Labor Law Legal Law School Outline by JohnMValentine


									Introduction I. General Information A. Employers are covered 1. employers must engage directly or indirectly in interstate commerce 2. to an extent exceeding certain prescribed dollar minima a. p. 94 of book - lists amounts for different businesses (retail concerns: $500,000 or more) 3. sect. 2.2 of NLRA lists employers excluded 4. S. Ct. added secondary schools run by Catholic church 5. Big category: public employers- federal, state, etc… B. Employees covered 1. sect. 2.3 lists those excluded a. agricultural laborers (i) interpreted narrowly by board- ―integral‖ part of farming before products marketed through normal channels (ii) this meaning excludes workers who slaughter, package, etc… b. independent contractor c. supervisors (i) any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them…(p. 98) (ii) may unionize, but employer doesn’t have to deal with them as employees for the purpose of the NLRA d. managers (i) full time faculty at large private university e. confidential employee II. NLRA A. General 1. does not provide substantive rights 2. these terms of employment are to be bargained out through collective bargaining by the parties (wages, hrs, benefits, working conditions, etc) 3. in theory, provides process by which: a. workers can decide whether or not to bargain collectively b. governs weapons parties can use against each other B. policies 1. employee free choice (by majority rule) 2. free collective bargaining 3. industrial peace C. procedure 1. the charge a. can be filed by anyone, in the office for the region b. investigation takes place—interviews of those involved c. most complaints are disposed of here, but if not, a formal complaint is filed (i) by General counsel, or (ii) delegated regional directors (all cases except those involving novel and complex issues) 2. issue complaint a. board may petition for injunctive relief (10(j)) b. draft complaint (then employer drafts answer) 3. hearing in front of administrative law judge – who makes ruling 4. may appeal ruling to board- must petition in writing to argue orally in front of board 5. decision is usually made by panel of 3 judges D. effect 1. board orders carry no sanctions 2. to secure compliance, board must file petition in federal court of appeals


3. ―we will uphold a board rule as long as it is rational and consistent with the act…even if we would have formulated a different rule had we sat on the board‖ – NLRB v. Curtin Matheson Scientific Inc . E. Preemption of state law- Supremacy clause of Const generally preempts state regulation of matters w/I the NLRA F. ultimately a question of congressional intent (because Congress has not expressly spoken, this is mostly an issue of judicial interpretation that is not always consistent) 1. Garmon preemption2. State regulation of activity that is either arguably protected by sect. 7 or arguably prohibited as an unfair labor practice by sect. 8 is generally preempted unless 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.‖ San Diego Building Trades Council v. Garmon. a. Peripheral concern/local interest = conduct involving violence or imminent threats to the public order—employer confronted with union violence or mass picketing may have recourse to state court for injunctive relief b. extended to permit at least limited state regulation of other kinds of intentionally tortious conduct—such as malicious defamation or emotional distress c. NOTE: if conduct is actually protected by the statute, state is preempted totally— courts, admin agencies, etc, even if purporting to apply federal law (exception only applies when activity is arguably protected) 3. Machinist preemption (more recent) a. even activity that is neither arguably protected nor arguably prohibited by the federal statute may nevertheless be exempt from state regulation Metropolitan Life Ins Co. b. fact that NLRA doesn’t regulate some Union or ER conduct may indicated Congress ―meant to leave these activities unregulated and to be controlled by free play of economic forced. c. ex. process of free bargaining—NLRB can’t dictate terms to parties or sit in judgment of substantive terms of agreement (i) precludes state interference with union’s partial strike, even though such conduct is neither protected nor prohibited d. LIMIT: does not preclude state enforcement of minimum labor standard of general applicability because they affect union and nonunion employees equally, and neither encourage nor discourage the collective bargaining processes that are the subject of the NLRA 4. 301 preemption- don’t have to know


Historical Background—the common law A. Philadelphia Cordwainers 1. ―turn out strike‖ - a combination of workmen strike to raise their wages may be considered from a 2 fold point of view: one is to benefit themselves, the other to injure those who do not join their society. The rule of law condemns both. 2. Reason: means- court appears troubled that employees could group together to with hold labor B. Commonwealth v. Hunt (overrules Cordwainers) 1. no criminal conspiracy - purpose of closed shop: to give union strong lobbying power with employer 2. means: with holding of labor a. everyone has right to with hold own labor b. seems people to group together to do the same 3. ends: if successful, strikers will probably inflict injury on other workers—this is ok, because they are acting in their best interest 4. result: battle shifts to civil arena C. Vegelahn (p. 14) 2

court holds that combination of employees picketing for higher wages is unlawful because of the means used 2. if the means is unlawful, then the activity is enjoined 3. why is unlawful? Here it is threat of violence, etc… D. Plant v. Woods (p. 20) 1. organizational strike- union threatened to strike if employer did not make closed shop a. union wanted employer to force current workers to become union members 2. court focuses on purpose (objective) 3. ―Conduct by one union which threatens to act to the economic detriment of an ER who employs members of a rival union is unlawful. 4. NY approach: civil rights 1. means- if means are socially permissible, then that stops the inquiry 2. objectives- courts do not have any business examining NLRA Protecting the employees’ right of free choice


PART 1: I.

Employer Interference, Restraint, or Coercion A. Statute: Unfair labor practices 1. § 8(a)(1): it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 2. § 7: employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in § 8(a)(3). 3. Section 8 sets out limits on employers a. (1) is broad b. (2)-(5) are narrow, but a violation of one of these provisions is also a violation of (1) c. counsel should charge primary violation of section 2-5, and derivative violation of 1 d. independent violation of 1: violation that does not involve other sections (i) ex. Babcock (p. 11 materials) To give effect to Section 8(a)(1) to protect the right to join a Union, NLBR has emphasized the need to preserve EE’s free choice! a. Not clear what this means i. EE’s must not be physically intimidated in deciding to support union 1. no choice under this circumstance would be ―free‖ ii. EE’s should be allowed to make a reasoned choice. reasoned choice implies 1. EE’s should have access to relevant info 2. use data to estimate probable consequences if U is selected/rejected 3. should appraise consequences in light of their own preferences and desires to determine whether a vote for the union promises to promote or impair their self interest. iii. EE’s should be free from restrictions which unduly obstruct flow of relevant info 1. including misrepresentations 2. threats which distort their assessment of consequences of unionization, and 3. acts of retribution which would penalize them for having exercised the choice guaranteed to them under NLRA



Republic Aviation Corp. (p. 114)—Restrictions on solicitation and distribution 1. Facts: ER adopted prior to union organizing a general rule against soliciting. ―Soliciting of any type cannot be permitted in the factory or offices‖ – was a broad no solicitation rule. ER fired 4 EE’s – 1. 1 fired for violating soliciting rule by distributing union membership application cards 2. 3 others fired for wearing Union buttons before any union was recognized 3

2. 3.

Holding: SC agreed w/ NLRB who found ―no solicitation‖ rule violated 8a1 b/c it restrained, coerced, and interefered w/ EE’s §7 rights. Also, discriminated against discharged EE’s under 8(a)(3) b/c such action discourages union membership. 1. no solicitation rule: employees were entirely deprived of their normal right to full freedom of association in the plant on their own time, the very time and place uniquely appropriate and almost solely available to them therefor. Employer’s rule is in clear derogation of the rights of employees buttons: the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity and the employer’s curtailment of that right is clearly violation of act notes - 8a1 cannot be interpreted literally b/c would prohibit ER from doing anything! 2.

4. I.

Peyton Packing rule: (fn 10, p. 118) A. ER can prohibit union solicitation during work hours, and such a rule must be presumed valid in the absence of evidence it was adopted for a discriminatory purpose. 1. However, outside of working hours, whether before/after work or during lunch or breaks, an EE can use his time as he wants w/o unreasonable restraint. a) So, an ER can prohibit solicitation during working hours as long as there was no discriminatory purpose. Called. ―A NARROW‖ no-solicitation rule.

II. Solicitation Rules - balance tips in favor of ER during working time. A. Broad No-soliciation rule is presumptively invalid! 1. A broad rule is a violation of NLRA, unless evidence of special circumstances making the rule necessary in order to maintain production or discipline (a) Time outside working hours is EE’s time to use as he wishes without unreasonable restraint B. Such a rule is violation unless evidence of special circumstances making the rule necessary in order to maintain production or discipline C. Narrow no- solicitation rule is presumptively valid: 1. must be no evidence of discrimatory purpose (Anti-Union purpose) a) NLRA does not prevent an employer form making and enforcing reasonable rules covering the conduct of employees on company time. (a) Working time is for work! It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. b) HYPO: U charges unfair labor practice, ER raises presumption of validity of narrow no-soliciation rule. Q: What does Board do? (1) Board looks to timing of ER action! (a) timing alone can overcome presumption of validity, UNLESS employer can show changed circumstances (Decline in productivity led to rule) (2) So, once UNION challenges presumption of validity, shifting of burden! ER must come forward w/ affirmative evidence showing legitimate purpose! Our Way Inc : 1. ―Working time‖ – presumptively valid b/c EE’s will understand this to mean when they specifically have to be working. 2. ―Working hours‖ not presumptively valid b/c EE’s could think this means just when they have to be on premesis. a. Dissent: both ambiguous and can mislead EE’s! Burden should be on ER to say what is prohibited and what is permitted! Retail Establishment Exception to Republic Aviation 1. Broad Rule against solicitation while public is present is presumptively valid! (no soliciting by union during store hours) 2. Concerned w/ appearance and interference w/ business, disruptions, customer traffic. 3. Court says retailers are different and this justifies a broader NS rule. 4


Does not extend to parking lots, restrooms, entrances/exits

Hospital Rule: Beth Israel Hospital 1. Although Board requires ER’s to permit EE solicitation on union matters during non-working time, it allows hospital bans in working areas strictly devoted to patient care. 2. Solicitation must be permitted in other areas such as lounges and cafeterias open to visitors and patients ―absent a showing that disruption to patient care would result if solicitation were permitted in those areas.‖ a. applies to oral solicitation and wearing of insignia 1. does board differentiate based on type of solicitation? united fund case- sharply divided board beneficent purpose- ok, but limited dissent- notes that union solicitation is protected by a federal statute, but beneficent purpose is not intra-employee generosity: the restaurant case (employee on off time solicits employee at counter for 5 minutes while place is empty) -- rule: to find discrimination on basis of presumptively valid statute, must find that the nature of the solicitation has substantially equivalent potential to disrupt work holding: intra-employee generosity seldom creates discrimination because of morale, not same disruptive potential as union solicitation Work Uniform rule (Burger King case): 1. Inherent in uniform rules is uniformity, and buttons detracts from that 2. So, in retail setting, there are circumstances where ER’s relationship w/ public takes precedence. 3. board- takes on case by case basis 4. employer must make a special –affirmative—showing that uniform negatively impacts public image that ER seeks to protect. Literature, not oral or buttons soliciting 1. Can ER argue that his interests are heavier here? a. Could argue that theres potential for litter, wasting time by reading b. U could argue EE’s could read at home i. Stoddard RULE 1. ER may enforce broad NS rule of union literature in working areas, but not in non-working areas a. Some argue ER has interest in preventing litter, but he could vindicate w/ no litter rule. Could be enforced w/o impinging on rights of workers. Hill Hypo: (No-Access or Non-Access Rule) 1. Essential preliminary question is if Joe Hill is an EE or a non-EE a. If he is EE, than ER loses! (He’s not on working time, and EE’s in caf aren’t either!) b. If he’s non-EE, than U loses (Union has to meet burden to show they are ―unable to reach group of workers through reasonable methods of alternative channels of communication) i. Very heavy burden for U to meet. 2. Courts now say he is NOT AN EE if he is off-duty a. Some reasons i. 1) Non-EE is a stranger who is trespassing! 1. could be a safety risk ii. 2) ER can FIRE an EE – ER has power over an EE through discipline, but not over strangers. So, ER has degree of control over EE. 3. Board limits this rule to NO ACCESS RULES which prohibit EE’s from coming back (off-duty) into interior or outdoor working areas. (doesn’t apply to parking lots)



Babcock & Wilcox:
--ER refused to allow distribution of union literature on employer parking lot holding: it is our judgment that an employer may validly post his property against non-employee distribution of union literature if: a. reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message, AND b. if the employer’s notice or order does not discriminate against the union by allowing other distribution accessibility test: if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property


Narrow reading: Stands for precise rule: Organizing union has no right of access to ER’s property unless it can demonstrate it can’t reach EE’s by ―reasonable efforts…through other available channels of communications.

2. Broader reading: When Organization and Property rights clash, ―Acommodation between the 2 must be obtained with as little destruction of one as is consistent w/ the maintenance of the other.  Historically, NLRB and courts read Babcock and Wilcox as requiring alternative channels test in every case o Unions have not fared well, since union has burden of demonstrating unavailability of reasonable alternative channels.  Union has been able to gain access only in instances where all/substantial portion of work force lived as well as worked on ER’s premises (lumber camps, oil rigs, mining camps, ski resorts)

B. Hudgens (SC) – Court failed to refer to alternative channels test. Cited broad proposition of Bab/Wil that ―basic objective‖ in access cases must be ―Accommodation of §7 rights and private property rights of ERs, w/ as little destruction of one as is consistent w/ the other. C. Jean Country (p. 18 materials) 1. U seeks access to large shopping mall, open to public, to picket retail store to inform public that store was nonunion. 2. Board holds ER’s exclusion violated §8a1. 3. Board said: ―In all access cases our essential concern is degree of impairment of the private prop right if access should be granted. We view consideration of availability of reasonably effective alternative means as especially significant in this balancing process. 4. --exceptional case where the use of newspapers, radio, and tv will be feasible alternative means to direct contact 5. 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 6. board interprets Jean Country as multi-factor balancing test—rejected in Lechmere Lechmere (p. 122) 1. Facts: U is trying to organize EE’s of Lechmere stores. U reps put things on cars in parking lot owned by Lechmere. Lech removed handbills and requested that organizers leave property and grassy strip across froms tore 2. Holding: NonEE union organizaers have the right of access to ER’s prop only when inaccessibility of EE’s makes reasonable attempts to communicate w/ EE’s ineffective. 3. Thomas says ―EE’s here dindt’ live on prop and weren’t inaccessible, so Babcock rule didn’t apply‖ So, the Ct took a NARROW view of Babcock & Wilcox. TEST 1) If the union can’t make showing of lack of alternative reasonable channels, it loses  If union CAN make this showing… 6

 We move onto step 2 – balancing the rights in hutchins! (ER’s property interests v. EE’s §7 rights to hear the union’s message!) 4. NLRA confers rights only on employee, not on unions or their non-employee organizers‖ a. union’s rights are derivative rights (derivative of employees rights) 5. holding: access to employees, not success in winning them over, is the critical issue a. even though this was a big city, there were other means available—advertising, phone calls, signs b. note: who would they have to reach? Public at large? Potential shoppers?Not said. 6. on remand: a. NLRB affirmed part of Lechmere holding that Lechmere violated §8(a)(1) by ordering non-employee organizers to leave public area adjacent to mall

Difficulties of U’s ―alternative channels‖  Mass media - High costs of advertising, no guarantee intended audience sees ads  Identify EE’s individually and contact them o Impossible – labor intensive, time consuming o Some EE’s will refuse to talk in home, not thinking about work, wants to be left alone Sparks Casino (p. 31) - union posts 2 representatives in private street at rear entrance to distribute handbills about substandard wages, benefits, working conditions—urging boycott 1. Has Sparks violated 8a1? 2. ER: ―We don’t have to get into alternative channels b/c there is no right of access here period!‖ 3. Thomas in Babcock & Wilcox – ―Right of access is NOT for union… it’s right of EE to have free organization, which depends on being able to hear union’s message! 4. msg is for EE’s, NOT FOR UNIONS TO GET TO PUBLIC THEIR MESSAGE! 5. So, here ER will say msg is intended for public, not an attempt to communicate w/ EE’s, so no derivative right, so no need to get into alternative channels. 6. U: You have a STRONGER right than in Letchmere/Babcock! 7. U argues that statute guarantees right to apply pressure to ER in course of collective bargaining! This implicates right to bargain collectively! 8. 9th circuit- Babcock is narrow, confined to that situation – therefore, no right of access for U here.

But there are 3 differeing views of how this works! 1. 9th cir: No right of access, even in absence of alternative channels, except for organization purposes. 2. Dissent – Broader right of access when union is relying on direct statutory rights instead of derivative statutory rights 3. Board/Other Cts of appeals: Letchmere/bab/wil apply across the board! Always apply Alternative channel standard no matter what Union’s purpose may be.  Doesn’t matter if U rights are derivative/direct! Salting: 1. unions try to skirt Lechmere by getting union people hired and then organizing from within 2. ER cannot discriminate against ―Salts‖ when hiring – it is an 8(a)(3) violation. 3. NLRA prohibits discrimination against ―EEs‖ 4. EE’s must include job applicants, since otherwise, the statutory prohibition of ―discrimination in regard to hire‖ would ―serve no function‖. 5. SC agreed in ―Town & Country electric‖ II. Captive Audience-


A. ER, through his possession of EE names/home addresses and ability to communicate w/ EE’s on plant, is assured of continuing opportunity to inform EE’s of his views about Union. B. But U doesn’t have same abilities! C. U organizers don’t have right to plant presesis D. EEs are limited in soliciting Excelsior Rule– Requirement that within 7 days after Regional Director has approved an election, ER must file w/ Regional Director an election elgibility list w/ names & addresses of all elgible voters. Regional director will make info available to all parties in the case.  employer’s legitimate interest in privacy is outweighed by substantial public interest in favor of disclosure where it is a key factor in insuring a fair and free election Failure to comply w/ this rule is grounds to set aside election. This will reduce challenges by U during election. --ER has no significant interest in secrecy fo EE names/addy.s --EE has right to hear both sides --We want free and fair elections. Note: Addresses come late in process. Most of U’s work is done prior to union petition being filed. Note: in order to get an election, union has to have 30% of workers on cards—how does it do that if it doesn’t know who the employees are? Note: If we were to allow access to names/addresses all the time, union always has alternative means, and Lechmere/babcock problems go away! Peerless Plywood Rule: If either party holds a captive audience speech (to workers assembled on ER’s working time) w/I 24 hours of election, grounds for setting election aside and ordering a new election.  A sound truck outside ER on day of election to yell U support violates Peerless Plywood Rule.  if election starts at 11AM on Friday Morn, ER can talk to EE’s up to 10:59AM on Thursday morn. Note: ER is NOT guilty of Unfair labor practices if violates Peerless Plywood Rule Policy: Board wants fair/informed elections. We can’t reach perfect lab conditions, but that is objective – to have a free, sober, informed election. Board is concerned w/ inequality of access.

Bonwit Teller - Board held ER’s denial of request to allow union to make speech was unfair labor practice. The ER was held to violate §7 right of EE’s to hear both sides of story  The §8(c) rule against speech as evidence was bypassed b/c it was not treating the speech as the unlawful activity, but the ER’s denying union equal time. Livingston Shirt: 1. newly appointed board departed from Bonwit 1. section 8(c) forbade the conditioning of the exercise of the employer’s right to speak non-coercively upon its willingness to afford the union comparable time and setting Livingston Shirt: ―We rule that, in absence of either unlawful broad no-solicitation rule (prohibiting union access to ER premises on other than working time), or a privileged no-solicitation rule (broad, but not unlawful b/c its retail business), ER does not commit unfair labor practice if he makes pre-election speech on company time/premises to EE’s and denies U’s request for opportunity to reply. -Thought U had other solicitation methods that were equal! 2. 3.  refuses to extend Bonwit to industrial situation with lawful, narrow non-solicitation rule expanded in boards decision in Nutone

How do these 2 cases work together? 8


Livingston shirt: industrial setting (Factory Bonwit Teller: Department store.  - in a dept store, Board allows Broad Non-Solicitation rules, so Union is already cut back! So, if you make a non-threatening Union speech and deny union access… o in industrial setting, ER can lawfully enforce no-soliciation rules and deny union access, even if he is discriminating in his own favor. o in Retail setting, you would violate 8a1!

o o

Frankenfurter said we must look at ―Actualities of industrial relations in the particular case‖ to see if ―Glaring imbalances in reaching members.‖ Note: if board were to make a rule pursuant to §6 that they can order new election after captive audience speech and refusal to let union respond…..  8(c) only applies in Unfair Labor Practice Proceedings. It does NOT apply in Election Rule (here!). Nutone and Avondale (p. 135) 1. ―Taft Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it‖ 2. ―denial of equal time will thus ordinarily be presumed lawful and the burden will be upon the General Counsel to demonstrate that the union is seriously incapacitated from communicating with the employees by other means‖ 3. Ct said if result could be different if the no-solicitation rules truly ―dimished the ability of the labor organizations involved to carry their message to the EE’s.‖ A. Kalin Construction--the paycheck case (p. 4 supplement) 1. employer gave 2 versions of paycheck in envelopes to employees within Peerless 24 hour period prior to election- one showed pay without union, one with union 2. Rule: prohibits changes in paycheck process for the purpose of influencing employees vote in the election during 24 hour period before scheduled election (including time of election- ends at closing of polls) 3. Result: will set aside election upon: a. filing of valid objections, and b. no showing by employer that change was motivated by legitimate business reason unrelated to election -------------------III. Board’s Dormant Rule-Making power (p. 37 materials) A. § 6 of NLRA confers on NLRB the authority to promulgate, in manner proscribed by APA, rules necessary to carry out the provisions of the act 1. Not used to make substantive rules until 19892. Board has elected to develop law under quasi judicial powers of §10, instead of ―quasi-legislative‖ under §6. 3. used to do this to prevent problems of constitutional rule-making issues (delegation of legislative power)

Q: Is board ever obligated to make rule through APA formal, rather than adjucated case? 1. Wyman-Gordon- challenge to Excelsior rule. 2. S.Ct.- odd handling of case a. 6 justices agreed Excelsior rule was invalid because NLRB had not adopted it through formal rule-making procedures b. 5 said if rule was invalidated for that reason, could not be validated through subsequent orders c. But, 7 justices agreed that rule was validly enforceable in election proceedings subsequent to Excelsior d. Ironic Result: Board triumphed, even though its 2 legal theories were rejected. 2. Bell Aerospace- involved Board revising definition of managerial EE’s for purposes of NLRA (managerial EE’s can’t be include in bargaining unit.) 9


―Board is not precluded from announcing new principles in an adjudicative proceeding and that choice btw/ rule-making and adjudication lies w/I Board’s discretion.‖ f. Result: SC does think sometimes Board may be obligated to adopt rules only through rule-making, but here, gave little guidance!

IV. Election Propaganda – Threats, Misrepresentations, Inflamatory Appeals THREATS A. NLRA: § 8(c): The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. 1. note: statute concerned with the imbalance of power between employer and employee B. General Shoe (p. 147) 1. board held that it could order setting aside of election results, even if the employers actions do not rise to an unfair labor practice, b/c 8(c) only speaks to Boar’s use of speech/literature in UFP proceedings leading to remedial order. 2. ―conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice‖ 3. Laboratory conditions: a. ―in election proceedings, it is the boards function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees‖ C. Dal-Tex Optical (p. 148) 1. Election victory for ER set aside, and Sec 8(a)(1) violations found, based on ER’s threats and promises of benefit. 2. Just before election, ER makes speech: 3. lists employee benefits he has already conferred, asks if they want to gamble losing them a. bargain from scratch: will have to bargain with the union on a cold-blooded basis (i) ―you could come out with a lot less than you have now‖ (ii) ―so what will probably happen is the union will call a strike‖ (iii) employer will replace strikers 4. Board: Speeches contained illegal threats to impose economic loss and reprisals; created a fear that if U won there would be strikes that would cause loss fo employment… 5. COERSIVE, not protected by 8(c), and thus U.L.P. BARGAIN FROM SCRATCH RULE: per se rule: threat to bargain from scratch is per-se violation of 8(a)(1) – means the election results will be set aside (dal-tex) 6. Limit: threat to bargain from scratch is NOT unlawful if ER makes it clear that reductions in wages/benefits would have to be result of the bargaining. (International Paper) D. Gissell (SC, p. 15 in casenotes book) 1. employer speech/pamphlets said…
a. recounted past strike and negative results, company still on thin ice, union’s only weapon is strike, and strike could lead to the closing of the plant, laid off workers would have trouble finding new employment, look around town to see many closed businesses, ―no hopes that union will not call strike



HOLDING 3. ER’s right to free speech guaranteed by 8(c) must be balanced against fact that EE’s are economically dependent on ER’s, and therefore, more likely to interpret pronouncements by ER as threats. 4. Thus, ER’s right to freely communicate his view about union to EE’s is qualified: must not contain threats of reprisal or force or promise of benefit. ER may make prediction as to effects he thinks Unionizing will have, but the prediction must be carefully phrased on the basis of (1) objective fact to convey his belief as to (2) demonstrably provable consequences (3) beyond his control, or, to convey management decision already arrived at to close the plant in case of unionization. 6. anything beyond this loses 1st amend protection. 7. Sincere belief that plant might close if unionizing is not enough – must be objective proof.


problems: p. 152 1. employer makes speech: I do not like unions, I do not think you need one, unions have large fees that will come out of your checks… a. Cannon- should be protected – it is general statement about unions, not a specific union 2. same speech, plus employer fires employee with bad work record. Union files charge that employee was fired discriminatorily. Union wants to admit evidence of employer speech as proof of anti-union animus a. Cannon- judge must determine if speech is threat or not (i) if threat- not protected and would be admitted, b/c violation of 8(a)(1) (ii) no threat- protected and not admitted into evidence for unfair labor practice charge (but could be used in murder case. b. S.Ct. has never addressed —circuits split (i) 6th cir- 8(c) permits use of evidence of protected speech as background evidence of animus (ii) 2d cir- 8c is flat prohibition (iii) board will allow speech into evidence

Hypo: ER gives anti union speech, then fires Mr. Smith. U files ULP, but not 8a3…just allege 8a1 violation. ALJ must ASK : 1) IS IT RELEVANT? 8a1 involves effect, not motivation 2) Does fact of firing union organizer make it more probable the EE’s would view speech as threat? LOOK TO TOTALITY OF CIRCUMSTANCES! : ―contains‖ of 8(c) is NOT to be read as just w/I 4 corners of speech… Board can look to totality of circumstances, and can find speech/writing which is normally protected can be threatening. (Virginia Power and Electric‖

Hypo: employer distributes written reasons to vote no union a. paragraph 2- if tough bargaining, union can strike- ―just you try not to join it‖- employer can hire permanent replacements and employees will lose money… (i) examine for factual correctness: (A) employer can hire permanent replacements- on one to one basis (B) employees will probably lose earnings b. board position: read statements as a whole to determine if threat (i) in this case: I will take a position to virtually insure that a strike will happen and then I will replace you Hypo: ER predictions of what others (union and customers) will do a. apply Gissell standard- predictions must be based on objective fact and demonstrably probable consequences—2 prong test b. employer ―expressly informed by 2 principal customers‖ that they will cease buying from themmaybe objective facts c. ―if we were struck, every account of any substance would desert us…cutback in production…perhaps closing of plant‖ (i) some boards- say this is an example of something so obviously true the employer should not have to point to objective facts (ii) general statements- can’t really apply Gissell FACTUAL MISREPRESENTATIONS (lying, fraud) We used to have the Hollywood Ceramics Test… 1. Hollywood Ceramics- election set aside if: a. Truth: misrepresentation or other similar trickery, which involves a substantial departure from the truth b. timing: at a time which prevents the other party or parties from making an effective reply c. deliberate: so that misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election 11

-Test was complicated, - gave an incentive to litigate (if you lose just try to find misrepresentations to win!) - ER could delay commencement of collective bargaining by raising litigation. De-Regulation argument: Workers don’t need protection, they can figure out propaganda for themselves! --also, voting is done by feelings anyway, nobody listens to propaganda. --Criticism: Even if many already know, a large swing % can have their minds changed! They are influenced! P. 30 NOTES – all empirical evidence. 2. empirical study: a. numbers say that nobody listens to campaign propaganda (of course, there are some weaknesses to the study) b. 81% of people say they know what way they will vote—87% of those do vote that way c. employees only remember 10% of employer themes of election, 7% of union themes d. criticism- most union elections decided by less than 13% e. note: in public sector employment -unions win 85% of elections (i) this means either private sector employers are doing something to affect votes or (ii) even when virtually unopposed (no rival union) unions still lose 15% of elections E. Midland Nat’l Life (board’s most recent and last word, p 16 casenotes) 3. Facts: Right before election, ER gave out campaign literature w/ paychecks, showing abandoned facility saying due to union striking. It was misleading and untrue! 4. Holding: Except in circumstances where party engages in extremely deceptive campaign practices, union representation campaign statements are not reviewable by NLRB 5. meaning board will no longer look into truth of propoganda and wont set aside elections based on misleading/dishonest statements. 6. got rid of old Hollywood ceramics test – Midland 2 step process: 1) If document clearly states who is distributing (ER or U), not basis for setting aside election 2) If document doesn’t state its source, we must consider whether it will mislead workers to believe its coming from Board! EXCEPTION: FORGERY! Board will intervene if forged documents render voters unable to recognize it for what it is. Note: Note: Only 1st cir does not recognize Midland National. It does a case by case basis. Model mix between Political and corporate elections (Still unique from both though)

E. 24 hour rule:?? 1. proposed (?) 24 hour rule: NLRB will set aside election where the prevailing party has, within 24 hours before the opening of the polls, circulated a substantial misstatement of fact that bears upon a significant campaign issue and that is likely to have influenced the election outcome

INFLAMMATORY APPEALS Sewell MFG (p. 169) generally, NLRB has the responsibility to insure that the voters have the opportunity of exercising a reasoned, untrammeled choice regarding unionization, and to conduct elections in which employees cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise, free not only form interference, restraint, or coercion violative of the act, but also from other elements which prevent or impede a reasoned choice race: minor or isolated references to race might have to be tolerated, prejudice based on color is a powerful emotional force and a deliberate appeal to such prejudice is not intended or 12 1.


calculated to encourage reasoning faculty…NLRB will not tolerate statements that can have no purpose except to inflame the racial feelings of voter in the election 3. test: some statements with racial overtones are tolerated if: a. temperate in tone (lots of room for subjective analysis) b. germane (relevant to some issue in this work situation) c. and factually accurate (could be objective criteria) 4. Burden of proof: on party making use of a racial message to establish that it was truthful and germane, and where there is doubt it will be resolved against him.

It’s really a 2 Step Process: 1) Is it in fact an appeal to racial bias? (Ill-will, hatred, animosity?) (is this a sewell racial appeal?) (replaces temperate in tone) 2) If YES, than burden shifts to party to show it is factually true, and germane/relevant. Some circuits say must be a dominant theme, not just casual, in overall campaign. Others say can be any racial-inflamatory issues. (3d circuit) Case Farms: Mexican not inflammatory racial statements to breed ill-will, but were relevant to legit EE interest – group solidarity! F. Sewell under midland: 1. X corp in Pa. –65% of workers Hispanic American. Last week before election union distributes pamphlet saying employer anti-Hispanic american (first fired, paid less, etc.) Union wins election by narrow margin. Employer lodges Sewell complaint. 2. Employer proves he is not guilty of discrimination 3. Union flunks the factually correct standard 4. Union would argue: appeal not inflammatory, it is germane to interests of Hispanic employees—a call to ethnic solidarity a. note: if we can convince the board to characterize it this way, then it is examined under midland b. all that remains is the untruthfulness, and this will not usually cause it to flunk midland 5. result: board has set another requirement for raciallly inflammatory speech: must be more than one occasion a. EXCEPT in 3d cir.- one discrete instance is enough to overturn


Interrogation and Polling:

Lorben (p. 17 in casenotes) – 2d cir 1. Facts: Lorben, an ER, subsequent to a strike, distributed a paper asking EE’s whether or not they wanted Union representation. 2. Holding: ER interrogation of EE’s is not coercive or intimidating on its face. Here, no 8a1 violation. 3. Whether interrogation interferes w/ , restrains, or co-erces EE’s must be fond in record as whole. ( 4. ER’s background, history of discrimimation, could info be used for reprisals, ranking in company heiarchy of questioner, method of interrogation – formal atmosphere, or boss’s office? 5. 1. board adopts altered version of Blue Flash-look at totality of circumstances a. background—is there history of employer hostility and discrimination b. nature of information sought (i) did the interrogator appear to be seeking information on which to base taking action against individual employees c. identity of the questioner (i) how high is he on the company hierarchy d. place and method of interrogation (i) was employee called from work to the boss’s office? (ii) Was there an atmosphere of unnatural formality? e. truthfulness of employee response- do they fear repercussions


Struksnes (p. 18 )—employer polling of employees 2. facts: union demands recognition. Employer conducts survey- does not give assurances, does not explain purpose 3. Holding: ER polling regarding desire for Union representation violates § 8(a)(1) unless: 1. poll’s purpose is to verify union’s claim of majority 2. this purpose is explained 3. assurances against reprisals are given 4. polling is by secret ballot 5. ER has not created coersive atmosphere/ULPs So, not secret ballot is per-se 8a1 violation. Note: board and courts- any employer surveillance is per se violation of 8 (a)(1) a. when employer conveys impression that he is conducting surveillance, that is coercive—even where employees don’t know (i) obvious lack of employer legitimate interest (ii) Cannon thinks interrogation worse than surveillance because it has greater impact on employees rights and choices

note: poll taken while a petition for a board election is pending does not serve any legitimate interest of the employer that would not be better served by the forthcoming election—therefore such polls violate section8 (a)(1) IN CONCLUSION: board distinguishes between cases involving employers comprehensive polling of large groups and the nonanonymous questioning of individual employees a. large group—Struksness applies b. individual—board asks whether the individual (or onlookers) would reasonably feel coerced under all the circumstances --apply Blue Flash- look to totality of circumstances


Promises and Benefits A. Exchange Parts (p. 19) SC –conferral of economic benefits on employee 1. facts: representation election, employer promises employees a. ―union can’t put any of those things in your envelope—only the company can do that.. it won’t take a union to get additional improvements in the future‖ 2. issue: Does the conferral of EE benefits while rep election is pending, for purpose of inducingEE’s to vote against union, interfere w/ right to organize? holding: a. 8(a)(1) prohibits 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 FIST INSIDE THE VELVET GLOVE! - Threats are inherent in a benfit, b/c no matter how permanent the benefits are, the threat is ―if you don’t do what I want now, we won’t be so forthcoming in the future!‖  Threatening and coersive effect! - employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged a. note: danger may be diminished if benefits are conferred permanently and unconditionally (not controlling) Note: 8a1 normally doesn’t turn on intent, but here, INTENT is crucial! What ER does is unlawful if EE’s turn against union. B. Board’s says: ER should act consistently to past practices! Maintain status quo. 1. employer should act as he would if union not in picture, and no election impending. The smoking gun is: ANTI-UNION PURPOSE by ER. Even if ambiguous, and you show you met w/ counsel and did it, it will establish not anti-union purpose.


Bd/Ct – Once showing is made, burden to ER to show legit business purpose of raise/benefits having nothing to do w/ union activity. C. hypo 1. 2. 3. election pending. Employer makes no statement, he just confers benefits and says I’m giving these benefits employer has evidence of his intent, therefore the burden is on him once employee shows timing of benefits and anti-union feeling of employer- then burden shifts to employer to show a neutral reason for the benefit a. past practice b. labor shortage c. high turnover, etc… courts of appeals- where the employer consults a lawyer and is advised to go ahead with conferring benefits, this shows good faith. No violation.


D. hypo 2 1. union organization. Employer goes around interviewing small groups of employees – takes notes, but says it can’t promise positive change. Election, union loses. What result? 2. Logical inference: ER will correct the problems! EE’s think That’s why they’re asking! 3. Q; Does disclaimer affect outcome? a. no- employer is required by law to make the disclaimer, so employee might think employer is going to still give benefit b. board- inconsistent on this point (i) some say- disclaimer doesn’t negate the implied promise (ii) 6th cir: clear and unequivocal disclaimer rebuts implied promises.


Union Interference with employee free choice
A. NLRA § 8(b)- describes unfair labor practices committed by unions 1. structured much the same way as 8(a) 2. omits the words ―interfere with‖- but no cases have turned on this omission 3. Note: 8b1 is much narrower than 8a1 4. One big difference: ER cannot express hope it can raise wages/improve working conditions if U is defeated, U can argue ―if enough EE’s join, we can get raises, whereas if you don’t, you can’t get raises‖

1) Interference and Restraint – 8(b)(1)(A) Violations by U: a. violence-employer in position of power over employee, union not, but might threaten violence (i) only includes violence aimed at influencing employees choice b. threat of retaliation- against employer if union wins election  Speech in front of store telling audience that U was going to organize and ―wives and children better get outta way or they’ll get hurt‖  U president’s warning to rival U supporters not to come to work, saying there would be trouble now, or if other EE’s didn’t sign dues checkoff Savair (p. 184) – SC - vote buying 1. union offers to waive union fees for employees who sign up before election 2. board- no need to set aside election a. thinks employee not influenced by union promise of waiver (because employee doesn’t have to pay regardless of who wins) b. employee who does not sign has motive to vote against union to avoid paying fee S.Ct.- reverses a. moral obligation Theory(i) employee who receives financial benefit might feel obligated to vote for union, obliged to carry through on their stated intention to vote b. bandwagon Theory15


―Paints a false portrait of employee support to other EE’s‖ – (ii) by showing cards to employees, might influence other employee to join the trend

other concerns… c. even if employee doesn’t have to pay initiation fee, might have to pay dues in future (i) some employees who would feel obliged to carry through on their stated intention to support the union having signed recognition slips d. may fear wrathful union (i) failure to sign recognition slip may seem ominous to nin-unionists who fear that if they do not sign they will face a wrathful union regime, should the union win (iii) Rule: Board/Ct holds U can make waiver offer (of dues/initiation fees) as long as offer is open for a significant period of time after election. -- evil of vote buying not present- as long as offer is open for ―reasonable period‖ after election a. this period is usually the amount of time until first contract negotiated --So, U’s can get around Savoir by keeping offer open until after bargaining. After-Party?  No Bandwagon, since nobody is signing up  No moral obligation theory, b/c EE’s aren’t being asked to do anything prior to election. No linkage between pre-election commitment and promised benefit a. Benefits…how substantial? 1. examples: a. windbreaker case- board held the $16.00 windbreaker was a sufficient financial inducement b. t-shirt- not significant c. t-shirt and hat- closer to t-shirt that windbreaker (i) 6th cir.- approves of t-shirt, but disapproves of t-shirt and hat d. party(i) 5th cir- substantial enough to influence (ii) 4th cir- agrees with board position- must be some ―linkage‖ between benefit and preelection commitment e. cash(i) board- implies monetary benefits are different (ii) to be objectionable, union’s offer must be related to pre-election support (Savair) or influencing a specific employees vote 2. test: is the benefit sufficiently valuable to influence employee vote (viewed from employees perspective)

VIII. Organizational and Recognitional Picketing (8(b)(7)
1. 2. organizational- require employee to become member of union recognitional- pressure on employer to recognize union 3. despite distinction- these words are used interchangeably

A. general inquiry under NLRA - 4 steps 1. first step: is there picketing? a. what is picketing? not defined in statute. (objective of all picketing is to invite people not to deal w/ ER (customers not to shop, EE’s not to work) b. courts hammer it out— (i) clearly picketing: # of people, walking, carrying signs (in proximity to employers place of business) (ii) clearly not (?): union takes out tv ads


essence of picketing: (i) personal confrontation (ii) audience must associate message with picketing person d. handbilling alone – not picketing --Congress said 8b4 for publicity other than picketing! It means handbilling. (i) leaflet can be discarded (ii) First Amendment Concerns – Picking is not ―Pure‖ speech, but it’s ―Speech Plus‖ (iii) traditional picketing: calls for immediate action 2. 3. second step: is the union uncertified? third step: is this recognitional/organizational picketing? (What is the picketing For?) a. turns on the state of mind of pickets b. recognition only has to be AN object of the picketing - not the exclusive object c. ―area wages‖(i) union argues that employer pays lower than area standards, so they have unfair advantage and will cause other union employees to lose jobs (ii) some view this as essentially achieving through picketing what union would achieve through collective bargaining (recognitional) (iii) Overall, just wanting to organize and thus picketing is not unlawful…must be organizational/recontitional REASON for picketing! Relevant evidence: what’s on the signs!



fourth step: Not all recognitional picketing is unlawful!!! Only prevents if it fits w/I 8b7 A, B, C a) – picketing unlawful where another labor organization was lawfull recognized --for labor and industrial peace, ER must have lawfull recognized incumbent union! U can say ―unlawful!‖ to defend. b) picketing unlawful where board election conducted in past 12 months. (9(c)(3) time in between elections) A and B passed so ER and EE are entitled to immunity fro picketing during period of lawful recognition. --Blinne c) C provides that even fi not barred by A or B, rec/org picketing is limited to reasonable period not exceeding 30 days unless representation petition is filed prior to expiration of that period. Proviso 1 – board can hold expedited election to stop picketing -C is more of a pro-election policy than anti-picketing!

Blinne Construction (p. 615) - NLRB 1. two prong test: a. what was the union’s objective motive (question of fact) (i) determine purpose- whatever it takes to make the union stop picketing b. is that object recognitional (matter of law) 2. this case overrules the Lewis food holding: fn. 29- ―Implicit in that holding was the broader proposition that any strike or picketing in support of a demand which could be made through the process of collective bargaining was a strike or picketing for recognition or bargaining.‖ 3. holding: protest picketing and area standards are not recognitional picketing under NLRA

B. HYPOS C. Union trying to organize, pickets for 6 weeks, truck drivers honor picket and company gets no supplies. Jones store is going bankrupt. D. Here, NO evidence of recognitional object! NO 8b7 violation!


E. Union can picket here indefinitely (forever!) – doesn’t matter how much economic injury it causes, picket wasn’t violating 8b7, so we don’t have to get to the proviso! Even the 2 nd proviso! F. –Crown Cafeteria Case, board LOCAL 3 case, 2nd cir -Union Picketing which is ―for the purpose of truthfully advising the public‖ is lawful, but Union picketing whose tactical purpose is to signal economic action backed by organized group discipline is unlawful. ―Signal Picketing‖ – Picketing towards 3rd party EE’s or unions, not meant to inform general public to apply ―Spontaneous public pressure‖ to ER. In local 3 case, 1. Union was picketing, not public, but only where deliveries were going 2. Proviso is meant to protect Union’s right to inform PUBLIC AT LARGE 3. not intended to allow organized labor groups to impose economics sanctions on ER RULE - Court said even if the effect doesn’t happen, just the signal picketing going on excludes protection from proviso. RULE – It’s OBJECTIVE test – doesn’t turn on intent! Even fi you didn’t intend signal picketing, and it happens, right to picket is cut off! Rules: If Union pickets for 30 days and files for election on 30th day, it is lawful and did not violate 8b7c. --Board can thus picket until election is held. Note: Reasonable time: picketing can go on for reasonable time- statute gives outer limit, but does not otherwise limit 1. board approach: 30 days outer limit, therefore 30 days probably reasonable 2. BUT- there have been cases where 10 days was unreasonable 3. Factors to consider: a. actual economic impact on business(i) board has found this to be relevant, especially in cases where employer deal in perishable commodities b. nature of picketing(i) prolonged violence could effect employees free choice

Note: effect of picketing- is one of the circumstances considered in determining in any case what the purpose was in so far as it is the natural and logical consequence of what the picketeers are saying and doing 4. note: if there is no recognitional objective- picketing can cause economic ruin (even if teamsters honor it)…but if it is recognitional picketing and others start to honor the line, then the proviso kicks in Rule: If the U does not want other EE’s to stop work, but another party does anyway, the U has not induced the 3d party worker to stop working…the 3rd party just misunderstood. Thus, lawful picketing. a. Why? Union has conformed to proviso and NLRA, does not seem fair to punish the union for the actions of 3rd parties NOTE: The proviso only kicks in in 8b7C cases! Not 8b7B or A! --proviso is NOT a defense in 8b7A or B cases.



Employer Domination or assistance – 8(a)(2); § 2(5)
A. NLRA B. two questions to ask: 1. THRESHOLD QUESTION: Are we dealing with a labor Union/organization under 2(5)? (if yes, go to 2) 2. was there ―dealing with?‖ (go down to EI Nemours to see distinction) 3. Has the Employer violated 8(a)(2) by Interfering/Dominating/Giving support to the organization? Policy: When ER dominates and controls, the org is tainted, and we can never be sure there is free choice. --If board finds domination, ―Disestablishment rule‖ – ER can never deal w/ that org. A Cease and Decist Order is issued.

Cabot Carbon Co is leading SC Case!  SC agreed w/ Board: Found that ―Employee Committees‖ established by ER were ―Labor Organizations‖ under §2(5), and that ER dominated and assisted them in violation of 8(a)(2). o §2(5) – Defines ―Labor Organizations‖ as any ―employee representation committee or plan which exists for purpose … of with ER’s concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.  ―Dealing with‖ is not ―Bargaining with!‖ o So, even if the groups don’t do collective bargaining, they still can be ―dealing!‖ o These committees didn’t negotiate formal bargaining w/ ER, but they DID make proposals and requests about vacation, holidays, sick leave, wages, working conditions.  DEALING = Unfettered power to insist upon requests.

labor organization: a. employees participate b. organization exists, at least in part, to deal with employers (i) deal with- essence of dealing with is a bilateral process involving employees and management in order to reach bilateral solutions on basis of employee initiated proposals c. dealings concern conditions of work or concern other statutory subjects- such as grievances, labor disputes, wages, rates of pay or hours of employment d. does not require formal structure, elected officers, constitution, or bylaws, does not meet regularly or require fees - Electromation Newport news – NLRB, Court found it immaterial in an 8(a)(2) case that ER acted w/ ―good motives‖ and w/o antiunion animus, and that EE’s were happy w/ the ER0-domianted labor organization. RULE: NO SCIENTER REQUIREMENT IN 8a2 case! Electromation p. 199 book, 7th Cir 1994 1. issue: whether employer’s action committees were labor organizations a. Holding: Action Committees were not ―communication devices‖ but constituted labor organizations w/I §2(5), and further, that ER’s conduct constituted domination and interference in violation of 8(a)(2) and 8(a)(1). i. action committees: no employees involved in drafting of policy goals, determining # of representatives, employer paid for costs of meetings 2.

DOMINATION! – labor org has been dominated if:
a. b. c. Labor Org that is created by management, structure/function determined by mgmt continued existence depends on mgmt 1. no domination if EE’s created and ran and kept it alive, even if ER could have changed its format/structure

E.I Dupont de Namours – Board, 193 1. Found ER dominated labor orgs in violation of 8a2.



EE’s and ER reps met and ER reps could control the final decisions. E’s had no independent voice in determing aspect of the committees, etc… 1. Characteristics of committees a. involve group action b. proposals between management and committees c. consensus decision of committee only reached when ―all members of group, including management representative‖ agree on decision (i) essentially gives employer veto power

a. NOT DEALING: i. Brainstorming group ii. Sharing info w/ ER iii. Suggestion box where EE’s make proposals to mgmt, no dealing b/c individual proposals and not as a group 1. Presence of management doesn’t necessarily mean dealing! a. Governed by majority decision-making, where ER reps in minority and committee could decide by itself, NO DEALING! b. If ER reps participated as observers or facilitators w/o right to vote, NO DEALING!

Advise employer on how to set up committees:
Delegatea. If ER delegates final decision making power to an org group, it is NOT dealing, b/c it is not acting In ―Representational Capacity‖ b. ER doesn’t usually want to do this. Communicatea. b. exchange information, talk, brainstorm when does this cross the line? (i) when handles grievances (ii) makes proposals to management (iii) bilateral mechanism involving proposals (iv) to address employees concerns through the bilateral process

design programs that don’t cross section 2(5)a. employer can avoid dealing with by staying away from 2(5) subjects 1. NLRB-employee participation programs established for information gathering or to consider operational problems were not ―dealing with‖ the employer even though they made a proposal concerning working conditions on one occasion C. why distinguish between domination, interference & support 1. only relevant to remedy a. if NLRB finds domination: employer must disband group and not recognize ever again b. if less than domination, employer must disband until it can show employee majority 2. NLRB and courts agree- if employer establishes ―jurisdiction‖ of group—per se domination Some wanted to allow EE participation groups to address certain issues of quality, productivity and efficiency, but all These were vetoed. P. 60, materials.



Discrimination – 8(a)(3), (4), / 8(b)(2)
A. Regulation of union security agreements under NLRA 1. § 8a3- it is an unfair labor practice for an employer to encourage or discourage union membership by discrimination in regard to hire or tenure of employment 2. § 8a2- makes it an unfair labor practice for a union to cause or attempt to cause an employer to discriminate against an employee in violation of § 8a3 3. § 8a3 proviso- permits an employer to enter into an agreement with a lawfully recognized union requiring employees, as a condition of employment, to become members of the union ―on or after the 30 th day following the beginning of such employment or the effective date of such agreement, whichever is the later…‖ 4. proviso limits: a. does not require any employee to become a member of the union – b. it authorizes U and ER to enter into agreement imposing such membership requirement as a condition of employment. c. does not validate the historic closed shop, the essence of which was an agreement by the employer that he would only hire members of the union (i) instead, it permits an agreement requiring employees to become union members and provides a grace period of 30 days, after date of hire or execution of agreement (whichever is later) d. 7 days for construction industry (8(f))

Union Shop: (i) ER cannot invoke union shop provision to justify termination of an employee for non-membership in the union if the employer has (ii) reasonable grounds for believing that membership was not available to the employee on a nondiscriminatory basis (on the same terms and conditions generally applicable to other members) (iii) Or (iv) reasonable grounds for believing that the employees union membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership In other words, Union shop provision can only be invoked against a worker who is not a U member b/c he failed to meet his financial obligations – if his Union Membership was denied or terminated for another reason, Union shiop provision cannot be invoked against him. Of course, U can suspend/expel members for nonattendance, crossing picket lines, or violations of rules/policy. – 8b1A --but if U does so, it can’t invoke U shop provision to demand firing of EE b/c he isn’t a U member NOR argue that he must keep paying dues. B. U’s duty of fair representation obligates it to inform all EE’s covered by Union security provision, not just those in danger of discharge for nonpayment of dues, of the limited nature of their membership obligation. C. New EE’s can refuse to join union…they just must pay dues. D. These dues only those that cover costs ―reasonably or necessarily incurred for purpose of performing representation‖ – p. 66 mats, Communication Workers v. Beck, SC E. This need not be stated in U security provision itself… p. 66 mats bottom.   8b5 – U.L.P. for U to require EE’s in Union shiop to pay excessive/discriminatory fee. 9(e) – 30% or more petition of EE,s Board can conduct Deauthoritzation election, and EE’s by majority can rescind authority of Union to make Union shop. o Effect: withdraw future authority, rescind existing agreement. Agency Shop – EE doesn’t have to become member, must pay service fee = initiation fee and dues paid by members. 21


 

Maintenance of Membership Provision: EE who is/voluntarily becomes U member must remain so through term of agreement. P. 68 mats Dues Checkoff Provisions: ER agrees to deduct EE’s dues from earnings and pay strait to U. does not fall w/I 8(a)(3) b/c dones’t require U membership, so lawful as long as voluntarily agreed to by EE. o If imposed by EE by threate of sanction, violates 8a3 and 8b2. Right To Work Laws – State laws prohibiting agreements conditioning Employment on Union membership.  §14(b) allows them to override Supremacy clause. (States can prohibit union/agency shops) (cannot stop dues checkoff b/c fed law and no demand for membership in labor org) Note: 14(b) does not allow states to make more expansive union-security arrangements


Elements of a discrimination case o We must look at ―true purpose‖ or ―real motive‖ in hiring/firing to determine if ER violated 8(a)(3).  what must the employee show? 1. employer acted out of anti-union animus – Anti-Union Motivation i. prove anti-union animus, prove DISPARATE TREATMENT! - disparate treatment between union supporter and non-union supporter, OR - different treatment of same employee (before that employee became unionized) (i) note: can be anti-union animus even if no disparate treatment. (ii) –look at ER record, his record. o So, the Board must look to the Totality of the Circumstances/Evidence in a case.

F. evidence: 1. evidence: 10b of the act is interpreted as making the federal rules of evidence applicable to unfair labor practice cases 2. 8c prohibits use of employer speech (see below) G. substantial evidence test: 1. § 10 e & f: state amount of deference given to NLRB decisions 2. ―The findings of the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive‖ 3. in reality, this is an elastic standard—applied more or less strictly 4. Universal Camera (p. 75 mat, SC) a. reviewing courts must now assume more responsibility for the reasonableness and fairness of labor board decisions than some courts have shown in the past b. in reviewing the NLRB’s findings of fact, the courts must consider the whole record and not just the evidence supporting the NLRB’s conclusions c. nevertheless, not a de novo review (i) congress has merely made it clear that a reviewing court is not barred from setting aside a NLRB decision when it cannot conscientiously find that the evidence supporting that decision is substantial d. courts give special deference to decisions within the NLRB’s ―special expertise‖ a. b. § 8c protects employer speech—sometimes this is the only evidence you have (i) ―the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit.‖ (ii) This does not prohibit speech, so there is no ―violation‖ of 8c (iii) This is an evidentiary rule- but courts interpret it differently:

H. Edward Budd Mfg. (p. 21) – 3d Cir 22


Holding: An ER may discharge an EE for good rason, a poor reason, or no reason at all, so long as NLRA is not violated. Here, the guy was fired for union activities, so he was reinstated. 2. employee was member of employer supported group. He was horrible employee, always drunk and rarely worked, but got raises. After he supported the union that was trying to organize, he was fired. 3. to find anti-union discrimination (a 8(a)(3) violation, look at 4. EE’s work record, extent of union activity, did ER have knowledge, what were ER’s feelings towards U, pretext of discharge? Timing? (evidence, not proof in itself however)


Muller Brass (p. 22) – 5th Cir 1. Rule: The fact that an EE evinces a pro-union sentiment is not alone sufficient to destroy the just cause for his discharge based upon his breaking of a company rule. --fired EE’s here were treated same as other EE’s, did vulgar stuff and one stayed home after doctor note was faked… ***This case allows companies to fire in good faith w/o fear of reinstatement just b/c EE was Union engaged.


Burnup v. Simms (p. In notes, p. 54) 1. ER fired 2 EE’s for talking about dynamitying to get the union in even though it was untrue. 2. S.Ct. said it did not need to consider the §8a3 charge because this was so clearly an 8a1 violation 3. No anti-union motive, but 8a1 balancing needs no anti-union motive! 4. Cannon: Really did 8a3 by calling it 8a1! 5. Courts and general counsel do not pay much attention to this case. 6. Still need anti-union motive for 8a3. This case is strictly to its facts.

K. Erie Resistor – SC (p. 63) 1. Facts: Erie offered 20 year ―super seniority‖ to those who didn’t strike 2. Holding: A legitimate business purpose is not always a defense to U.L.P. charge b/c some conduct by its very nature may contain implications of illegal intent or motive to discriminate or interefere w/ union rights. Here, discrimination was inferred. ER tried to counter ―legit business purposes,‖ but conduct ―spoke for itself‖ The ―Super Seniority‖ offer had destructive effects! 1) offer of extra benefits to induce abandonment of strike. 2) underminded strikers mutual interest and caused collapse of strike 3) made future bargaining difficult b/c EE’s divided! (some didn’t want to give up SS, some did!) L. Great Dane – SC (65) 1. Facts: After EE’s of Great Dane went on strike, Great Dane decided to pay nonstriking EE’s their K vacation benefits while denying benefits to the qualified strikers 2. Holding: Once it has been proved that an ER engaged in discriminatory conduct which could have adversely affected EE rights, the burden is on ER to establish it was motivated by legit objectives since it has the proof! 3. here, paying benefits discriminated.

Inherently Destructive v. Comparatively Slight --if inherently destructive conduct, no proof of motivation needed even if ER shows evidence of legitmate business considerations. --inherently destructive = ―Creates visible and continuing obstacles to the future exercise of EE rights‖ --if Comparatively slight adverse effect of the discrimatory conduct, anti union motivation must be proved to sustain charge. In both cases, once its proved ER discrimated conduct which could have adversely affected EE rights, burden shifts to ER to establish motivated by legit objective since it has access to proof. 23

--of course, no ER has made showing of legit business purpose to win balancing if inherently destructive… so you automatically lose Adkins – 6th Cir, p. 23 1. small company, very friendly with union. Hires 2 employees to do engine repair. They join the union and union demands union wages. Employer admits it can’t pay that wage, so dismisses the 2 employees- purely for cost reasons. 1. Holding: NO VIOLATION! 2. In order to establish 8(a)(3) violation, must be evidence that ER’s act encourage or discouraged U membership a. a company may suspend its operations or change its business methods so long as its change in operations is not motivated by the illegal intention to avoid its obligations under the act b. Here, the ER’s motive was that union wages were too high – ER did it to save money, not b/c of anti-union discrimination. c. The fact they were in union was incidental to termination. M. Runaway shop: p. (in Adkins, p. 23) 1. classic example is when employer closes shop and relocates b/c of Union 2. this violates 8a3! And cant be allowed where Er only seeks to deprive EE’s of their §7 rights. 3. NOTE: If move prompted by Adkins economic factors, courts will probably OK the move when union substantially contributed to the economic difficulties. 2. if it is found to be U.L.P., Board won’t order the company to come back!  instead, it will order back pay, w/ reinstatement plus reimbursement for the expense of relocating near to the new plant. Rapid Binder – ER moved bindery operation from cramped and outmoded (old) HQ to new quarters shortly after U was certified. NO 8a3 violation! There were sound business reasons for motivation to move! ---the anti-union animus was not basis for move – convincing evidence it was a business necessity RULE: If ER is motivated by cost/economic savings, NO anti-uniom motive

Darlington Manufacturing - SC(p. 24) 1. Facts: To avoid dealing w/ Union, factory went out of business. 2. Holding: While an ER has the absolute right to terminate his entire business for any reason he pleases, it is U.L.P. if he closes part of his business to avoid unionization. 3. While a complete closing is ok discriminatory partial closings may effectively discourage EE’s from exercising their §7 rights in other plants by same ER. Darlington VIOLATION RULE: To establish ER violated Darlington…. 1) ER may have reasonably forseen 2) it would chill union’s effects elsewhere (discourage EE’s in other plants from persisting in organization activities.) N. Atkins - hypo 1. employer runs printing factory. Friendly with union. Uses his own trucks and drivers. Teamsters try to organize. Employer sells trucks and fires drivers. 2. General counsel must show: a. purpose of firing was to chill unionism, AND b. reasonably foreseen that such closing will likely have that effect 3. employer will argue: a. not trying to chill unionism- rest of his staff (printers) is already unionized (i) but the printers also have the right to join the teamsters (statute is not specific about which union they can join) O. George Lithograph24

1. 2. 3.

employer closed down portion of plant that had unionized. Rest of plant is non-union. Contracts out business he closed and gets profit. Holding: closing does not have to be reasonably calculated-instead, employer must ―intend‖ the effect Difference between George and Darlington- George- George is reaping future benefits of his decision to close delivery part of his business

COMPLETE CLOSING: V. partial closing to determine if there were an 8a3 violation, need to differentiate between complete closing and partial closing a complete closing of an independent freestanding enterprise is not a violation of 8a3, even if antiunion motive. --No discrimination b/c all EE’s treated the same! --ER isn’t likely to move entire business just to avoid union! Huge decision! (A) no legislative intent the other way (B) follows precedent (C) employer does not benefit in the long run  partial closing is an unfair labor practice if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing will likely have that effect 4. note: Darlington analysis focuses on the effect of closing on remaining workers, not those actually effected by the plant closure

X. ―Quantum of Animus‖ problem – how much animus? P. 79 Mats Wright Line: Board! o employee (general counsel) has burden of production (by preponderance of the evidence) that anti-union motivation was ―a motivating factor in ER’s decision‖ 1. Once burden met, burden shifts to ER to demonstrate same action would have occurred in absence of protected conduct.‖ SC approved Wright Line in Transportation Mngmt Co. a. burden on employer-this is burden of production and proof (aka, burden of persuasion) b. ―the employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing‖

X. The Right of Strikers under NLRA 1) ER’s right to hire Permanent Replacements
Mackay Radio & Telegraph – Supreme Court, 1938 o SC created right to hire permanent replacement workers for strikers! 1. ―it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill places of strikers, uon the election of the latter to resume their employment, in order to create places for them.‖ 2. Decision criticized – seems that hiring replacements would certainly discourage employees from exercising their rights a. Board/Ct do not require the employer to make a showing that it was necessary to offer the replacements permanent positions in order to induce them to cross picket line Delta-Macon, 5th Cir: p. 86 mats a. an employer whose employees are engaging in an economic strike, may, without violating the rights of striking employees, hire other persons to fill the void left by the striking employees. In that way labor law


recognizes the realistic needs of business entities to continue with their operations during an economic strike and thus avoid financial collapse b. in order to invoke Mackay, employer must have hired replacement: (i) as a replacement for striker (ii) on permanent basis – hired in such a way that there is a mutual understanding that replacements were permanent results of Mackay: p. 87 a. employer cannot retaliate against workers because they have exercised their right to strike (i) ―replacing‖ a worker is different from ―firing‖ (ii) If replacements are temps, strikers are entitled to reinstatement upon making offer to return to work. (iii) if employer replaces replacement workers, they may maintain an action against employer ECONOMIC STRIKE v. U.L.P. Strike! b. Mackay- involved only an economic strike (i) NLRB and courts do not extend Mackay to unfair labor practice strike (strike initiated in whole OR in part in response to unfair labor practices committed by the employer) (ii) RULE: Unfair labor practice strikers must be reinstated upon an unconditional offer to return to work, even if they have been permanently replaced and even if their replacements must be discharged c. conversion- when a strike starts out as economic and then turns to unfair labor practice (or vice versa) d. Workers replaced during ―economic‖ portion not entitled to reinstatement, while those during U.L.P. strike are! Board must establish ULP was at least one factor in causing strike to continue, not the sole cause of continuation. f. Board gives weight to strikers characterization of their motive for striking…..but is wary of self-serving rhetoric. P. 89 mats.


g. 

definition of employee - § 2(3) (i) striker is employee until he obtains other regular and substantially equivalent employment Laidlaw – Board, once economic striker has unconditionally applies to return to work, ER obligated to give striker priority over new applicants for comparable job that becomes available, unless legit reason like EE got employment elsewhere, or lacks skills to do job. o Whether genuine vacancy exists when permanent replac departs is problematic…  Depends on whether replacement’s departure was permanent or temp….  If just a temporary lay-off w/ ―reasonable expectancy of recall‖, ER may recall them ahead of unreinstated strikers. voting (i)



9c3 - economic striker who has been permanently replaced remains eligible to vote in NLRB representation election in the unit conducted within 12 months after the commencement of the strike (ii) unless the employee has obtained other employment and ceases to be an employee by obtaining ―regular and substantially equivalent‖ employment elsewhere seniority status (i) an employer can treat striking employees who cross the picket line and return to work as permanent replacements, thereby permitting them to displace strikers with greater seniority who refuse to cross the picket line

Many problems w/ ―reinstatement w/ backpay‖ remedy for discriminatory discharges. P. 99 mats  case may just be beginning…  proceedings to determine how much EE is owed o complex, - only allowed ―net losses – lost wages – interim earnings from other employment‖

X – Injunctive Relief Under 10(j) of NLRA

P. injunctive relief 1. under sect. 10 (l) – a. limited to cases under 8b4(A,B, or C), 8b7, or 8e of NLRA b. requires board to give priority to the investigation of charges under those sections and, if it concludes there is reasonable cause to believe such charge is true and that a complaint should issue, to petition a district court for appropriate injunctive relief pending the final adjudication of the NLRB with respect to the matter c. note: this is a remedy for unfair labor practices directed against employers 2. under sect. 10 (j)- p. 104 mats a. board has discretion to petition district court for injunctive relief b. Court can grant relief ―as it deems just and proper‖ c. the power to file a petition is vested in the NLRB(needs a majority vote!) – not the general counsel (this makes it different from most prosecutorial decisions) d. Used in Major League BASEball strike – to obtain preliminary injunction against unlawful unilateral changed in employment conditions e. Rarely used, but more lately f. does not give court guidance in determining whether preliminary relief is proper (i) Traditionally, courts use ―reasonable cause to believe‖ (as in §10(I)) and have ALSO required showing of irreparable harm if relief is denied (ii) Today, courts hold 10(j) petition evaluated solely under equitable ―criteria for preliminary injuncitive relief‖ (iii) Board must show (iv) 1) irreparable injury AND (v) 2) a likelihood to succeed on the merits (vi) 3) that injury to be prevented outweights harm that relief would inflict on D (vii) 4) preliminary relief is in public interest (A) this makes employee success much more difficult (7th 8, 9th all use this test and have abandoned traditional test!)



Free Choice of bargaining representatives (9a, 8(a)(2), 8(a)(5))

A. Statutory provisions – p. 109, mats 1. Section 9- provides that ―representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the 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…‖ a. does not give guidance on how to designate or select- but most unions get designation by election 2 big Principles: 1) Majority Rule – Majority controls, when maj picks union, that choice is binding on all EE’s. 2) Exclusivity – Once union picked by maj., represents all EE’s for Collective Barg. Purposes

B. Majority status 1. Bernhard Altmann- (109 mat.) a. Supreme Court held that it is a per se violation of section 8a1 and 2 of NLRA for an employer to recognize and bargain with a union which does not in fact have the support of a majority of the employees in the unit involved (i) employers good faith mistake is not a defense (ii) scienter/negligence/due care is not element necessary or prescribed by statute (iii) union’s subsequent achievement of card majority status- not relevant (iv) Holding: No clearer abridgment of right to ―Freedom of choice and Majority Rule‖ than ER impressing minority union upon the unconsenting majority! 2. expand Bernhard Altmanna. employer may not lawfully recognize a union which has a card majority if there is not yet a substantial and representative complement of employees in the relevant union b. penalty: remedial order requiring recognition be withheld until Board conducted election results in majority selection of a reprentative 3. counting cardsa. board will not count dual cards- cards signed by workers who have signed cards with more than one union 4. exceptions to majority rule a. 8f- construction industry- employers can enter into prehire agreements with minority unions b. can bargain with minority union on a members only basis- with respect only to members of the union or to others who authorize union to bargain with them (i) very rare Bruckner Nursing Home (p. 213) - BD 1. Midwest Piping Doctrine- (old rule) a. 2 rival unions competing for representative status. Employer recognized one of unions b. RULE: where 2 rival unions are competing for recognition of non-unionized workers, employer must remain neutral c. the question is when does this rule kick in? (i) the union must have a colorable claim—a claim that was not clearly unsupportable or a claim that was not naked 2. there is some trouble with the Midwest doctrine, so court announces new rule in Bruckner 3. NEW Rule: we will no longer find 8a2 violations in rival union, initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the board 4. Once ER is notified of valid petition, ER can’t recognize rival unions (ER must be notified!) 5. You need that 30% of cards ―substantial‖ support in order to file a valid petition w/ the board! 6. Policya. encourage industrial peace b. encourage employee free choice

Midwest/Brucker stand for Board’s decision that Cards are Unreliable!!! Sometimes 80 and 40% for each competing union! 28

C. complication with Bruckner- incumbent union situation D. RCA DEL-CARIBE – We no longer apply Mid-West Piping to Situations involving continued representation by incumbent union E. Ex: union represents employees for 20 years, then contract expires and negotiations are not going well. 1. Board no longer applies Bruckner and Midwest in incumbent union situations 2. Incumbent union can still negotiate with employer (even after outside union files valid election petition) 3. Maj: We want industrial peace, stability in existing bargaining relationships 4. Dissent: ER can use this as leverage to get what he wants from incumbent! (We’ll go into election unless you give us what we want!) Cards –  9c1a saysa union petition for election must allege ―substantial # of EE’s want election o At least 30%.  Authoirzation cards must affirmatively state the EE wants representation.  NOT just card that says ―I want election‖ – that doesn’t count towards 30%! F. methods of recognition of union 1. election 2. voluntary recognition 3. board bargaining order a. hypo- union demands bargaining. Employer refuses. employer commits 8a1 and 3 violation. Is this violation of 8a5? b. No- there has been no designation of union as representative c. Petition for election is NOT equal to demand for collective bargaining Gissell – SC (p. 31 in Casenotes) (p. 114 in mats) 1. single purpose cardsa. unambiguous b. state on the face that the signer authorizes the union to represent the employee for collective bargaining purposes and not to seek an election 2. Cumberland Shoe (Bd) rule: single purpose cards will be counted toward union majority unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election a. test for validity of unambiguous card- what the employee was told, NOT what the signer understood b. look at totality of circumstances surrounding the cards- does it add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election? Holding: Where ER commits independent and substantial ULP’s disruptive of election conditions, NLRB may withhold the election or set it aside, and instead issue a bargaining order as remedy. o Bargaining order will NOT issue if Union obtained cards through misrepresentation or coercion, or if ULP’s are not related to representation campaign o 8a5 – NLRB can issue bargaining order w/o showing that union is majority or even if it lost its majority. o We don’t want ER’s gaining from unlawful behavior to keep union from securing bargaing order – it will be weaker later after the case!


employer commits 8a1 &3 violations- can board order employer to bargain? a. board’s position: employer can refuse to bargain with a union unless he has committed unfair labor practices b. ―when confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately—may decline union’s request and insist on an election (either file election petition himself or request that union do it)29


(i) UNLESS he has knowledge independently of the cards that the union has a majority‖ ―If the employer commits independent and substantial unfair labor practices disruptive of election conditions, the board may withhold the election or set it aside, and issue instead a bargaining order as a remedy for the various violations.‖ by committing 8a1 & 3 violations, employer forfeits the right to refuse to bargain

RULE: to determine whether an order to bargain is appropriate, must categorize: a. category I- exceptional cases- characterized by outrageous and pervasive unfair labor practices (i) union never achieved a majority on cards (ii) ―an order would be an appropriate remedy for those practices if they are of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had‖ (iii) Gourmet foods later goes against Cat I category II- less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes (i) must be a showing that the union, at one point, had a majority (ii) order is appropriate, if board finds that the possibility of erasing the effects of past practices and ensuring a fair election by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue category III- minor or less extensive unfair labor practices (i) due to minimal impact on election machinery these violations will not sustain an order to bargain


c. 4. 5.

Rule: approves the issuance of a bargaining order when the board concludes that the employers unlawful conduct has made a fair election unlikely (and that the earlier gathered cards better reflect un-coerced employee preferences) Criticism: a. no bright line rule b. board decisions often conclusory, inconsistent, no guidance for courts

B. post-Gissell problems 1. ―hallmark violations‖- Chairman Miller’s Dissent in General Stencils, Inc. – 2d cir (p. 325)a. 3 types of unfair labor practices which would always warrant bargaining order: (i) significant benefits granted during an organizing campaign (ii) repeated discriminatory acts in violation of section 8a3 (iii) employer serious threats going to job security (must look at totality of circumstances) 2. Jamaica Towing- 2d. cir, after Gen. Stencil - board adopts this positiona. 2d cir. court of appeals- says ―hallmark‖ was dicta 3. serious threat- must come from a high up employee and resonate to many employees 4. Gourmet Foods- Bd a. eliminates category I b. board says it does NOT have the statutory power to issue an order to bargain with minority union (i) would be improper imposition of the board’s choice of representative (ii) majority rule is fundamental to statutory policy of NLRA (iii) dissent: thinks this elevates majority rule over employee free choice! (iv) So coersive it prevent majority support from ever forming! Linden Lumber – SC 1974 (P. 32 Casenotes) 1. employer denied recognition of union, told union to get election, protested the petition with every weapon it had, did not commit any unfair labor practices



ER did not commit ULP b/c it refused to accept evidence of majority status, other than results of an ELECTION. 3. UNION HAS THE BURDEN to petition for election where no ULP has been committed. 4. just b/c Majority fo EE’s strike and picket doesn’t mean they support the union! 5. fear/sympathy of EEs

Time- at what time do you assess the impact of employers actions? 1. a considerable amount of time can pass between the alleged violations around the election and the time of the court of appeals decision 2. do you consider the totality of circumstances? (passage of time, employee turnover, change in management) a. board: impact is assessed at the time the events occur (i) to consider the totality of the circumstances gives the employer a benefit- a benefit that is achieved by his own unfair practices b. court of appeals- uses the totality of circumstances approach 3. retroactivity of bargaining order: a. chain of events: (i) election- union loses (ii) employer unfair labor practice (iii) board determination of unfair labor practice and issuance of order to bargain b. should the order be retroactive to time of election? (i) 3rd cir- retroactive to time of election (even if no demand for bargaining) where the employer commits an independent 8a5 violation after election

Independent Knowledge Exception: 1. ER cannot not refuse to bargain with union if he has clear independent knowledge of majority union support 2. what constitutes independent knowledge? a. must be knowledge independent of the cards (i) card count only verifies card signatures (ii) Snow & Sons- not clear if card count is independent knowledge b. seeing employees on strike? (i) no- there are many other reasons (aside from union support) that people refuse to cross picket line c. signed petition by employees? (i) no-employer does not have to recognize d. Struksness poll conducted by employer? (i) board holds this IS independent knowledge So, if ER does card check and loses, or Struksness poll proving a majority for union, INDEPENDENT KNOWLEDGE CONCEPT COMES INTO PLAY! 3. Policy of Voluntarism: ER can decline recogniotion and insist on Board election unless he 4. 1) taints process by ULPs 5. 2) voluntarily finds out if union has majority Note: ER cannot withdraw from bargaining relationship if he voluntarily recognized union/maj support.


Employer withdrawal of recognition

RULE!!!!! :to withdraw support, employer must show: a. union no longer enjoys majority status, or b. good faith reasonable doubt- requires 1. asserted doubt must be based on objective considerations, and 2. must not have been advanced for the purpose of gaining time in which to undermine the union Brooks (p. 33 in casenotes) SC 1954 - frankfurter 31

A. Rule: ER must bargain for reasonable period (1 year) w/ union which has been selected by EE’s in NLRB election & certified, even if union loses support of the EE’s shortly after it was certified. 5 reasons! 1) binding election promotes sense of responsibility in electorate and coherence in administration 2) revocation of authority should occur by a procedure no less solemn than the initial designation. 3) union should be given ample time, free from pressures to produce ―hot-house‖ results, to carry out mandate 4) ER would be discouraged from serious bargaining if he knew EE’s could repudiate agent 5) raiding/strife among competing unions will be minimimized if no short-term recall 1. in the absence of unusual circumstances, union enjoys conclusive presumption of majority status for one year, from the time of certification (remember that some certification decisions are challenged and thus the certification date may be significantly after the election date) 2. employer can not withdraw support during that one year period 3. board will not hear petition for de-certification during that year


unusual circumstances: a. certified union dissolved or became defunct b. as a result of union schism, substantially all members and officers of certified union transferred to different union c. size of bargaining unit fluctuated radically within a short time

B. presumption of majority status - presumptions 1. during certification year- this is absolute (except unusual circumstances) 2. after certification year expires: certified union enjoys rebuttable presumption of majority status 3. NOTE: voluntarily recognized union enjoys an absolute presumption of majority status for a reasonable time, then enjoys a rebuttable presumption a. reasonable- decisions range from nearly a year to a few months b. factors to consider- bargaining efforts- is union making progress? (i) if union attempting to negotiate a first contract, will probably have a little more leeway rule: ER must demonstrate a reasonable doubt about Union’s majority to not bargain by ―Preponderance of Evidence.‖ p. 118 mats. Curtin Matheson Scientific - SC, 1990 (p. 34 casenotes)- is there a presumption of union support for strikers? Scabs? 1. Rule: When evaluating ER’s claim of reasonable doubt concerning a union’s majority support, NLRB does NOT presume that striker replacements are in opposition to the union. 2. No presumption either way on issue of union support of replacement workers 3. General framework: a. new hires- board presumes new hires desire representation in same #’s as those who left (keep proportion and numbers same) b. scabs- no presumption either way (i) employer bears burden of showing union no longer has majority support- so he loses UNLESS he can show specific facts about scabs support (ii) **policy: if we established a presumption on scabs, then it would allow the employer to hire new replacements in large enough numbers to override the union majority 4. note: determining the numbers for ―majority‖ purposes a. statutory definition of employee – anyone who has not gotten substantially equivalent employment must be counted in total numbers of employees b. ex. 25 employees- 10 strikers 15 working employees + 10 replacements 32


25 workers BUT total number of employees = 25 workers + 10 strikers employees engaged in an economic strike can vote (remember, employees are those who have not obtained equivalent employment)

Allentown Mack Sales - SC, 1998 (p. 35 in casenotes) 1. RULE: Conducting internal poll of EE’s support for union is ULP if ER can’t show it had good faith reasonable doubt about union’s majority support. 2. board’s traditional rule: a. employee must do something indicating he does not want representation b. employer must demonstrate reasonable doubt- must have reasonable basis for believing employees do not want union c. standard same for employer to withdraw recognition and to petition election (??) (i) 2nd cir.- Albany Steel- lowers standard for employer to seek election (ii) employer has come forth with objective evidence that there is a lack of union support on the part of a substantial number of employees, an election is warranted (iii) how is this affected by Allentown? General griping: a. general griping is not enough to show doubt, (it is just part of evidence), BUT b. appears it is enough to show ―uncertainty‖ under Scalia’s new adaptation of meaning for doubt (i) the board and the courts have consistently held that such generalized statements of dissatisfaction with the union are not sufficient to show a desire not to be represented



amount of support: a. implication- although 20% is not enough( too little), the implication is that there is something – perhaps less than majority- that would suffice (i) 6th cir. less than half might be sufficient to support reasonable doubt (ii) 9th cir. – dicta- ―significant minority‖ express dissatisfaction- that would be enough CANNON: somewhere between 20% and 50% if there was complaining/griping, ER could reuly on that to support good-faith doubt that majority wants union!

5. rule: employer may withdraw recognition (or get board election, or conduct poll) if it has objective evidence (i.e. evidence proceeding form some third party and thus external to the employers own – subjective- impressions) sufficient to support a reasonable uncertainty about the union’s majority support --easier to get board election now! (Board in Levitz, 2001, p. 126 mats). (Uncertain standard, not doubt) After Levitz – ER must PROVE actual loss of majority support! MAJOR POLICY CONCERN: ER’s could just always withdraw recognition!! If it loses, it operated for LONG time (3 years or so, 7 in Allentown) w/o union! And once it is forced to bargain, Union will be dead! Note: Make sure ULP didn’t lead to ER’s (doubt) about union majority! p. 131 – TEST TO SEE IF ULP’S TAINTED ER’S ASSERTED DOUBT: 1) length of time between ULP and withdrawal of rec, 2) nature of illegal acts, including lasting effects on EE’s, 3) tendency to cause EE disaffection from union, and 4) effect of onlawful conduct on EE morale, activities, and membership in union.


The NLRB Representation Election Process
I. Initiating the process p – 132 mats    91cB – authorizes ER confronted w/ U claim for recognition to petition board for election (RM election) 91cA(ii) – EE’s in unit represented by incumbend union may file RD petition to decertify union. Most common – U filed RC petition seeking to represent EE’s, 9c1Ai. A. Two questions for board to answer in determining if there should be an election: 1. is there a ―question of representation affecting commerce‖ in a ―unit appropriate for the purposes of collective bargaining‖ 2. should a board election be conducted to resolve that question 1. Is ER’s business ―affecting commerce‖, and if it meets limits. --Bd will mail ―commerce questionnaire‖. If ER declines, Bd presumes jurisdictional reuirements are met, if ER challenged jurisdiction, Regional Director may subpoena necessary info under §11. 2. real question exists? 1. 91cA requires ―substantial EE’s desire‖ rep/decert. Substantial = 30% on cards 1. 30% applies to RC and RD petitions. 2. does NOT apply to RM, employer petitions, since the only statutory requirement for petition is that one or more unions have asserted a claim for recognition 3. 30% requirement is purely internal Board matter. this decision is not open to question a. no party is entitled to litigate the validity of the submitted cards at any hearing b. cards will not be disclosed to employer


Rules Barring Elections A. Election Year Bar – p. 134 mats 1. Statutorily mandated 2. if there has been a valid election- there is an absolute bar to any petition for elections in the next 12 months 3. applies even if the petitioning union was not a party to the prior election 4. bars election in same bargaining unit- does not preclude the holding of an election in a broader more inclusive unit within the 12 month period B. Certification year bar – p. 134-135 mats 1. NLRB made 2. Absent unusual circumstances, no election in year after certification 3. Applies only when union wins election 4. Incumbent union that wins decert election, gets benefit of one year bar 5. Employer may not withdraw recognition during certification year C. Voluntary recognition bar 1. when an employer voluntarily recognizes a union as the bargaining representative of employees in an appropriate unit, union will enjoy conclusive presumption of continuing majority support for a reasonable period 2. when board issues bargaining order, beneficiary union enjoys similar conclusive presumption of majority support for a reasonable period 3. employer can neither withdraw recognition nor obtain a board election unless he demonstrates, at a minimum, a good faith and reasonably grounded doubt of the union’s continuing majority 4. even after reasonable period, board will dismiss an employer petition for an election unless employer can make that showing a. does not apply to rival union or decert petition D. Blocking charge rule 1. board made rule 2. pending unfair labor practice charges which would have a tendency to interfere (―block) with the free choice of employees in an election will block the holding of the election until they are resolved 34

Board will suspend proceedings until charged are resolved (refusal of GC to issue complaint, withdrawal/settlement, or adjudication by board) 4. applies also to elections under expedited election proviso to Sec 8B7c. 5. charging party can waive the benefit of blocking rule by filing request w/ Board. a. Unions do it a lot b/c they want speedy elections. b. BUT, if union waives, then loses election, can’t later use charge of unfair labor practice to set aside election 6. board has discretion whether to use or not (since it is board made rule) E. Contract bar rule 1. board made rule 2. in the absence of unusual circumstances, when an employer and in incumbent union have entered into a collective bargaining agreement for a fixed term, the board will not entertain an election petition in the covered unit during the term of the agreement, up to a maximum period of three years a. employer can not withdraw recognition during this time 3. American seating (p. 269) a. if union has collective bargaining agreement for time longer than contract bar, if a new union petitions for election and wins, it has full and immediate right for collective bargaining b. bargaining representative is statutory agent- can’t get rid of him at will (i) analogy to political election c. employer can NOT demand full collective bargaining (union can)! if contract longer than three years: a. board will refuse to process an employer petition during term of agreement b. however- decert and rival union petitions will be processed after 3 year period the window period a. election petition filed more than 90 days prior to expiration of agreement will be dismissed b. petition properly filed in window period from 60-90 days will be processed c. board will not process any petitions filed during the final 60 days of contract in order to give the parties chance to make new contract




6. Policy of Contract bar Rule – yes, impinges upon EE’s statutory rights to free choice/maj rule, but justified by interest of industrial stability, and necessity to give collective bargaining process a fair opportunity to work. III. the appropriate bargaining unit - p. 140 mats A. Statute: 9b (p. 38) discusses unit designation 1. gives board little or no guidance 2. 9c authoirizes Board hearing to make determination of appropriate unit. 3. courts often give board’s broad discretion- because of special expertise of board 4. NOTE: board does not have to pick THE most appropriate unit, just AN appropriate unit a. in theory- there are many appropriate units b. scope of appellate review is very narrow (i) will be overturned if so unreasonable and arbitrary as to exceed the board’s power (ii) overturn only if ―clearly not appropriate, not merely by showing that some other determination would have been better‖ – 1st cir. P. 142 mats. 5. Union will seek largest unit it think it can win – but larger unit, harder to persuade voters! P. 141 mats. 9b required Board to decide appropriate unit for collective bargaining shall be ER unit, craft unit, plant unit, or subdivision thereof. 6. TEST: Community of interest (p. 157 mat) a. determine whether the employees in the unit involved have substantially similar interests with respect to wages, benefits, hours and other conditions of employment, so as to form ―a cohesive group, allied as to their bargaining interests by the similarity of their functions and working 35


conditions‖ and thus ―would bring problems to the bargaining table which differ materially from the grievances of the other employees‖ b. generally, community of interest found in similarities among the employees involved with respect to such matters as wages, benefits, hours, working conditions, supervision, training and skills, job functions, interchange with other employees, etc.. c. no single factor has controlling weight! d. Bargaining history may be considered as a factor definition of unit often determines who wins election a. union often pushes for the largest unit it thinks it can win b. in larger units- it is often more difficult to create a community of interest and convince the employees to vote for them

B. statutory limits (p. 144 mat) 1. 9b - professional employees may not be included in unit a. UNLESS- majority of such professional employees vote for inclusion in such unit b. applies even if professional employees would make up the majority in that unit 2. 9b - prohibits NLRB from determining that a craft unit is inappropriate on the ground that a different unit has been established by a prior NLRB decision 3. 9b - prohibits inclusion of guards with non-guards 4. 5. 6. 7. 9c5 - extent of employee organization is not controlling (it’s just one factor) supervisors (defined in §2(11) are excluded from definition of employee in §2(3) – thus not covered by act, and cannot be included in any unit no managerial employees a. these are employees who are in a position to formulate, determine and effectuate management policies whether with respect to labor relations or otherwise, even though not statutory supervisors no confidential employees a. assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations

American Hospital Assoc ( p. 26 in casenotes) – SC, 1991 1. in 1974 congress extended NLRA to cover non-profit hospitals 2. NLRB uses rule-making power to promulgate first substantive rule a. establishes 8 appropriate units for hospital employees 3. In this case- Supreme Court upholds rule 4. Chicago Health and Tennis club (p. 27 in casenotes)— multi-location units - SC 1978 1. this case was 2 consolidated cases a. Chicago Health- 16 clubs in Chicago area b. Saxon Paint- 21 stores 2. RULE: When a corporation has centralized management and collective bargaining history of unionization on a scale including all of that corp’s individual units, use of a single unit as the sole bargaining agent is inappropriate. factors to consider in determining if single unit appropriate: a. geographic proximity of stores b. history of collective bargaining c. extent of employee interchange between various stores d. functional integration of operations e. individual store autonomy!!! f. centralization of management – particularly in regard to central control of personnel and labor relations holding: a. Chicago tennis- single unit is appropriate b. Saxon Paint- single unit NOT appropriate



C. Multi-employer bargaining (p. 146, 148 mat) 36


presumption that single location unit should be viewed as appropriate- with the burden on party challenging it to demonstrate that it is inappropriate a. reason- specifically listed in 9b (plant‖ as appropriate unit‖) b. 8th cir.- does not accept presumption because it ―is at odds with the community of interests analysis our court has favored‖ ER who opposes single-location unit has burden to rebut presumption: a. show that their operations are so centralized and integrated, particularly with respect to personnel and labor policies that the single plant has been effectively merged into a more comprehensive unit so as to have lost its individual identity b. so functionally integrated with another unit that it has lost its separate identity advantages of Multi-ER bargaining a. less frequent, less expensive, more informed b. both parties favor knowing what both sides are up to c. erases competitive advantage that one employer may be able to keep in spite of union negotiations d. employers like knowing all employers are competing on same terms disadvantages of Multi-ER bargaining a. scope of possible strike b. restraints on competition c. fear that employers will grant increases to employees and then pass the cost on to the public can only be established by consent of the parties a. express or implied – this is b/c Goard must find that ―association‖ already was a statutory ER to fit w/I § 2(2) – saying person can be ―ER‖ - top p. 149 mats! when can employer withdraw? (withdrawal is disruptive of collective bargaining! – mid 150 mats) a. RULE: a party, union or employer, can ordinarily withdraw from an existing multi-employer unit only by giving written notice of its intention to do so prior to the date set for the beginning of negotiations or the actual commencement of negotiations b. exception: (i) mutual consent of the parties (ii) unusual circumstances






D. Bonanno (p. 28 casenotes) – SC 1982 1. attempts to define unusual circumstances 2. RULE: Bargaining impasse is NOT sufficiently unusual circumstance to justify an ER’s unilateral withdrawal from multi-ER bargaining unit, failure to execute resulting agreement is ULP 3. party may withdraw if it gives written notice prior to bargaining- or in unusual circumstances 4. impassea. not an unusual circumstance b. does not make the likelihood of reaching an agreement so small as to warrant the destabilizing of peaceable relations c. temporary deadlock or hiatus in negotiations, which is almost always broken 5. unusual circumstances a. extreme financial pressures b. bargaining unit has become substantially fragmented IV. Judicial Review of Board Decisions in representation cases A. statutory 1. Sec 10(f) permits persona ggrieved by final order of Board to seek judicial review of that order in US Ct of Apps. 2. But sec 10 only deals w/ ULP cases!!! 3. no statutory mechanism for direct judicial review of board orders in representation proceedings under section 9



this is true for BOTH interlocutory orders the board may enter in the course of a representation proceeding AND an order which is unquestionably ―final‖ in that proceeding


Indirect judicial review of representation cases is possible under section 9d5. 9d substantially provides that, when the board’s decision in an unfair labor practice case is based in whole or in part upon a board decision in a representation case, the underlying representation decision may be reviewed on appeal of the final order in the unfair labor practice proceeding ** Thus, ER desiring judicial determination of fairness of election must refuse to bargain! The election is then challenges in ULP proceeding brought against employer this does not always work, because: (i) there is not always a subsequent unfair labor practice (ii) the NLRB decision in representation may not be the underlying basis for the decision Congress has resisted putting in broader judicial review provisions


Leedom v. Kyne (p. 30 casenotes) – SC 1958 1. two important aspects: a. creates a narrow exception to non-judicial review (i) party alleges a specific provision of the NLRA has been violated (ii) issue must deal with statutory interpretation b. brings the district court into the picture (instead of cts of appeals0 2. here, Broad definition of unit included 9 non-professional employees in a professional group a. union won representation election- so could not challenge the finding of unit definition in subsequent proceeding b. it is rule of administrative law that party must utilize the statutory method of reviewregardless of whether that method is difficult and protracted if the court did not hear the claim, it would deprive those employees of a statutory right Leedom exceptiona. can be invoked by union b. can only be invoked by employer in rare situations, and in limited circuits KEY: Here it wasn’t a review of a Board Decision – it was a suit to strike down a board order made in excess of its powers and contrary to a specific prohibition in the act. constitutional claims: board has jurisdiction to hear, as long as the constitutional claim is at least colorable a. note: NLRA does not cover religious school teachers because Congress did not intend it to dissent: congress refused to add a method for the union to seek judicial review

3. 4.

5. 6.

B. Boire v. Greyhound (p. 309) 1. defines Leedom exception a. it is ―a narrow one, not to be extended to permit plenary district court review of board orders in certification proceedings whenever it can be said that an erroneous assessment of the particular facts before the board has led it to a conclusion which does not comport with the law‖ b. if court has to make a factual determination (and construct a factual record)—then the Leedom exception does not apply 2. this case- interpretation of whether a party was exercising sufficient control to be an ―employer‖ in terms of the statute, required a factual record C. Mcorp – SC 1991, (p. 153 mat) 1. case not under NLRA, but involving an agency decision 2. discusses Leedom: a. Leedom exception applies where the agency’s interpretation of the act would wholly deprive the union of a meaningful and adequate means of vindicating its statutory rights



Leedom did not apply here to confer jurisdiction on Dist Ct. b/c FISA provided adequate judicial review when and if MCorp violated Board’s regulation.


COLLECTIVE BARGAINING PROCESS I. Majority Rule and Exclusivity A. Statutory 1. § 9a- provides for selection by majority and exclusivity of bargaining representative 2. limited by 2 provisos 3. interpretation: once a representative is elected or designated, he represents all the employees, even those in the minority that do not want his representation this extinguishes the individual employees power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interest of all employees employer violates 8a1 and 8a5 by dealing directly with union represented employees concerning any mandatory subject of collective bargaining gives the union a ―quasi-legislative‖ power

JI Case (p. 39 casenotes) – SC 1944  Rule: Invidividual contracts, no matter what the circumstances that justify their execution or what terms, may not be availed of to defeat or delay any procedures or rights under the NLRA. o Facts: employer has contracts with individual employees. They are valid contracts. o Subsequently, a union is elected the bargaining representative and NLRB issued order to bargain. o Employer refuses to deal with the union in a way that would affect the contracts that were in force (claims the contracts as a bar to collective bargaining)  ―This case established the primacy of collective bargaining over individual EE’s relation w/ employer.  Individual K’s can give EE’s MORE rights than under CBA! Just can’t subtract any. o worker is free to vote against the union, but when the union wins, then majority rules- and individual gains will ―go in the name of ‖ the collective good proper forum:  if agreement is challenged because it violates collective bargaining, that is a question for the NLRB  if agreement is challenged because it violates the law of contracts, that is a question for the courts note: seniority is a sticky issue if one employee gets more seniority, then another must be getting less  divisive/divides workforce, underminds solidarity ―red circle deals‖- where employer gives special treatment to certain employees because he feels they are the most valuable or best workers divisiveother employees probably do not agree that those designated are the best other employers probably receive lower wages -undercut union by bypassing them -undermine union exclusivity

B. Caterpiller (notes) - SC  involves question left open by JI Case…  Facts: Action for breach of K/Fraud by EE’s who were promised lifetime seniority, but when layoffs came, ER held to collective bargaining agreement and laid them off, so they sued ER. o NO ULP!  CatcH: Here, when EE’s made K, they were Not in bargaining unit! @ time agreement was made, promise was their agreeing to work for ER outside of unit!  Their jobs changed when they became subject to CBA! o So, JI case doesn’t apply to situations where EE’s are employed in unit at time signed agreement was made. o 40


Holding: employees can maintain state action for breach of contract for money damages (appears the contract must give way and these employees are to be employed under terms of collective agreement)


Limitations on Union Power: duty of fair representation
Limits of Majority Rule (p. 366-68)  in defining appropriate unit, board will try to exclude groups of employees that have conflict of interests, or lack community of interests, with the unit in which the election will be held. The excluded group will be able to select its own representative.  Decertification- employees have the periodic right to vote out union.  Bill of rights for union members: purpose to guarantee substantial measure of democratic rights and procedures in internal affairs of union  Employee does not automatically have to become union member- only mandatory if union negotiates a union shop provision o membership- limited to no more than the obligation to pay union an amount equivalent to union dues (reflects the ―free rider‖ theory- and idea that all employees benefit from provisions union negotiates)  NLRA authorizes states to enact laws that state union shop provisions are illegal  non-mandatory subjects- individuals can bargain on these subjects o hard to imagine what a non-mandatory subject would be  9a’s proviso preserves to individual employees the right to present and to process grievances o most important: duty of fair representation  Supreme Court found this in the Railway labor act o Extended it to NLRA o Enforceable:  in civil actions in federal and state courts  breach of this duty is also an unfair labor practice o typical claim: employee sues employer, alleging discharge without cause & sues union for improper handling of grievance  this is a hybrid claim- because filed against employer and union  employee rarely wins against the union – it is afforded a wide range of reasonableness  note: Title VII also affords employee rights Steele v. Louisville – SC, 1944 (p. 40 in casenotes) o Rule: RLA imposes on union, in collective bargaining and in making K’s w/ ER’s, duty to represent nonunion or minority members of craft w/o hostile discrimination, fairly, impartially, and in good faith. o Act allows union from making K’s which may be unfavorable on some members, only made on basis of seniority, type of work performed, competence and skill required…  NOT ON RACE o Further, U must consider request of nonunion members of craft, and give them notice and opportunity of hearing upon its proposed action Notes: o NLRA unions have same duty under §9(a) as RLA. o Constitutional analogy – Union is like Congress in it must have duty to protect equally interests of members of the craft just as Const imposes upon a legislature to give equal protection for those it for whom legislates. P. 158 mats o court recognizes that union (as exclusive statutory bargaining agent) has power similar to that of a legislative body to create and restrict the rights of those it represents  court reasons that congress must have meant a similar duty on the union to give equal protection to employees it represents o union’s duty early of fair representation extends to the administration of the collective bargaining agreement—and especially its grievance and arbitration provisions, no less than to its negotiation 41

o o o

unfair representation claims: doctrine of unfair representation has become a device for limited judicial oversight of a wide range of union decisions in both the negotiation and administration of collective bargaining agreements o applies ONLY to union in its representative capacity, NOT its internal operations both board and courts have jurisdiction to hear unfair representation cases, even though the courts have also held that the board may treat unfair representation as an unfair labor practice o result: employees can bring unfair representation claims in state court, federal court or NLRB  this results in perhaps two different lines of cases developing- one in courts and one in NLRB


Nature of duty to bargain -two questions:
  what is the nature of the duty? (what obligations impose upon ER and U) What is scope of duty? (what subjects are they obligated to bargain about?

--Duty to bargain in ―good faith: - sincere purpose of reaching an agreement if possible. §8d- congress attempts to define duty—duty to confer in good faith Sincere, serious effort to reach acceptable common ground Note: Duty to bargain in good faith does not compel either party to agree to a proposal or require the making of a concession the duty and the limit are necessarily in conflict with each other!  criticism: if duty to bargain in good faith means nothing more than bargaining with a sincere purpose to reach an agreement, then the inquiry focuses entirely upon the subjective state of mind of the employer or union which is charged with violating that duty doesn’t that mean that union can’t be determined to violate the duty because the union always wants to reach an agreement!? Quandary!  Per-Se violations of duty to bargain collectively w/o looking at statuts: o employer refuses upon request to produce information about employment situation (Truitt) o Unilateral changes in terms and conditions of employment (until parties have bargained in good faith to impasse) (Katz)  government role in determining results: NONE o government is not to influence substantive terms of employment (wages, hours, benefits, working conditions, etc.) o Collective bargaining is not to be determined directly or indirectly by government, rather, they are to be bargained out or fought out by the parties o use of economic weapons on both sides (free play of economic forces) is an integral part of the practice of collective bargaining conferIV. Duty to Disclose: Truitt, SC (p. 396)  RULE: ER who ―Pleads poverty‖ in negotiations must produce evidence of its financial position upon request by union. o Not an automatic rule!  Must be decided by Trier of fact in circumstances of particular case.  Pleading Poverty = ER must assert an inability to pay (NOT UNWILLINGNESS) o Here, employer claimed it could not afford to make the wage increase requested by the union –says it would destroy it financially. Union requests financial documents to support this position.  SC in Truitt: creates a narrow per se rule requiring employer to disclose financial information on demand when it makes its economic status relevant by claiming economic hardship (pleads poverty)

RULES about INFO! o Duty to provide information not limited to financial info in ―pleading poverty…‖  ER has duty to provide ―relevant info needed U for performance of its duties as labor bargaining rep‖ 42



Duty to disclose if there is EVEN A PROBABILITY that info sought is relevant to collective bargaining process! - ACME, SC 1967 Info relating to terms of employment of EE’s in bargaining unit is presumptively relevant to bargainable issues.  When info is about matters outside bargaining unit, U has burden of demonstrating relevance.  Relevancy threshold is low. If info is RELEVANT, ER has burden to provide good reason why U’s request should be denied.  Substantial and legit bus interest in preserving confidentiality  Sensitive personal info about EE’s obtained w/ confidentialiity, w/o EE’s consent.  EE test scores/medical info


Acme - SC - extends duty to disclose beyond the period of contract negotiations and applies to labor management relations during the term of an agreement

IN THE NEGOTIATIONS! RULES! A-1 King Size Sandwiches – SC, 1984, p. 39 casenotes  Bargaining, ER demands control over almost everything.  Rule: Yes, ER engages in ―surface bargaining‖ where its proposals are so harsh, unreasonable, that they are automatically unacceptable o Demanding such control Leaves no room for good faith negotiations!  Surface bargaining – occurs where fundamental areas of bargaining are closed off due to entrenched positions.  Entrenchment forecloses areas of negotiation and the bargainng energies are wasted o Only where basic ER issues are subject to discussion can true collective bargaining occur. HYPOS o So, if Union wants to argue something, ER MUST CONSIDER WHAT THEY HAVE TO SAY!!!  If you don’t want to even listen, then you are NOT conferring, therefore, good faith/bad faith is irrelevant!!!!  So, Board says you have to at least listen to what other side has to say. STATUTE SAYS ―CONFER!‖ o Can: This statutory provision codifies how collective bargaining traditionally works. So, board says this employer, or one who says ―I only do it in writing‖ instead of face to face, is Violating his statutory duty to confer.


2nd HYPO: (slight variation): ER, also feels strongly about Union shops, but will listen to all proposals, BUT precondition, ER will (on principle, matter of conscious) NOT DISCUSS UNION SHOP! o ER says I wont agree to anything unless you say its open shop. So, no point in discussing anything else, not until you agree its Open Shop K.  Has this ER violated 8a5? o This ER is refusing to negotiate about other conditions/terms until he gets what he wants about union shop.  Board says, if other side wants to talk about it, and it fits statutory definition of ―subject of mandatory bargaining‖, each side MUST BE PREPARED TO NEGOTIATE THAT SUBJECT  Yes, union can REFUSE TO AGREE to this subject  But  ER cannot refuse to discuss it outright! 3rd Hypo: ER comes to meeting, Union submits proposals and tells ER what it wants (wages, hours,etc), and ER listens carefully, asks questions, takes notes… and finally ER says ―We understand your position, and its not acceptable. We don’t agree to it. We have nothing more to talk about. When you will modify your position, we will be ready to meet/negotiate.‖ o Union says, well, what is acceptable then? o ER says: NO! Not responding until you come back.  Q: Has this ER violated 8(a)(5) by refusing to offer counter-proposal? 43


o o

A: Can: some might say the ER is just using a bargaining technique. o How can we say he must use this if the statute says he doesn’t have to make any concessions? Q: Any argument the other way? A: you could argue the counter-proposal is harmful to bargaining, and is forcing a concession.  Legislative history shows: Board and courts say yes, ER must at least be prepared to state his position, and WHAT WOULD BE ACCEPTIBLE by way of initial proposal, or, a counter-proposal.  So, ER has to at least tell the Union whats on the table and say what he will accept.



HYPO 4 – suppose Er comes to 1st session and union outlines demands, and ER says its unacceptable and makes counterproposal w/ all necessary items and says ―take it or leave it‖ – anything else will be unacceptable, we won’t deviate at ALL from our proposal. o Has this ER violated 8a5 duty to bargain in good faith? Here, our employer has taken an initial position, and has made it clear he has a predetermined resolve not to vary from it to the slightest degree. ―Collective bargaining isn’t just formal meetings….while each maintains attitude of take it or leave it‖ Our ER here has a ―take it or leave it‖ attitude! -Can: **it is IMPOSSIBLE to reconcile this w/ statute that says nobody has to agree/concede to anything!!!‖ -to some extent, if you can’t come in w/ take it or leave it attitude, you’re being forced to concede to something! This ER has not shown bad faith in any other way, willing to talk, bargain, put his proposal on the table…here, even though ER is adamant, he would have VIOLATION OF 8(a)(5).

 


Parties can say they wont talk about certain cost things until they agree on non-economic provisions of the K Can: If ER insists upon doing this and not negotiating economics, and union files 8a5, BOARD WILL FIND A VIOLATION! o CONDITIONING BARGAINING ON MANDATORY SUBJECTS on REACHING AGREEMENTS ON OTHER MANDATORY SUBJECTS  But, it’s a fine line by Board….they are not supposed to regulate bargaining to influence outcome, but they kind of are here…. o ER is not in bad faith, just wants agreement.  ―I, ER, know they want to do economics, so by doing non-economic aspects first, I have a chance of getting what I want!‖  Other side….Can: Yes, It probably facilitates/advances the bargaining process to discuss economics…. CAN: board talks in terms of good faith, but here, this technique (trying to get union to bargain w/ itself) Is so INCONSISTENT w/ nature of collective bargaining process that it is PER-SE UNLAWFUL!

Final Hypo: Like A1 King Size Sandwiches… CAN: SHEER ADAMANCE IS NOT A SUFFICIENT BASIS TO FIND THE BAD FAITH…THERE HAS TO BE SOMETHING IN ADDITION.  YOU MUST LOOK AT ER’s INTENTION!!! Applying most traditional bad faith definition…this would have left the ER and Union worse off than if they had an agreement at all!! Can: Q: is this accurate characterization? A: YES! It is. The company basically gave itself TOTAL UNILATERAL control over economic things like wages. Company would have final decision-making power. And, in mgmt rights’ clause, it gave itself total control over scheduling, overtime, disciplining, job content, work assignments, layoff/recall…  virtually all terms and conditions of employment!


V. Economic Weapons and Unilateral Changes
Insurance Agents’ International Union - SC, 1960 (p. 44)  Facts: During negotiations, U began using tactics to place economic pressure on Prudential. Sit ins, messing around, etc. o Holding: No, Union does not fail to bargain in good faith in violation of §8(b)(3) by sponsoring on the job conduct designed to interfere w/ ER’s business and palce economic pressure on him at same time contract negotiations are occurring.

Katz – SC, 1962 (45)  Facts: during K negotiations w/ U, ER Katz made 3 new unilateral changes. o Rule: Even though no bad faith, and ER wants to reach agreement, unilateral action by ER on mandatory subjects can be ULP in violation of 8a5.  Here, dangers of unilateral changes created problems for collective bargaining, would split up union and cause problems and inconsistencies. 1. ONLY AFTER IMPASSE can ER MAKE UNILATERAL CHANGES after trying to bargain in good faith! o –p. 167 – allows party to make changes and break impasse and encourage future collective bargaining. --So katz, ER violates 8a5 by making unilateral changes in terms and conditions w/o first bargaining in good faith to impasse. Impasse - p. 167, ―deadlocked‖ and neither party can move from its position despite best efforts to reach agreement. p.. 168, impasse test exceptions to Katz Test -- you can make unilateral changes prior to impasse if: 1) Union insists on avoiding/delaying bargaining 2) Economic exigencies or business emergencies compel prompt action (p.169 mats) 

Rule: ER STILL CAN NOT IMPLEMENT PROPOSAL FOR MERIT INCREASE SYSTEM, even after impasse! o P. 170 bottom - Rule: Arbitration is excluded from unilateral changes rule 1. So is union-shop provisions and dues checkoff

GE Case –2d Cir p. 426 - - Boulwarism: - 2 elements (2nd dot last page of notes> 1) ER surveys EE’s to find what they want and puts together package for CBA and presents as ―fair, firm, first offer‖ – take it or leave it. 2) ER does publicity campaign to explain why its fair and to show public/EE’s why its good!    Although they wanted to reach agreement, Boulwarism was violation of 8(a)(5) Take it or leave it Communications to convince EE’s denigrated bargaining reps and was direct dealing with EE’s unlawfully Signing just one possible agreement is NOT good faith.

Mandatory and Permissive Subjects! – P 174  ER is free to bargain to impasse over K provision which gives it unilateral control of K during term over mandatory subjects. Effects Bargaining – p. 177


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