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Law School Legal Outline Notes for Labor Law

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Last updated 12-02-00 Start with PART I. I.B BACKGROUND & INTRO TO NLRA – 08/28/00 A. Historical Background of Present Labor Law: 1. Rise of Labor Movement After Civil War: a. Isolated, local groups started organizing workers in the early 1800's, but the first serious efforts were national unions (1850s) & the Knights of Labor (1880's) - Knights grew quickly but declined rapidly (due to conflicts w/ nat'l unions). b. American Federation of Labor (AFL): formed in 1886 as a federation of nat'l craft unions, had major goals of economic unionism (achieved through collective bargaining) & exclusive union jurisdiction. By 1914, the AFL had 2,000,000 members concentrated in skilled trades & a few industries. c. DDD Early Policies Toward Unions: a. Criminal Conspiracy Doctrine: 1) Criminal conspiracy doctrine was used to attack early union organizing (See Philadelphia Cordwainers Case (first labor case) (conspiracy charge against shoemakers - court found combination illegal); but see Commonwealth v. Hunt (ended era of criminal sanctions against union organizing activities - J. Shaw "if not unlawful for individuals not unlawful because group engaging in same activity)), but by the 1880's it was replaced by the use of civil injunctions. 2) NOTE: originally regulation in this area solely decisional - not statutory - then shift from application of traditional common law doctrines to statutes (Factory Acts; Workers' Compensation Statutes; Federal Fair Labor Stds. Act; OSHA; ERISA; Plant Closing Act) - state law although largely preempted in this area today by federal legislation BUT retains its vitality w/ the emergence of the concept of wrongful discharge. b. Objective Tests: legality of union activity depended upon how any particular court chose to construe union’s objectives - most decisions were very RESTRICTIVE of union conduct. 1) Vegelahn v. Guntner (Mass 1896): a) Holding: court enjoined picketing or other "interference" w/ persons on the ERs’ premises, holding that "no one can lawfully prevent ERs or persons wishing to be employed from the exercise of their rights" – majority stopped its analysis once it determined that the means (picketing) were unlawful. b) Court says means are not valid and stops analysis. c) Holmes' Dissent: J. Holmes argued that the needs of workers to organize could justify even intentional infliction of temporary damage to an employer's business that, short of force or threat of force, organized action (such as picketing) should be permitted. (1) Holmes focuses on means and ends. (2) Prima Facie Tort theory: individuals will be liable for the economic harm they cause UNLESS it is JUSTIFIED (widely followed (NY) but not in PA). (a) Hard to determine what constitutes “justification”: free competition – trade competition – free struggle for life.

2.

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Plant v. Woods (Mass 1900): a) b) c) d) e) f) Majority adopts Holmes’ prima facie tort analysis. Distinguish from Vegelahn b/c different things make this conduct unlawful. Holding: court enjoined strikes & picketing to enforce a union demand that the ERs hire only union members, rather than members of a rival union ("closed shop"). Court says ends are not valid: court held that the need to protect the organization was not sufficient to justify interference w/ the ERs right to be "free of molestation." Test: conduct will be allowed if ends directly, immediately benefit EEs OR if conduct is similar to traditional trade competition. Holmes' Dissent: contended that the members' end/purpose - strengthening union power before bargaining over wages & working conditions - justified the strike: "Unity of organization is necessary to make the contest of labor effectual, and [unions] lawfully may employ in their preparation the means which they might use in the final contest." (1) Means and ends: the more closely the activity could be tied to business competition - the more likely such activity would be "justified."

3.

Reaction to Labor Activity – 1914-1932: despite hostility from ERs & the courts, support for union organizing continued to grow. a. Clayton Act (1914): Exempted legitimate union activity from antitrust laws & barred the use of injunctions in ER/EE disputes. Union membership grew to 5,000,000 by 1920. b. Union Advances: Enactment of the Railway Labor Act of 1926 (RLA) established compulsory arbitration & mediation in disputes & was found to be constitutional by the Court. Establishment of Present Labor Policy and Union Organization: The New Deal led to federal legislation establishing collective bargaining as a national policy. Current patterns of union organization also evolved after 1932.

4.

B. Statutory Foundations of Present Labor Law: 1. 2. Introduction: Current labor law is based on 4 pieces of federal legislation. Norris-LaGuardia Act (1932): Various procedures used to prevent effective union organizing (e.g. yellow-dog contracts, objectives test, etc.) resulted in the passage of this Act. The Act removed the power of the federal courts to enjoin union activity absent fraud/violence. National Labor Relations Act (1935): a. b. Purpose: promote EE free choice and keep industrial peace. Preemption – p5Mats: NLRA generally preempts most state law: 1) Garmon preemption: state regulation of activity that is either arguably protected by 7 or arguably prohibited as an ULP by Section 8 of the NLRA is generally preemption UNLES such activity can be said to be “merely a peripheral concern” of the NLRA or to “implicate interests deeply rooted in local feeling and responsibility.” a) Only applies when the conduct regulated by the state is prohibited (or only arguably protected at most by the NLRA); if the conduct is actually protected by the NLRA, then preemption is absolute. b) Example = violence. 2) Machinists preemption: some activities are supposed to be completely unregulated even if not protected in NLRA.

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a) b) c)

Under this principle even activity that is neither arguably protected nor prohibited by the NLRA may be exempt. The fact that the NLRA does not regulation employer or union conduct may indicate that Congress meant to leave these activities unregulated and to be controlled by the free play of economic forces. Since the Court has held the that policy of free collective bargaining is central to the statutory scheme, the NLRB may not compel concessions or otherwise sit in judgment upon the terms of the collective bargaining agreement.

c. d. e.

This legislation expressed a national policy to encourage collective bargaining in labor relations. The NLRA was primarily concerned w/ the organizing phase of unions & dealt almost exclusively w/ limiting ERs unfair labor practices (ULPs). NLRA is framework for CB process: each side has weapons available to it (NLRA is not a substitute for using those weapons to fight – it is merely a framework for how those weapons can be used to fight. § 7 is heart of the act. Diametrically opposed to previous case law where there were many limits on EE and non on ER – now many limits on ER and non on EE.

f. g. 4.

Labor Management Relations Act of 1947 (Taft/Hartley): This Act attempted to balance obligations between. ERs & unions by restraining union as well as ER ULPs & by providing alternatives to collective bargaining where public health/safety is seriously affected (mediation, emergency disputes, etc.) a. The Act also prohibited closed shops & provided for the enforcement of labor agreements. Labor Management Reporting & Disclosure Act of 1959 (Landrum/Griffan): Passed in reaction to union corruption uncovered in the '50s, the Act imposed some regulations on internal union affairs & established a "bill of rights" for union members.

5.

C. Summary of National Labor Policy: 1. 2. 3. The basic goal of industrial peace is encouraged through collective bargaining & employee selforganization. Restraints on certain labor practices (e.g. secondary strikes/boycotts) are permitted where the consequences outweigh the value to organizing. Where strikes imperil national health/safety, conciliation, "cooling off" periods and/or gov't intervention may be used.

PART I – PROTECTING THE EMPLOYEES’ RIGHT OF FREE CHOICE:

EMPLOYER INTERFERENCE, RESTRAINT OR COERCION [ § 8a1]:


Generally:

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1.

§ 8(a)(1): it shall be an ULP for an ER to interfere with, restrain, or coerce EEs in the exercise of the rights guaranteed in § 7. a. Protected § 7 rights include: 1) to self-organize; 2) to form, join, or assist labor organizations; 3) to bargain collectively; 4) to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 5) 6) To protect the employees right to join a union, the NLRB emphasizes the need to protect the employee's "free choice." 7) To make a free choice, the employee should have access to relevant information which will help them to determine the consequences of selecting or rejecting the union and that they should apprise these consequences in the lights of their own preferences and desires to determine whether a vote for the union will promotes or impairs their self-interest. 8) Ideally, the employee should be free from restriction which unduly obstruct the flow of relevant information, from misrepresentations and threats and from threats of retribution. Derivative and independent § 8(a)(1) violations: violations of § 8(a)(2)-(5) are also violations of § 8(a)(1) -. In giving effect to § 8(a)(1), Congress emphasized the need to preserve EEs' "free choice" – reasoned choice – thus includes the following “freedoms” – keep these “freedoms” in mind in determining what restrictions ER can place on EEs’ rights to seek and obtain info: a. No physical intimidation. b. Free access to relevant info - free from restrictions which unduly obstruct the flow of relevant info. c. Free from misrepresentations and threats which tend to distort EEs’ assessment of the consequences of unionization, d. Free from acts of retribution which would penalize them for having exercised the choice guaranteed under the Act.

2. 3.

A. Restrictions on “Getting the Message” – Union Solicitation – 09/05/00 – 09/19/00: 1. Oral Solicitation: a. Broad NSR is presumptively INVALID unless ER can demonstrate "special circumstances" (e.g. necessary to maintain production/discipline) [see Republic Aviation Corp v. NLRB (US 1945) – p113C]. 1) ??? 8a1 balancing test b/w ER's interests (property rights and maintain no disruption) and EE's rights. Narrow NSR is presumptively VALID unless EE or U can show discriminatory purpose [see Republic Aviation Corp v. NLRB (US 1945) – p113C]. 1) Indicators of narrowness: a) “working time” or “working hours” - what time the rule regulates? (1) Working time is for working. (2) Working hours: a NSR prohibiting solicitation during working hours (before/after work, during lunch/rest periods) will probably be a violation of 8(a)(1) b/c EE can use his time as he wishes w/out unreasonable restraint even though EE on company property. (a) Such a rule is presumed to be an unreasonable impediment to selforganization and to be discriminatory absent evidence of special circumstances which make the rule necessary to maintain discipline/production [see Matter of Peyton Packing Co. (NLRB)].

b.

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b) c) 2) c.

Purpose of rule. Extent that solicitation has been allowed previously.

DDD

Retail Establishment Exception: 1) 2) 3) Rule: as long as it is not discriminatory, a broad NSR will be tolerated in the retail setting [see May Dept Stores(8th Cir. 1946) enforced as modified, cert denied – p122]. Rationale: larger potential for disruption. Hypo: department store has rule prohibiting solicitation of any kind on its selling floor, on escalators, in elevators, on stairways used by its customers, or in its public cafeteria when the store is open to the public. Union began organizing campaign. EE. began distributing literature and discussing union w/ other EEs on selling floor and in customer cafe. at a time when EE. and other EEs on break. When EE. refused to adhere to NSR, EE. was suspended - U filed 8a1 charge. a) Answer: (1) Not a narrow NSR - not limited to working time - broad NSR - presumptively invalid - but RETAIL TRADES ESTABLISHMENT EXCEPTION public access areas - so potentially disruptive - rule premised on customer access areas/not time. (2) Note distinction between. industrial/retail setting - but certain practicalities about reaching EEs (if you can't use lunch hours). (3) NLRB's position on ordinary EE gathering places: where EEs soliciting in eating places w/in retail establishment (ordinary EE. gathering places ) (where ER. not primarily in food bus.), enforcement of NSR against nondisruptive EEs invalid as discriminatory. DDD

4) d.

HC Industry Exception [see Beth Israel Hosp v. NLRB (US 1978) – p119C]: 1) Exception - Patient care areas: a NSR that prohibits solicitation in patient care areas is presumptively lawful regardless of time. a) Patient care areas: areas where there is surgical equipment (operating rooms, patient rooms, patient cafeteria). 2) BUT patient access areas: NSR that prohibits solicitation in patient access areas is presumptively unlawful unless there is a showing of special circumstances. a) Special circumstances: hospital can show that disruption to patient care would result from solicitation in those areas. b) Unclear whether shared cafeteria would constitute patient care or patient access area. 3) Rationale: a) Nature of the industry; AND b) Psychological impact on patients. 4) DDD Case summaries: 1) Republic Aviation Corp v. NLRB (US 1945) – p113C: a) Facts: ER, a large military aircraft manufacturer, adopted a general rule against solicitation: "Soliciting of any type cannot be permitted in the factory or offices" an EE persisted in passing out union applications, and was fired for violating the NSR b) Holding: the ER’s broad NSR was presumptively invalid and there was no showing of special circumstances.

e.

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c)

FN#10 = crux of case: Act doesn't prevent ER. from making and enforcing reasonable rules covering EEs' conduct on company time. WORKING TIME IS FOR WORKING. Thus, the ER. may promulgate and enforce a NSR during working hours. Such a rule is presumed valid absent evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working time (before/after work, during lunch/rest periods) is an EE's time to use as EE. wishes w/out unreasonable restraint, although EE. on company property. Thus, ER. cannot promulgate a rule prohibiting union solicitation by EE. outside of working hours, although on company property. Such a rule is presumed to be an unreasonable impediment to self-organization and discriminatory absent evidence of special circumstances which make the rule necessary to maintain discipline/production [see Matter of Peyton Packing Co. (NLRB) – p113C].

f.

Hypos: 1) Hypo #1: You are L. to company at which union has begun organizing campaign. There has been a significant increase in solicitation/discussion amount EEs on shop floor during working day - adverse impact on production. The co. never had an explicit NSR, but asks L. if it can lawfully implement one now. What language could co. use? Is there any difference b/w "during working hours" and "during working time?" a) Answer: (1) Generally, a narrow NSR confined to "working time" is permissible. (2) BUT problem here w/ TIMING - ER. never had a NSR before - once union begins organizing campaign, ER. wants rule - DISCRIMINATORY PURPOSE? (3) ER. argues his interest is in maintaining production - not frustrating union never need rule before campaign - now production down - ER. must quantitatively demonstrate (figures) that production down - burden on ER. to demonstrate substantial or significant impact on production/efficiency. (4) What about language to use? Bd. has taken approach that "during working hours" indicates whole working day, and "during working time" indicates just time spent working. MAKE RULE SPECIFIC (e.g. "working time doesn't include your break or lunch time.") Hypo #2: For 2 years, co. has prominently posted notice to EEs on bulletin boards - no EE. solicitation for any reason during working time. However, supervisors permitted 2 solicitations in July: (1) contributions for flowers for widow of deceased EE.; and (2) contributions for earthquake victims. Further, every Fall, company permits United Fund solicitations. Last week, 2 EEs tried to use part of their working time to distribute authorization cards, but their supervisor admonished them. Has ULP been committed? a) Answer: (1) Longstanding narrow NSR - presumption of validity. (2) Is this a discriminatory purpose? Generally, not apparent on face of rule sometimes can infer discriminatory purpose from TIMING - but most frequently can infer discriminatory purpose through DISPARATE ENFORCEMENT - the union's argument is that the ER. has allowed solicitations in past - waived NSR. (3) Er.'s response - focus on quantity and nature of other solicitations BENEFICENT PURPOSES. Perhaps, also union solicitation potentially disruptive/divisive. Beneficent solicitations benefit ER. - morale, team spirit. NLRB focuses on no. of prior solicitations permitted - DE MINIMIS RULE in order to find discrimination based on disparate treatment permitted solicitation must be substantial. NLRB also focuses on beneficent purposes (if beneficent purposes/de minimis prior no. - ok). (NOTE INDUSTRIAL SETTING). DDD

2)

3)

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g.

DDD

2.

Union Buttons: a. b. c. Law is in general confusion at present time. Rule: generally, the right of EEs to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity [see Republic Aviation FN#7 – p117C]. Exception in patient care areas: a NSR that prohibits U insignia in patient care areas is presumptively lawful regardless of time. 1) Rationale: a) Nature of the industry; AND b) Psychological impact on patients. 2) NSR must be non-discriminatory- have to prohibit all buttons. 3) BUT patient access areas: NSR that prohibits U insignia in patient access areas is presumptively unlawful unless there is a showing of special circumstances. Should there be a Retail Exception: case-by-case: NLRB must look to reason and message of insignia to determine if it disrupts ER’s public image – ER must affirmatively show special circumstances (i.e., that U insignia negatively impacts the image the ER wants to project). Hypos: 1) Hypo #1: In June, some EEs of nursing home began wearing blue union buttons about the size of a half dollar w/ white print reading "Local 919 - Hospital Division of AFLCIO" - ER. ordered EEs to remove buttons - pointing to longstanding rule barring the wearing of any buttons or insignia on uniforms - when one EE. refused to remove button, rec'd warning. Does warning violate 8a1? a) Answer: (1) General rule: the right of EEs to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity [see Republic Aviation FN#7 – p117C]. (2) HC Industry Exception: (a) ERs can prohibit U insignia in patient care areas (operating rooms, patient rooms, patient cafeteria) b/c of (i) nature of the industry and (ii) the psychological impact on patients - different balance struck than in industrial setting. (b) Unclear whether ER can prohibit U insignia in patient access areas (3) See Beth Israel Hosp v. NLRB (US 1978) – p119C. Hypo #2: What if EEs in nursing home wore other insignia - happy face buttons? Disparate enforcement? a) Answer: If ER. can articulate some substantial reason for allowing happy face buttons and not union buttons maybe permissible - impact on 3d party patient (suggests to patient focus on conditions/union and not patient care.)

d.

e.

2)

3.

??? Solicitation Using Literature: a. Rule: 1) Generally, EE can distribute literature on non-working time. 2) ??? Industrial Setting Exception – is this industrial exception or working area exception: a) ER can prohibit distribution of literature in working areas at any time (1) Rationale:

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b) c) d) 3)

(a) ER has a greater interest in safety and appearance (avoid litter) in working areas. (b) U has less of an interest b/c communication is complete once literature is handed to EE. ER cannot prohibit distribution of literature in non-working areas during nonworking times. Does not apply to union authorization cards. Problems with this line drawing/balancing activity.

See Stoddard-Quirk Mfg. Co. (NLRB 1962) – p122 where NLRB said balance should be struck differently than with oral solicitation – have to take into account where lit is being distributed not just when.

b.

Hypos: 1) Hypo #1: ER. has "shop" rule prohibiting "unauthorized distribution of literature of any description in working areas of company property at any time" - EEs have small area to eat lunch (either bring same from home, buy from vending machines near shop floor, or buy from truck parked outside) - some EEs traditionally eat lunch at their machines on the working floor - one day an EE. during lunch period distributed single page union flyer to other EEs in lunchroom and on the working floor - some flyers ended up by machines or on floor - when EE. began to distribute a 2d flyer - threatened w/ suspension - 8a1 violation? a) Answer: (1) Here, ER. suppressing union solicitation on non-working time. (2) BUT Location distinction - do ER's interests weigh differently? - loose flyers - littering - dangerous? safety and security concerns. See Stoddard-Quirk Mfg. Co. (sheds light on 8a1 balancing process) INDUSTRIAL SETTING (maybe diff. rule in office setting) ER's interest in avoiding litter in working areas only sufficient to overcome presumption of invalidity (on or off working time.)

4.

No Access Rules - Solicitation by Non-EEs or Off-Duty EEs - Alternative Channels: a. Threshold Question = is solicitor an EE or NON-EE? 1) Impact of characterization: a) EE: then rule is presumptively invalid b/c it is a NSR during non-working time [see Republic Aviation]. (1) Off-Duty EEs constitute EEs under the NLRA, thus Republic Aviation presumptions would apply (NLRB’s position). b) NON-EE: then have to apply alternative channels of communication rule [see Babcock & Wilcox]. 2) Rationale for Different Treatment: power relationship b/w ER and EE. Rule: ER may prohibit NON-EEs from distributing U information on company property if there are other adequate alternative means of communicating with the EEs [See NLRB v. Babcock & Wilcox (US 1956) – p11Mats]. 1) Rationale: a) While an ER may not place restrictions on an EE's right to discuss selforganization among themselves (unless ER can show restriction necessary to maintain production/discipline) ER doesn't owe same obligation to NONEEs. b) Conflict b/w EEs’ organization rights and ER’s property rights. Burden: U has burden of demonstrating lack of access to alternative channels - heavy burden. Application:

b.

2) 3)

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Did U show no adequate alternative channels? (1) YES: then apply balancing test. (2) NO: then U loses.

4)

Examples of Adequate Alternative Channels: a) Only if the location of a plant and the living quarters of the EEs place EEs beyond the reach of reasonable union efforts to communicate w/ them, must the ER permit access to NON-EEs (oil rigs, logging camps, mining camps, ships). b) Usual methods of communication include mail, telephone, one/one contact, in EE's home. c) ??? Media advertising: unclear whether this constitutes an alternative channel (Jean Country said no but now overturned).

c.

Post-Babcock Interpretations: 1) Read narrowly, it means that NON-EE organizing union has no right of access to an ER's property unless it can demonstrate that it cannot reach the EEs by reasonable efforts through other available channels of communications. 2) Read broadly, when EE § 7 rights and ER’s property rights clash, accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the othER Effect of Lechmere: 1) Hudgens v. NLRB (US 1976) – p17Mats: a) Issue was whether 1A protected activity by union supporters on ER-owned property. b) Court rejected 1A argument. c) BUT Court failed to refer to alternative channels test and instead cited to BROADER READING of Babcock & Wilcox [accommodation b/w EE’s 7 rights and ER’s property rights must be obtained w/ as little destruction of the one as is consistent w/ the maintenance of the other]. d) Court noted that locus of accommodation would fall in different places along the spectrum depending on nature and strength of the EE’s and ER’s asserted rights. Jean Country (NLRB 1988) – p18Mats: a) Reconsideration: NLRB reconsiders approach to no-access cases – 3-factor balancing test - in all access cases the essential concern will be: (1) the degree of impairment of § 7 rights if access should be denied, balanced against (2) the degree of impairment of the private property right if access should be granted. (3) The consideration of the availability of reasonably effective alternative means of communication is significant to balancing process. b) Alternative means test NOT controlling: NLRB reaffirmed the alternatives means test, but stated that while the test is relevant, it will not be controlling, rather, the strength of competing section 7 interest and property interest must also be considered. c) Feasible of media advertising: NLRB stated that it will be the exceptional case where the use of newspapers, radios and television will be feasible alternatives to direct contract. d) Focus on nature of property: denial of access will more likely be found unlawful when property is opened to the general public than when a more private character has been maintained. e) Holding: NLRB held that ER's denial of access to a shopping mall for the purpose of picketing a retail store to inform the public that the store was non-union violated 8(a)(1).

d.

2)

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f) 3)

Impact: much easier for U to get access.

Lechmere Inc. v. NLRB (US 1992) – p122C: a) Rejects Jean Country balancing approach - to say that the cases require accommodation b/w EEs’ and ERs’ rights is a true but incomplete statement. b) Application: (1) Threshold question: U must first demonstrate that no alternative channels exist: so long as NON-EE union organizers have reasonable access to EEs outside of ER's property, the requisite accommodation has taken place. (2) If no alternative channels, then NLRB will apply balancing test: it is only where such access is infeasible that it becomes necessary to take the accommodation inquiry to a second level – balance EE’s and ER’s rights. c) “Babcock’s teaching is straightforward: section 7 simply does not protect NON-EE union organizers except in the rare case where the inaccessibility of EEs makes ineffective the reasonable attempts by NON-EEs to communicate w/ them through the usual channels.” d) Impact: b/c Court establishes alternative channels as the threshold (and thus definitive test), it becomes very important to determine what constitutes sufficient alternative channels.

e.

Open questions after Lechmere: 1) Media advertising channels as alternative channel? a) Lechmere indicated focus was on access/availability, not success in reaching EEs. b) NLRB’s answer: the availability of means of mass communication has to be considered – burden is on U to show unavailable [see Oakland Mall Ltd.]. 2) Secondary picketing? ??? Possible ways to distinguish Lechmere and Babcock holdings from Jean Country: 1) Different Audiences: argue that Jean Country is distinguished from Babcock and Lechmere b/c the target audience in Jean Country is the PUBLIC whereas the target audience in Lechmere and Babcock is target audience INSIDE EEs. a) Babcock still applies: alternative channels is controlling test for organizational activity (inside EE audience) or secondary picketing (public audience). (1) Rationale: b/c U still impinging on ER’s property rights (2) MAJORITY approach. (3) Alternative means = public streets by entrances but these have problems. Babcock does not apply: (1) ??? Interpretation less favorable to U: if audience is public, then NON-EEs have no right to access. (a) Babcock exception ONLY applies when U trying to reach EEs. (b) Lechmere does not confer rights on U, only rights to EEs – thus, U’s right is a derivative right that will only arise in rare circumstances. (c) Derivative right. (d) 9th Cir. adopts this approach. (2) Interpretation more favorable to U: the right to bargain collectively includes the right to engage in concerted activity for mutual aid and protection – this is a direct, independent statutory right. (a) Test is still like alternative channels but have to take into consideration the nature of the audience and the nature of the ER’s property rights. (b) 3d Cir. adopts this approach.

f.

b)

g.

Effect of Lechmere on Off-Duty EEs: does not change prior law with respect to enforcement of no-access rules against off-duty EEs.

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h.

Hypos: 1) Hypo #1: You are counsel for the Union in a case factually similar to Jean Country. In a decision prior to Lechmere, the ALJ found that the ER violated 8(a)(1) by excluding the union pickets from the mall, and the ER appealed to the NLRB. Can you frame an argument to persuade the Brd to affirm the ALJ's decision? a) Answer: (1) Attempt to distinguish Lechmere b/c targeting different audience. (2) Does the alternatives channels test change since a difference audience is being targeted. (3) To reach potential customers you can used newspapers, mailing and access to public streets but these may be ineffective. (4) Thus Jean Country may still be good law if you change the facts to target customers. Hypo #2: Union posts reps at a private street through which a casino's customers enter and gives the customers handbills. The casino orders the union to leave the private street or face arrest. Has the casino violated 8(a)(1)? a) Answer: (1) A large segment of the customers are isolated. (2) The alternatives is that the Union could go to a public street, use radio, media or billboards. (3) You could argue there is no right of access but the 9th Cir. has held there is no right of access but for the EEs. Hypo #3: What if union attempting to organize in industrial setting - 2 shifts at plant Smith, a union zealot works on shift 1 - no Smith-like EEs on 2d shift - Smith returns to plant to organize 2d shift EEs - EE. lounge - plant manager tells Smith to leave only EEs on duty permitted on premises during working hours - (no access rule) Smith fired. a) Answer: (1) Preliminary Question: Is Smith, off duty, an EE.? (a) YES: then rule is presumptively invalid b/c it is a NSR during nonworking time [see Republic Aviation]. (b) NO: then have to apply alternative channels of communication rule [see Babcock & Wilcox]. (c) The NLRB position is that Smith is an EE.

2)

3)

5. 6.

“Salting” – p33Mats: The “Captive Audience” Problem: a. Generally: 1) By virtue of Republic Aviation and Babcock & Wilcox, union access to EEs on company property is limited. 2) Essentially, EEs may communicate info regarding the U only during their non-working time, and paid union organizers have access only if alternatives are unavailable. 3) Unions have attempted to establish channels of communication comparable to those of the ER. by devising legal strategies that would (1) give them access to EEs on the shop floor during the work day; and (2) give them lists of EE.' names/addresses. Shop-Floor Access - Evolution of the Rule: 1) Rationale: inequality of access: a) Example: an ER. w/ a valid NSR might break the rule by assembling EEs on company property during working hours to deliver an antiunion speech. The rule itself may be valid and the speech protected under

b.

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might feel disadvantaged w/out similar opportunity to address such a CAPTIVE AUDIENCE. 2) 3) Bonwit Teller v. NLRB (NLRB 1951) – p135C: ER's denial of union's request for equal time = ULP (confined to retail situation when ER. enforced broad but lawful NSR.) Livingston Shirt Co. (NLRB 1953) – p135C: NLRB departed from Bonwit rationale. a) In absence of either an unlawful broad NSR or a privileged NSR (broad, but not unlawful because of the character of the business), an ER does not commit a ULP if he makes a preelection speech on company time/premises to EEs and denies union's request for opportunity to reply. b) NLRB would require ER to grant equal time to U in retail and department store setting but not in manufacturing or wholesale enterprises. S CT’s Approach: Nutone & Avondale (US 1958) – p135: ER’s denial of equal time alone does note constitute an UPL. a) Denial of equal time will thus be presumed lawful and burden on GC to demonstrate that the union is seriously incapacitated from communication w/ EEs by other means. NLRB’s Approach: Peerless Plywood (NLRB 1953): NLRB announced a firm rule outlawing CAPTIVE AUDIENCE speeches on company time w/in a 24 hour period prior to election. a) Rationale: (1) mass psychology created by address; and (2) unfair advantage given to last speaker. b) Violation of rule results in election victory of speaker being set aside. c) The rule does not prohibit noncoercive speeches before 24 hour period, dissemination of other forms of propaganda even during 24 hour period, or delivery during that period of campaign speeches on/off company property if EEs' attendance is voluntary and on EEs' own time.

4)

5)

c.

EE Lists [see Excelsior Underwear Inc (NLRB 1966) – p137C: 1) Rule: within 7 days after the Regional Director has approved an election the ER must file an election eligibility list of voters which will made available to all eligible parties. 2) Rationale: a) Access is fundamental to free and fair election. b) Control of the election and steps necessary to conduct the election are entrusted to the NLRB c) EE are entitled to information to make a free choice. Where the ER has continued access to EEs and the union does not, the EEs will not be aware of the other point of view. d) Prompt disclosure will eliminate the necessity for challenges based on the lack of knowledge of the voter's identity. 3) The Brd reads Babcock and Nutone as looking to alternative channels only when the ER has a significant interest. 4) Even where there is a legitimate ER interest, that interest may be subordinated in limited situations where EEs interest in self-organization is substantial. Hypos: 1) Hypo#1 – p35Mats: Merit Co. has a department store and has a long-standing rule against solicitation on working time or in public areas while the store is open to the public and prohibiting any distribution of lit in working area. Co also has its property posted against solicitation by NON-EEs. The union launches a drive to organize the EEs and the ER periodically assembles the EEs to listen to anti-union messages and delivers a "captive audience" speech the day before the election. ER denies U access to speak to EEs. U loses election 95-85.

d.

12

a) b)

What should the union do? File an objection to the election alleging a Peerless Plywood violation and Livingston violation. Is there a violation of 8(a)(1)? If yes, how can this be squared with ER free speech guarantee in 8(c)? How can this be squared with S CT’s decision in Nutone and Avondale? Under Nutone and Avondale, the Brd will say it is discriminatory for the ER to deliver a speech and deny access to the U. This was approved in Livingstone Shirt Case. This fact scenario is different because it is not an industrial ER. Here there is a broad no solicitation rule which is more restrictive of U access. Bonwitt is not extended to industrial settings but is good law in the retail setting.

2)

??? Hypo #2- p35Mats: NLRB is considering adopting a rule, pursuant to § 6 which would provide that upon timely objection by the U, an election result will be set aside and a rerun election ordered when the ER, after the filing of the election petition, ER. assembles EEs and delivers antiunion speech on company time and has refused a timely U request for access to respond. Does the NLRB have the power to adopt such a rule? Would the rule be consistent with 8(c)? As a matter of policy, is such a rule desirable? a) Answer: (1) Practice impinges on General Shoe laboratory conditions - Brd has broad discretion but cannot adopt a rule on these facts because Hypo #3 – p36Mats: IWW has difficulty contacting EEs and has written to the company requesting that the co. give a list of EEs. Here there is no election agreement so Excelsior does not apply. ER refuses to give a list, IWW files 8(a)(1) complaint with NLRB. Based on Excelsior, frame an argument that will persuade the General Counsel that ER’s refusal to the IWW the requested list constitutes a violation. a) Answer: (1) Argue that ER has no legit interest in not providing the list therefore there is no impingement on the ER interest. (2) If U does not get the list, the EE could not make a free and reasoned choice, therefore they have a significant interest. (3) Argue for maximum EE exposure to all arguments to make a reasoned and free choice. (4) Under Excelsior, you give the list when the EE's manifest an interest. (5) Could you extend Excelsior to this case where the inability to get the info interferes with the EE choice.

3)

7.

Need to go through questions and notes on p31-33Mats.

B. The Board’s “Dormant” Rule-Making Power:

C. “Election Propaganda”: Threats, Misrepresentations, Inflammatory Appeals – 09/21/00 – 10/02/00: D. Interrogation and Polling – 10/02/00 – 10/03/00”

E. Promises and Benefits – 10/05/00 – 10/09/00: 1. DDD.

13

2. F.

DDD

DDD:

UNION INTERFERENCE WITH EMPLOYEE FREE CHOICE: A. Interference and Restraint [§ 8(b)(1)(A)] – 10/09/00 – 10/10/00: B. Organizational and Recognitional Picketing [§ 8(b)(7)]: 1. DDD 2. DDD. I. ER DOMINATION OR ASSISTANCE [ § 8(a)(2)]:

II. DISCRIMINATION [ §§ 8a3, (4); 8(b)(2)]: III. FREE CHOICE OF BARGAINING REPRESENTATIVES [ §§ 9(a); 8(a)(2), (5)]: A. Generally: 1. 2. 3. 4. Issue = how to determine whether this U is majority’s choice. What other non-NLRB election ways are there to establish majority support? When MUST ER recognize the U? When MAY ER recognize the U?

B. ER Recognition of Minority Union: 1. Generally a. Example of when ER CAN’T and MAY recognize and bargain with U. b. Example of recognition of a U when the U does not have majority support. Rule: a. Per se: it is a per se violation of 8a1 and 8a2 for an ER to recognize and bargain with a U which does not in fact have majority support [see Bernhard-Altman Texas Corp (U.S. 1961)]. b. Good faith irrelevant: there is a violation even if the ER recognizes the U in good faith that they have a majority and in fact they do not. c. Even though there is an air of negligence in these situation (ie ER was not careful - wanted to end strike so simply took U's word), negligence is not an important factor b/c it is a per se violation Rationale: a. Recognition of minority U deprived the majority of EEs their guaranteed right to choose. The fact that they gained majority later is not important. b. B/c ER recognized and granted U selected by a majority - violated section 7 rights, and therefore violation of 8a1 which prohibits ER interference. c. Also violation of 8(a)(2) b/c grant of exclusive bargaining is considered unlawful support. Remedy: a. The remedy is to require that the ER w/draw recognition of U until U has majority support though NLRB held election.

2.

3.

4.

14

b. 5.

If the ER has recognized the U and they have reached agreement @ the payment of dues and fees - jointly and severally liable to repay the U initiation fees and dues.

Exceptions when ER can recognize and bargain with minority union: a. Construction Industry: 1) 8(f) authorized in the construction industry the execution of an agreement w/ a minority U which requires membership in that U w/in 7 days. 2) These pre hire agreements allowed in the construction industry b/c: a) short duration of many jobs in the industry, and b) the common practice and need for ERs to rely on U hiring halls to supply skilled labor. b. Members only bargaining (very rare): ER, in any industry, is free but not compelled to bargain with a minority U on a “members only” basis – only with respect to EEs who are members of the U or otherwise authorize it to represent them.

C. Midwest Piping Doctrine – ER neutrality when there are 2 rival unions 1. Scenario: dealing w/ an unorganized, nonunion company; 2 rival Us actively trying to organize the works. a. Example of when ER MAY and when CAN’T recognize a U. Rule: a. In a rival U situation, once a valid election petition is filed and ER is notified of election petition, ER must remain strictly neutral and withhold its recognition until NLRB election [see Bruckner Nursing Home (NLRB 1982)]. 1) ER can express his preference for one U over another but cannot formally recognize either U. 2) The filing of a valid petition is the operative event for imposing strict ER neutrality in a real union situation. a) Valid = in order to file petition the rival union must have at least 30%. b) Check for other barriers to validity of petition (i.e., election year bar, certification year, etc.) 3) If no election petition filed, there is no 8(a)(2) violation if ER recognizes a labor organization which represent an un-coerced, unassisted majority. b. History of Rule – pre Bruckner Nursing Home: 1) 2) This was a dramatic change: There was a split b/w the NLRB and the APP CTS before Bruckner on when the duty of neutrality is triggered: a) NLRB’s approach: (1) Prior to Bruckner, NLRB had adopted expansive reading of Midwest Piping doctrine. (2) Focused on whether U had a colorable claim to majority support - did not care if U did in fact have an actual majority support. b) APP CTS’ approach: (1) Took a more narrow view of Midwest Piping, often reversing the NLRB's decision in this area. (2) Found actual majority support conclusive evidence. NLRB’s reasoning for shift in approach – need special rule in rival U scenario b/c of OVERLAP/DUAL CARD problem: a) Concession to APP CTS’ approach: NLRB has moved half way to the court's position on the issue of when the duty of neutrality is triggered – will it go further remains to be seen.

2.

3)

15

b)

c)

Problems with dual purpose cards in this situation: (1) Often employees sign two cards in support of unions – one U will claim 90 % and the other will claim 30 % of support from cards. (2) EEs signing dual cards could mean: (a) they changed their mind (b) want union but could care less which one (c) amenable person who will sign anything NLRB election more reliable: problems with dual cards supports the conclusion that authorization cards are very unreliable especially in the dual card situation; thus, probably better to have NLRB election – more reliable.

3.

Limitation: does not apply to incumbent U situation, particular to unorganized ER, rival union situation. a. Rule: Midwest Piping does not apply to incumbent union scenario where new union seeks recognition; thus, ER can continue to negotiate with incumbent union. b. Criticism of this limitation - Problems: 1) ER may manipulated the process. 2) ER can insure incumbent U has K before election - EEs will more likely vote for the incumbent union. 3) If ER does not like the incumbent U, ER will bargain hard and the incumbent U will go into the election at a disadvantage. 4) ER can influence outcome of the election. 5) Union may also influence the outcome by making concession to stay. c. Response to Critics: 1) Incumbency carries certain advantages 2) If we do not let ER deal with incumbent U, then we are favoring non-incumbent U. 3) There is public interest in stability of existing bargaining agreements.

D. When MUST ER recognize and bargain with a U – securing bargaining rights through ULP proceedings - non-election methods of establishing bargaining rep: 1. Ways to Obtain Representative Status: a. Three Accepted Ways: 1) Voluntary recognition: ER voluntarily recognizes union w/out formal certification. 2) NLRB Election: NLRB conducts election under section 9. 3) Bargaining Order: through ULP proceedings - typically 8a5 refusal to bargain. b. Rejected approaches: 1) U can establish majority via clear, unequivocal majority on authorization cards. a) NLRB has rejected b/c: 2) U can only establish majority via NLRB election: a) NLRB has reject b/c: (1) 9(a) uses alternative words (“designated or selected”) and the law become settled early that election was not the sole means. (2) Legislative History: Congress rejected an election only provision. NLRB v. Gissel (U.S. 1969): a. Facts: 1) U waged organizational campaign, obtained authorization cards from a majority of EEs in appropriate bargaining unit. 2) U demanded recognition from ER. 3) ER refused on basis that authorization cards were inherently unreliable indicators of EE desires. 4) ER committed ULPs. 5) NLRB order: ordered bargaining despite absence of election b/c union had obtained valid authorization cards from majority of EEs and ER's refusal to bargain in violation

2.

16

of 8a5 was not based on good faith doubt regarding union's majority status (inferable from ER's commission of ULPs). b. Issues: 1) Whether the duty to bargain can arise w/out NLRB election? 2) Whether union authorization cards, if obtained from majority of EEs w/out misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status? 3) Whether bargaining order is an appropriate and authorized remedy where ER rejects a card majority while at same time committing ULPs that tend to undermine the union's majority and make a fair election an unlikely possibility? Holding: 1) Whether the duty to bargain can arise w/out NLRB election? Yes. a) U does not have to be certified as winner of election to invoke bargaining obligation. b) U could establish majority status by other means under ULP provisions of 8a5 - by showing convincing support by: (1) Union-called strike, or (2) Strike vote, or (3) By possession of cards signed by a majority of EEs authorizing union to represent them for collective bargaining. c) ER can insist on secret ballot election unless ER engages in contemporaneous ULPs likely to destroy union's majority and seriously impeded the election. 2) Whether union authorization cards, if obtained from majority of EEs w/out misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status? Yes. a) Court finds that acknowledged superiority of election process doesn't mean that cards are rendered totally invalid. b) UNAMBIGUOUS, SINGLE PURPOSE CARDS: Supreme Court held that if the authorization card itself is unambiguous (on its face card says that signer authorizes union to represent EE for CB and not for an election), it will be counted unless it is proved that the EE was told that the card was to be used solely for the purpose of obtaining an election [rely on Cumberland Shoe Corp.???] c) DUAL PURPOSE CARDS: Court makes no decision as to validity or reliability of these cards. Whether bargaining order is an appropriate and authorized remedy where ER rejects a card majority while at same time committing ULPs that tend to undermine the union's majority and make a fair election an unlikely possibility? Yes. a) Yes, court order is appropriate.

c.

3)

3.

NLRB’s Approach to Authorization Cards: a. Joy Silk Doctrine: 1) Rule: ER could lawfully refuse to bargain w/ union claiming representative status through possession of authorization cards if ER had good faith doubt as to union's majority status. a) ER has burden of show good faith doubt. 2) Insist on Election: instead of bargaining, ER could insist that union seek an election. 3) Evidence of bad faith: NLRB could then find a lack of good faith doubt in 2 ways: a) Independent ULPs: ER's independent ULPs were evidence of bad faith showing ER seeking time to dissipate U's majority, or b) Implied bad faith: if ER came forward w/ no reasons for such doubt, bad faith inferred. b. Aaron Bros. Rule:

17

1) 2)

Modified Joy Silk Doctrine. Burden shifts to GC to prove bad faith: ER will be held to have violated his bargaining obligation by refusing to rely on cards as method for determining union's majority (ER no longer needed to come forward w/ reasons - but if ER's course of conduct indicated bad faith = violation.

c.

New Approach (announced at Gissel oral argument): 1) NLRB abandons Joy Silk. 2) ER's good faith doubt irrelevant: key to issuance of bargaining order is ER's commission of serious ULPs that interfere w/ election process and tend to preclude holding of fair election. a) ER can insist union go to an election regardless of his subjective motivation so long as he is not guilty of misconduct. 3) Independent knowledge: but ER could not refuse to bargain if he knew, through a personal poll for instance, that majority of EEs supported union, and ER could not refuse recognition initially because of questions as to appropriateness of bargaining unit and then later claim he doubted union's strength. 4) ??? Does Court accept this new approach? Single purpose authorization cards: 1) Rules a) An unambiguous single purpose card will be counted toward U majority “unless it is proved that the EE was told that the card was to be used solely for the purpose of obtaining election” [see Cumberland Shoe (NLRB 1964)]. (1) ??? But see Levi Strauss & Co. (NLRB 1968) (A card which only says that the signer wants an election will not be counted toward the required 30%). (2) NLRB will not probe EE’s subjective intent in signing card – test is what EE was told, not what he understood. (3) Test should not be applied mechanistically but look at totality of circumstances. (4) Limits of Cumberland are fairly expansive – NLRB will invalidate the cards (and not allow them to be counted toward majority) ONLY if NLRB finds that the “substance” of what the solicitor said, in the “totality of the circumstances,” fairly amounted to a representation that the card “will be used for no purpose other than to get an election.” Dual purpose authorization cards: 1) This type of card refers to both representation and election; the ambiguity is now on the face of the card instead of being ambiguous b/c of something that was said. 2) NLRB’s approach: dual purpose cards count toward majority b/c they do not represent that the card will be used only for to obtain an election. 3) APP CTS’ approach: cannot be counted, b/c inherently ambiguous @ worker intent. 4) S CT’s approach: not addressed dual purpose cards problem. Critics of using authorization cards to establish majority support: 1) Critics argue that cards are inherently unreliable but this is hard to reconcile with congressional intent (b/c Congress knew unions used cards to establish majority support when it enacted the NLRA).

d.

e.

f.

4.

When is a BO appropriate? a. Questionable Threshold Requirements: 1) 2) Request for recognition (this requires more than filing a petition for election – must specifically seek recognition from ER). Refusal to recognize or bargain in violation of 8a5 (unclear whether this is required):

18

a)

Gissel: in every one of the cases brought to the court in Gissel, the ER had refused to bargain, thus, the question was whether a Gissel order was appropriate even in the absence of a refusal to bargain? The answer is confusing. Steel Fab: (1) Rule: 8a5 violation not required to order Gissel BO b/c real purpose of Gissel BO is remedy the independent ULPs (not to remedy refusal to bargain). (2) Facts: ER refused to bargain (thus, violate 8a5), and committed serious 8a1 and 8a3 violations. (3) Holding: violations so egregious that B.O. should be given. (4) Reasoning: purpose of BO was to remedy the other violations, b/c under Gissel, the ER has a right not to recognize. Trading Port: (1) Rule: ER forfeits the right to refuse to bargain as soon as he commits an ULP. (2) Facts: ER refused to recognize and then committees other ULPs. (3) Holding: overrule Steel Fab. (4) Reasoning: CT found an 8a5 violation b/c the employer has a right to say no until he commits an ULP, and then he loses the right to refuse to recognize. (5) Impact: now it is not clear whether NLRB can issue a Gissel BO if there is no 8a5 violation, b/c court returns to finding 8a5 w/ refusal to recognize. ??? NLRB’s position post Trading Port: (1) Issue: whether after Trading Port, the NLRB can issue a Gissel BO w/out having to find an 8a5 violation. (2) NLRB’s approach: even absent 8a5 violation, NLRB can issue Gissel BO where the 8a1 and 8a3 violations are so serious. ??? Thus, if ER commits no ULPs and is never asked and therefore never refuses to bargain, U’s claim will be thrown out.

b)

c)

d)

e) b.

When ER commits independent ULPs: 1) Three categories: a) Category I - Outrageous and Pervasive ULPs: if coercive effects cannot be eliminated and a fair and reliable election is impossible, NLRB can order BO. (1) BO always appropriate. (2) No need to show majority support: U does not have to show majority support here. (3) *** Category I now rejected: NLRB does not have power to issue a nonmajority BO [see Gourmet Foods (NLRB 1984)]. (a) Holding: in Gourmet Foods, the NLRB held that if U has not achieved majority support on authorization cards, NLRB cannot issue BO. (b) Reason: i. Majority rule principle. ii. Policy of freedom of choice - do not want to impose a U on EEs who do no want it. (c) Dissent: says while freedom of choice is important, BO is appropriate in ULPs cases. (d) NLRB’s approach: NLRB now divided on whether it had the power to do what was done in Gissel. (e) APP CTS’ approach: disagree on meaning of Gourmet Foods.

19

(f) S CT’s approach: although S CT has not directly addressed Gourmet Foods, it seems to that it would allow non-majority BOs. (g) ??? Does Gourmet Foods get rid of Category I? b) Category II - Less exceptional and pervasive ULPs: making a fair election unlikely or having tendency to effect the election. (1) BO may be appropriate – up to discretion of ???? (2) U must show that at some point it had majority support: (a) U must either show it has majority support currently or that it lost majority support b/c of ER’s conduct. (b) This is how distinguished from Category I. (3) Some guidance: (a) Impetus: APP CTS noted wide inconsistencies in NLRB decisions and criticized NLRB they for failing to establish criteria defining when ER violations were serious enough to warrant BO – suggested the following: i. NLRB could use rulemaking power ii. Full NLRB could announce general principles in a particular case. iii. In each case, the NLRB could fully explain why it is issuing the BO. (b) NLRB’s majority response: stated that they could not lay down general standards in this area b/c too much factual variation. (c) NLRB’s dissenting response - hallmark violations [see General Stencils where NLRB Chairman Miller, in his dissent, suggested 3 types of actions that would support bargaining order]: i. Conferral of significant benefits during organizing campaign (e.g., Exchange Parts). ii. Repeated discriminatory acts in violation of 8a3. iii. Repeated serious threats regarding job security (not suggested by Miller (d) Note: NLRB has tacitly followed Miller’s approach although never formally adopted this approach (e.g., Jamaica Towing holding that a "hallmark violations" is always sufficient to grant BO). (e) APP CTS’ approach: “hallmark violations” are not always grounds for BO; instead have to look at totality of circumstances approach to be employed on case by case basis. c) Category III - Minor or less extensive ULPs: (1) If ER’s conduct had no or little impact on the election, BO not appropriate. 2) ??? Timing of impact of ER’s conduct: a) Point of reference: point in time in which NLRB or CT focuses on probability of fairness of an election is an important factor: (1) Do you look at impact of ER’s conduct at time they occurred? (2) When complaint was initially filed (3) When ALJ reviews the case? (4) When the NLRB reviews Problems with intervening passage of time: (1) Could have complete change in workforce (employee turnover, management turnover). (2) If make decision from time when ULPs committed, then this involves making a predictive judgment.

b)

20

c) d)

??? NLRB’s position: look at impact of ULPs at time of first occurrence (when they were first committed). ??? APP CT’s position: generally, APP CTS consider totality of circumstance which includes the passage of time and anything in the interim which may have occurred - mitigating/aggravating factors.

3)

Difficult to determine when and whether an ER’s conduct makes a fair election improbable. a) Thus, many APP CTS refuse to enforce Gissel BO saying the NLRB failed to offer any concrete standard by which to judge the ER’s conduct.

5.

??? Retroactivity: a. Generally: 1) Problem with no retroactivity rule: if there is no incumbent U, ER gets windfall for period of time during which U’s complaint is going through NLRB process. If there is a refusal to bargain under 8a5: 1) After Trading Post, BO is retroactive. 2) Reasoning: a) The BO is not only a remedy for 8a1 and 8a3 violations, but for an 8a5 violation as well. b) The 8a5 violation occurs when employer violates 8a1 and 8a3. At this point he forfeits the right to require election, and the duty to recognize and the duty to bargain begin. c) In this situation - the ALJ bargaining order is retroactive if the union asked and refused recognition w/ majority cards to the time when the employer committed the ULP and the duty arose. If there is NO a refusal to bargain under 8a5: 1) NLRB’s approach: BO is still retroactive. 2) 3d Cir’s approach: BO is still retroactive. 3) 8th Cir’s approach: BO is NOT retroactive.

b.

c.

6.

Hypos: a. Hypo #1: 1) Facts: Bryn Mawr Widget employs 100 production and delivery EEs In late Aug., IWW began organization campaign. Company aware and on 9/1, leading EE IWW supporter fired w/out explanation. At same time, company supervisors interrogated EEs regarding U sympathies. By 9/15, IWW had obtained valid authorization cards from majority of EEs. Because of company's anti-unionism, IWW did not request recognition but instead petitioned directly for an election. NLRB ordered election. Before election, other incidents of EE interrogation and speech by Prez ("Plant may not remain open if IWW comes in") - IWW lost - IWW filed charges (8a1, 8a3, 8a5). While complaint pending, company implemented a plan made prior to commencement of IWW campaign and terminated delivery operation - contracted out to independent contractor at a substantial saving to company - 15 delivery EEs fired. 2) Question #1 - Did Company violate 8a5? a) Answer: No. (1) B/c IWW never requested recognition - must be at least have been a request. (2) Petition for election is not the same thing as request for recognition - not assertion of right to immediate recognition - no 8a5 violation. Question #2 - Can NLRB issue Gissel bargaining order? a) Answer: Probably.

3)

21

(1) Preliminary question = is bargaining order an appropriate remedy in absence of a refusal to bargain? No, have to have refusal. (2) Is BO appropriate remedy in absence of 8a5 violation? Yes, NLRB can issue Gissel BO absent 8a5 violation if it fits one of the 3 categories below [see Trading Port which overruled Inland Steel]: (a) Outrageous, pervasive ER conduct making it impossible to have fair election. (b) Less exception but still pervasive conduct making fair election unlikely – U must show majority support at one time. (c) Minimal effects case – BO probably inappropriate. (3) Are there any “hallmark violations”? 4) ??? Question #3 - Was the termination of the delivery operation and the consequent discharge of the delivery EEs lawful? a) Answer: (1) Difficult to show 8a1 or 8a3 violation b/c this seems to be an economically motivated decision. (2) GC argues that, based on Trading Port, ER is guilty of 8a5 violation prior to contracting out work - duty to recognize union b/c once ER commits ULP, forfeits such right - refusal to recognize becomes unlawful - from that point on duty to bargain initiated - any unilateral changes thereafter unlawful. (3) RETROACTIVE BARGAINING ORDERS - retroactive to time where ER unlawfully refuses to bargain. (4) But our ER didn't refuse to bargain (he was never asked): NLRB says retroactivity still applies but APP CTS are in conflict.

7.

Post-Gissel: a. Initially, Gissel was regarded as a major victory for unions; now, NLRB is reading it more restrictively. b. Now to get BO, U must demonstrate that it is clearly necessary on facts of case (no other remedy will do) to issue BO b/c election is impossible. c. This is clearly not the type of deference the S CT intended in its decision.

E. Independent Knowledge: 1. Rule: If ER has committed no ULPs, ER is free to refuse to bargain and to insist upon an election unless he has independent knowledge of majority support [see Linden Lumber (U.S. 1974)]. a. Union has burden of filing election petition. Examples of independent knowledge: a. Card count = independent knowledge. 1) Example: ER confronted w/ union demand, gets 3rd party to count and verify, and states that if there is a majority I will recognize. 2) Rule: sufficient to constitute independent knowledge (ER committed himself and cannot renege by later requesting card count). Struknes poll = independent knowledge: 1) Example: ER receives 15 out of 20 cards, then does his own count through a poll and 15 out of 20 vote for union. 2) Rule: properly conducted Struknes poll may be sufficient. 3) Rationale: by holding secret ballot poll the employer has simply duplicated a NLRB election and has eliminated all pressure. 4) Warning: may want to advise ER not to conduct one of these b/c one easy to violate 8a1 (?) and also may bind ER later by showing he had independent knowledge.

2.

b.

22

c. d.

??? Voluntary recognition: Picketing EEs: 1) Rule: picketing does not effectively establish independent knowledge b/c reasons for picketing not just for support of union - there may be fear and other reasons. Signed Petitions and Oral Statements in Support of Union by EEs: 1) Example: 15 out of 20 go to employer, state we did sign cards, we support the union. 2) Rule: signed petition or oral statement from majority is not sufficient to be independent knowledge. 3) Rationale: still problems of peer pressure, aren't really saying anything different from when they signed the cards.

e.

3.

Rationale: a. Many NLRB members and APP CTS favor NLRB elections. b. Thus if ER has committed no ULPs, he should have right to say no and to force NLRB election. c. But is this consistent with congressional intent: it seems like NLRB is reading NLRA to require elections when in fact Congress reject that idea in rejection certain Taf-Hartley election only provisions. Summary of rule - ER is free to refuse to bargain UNLESS: a. ER taints the election process by committing ULPs (remedy = Gissel BO), or b. ER has independent knowledge, or c. ER voluntarily commits himself to majority representation.

4.

F.

Duration of Representative’s Authority: 1. Generally: a. How can ER terminate U’s representative status? b. How can EEs terminate U’s representative status? Decertification petition c. How can other Us terminate an incumbent U’s representative status? Rival election petitions Certification year rule: a. b. Generally: 1) NLRB-made rule, not in statute. Rule: an incumbent U is conclusively presumed to have majority support for one year following its certification date [see Brooks v. NLRB (U.S. 1954)]. 1) Requirements for application: a) Applies ONLY if U wins the election. b) Applies ONLY to NLRB elections and certifications - does not apply if ER recognizes U voluntarily or from employer poll. 2) Purpose: guarantees the U a chance to obtain collective bargaining agreement. 3) Effect of rule: a) Suspends EE free choice. b) NLRB will not accept any rival U election petitions during this period. c) ER cannot withdrawal even if has reasonable doubt during this period. After one year – rebuttal presumption: 1) Rule: upon the expiration of the certification year, the presumption of majority status continues, but it becomes rebuttable. 2) Rebuttable: therefore, ER has a duty to bargain unless ER is able to rebut - to rebut, ER must affirmatively establish: a) that U has in fact, lost majority support; or

2.

c.

23

b)

that the ER has a good-faith, reasonable doubt that U has lost majority support. (1) asserted doubt must be based on objective considerations; and (2) it must not have been advanced for the purpose of gaining time to undermine the U. (3) Evidentiary standard: (a) NLRB’ approach: ER must show doubt by preponderance of the evidence. (b) APP CTS’ approach: ER must show doubt by clear, cogent and convincing evidence. (c) Does Allentown change this?

d.

Distinguish from election year rule: 1) Applies regardless of the election outcome. 2) Runs from date of election Non-certified, voluntarily recognized U: there is a presumption of majority support for a reasonable period of time. 1) Can be 11 months - usually less than a year.

e.

3.

What constitutes good faith reasonable doubt? a. b. Reasonable = objectively grounded reasonable doubt. ??? Struknes poll: 1) NLRB’s approach: does not permit reasonable doubt to be based on a Struknes poll. a) Rationale: b/c would be similar to permitting actual decertification election without fully establishing reasonable objective doubt. b) ER can only rebut presumption with objective doubt, cannot create evidence of majority discontent. 2) APP CTS’ approach: allow some polling. Discontented EEs: 1) Close-call: depends how many EE s express discontent with union language and how they express their discontent. Non-Striking EEs: 1) Not enough to provide reasonable doubt b/c EEs’ reasons for ceasing to strike or electing not to strike at all may have nothing to do with union support. 2) Although this is fairly well settled rule, Allentown makes it questionable. New EEs: 1) There is a presumption that new EEs desire union representation in the same percentage as existing EEs. 2) Mere attrition of EEs is not enough to create doubt. Replacement workers: 1) There is NO PRESUMPTION either way about replacement workers [see Curtin Matheson (U.S. 1990) confirming Buckley Broadcasting]. a) Practical Effect: same as a pro-union presumption b/c ER still has burden of convincing NLRB of anti-union sentiment of replacements. 2) Rationale: a) If there were an anti-union presumption, then ER would just have to hire enough replacements to get the numbers right. b) This would be contrary to the statute’s policy of industrial peace. 3) History of presumption: a) Old = anti-union presumption. b) Revised = pro-union presumption c) Buckley Broadcasting = no presumption.

c.

d.

e.

f.

24

g.

Status of striking EEs 1) Striking EEs are still EEs under the statute unless find substantial equivalent employment. 2) Thus, are counted toward majority in the unit. 3) Thus, have voting rights.

4.

Impact of Allentown (U.S. 1998): a. Background: 1) Unitary standard for all ways ER can try to get rid of U = ER must show good faith reasonable doubt about majority support (such that it would lead a reasonable mind to affirmatively believe that the U lacked majority support): a) Withdrawal recognition. b) Petition NLRB for election. c) Struknes poll. 2) Criticism: many argue that having same standard for all 3 was: a) Too stringent in application – effectively required ER to show lack of majority support in fact. b) No incentive to poll (NLRB’s response = polling is inherently disruptive). c) Non-sensical to have same standard. d) 2d Cir sets different standard: Held - Unitary standard for all 3 is acceptable. New definition: 1) Scalia alters reasonable doubt standard: doubt = uncertainty. a) NLRB’s old approach: ER must show objective info which would lead a reasonable mind to affirmatively believe that the U lacked majority support. b) Scalia’s approach: ER must show objective info which would lead reasonable mind to be uncertain about majority support. 2) Dissent: argues that NLRB was not applying doubt in dictionary sense, and this was legal, therefore CT should defer to the NLRB. Impact: 1) Disgruntled EEs: a) Under old NLRB approach, these would have been discounted. b) Now, under Scalia’s approach, an accumulation of disgruntled EEs may lead one to infer doubt (8 th and 9 th Cir. would follow). 2) Now, ERs can use general statements by EEs about other EEs. 3) Calls into question the presumption about strike-breakers and non-strikers. 4) Calls into question the presumption about permanent replacements. a) Seems to tacitly overturn Curtin Matheson (where Scalia wrote the dissent). Open question: should NLRB change the reasonable doubt standard – they are currently considering this question and taking their time.

b. c.

d.

e.

PART II. THE NLRB REPRESENTATION PROCESS Generally: 1. § 9 – Representatives and Elections: 2.

25

A. Initiating the Process: 1. Process begins w/ filing of election petition w/ Regional Office: a. RM Petition: 9(c)(1)(B) authorizes ER confronted w/ union claim for recognition to petition NLRB for election. b. RD Petition: (9)(c)(1)(A)(ii) provides that EEs in a unit represented by an incumbent union may file a petition to decertify union as unit's bargaining rep. c. RC Petition: most commonly, process begins w/ filing of petition by union seeking to represent EEs in unit under 9(c)(1)(A)(i). Whenever petition filed, NLRB addresses 2 questions: a. Whether “a question of representation affecting commerce” exists in AN “unit appropriate for the purposes of collective bargaining”; AND 1) To answer this, NLRB must determine: a) NLRB must determine whether ER's business is one "affecting commerce," (and thus w/in NLRA’s statutory jurisdiction); AND whether ER's business meets discretionary limitations imposed by NLRB. (1) To make this determination, NLRB will send ER "Commerce Questionnaire." (2) If ER refuses to provide info, NLRB will presume jurisdictional requirements are met (RD can also use subpoena power). b) NLRB must determine whether petitioner has made adequate showing of interest to show "real question" re: representation exists. (1) Under 9(c)(1)(A), RD/RC petitions must have a substantial # of EEs (30%). (a) In U petitions, 30% showing usually made by signed authorization cards regional office gets EE list (Not an EXCELSIOR LIST) and checks cards against it – ER cannot see this. (2) Under RM petition, one or more unions must have asserted claim for recognition. (3) NOTE: 8(b)(7) "expedited election" dispenses w/ showing of interest where ER files charge thereunder. If so, whether the NLRB should conduct an election to resolve that question.

2.

b. 3.

If parties contest the investigations, the Regional Office will conduct a HEARING where the following will be decided: a. NLRB jurisdiction. b. Appropriate bargaining unit. c. Eligibility of voters. Regional DIR will decide whether to order an election (there is some question as to when these decisions are subject to review by the NLRB) Regional Office will arrange and hold the election. If election is contested, Regional DIR will pass on the objections.

4. 5. 6.

B. Rules Barring Elections: 1. Generally: even if case w/in NLRB jurisdiction, and petitioner makes requisite showing of interest, there are a number of other rules which may bar holding of election and require stay/dismissal of petition. Election Year Bar:

2.

26

a. b. c. 3. 4. 5.

9(c)(3) bars NLRB from directing an election in a bargaining unit or subdivision thereof in which a valid election has been held in preceding 12 months. If applicable, requires dismissal of petition. It applies even if petitioning union was not a party to prior election.

The Certification Year Rule: see above The Voluntary Recognition Bar: see above. The Blocking Charge Rule: a. Pending ULPs charges which might affect the result of an election will "block" the holding of an election until ULPs resolved. b. Effect: NLRB will stay proceedings. c. Waiver: charging party may waive this protection rule by filing request to proceed w/ NLRB. 1) However, it cannot later use the ULP charge as basis for setting aside election if that party loses. 2) BUT if election set aside for other reasons, NLRB will consider all ULPs in determining whether Gissel bargaining order appropriate. The Contract Bar Rule: a. In the absence of unusual circumstances, when ER and incumbent union have entered into CBA for a fixed term, the NLRB will not entertain an election petition in the unit during the term of the agreement, up to a maximum of 3 years. 1) Impact: a) If CBA has term longer than 3 years, after 3 years, rival Us and EEs can file RD/RC petitions. b) If CBA has term longer than 3 years, after 3 years, ER still cannot file RM petition – has to wait until end of CBA term. 2) Open Period: an election petition can properly be filed in the “open period” from 90 to 60 days prior to the termination of the previous CBA [see Deluxe Metal Furniture (1958)] a) Refinement of rule: any election petition filed more than 90 days prior to expiration of agreement will be dismissed, a petition properly filed in "open period" from 90 to 60 days prior to termination will be processed. If no petition filed during open period, NLRB will not process any petition filed during final 60 days of K term. 3) Final 60 days: NLRB will not process any petition filed w/in 60 days of the CBA term in order to give parties fair opp to arrive at new agreement. a) If agreement is reached, this meets requirements of K bar rule. b) If no agreement is reached upon termination, petition may be filed anytime prior to new CBA. b. c. Rationale: promote industrial stability and a necessity for giving CB process a fair opp to work. Unusual circumstances: where CBA term is greater than 3 years. 1) New U wants new CBA: if K bar ceases to apply and rival U wins new election (even if old CBA is still in effect), ER must statutorily bargain with new representation. a) This is not an agency relationship. b) More like political process. c) Old CBA is destabilizing instrument b/c EEs will strike if ER does not bargain. 2) New U wants to keep old CBA: if K bar ceases to apply and rival U wins new election (even if old CBA is still in effect), ER MAY NOT force new U to bargain – U can sit on old K until its termination. a) CBA is stabilizing instrument. 3) See American Seating (NLRB 1953 – p269C): K of unreasonable duration may not bar full statutory collective bargaining including reduction to writing of any agreement

6.

27

reached, as to any group of EEs in an appropriate unit covered by such K, upon certification of new CB representative for them. C. The Appropriate Bargaining Unit: 1. Appropriate Unit Rules in General: a. Crucial determination: NLRB must determine the appropriate CB unit to assure EEs the fullest freedom in the exercise of their § 7 rights – will determine whether NLRB grants petition and election outcome. Petitioning party must designate in its petition the unit sought – usually U – U will push for largest unit it thinks it can win. This issue not frequently disputed - CONSENT ELECTION AGREEMENTS. AN Appropriate Unit (NOT the MOST appropriate unit). Hearing: where unit is in dispute - 9c requires NLRB to conduct hearing and make determination. 1) U usually pushing for relatively small and narrow unit. 2) ER usually pushing for relatively large and broad unit. Appellate Review 1) NLRB has great discretion. 2) Reviewing courts will give great deference. 3) Once NLRB decision made - rarely disturbed by reviewing court - and then only if found to be "so unreasonable and arbitrary as to exceed" NLRB's power.

b. c. d. e.

f.

2.

Community Interest Standard: a. Involves determining whether EEs in unit have substantially similar interests with respect to wages, benefits, hours and other conditions of employment so as to form a cohesive group. b. Multi-factor test in which no single factor has controlling weight: 1) similarity in scale/manner of determining earnings; 2) similarity in employment benefits, hours of work, other terms/conditions of employment; 3) similarity in kind of work performed; 4) similarity in qualifications, skills, training of EEs; 5) frequency of contact/interchange among EEs; 6) geographic proximity; 7) continuity/integration of production processes; 8) common supervision/determination of labor relations policy; 9) history of CB; 10) desires of affected EEs 11) extent of union organization. c. Seemingly unreviewable. ??? Hospitals: NLRB did not want undue proliferation of units in hospitals – set limit at 8. a. Rationale: b. See American Hospital Ass’n v. NLRB (US 1991) – p277C. 1) Rule: 8 and ONLY 8 units shall ever be appropriate in any hospital. 2) Exception: a) Cases that present exceptional circumstances – applies automatically to hospitals in which the 8 unit rule will produce a unit of 5 or fewer EEs. b) Cases where non-conforming units already exist. c) Cases where labor orgs seek to combine two or more of the 8 specified units.

3.

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3) 4) 4.

Rationale: less units would be unorganizable. Note: only time NLRB has used its rule-making function in this area.

Statutory Limitations in Board Unit Determinations: a. Four express statutory limits – p136Mats: 1) 9b: professional EEs. 2) 9b: craft unit. 3) 9b: guards. 4) 9c5: extent to which EEs have organized shall not be controlling. b. Exclusions from EE definition: SUPERVISORS are excluded from EE definition as are MANAGERIAL EEs (those who are in position to formulate, determine and effectuate management policies) and CONFIDENTIAL EEs (assist and act in confidential capacity to persons who formulate, determine and effectual management policies in field of labor relations). Some Specific Problems: a. Multi-Location ERs –p138Mats: 1) Rule: organization of single location presumptively constitutes an appropriate unit [see Chicago Health & Tennis Clubs, Inc. (7th Cir. 1978) cert denied – p283C. a) Burden is on opposing party to rebut presumption by demonstrate unit inappropriate. b) APP CTs’ Approach: APP CTs have agreed with NLRB about presumption but there has been much debate about what is sufficient to rebut the presumption. Rebutting the Presumption: a) ER’s interest: CT in talks about “respecting the interest of an integrated multi-unit ER in maintaining enterprise-wide labor relations” BUT nothing in NLRA says anything about considering the ER’s interest. b) Indicators that single location is appropriate bargain unit: (1) Lack of geographic proximity of stores in relation to one another. (2) History of CB/unionization in that industry. (3) Lack of EE interchange b/w stores. (4) Lack of functional integration of operations. (5) Lack of centralization of management (especially re: labor policies). c) Indicators that single location is NOT appropriate bargain unit: (1) Geographic proximity of stores in relation to one another. (2) History or pattern of CB/unionization in that industry shows no single location organization. (3) Strong EE interchange b/w stores. (4) High functional integration of operations. (5) Lack of any local managerial authority. (6) Centralization of management (especially re: personnel/labor relations policies) – argue that their operations are so centralized and integrated (particularly regarding personnel/labor relations policies), that the single plant has been effectively merged into a more comprehensive unit so as to have lost its individual identity. Underlying consideration – 9(c)(5): a) 9(c)(5) prohibits NLRB from considering as controlling the extent to which EEs have organized (see statutory limitations above). b) Problem: this is mostly unenforceable b/c on review, NLRB will say it was NOT controlling factor. c) Thus, when courts think NLRB is treating extent of organization as controlling can overturn BUT now S CT has said APP CT must remand to NLRB to state its

5.

2)

3)

29

reasons – effect is that NLRB can almost always justify its decision on community of interest grounds (and thus 9(c)(5) is practically ineffective). b. Multi-ER Bargaining: 1) Generally: a) Multi-ER bargaining usually conducted through ER ass'n is extremely common. b) An ER ass'n bargaining on behalf of ER members could itself be considered a statutory ER. c) In determining whether such a unit is appropriate, NLRB considers: (1) ER's participation for substantial period of time in joint bargaining negotiations; and (2) ER’s consistent adoption of agreements resulting therefrom. d) Multi-ER units can only be created by consent of the parties (express consent or actual practice). Arguments for – p289-292C: Arguments Against – p289-292C: Withdrawal from the Ass’n a) A party (U or ER) can ordinarily w/draw from an existing multi-ER. unit only by giving written notice of its intention to do so prior to the date set for beginning negotiations or actual commencement of negotiations. b) Untimely w/drawl permitted by: (1) Mutual consent of parties; OR (2) Unusual circumstances – what constitutes: (a) ER subject to extreme financial pressure. (b) Bargaining unit became substantially fragmented. (c) Impasse is NOT an unusual circumstance - only a temporary deadlock/hiatus in negotiations - not sufficiently destructive of group bargaining to justify unilateral w/drawl [see Bonanno Linen Services v. NLRB (US 1982) – p292C].

2) 3) 4)

D. Judicial Review of Board Decisions in Representation Cases: 1. No Statutory Mechanism for Direct Judicial Review of NLRB Orders in Representation Decisions Under § 9: a. Direct review for ULP decisions: under 10(f), APP CTS get judicial review of "final order" of ULP cases - NO statutory mechanism for judicial review of representation proceedings under § 9 in DIS CTS. b. Indirect judicial review of representation cases is possible under 9d when a NLRB decision in a ULP case is based in whole or in part upon a NLRB decision in a representation case - the underlying representation decision may be reviewed on appeal of the final order in ULP proceeding – seemingly only helps ERs. c. Rationale: why such a limited and cumbersome mode of review? preventing disruption of NLRBs election process. d. Effect: U cannot seek judicial review of representation decision – see Leedom for exception Leedom Exception for Unions: a. Rule according to Leedom v. Kyne (US 1958) – p304C and modifications: 1) DIS CTS will be able to review a representation issue w/out the ER/U first having to obtain a final order if: a) There are no alternative means to obtain judicial review (ER will always have alternative means), AND

2.

30

b. c. 3.

Party alleges violation of a specific statutory prohibition in the NLRA, AND Issue is pure question of statutory interpretation or law (not a factual question) [this requirement was added by Boire v. Greyhound Corp (US 1964) – p309]. Application: in Leedom, NLRB insisted on mixing professional and non-professional EEs in same unit in express violation of 9b1 – but would this be purely a factual question. ??? What does MCorp add?

b) c)

Application to ERs: a. Initially, it was thought Leedom exception would NOT apply to ERs b/c ERs have adequate statutory route of judicial review available (even if it is convoluted and not available until after the election) b. However, this is OPEN QUESTION after Boire and Board of Governors of the Federal Reserve System v. MCorp Financial Inc. (US 1991) – p144Mats.. c. alternative means of ??? Constitutional Questions: a. Pre-Boire: DIS CT could exercise jurisdiction if it was a colorable constitutional claim. b. Post-Boire: seems that Leedom jurisdiction is limited to questions of law, thus constitutional right violations based on factual determinations won’t be reviewable. Rule for Church Affiliated Schools a. Rule: generally, teachers in church-affiliated schools are not covered by NLRA (other EEs might be). b. Rationale: have to construe statute to avoid constitutional issues if possible. c. Exception: however, teachers may be within coverage of state labor relation statutes.

4.

5.

PART III. THE COLLECTIVE BARGAINING PROCESS

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