jurisdiction]



NO SOLICITATION RULE IN HEALTH CARE: Health care facilities may lawfully prohibit union

organizing activity by employees in patient care and therapy areas at all time. Presumption of invalidity that

attaches to rules barring solicitation or distribution during paid work hours may be overcome by specific

proof that rule needed for efficiency, safety, or discipline. (Beth Israel Hospital v. NLRB, 437 U.S. 483

(1978), 8a1/8a3/8g)

 PRESUMPTION: (1) Primary function of a hospital is patient care and because tranquil

atmosphere necessary, hospital can impose more stringent prohibitions on solicitation than are

generally permitted. (2) Permissible to requiring health care facilities to permit employee

solicitation and distribution during nonworking time in nonworking areas, where facility has not

justified the prohibitions necessary to avoid the disruptions of health care operations or disturbance

of patients. (3) Rules restricting employee solicitation, even during non-working time, presumed

valid in patient care areas, such as patient rooms, operating rooms, and places where patients

receive treatment because solicitation at any time in those areas might be unsettling to patients.



NO SOLIC ITATION RULE IN HEALTH CARE: (1) Outside of patient care areas, a hospital may ban

solicitation only as necessary to avoid disruption of health-care operations or disturbance of patients. (4)

Stanford rule: Hospital may not, in order to protect patients from disturbance, prohibit solicitation and

distribution activities in hallways and lounges outside patient care areas where the hospital fails to show

likelihood of, not actual, patient disturbance. Hospitals must establish both that patients will witness







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employee solicitation and that they will likely be disturbed by it in order to sustain a solicitation and

distribution ban.(Stanford Hospital and Clinics v. NLRB, 325 F.3d 334 (D.C. Cir. 2003), 8a1)



EMPLOYEES SOLICIT NONEMPLOYEES IN HEALTH CARE FACILITY: Employees are free to

solicit nonemployees where the hospital has not shown that its interest in patient privacy and well-being

outweighs its employees Sec. 7 rights to solicit nonemployees. Must ask (1) whether, apart from the

location of the activity, the restricted activity is the kind of concerted activity that is protected from

employer interference by 8a1/7; and (2) if it is, whether the fact that the activity takes place on the

employer’s property gives rise to a countervailing interest that outweighs the exercise of Sec. 7 rights in

that location (Stanford Hospital and Clinics v. NLRB, 325 F.3d 334 (D.C. Cir. 2003), 8a1)



Union Organizers and Workplace Communication

THEMES: (1) Equal opportunity or some opportunity. (2) What is effective communication?

(3) Speakers’/Listener’s divide



GENERALLY: Employer with valid no solicitation rule and no distribution rule may frequently violate

that rule by assembling employees on company property during working hours for purposes of delivering

antiunion address. Rule may be concededly valid and address noncoercive and thus sheltered by 8c.



RIGHT OF REPLY ON EMPLOYER PREMISES: Union does not have a statutory right to assemble

and make campaign speeches to employees on the employer’s premises and at the employer’s expense. In

the absences of either an unlawful broad non-solicitation rule (e.g., prohibiting union access to company

premises on other than working time) or a privileged no-solicitation rule, an employer does not commit an

unfair labor practice if he makes a pre-election company speech on company time and premises of his

employees and denies the union’s request for an opportunity to reply. (Livingston Shirt Corp., 107 NLRB

400 (1953). 8a1/8c)

 EQUALITY: Rough equality exists between employer’s use of its property to address its

employees and union’s use of its property (union hall) and other solicitation methods (home visits)

 RULE from NuTone/Avondale/Livingston: Employer can speak to employees during worktime

to discourage from unionizing, and even if violates employers own rule about solicitation, neither

employees nor union has a right to reply.



PROVIDING EMPLOYEES LIST: Within 7 days of agreement upon or ordering of election, employer

obliged to furnish the Board for transmittal to union the names and addresses of all employees eligible to

vote, and failure to do so will subject the employer, in the event union loses election, an order setting aside

election and ordering of a new one. Obligation not conditioned upon any prior use of mailing lists by

employer for election campaign or upon proof of any communicational imbalance or inadequate union

channels of communication. Excelsior Underwear Inc. 156 NLRB 1236 (1966), objection not ULP)



NONEMPLOYEE UNION ACCESS ON EMPLOYER PROPERTY/BALANCING Sec. 7 &

EMPLOYER PROPERTY RIGHTS: Accommodation of non-employees does not refer to balancing of

property rights and statutory rights generally as under Republic Aviation but only to an accommodation

that turns on a question of inaccessibility of employees (inquiry access and not success, actual

communication not necessary to vindicate S7 rights). If nonemployee union organizers have reasonable

access to employees outside an employer’s property, the requisite accommodation has taken place. Only

where such access is infeasible is it necessary and proper to take the accommodation inquiry to the second

level, balancing the employees Sec. 7 rights and the employer’s property rights.(Lechmere Inc v. NLRB

502 U.S. 527 (1992), 7/8a1)







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 NOTE: When employee talking, we don’t care who is listening BUT employee has no protection if

listener [distinction depends on classification of Sec. 7 as negative vs. positive right]

 MODIFICATION: Principle should be when an employer seeks to prohibit activity that is

otherwise protected by Sec. 7 by asserting its right to private property, the employer must first

demonstrate “good reasons” for excluding the protected participants. Cynthia Estlund, Labor,

Property, and Sovereignty After Lechmere, 46 STAN. L. REV. 305 (1993) [Supp. 60-77]



UNION ORGANIZERS AND WORKPLACE COMMUNICATION OVERVIEW: No right of reply

if union property and work time. Can get employee list only if direct election by NLRB because free

employee choice requires information to make choice. Unless union has no other reasonable means to

communicate with employees (as long as not cut off from usual flow of information), union does not have

the right to access employer property.

 CONSIDER: NLRA interpreted to privilege employer property rights rather than employee

privacy rights. Current doctrine rejects equalizing. Even though employee free choice depends on

ability to learn about unionization, Lechmere gives narrow view of reasonably effective comm.



Employer Speech

ELECTION RULES FOR EMPLOYER SPEECH: Firm ban on captive audience speeches on company

time within 24 hour period prior to an election. Captive audience speeches are proscribed whether by

company or union, in view of their unwholesome and unsettling effect so shortly before election and their

rendency to interfere with sober and thoughtful choice which a free election is designed to reflect.Speeches

ok so long as not delivered on company time. Only addresses timing and not main vice of speech as forum

(Peerless Plywood Co., 107 NLRB 427 (1953), objections not ULP)

 WHAT IS PERMITTED: Noncoercive employer or union speeches before 24 hour period,

dissemination of other forms of propaganda even during 24 hour period, or delivery during 24 hour

period of campaign speech on or off company property if the employee attendance is voluntary and

on employees own time.



TRUTH OF EMPLOYER COMMUNICATION: Conveyance of the employer’s belief, even though

sincere, that unionization will or may result in the closing of a plant is not a statement of fact unless, which

is most improbable, the eventuality of closing is capable of proof. Employer is free to tell only what he

reasonably believes will be the likely economic consequences of unionization that are outside of his

control and not threats of economic reprisal to be taken solely on his own volition. Prediction by employer

permitted only if meet 3-part test: (1) based on objective fact, (2) employer must demonstrate that

consequences asserted are probable, (3) consequences must be beyond the employer’s control. (NLRB v.

Gissel Packing Co., 395 U.S. 575 (1969), 8c/8a1/8a5)

 WHY RULE: Harmonize employer and employee interests in full and free disclosure and

employee interests in an uncoerced decision on collective bargaining.

 WHAT COULD SAY: If employer being organized is supplier to larger corp. and larger corp. has

said won’t do business with unionized companies. If company say unionizing will cause to lose all

these K’s, then can show that unionization itself will result in going out of business.



PROMISE/CONFERRAL OF BENEFITS FROM EMPLOYER: 8c shelters expression of views and

opinions in campaign oratory and literature only to the extent these lack a threat of reprisal or force or

promise of benefit. Conditional promise may properly be regarded as tantamount to a threat, should the

listener vote against the employer, to withhold a reward otherwise forthcoming. Employer’s assurance that

will deny reward just as much intrusive reprisal, likely to coerce and restrain employee, as its arrusacne to

deprive employee of benefit already in existence. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964)





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TRUTH OF EMPLOYEE CAMPAIGN STATEMENTS: Elections will be set aside not on the basis of

the substance of the representation but the deceptive manner in which it was made. As long as campaign

material purports to be mere propaganda of a particular party, NLRB will leave task of evaluating its

contents solely to employees. NLRB will intervene where a party has engaged in such deceptive campaign

practices as improperly involving the Board and its processes or the use of forged documents which render

the voter unable to recognize the propaganda for what it is (Midland National Life Insurance Co. v.

Local 304A, United Food & Commercial Workers, 263 NLRB 127 (1982), 8a1/8c)



REVIEW: EMPLOYER SPEECH DOCTRIN ES: (1) 8c protects employer speech unless threaten

reprisal/promise benefit. (2) When not talking about predictions and outside threat/prediction analysis, Bd.

won’t probe into truth or falsity of campaign statements (unless deception as to source, then Bd. will step

in). (3) Statute bans promises of benefits, which diffuse employees drive to unionize.



Inflammatory Appeals Doctrine: If party limits itself to truthfully setting forth another party’s position on

maters of racial interest and does not deliberately seek to overstress and exacerbate racial feelings by

irrelevant, inflammatory appeals, shall not set aside election. Will only set aside election, unless

inflammatory propaganda contains threat of reprisal or promise of benefit, then ULP (Sewell)



The Bargaining Unit

Appropriate bargaining unit (9a): Union representative is exclusive representative of all employees in a

bargaining unit [persons who can vote in election, majority rule, representative is for the whole bargaining

unit, not just those individuals who voted to be represented by a union

Criteria for unit determinations: Employee group (1) united by a community of interest and (2) which

neither embraces employees having a substantial conflict of economic interest nor omits employees sharing

a unity of economic interest.

Health Care Workers and Hospitals – NLRB rulemaking: In any hospital, only the following 8 units

are appropriate bargaining units: (1) All registered nurses; (2) all physicians; (3) All professionals except

for registered nurses and physicians; (4) All technical employees. (5) All skilled maintenance employees;

(6) All business office clerical employees; (7) All guards; (8) All nonprofessional employees except

technical employees, skilled maintenance employees, business official clerical employees, and guards.

Provided that a unit of five or fewer employees shall constitute an extraordinary circumstance. 3 exceptions

exist under the NLRB’s rule where (1) extraordinary circumstances; (2) cases in which nonconforming

units already exist, and (3) where labor organizations seek to combine 2 or more of the 8 specified units.



REGULATION OF BARGAINING

Multiemployer and coordinated bargaining: Single master agreement signed and subsidiary agreement

dealing with problems of individual companies worked out later w/ employers and local union. Bd cannot

direct election for an initial union representative in multiemployer unit. Unit can be established

consensually only after representative has been designated.



NLRA – 8(d) and duty to bargain in good faith: “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 make the required concession.”

 Who: duty to bargain in good faith falls upon both the union (8b3) and employer (8d





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 When obligation ends: If good faith bargained to deadlock or impasse, but must (1) participate

actively in deliberations, (2) make sincere effort to reach common ground

 Bad faith: Derived by inferences from external conduct, substantive proposals/procedures used



GOOD FAITH BARGAINING: If employer is in possession of information which is necessary or

relevant to the union in discharging its function as a bargaining representative, employer normally required

to turn information over to the union upon union’s request. No automatic bad faith bargaining whenever

employer rejects request for relevant information, but good-faith bargaining requires that claims made by

either party should be honest claims, and refusal of an attempt to substantiate a claim of inability to pay

increased wages may support finding of failure to good faith bargain. Duty to disclose applies both when

union negotiating with employer over terms of new labor contract and when it is administering terms of

labor contract already in existence. (NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), 8a5/8d)

 COMPARE: Midland National [not probe truth or falsity of campaign statements, not entitled to

any information during the organizing phase] with Truitt [yes truth required and entitled

information about wages during the collective bargaining phase]



UNREASONABLE SUBSTANTIVE PROPOSALS: Most cases in which NLRB found bad faith

bargaining based on employers substantive proposals when employer insisting upon set of terms which

would place the employees and the union in a worse economic position than had there been no contract at

all, thereby demonstrating a desire to penalize the employees or undermine the union or reject collective

bargaining. NLRB can infer bad faith from a company’s insistence on proposals that are so unusually harsh

and unreasonable that they require employee to surrender statutory rights to bargain or strike w/o offering

incentive for surrender of such rights.NLRB v. A1 King Size Sandwiches, Inc., 732 F.2d 872 (CA11,

1984) 8a1/8a5/8d

 RARE: Case as rare example of NLRB, with judicial approval, or inferring bad faith from

employer’s contract proposals alone without any other evidence (at or away from bargaining table)

of proscribed state of mind



ECONOMIC PRESSURE AND DUTY TO BARGAIN IN GOOD FAITH: Compliance with duty to

bargain is to be judged by attitudes and conduct displayed by parties at bargaining table and that it is not for

Board to outlaw economic pressures believed to be inconsistent with a mind open to adjustment and

compromise. Party may engage in unsettling and disabling economic pressure outside of the bargaining

room while in good faith and lawfully attempting to reach an agreement w/in (ok to engage in union

protected activities under S7/S13, employer can lockout) NLRB v. Insurance Agents’ International

Union, 361 U.S. 477 (1960), 8b3

 CHRONOLOGY: Duty to bargain imposes chronology on the bargaining relationship (e.g.,

economic power such as strike is deployed last rather than first)



GOOD FAITH AND UNILATERAL CHANGES IN MANDATORY TERMS OF BARGAINING:

Unilateral grant of benefits, short of impasse and without notice to the union, constitute a refusal to bargain

without any specific determination that employer acting in bad faith. Employer’s unilateral change in

conditions of employment under negotiation is a violation of 8a5. Also extends 8a5 violation to situation

where deprive employees of benefits already in existence. NLRB v. Katz, 369 U.S. 736 (1962), 8a5/8d



SUBJECTS OF BARGAINING/REMEDIES FOR BAD FAITH BARGAINING

GOOD FAITH BARGAINAING AND SHARED POWER IN THE WORKPLACE: Whether a

contract should contain a clause fixing standards for such matters as work scheduling or should provide for

more flexible treatment for such matters is as issue for determination across the bargaining table.





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Employer’s insistence on management rights clause in good faith and not violate 8a1/8a5 (NLRB v.

American National Insurance Co., 343 U.S. 395 (1952), 8a5/8d)



SCOPE AND SUBJECTS COVERED UNDER DUTY TO BARGAIN: Contracting out which involves

the replacement of employees in the existing bargaining unit with those of an independent contractor to do

the same work under similar conditions of employment is a mandatory statutory subject of collective

bargaining under 8d. Rule only applies where literally swap out workers. (Fiberboard Paper Products

Corp. v. NLRB, 379 U.S. 203 (1964), 8a5/8d)

 LIMITED SCOPE:, If the purpose of 8d is to describe a limited area subject to the duty of

CB’ing, then those management decisions which are fundamental to the basic direct of a corporate

enterprise or which impinge only indirectly upon employment security should be excluded from

that area. Rule does not cover connection where job security too indirect [e.g., investing decisions

and advertising even though may result in employment loss]. Labor saving machinery and Decision

to go out of business [lie at the “core of entrepreneurial control; they are fundamental to basic

direction of corporate enterprise” and are out of the bargaining scope]

 LINK WITH NATIONAL INSURANCE: Union can waive right to demand bargaining by

granting to employer ability to subcontract will, such as K provision that declares subcontracting is

exclusively function of management.



BARGAINING OVER DECISION TO PARTIALLY CLOSE: Bargaining over mgmt decision that has

substantial impact on continued availability of employment should be required only if benefit for labor

management relations and CB process outweighs the burdens placed on the conduct of the business.

Necessary to look to possibility of fruitful collective bargaining (are there labor costs involved) balanced

with burden on employer (whether change in scope and direction of enterprise). (First National

Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), 8a5/8d)

 RATIONALE: 3 bargaining situations that will arise

o (1) Direct impact on relationship with employer and employee  Yes, MS of CB’ing

o (2) Wholly apart from relationship w/ employers and employees  e.g., advertising,

financing and investment , too attenuated, related to employment but no MS

o (3) Direct impact on employment but which has its focus only on economic profitability 

determine with balancing test [weigh labor-mgmt and CB process with burden on business]



REMEDIES WHEN VIOLATE DUTY TO BARGAIN COLLECTIVELY

REMEDIES CANNOT INCLUDE REQUIRING INSERTION OF TERMS INTO CBA : 10c

provides NLRB with broad grant of authority such that it can take such affirmative action that will

effectuate the policies of NLRA. However, NLRB can only require employers and employees to negotiate

and is without power to compel a company or a union to agree on any substantive contractual provision of

CBA. Employer who intentionally and with antiunion animus refused to include checkoff clause cannot be

forced to include a certain clause in the CBA. H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970)



III. THE NEW LABOR LAW: PRIVATELY NEGOTIATED PROCESSES

FOR UNION ORGANIZING AND RECOGNITION



Union Recognition without the National Labor Relations Board

CARD CHECK REGIME: Sign or not sign authorization card rather than election. If majority of

employees sign authorization cards, the union is recognized as bargaining agent. Closes Weiler’s window

b/w petition for election and actual union election that harms employee free choice. NO duty to disclose to

employer, limitation on employer speech in this regime.



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HOW NLRA FAILED: (1) Time lapse between representation decision and voting period [employer

intervene and coerce]; (2) NLRB’s sanctions not enough to deter employers from engaging in ULP’s and

undermining union activity. Problems with both legal and illegal activities to undermine unionization.



EMPLOYER DUTY TO RECOGNIZE CARD CHECK – ULPS: (1) Union authorization cards, if

obtained from a majority of employees without misrepresentation or coercion are reliable enough generally

to provide a valid, alternative route to majority status. (2) Bargaining order authorized remedy where

employer rejects card majority while at same time committing ULPs that tend to undermine union majority

and make fair election an unlikely possibility. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), 8c/9a/9c

 LIMITATION: Employer presented with demand for recognition can petition for election

regardless of card check status. Only if employer commits ULP that interfere with election would

Bd. order to bargain based on cards. Prefer elections to card check.



EMPLOYER DUTY TO RECOGNIZE CARD CHECK – NO ULP: Unless an employer has engaged

in ULP that impairs electoral process, union with authorization cards purporting to represent a majority of

employees, which is refused recognition, has burden of invoking NLRB’s election procedure. Employer,

whenever faced with card majority and a demand for recognition can refuse to bargain (regardless of good

or bad faith belief about union majority) and force union, as a condition to securing bargaining rights, to

demonstrate majority support in a secret ballot election Linden Lumber Div., Summer & Co. v. NLRB,

419 U.S. 301 (1974), 8c/9a/9c

 ISSUE: Ruling modifies “designate and selection” language in 9a into “elect”



DUTY TO RECOGNIZE CARD CHECK IN PRIVATE AGREEMENT: Courts may not resolve

representation issues that are domain of NLRB, but parties may resolve issues contractually and those

contractual issues are domain of the courts. K’s b/w labor organizations and employers are enforceable in

federal court only if the parties have resolved representational issues in a manner that is consistent with

federal labor policy (unenforceable if contrary to federal labor policy). Voluntary recognition through

private K is only path to card check recognition. Hotel Employees, Restaurant Employees Union, Local

2 v. Marriott Corp., 961 F.2d 1464 (CA9 1992)



DUTY TO BARGAIN AFTER ELECTION: For period of 1 year after it has been certified, union has

irrebuttable presumption that its majority support continues even if it could be demonstrated by the

employer that within days after election and certification that employees unequivocally repudiated the

union. If union certified following election, employer has to honor that certification for a reasonable

period of time (1 year) UNLESS unusual circumstances (union dissolves, all transfer affiliation to new

union, bargaining unit fluctuates rapidly). Brooks v. NLRB, 348 U.S. 96 (1954), 8a1/8a5/8d



RECOGNITION BAR DOES NOT APPLY TO VOLUNTARY CARD CHECK RECOGNITION:

(1) No collective bar imposed after card-based recognition unless (a) employees in bargaining unit receive

notice of recognition and of their right, w/in 45 days to file a decertification petition or support filing of

petition by a rival union, and (b) 45 days pass from date of notice without filing of valid petition. Petition

must be supported by 30% of more of the unit employees within 45 days notice. CBA executed on or after

date of voluntary recognition will not bar decertification unless notice and 45 day period has passed. Dana

I, 351 NLRB No. 28 (2004) [Supp. 130-142]

 DISTINGUISH: Election (where “reasonable time” bar, typically one year) and voluntary card

check recognition (where 45-day window before bar is enacted)



EMPLOYEE FREE CHOICE ACT: (1) Requires NLRB certify a union after a majority of a firm's

workers has signed union cards (no elections); (2) Requires companies and newly certified unions to

enter binding arbitration if they cannot reach agreement on an initial contract after 90 days of



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negotiations (no appeal, 2 year K, arbitration of 1st contracts); (3) Dramatically increase penalties for

most ULPs committed by employers during an organizing drive; (4) Bd. SHALL seek injunctive relief

if discharges/threatens to discharge/otherwise interfere with employees Sec. 7 rights during the

organizing campaign



CURRENT STATUS OF CARD CHECK: Employer no legal obligation to accept result of card

check. Employer can voluntarily agree to recognize card check through private K. Election = 1 year

protection against decertification. After card check, employees can seek election and throw union out

in 45 day window.



EFCA and Privately Negotiated Processes for Union Organizing

HOW TO GET PRIVATE AGREEMENTS: (1) Political pressure (Mariott), (2) Strikes and economic

power of employees (Verizon), (3) Cooperation in securing gov’t benefit (St., Vincent); (4) Harmony and

stability in labor relations important and voluntary agreements best way to get there (Patterson)



WHAT CAN CONTRACT: (1) K around Lechmere: Union access for organizing campaigns; (2) K

around employer speech rule: employer communicate only facts; (3) Neutrality rule; (3) No private

meetings with employees [only group meetings]; (4) No mandatory meetings; (5) Union recognition by

private secret ballot election (AAA runs), or NLRB election and rest of agreement still applies; (6)

Arbitrate disputes under private agreement



PRIVATE AGREEMENT AROUND BOARD ELECTIONS: Where a union and employer have agreed

to voluntary recognition based on card check and the union initiates that procedure, employer cannot

thereafter file a petition for a Board-run election. Nat’l labor policy favors the honoring of voluntary

agreements reached between employers and labor organizations and Bd. will enforce such agreements,

including agreements that explicitly address matters involving representations [dismiss Union petition for

election on estoppel theory].Verizon Information Systems, 335 NLRB 558 (2001), 9



PRIVATE AGREEMENT FOR EMPLOYER NEUTRALITY: 8c not affirmative grant of right to

speak, only says that not ULP for expressing views, and employer neutrality clause is not contrary to

federal labor policy. Court can enforce privately negotiated neutrality agreement since does not involve

representational issues, which are not the domain of the court. Hotel Employees, Restaurant Employees

Union, Local 2 v. Marriott Corp., 961 F.2d 1464 (CA9 1992), 8c



SCOPE AND ABILITY TO BIND WITH PRIVATE AGREEMENT: While courts may not resolve

representation issues that are the domain of NLRB, parties may resolve issues contractually and those

contractual issues are domain of the courts. Provisions to arbitrate card check recognition agreements and

breaches of privately agreed upon election rules have been judicially enforced, as adherence to a neutrality

agreement (or similar) determines neither the bargaining unit nor the bargaining agent, and if agreement

susceptible to interpretation that covers dispute must be resolved by arbitration.

SEIU v. St. Vincent Medical Center, 344 F.3d 977 (CA9 2003), 301 (j/d)



STATE REGULATION OF EMPLOYER SPEECH RIGHTS: State legislation cannot take away rights

of employer free speech under 8c, as impermissible restriction on employer speech. Employer can waive 8c

voluntarily through private agreement but state legislation cannot involuntarily take rights away guaranteed

by NLRA [questionable since 8c not affirmative grant of employer speech right, just says no ULP if

antiunion and noncoercive]Chamber of Commerce v. Lockyer, 422 F.3d 973 (CA9 2005), 8c







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PRIVATE AGREEMENTS NOT THINGS OF VALUE: Neutrality and card check agreements not

“things of value” prohibited under LMRA 302, and employers and unions are free to enter into private

agreements with neutrality and card check provisions. Patterson v. Heartland Industrial Partners, LLP,

428 F. Supp. 2d 714 (N.D. Ohio 2006)



III. THE 21st CENTURY WORKFORCE AND NEW CHALLENGES

TO UNION ORGANIZING



Undocumented Workers and the Intersection of Labor and Immigration Law

INTERSECTION WITH LABOR AND IMMIGRATION LAW: Reconcile conflicting statutory

systems and no supremacy concern. Two federal statutes and no statutory command from Congress that

courts privilege one over other. 1880s-1986: not violated federal law to employ illegal immigrants; then

1986: IRA and later IRCA comprehensive legislative scheme that made illegal to hire.



NLRA COVERS UDWs: (1) Undocumented aliens – persons unlawfully present in the United States –

may nevertheless be statutory employees subject to the NLRA’s protection [still applies even after IRCA,

which makes it unlawful to employ UDWs]. NLRB construction reasonable because act applies to “any

employee” subject only to certain excluded groups (of which UDWs not one). (2) Only when evidence

establishes that reporting of illegal alien employee is in retaliation for employee’s protected union activity

will NLRB find 8a3 violation. Absent animus no ULP to report/discharge undocumented alien employee.

Sure-Tan v. NLRB,, 467 U.S. 883 (1984), 2(3) and employee definition under NLRA, 8a1/8a3

 POLICIES: (1) No deflationary wage pressure. (2) If UDWs excluded from NLRA lead to

subclass of workers without stake in CB process and erode unity of all employees and impede

effectiveness of CB’ing. (3) No incentive to hire UDWs rather than American workers.

 REMEDIES: Determine backpay and reinstatement initially and at compliance phase take UDW

status into account (whether “available to work”). Employees must be lawfully entitled to be

present and employed in US to receive and compute backpay.



AWARDING BACKPAY TO UDWs AFTER IRCA: Where NLRB’s chosen remedy trenches on

federal statute, NLRB remedy may be required to yield. Backpay to unauthorized alien who has never been

legally authorized to work in USA foreclosed by federal immigration policy in IRCA (1986). Allow NLRB

to award backpay to illegal aliens would unduly entrench upon IRCA’s explicit statutory prohibitions.

Hoffman Plastics v. NLRB, 535 US 137 (2002), 8a3/10c

 RATIONALE: IRCA changes analysis since criminal to received job with fraudulent documents.

Consistently set aside reinstatement/backpay for employees found guilty of serious illegal conduct

in connection w/ employment. C&D and threat of contempt sanctions enough to deter.



UDWS AND BARGAINING UNIT: (1) After IRCA, Sure-Tan controls and UDWs are “employees”

covered under the NLRA. Sure-Tan’s not overturned by Hoffman. (2) NLRB free to place UDWs into

bargaining unit with legal workers since meet community of interest test. As statutory employees, UDW

votes count just as much as legal workers. Irrelevant to hinge this analysis on expectation of future

employment since have similarity of wages, working conditions, supervisors, skills, and duties.Agri

Processor Co v. NLRB, 2008 U.S. App. LEXIS 101 (D.C. Cir. 2008), 8a1/8a5

 LIMITING HOFFMAN: Only addressing what remedies Bd. may grant to undocumented aliens

when employers violation rights under NLRA and did not say that unprotected by NLRA.

 DISSENT (KAVANAUGH): Sure-Tan stands for proposition that if UDWs not prohibited by law,

can be employees under NLRA, but if federal law prohibits employment of UDWs, not covered.







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ROLE OF EMPLOYER AWARENESS OF UDW STATUS: Where employer unaware of immigrant

status at time of hire, UDW employee within meaning of NLRA, but UDW who faces retaliation for union

activity is entitled to neither backpay nor reinstatement. Employer who fires UDW is subject to no sanction

other than C&D and possible contempt proceedings, since UDW not entitled to backpay/reinstatement.



LITIGATION OF IMMIGRANT STATUS: Individual’s immigration status irrelevant to ULP liability.

Questions concerning status of discriminatees on remedy left for compliance stage, Hoffman not change

procedure. Left to compliance stage whether dismissed were unavailable to work and whether backpay

tolled during any period. Distinguish between liability/merits phase and compliance/ damages phase, as

UDW status only relevant to remedy. Tuv Taam, 340 NLRB No. 86 (2003), 8a1/8a3

 POST HOFFMAN : (1) Liability phase to determine ULP (Hoffman irrelevant); (2) Compliance

where NLRB proves how much backpay owed (immigrant status irrelevant); (3) Hoffman defenses

(employer raise and rebut whether have to pay /reinstate per Hoffman). Creates settlement pressure.



Immigration Cases Where Workplace Issues As Defenses to Immigration Charges

ADMISSIBILITY OF EVIDENCE FROM LABOR RAID: Immigration law applies before labor law.

Although UDWs w/in existing labor law protections, IRCA not constrain AG’s ability to deport UDWs

once unlawful present in country discovered. (1) Whether or not UDW been victim of ULPs, UDW has no

entitlement to be in US; (2) Exclusionary rule is applicable, if at all, only to deprivations that affect the

fairness of reliability of the deportation proceeding and inherently unfair about utilizing evidence obtained

during a labor dispute and labor dispute does not make that evidence any more reliable. Montero v. INS,

CA2 1997 (see Rehnquist in Hoffman), labor dispute not accepted as defense to deportation

 OI SAYS SHOULD SUPPRESS: Purpose of OI was to serve safety of INS officers.



OI 287.3a – INS OPERATING INSTRUCTION 287.3a: Requirements that must takes steps not to

deport if tipped off on UDWs based on union activity/labor dispute. “Seeks to balance safety of Service

enforcement officers with ability to enforce employer sanctions during suspected labor dispute” OI seen as

balancing approach with federal labor law and federal immigration law.



APPLICATION OF OI AND ACCARDI DOCTRINE: Balancing approach. Federal agency must

follow own regs if failure to do so would violate due process of law. When regulation promulgated to

protect a fundamental right derived from constitution/federal statute and INS fails to adhere to it,

challenged deportation proceeding invalid and remand to agency required (converse also true).

Because OI 287.3a designed to protect fundamental labor rights, failure to adhere to OI invalidates

removal proceeding. In re Herrera-Priego, U.S. D.O.J. EOIR (July 10, 2003) [Supp. 279-298]



Title VII and Workplace Law – Hoffman Limitations

DISCOVERY AND IMMIGRATION STATUS: Granting employers the right to inquire into

workers immigration status would allow them to raise implicitly the threat of deportation and criminal

prosecution every time a worker, documented or otherwise, reports illegal practices or files a Title VII

action. Protective order preventing discovery of plaintiff’s immigration status is justified because the

substantial and particularized harm of discovery (criminal and deportation proceedings) outweighs

NIBCOs interest in obtaining this information at this stage of the proceeding Hoffman doesn’t require

D. Ct. to allow discovery of this information at this stage in the litigation.Rivera v. Nibco, Inc., 364

F.3d 1057 (CA9 2004), Title VII ligitation

 HOFFMAN LIMITATION: Does not extend to preclude backpay of violation of any federal

statute, and not required to allow discovery based on Hoffman. Title VII distinguished from



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Hoffman because (1) Private vs. Public Enforcement: NLRA authorizes certain limited private

c/a while Title VII depends principally on private c/a; (2) Punitive Damages Ok Under Title

Vii: NLRB doesn’t permit, while Title VII permits remedies designed to punish employers

engaged in discriminatory acts; (3) Court Vs. Agency: Different entities fashioning remedies,

Cts. have authority to interpret Title VII/IRCA while NLRB is limited to labor law only.



OUTSIDE OF WORKPLACE: DOES LABOR LAW PROTECT WORKER AND UNION

PARTICIPATION IN BROADER POLITICAL CONTEXT?



WHAT IS IMPORTANT WITH DETERMINING LABOR LAW PROTECTION:

1) Who controls subject matter that is the object of the employees protest? (ER/other ER/politic body)

2) How close is relationship b/w subject matter of political activity and something going on at work?

(necessary to have some tailoring).

3) What is fit with form of protest and (1) who controls and (2) relationship to working conditions?

(Letter writing vs. striking looked upon differently)



SECTION 7 – CONCERTED ACTIVITY FOR MUTUAL AID: S7’s protection sweeps in but

extends beyond efforts to form a union and engage in collective bargaining. However, not all concerted

activities protected (e.g., trespass/violence/refusal to obey rules) and even if activity protected by S7,

does not follow that employer barred from taking any measures (e.g., hire replacements/withholding

wages)

 Even when employee’s conduct concerted, must be found to be for “mutual aid and protection”

before employer’s reprisal violates 8a1. At some point relationship becomes too attenuated, but

MAP clause reaches efforts of employees to improve their lots as employees through

administrative and judicial forums as well as appeals to legislature (Kaiser/Eastex/Weingarten)

o Sec 7: “Employees shall have the right . . . to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid or protection.”



EXTENDS BEYOND EE/ER RELATIONSHIP: (1) Action has to be (a) concerted and (b) about

mutual aid or protection in order to be protected under S7 of the NLRA, and concerted activity of

employees, lobbying legislators regarding changes in national policy which affect their job security,

can be action taken for “mutual aid or protection” within the meaning of S7. (2) Employer’s motive is

relevant to inquiry whether discriminatory conduct discourages membership in union  (1) if

inherently destructive of important employee rights, no antiunion motive is needed and NLRB can find

ULP even if employer introduces evidence that was motivated by legitimate business concern; (2) if

impact on employee rights “comparatively slight” then anti union animus must be proved to sustain

charge; if EE shows that discriminatory conduct that could impact rights to some extent, then burden

on employer to establish that motivated by legitimate objectives. Kaiser Engineers v. NLRB, 538

F.2d 1379 (9th Cir. 1976), 7/8a1/8a3, discharge for letter writing to senators with engineering society

 FACTORS: Political body controls, affects job security, letter writing not economic weapon

 focus on work impact and not the control elements

 OTHER WAY TO DRAW LINE: Protects other activities for MAAP to include activities

related to labor disputes of other employers (draw the line there).



NEXUS WITH ACTION AND INTERESTS AS EMPLOYEES: Statutory mutual aid or protection

requires a nexus between the activity and the employees interests as employees. S7 protections of “mutual

aid or protection” clause not limited to specific dispute b/w employees and own employer over issue which

employer has right or power to affect. Employees do not lose protections under MAAP when seek to

improve terms and conditions of employment through challenges outside immediate employer-employee



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relationship. Protects employees from retaliation by their employers when they seek to improve working

conditions through resort to administrative and judicial forums and employees appeals to legislators to

protect their interests as employees are within the scope of the clause. Eastex, Inc. v. NLRB, 437 U.S. 556

(1978) , 8a1, ban newsletter that asks to write representative about constitutional right to work law and ask

to vote to elect union supporters

 FACTORS: Political body controls, affects union movement and minimum wages, newsletter

protected if wages/working conditions/terms

 Footnote 18: Even when concerted activity and political action comes within Sec. 7 “mutual aid or

protection” clause, forms of political activity may depend on what the object of that activity is.

Employer control relevant in determining the kinds of activities permitted by exercise of Sec. 7

rights. (e.g., if employer doesn’t control subject matter of political protest, economic pressure by

employees might not be preferred and permissible form)



NO DEMAND NECESSARY FOR PROTECTION: Language in S7 is broad enough to protected

concerted activities whether they take place before, after, or at the same time as a demand to employer to

remedy a condition that is objectionable. Reasonableness of workers’ decision to engage in concerted

activity irrelevant to determination of whether a labor dispute exists or not, as 2(9) of NLRA covers any

controversy concerning terms, tenure, or conditions of employment. Not all concerted acts are protected

under Sec. 7, but the typical unprotected activities include those that are unlawful, violent, or are in breach

of K. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), 7/8a1/10c, cold shop and spontaneous

walk out dispute

 NOTE: When employees not represented by a union, fact that only small group of employees in

the plant engage in concerted activity does not of itself deprive that activity of S7 protection.

 EMPLOYER RULES: If something protected by Sec. 7 cannot come up with rule that can fire for

cause over something protected (always protected).



ANALYSIS AFTER KAISER/EASTEX/WASHINGTON ALUMINUM: Determine whether workers

who leave work to engage in activity (e.g., immigration protest) are related to labor law and protected

 (1) Is attendance at immigration protest concerted?: Kaiser says concerted as long as more than 1

worker does something, almost always concerted

 (2) Is it for mutual aid and protection?: Kaiser says would be since if it affects job security, and

also under Eastex where subject matter closely enough related to status as employees.

 (3) Even if subject matter within “mutual aid or protection” clause, what about form of protest?:

Unclear whether leaving work proper form of protest. Unanswered question in fn. 18 of Eastex

o When object of protest activity outside of the employer’s control, discomfort with economic

pressure as a form of protest [see fn. 18].

o MAYBE protected since not really outside of the employers control since they could

influence policy [how characterize control]

o COUNTER that economic pressure on employer is incidental and care about intent of the

employees, who not intend to directly put pressure on employers. BUT if purpose was to

show solidarity for immigration reform, might not be economic pressure

o Political activities protected when have to do with employee status as employees

o Why Washington Aluminum is right: want form of protest related to working conditions



ADVICE MEMO – FORM OF PROTEST: Employee concerted activity engaged in to support a

protected subject matter may not itself be protected if it exerts economic pressure on an employer with no

control over the subject matter (see fn. 18). Missing work w/o permission to participate in S7 protected

activity is not protected even when reason for missing work is to engage in a protected Sec. 7 activity

elsewhere. Economic pressure directed at an employer that has no control over the demonstration’s subject

matter also is not protected. A no-call, no-show is not a protected activity Reliable Maintenance, NLRB





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Advice Memorandum, Case 18-CA-18119 (Oct. 31, 2006), can’t miss work to participate in immigration

rally/protest (termination OK, missing work not protected activity)

 CONSTITUTIONAL ISSUE: 5A “taking without just compensation” if labor law compelling

employers to subsidize employee political activity over which employers have no control over



THE NLRA AND NON-TRADITIONAL WORKERS

TEMPORARY WORKERS COVERED: Unit composed of employees who are jointly employed by a

user employer and a supplier employer, and employees who are solely employed by the used employer, is

permissible under the statute without the consent of the employers, and the appropriateness of such units is

governed by traditional community of interest test (whether mutuality of interests in wages, hours, and

working conditions exists among employees involved). Petition that seeks unit only of employees supplied

to a single user, or seeks a unit of all the employees of a supplier employer and names only the supplier

employer does not involve a multiemployer unit. M.B. Sturgis, Inc., 331 NLRB 1298 (2000), 8b4

 RATIONALE: Unit of all users employees (incl. solely and jointly employed) is single employer

unit b/c necessary to look at the work being done for a particular employer and functional approach.

 ANALYSIS: (1) Is there a single unit or joint employer [ [look to work being done]  (2) If yes,

need to determine appropriate unit using community of interest standard [even if single unit, still

must meet CI standard; If same work, conditions, wages and benefits, likely meet COI analysis]

 PRO-WORKER OUTCOME: Contrary rule to Sturgis gives employer chance to block any kind

of joint organizing effort. Now if union wants to organize, must organize temps and permanent EE.



TEMP WORKERS NOT COVERED: Solely employed employees and jointly employed employees are

employees of different employers and their inclusion in the same bargaining unit creates a multiemployer

unit that requires consent of the employer. Permitting a combined unit of solely and jointly employed

employees contravenes Section 9b by requiring different employers to bargain together regarding

employees in the same unit. Oakwood Care Center, 343 NLRB No. 76, 2004 NLRB LEXIS 673 (2004),

8b4a/9b

 RATIONALE: Context where temp employees working alongside permanent employees, 2

different employers and thus multiemployer bargaining unit and must ask for consent. Lack of faith

in CB process to handle complex bargaining situations

 END RESULT: Temp employees can only organize with fellow permanent employees the

employer will consent to that and can hire temps to divide workforce for unionization purpose.

Temps can still band together and bargain but difficult since temps.



GRADUATE ASSISTANTS NOT COVERED AS EMPLOYEES: Graduate student assistants

(TAs/RAs) are primarily students and not statutory employees within NLRA. Because they perform

services at university in connection with studies, and have a predominantly academic, rather than economic

relationship with school, they are not employees covered by NLRA. NLRB not asserting j/d over

relationships primarily educational is consistent with principle underlying the NLRA that it is designed to

cover economic relationships. Brown University, 342 NLRB No. 42 (2004), 2(3)

 RATIONALE: NLRA only meant to protect fundamentally economic relationships with employee

and employer (pre-requisite for j/d of NLRB), and must look at what individuals are “primarily”

 IMPACT OF NOT BEING COVERED BY NLRA: (1) NLRB could have found as employees

and limited subjects of CBing (e.g., narrowly defined mandatory subjects of bargaining, make off

limits anything that is academic matter); (2) No protections of act at all (subclass of workers).



DISABLED WORKERS NOT COVERED AS EMPLOYEES: Board will not assert j/d over

employment relationships primarily rehabilitative in nature. Disabled employees not statutory employees

under 2(3) of NLRA and should be excluded from any unit found appropriate. Relevant question is nature



14

of the relationship between individuals/employer: if relationship guided primarily by business

considerations, such that it can be characterized as typically industrial, the individuals will be found to be

statutory employees, but if the relationship is primarily rehabilitative in nature, the individuals will not be

found to be employees. Brevard Achievement Center, 342 NLRB 982 (2004), 2(3)

 RATIONALE: Must be primarily economic relationship, rather than primarily rehabilitative, to be

covered by NLRA b/c NLRA concerned with burdens on interstate commerce/ industrial strife.

Majority (1) grounded in outdated assumptions about disabled persons and (2) paternalistic

rationale that need affirmative help in order to be functioning members of society. All Act requires

in “an” economic relationship and not a primary one.



IV. WORKPLACE ORGANIZATION AND LABOR-MANAGEMENT

COOPERATION: FROM COMPANY UNIONS TO LABOR-MANAGEMENT

COMMITTEES AND BEYOND

RELEVANT NLRA PROVISION – 8a2/2(5): ULP for employer to dominate or interfere with the

formation or administration of any labor organization. 2(5) defines labor organization broadly to

include “any organization of any kind . . . in which employees participate and which exists for the

purposes of dealing with employers . . .”



THEMES: Free choice and adversarial vs. cooperative model of labor relations

 (1) Free choice question: if NLRA protects free choice for employees about working

conditions, why only protect ability to choose traditional union or no union and individual

bargaining? [why is there not a 3rd option other than union/no union]

 (2) Adversarial vs. cooperative relations: Whether labor law has a preference for adversarial

relations for management and labor or whether some forms of cooperative labor-management

relations are permissible under 2(5) and 8a2



FREE CHOICE MEANS STARTING OVER: Board was authorized to order the disestablishment

of the labor organization, notwithstanding that the organization operated to the apparent satisfaction of

the employees; that no serious labor disputes had occurred during its existence, and that, in a

referendum, the employees had signified their desire for its continuance. NLRB v. Newport News

Shipbuilding and Dry Dock, Co., 308 U.S. 241 (1939), 7/8a1/8a2



DEALING WITH MEANS MORE THAN COMMUNICATION: Employee committees may

communicate with the employer without violating NLRA. Test is whether employee committee or

organization exists to deal with employers for conditions regarding work, and there has to be

continuous course of contact b/w committee and employer, and mere discussions b/w employee

organization and employer not enough to constitute dealing with within the meaning of the statute. It is

only when management’s activities actually undermine the integrity of employees’ freedom of choice

and independence in dealing with their employer that such activities fall within the proscriptions of the

NLRA.NLRB v. Streamway Div. of Scott & Fetzer Co., 691 F.2d 288 (6th Cir. 1982,

8a1/8a2/8c/2(5)

 ANALYSIS: (1) Is there a labor organization under 2(5) [exist for the purpose of dealing with

employees]? (2) If so, has there been domination or support by the employer of the relevant

labor organization?  here not labor union because continuous rotation of workers (lack of

representational basis); no employer hostility or anti-union animus [not established to head off

organizing drives or whether come into existence as a result of unrest in bargaining unit]







15

 WHEN NOT LABOR ORGANIZATION: Group holds brainstorming session, committee

that only shares information, suggestions box, etc.



LABOR ORGANIZATION MUST DEAL WITH EMPLOYERS: Under NLRA 2(5), in order to

be a labor organization, 3 elements must be met: (1) employees must participate [easy to meet]; (2) the

organization must exist for the purpose (whole or in part) of dealing with an employer [broader than

collective bargaining], and (3) subject of dealing must be grievances, labor disputes, wages, rates of

pay, hours of employment, or conditions of work. Dealing with is a bilateral mechanism involving

proposals from the employee committee concerning the subjects listed in 2(5), coupled with real or

apparent consideration of those proposals by mgmt. Electromation, Inc., 309 NLRB 990 (1992),

8a1/8a2/2(5)

 RAUDABAUGH CONCURRENCE RULE: THA undermines Newport News and stands for

(1) encouraging employee free choice rather than gov’t encouragement of unions and (2)

encouragement of peaceful methods of resolving labor-management disputes. Should give

employees right to choose union, individual bargaining, or joint labor-mgmt. committee.

o Relevant test for 8a2: (1) Extent of employer’s involvement in structure and operation

of committees; (2) whether employees, from an objective standpoint, reasonably

perceive EPP as a substitute for full collective bargaining through a traditional union;

(3) whether employees have been assured of Sec. 7 right to choose to be represented by

a traditional union under full CBing, and (4) employers motives in establishing EPP.



DELEGATION OF MANAGERIAL FUNCTIONS NOT INTERFERENCE: "Dealing with" under

NLRA 2(5) contemplates a bilateral mechanism involving proposals from the employee committee

concerning the subjects listed in Section 2(5), coupled with real or apparent consideration of those

proposals by management. Where managerial functions flatly delegated to employees, no “dealing

with” the employer on a group basis within meaning of 2(5). Turns on withdrawal of authority being

wholly unilateral on its part. Committees are performing managerial functions and not a labor

organization. Crown Cork & Seal Co., 334 NLRB 699 (2001), 8a1/8a2/2(5)

 RATIONALE: Managerial recommendation making its way up chain of command, and higher-

management review of a recommendation made by lower management cannot be equated to the

"dealing" between an employer and a representative of its employees

 IMPLICATIONS: If give enough authority to employees and committees, they become mgmt and

mgmt can erase line b/w itself and employees and eliminate effect of 8a2.

 GENERAL VIEWS OF LMCs: (1) New collaborative schemes undermine adversarial, worker-

empowering model of collective bargaining that NLRA intended; (2) Legal curtailment of

workplace innovations is a paternalistic affront to Wagner Act’s purpose of protecting worker’s free

choice over modes of dealing with management and an anachronistic obstacle to efficient labor

management relations; (3) Adversarial collective bargaining, labor management cooperation and

free worker choice are compatible at least within appropriately formed legal regime (e.g., legalized

in non unionization workplaces)



MEANING OF 8a2: The New Frontier: Pre-Recognition Bargaining

by Unions and Management

TWO SITUATIONS WHERE DEALING WITH MINORITY UNION NOT VIOLATE 8a1/8a2:

Execution of a pre-hire agreement in the construction industry and execution of a members-only CBA.



PRE-RECOGNITION BARGAINING:

(1) Two diff. types of employee choice:



16

a. (1) Anti-choice: If can get CBA negotiated before recognition, union will carry imprimatur

of employer approval and employee be deceived to support union.

b. (2) Pro-choice: Pre-recognition bargaining allows workers to know with greater precision

what a “yes” vote to unionization means and facilitates informed employee choice

(2) Right of employee participation

a. If CBA before the organizing campaign begins, then when voting for union are voting for

union AND CBA and cannot contribute own voices to agreement that will govern worklives



RECOGNITION BEFORE MAJORITY SUPPORT IMPERMISSIBLE: 9a provides that employees

have free choice and majority in selection of a bargaining representative, and a grant of exclusive

recognition to a minority union violates 8a1 and 8a2 because the union favored is given marked advantage

over others in securing adherence of employees. Good-faith belief on part of union and employer that had

majority support does not excuse prohibited conduct under NLRA (no scienter requirement for ULP).

ILGWU v. NLRB (Bernhard-Altman Texas Corp.), 366 U.S. 731 (1961), 8a1/8a2/9a

 RATIONALE: By recognizing one union before majority support, employer gives union marked

advantage over any other union (deceptive cloak of authority). Employers shouldn’t tilt scales for

one union over another Minority cannot bind majority.

 WHY RULE IMPORTANT: Prevents “sweet heart union” that sells out workers and doesn’t

bargain hard in order to collect union dues.



NO RECOGNITION EVEN IF GAIN MAJORITY WHEN SIGN CBA: Unions ability to secure

majority support after K negotiated is immaterial, as union carries a deceptive cloak of authority until it

gains actual majority support. If bargain for majority of employees when do not have majority support, this

is an 8a2 violation. Majestic Weaving Co., 147 NLRB 859 (1964), 8a1/8a2/8a5/9a



ADDITIONAL STORE CLAUSES VALID: If union can show majority support, will apply pre-existing

CBA at other stores. Additional store clauses valid where NLRB satisfied that employees affected not

denied their right to have a say in election of their bargaining representative. Board will honor contractual

commitments by employer to forgo right to use Board’s election process in determining Union’s

representation status in new stores. Employer can agree in advance of a card count majority to recognize a

union based on card majority and is free to contract with union to do so in advance of the time the union

has commenced organization. Houston Division of Kroger Corp., 219 NLRB 388 (1975), 8a1/8a2/9a

 DISTINGUISH MAJESTIC WEAVING: Kroger agreement pre-existing and bargained for by

union and Kroger and as pre-existing relationship between two parties. Mitigate concerns about

sweetheart union deals since original agreement in Kroger was bargained between union and

management after union did represent majority of some set of workers.

 WHY MAJESTIC AND KROGER AT ODDS: Majestic about participation in selection of union

and bargaining of terms in CBA; Kroger stands for proposition that workers interests best advanced

when power of union is advanced and less concerned about deleterious effect of policy on currently

unrepresented workers and their right to participate in bargaining.



LETTER AGREEMENTS OK IF NOT RECOGNIZE AS EXCLUSIVE REP: Letter agreement

entered into by employer and union does not constitute an unlawful pre-recognition violation of the NLRA

when the employer has specifically stated that exclusive recognition of the union has not occurred. All or

nothing with recognition, and letter agreement cannot lead to inference of CB relationship where does not

deal with wages, pensions, grievances, vacation. Dana Corporation (“Dana II”), 2005 NLRB LEXIS

174, 8a1/8a2/9a

 DISTINGUISH MAJESTIC: (1) Employer had done something other than just negotiating with

union, had recognized AND bargained, and (2) with Dana, no complete CBA and too many terms

missing.





17

 KROGER CONTROLS: Greater includes the lesser. Since Kroger allows full importation of

existing CBA, clear that more employee choice here and will allow something less than full

important of CB from preexisting relationship.

 DANA AS “CHOICE” CASE: NLRA does not protect employee choice and one way to protect

employee choice is through neutrality and card check. If union has to trade victory on substantive

terms to get CC and neutrality, that is justified based on card grounds (trading bargaining power for

employee choice).



V. STATE AND LOCAL INTERVENTIONS

THEORIES OF PREEMPTION

1. Substantive rights: State law/courts may not curtail conduct of employers or unions which

Congress seeks affirmatively to protect or at least to permit. Doesn’t rely for its applicability upon

existence or nonexistence of expert administrative agency enforcing the NLRA.

2. Primary jurisdiction: Congress, in passing NLRA, not only protected certain conduct and

prohibited other conduct but also created an administrative agency – expert, experienced, peculiarly

sensitive to federal values in the area of labor management relations and possessed of delicately

balanced remedial authority. States cannot regulate conduct that is protected or even conduct which

is clearly prohibited.

3. Sustaining State Law: Courts willing to sustain state law if (1) deeply rooted in local feeling and

responsibility; (2) merely peripheral concern of the federal labor laws; (3) state’s law is one of

general applicability rather than one focusing upon relationship among employers, workers, and

unions; (4) Congress has expressly manifested its willingness to tolerate state regulation; or (5)

properly understood, federal regulatory policy can be narrowly construed and the state policy

readily accommodated



GARMON: State cannot prohibit (or award damages) for conduct that federal law protects. State also

cannot (or add remedies for) conduct that federal law prohibits. Conduct regulated, not means of regulation,

that is preemptions concern.



San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959): When activities which state

purports to regulate are arguably subject to S7 or S8 [protected by NLRA Sec. 7 or constitute ULP under

Sec. 8], state and federal courts must defer to the exclusive competence of NLRB to avert danger of state

interference with national policy. Preemption applies when (1) something is actually protected by Sec. 7 or

actually prohibited by Sec. 8, and (2) when activity arguably subject to Sec. 7/Sec. 8. State cannot set

standards of conduct inconsistent with substantive requirements of NLRA but also from providing own

regulatory or judicial remedies for conduct prohibited or arguably prohibited by NLRA.

 Garmon preemption exceptions: No withdrawal from states their power if the activity regulated

was (1) merely a peripheral concern of the NLRA or (2) touched interest so deeply rooted in local

feeling and responsibility that in the absence of compelling congressional direction, we could not

infer that Congress had deprived the states of the power to Act.

 When can state act: If violence or imminent threat of violence, state is free to act (e.g., violent

picket line). Other than that, robust preemption regime.



MACHINISTS: Cannot regulate economic weapons meant to be left to free play of economic forces



Lodge 76, Machinists v. Wisconsin Board, 427 U.S. 132 (1976): State may not regulate activities that not

only fall within NLRA S7/S8, but also preempted when seek to regulate activity that Congress intended to

be unrestricted by any governmental power because it was among the permissible economic weapons in







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reserve, the actual exercise of which on occasion by the parties is part and parcel of the system

Wagner/Taft Hartley Acts.

 Rationale: Certain activities neither protected nor prohibited might be off limits to state law and to

be left to free play of economic forces. Congress specific when outlawed certain union activity

(e.g., 2ndary boycotts). Since outlaw specific actions, implies that other employers/union actions

free from any regulation because not prohibited by statute. State cannot distinguish b/w economic

weapons and bar ones inconsistent with good faith bargaining.

 When can state act (concurrence): State free to enforce laws of neutral public policy that are not

directed towards altering the bargaining positions of employers/unions but which may have

incidental effect on relative bargaining strength (e.g., tort and K law).



GOULD: Cannot add sanctions to Labor Law. Not dealing with statute that legitimate response to state

procurement constraints or local economic needs.



Wisc. Dept. of Industry, Labor and Human Relations v. Gould, 475 U.S. 282 (1986) : State cannot set

forth standards of conduct inconsistent with NLRA’s substantive requirements and also cannot provide

their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the NLRA.

Where state law functions unambiguously as a supplemental sanction for NLRA, it conflict with the

NLRB’s comprehensive regulation of industrial relations in precisely the same way as would a state statute

preventing repeat labor law violators from doing any business with private parties of the State.

 Preemption exception – Market participant: No preemption if state acts like market participant.

By prohibiting state purchasers not acting like regular purchaser of services but rather as

regulator. Gov’t has unique position of power and subject to special restraint.



GENERAL DOCTRINE OF PREEMPTION AFTER TRILOGY: Preemption means that NLRA

prevents a State from regulating within a protected zone, whether it be a zone protected and reserved for

market freedom (Machinists) or for NLRA jurisdiction (Garmon).

 GARMON: Forbids state and local regulation of activities that are protected by S7 or constitute

ULP under S8 and prohibits regulation even of activities that NLRA only arguably protects or

prohibits. Cannot set standards of conduct inconsistent with the substantive requirements of NLRA

and cannot provide own regulatory or judicial remedies for conduct prohibited or arguably

prohibited by NLRA.

 MACHINISTS: Prohibits state and municipal regulation of areas that have been left to the free

control of economic forces. Would frustrate Congress’ intent to sanction state regulation of such

economic pressure deemed by NLRA desirably left to free play of contending economic forces.

 GOULD: Necessary to distinguish between government as regulator and government as proprietor.

NLRA meant to supplant state regulation, not all legitimate state activity that affects labor.



Boston Harbor – Market Participant: State may act without offending preemption principles when it acts

as a proprietor and its acts are not tantamount to regulation or policymaking. Necessary to distinguish

between government as regulator and government as proprietor, as NLRA supplants state labor regulation,

not all legitimate state activity that affects labor. In the absence of any express/implied indication by

Congress that State may not manage its own property when it pursues purely proprietary interests, and

where analogous private conduct would be permitted, this court will not infer such a restriction.

 How we know state as market participant: Must be more than spending $$. Look to SCOPE +

PURPOSE. (1) Scope: Need specific tailoring [Gould - WI affected conduct other than contractual

obligations with the state, too broad; BH – only affect contractors on specific job]; and (2) Purpose:

Efficiency and effectiveness [Gould - WI statute to penalize/deter NLRA violations; BH - cleanup

quickly and seek efficient resolution].

 Distinguish Gould: Rejects that state as proprietor subject to same preemption limitation as state as

regulator, even though Gould implied no market participant exception because state “different.”



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Preemption depends on proprietary/regulatory divide. If can qualify as proprietary, will be safe

from preemption and if not, then it is dead letter.



BOSTON HARBOR APPLIED - Sage Hospitality Resources, 390 F.3d 206 (3d Cir. 2004): Federal

law does not preempt city’s decision to condition a grant of tax increment financing upon recipient’s

acceptance of a labor neutrality agreement. Two step test asks: (1) does challenged funding condition serve

to advance or preserve state’s proprietary interest in project or transaction, as an investor, owner, or

financier?, and (2) is the scope of the funding condition specifically tailored to proprietary interest? If

procurement condition satisfies these 2 steps, it reflects gov’t’s action as a market participant and escapes

preemption review. If funding condition sweeps more broadly than gov’t agency’s proprietary interest,

must review under preemption standards.

 Analysis: Impact on tax revenues not enough – #1: City as market participant; 60/40 split, where

40% goes to county generally, but other 60% repayment on bonds as recovering from investment;

#2: Ordinance specifically tailored since impact limited to TIF funds and hotels/hospitality that

receive TIF specifically. State as multimillion dollar investor applying conditions to its investment

 Footnote 7 and State Labor Policy: CA3 not look to subjective reason that ordinance passed and

doesn’t care about motives of enacting body. PA wants to ensure gets money back and get most out

of TIF, and as long as state can show that proprietary, can be either pro/anti-union once proprietary.

 Pretext and proprietary state: If knew that reason passed ordinance was pressure from unions,

stated statutory purpose (e.g., efficiency) is pretext to unionization facilitation and actual setting of

labor policy. If could determine that trying to facilitate unionization, that is regulation and should

be preempted under Machinists.



PRE-TEXT FOR PROPRIETARY - Metro. Milwaukee Ass’n of Commerce v. Mil. Cty, 431 F.3d 277

(7th Cir. 2005): If state intervening in labor relations just of firms from which it buys services and is doing

so to reduce cost/increase quality of those services rather than to displace NLRA, no preemption (see

Boston Harbor). But state cannot condition payment on agreement to submit to a scheme of labor relations

that state considers improvement over NLRA (see Gould). Gould states that spending power may not be

used as pretext for regulating labor relations, and labor-peace agreements are not reasonable and good-faith

measure for enabling Milwaukee County to get better quality of service from contractors. The existence of

effective contractual remedies eliminates the need for states or their subdivisions to create a special regime

for the labor relations of their contractors.

 Rationale: (1) Scope and overbreadth: affect contractors labor relations when not acting for county;

(2) Underbreadth: delivery services could be interrupted many ways (e.g., roadwork) and yet

county doesn’t require labor peace agreements for roadwork; (3) Lack of tailoring: in contractual

situation should write penalties into K and employer can figure out how to prevent work stoppage

by terms of K (liquidated damages provision or premium for efficiency)



MUST ACTUALLY REGULATE - N. Ill. Assoc. Builders & Contractors, Inc. v. Lavin, 431 F.3d

1004 (7th Cir. 2005): Legitimate state activity that affects labor but does not constitute regulation is not

preempted by the NLRA. Condition on the receipt of a grant is not a form of regulation, and although

conditions on spending may become regulation if they affect conduct other than the financed project, states

may still act in commerce without regulating commerce.

 Rationale: Not proprietor. Even if state acting w/in protected area, NLRA intended only to

supplant state labor regulation and not all legitimate activity that affects labor. OK since project

specific and free to reject subsidy. States can pay unions and employers to avoid their right to avoid

unions but cannot force to surrender through sumptuary legislation.

 Why Milwaukee County doesn’t apply: Milwaukee says conditions on spending and conditional

grants become regulation if affects conduct on other than finance project. Concerned only with how

subsidized renewable fuels projects contract for labor and condition is project specific.





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 Role of legislative motives: Objective test. Federal preemption doctrine evaluates what legislation

does, not why legislators voted for it or what political coalition led to its enforcement



Chamber of Commerce v. Brown, 2008 U.S. LEXIS 5033 (2008): Machinists preemption applies where

states regulate within a zone protected and reserved for market freedom. 8c manifested congressional intent

to encourage free debate on issues diving labor and management, such that the NLRA favors robust debate

in labor dispute and what Congress has left unregulated (express directive to leave noncoercive speech

unregulated).

 Rationale: Congress wants free/open debate in union campaigns, and it follows that Machinsts

preemption applies since this is area (employer speech) Congress intended to be left free to the

economic forces (state cannot regulate within a zone protected for market freedom). Employer

speech regulated by 8c , but SCOTUS says everything except coercive speech to be left to

economic forces.

 Why Machinsts: (1) State can’t regulate indirectly what it cannot regulate directly by imposing

use restrictions on state funds; no specific tailoring to one job since applies to all who get $10K

and no response to procurement or economic needs. (2) Use vs. receipt distinction irrelevant,

cannot distinguish Gould on those grounds since same as spending vs. police power distinction

which didn’t matter; (3) Use restriction + significant reporting/disclosure = receipt restriction.



END RESULT WITH PREEMPTION DOCTRINE:

 Robust preemption: Garmon/Machinsts/Gould intend to shut door to all state matters with

union organization

 Boston Harbor: Cracks door with market participant doctrine. If MP, can set bargaining rules

just as private party could, but Brown closes door again. If use restriction, it is regulation and

not participation. Sage likely survives Brown, but less left of proprietary exception that BH

permitted.



VI. THE CURRENT STATUS OF TRADITIONAL “ECONOMIC WEAPONS”:

STRIKES AND PICKETS

ECONOMIC WEAPONS: Success of CB’ing depends in part on unions’ and employers’ ability – when

necessary – to wield “economic weapons.” Threat these weapons pose encourages parties to reach

agreement through negotiation.



The Strike

NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938) [Textbook 585-87]

 NLRA provision: 7/8a1/8a3/13 [nothing in act can diminish the right to strike]

 Rule: It is not an unfair labor practice for employers to replace striking employees with others in an

effort to carry on the business. Even though NLRA Section 13 explicitly bars a reading of NLRA

that would interfere/impede with strike right, it does not follow that an employer loses the right to

protect and continue his business by supplying places left by vacant strikers and he is not bound to

discharge those hired to fill the places of strikers upon the election of the latter to resume their

employment, in order to create places for them.

 Rationale: Striking employees remain employees covered under NLRA 2(3) since do not quit and

intend to come back [strike does not sever employment relationship]. Since strikers still employees

cannot discrimination in manner that rehire.

 Facts: Nationwide strike, SF workers and union request reinstatement after discover that permanent

replacements hired (employers stated rationale was that it was under economic pressure), employer



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agree to rehire as long as return in body, 11 workers fill out application to be considered, 7 of 11

reinstated and 4 active in union informed that no vacancies existed. HELD that discrimination in

rehiring of striking employees but permanent replacement of striking workers ok under NLRA.

 Section 13’s impact: Right to strike balanced with employer right to protect and continue business

by supplying replacement workers, and if employer replaces, not bound to fire workers that he

hired when you want to go back to work. Clear statutory protection for employee rights read against

background rules of K and Property as a limitation on the reach of those rights

o Issue with S13: What balance looking for with strike/employer? Reasonable reading that

statute wants to shift background balance of power in direction of strike (S13) and protect

strikes because effective way of facilitating collective bargaining [plausible reading if read

S7 (“mutual aid”)/S8a1/S8a3/S13 together]

o Other possible rule: If want to recognize right to maintain operations during strike (THAT

is the right) and want as little detriment to employee right to strike, would have rule that

must attempt to get temp workers before hiring permanent replacements

 If joint sovereignty, then employees/employers have right to operate business and

can either choose to operate/not operate, must consider with balancing rights.



NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) [Textbook pp. 588-92]

 NLRA provisions: 8a1/8(3)/13

 Rule: In absence of a finding of specific legal intent, a legitimate business purpose is NOT always

a defense to an unfair labor practice. It is necessary to weigh the interests of employees in concerted

activity against the interest of the employer in operating his business in a particular manner and of

balancing in light NLRA the intended consequences upon employee rights against the business

ends to be served by the employers conduct

 Rationale: Superseniority diminishes right to strike guaranteed by S13. Do not need discriminatory

motive in order to have ULP. Some conduct by its nature contains implications of its required

intent, and natural foreseeable consequences of a certain action may warrant the inference.

 Facts: Strike over CBA, offer superseniority to replacements for layoffs and recalls (as if worked

for 20 years), extend offer to strikers (job security or else would not sign on as replacements), and

leads to some returning, union signing CBA, and many resigning from the union. Employer who in

good faith offered superseniority to replacements because he believed such an offer was necessary

to secure their employment during the strike, was declared to have committed an unfair labor

practice. Unlike in Mackay, plan creates a cleavage in the plant that continues after strike has ended

where there are employees who stayed with the union and those who did not and have

superseniority. Use balancing test, rather than proof of motivation, and held that impact on

employee interests was more serious than legitimate concerns of the employer.

 What wrong with offering superseniority: SS worse than permanent replacement acc. to Erie

Resistor b/c (1) affects all strikers, not just those replaced; (2) Operates to detriment of strikers as

compared to nonstrikers; (3) Offers individual benefits that would cripple strike effort; (4) Offering

individual benefits to strikers to induce them to abandon strike; (5) Create a cleavage in plant

continuing long after strike has ended [problem is that ALL reasons apply equally to Mackay]

 Problem with Mackay rule: Not required showing that permanent replacements are needed



“Unfair Labor Practice Strikers,” Textbook pp. 633-37

 ULP vs. Economic Strikes: NLRA distinguishes ULP strikers and economic strikers

o ULP strikers: If strike because commit ULPs, employer must reinstate to positions and

discharge any replacements hired during the strike.

o Economic strikers : See Mackay, can hire permanent replacements

 Consider: NLRA treats more favorably employees striking to protest conduct for

which NLRA provides a peaceful administrative remedy than employees who have

no comparable means to better their terms of employment



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 Rationale: Employer could commit ULPs until union strikes and then replace

 Voting rights: Econ/ULP strikers may vote in representation elections w/in 12 months. Privilege of

the economic striker, not ULP striker expires after 12 months

o Rationale: Prevents employer from committing ULPs, hiring replacements unsympathetic

to union and having replacements vote out the union in a representation election

 Reason for strike matters b/c: (1) Employer ULP converts strike if determined that employer’s

actions prolonged strike beyond date would have terminated in due course as an economic strike.

Employer can replace striker before commit ULP but not after and must reinstate if ULP strike

(even if displacing perm. replacements). (2) Conventional no-strike clause in CBA should be read

to bar only economic strikes and not ULP strikes. (3) NLRB can reinstate striker discharged for

unprotected activity when the striker is participating in a ULP strike (but not for economic strike)

o Split with reinstatement for unprotected activity: (1) Yes: Employee misconduct not

preclude compulsory reinstatement b/c employer ULP so blatant to provoked employee to

unprotected action and (2) reinstatement prevents employer from benefitting from ULP

through discharges that weaken/destroy union. (2) No: Refuse reinstatement for ULP

strikers who engage in violence or other unprotected activity where action “may reasonably

coerce or intimidate employees in exercise of rights protected under NLRA”



Avery Heights, 343 NLRB No. 128, 2004 NLRB LEXIS 736 (2004) [Supp. 493-504]

 NLRA provisions: 8a1/8(3)

 Rule: Employer has a right to hire permanent replacements for striking employees (valuable tool in

economic fight) absent a showing that the employer had an independent unlawful motive, and no

inference of unlawful motive could be drawn from hiring workers in secret because was under no

duty to disclose hiring of replacement to union. Employer may hire in secret because at least one

valid objection to hiring – enhanced ability to withstand a strike – does not depend on letting union

know that striking workers are begin replaced (OVERTUNRED BELOW).

 Rationale: Employer has right to continue operations and right to “fight back in economic battle.”

Secret hiring only meant for bargaining leverage.

 Facts: CBA expires, 180-85 union members begin economic strike Nov. 17, Dec. 15 employer

begins hiring permanent replacements at higher hourly wage than offering strikers (initially relied

on managers/nonstriking employees to cover work), pay most senior rate, hire consulting firm for

replacements, spent $17K for job fair, employer made conscious decision not to tell union that was

hiring replacements, active measures to keep replacement campaign secret until the union caught

on, after union finds out what is going on, unconditional return offer, 78-79 ultimately reinstated.

 Competing theories: Punish/break union (ALJ) vs. permanent hires as weapon in economic battle

(NLRB). ALJ says “sharp distinction b/w seeking to prevail over union and seeking to oust union

as bargaining representative” and hiring in secret was to oust union. NLRB says not trying to get rid

of union, just prevail over union in economic battle and no duty to disclose hiring of replacements.

 Economic Action vs. Noneconomic: Can say all action is economic (even breaking union) but

there are certain legitimate ways of achieving economic ends and destroying union is not one of

them (can have legitimate intent to keep running and can hire permanent replacements, and if effect

is to destroy union is ok; but if reason hire to destroy union, then this is not ok)



New England Health Care Employees Union, District 1199, SEIU v. NLRB, 448 F.3d 189 (2d Cir.

2006) [Supp. 505-512]

 NLRA provisions: 8a1/8a3

 Rule (Overturn Avery Heights): Employer violates 8a3 by refusing to reinstate economic strikers

on their unconditional offer to return to work, unless the employer can demonstrate that it acted to

advance a legitimate and substantial business justification. Employer establishes a legitimate and

substantial business justification where it shows that the positions claimed by the strikers are filled

by permanent replacement workers, and it need not discharge permanent replacements even if



23

striking workers offer to return to work unconditionally. However, NLRA violated if an

“independent unlawful purpose” motivated the hiring of permanent replacement workers. Apart

from such a purpose, employer’s motive in hiring permanent replacements it immaterial.

 Rationale: Independent unlawful motive present (here motive to break union) where (1) concede

that kept hiring secret, (2) memo notes that put in “real bind” and (3) temp agency told to keep

hiring “hush hush” and NLRB must account for those facts. Secrecy probative of unlawful purpose

and secrecy may be justified but on the facts it doesn’t appear to be (can rebut that unlawful and

then general counsel needs to show that it is pretext).

 Facts: Avery Heights on appeal to CA2.

 On remand to NLRB: Follow CA2, no legitimate value of secrecy other than ousting union and

union ousting is illegal (not part of economic weaponry to which entitled under NLRA)



James B. Atleson, Values and Assumptions in American Labor Law (1983) [Supp. 513-518]

 Strike right: Employees cannot be discharged for strike. Must be reinstated at end if

unconditional request, unless replaced by strikebreakers/permanent replacements.

 Court assumptions: Accept inherent employer rights to continue operations. Drastic effects on

statutory rights/employee interests. Alters apparent meaning of the NLRA’s goal of industrial

peace (institutionalizes employer power). Source and scope of employer rights unclear.

 Mackay flaw: Did not raise possibility that permanent replacement of economic striker

interferes with right to strike granted by S7 (concerted activities) and enforced pursuant to 8a1

o Doctrinal Dilemmas: (1) 8a1 prevents interferences with concerted activity (e.g.,

strikes) and no greater interference than permanent replacement for striking workers. (2)

Favoring replacements over strikers seeing reinstatement literally discriminates based

on exercise of protected activity under S7. (3) S13 explicitly says cannot read NLRA in

way that would interfere with or impede or diminish right to strike.

 Employer justifications: Right to protect and continue his business [right not turn on evidence

that employer required replacements because no showing of economic necessity required].

o Issue #1: Permanent replacements can be hired even if failure to do so not lead to

business destruction or even serious economic loss. Mackay invitation to get rid of the

union by hiring non-union sympathetic permanent replacements

o Issue #2: Right to operate based on assumption that unable to find temporary, rather

than permanent, replacements

o Issue #3: Even if right to replace workers is legitimate economic weapon for employer

legitimate, why statutory employee right is destroyed by employers interest in unclear



Picketing: Constitutional Questions

Picketing and Freedom of Communication: Wide-ranging constitutional protection for picketing

potentially available under Thornhill narrowed. In subsequent cases, picketing no longer assimilated to pure

political speech and communication element found justifiably curbed if state or federal government can

invoke significant social justification in doing so.



Thornhill v. Alabama, 310 U.S. 88 (1940) [Textbook 68-72]

 NLRA provisions: none, examine constitutionality of state law prohibiting loitering and picketing

 Rule: Dissemination of information concerning facts of labor dispute must be regarded as within

that area of free discussion guaranteed by the Constitution (1A). Abridgement of liberty of

discussion of labor peace can be justified only where clear danger of substantive evils arises under

circumstances affording no opportunity to test the merits of ideas by competition for acceptance in

the market of public opinion,. No clear and present danger of destruction of life or property or





24

invasion of right of privacy, or breach of the peace can be thought to be inherent in activity of every

person who approaches the premises of an employer and publicizes facts of a labor dispute.

 Rationale: Facially invalid under 1A/14A. Marketplace and free exchange of ideas, battle between

competing ideas to seek truth. Sees picketing as political speech. No exceptions for nature of

speech or peaceful nature of gathering, and region’s present/future generations have interest in

know matters of industrial/business concern

 Facts: Appeal conviction under Ala. statute (loitering/picketing), made criminal picketing in front

of business; 6-8 men in picket line after strike ordered by union, company schedule plant operations

to resume, nonunion member heads to work, told by pickets that were on strike and didn’t want

anyone to go to work, no harsh words/threats exchanged. Thornhill arrested while on picket line,

statute has no exceptions; can’t peacefully carry sign that employer does not employ union men.

 Issue: Speech vs. conduct distinction. Ct. here defines picketing as speech and not conduct.

 Economic harm irrelevant: Picketing activity may inflict economic harm on target and may result

in harm to employer but doesn’t bother court; truthful discussion of matters of public interest have

real life consequences and doesn’t deprive of 1A protection.

 Compare with Vegelhan: Holmes thought picket ok since harm to employer justified by

employees right to seek higher wages. Thornhill justifies harm to business based on democratic

rationale since advancing marketplace of ideas with the picketing activity.



International Broth. Of Teamsters, Local 695 v. Vogt, 354 U.S. 284 (1957) [Textbook 641-645]

 NLRA provisions: none, determining constitutionality of injunction against picketing.

 Rule: Picketing, even though peaceful, involved more than just communication of ideas and could

not be immune from all state regulation, as involves patrol of particular locality and presence of

picket line may induce action of one kind or another quite irrespective of nature of ideas which are

being disseminated. State, in enforcing some public policy, whether or its criminal or civil law, and

whether announced by legislature or courts, could constitutionally enjoin peaceful picketing aimed

at effectuating that policy.

 Rationale: More conduct than speech, and government can regulate conduct even if there are

speech elements. If picketing is speech, it could not be banned as contrary to public policy, but

fundamental implication that picketing is speech AND something else.

 Facts: Union unsuccessfully organizes gravel pit, union pickets entrance with sign that reads “men

on this job are not 100% affiliated with AFL”, which leads to several drivers of trucking companies

from delivering to haul and deliver goods to plan, owner of plant seeks injunction against picketing,

state supreme court holds that injunction permitted since was for an unlawful purpose (picket was

ULP). Affirmed by SCOTUS.

 Case law history with picketing: SCOTUS shifts how views picketing since Thornhill.

o Thornhill/Swing: Injunction unconstitutional against peaceful picketing based on state’s

common law policy against picketing when no immediate dispute b/w EM/EE.

o Milk Wagon: Upheld generalized injunction against picketing where had been violence

because justifiably concluded that momentum of fear generated by past violence would

survive even if was peaceful.

o Bakery and Pastry Drivers: Picketing more than speech since involves patrol for

particular locality. Since more than ideas disseminated, state can proscribed.

o Ritters Café: 2ndary picketing of restaurant by union to tell owner to use union labor on

unrelated project involves little, if any, “communication”

o Empire Storage and Ice: More than free speech, using economic power with 2dary

boycott; picketing speech + exercise of economic power (allow enjoining of picket). Could

not picket wholesale dealer to induce to refrain from selling to nonunion peddlers

o Gazzan/Graham: Permit injunction where (1) violation of state statutory policy against

employer coercion of employees choice of bargaining representative and (2) violation of

Right to Work law



25

 Dissent: Where there is no rioting, no mass picketing, no violence, no disorder, no coercion, indeed

nothing but speech, the principles of Thonhill and Swing should apply and give advocacy of one

side of dispute first amendment protection.

 Main issue: Is picketing speech? What is difference with handbilling and picketing? Consider

personal confrontation, prohibitions based on clear and present danger/imminent risk OR

time/place/manner restrictions.

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568

(1988) [Textbook 647-653]  HANDBILLING

 NLRA provision: Employer files 8b4B ULP against union

o 8b4B: (1) Outlaws secondary boycott that takes the form of inducing employees of a neutral

or secondary employer. (2) Forbids union to threaten, coerce, or restrain any person who is

a neutral or 2dary employer where intent to get person to cease doing business with another,

unless conduct involved is primary strike/boycott. (3) Publicity proviso: exception to

general prohibition on 2ndary conduct where publicity other than picketing for purpose of

advising public, including consumers, that product(s) that are produce d by primary are

being distributed by someone else [union with primary dispute with employer A can go to

employer B and hand out leaflets that say employer B distributing products of employer A]

 Rule: 8b4B bans picketing at a 2dary site directed to customers there. 8b4B, however, permits

publicity other than picketing for purpose of truthfully advising public, including consumers, that a

product or products are produced by an employer with whom the labor organization has a primary

dispute and are distributed by another employer. Necessary to distinguish between handbilling and

picketing, and little reason to find 8b4B prohibits handbilling without picketing as no coercion.

Loss of customers when read handbill urging not to patronize business, not because they were

intimidated by line of picketers is result of mere persuasion and neutral who reacts is doing no more

than what customers honestly want to do.

 Rationale: Constitutional avoidance doctrine. 1A problem with reading 8b4(ii)(B) to prohibit

handbilling because pure speech [no picketing, no conduct involved, truthful and no clear and

present danger] and if directed at public directly would be protected. Does not cover handbilling

because there is no “threat, coercion, or restraint.”

 Facts: Construction trade unions have labor dispute with HJ High (construction company), which

retained to build department store in Mall (privately owned by Debartolo), neither Debartolo nor

other mall tenants is K’ing party. Union wants construction of new store to be done with union

labor (primary dispute with High for wages/benefits). Union handbills mall asking mall customers

not to shop at any shops in mall until owner promises that construction at mall done using fair

wages (peaceful handbilling, said only seek consumer boycott). No picketing, only handbilling.

 Link of pressure: Union  customer pressure  pressure on mall retailers  pressure on mall

owner  pressure mall tenant to use certain contractor for mall [can’t picket construction K

directly since only consumer can place economic pressure]

 Why Safeco doesn’t apply: Consumer picketing urging general boycott of 2dary employer is

prohibited (see Safeco). Safeco not control since picketing qualitatively diff than handbills, which

are just speech and “depend entirely on persuasive force of the idea.”

 Distinguish: Court differentiate b/w restraining force of idea vs. restraining force of picket conduct



Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005) [Textbook 654-662] 

BANNERING

 NLRA provisions: 8b4iiB/10L [permits GC to file complaint in federal d.ct.]

 Tools: Plausible that bannering which is visible from store’s entrance is more like mere persuasion

and less like intimidation by line of picketers and is therefore constitutionally protected. (1)

Bannering is not traditional or signal picketing and therefore is not a threat, restraint or coercion

within the meaning of 8b4iiB. (2) Use of term “labor dispute” on a banner, even if it only describes

a 2dary labor dispute is not a false statement since most natural term of reading labor dispute.



26

 Rationale: Although handbills have more complete argument favoring union position than banners

pithiness does not remove banners from scope of 1A. Interpreting 8b4iiB to prohibit Carpenters

activity would pose significant risk of infringing on 1A. Holding not predicated on fact that

distributed handbills here; possible that holding based on “disruptiveness” of communication.

 Facts: Labor dispute w/ carpenters unions and 3 contracting companies, object to employment of

nonunion employee/not meet wage standards, carpenters want to change labor practice by

influencing retailers that hire labor contractors. Display banners on 18 sites that K with labor

contractors  distribute handbills (explain nature of labor dispute; say that b/w union and

construction contractors and union believed that by using construction contractors that retailers

themselves undermining union) and show large banner that say SHAME ON RETAILER, and also

say LABOR DISPUTE, banners on public sidewalks, face away from retailers, set at some distance

away from retailers. File ULP under 8b4. Affirm D. Ct. declining to issue injunction

 Main issue: Banners like handbills OR picketing. If picketing, then yes ULP and can be enjoined.

 Why distinguish banner: Potential that banners mislead and close to defamation (lack of

discourse) vs. banner as different way for trying to express same idea. Consider physical presence

where handbill communication comes from paper and in picket communication comes from

physical presence of individuals.

 What is signal picketing: Union signals to members to engage in 2ndary activity, not occur here

 Analysis: (1) If 8b4b outlaws bannering, then potentially infringe on 1A  (2) Whether “threaten,

coerce, restrain” within meaning of statute (rejected, no patrol at entrance, no symbolic barrier and

physical presence of workers holding banners not enough and also no fraud)

 Nexus: If too far removed in the chain of who is in labor dispute, possible to be “coercive” within

meaning of the statue and make it ULP/enjoinable (e.g., banks who lend money)



Hudgens v. NLRB, 424 U.S. 507 (1976) [Textbook 663-669, and notes 669-670]

 NLRA Provisions: 7/8a1

 Rule: First amendment does not apply to purely private property (Narrow Marsh). Basic objective

under NLRA is accommodation of S7 rights with private property rights with as little destruction of

one as is consistent with the maintenance of the other. Will strike a different balance when

organizational activity carried on by employees already rightfully on employers property since

management interests, rather than property interests, were involved.

 Rationale: Private property can be treated as public only when property has taken on all

attributes of a town, not when same parts as Marsh. Marsh only applies when have full spectrum

of municipal power and stands in the shoes of the state, not true with private shopping mall. Since

1A not apply, NLRA does and must balance S7 rights with private property on remand.

 Facts: Butler warehouse employees strike for refusal to meet demands during CBing, strikers

picket warehouse and Butlers retail store in ATL, Hudgens owns single building in enclosed

mall, store that picketed can only be entered from interior of building, placards that say “Butler

workers on strike”, peaceful primary picket within privately owned shopping center, threat with

arrest for criminal trespass, picketers leave and ULP charge filed, NLRB finds ULP. Threshold

determination whether NLRA/1A standards govern.

 Dissent: Picketers could not effectively communicate with patrons of Butler Shoe Store in

mall through other means of communication. Underlying concern in Marsh that traditional

public channels of communication remain free regardless of incidence of ownership. Immaterial

that in Marsh did host of other things like running sewer system. Mall owner displace state.

 Remand: Hudgens 8a1 violations by threatening through agent to cause arrest of employees

picketing. Diff. than Babcock &Wilcox/Central Hardware b/c (1) Although economic strike

activity rather than organizational, deserving of at least equal protection by virtue of also being

protected under S7; (2) Company employees entitled to at least as much protection as nonunion

organizers in Babcock. Unreasonable to require union to use other modes of communication



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since would be too diluted; (3) Privately owned property open to the public and owner not

neutral bystander but had financial interest in success of lessees. Property rights must yield,

business at mall same risk of S7 activity as similar business fronting public sidewalks.

 Trend: Hudgens indicative of limited role that constitution plays in labor law. Protection for labor

activity rests, if anywhere, in NLRA.



Consumer Picketing

Background Material on Consumer Appeals [Textbook 715-718]

 8b4: Close loopholes in THA about 2dary boycotts. Banned union inducement of 2dary work

stoppage by “any individual employed by any person engaged in commerce.”

o 8b4iB: Brought within secondary boycott ban a union inducement of a single individual to

refrain from transporting or handling goods produced by or destined for primary employer.

o 8b4iiB: Forbade union to threaten, coerce, or restrain any person engaged in commerce or

in an industry affecting commerce where the union’s objective was secondary

 NLRB v. Servette, SCOTUS, 1964: Section 8b4i prohibits only encouraging someone to refuse to

perform his duties. Managers not being encouraged to withhold services but to make managerial

decision within their authority, and encouraging someone to make such a decision was held not to

violate 8b4(i)B. Permissible for striking union to request managers of supermarket stop stocking

Servette products, also handbills urging customers not to purchase Servette products.

o Rationale: Broad scope to “producer” proviso and “produced” not limitation

 Edward J Debartolo v. NLRB, SCOTUS, 1983: Type of primary disputes it allows to be

publicized broad enough to include almost any primary dispute that might result in prohibited 2dary

activity; Congress did not intend “product” and “produced” to be words of limitation BUT, proviso

could not be stretched so far to shelter handbilling directed against all mall tenants and Debartolo.

Handbilling not ok because did not merely call for boycott of Wilson’s products; also called for

boycott of products sold by cotenants, and none had business relationship with primary.



NLRB v. Fruit & Vegetable Packers (“Tree Fruits”), 377 U.S. 58 (1964) [Textbook 719-727]

 NLRA provisions: 8b4iiB

 Rule: Picketing confined to persuading customers to cease buying the product of the primary

employer, which falls within the area of secondary consumer picketing, does not fall within area

that Congress intended to prohibit under 8b4ii and therefore there has been no union activity that

has threatened, coerced, or restrained the company.

 Rationale: Congress in 8b4 only meant to proscribe consumer picketing to persuade customers of

2dary employer to cease doing business with secondary entirely to force to stop doing business with

primary. Must distinguish conduct and peaceful picketing at secondary site directed only at struck

product, and permissible picketing where union appeal to the public is confined to dispute with the

primary employer, since public not asked to withhold patronage from secondary employer, but only

to boycott primary employer’s goods.

 Facts: Union on strike against fruit packers that sell WA apples to Safeway, set up pickets in front

of 46 stores in Seattle, wear placards and distribute handbills and ask customers only to not

purchase WA apples (not ask employees to stop working, not ask to stop patronizing store, gave

letter to manager denoting purpose of strike. Store employees continued to work and ingress/egress

not obstructed. NLRB says violated 8b4, COA sets aside b/c Safeway could not be coerced unless

picketing had substantial economic impact on business.

 Issues: (1) Reach 1A issue and strike down statute, doesn’t matter if other channels of comm. (2)

Shouldn’t draw line with general and limited product picketing since statute says distinguishes

modes of expression (picket/no picket), reach 1A issue but does not run afoul since picketing





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different than normal communication (conduct + speech) and other modes of comm. remain open.

(3) Even if picket product still signals to stay away from Safeway store.

 Nexus: Fine to put as much pressure on apple packers as possible but impermissible if ask

consumers not shop at Safeway at all since pressure is broader than struck product.



NLRB v. Retail Store Employees Union, Local No. 1001 (“Safeco”), 447 U.S. 607 (1980) [TB, 728-730]

 NLRA provisions: 8b4iiB

 Rule: Product picketing that reasonably can be expected to threaten neutral parties with ruin or

substantial loss does not square with 8b4iiB. If effects of product specific picketing same as total

2dary boycott, then product specific picketing is ULP. Expect product-specific picketing to be

same as total 2dary boycott if product being picketed accounts for enough of 2dary’s business.

 Rationale: Distinction with picketing that shuts of all trade with secondary employer unless that

employer aids the union in its dispute with the primary employer, and picketing which merely

persuades the customers of the secondary employer is not to buy the struck product; the former is

unlawful and the latter is not. In the clash of interests between the neutral employer and a union

seeking to picket at a one product secondary site, Congress decided that the former should prevail.

 Facts: Product picketing at secondary site where 90% of gross income derived from Safeco

Insurance, which was the struck product, economic picketing at five local title companies and ask

to cancel policies. NLRB = insurance accounted for substantially all title companies revenue,

picketing calculated to induce customers not to patronize neutral companies at all.

 Footnote: Critical question would be whether by encouraging consumer to reject the struck product

the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss,

and resolution of this question entrusted to NLRB’s expertise.

 Problem with Tree Fruits: Secondary picketing leaves responsive customers no realistic option

other than to boycott the title companies all together if one product seller and business threatened.

 Brennan dissent: Assumption of risk rationale. As long as secondary picketing following

primary dispute, it is ok and NOT about how bad the harm is (effect irrelevant)

 Size of harm: Majority says scope of acts protection for certain kind of labor picketing depends

on how bad it is for 2dary employer. Brennan says irrelevant if union follows primary dispute



LABOR LAW AND ECONOMICS

Labor Law and Economics:

 Labor law generally: Central purpose enabling workers to choose to bargain individually or

collectively with employer. Normative, policy choice that facilitating collective action/unionization

in face of employers countervailing economic power is something that law should do.

 Normative choice based on: (1) Attempt to restore labor peace [protect collective action = reduce

conflict costs and replacing with CBing rather than lockouts/strikes and lead to greater efficiency].

(2) Response to Great Depression [understood as crisis of underconsumption and productivity gains

outpacing growth was consumer durables with no one to buy]; (3) Achieve distributional goals

[redistribute income from capital to wage earners to restore mass purchasing power]; (4) Further

collective empowerment of workers (see, e.g., Barenberg article)



Richard Posner, Some Economics of Labor Law, 51 U. CHI. L. REV. 998 (1984) [Supp. 519-542]

 What do unions do: American labor law is best understood as a device for facilitation, though not

to the maximum extent possible, the cartelization of labor supply by unions

o Cartelization: Cooperative endeavor of competing sellers to raise prices of goods or

services above the level that would prevail under conditions of unregulated competition







29

o Result according to economic theory: Implications of cartelization that unions raise price

of labor above competitive level, wages rise in unionized sector, employment falls, supply

of labor in nonunion sector rises, oversupply of nonunion labor market.

o Rational predatory action: In absence of labor law, employer would fire employees who

engage in union organizing activities because costs of unionization outweigh benefits.

o Bilateral monopoly: Employer and union as bilateral monopoly, where union and

employer can deal only with each other and refusal to deal, by imposing costs on the other

party, makes him more likely to come to terms

 How labor law helps: Solve large number problem, tough to cartelize where lots of competitors

because defection can occur. Labor law alleviates large # problem since employers prohibited

substituting workers who are willing to work for competitive wage for union wage.

 Why reject unions = increased productivity: Pro-union argue that unions increasing productivity

of workforce by (1) providing vehicle for collecting and communicating to employer complaints

about wages and working conditions and (2) job security/seniority provisions in union K’s make it

more likely that older workers share knowledge with younger workers. BUT Posner says if unions

good for firms they wouldn’t fight unionization. Employers rational profit maximizers.

o Counterpoint: Agency problem, individual managers fight unionization even if good for

the firm since take away managerial flexibility (union takes control away from mgmt)

 How law and economics view certain staples of labor law: (1) Peaceful picketing: like pricing in

accordance with published tariffs, shores up cartel by enabling competitors to detect cheating on

cartel price (identify cartel members who continue to work); (2) Seniority clauses: ensures that first

workers laid off are those younger and less sympathetic to the union (less mobile vs. more mobile);

(3)Determination of the bargaining unit: larger unit better for employer (more dissension and harder

to get majority vote), smaller better for union (more coherent, impact strike threat if too small)



Richard B. Freeman and James L. Medoff, What Do Unions Do? (1984) [Supp. 543-555]

 Two faces of unionism: (1) Monopoly face: unions monopolistic power to raise wages

(cartelization), but not all unions do; (2) Collective voice face: unions ability to represent and speak

for workers within firms and within broader polity

o Monopoly face: Accept cartelization, but even when act through monopoly power,

moderate wage demands. Will not drive wages up high to cause loss of employment (since

this too will hurt unions).

 Firm monopoly power: Where there is not perfect competition and where firms

have monopoly/market power, unions will survive. In noncompetitive markets,

union wage demands/gains amount to rent sharing, and distribution of rents from

capital to labor. Won’t have same deleterious effects as on perfectly competitive

markets (effect of redistribution of rents and less threat to the competitive firms)

o Voice face: Express preferences about working conditions either through exit or through

voice. Classic market mechanism is exit (don’t like conditions, leave firm and seek better

conditions). Voice (make known by directly communicating to bring actual and desired

conditions closer together)

 Why voice better than exit: Reduced costs for employer and facilitate sharing of

employee knowledge with mgmt (also efficiency increase)

 Why unions important to voice: Risk of fired by raising voice about problems

with employer. Public good problem where if left to individual voice, public goods

will be undersupplied (ex. workplace safety; if costs $10K per month to fix clean

air, cannot bargain enough in wages by single persons and union can aggregate

preferences and deal with large scale problems known as public goods, which

would be lost if don’t allow unionization)

 Voice w/o Unions: See European work councils, CV w/o monopoly wages)

 The Union Impact: Unions have impact on wages, wage equality, and productivity



30

o Wage levels: Unions increase both wages and social costs. Unionized workers get more of

compensation in fringe benefits (e.g., health insurance) because firms concerned with

marginal worker since those workers that are ready to exit. When firms respond to union

voice rather than exit, compensation shifts from wages to fringe benefits.

o Wage Equality: Increases wage inequality by raising wages of organized workers relative

to unorganized workers in same sector (unionized auto workers make more $$ than

nonunion auto workers). Do more for low wage than high wage workers.

 Reduce inequality: Unions reduce inequality (1) as between white and blue collar

workers (compress wage differentials across economy) and (2) w/in firms such that

highest and lowest paid worker disparity less (wage compression in firms)

o Productivity/Profits: Depends on sector with productivity. Total union effect = 0.

Unionized firms earn lower profits. Wages up faster than profitability based on productivity

 Relatedness of monopoly and voice: Have collective voice power because have monopoly power

(possible consideration)

Freeman’s 3 Major Themes:

 (1) Studying effect of unions on wages as if unions were textbook monopoly misses critical

aspects of what unions and any democratizing institution does at workplace (e.g., collective

voice, facilitation of obtaining workers preferences for compensation packages with non wage

benefits)

 (2) Any evaluation of benefits and costs of unionism has to balance the costs due to monopoly

wage or compensation against the economic benefits that unions bring through lower turnover,

improved productivity, more desirable distributions of compensation b/w wages and benefits,

reduced dispersion in pay for workers, and political success of unionism in advancing well

being of workers broadly

 (3) Unionism does most social good when union workplaces compete with nonunion

workplaces

TWO COMPETING VIEWS OF UNIONISM:

 Monopoly: Raise wages at expense of unorganized labor and efficient functioning of economy, loss

of employment in organized sector due to higher wages, crowding of nonunion sector with

displaced workers, inflexible operations, unions as socially inept

 Economic/Political: CBA can induce better mgmt and higher productivity, increase development

and retention of skills, provide information about functioning on shop floors, improve morale,

pressure mgmt to be more efficient. In addition to increasing wage, also protect against arbitrary

mgmt decisions and give voice at work and in political arena



FACE Union effects on economic Union effects on distribution Social Nature of union

efficiency of income organization

Monopoly face Unions raise wages above Unions increase income Unions discriminate in

competitive levels ,leading inequality by raising wages rationing positions

to too little labor relative to of highly skilled workers

capital in unionized firms Unions (individually or

Unions create horizontal collectively) fight for their

Union work rules decrease inequities by creating own interests in political

productivity differentials among arena

comparable workers

Union monopoly power

breeds corrupt and non

democratic elements

Collective voice/institutional Unions have some positive Unions standard rate Unions are political

response face effects on productivity – policies reduce inqueality institutions that represent the

reducing quit rates, inducing among organized workersin will of their members

mgmt to alter methods of given company or industry



31

production and adopt more Unions represent the

efficient policies and Union rules limit scope of political interests of low

improve morale and arbitrary actions in income and other

cooperation among workers promotion, layoff, and recall disadvantages persons

of individuals

Unions collect info about

preferences of all workers Unions fundamentally alter

leading the firm to choose a distribution of power b/w

better mix of employee marginal (junior) and more

compensation and better set permanent employees

of personnel policies (senior), causing union firms

for select difference

compensation packages and

personnel practices from

those of nonunion firms



Empirical Findings About Unions:

 Union wage effects: Substantial difference in union wage effects among groups or workers and

industry, occupation, and region.

 Inequality: Unions and other wage-setting institutions reduce dispersion of pay

 Quits, turnover, and dispute resolution: Unions have lower turnover/quit rates and greater

years of job tenure.

 Unions and benefits: Unions raise fringe benefit spending as a result of voice face of unions

amalgamating preferences toward public goods at workplace and getting workers to reveal

those preferences to mgmt.

 Unions reduce profits: Unions reduce profits and redistribute earnings to workers

 Job satisfaction: Union workers experience less satisfaction with workplace than nonunion

workers even though unions bring better material rewards and exercise collective voice.

 Political activity: Unions devote resources to politics to seek legislations that allows them to

function successfully and laws that benefit workers more broadly.

 Illusive productivity effect: Impact of unions on productivity is varied because (1) production

function methodology too crude to uncover anything more than basic link w/ capital and labor,

and (2) what matters is not unionism per se but interactions of unions with mgmt

 Mgmt Flexibility and HRM Workplace Practices: Unions reduce mgmt flexibility and alter

HRM management by formalizing decision making. Reduce discretion and increase time spent

in decision making. More formality in nonunion workplaces based on union threat effect.

 Decline of union density: Not true that unions don’t seek voice but unable to do so based on

strong mgmt opposition.



Unions and Political Speech

UNIONS AND POLITICAL SPEECH

 Issues: (1) To what extent/form union spending on politics advances/corrupts desired political

process; (2) Relationship b/w union political spending with rights and interests of individual union

members



United States v. United Automobile Workers, 352 U.S. 567 (1957) [Supp. 568-599]

 Challenged law: Constitutionality of 18 USC 610 (dismissal of complaint)

 Rule: 610 understood to proscribe expenditure of union dues to pay for commercial broadcasts

designed to urge public to elect certain candidate or party. Question whether or not a union or

corporation is making a contribution or expenditure of funds to elect A as against B, as labor unions



32

are supposed to keep out of politics the same way that corporations are supposed to keep out of

politics. Evil at which Congress struck is use of corporation or union funds to influence party at

large to vote for particular candidate or particular party.

 Rationale: Integrity of electoral process and responsibility of individual citizen for successful

functioning of that process. Necessary to purge national politics of pernicious influence of big

money campaign contributions.

 Facts: Appeal dismissal of criminal indictment for contribution to political campaign by union

from union dues. 610 prohibits corporations and labor unions from making a contribution of

expenditure in connection with any election for federal office. SCOTUS reverses and remands to

consider indictment, does not rule on constitutionality (1A) since need to develop full record.

 Dissent: Union can express its views on issues of an election and on merits of candidates

unrestrained and unfettered by Congress b/c 1A. Political speech is not a crime. Costs $$ to

communicate idea to a large audience.

 Campaign finance history: Involves rise of corporate wealth and expansion of corporate

regulation to union: (1) Regulate corporate influence: concentration of corporate wealth led to

concerns of undue influence and corruption in politics [union issue because working man/wage

workers threatened by corporate corruption]; (2) Regulate union influence: Smith-Connally Act

extends prohibitions on corporations to unions

o Why unions treated same as corporations: If problem aggregation of wealth, treat unions

and corporations same since both are aggregating wealth. Aggregation of wealth corrupts

and gives certain players undue influence and distorting idea of one person and one vote.

 Distinguish United States v. CIO: Internal distribution that advocated for politician, not directed

at public. Evil at which Congress striking was use of union funds to influence public at large. Can

use $ to influence political view of members but not the public at large [to whom union comm.]



Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 (1972) [Supp. 600-622]

 Challenged law: Constitutionality of 610 (unlawful for labor organization to make contribution

or expenditure in connection with any federal election)

 Rule: (1) 610, despite broad language, does not prohibit labor organization from making, through

medium of political fund organized by it, contributions or expenditures in connection with federal

elections as long as monies are volunteered by those asked to contribute. (2) Fund must be separate

from sponsoring union only in sense that must be strict segregation of its monies from union dues

and assessments. (3) Although solicitations by union officials is permissible, solicitations must be

conducted under circumstances plainly indicating that donations are for a political purpose and that

those solicited may decline to contribute without loss of job, union membership, or any other

reprisal within the union’s institutional power. Must inform individual solicited of political nature

of fund and his freedom to refuse to support it.

 Rationale: Voluntariness [know and agree political use, and cannot be mandatory, protect

dissenters, no dues $4 in PAC] + separation of funds [no commingling] = permissible. 610 applies

only to labor unions and not PACs. Matters how money is raised and how much control union has

over funds. Congress only concerned about $$ from general union treasury not voluntary from PAC

 Facts: 3 union officers convicted of conspiracy to violation 610. Indictment charges that establish

and maintain fund that receive payments to fund that had appearance but nor reality of entity

separate from union and would conceal contributions and expenditures by union to violate federal

election law. Fund uses both for political and nonpolitical reasons, including using monies for

supporting striking workers. Evidence shows that segregation of funds, donations not necessary for

employment or union membership, and had to sign authorization card to contribute.

 Union control: Can control fund/PAC entirely and dictate how money is spent as long as $$

separate and all funds are voluntary.







33

o Problem: Concerned about if contributions can ever really be voluntary. PAC not

organic and can be distortionary where no expenditure limits but only direct

contribution limits.

 When aggregate wealth is a problem: When wealth aggregated for nonpolitical purposes used

to influence politics. If pool $$ for reasons unrelated to electoral politics (e.g., corporate form,

unions dues) and then use in political sphere, we have a problem. Don’t want $$ coming from

union treasury.

Citizens United v. FEC, SCOTUS 2010:

 Challenged law: Section 441b - felony for all corporations (including nonprofit advocacy

corps.) either to expressly advocate election/defeat of candidates or broadcast electioneering

communications (avail. to 50,000 persons, I.D. candidate clearly) w/in 30 days of primary

election and 60 days of a general election

 Rule: Government may regulate corporate political speech through disclaimer and disclosure

requirements, but it may not suppress that speech altogether.

 Rationale: 1A protection does not go away since source is corporation and not treat differently

since not natural persons.

 Facts: Citizens United is non-profit, released film Hillary (political critique of Clinton), cable

company seeks to broadcast movie for free through on-demand service, sought to promote film

through television advertisements. Seeks to broadcast in 30-day window where prevented.

 Reject three governmental interests sufficient to support prohibition:

o (1) Anti-distortion: Corporate political speech regulation necessary to prevent

“corrosive/distorting effects of immense aggregations of wealth that are accumulated

with the help of the corporate form and that have little or no correlation to the public's

support for the corporation's political ideas.”

 Rejection: Not suppress speech based on speaker’s identity, follows that can’t

suppress speech based on wealth (unclear that wealth = identity). Doesn’t matter

for 1A that corporate funds have little/no correlation to public support for corps’

political ideas b/c everyone uses $$ amassed from market to fund their speech.

 Counterpoint (Stevens): Who is speaking when place ad; can’t be customers or

employees or shareholders or officers or directors. Thus, if take away ability to

use general treasury funds no speaking rights have been infringed at all.

 Contrast unions: Exist to give workers collective voice and corporations don’t

o (2) Anticorruption: Compelling interest to stop corruption or appearances of corrupt

 Rejection: Applicable only where “quid pro quo” threat comes from

contributions and not independent expenditures (narrow view). Influence

doesn’t = corruption. Spending $ to put up ad not corruption.

 Counterpoint (Stevens): Corruption operates on spectrum, at one end is quid

pro quo, and can’t divide between forms of corruptions. Informal coordination

still problem. Appearance of corruption enough to justify restriction.

 Rebuttal: Spending $$ just facilitates entry into office of those who share views

 Stevens Dissent: (1) Identity-based distinction (1A not categorical, can impose limitations as

long as compelling interest, special characteristics of corporation warrant certain restrictions,

not natural persons); (2) Anticorruption (spectrum view rather than either-or)

 Case law before Citizens United: (1) Buckley (limits on direct contributions to candidates ok,

strikes down independent expenditure ceiling); (2) Bellotti (gov’t cannot restrict speech based

on speaker’s corporate identity); (3) Austin (direct restriction on independent expenditure of

funds for political speech ok based on compelling interest of antidistortion)

 PACs: Solve distortion problem, as voluntary contributes and supports political speech





34

o Majority: If corporation a person, even if let speak doesn’t matter since separate from

corporation. Burdensome alternatives to corporate speech.



International Association of Machinists v. Street, 367 U.S. 740 (1961) [Textbook 1166-1175]

 NLRA provisions: None, Sec. 2, Eleventh of Railway Labor Act (union shop agreement for

railway unions), fail to reach constitutional question since construe statute to avoid

th

 Rule: RLA Sec. 2, 11 of does not vest unions with unlimited power to spend exacted money, and

its use to support candidates for political office is not use which helps defray expenses of

negotiation or administration of collective agreements or expenses entailed in adjustment of

grievance disputes and is use which falls outside reasons advanced by unions and accepted by

congress as to why union shops justified. Sec. 2 should be construed to deny unions, over an

employee’s objection, power to use his exacted funds to support political causes which he opposes.

 Rationale: End free rider problem in limited scope of forcing employees to share the costs of

negotiating and administering collective agreements and costs of adjustment/settlement of disputes.

Use of dues for political views not congruent with those means and ends. Can force to fund

union activity if related to CBA relationship but NOT if related to politics for dissenting employees.

 Facts: Nonunion employees required to pay union dues as a condition of railway employment

[union-shop agreement], minority viewpoint object to union use of dues to support political

activities. Constitutional avoidance doctrine [construe statute to avoid saying infringes 1A]. Non

union members in union shop cannot be forced to contribute to political activities over object.]

 Is this compelled speech: Doesn’t silence dissenting members, potential that not compelled speech

by gov’t since not state action (only statutory regime that facilitates private K’s)

 Concurrence: As long as act to promote cause which justified brining group together, individual

cannot withdraw financial support because disagree with strategy.

 Dissent: Can’t read statute except against background of political activity of trade unions. Statute

doesn’t distinguish with CB’ing and political activities. What unions do include politics, and if

allow to avoid free ride problems, must allow when relates to BOTH political activity and CBA. No

1A issues since can express views same with our without union

 Political activity vs. CB’ing: Union and non-union members benefit either way (e.g., political

gains are health care/minimum wages)

 Competing views: (1) Statute can be construed to prohibit unions from compelling workers to

fund speech they don’t agree with. Can draw meaningful line with CB’ing and politics vs. (2)

Congress knew that, at least to unions, distinctions with politics and CB’ing was formalistic.



Communications Workers of America v. Beck, 487 U.S. 735 (1988) [Supp. 638-645]

 NLRA provision: 8a3 [permits union shop agreements, “permits employer and union to enter into

agreement requiring all employees to become union members as a condition of continued

employment, but membership whittled down to financial core]

 Rule: 8a3 of the NLRA authorized the exaction of only those fees and dues necessary to

performing the duties of an exclusive representative of the employees in dealing with the employer

on labor-management issues. 8a3 does not permit a union, over the objection of non-member due

payer employees, to expend funds collected on activities unrelated to collective bargaining, contract

administration, or grievance adjustment, which would violate the union’s duty of fair

representation.

 Rationale: - “Beck rights”: 8a3 intend to abolish closed shop and compelled unionism and also

require that employees who share in the benefits of unionism also pay their fair share and not

be free riders. Special tailoring in Congress, can require to join but cannot discharge for reason

other than failure to pay dues and assessments.

 Facts: Street case in NLRA context; P’s are individual employees who don’t want to be union

members, in bargaining unit covered by CBA where union security clause [choose to pay only



35

agency fees]. Objection that union using agency fees for (1) politics, (2) organizing employees of

other employers, and (3) lobbying for labor legislation [some activity unrelated to Street test]

o Should Beck apply to organizing employees: (1) Activity would likely have effect of

benefitting existing bargaining members (cause and effect). vs. (2) Same as spending

money since if cause-effect test, Congress votes on things that can affect rights







IX. Majority Rule, Exclusive Representation, and

the Individual within the Collective

Background Material on the Duty of Fair Representation [Textbook 1107-1109]

 JI Case (collective vs. individual): Collective agreement took priority over, and displaced,

individual contracts of employment negotiated by employer; that best interest of the collectivity

were to be assessed not by employer but by bargaining representative accommodating conflicting

interests w/in bargaining unit; and that even employees who might otherwise be in a position to

secure favored treatment through individual dealings must sacrifice such treatment for collective.

 Steele v. Louisville (duty of fair representation): Court inferred by virtue of powers of union as

exclusive bargaining representative, correlative duty to represent all employees within the

bargaining unit without hostile discrimination, fairly, impartially, and in good faith.

o Enforcement: DFR enforceable by action for damages/injunction in federal courts. Also

determine later that ULP and can be raised in front of NLRB.

 Miranda Fuel: Violates 8a3 and 8b2 where union induces employer to discipline employee

because non-union member or individual employee targeted for invidious or capricious reason.

 Independent Metal Workers: Racially segregated bargaining representative improperly declined

to process grievance because employee was black. Sanction by rescinding certification. NLRB also

dispense with K bar rule when CBA contains provisions that are racially discriminatory on face.

o Note: Union’s breach of DFR is ULP. NLRB enforceable duty obtains both when union

negotiates a CBA and when it processes grievances.

 Handy Andy Inc: NLRB cannot bar certification based on discriminatory policy as to membership.

Certification merely shows that majority favors and later DFR could be challenged as ULP.



Vaca v. Sipes, 386 U.S. 171 (1967) [Textbook 1127-1136]

 NLRA provisions: Duty of fair representation (inferred from NLRA)

 Rules: (1) DFR: As exclusive bargaining unit of employees, union has statutory duty fairly to

represent all employees in both CBing and enforcement of resulting CBA. Includes statutory

obligation to serve interest of all members w/o hostility or discrimination toward any, to exercise

discretion with good faith and honesty, and to avoid arbitrary conduct. (2) Before employee can sue

employer under LMRA 301 for breach of employment K, must prove that he not only attempted to

exhaust his contractual remedies but that attempt frustrated by arbitrary, bad faith, or discriminatory

union conduct. (3) Wrongfully discharged employee may bring an action against his employer in

the face of a defense based upon the failure to exhaust K remedies, provided employee can prove

that the union as bargaining agent breached DFR in handling grievance.

 Rationale: Rule gives union discretion because (1) stop frivolous grievances, (2) allowing union to

settle grievances prior to arbitration will assure consistent treatment of major problems areas in

CBA interpretation, and (3) furthers the interest of the union as statutory agent.

o Why employee loses: State court applies wrong standard of whether evidence supports

claim that would have had meritorious grievance (looks at merits of grievance). What

matters is whether union acted in arbitrary, discriminatory, or bad faith manner.





36

 Facts: Owens discharged due to poor health, challenges dismissal under union grievance system,

union files grievance and took through 4 of 5 steps in grievance process, decide not to request

arbitration in step 5. File claim in state court concerning DFR.

 Preemption: Not applicable b/c (1) DFR judicially developed, (2) NLRB not have special

expertise in DFR cases since breach of K case at core, and (3) GC can refuse to issues DFR

complaint in sole discretion and any claim that not prosecuted undermines DFR.

o Rigidity: 1 time Ct. says where issue is individual’s relationship to union that no rigidity

st



about preemption

 How union can violate Vaca std.: Ignore complaint, treat in perfunctory manner if had medical

evidence about complaint.

 Rights created by CBA: Rights that employee has under CBA are created by union, and if there no

union then there is nothing to sue about (at-will employment)



Steele v. Louisville & Nashville R. Co., 323 U.S. 192 (1944) [Textbook 391-395; RLA cases]

 NLRA provision: none, dealing with RLA and duty to represent w/o discrimination

 Rule: While majority of craft chooses bargaining representative, when chosen the union represents

the craft or class and not the majority. RLA imposes on bargaining representative of craft/class duty

to fairly exercise power conferred upon it in behalf of all those for whom it acts, without hostile

discrimination towards them. Union required, in collective bargaining and in making of contracts

with the carrier, to represent union and non-union minority members of the craft without hostile

discrimination, fairly, impartially, and in good faith.

 Rationale: Like legislature, constitutional limitations on union power to not discriminate and

affirmative constitutional duty to protect rights. Only permitted to make relevant distinctions based

on things that play into job such as skill, work performed, seniority, etc. Congress by enacting RLA

and authorizing union, did not intend to confer plenary power on union to sacrifice, for benefit of

members, rights of minority of the craft w/o imposing duty to protect the minority.

 Facts: AA locomotive fireman, Brotherhood (LO) is exclusive bargaining representative of firemen

majority white and substantial number of minorities excluded from membership in Brotherhood.

Blacks required to accept Brotherhood as representative and could not vote to have as bargaining

representative. Brotherhood CBA limits rights of blacks with employment, advancement, and

replacement in positions, state COA says no cause of action since represented and permitted to

destroy AA’s rights and no duty to represent all workers in craft

 Exclusivity provision: Related to state action, as RLA, like NLRA, provides for exclusive

representation and once have union that represents bargaining unit, can’t have another one

 Limiting principles: Union can still bargain K provisions that impact different groups of

workers differently if based on differences that are relevant to the purposes of the K.



Emporium Capwell Co. v. Western Addition Comty Org., 420 U.S. 50 (1975) [Textbook 380-388]

 NLRA provisions: 7/8a1/9a

 Rule: Majority rule central to labor law policy of collective bargaining and gives all members of

unit benefit of collective strength even if some minority members who had more power alone

would be subject to the power of the majority, BUT no tyranny and limited majority rule in several

ways: (1) Confined to exercise of power to the context of appropriate bargaining unit, (2) Assure

minority voices heard as they are in functioning of democratic institution, (3) Implicit imposition

of duty to bargain fairly and in good faith to represent interests of minorities within the unit. NLRA

must be construed in light of broad national policy against discrimination, but the substantive right

to be free from racial discrimination cannot be confused with NLRA procedures for securing rights,

as cannot be pursued at expense of orderly CB process.









37

o Problems with rule: (1) Bargaining unit – can’t specifically address minority concerns if

only T/C of employment; (2) Democratic controls – inherently majoritarian; (3) DFR – not

go far enough to protect minority, see Vaca.

 Rationale: Will not fashion limited exception to principle of exclusive representation under 9a such

that employees who seek to bargain separately with their employer as to the elimination of racially

discriminatory employment practices peculiarly affecting them. Solidarity for union, will not permit

minority to undermine union’s majority rule.

 Facts: SF dept store, employees complained of discrim. in job assignments/promotions, union

prepares report and told employer take every grievance of RD to arbitration if necessary to

resolve issue, demands convene adjustment board, 4 employees do not show up to meeting with

arbitration board, object to individual grievance procedures, hold press conference/picket store

Employees discharged, SCOTUS says employees' concerted activities to engage in separate

bargaining could not be pursued at the expense of orderly CB process.

 Compare COA and SCOTUS approach: COA says employee concerted action (S7) protected

unless union was actually remedying discrimination to fullest extent possible and by the most

expedient and efficacious means, and where union cannot meet this standard, minority groups

concerted activity cannot lose Sec. 7 protections.

 Title VII analysis: Two views: (1) Hoffman analysis where deference when interpret own statute,

but not when try to interpret another statute v s. (2) Brevard analysis where NLRB has to interpret

NLRA in light of ADA, labor policy defined by corpus of federal labor and employment laws

 Why no 9a exclusion for RD: Harm collective bargaining b/c (1) don’t want multiple claims put

forth toward employers; (2) concerned about unity of the union as well that rule allowing this kind

of bargaining would divide workers among racial (or other) lines as minority groups of all kinds

form to press their demands.

 Why problem with self-appointed minority group: Democracy issues. No reason to believe that

4 workers represent a larger group of workers and larger group of concerns. Even if scalpel

approach, better resolve under Title VII.

 Process over substance: Substantive right to be free of racial discrimination cannot be pursued at

expense of orderly process of collective bargaining. NLRA’s process get higher ranking than Title

VII substance

 S7 vs. S9: Possible should give priority to S7 and not S9 based on location in statute.



X. NEW FORMS OF WORKER ORGANIZING



NLRA Rights in the Non-Union Workplace

Overview of NLRA Applicability:

 Union formation  union mgmt and relations  regulation of interests w/in unions (dissenters and

minority groups) non-union workplaces and collective action outside of traditional union context



NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) [Supp. 646-663]

 NLRA provisions: 7/8a1

 Rule: Employer violated 8a1 (“interfered with, restrained, and coerced individual right of

employee, protected by S7, to engage in concerted activities for mutual aid and protection”) when it

denied employee’s request for presence of union representative at investigatory interview that

employee reasonably believed would result in disciplinary action.

 Rationale: Falls within literal wording of “concerted activities for mutual aid or protection.

Permissible NLRB construction of S7based on expertise and special competence in light of

changing industrial practices.





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 Facts: Review of CA5 reversal of NLRB holding that respondent employer's denial of an

employee's request for union representation at interview, which employee reasonably believed

might result in disciplinary action, violated NLRB. Accuse of stealing chicken, request denied

multiple time for union rep. in meeting with manager and loss intervention specialist.

 Limitations of Weingarten rights: (1) Employee must request representation (waiver possible),

(2) Only applies where employee reasonably believe that meeting will result in discipline, (3) Can’t

interfere with legitimate employer prerogatives [e.g., employer can continue investigation w/o

interview and forgo meeting benefits]; (4) Union rep has right to be there but has no right to bargain

 Issue: If w/in literal wording of statute, how is it permissible and not mandated construction of S7?

 Policy justifications: (1) Safeguards employees/units interests , as union presence assures that

other employees can obtain aid and protection if have interview; (2) Eliminate bargaining power

inequality of bargaining power between employees and employers (3) Knowledgeable union reps

useful since assist in getting to bottom of incident occasioning interview; (4) consistent with

industry practice (in CBAs, arbitrations, etc.)



Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) [Supp. 664-670]

 NRLA provision: 7/8a1

 Rule: Employees in nonunionized workplaces have NLRA right to have a coworker present at an

investigatory interview which the employee reasonably believes might result in disciplinary action.

 Rationale: Weingarten grounded in S7 means applies to both union and nonunion members.

Dupont wrong because (1) mere speculation about abilities of union vs. nonunion reps, and (2)

likelihood that concerted activity successful is irrelevant under S7. No conflict with 9a.

 Facts: Discharge Borgs/Hasan, sent 2 memos concerning supervisor, exec. dir. requests meeting

with Borgs, who did not want to meet w/out coworkers present since reprimanded at another

meeting (regarding salary discussions with coworkers), did not meet and discharged for gross

insubordination for failing to meet with supervisors. Hasan engaged in concerted activities with

brown bag lunches, ethics committee, prepared Jan 17 and 29 memos with Borgs, did meet alone.

Violation b/c fail to show would have discharge in the absence of protected activity.

 Case Law with nonunion workers:

o Material Research Corp. (1982): Extend Weingarten to nonunion settings. Includes right

to request coworker at investigatory interview, derived from S7, not S9

o Sears (1983): Overturn Material Research, S7 depends on unionization, extending

Weingarten impermissible construction of NLRA since infringe employee ability to bargain

and deal individually with nonunionized employees

o E.I. Dupont (1988): Follow Sears, change rational. NLRA open to both Weingarten

interpretations. Says (1) purpose to redress power imbalance and this less significance if no

union, (2) nonunion setting coworkers has no duty to represent entire unit as in union, (3)

less likely coworker have skills of union representative to be effective rep., (4) Detrimental

to forego interview in nonunion, lose opportunity to hear employee side of issue



IBM Corp. 341 NLRB No. 148, 2004 NLRB LEXIS 301 (2004) [Supp. 671-679]

 NLRA provisions: 7/8a1

 Rule: Employer whose employees are not represented by a union does not violate 8a1 by denying

employee’s request to have a coworker present during investigatory interviews. Weingarten right

does not extend to a nonunion workplace.

 Rationale: Return to E.I. Dupont. Two permissible constructions of NLRA, but NLRB discretion

and matter of policy to pick one interpretation. Only 4 years since Epilepsy, but changes in

workplace include terrorism, incidents of workplace violence, new needs for investigatory

interviews for employers in workplace.

 Facts: Harassment, interview without witnesses once, then dismiss one month later, each requested

to have coworker at Oct. 23 interviews and were denied requests.

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 Why deny Weingarten in nonunion setting: (1) Coworkers do not represent interests of entire

workforce: not bound by DFR, no legally defined collective interest to represent, no designated

representative; (2) Coworkers cannot redress imbalance of power b/w employers and employees,

does not make for speedier resolution of problems requiring investigation, coworkers not have

union reps knowledge of workplace and politics; (3) Coworkers not have same skills as union rep.

since not familiar with law of the shop, not have skills to propose solutions to workplace issues and

avoid grievances as in union setting, not assist in facilitating interview or resolving issues, more

likely frustrate and impede, possible co-conspirator; (4) Presence of coworker may compromise

confidentiality of information; (5) Forgoing interview leaves employer open to charges that did not

conduct thorough investigation, liability based on incomplete information

 Outcome oriented approach: Main weakness in IBM is that focused on results, but S7 rights not

protected based on outcome. No effectiveness inquiry under S7.

 Union vs. nonunion: Weingarten right potentially stronger reason to apply in nonunion setting, as

union could bargain Weingarten in CBA and grieve discipline. Possible that if have K protection w/

CBA, need less statutory protection and thus should be more protective of Weingarten in nonunion.

 Why Weingartent right matters: First step to unionization, social and psychological impact of

concerted action, inherent usefulness of collective action



Members-Only/Minority Unions

International Ladies Garment Workers v. NLRB (Bernhard-Altman Texas Corp.), 366 U.S. 731

(1961) [Supp. 680-693]

 NLRA provisions: 7/8a1/8a2/8b1a [union interference with employees]

 Rule: Employers extending exclusive recognition to union that represented only minority of unit

interfered with organizational rights in violation of NLRA 8a1/8a2. Grant of exclusive rep. violates

8a2 b/c (1) recognizing as exclusive representative turns act on its head since minority would speak

for majority and (2) deceptive cloak of authority to enlist additional union support.

 Rationale: Earlier recognition of union fait accompli depriving majority of employees guaranteed

right to choose and must void entire agreement. Good faith belief that represented majority not a

defense to ULP, as possible deceptive cloak of authority for union.

 Facts: Strike against wage reduction, unrelated to organizing drive, some EEs signed authorization

cards, union enters into MOU and later agreement with employer to end strike for shipping and

production employees. No one checked to see if union actually represents majority although at time

of agreement did represent majority.

 Distinguish: Violation NLB found was grant by the employer of exclusive representation status to

a minority union, as distinguished from an employer’s bargaining with a minority union for its

members only. Vice is exclusive representation clause in agreement.

 Dissent: Absent exclusive agency for bargaining created by a majority of workers, minority union

has standing to bargain for members. Should not set aside entire K b/c: (1) secured valuable

benefits for minority members who authorized bargaining; (2) union entitled to speak for its

members until another union certified as occupying bargaining field. Shouldn’t have binary with

majority unionism or nothing at all; should have minority unionism (if rep 20% of union, should be

able to bargain on behalf of that 20%)



Charles Morris, The Blue Eagle at Work [Supp. 694-715]

 Theory: In workplaces where not yet a majority/exclusive representative, collective bargaining on

behalf of the members of a minority labor union is a protected right fully guaranteed by NLRA

o Ex: Nonunion workplace, informal peer group wants to meet with mgmt to discuss working

conditions, deny request and stage walkout, again requests to sit down with mgmt, denied







40

by mgmt, discharge workers. Morris says ULP for firing + employers refusal to bargain and

should seek order to bargain.

 History: Minority-union recognition accompanied by bilateral CB for members, deemed as prelim.

develop. in mature CB. Where no majority representation, minority rights reserved.

o Why disfavored: Faster/less expensive to get exclusive rep. rights through NLRB election

o Why election: (1) Determine which union recognized when multiple unions claiming

representation and (2) Provide employer with reliable mans to verify whether union that

sought or claimed to represent all the employees in unit did in fact represent majority.

o Why history important: Knows about minority unionism and should interpret statute

consistent with this backdrop.

 Why minority union important: (1) Weingarten rights; (2) Social and economic services; (3) CB

statutory bargaining subjects affecting employment

 Plain text/statutory analysis: Support bargaining with non-majority union for its own members

b/c employees have right to “bargain collectively through representatives of their own choosing”

and ULP if employer “interferes with, restrains, or coerces employees in the exercise of that rights.”

o Clauses that matter: 7/8a1/9a [essence of rights and obligations that related to CB

process]; 8a2/8a3/8a4/8a5 [four ULP clauses, supply enforcement]

o Preamble Policy/S7: Introduce foundational components of statute. Every worker has full

freedom of association to designate representatives of own choosing to participate in

collective bargaining. Nothing about “majority rule”

 S7: “Employees shall have the right to . . . bargain collectively through

representatives of their own choosing.

 Plural representatives suggests more than one bargaining representative

among employees

 No limit: Unless statute limits S7 grant of rights elsewhere, S7 says everyone

choose representatives for bargaining and no majority/minority distinction.

 CBing: Requires employer to negotiate in good faith with his employees

representative, to match their proposals, and to make every reasonable effort to

reach an agreement.

o One exception – 9a: Exclusivity principle, once majority, represents ALL employees

 Analysis: 9a qualification only applies when representative selected by majority.

Employers refusal to meet and deal with nonmajority union would interfere S7 right

to bargain through representatives of their own choosing contrary to 8a1.

 9a leaves room for minority unions: Doesn’t tell us anything about situation

where majority of unions haven’t chosen exclusive representation.

 Location matters: Located in representation procedures and not rights and ULPs

section, defines that majoritarian and exclusivity standard applicable to fully

established collective bargaining

 Text: “Representatives designated or selected for the purpose of collective

bargaining by the majority of the employees in a unit appropriate for such

purposes shall be the exclusive representatives of all employees in such unit

for the purposes of collective bargaining in respect to rates of pay, wages,

hours of employment or other conditions of employment.”

o 8a1/8a5 - Enforcing duty to bargain with minority union:

 8a1: ULP for employer to interfere with, restrain, or coerce employees in the

exercise of rights guaranteed by S7. Because S7 protects abilities to CB through

representatives employees choose, 8a1 violation for failure to bargain.

 8a5: ULP for refusal to bargain, subject to provisions of 9a. What “subject to 9a

means” is that if majority union, bargaining obligation runs only to majority union,

but if no majority union, 9a irrelevant. Duty to bargain with minority union after





41

majority representative established, but duty to bargain with minority unions

continues until that point

o Legislative history: Draft version of 8a5 would have explicitly excluded minority unions

from 8a5 protection (“chosen as provided in 9a”). Proof that Congress did not mean to limit

bargaining obligation to majority unions.



Dick’s Sporting Goods, NLRB Advice Memorandum, (June 22, 2006) [Supp. 716-733]

 NLRA Provisions: 8a1/8a5

 Rule: Employer did not violate 8a1/8a5 and had no obligation under NLRA to recognize minority

union in absence of NLRB election establishing that it represented majority of employer’s

employees.

 Compare Morris and Advice Memorandum:

o 9a : NLRB finds 9a provision for majority rule as rejection of other forms of representation.

Congress rejects other forms of representation including proportional/minority rep.

o Leg. history: Congress considered and rejected proviso to S9 that would have protected

status of minority-supported unions

st

o Role of minority union: Not 1 step to unions, but rather permits employers to play off one

another, discord, and never be able to get to majority representation. Minority union

bargaining undermines potential for meaningful CBing, create tension that would preclude

them from pooling economic strength effectively.

o Discretionary: Employer may recognize minority union but does not have a duty to do so.

Citations to Emporium Capwell [proviso to 9a did not render employer’s refusal to discuss

employees’ grievances unlawful] and Linden Lumber [employer can lawfully refuse to

recognize a union which purports to represent majority of employees based on showing of

authorization cards, burden on union to petition NLRB for determining majority status

 Facts: Union does not represent majority of employees in any unit, union request to bargain over

discharge of member of Dicks Employee Council (affiliate of United Steelworkers). Council exists

to bargain on behalf of members and seek to form traditional union (germinate full scale union).

Request bargain over terms and conditions for its members only and discharge, employer refuses to

cooperate, file ULP under 8a1 and 8a5.

 Issues with minority unions: (1) Possible Majestic Weaving problem where minority unions

grows into majority union, and if bargain just for members, might give deceptive cloak of authority.

(2) Minority unions as potentially undermining majority unions (test case vs. too small bargaining

power vs. inherent value in collective voice vs. coalition building vs. umanageability for employers

in costs and feasibility vs. myth of individual bargaining). (3) Potential solution to Weiler’s window

o Conferral of benefit problem: If have unit where 20 of 100 workers in members only

union. That union wants to bargain for better wages. Employer says yes will bargain and

give benefits to members-only union and not everyone else. Morris says that what employer

has to do is give benefit to everyone, but still difficulties.

 How fix NLRA to facilitate minority unions: Limit the # of people unit in bargaining unit (e.g.,

unit must represent at least 25% of unit to be considered “union” within meaning of statute).

Restrict terms and conditions of bargaining. Take economic weapons off the table.



New Forms of Worker Organizing: The Fair Labor Standards Act and

Employment Law and Labor Law

Role of Employment Law:

 Problem: NLRA fails to serve central purpose to provide employees choice to unionize or not









42

 Alternative: Use of employment law statutes to facilitate collective action by workers. Offer

solutions to NLRA problem that dysfunctional remedial provision (e.g., NLRA limitations on

compensatory damages, enforcement timeliness, ability to enforce law on own behalf)

 How it occurs: Workers acting collectively and relying on anti-retaliation provisions of

employment statutes (e.g., FLSA and Title VII) to enforce labor rights and get min wage/overtime

 Three questions to consider: (1) Does FLSA protect workers who make collective demand on

employer for min wage/.overtime, or does it protect only those who acting through lawyers take

their cases to courts/federal agency [circuit split]?; (2) Does FLSA authorize recovery of punitive

damages? [circuit split]; (3) Does FLSA cover undocumented workers [Hoffman not apply]









Protecting the Right to Organize for Minimum Wage and Overtime Pay

Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993) [Supp. 759-761]

 FLSA provisions: 215a3 (anti-retaliation provision of FLSA)

o 215a3: Unlawful to discharge or in any other manner discriminate against an employee

because such employee has filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter, or has testified about or is about to testify in any

such proceeding, or has served or is about to serve on an industry committee.

 Rule: Plain language of 215a3 limits the cause of action to retaliation for filing formal complaints,

instituting a proceeding or testifying but does not encompass complaints made to a supervisor.

Statute is plain and unambiguous and do not need to defer to EEOC’s interpretation in its

compliance manual that EPA retaliation provisions should encompass informal workplace

complaints.

 Rationale: Under plain reading of 215a3 anti-retaliation proceeding, have to file complaint through

formal legal channel. Statute says “filed any complaint” and before can get to “any” complaint

needs to first be “filed” and thus unless formal filing, cannot have complaint; filing implies some

kind of formality

 Facts: Allege sex discrimination and retaliation for complaining about alleged discriminatory

practice in violation of Title VII, FLSA, state laws, dispute over promotion to position that had

opened in clerk’s office, return from maternity leave and not return to same position (same wages

and benefits though), suit under FLSA as modified by equal pay act, complaint to supervisor that

female should receive same salary as male, complained that pay was “not fair” that not receiving

equal pay without stating for much more reasons that disparity, employer retaliates, plaintiffs sue

about retaliation, jury finds for plaintiffs, D.Ct. grants JNOV.

 Compare Title VII anti-retaliation provision: “Opposed any practice made unlawful by Title

VII” encompasses individual complaints to supervisors, FLSA more narrow



Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999) [Supp. 762-770]

 FLSA provisions: 215a3 (anti-retaliation provision of FLSA)

 Rule: FLSA’s prohibition on terminating any employee who has “filed any complaint or instituted

or caused to be instituted any proceeding under or related to this chapter” protects an employee who

complains to his employer about violations of FLSA. Complaints to employers are protected if: (1)

employee has actually communicated complaint to employer ( discontent with wage and hours not

enough, must communicate substance of complaint such as “failure to pay adequate overtime”); (2)

allegations can be made orally or in writing; and (3) Need not refer to statute by name.









43

 Rationale: Must read FLSA broadly to effectuate remedial and humanitarian purpose. Individual

rights statutes not interpreted in a narrow or grudging manner. Interpretation necessary to get rid of

fear of intimidation that employees will feel coming forward with complaints.

 Statutory language analysis: First discuss policy, then “any complaint” [broadly read] + “filed”

[practice in union shops where “file grievance with employer,” so this includes informal complaint

to employers] + “under or related to this chapter” [even if filed means DOL, or related to has to

mean something informal.

 Facts: Ticket agents for Sonics, weren’t paying overtime for hours worked, 1994 Lambert calls

DOL about overtime, DOL tells that overtime policy violates FLSA, goes to comptroller and says

CEO won’t pay overtime and doesn’t care what laws are, tells Lambert that will be fired if press

issue, Lambert hires attorney who sends letter to Sonics CEO and drafts complaint, Sonics settle

with Lambert and reorganize ticket sales and layoff all plaintiffs and one sales agent who not

discharged didn’t complaint about overtime. CA9 en banc reverses.

 Compare with NLRB: No duty to bargain with 2-person committee, cannot discharge since would

be ULP, under labor law there would be S7 rights, only thing could have hoped for was getting

reinstatement and backpay (wouldn’t get $12 million in punis)



Punitive Damages under the Fair Labor Standards Act

Punitive damages issue (Cir. split):

 NLRA remedial regime limited to compensatory damages, does FLSA solve problem with punis?

Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990) [Supp. 771]

 FLSA provision - 216b: Any employer who violates provisions of 215a3 shall be liable for

such legal and equitable relief as may be appropriate to effectuate the purposes of 215a3,

including w/o limitation employment, reinstatement, or promotion and the payment of wages

lost and an additional amount of liquidated damages.

 Rule: FLSA term “legal relief” is a term commonly understood to include compensatory and

punitive damages.

 Rationale: Court must interpret amendment that permits as remedy double the shortfall of

wages and amendment that says “without limitation” to include compensatory and punitive

damages. No Congressional intent to contrary. 1977 amendment changed remedial scheme.

 Facts: FLSA suit for failure to pay vacation/sick/holiday pay and retaliation claim under 215a3

for discharge based on FLSA suit. Witness in suit testified against company and was fired, gets

45K punis and 35K emotional distress for testimony + firing.

Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000) [Supp. 772-781]

 FLSA provisions:

o 206a1: Minimum wage provision, specifies minimum rates of compensation

o 207a1: Overtime provision, requires employers to pay employees at rate not less than

1.5 times regular rate of pay for any time spent working in excess of 40 hours per week

o 216a: Criminal provisions of FLSA, willful violation lead to 10K fine and up to 6

months in prison.

o 216b: Authorizes private causes of action against employers; Violate 206/207 shall be

liable to employee affected in amount of their unpaid wages, unpaid overtime, and in

additional equal amount as liquidated damages. Violate 215a3, shall be liable for such

legal and equitable relief as appropriate to effectuate purposes of 215a3, including w/o

limitation employment, reinstatement, promotion, and the payment and an additional

equal amount as liquidated damages

o 260: Good faith defense to award of liquidated damages when employer has been found

to violate minimum wage/overtime provisions

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 Tools: FLSA amendment in 1977 to provide private right of action when employer violates

215a3 did not include language allowing plaintiffs to recover punitive damages as legal relief.

 Rationale: Plain language analysis. Edjusdem generis (If broad term in statute and term used in

provision that delineates more specific forms of relief, you interpret broad term by looking at

specific terms that surround it, since “legal relief” with reinstatement, promotion, lost wages,

liquidated damages all are compensatory and put P back in position would have been w/o

retaliation) + “without limitation” means CBC remedy + liquidated damages as compensatory

to make up for costs of discharge + 216a as punitive and 216b compensatory

 Problem with narrow interpretation: SCOTUS says interpret broadly, but inferring remedies

Congress never contemplated is abrogating lawmaking power to the judiciary

 Facts: Allege minimum wage/overtime/anti-retaliation violations. Wrote to DOL to express

that being taken advantage of, boss found out, said should have talked it over with manager and

then terminated. D.Ct. says can sue boss and punitive damages and compensation for emotional

distress permitted. Appeal striking of 35K in punis.

 Right outcome?: Punis needed to incentivize plaintiffs lawyers brining case in the first place vs.

 “Necessary to effectuate purpose of the act” as permitting punis contrasts with NLRA



The Fair Labor Standards Act and Undocumented Workers

MINIMUM WAGE AND OVERTIME CLAIMS



Liu v. Donna Karan, 207 F. Supp. 2d 191 (S.D.N.Y 2002) [Supp. 782-783]

 Rule: Evidence of workers immigration status in FLSA anti-retaliation case not relevant and

prejudice to workers outweighed need for disclosure and outweigh probative value.

 Rationale: Courts distinguish awards of post termination back pay and unpaid wages pursuant to

FLSA for work actually performed. Hoffman about backpay for work not done.

 Facts: Chinese immigrant workers allege violations of FLSA, motion to determine immigration

status of workers suing under FLSA for wage/overtime violations. Cite Hoffman.



Zavala v. Wal-Mart Stores, 393 F. Supp 2d 295 (D.N.J. 2005) [Supp. 784-790]

 FLSA provisions: 206/207 [overtime, minimum wage provisions]

 Rule: UDWs entitled to relief under FLSA for wage and overtime violations. Term “employer”

construed broadly under FLSA.

 Rationale: Reducing incentives to hire UDWs by covering with labor laws consistent with IRCA.

Facts: Wal-Mart janitors, UDWs, file FLSA suit for overtime (1.5x’s over 40 hours) and minimum

wage violations (national minimum wage at time of suit).

 Why Hoffman doesn’t apply: (1) Definition of employee in FLSA broad enough to cover UDWs.

(2) Hoffman claim for backpay hours that would have worked, not hours already worked. (3) IRCA

has different relationship to FLSA than NLRA, see 111d (allocates $ to enforce FLSA for UDWs),

(4) DOL position that UDWs entitled to FLSA recovery for work already performed after Hoffman.



RETALIATION CLAIMS



Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998) [Supp. 791-

795]  post IRCA but pre-Hoffman decision

 FLSA provisions: 215a3

 Rule: Congress amply manifested that all employees, regardless of immigration status, enjoy

protection of FLSA’s anti-retaliation provisions. Congress intended all encompassing definition of

term “employees” to include all workers not specifically excepted.





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 Rationale: Permitting employers to circumvent labor laws with UDWs problematic b/c (1) permits

abusive exploitation of workers and (2) creates unacceptable economic incentive to hire UDWs and

underpay them. IRCA not contrary to FLSA, see 111d of IRCA and House Report.

 Facts: Retaliation claim under FLSA, secretary fired for filing claim under CA labor law and

pursuing unpaid wages/overtime under state law, arrested 4 days after prehearing conference with

Labor Commissioner, allege retaliation for claims under state law for wages/overtime pay.

 Preemption: CA law says communications made in proceedings immune from liability, and since

contact INS for someone here illegally, this should be privileged. Preempted via Supremacy Clause,

conflict means state law should yield.

 Note: Same arguments made here rejected in Hoffman.







Singh v. Jutla, 214 F. Supp. 2d 1056 (N.D. Cal. 2002) [Supp. 796-802]  post Hoffman

 FLSA provisions: 206/207 [wages and overtime provisions]/215a3

 Rule: Under anti-retaliation provision, elements of c/a are (1) plaintiff must have engaged in

statutorily protected conduct under 15a3, (2) plaintiff must have suffered adverse employment

action, and (3) causal link must exist b/w plaintiff’s conduct and employment action. Hoffman does

not hold that UDW barred from recovering unpaid wages for work actually done, nor does it

preclude other traditional remedies.

 Rationale: Sure-Tan said UDWs employees and still entitled to certain remedies under NLRA.

Decline to extend Hoffman. Hoffman not apply where employer actively recruited to illegally work

in US. Every remedy denied to UDW provides marginal incentive for employers to hire UDWs.

 Analysis: Pre-Hoffman [background rule is protection] + Hoffman remedies [only cut off one

specific remedy, backpay under NLRA] +Hoffman affirming Sure-Tan [UDWs employees under

NLRA] + knowing employers [not apply if know that UDW]

 Facts: Recruit UDW to work in US, never pay for 3 years, contact CA labor department, employer.

threatens to report to INS unless claim dropped, settle claim before trial and following day INS

detains, file retaliation claim under FLSA, D’s contend that Hoffman forecloses suit under FLSA.









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