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					For exam: say that it is unclear but these are considerations on each side - then say which
side is more likely to prevail

                            4 PHASES OF LABOR HISTORY

   1)   19th Century
   2)   Early 20th Century
   3)   1935 (New Deal Era of FDR in response to Depression) – 1970s
   4)   19070s – Now

Phase 1 – 19th C
-Unions treated as criminal conspiracies, against the law (Philadelphia Cordwainers Case,
1806, judge said striking was illegal, conspiracy b/c encroaches on state’s leg power)
-Later, move towards unions themselves not being criminalized, but their actions were
(striking, threats) – then move towards civil tort law (property damage, interference with
-employers start to seek injunctive relief against unions (this hurts unions more than
money damages)
-contractual model of employment at will
-mass production means emphasis on unskilled labor and managerial control

Phase 2 – early 20th C.
-shift from state to federal law by using Sherman Antitrust Act of 1890 (combinations in
restraint of trade violate Act) – Danburry Hatters says fed antitrust law applies to unions
(hatters union wants Danburry unionized, strike)
-development of national labor organizations that want to represent all workers (not just
craft unions/skilled anymore); AFL wants better wages, conditions, wants to organize
through CB
-Clayton Act: amends Sherman Antitrust and says unions are NOT ILLEGAL, no more
-Duplex Printing case: SC said antitrust law still applies to secondary strikes though, so
injunction OK (but otherwise no more fed ct injunctions)
-Norris LaGuardia Act – makes it clear that antitrust laws DO NOT apply to unions

Phase 3 – Collective Bargaining/New Deal
-law allows unions to strike, boycott – employers can also use economic power (fire
*NLRA (Wagner Act), 1935 – swings policy towards affirmatively encouraging
CB/labor unions; Sec 7 rights of workers
-Wagner’s investigations show workers support real unions over company unions;
company unions banned
-est idea of majority rule (elections for unions to represent workers)
-creates NLRB for strong enforcement of the Act
-Taft-Hartley (1947) later adds list of ULPs that union cannot commit
Phase 4: 1970s - today

                     National Labor Relations/Wagner Act (1935)

Section 1, Preamble
-useful guide since statute is in general terms
        1) industrial democracy (workers need a voice)
        2) equalize bargaining power of both parties, eliminate duress, create true liberty
           of K
        3) CB will raise workers’ earnings – this will ensure mass purchasing power
        4) Industrial peace, reduce strikes
        5) Freedom of choice by workers, majority rule elections

Section 7: announces workers’ rights
   1) free association/right to organize into unions
   2) right to engage in collective bargaining
   3) right to engage in strikes, group protests

Section 8: enforcement (deals with ULPs on both sides)
-8(a) are employer ULPs, 8(b) are union ULPs

8(a)(1) – employer cannot coerce or interfere with workers exercising their Sec 7 rights
        **Ct adds: unless sufficient business interest!
8(a)(2) – ban on company unions;
8(a)(3) – no discrimination against workers because they support/don’t support the union
        (changes employment at will where you could fire worker for supporting union)
8(a)(4) – can’t retaliate against/penalize workers who file charges, or give testimony, or
        otherwise assert their rights under the statute
8(a)(5) – employer has a duty to bargain with duly-formed union
**If employer violates 2-5, they also violate 1

1947 Amendments – Taft Hartley (also called the Labor Management Relations Act)
*adds union ULPs

8(b)(1) – illegal for unions to interfere with worker rights; can’t coerce them if they
        don’t’ want to unionize
8(b)(2) – union can’t pressure employers to violate worker rights; can’t bargain with the
        employer to fire the worker
8(b)(3) – duty of unions to bargain in good faith, just like 8(a)(5)
8(b)(4) – a ban on secondary activity/strikes
8(c) – employers have the right of free speech (previously said employers couldn’t make
aggressive speeches against unions b/c intimidation)

Section 9 – regulates the majority rule elections
9(a) - employer has obligation to bargain with unions chose by the majority

Section 10 – sets out NLRB’s remedial powers:
       10(c) – take such affirmative action…as will effectuate the policies of this act

The National Labor Relations Board
-has 5 members and a GC (appointed by the Pres)
-5 members are like judges, while GC is prosecutor and investigator
-30 regional offices under the GC, investigate and conduct the elections

   1) ULP Cases
      Part (worker, union, or employer) files a charge, staff attorneys investigate
      -can dismiss or settle, or issue complaint and it goes forward to trial
      *the lawyer will be the govt, not whoever is bringing the case (these are public
      rights); ALJs preside; if appealed, goes to the 5 members
      -Bd cannot issues sanctions, so if party doesn’t comply, it goes right to the Fed Ct
      of Appeals (NLRB v. xyz), Ct of Appeals can then issue sanctions

   2) Representation cases (relating to the elections)
      -start with petition to hold election (filed by union), need ―showing of interest‖ of
      about 30% workers who sign cards saying they support union
      -preliminary findings as to who is in the BU and what workers are eligible to vote
      -hold election: if union wins majority, it is the bargaining agent of the workers
      (either can file objections to the election, unfair, threats, etc)
      *employer cannot appeal decision of the Bd to fed ct (as they can in ULP case)
      *the end run around this rule: employer must refuse to bargain, which is an
      8(a)(5) ULP, Bd will find on the 8a5 ULP and this can be appealed to the Ct of

       Note that workers can file decertification petition if they want to revote and get
       rid of the union (rule that have to wait 1 year after election…but unsure if get
       union by card check!)

What is union’s strategy to organize?
  1) Hot shops – workplace where workers are unhappy (maybe well-liked worker was
       fired, supervisors are unfair, health care coverage was just withdraw, wages too
   2) Strategic organizing – look for sectors that seem ripe for unionizing; currently
      focusing on service sector instead of manufacturing because it is growing and not
      as susceptible to foreign competition (hotel workers, janitors)
      *look for places where workers are already in motion
      -workers might come to the union, union organizer must decide whether to
      allocate resources to attempting to unionize these workers

 -Union will set up committee of activist workers, goal to persuade other workers to
 support union
 *A 30% showing of interest (cards) is required to get election
 -try to keep this secret from employer, or else the coercion may start
 -typically union won’t file election petition unless have closer to 60%, because don’t
 want to waste resources, employer likely to wage anti-union war

 -Union will then send recognition letter to the employer – if employer refuses to
 bargain (usually does), union must file petition and go through official NLRB election

Anti-union campaign, huge, lots of $ to spend – typically argue that your wages depend
on health of the company, union is outsider and mgmt should take care of the company,
union can’t guarantee you anything, will use family metaphor
-Union will respond, saying we represent the workers, will not make unreasonable
demands to force company out of business, will try to raise wages, better health and
pensions, will have arb system (better than employment at will) - will emphasize that
mgmt and workers have conflicting interests

Unionization rates:
1920s – 8% unionized
1950/60s – 37% unionized
2006 – 12%
-workers’ wages have not grown in this period; gender gap is closing quite a bit, but
because men’s wages fall, not b/c women’s rise
Shift of US politics to the right since Reagan – no labor party here; labor is the core of
Dem’s voter turnout
Poverty – 20% of fulltime workers are in poverty
Benefits for workers also have deteriorated, health insurance, pensions, etc.
Today, top 1% own 40% of the wealth

―Threat effect‖ -> business in sectors not unionized will change labor/emp practices to
match what unions have achieved in an effort to stave off unionization in their industries

3 Models of Workplace Regulation
1) Laissez faire/individualist model
   -decision making controlled by shareholders
   Adair, Lochner cases: SC protects freedom of contract, state govt cannot step in to
   regulate labor and health at the bakery
   -idea that any govt intervention intrudes on autonomy; employer and employees
   are equals (contract is their free will)
   -labor market will maximize social welfare by maximizing production., free
   market (best workers will move to high wage/high productivity b/c companies
   will compete for them)
   -unions are cartels/monopolies, they want to control the supply and drive up
   prices (control training, how many workers there are)
   -companies will use less labor if wages driven up in unionized sector (will use
   more capital instead, machines, etc) – more labor used in non-union sectors
   because wages are less *unions thus increase inequality between union and
   nonunion sectors)

2) Industrial Democracy/Collective Bargaining
   -decision making controlled by both mgmt and workers
   -workplace is mini-political system and should use democracy
   -emphasizes the worker’s autonomy; purge labor market of duress to get real
   freedom of K
   -should increase bargaining power of workers even if diminishes profits of
   owners; decreasing marginal utility of money (if Bill Gates gets another dollar,
   doesn’t increase his happiness that much, poor workers get much more happiness
   from it) *so you increase total utility by shifting bargaining power to give more $
   to poor workers
-point to threat effect (so there is equality between union and non-union sectors);
unions increase equality btw workers and mgmt, and unions also increase
equality by favoring compressed pay scales across firms/jobs (wages close
   -political: more than a web of Ks, workplace is authority relationship; rules
   imposed on citizens, penalty if violate
   -pluralist democracy: different interest groups get together and bargain (managers
   and workers); statute like constitution; adjudication/arbitration like the judiciary
   -cooperative goal of expanding the pie: mgmt wants workers to tell how to keep it
   most efficient, don’t demand excessive wages so more surplus to invest; mgmt
   commits to higher wages down the road through the union (union provides trust)
   -free rider problem solved by acting collectively (otherwise nothing would get
   done/inefficiency); need this to make workplace safer
   *mgmt and labor share interests on production; conflict on how to divvy it up
   (union creates trust for long term relationships)

3) Radical Democracy/Worker Controlled Firm
   -decision making controlled by workers through voting in mgmt
   -employees elect managers (direct democracy in the workplace); instead of the
   capital electing the managers
       -aligns workers’ interest with firm profits
       -shareholders can just leave if unhappy (workers have higher exit costs); workers
       are more locked in so should thus have more control
       efficiency: workers would monitor each other, try to increase the pie
       -solves trust problem and eliminates tension btwn workers and mgmt
       -critics would say it is tough to raise capital
       – laborers must be able to participate or democracy is undermined

 p114 Reading – Critique Model 3
-if workers control workplace, suppliers of capital face greater risk and will demand
higher returns (thus workers have to pay more to the shareholders); this risk premium
makes the business less efficient
-also says workers are short-sighted: only care about profitability of company while they
are there – short sighted technology investments, whereas investors will invest in
anything as long as pays in the future
(prof says shareholders are also short sighted, want to max stock prices quarter to quarter)

Handsmen article
-law firms are radical democracies among the partners
-Risk if workers own the firm: what they own (savings, etc) is locked into the firm and
they can’t diversify this (whereas shareholders can diversify and invest in a bunch of
different companies) *workers put all savings into the one firm they work for

Factors that Affect Bargaining Power

*Goal of CB is to purge duress
*Duress is so pervasive in all labor Ks, need to restructure market before the fact of
making Ks, use CB

Union’s ability to pressure owners/managers
      -try to unionize the whole relevant market: if only some are unionized, unionized
      sector at risk
      *goal of unions is to take wages out of competition
      -after unionize whole sector, goal is to get them all under one union (then
      companies can’t induce unions to compete with each other); then get centralized
      bargaining structure for this one union

Micro Factors that Affect Bargaining Power (factors at each firm)
-Skilled have higher bargaining power than unskilled (unskilled easier to replace in
-Depends on what percent labor cost is of the total cost company spends (if the labor
force is only 1% of company’s expenditures, can easily agree to double your wages; but
not so if labor is 50% of company’s costs)
-Shop-floor factors: *fundamental idea of solidarity, required for bargaining power
(because need all to strike, no free riders)
       -homogeneous work., similar jobs means workers feel more sense of common
       interests, cohesive
       -can workers move around workplace and talk to each other? (technology may
       affect this)
       -Residential patterns: part of same community after they leave work? Social

Macro Factors Affecting Bargaining Power
-Level of unemployment: workers worry more about striking in high unemployment
because very easy to replace them and they won’t be able to find another job
        *Fed Reserve will raise interest rates if wages getting too high (unemployment
        used to keep workers in check)
-Social Safety Net – how good is welfare, does govt provide health insurance,
unemployment coverage? Greater the social safety net, more bargaining power workers

Employer’s Capacity to Raise Wages:
-How much competition in the industry? If company can easily raise its prices (less
competition), then easier to give workers a pay raise
-Is transportation a high cost? If not, maybe outsource to cheaper countries (bad for
workers here) -same with trade barriers (better for workers if its harder for cheaper intl
competitors to get into US market)
-Is sector regulated by govt? If so, less price competition (lots of dereg since 70s, bad for
workers, telecom, airline)
-Does company control scarce resources? If so, company has less competition (better for

-Globalization: since 70s, intense competition in markets; lower tariffs on foreign trade
so more stuff coming into US, (hard for US companies to raise their prices)
       -reduction in transportation and communication costs globally opens US to more
       competition from Asia, etc

-Scope of unionization: firm more willing to give into unionization if whole industry
unionized b/c costs will rise for all firms

VI. Time and Place Channels of Communication

a. Republic Aviation v. NLRB, p117
facts: Company had no solicitation policy, can not hand out papers on work property;
employee passed out union cards during his lunch break, he was warned, he did it again,
and was fired.
Ct holds that this firing is an ULP, violates 8(1) (*this is before T-H Act, this is same as
8(a)(1) today…)
Test: Lunch time is workers’ time, must be able to talk, do their own thing, even on work
property – cannot ban activity during this time
Presumption during work time: it is OK to fire workers doing this during work time, but
this can be rebutted (ex. production is not interrupted, or show that mgmt allows other
soliciting during work time, etc) *but very strong presumption that work time is for work
         *organizing during work time not protected; employer can self-help (not illegal..)
Presumption during non-work time: it is presumably a ULP to fire work during lunch and
other non-work time/right before or after
         *also rebuttable: if it was a safety problem, could disturb the workplace
See footnote 10 on page 117
Balancing test (p.115) -> employee’s right of association v. employer’s right to discipline
-> this test gives us these two rebuttable presumptions (above)
Peculiar statutory interpretation question  where do we get employer’s right to
discipline??? Employees’ rights specifically listed in 8(a)(1)
*Ct has made an implicit assumption that workplace is better if management can control
the work process(bias toward management),
*Prof: would be more legitimate if ct acknowledged this assumption and told us what
drove this implicit recognition
*ct has essentially amended 8(a)(1) – adds that employer can interfere where it has
legitimate reason such as protecting discipline
-Ct assumes Congress must have shared this cultural assumption that employer
should be able to control work process and discipline.

b. Beth Israel Hospital, p 118
Rule: solicitation in areas dedicated to patient care (work areas) is not protected,
employer may ban; solicitation is protected in non-work areas (cafeteria) during non-
work hours

facts: even during non-work time/breaks, banning distributing literature in hospital is not
-presumption from Republic Aviation that solicitation is ok during break time
-it is ok to ban it in the present case because it is the patient care are and is disruptive
*Remember that Republic Aviation ct amended 8(a)(1) to say that can interfere with right
of association when managerial discipline/property interests outweigh association right
*issue to appear in many service jobs -> is solicitation amongst customers too disruptive?

-Hospital cafeteria -> Ct says ban cannot apply there because not devoted to patient care
so will not disrupt business of the hospital enough to outweigh right of association
-regarding the hospital cafeteria, says the ban cannot apply there, because it is not
(*unclear, but seems like cafeteria just for hospital employees, might be a different story
if for patients too)
HYPO: Bloomingdales rule banning solicitation by workers even during breaks on
selling floors
-what degree of disruption? Less than hospitals
-what about Bloomie’s restaurant? – might be more likely to allow ban here because there
are customers too (different from hospital worker cafeteria)
-actual law -> its ok to ban solicitation on the selling floor, ok to fire them; but in store
restaurant, cannot have the ban
**Take away  these judgments are very fact-intensive! A very indeterminate legal
judgment when deciding if it is sufficient to outweigh association interest of employees
-two abstract rights, balancing test gives us very little guidance of how the case will come
out in reality, given the infinite variety of facts
*better decision will take the two rights on directly, rather than just glossing over the fact
that we are balancing these two things

HYPO – rule says no solicitation on college walk, but there are always student groups
protesting – could argue that we want to encourage debate on vital issues, we want
students exposed to this

**Remember important distinction between unprotected and illegal –
-It is ok to fire workers if solicitation is unprotected, but it is not illegal for employees to
pass out papers *we are looking at whether the employer’s retaliatory action is

c. NLRB v. Magnavox, p. 121

Rule: Union/workers cannot wait the right of solicitation, it is a fundamental right under
Sec 7
Why: it infringes on rights of dissident employees
Facts: Union is in negotiations with company; management bans any solicitation on work
premises (work time or free time); instead allows union to post message on bulletin
-this situation was arrived at by bargaining between union and employer
**Ct says this is not ok, union cannot agree to this – union cannot waive workers’ rights
to association/solicitation

-However, the right to strike may be waived by the union, see statutory supplement
p115) – this is ok and is one of the benefits union may hand over to company during CB
Difference between association and striking rights ->
-Analogy to Constitutional law, majority can do what it wants but can’t undermine
certain rules
-union is the majority, it cannot get rid of right of association because undermines
industrial democracy
-workers must be able to talk (about getting rid of union, replacing it)
*workers still need power, even after they organize! Ensure union is representing their
-even if workers wanted to agree to give up their associational rights, they cannot because
would disable themselves or other workers down the line if changed their minds about the

Right to strike ->can waive right to strike during a K – could argue that it shouldn’t be
waivable at any time (workers need to be able to backup their grievances)
*but protection in that workers can use group protests that are not authorized by union to

d. Lechmere case, p132

Sec 7 applies only to employees; nonemployees such as union organizers get no
protection with respect to company property!
-can overcome by showing access is otherwise unfeasible (when workers are housed on
company property)
-turns organizational rights into sterile rights
-Republic Aviation does not apply because we are talking about access by union
organizers, not Lechmere employees
--Union organizers place handbills on cars in parking lot, which is mostly employees –
are they allowed in the parking lot?
HOLD: (Bd says it was ULP to exclude); SC says union organizers do not have
protection to do this, they have other ways to access the employees (phone calls, ads,
*they are not entitled to success in reaching employees, just access
-collected license plate #s, not able to reach very many

Babcock and Wilcox case– most of the people coming in and out of parking lots are just
employees, while in Lechmere there are customers of Lechmere and additional stores in
plaza – so even harder for organizers to contact employees and know who is who

**Association v. property rights is very abstract!
-workers want communication with union staff; company wants to stop encroachment on
its property
**FACTS are really important in winning these cases!
Presumption that workers themselves can solicit in parking lot during breaks – Lechmere
would of course argue that this disrupts & deters customers, affects safety

BUT, its already a busy parking lot, so what difference does it make; there may be other
non-customers walking around, so union reps should be allowed to

*is the incremental damage to property enough to outweigh the loss in association rights?
Prof thinks this is not very important for the property
**a formalistic decision by the Ct - ct likes property rights in the abstract and allows this
to trump any gain workers might achieve with access – ct says alternative ways to reach

Remember that if company bans union reps solicitation, all soliciting must be banned or
there is a ULP ex) Red Cross

History: workers used to live very close to where they worked, now in suburbs; no longer
concentrated in single area, harder to union orgs to reach **companies try to set up to
avoid a company town of workers, know that this is easier to organize (workers see each
other all the time at home, chat, etc)

Lechmere exception!!! – logging, mountain camp, etc – when workers stay/live where
they work, cannot be reached off property

**Sec 2 of NLR Act says ―employee‖ includes any employee, not just that of the
-language specifically set out to overrule Duplex Printing case
**so union organizers are employees and they should count as employees, Lechmere
should not distinguish just because they are not employees of the Lechmere company!!!!
--Ct privileges workers of Lechmere rather than workers as broad class, sets boundaries

e. Captive Audience Speeches, p 144
-employer has unique advantage to speak to employees during work time; union wants
equal time
*Ct sets up the presumption that unions do NOT get equal time/right to reply

Avondale says denial of equal time is presumptively valid; to rebut it, must show lack of
alternative means of communication for the union
-Peerless Plywood rule: no captive audience speech within 24 hrs of election
-union’s alternative options: can go door to door, phone mail, while mgmt can’t visit or
call but can only mail
*mgmt clearly has advantage with these rules

-union’s ability to call workers, etc, is just not same as captive audience; union has to get
them to give up their free time, while employer can coerce them into listening
-workers have usually never seen top mgmt, so feel important when they speak (implicit
-but other side would say: it is ultimately a secret ballot, and workers know to discount
the propaganda *but studies show that captive audience speech is really very powerful

8(a)(1): employer can’t interfere with workers’ right of association [unless business
necessity or property right; added by Public Aviation]
8(a)(3): employer cannot discriminate among union and anti-union speech
history: FDR Bd said captive speeches were inherently intimidating and employer cannot
give them
-changes when T-H passed, says captive speech not employer ULP unless threat or
benefit; but union gets right of reply
Eisenhower bd – gets rid of right of reply by union
Kennedy bd: union must get list of employees when file election petition (thinks this
makes it less crucial for union to get on company property) *not helpful, since union
most needs the list when getting that 30% card, not afterwards

VII. Instrumental Incentives Employer can confer or withhold

Pretext case
NLRB v. Exchange Parts, p.188
**What is employer’s right to give economic benefits right before representation
2 prong test for benefits given by management during an organizing drive
         1) Were they intended to influence outcome of election?
         2) Are they likely to produce this result?
         *Bahrenberg believes this is all very paternalistic
-SC held that employer had intention to make them vote against union (speech
insinuating all future benefits within its control)
*Tough place for employer: if grant benefits, look like violating this; if don’t grant, look
bad to workers
-Employer has inherent threat that benefits could dry up if employees don’t cooperate
-Also strange position for union: don’t want to file ULP for company giving employees
benefits, cant try to take them away! (union would turn it around and say the reason you
got these benefits is because you are starting to organize, about to vote)
*Ct worried that employers can manipulate by taking away benefits right after election/no
union; when decide whether to unionize, employees compare union and no-union options
(wages, benefits, dues) – affects calculus if benefits increased before election
*Paternalism: why would ct not let workers deal with this and decide, why take away the
choice? Govt ruling out a choice for grown adults
         -One justification: workers making this decision for future employees down the
line (if union fails to get vote, very demoralizing and not likely to try again for many
years), so even if see right after vote that they were tricked and they then want the union,
it will take so long to mobilize against o get to a vote! (feel like we can regulate people’s
choices if their actions have effect on 3rd parties), will also affect workers in similar
         -maybe ct needs to do this to actually make it a free choice, we recognize
weakness in ourselves (myopic)

General themes:
   1) Channels of Communication (all the cases we just covered before exchange parts)
   2) Instrumental Incentives (how law affects costs and benefits presented to workers
      as they consider whether to unionize – starting with Exchange Parts and on)
   3) Third category…
b. Edward G Budd Mfg., p229 (3rd Cir)
*A pretext case – employee can’t be fired based on his union support
facts: guy is awful employee (drunk, late, women); but not initially fired because he is
great liaison in employer-run organization
-he stops supporting company union and goes toward real union (CIO) – fired!
Hold: there is enough evidence that firing was based on his union support, not his bad
Case is core example of 8(a)(3): no firing based on union activity
(typically, worker workings as well as others but gets fired) – here, worker admits he was
crappy, but says would have stayed on if continued to support company union
pretext: company must prove it had legitimate motive (real performance issues), not anti-
union motive – here, bad performance was just pretext – all depends on fact finder

c. Mixed-motive cases – worker fired for both legitimate reasons and anti-union reasons
-tough case evidence-wise

Wright Line case, p232 – a sufficient independent motive defense!
Test: was the anti-union animus a substantial or motivating factor in the discharge?
(burden of proof on the GC of union, then shifts to company to show legitimate reasons
alone were sufficient)
-employer’s business justification is affirmative defense
-strategy to evaluate: basically ―assume away‖ the anti-union motive, and see if the
legitimate motive would have sufficed on its own.

Prof’s Hypo Model:
*need 100 points of motivation to fire a worker; if 100 are legitimate, it is fair to fire
       Anti-U                Lateness        ULP???
1)     250                   95              Yes
2)     55                    55              Yes
3)     15                    90              Yes
4)     95                    110             No
5)     600                   110             No

Does the Wright Line model make sense?
#2 and 3: it is ULP even though antiunion motive did not cause the firing all by itself
(under 100) - a classic ―but for‖ test, because no firing without it
#5 -> antiunion is a huge factor, but not ULP because would have been fired on
legitimate terms (prof thinks it should be)
**Lots of uncertainty in the real world with assigning numbers like this
-but, it’s not fair for employer to have his hands tied and not be able to fire, when
legitimately over 100 points (even though 600 anti points)

Based on individual compensation model: if would have lost job anyway (legitimate),
then no additional damages awarded
-instead of this compensatory model, could focus on D and use deterrence model;
deterrence model would have opposite result in #5.

Wright Line – reviewing agency, ct must ask if it was a REASONABLE interpretation
(not revisiting to see if agency decided as the ct would decide)

**a very complicated psychological understanding and inquiry! (employer may not even
know its subconscious motives!)
-subjective test – trying to decide what was in the mind of the manager; ALJ has to
psychoanalyze the manager
*SC has recognized the unconscious dynamic and has endorsed it
**Perhaps an objective test would be better, where we look at factors other than motive!
(ALJ could look at all facts and decide if employee should be fired)

VIII. Constitutional Regulation of Employee’s Freedom of Association

a. Hudgens v. NLRB (1976) p._____
-SC held no 1st amd protection for union picketing because mall is private property
*overruled Logan Valley that said mall was like company town
-allowing only union speech would be content discrimination
facts: workers strike at Butler warehouse and want to come into mall to picket Butler
show store (retailer) – would be primary because both places owned by Butler
-Section 7 right, 1st amd free speech right
Mall is not a state actor (Constit protects from govt violation of your right, don’t have
rights against individuals); need to have state action
        Ct goes through history of state action doctrine:
-Marsh 1946: Jehovas witness passing out flyers in company town; the public function of
the property made it state action (company town just like any other town where common
property owned by govt; company can’t throw you out for picketing, just as govt cant)
-Logan Valley 1968: picketed in mall against stores that used non-union laborers; Ct
allows it because mall is public area (like public forum) – carries forward the ―public
function‖ theory
-Lloyd 1972 – enter mall to protest war (political speech, not labor); Ct says speech not
related to business of the mall and there are alternative locations – so it doesn’t overrule
Logan Valley, but just adds another requirement: related and alternatives?

*Seems that Hudgens would be controlled by Logan Valley, but NO – ct says no state
action; workers NOT allowed to picket under 1st amd (Ct overrules Logan Valley, no
more free speech right on shopping center/malls)
-shopping center no longer considered a town square/forum (p. 666 mall not exercising
full municipal functions or powers). Shopping mall doesn’t have sewers, schools, town
hall, or roadslooks more like private property than company town.
-Allows court to avoid the merits question of whether it is content based discrimination
-Prof says you can claim state action in all of these because private party calling for
police to enforce trespass law, so state involved in enforcing law
-If got past state action, would have to balance free speech v. property rights
*Hudgens is before Lechmere

b. ATA v. Green Giant, 1975, p125 supp?
*held that company is allowed to deny union access to farm workers at company labor
(Agricultural workers not covered by NLRA, so going on Constitution only)
rationale: this is not like the company town in Marsh, doesn’t have all the attributes of
public property since camp wasn’t open to public
 facts: GG fences off space, union workers try to approach workers and are threatened
with trespass/arrest
-Ag workers excluded because in the south, most are Black (white supremacy, elites want
labor to remain low wage); Wagner goes along with this b/c Dem alliance with southern

-union claims if it functions as municipality, must give protection to free speech just as
govt must (Marsh was a company town, whole town owned by private shipping, Jev’s
witness allowed access); still good law even though Hudgens said shopping center mall is
not state action

Requirements for being like a company town: 1) Does it keep everyone out? If close door
to everyone, 1st amd doesn’t apply
-strange that the more the land owner separates the property, the less free speech rights
apply (here there is a fence and security guards)
*Hudgens overrules Logan Valley and Lloyd cases –these two said could come into malls
if speech was related to the property and there was no alternative place to reach the

-Have to prove that really can’t reach them off of the property (they never leave
plantation, etc); union didn’t produce this evidence

-always check state constitution and state statutes to see if broader protection there, a
handful of states that have passed laws protecting agricultural workers, kind of like the

c. Pruneyard Shopping (1980) Supp p130
facts: high school students soliciting about UN resolution in shopping center parking lot;
policy that visitors cannot hand out materials not related to commercial purpose
-similar to Lloyd case, where young people protest war on mall property and ct says can’t
do it
*but here, the Cal SC held that Cal. Constitution protects speech in shopping centers even
when privately owned (goes beyond 1st A protection)
*SC says this Cal rule is ok, it doesn’t violate 1st A or property rights – state can expand
on Const minimum as long as don’t bump into another fed right
*Remember that we don’t reach 1st A questions unless there is state action – But Ct here
ignores that and doesn’t ask if there is state action! (but east to manipulate, can always
find it if you want, state comes in to enforce)

-This is NOT a taking: Cal has taken because don’t have right to exclude; Ct rejects
because there is nothing that impairs value of the property
-use balancing test: free speech v. property - this is minimal intrusion on property
-NLRA seems like intrusion on employer’s property interests *Scalia and Epstein
recently saying Wagner Act should be struck down as a taking! (return to Lochner where
SC strikes down laws that interfere with laissez faire market)

Speech -> no one will attribute kids’ speech to the employer

IX. Government Regulating the Content of Speech

     a. NLRB v. Gissel Packing (1969) p158
-company engaged in coercive speech before the election during org campaign (says
company in bad state last time thought of unionizing, people had to be fired, businesses
went out of businesses in the town b/c unionization)
8(a)(1) says cannot coerce workers
8(c) added by T-H: expressing views is not ULP if no threat of force or promise of
-is this a threat or a prediction? (prediction ok and noncoercive)
3 Criteria for speech to count as prediction: 1) statement must be about objective fact
2) demonstrably probable (must give evidence that shows plant will close) 3) must be
presented as economic necessity that is beyond employer’s control (company can’t say, if
you unionize, we will close this plant because we want to; but we will have to close for
econ reasons if you unionize)
*But is this way really less coercive? Closing because econ reasons?
-Employer’s burden of proof – difficult, because union will say we won’t ask for any
demands that will close the plant down – employer can’t read into the future demands of
-just has to talk about financial conditions and say that if union demands X, we will need
to close (what has union asked for at other companies?)
-union would say this financial info is just being manipulated
*this test forces out info
*Requirement that coercion be shown applies only to ULP cases, as opposed to
representation cases (where Bd is holding elections and Bd must decide if election was
-p155: the laboratory standard---election should take place under conditions as ideal as
possible to determine the uninhibited desires of the employees (General Shoe Case)

*Remember, to make out ULP based on speech must prove coercion (threat, not
*To make case where election has been unfair, don’t have to show coercion because 8(c)
only applies to ULP (Gen Shoe lab test is weaker than coercion test)
-1st Amd Brandenburg test is always in play (if speech going to cause imminent harm,
can be limited)

False Speech
b. Midland National Life Ins. 1982, p ___
-NLRB will not regulate false speech (except forgeries) because don’t want to be
paternalistic to workers
facts: employer speech was a document distributed day before election, said other plants
union represented had negative experiences (strike lead to closings) and said union pays
its officials high and doesn’t give anything back to members
*this pamphlet had false and misleading representations!
-Bd uses ―shopping kart‖ rule, only regulate manner propaganda disseminated in, don’t
regulate false speech (it is not an ULP)
*Employees are smart enough and take propaganda for what it is
*Reagan Bd here says won’t regulate false speech, this is tough like a political campaign,
voters know to discount some as propaganda
-Securities frauds not allowed, but this isn’t condescending to shareholders!
-Prof doesn’t like this rule, thinks it came about b/c new political changes in the Bd
-now employer has incentive to falsify data
*This case doesn’t sit comfortably with Gissel (decided at two different times/politics)
-Gissel all about forcing out inaccurate speech

NLRB election v. political campaign
-NLRB supposed to be neutral but is quite politicized, and media doesn’t check in on it
the way they do with pol campaigns – no independent coverage, no neutral party where
workers can turn for critiques of arguments of fact made by either side
-employer has asymmetrical hold on info and power

c. 3rd Category of Regulated Speech:
Sewell Mfg Co, 1962 – p 178
*Inflammatory (racist) speech --
Facts: during four months before election, employer circulates material that links union to
Af Amer/communism/anti-Christianity, white union officer dancing with black woman
*trying to inflame workers
HOLD: NLRB will not allow inflammatory appeals, too prejudicial – cannot possibly
have free choice in this environment
Constitutional to regulate this speech?
        Group libel law: if defame a whole group, this is not against 1st A
**Here, the NLRB regulates the racist speech because it is inflammatory/highly
emotional and taints workers’ capacity, not because it is racist speech! (so should apply
to other emotionally charged speech but doesn’t, see below…)
-Employer allowed to make facially neutral race statements ex) it is a fact that union
supports civil rights orgs (but doesn’t this sometimes have same effect as blatantly hostile
statements? Could really have just as much impact…)
Two Models
1) Decision-making is all about ideology and emotion, propaganda everywhere, facts are
unimportant, less-rational; campaign conversation should be about fundamental
identity/values (*so NLRB elections should be like pol campaigns) (Midland)
2) Eliminate emotional/prejudicial speech, because equality outweighs free speech
values; give the workers facts, want highly-rational decision-making, what option will
give me the better deal? (Sewell)
-also in General Shoe – laboratory conditions, NLRB election as experiment where must
get rid of taint so workers can make unhindered assessment of what best suits their
*2nd model analogizes to juries (facts, not emotion, rules of evidence punish false speech)

*Prof: Midland assumption that we don’t regulate false speech is just not correct!

Sewell hypo: regulated because emotional inflammable
-workplace drive among all blacks, leaflets accuse management of slavery-like/plantation
– does this taint workers (race inflame against white managers?)
*Interesting Equal Prot question: neutral or only protect Blacks?
-If Sewell really about racism, it should also not allow them to attach all white

*Board could have been honest in Sewell – it is really about stopping racist speech (not
inflammatory), because it is just too bad and we don’t want it in decision-making process
(history of slavery, racism in our country)
**Seems that it is ok for workers to appeal to racial solidarity and condemn white bosses
on ground that workplace is discriminatory
*Decision limited to racially inflammatory speech, rare to go into religion, gender,
politics, etc
        1990s law against hostile work environment (women and minorities); looks like
juries relying entirely on speech in many of these cases
-a captive audience type of speech in workplace (can’t quit, high costs)

d. Legal issues

8(a)(1) – can’t be coercive
Will Bd overturn election and require a new one?
-General Shoe is lower standard than coercion, just asks if there is laboratory conditions
that secure free choice
-if ULP under 8a1, there will automatically be damage to lab conditions, sufficient to
overturn election
-8c – speech is not ULP unless it has threats of reprisal or promise of benefit

X. Remedies

NLRB v. Gissel Packing, p. 324 (1969)s
*NLRB can order company to bargain with union even w/o winning election because of
ULP only if traditional remedies will not dispel effects of past ULP

facts: 4 cases, 2 where union loses election because of ULP, 2 where election never held
because serious ULPs
**Requesting a Gissel Bargaining Order!!!
-union trying to claim its majority just through cards, not through vote – wants bargaining
right – ULPs by company, they say it would make fair election impossible
-4 cases here

HOLD: SC says NLRB does have power to order company to bargain, even though union
lost/never got to election – because company’s ULP was so pervasive would bar a fair
-if Union can show it had majority support of workers, NLRB can order company to
recognize and bargain with the union!
*Ct says the violations are 8(a)(1) threats
and 8(a)(3) (anti-union, fire prounion worker)
*Ordering company to bargain remedies a1 and a3 because environment created where
traditional remedies can’t create conditions for free election/can’t dispel intimidation
*So only the GBO will work!
TEST to get GBO: was the ULP so serious that traditional a1 and a3 remedies give such
slight chance of dispelling intimidation that we need something more?
-rationale for GBO: Ct thinks is dispels intimidation so that free election in the future,
because union’s presence over time will create free choice (employees can see that
unions have legitimacy because govt orders bargaining – good because union often has to
act secretly, as in Lechmere where have to be off property) *make union seem more

Traditional a1/threats remedy: cease and desist order (may have to read to workers)
a3/anti-union: reinstatement with back pay (mitigated by amount worker earned at other
job he may have took in interim); compensatory, not penalty for company deterrence!
-also reinstatement order often doesn’t work, don’t want to come back after hostile firing
a1/a3 -> employer has to post notice that it made a threat and violated NLRA and will not
do again, sometimes have to deliver message before workers

8(a)(1) – threats
(a)(3) – anti-union
(a)(5) – duty to bargain

Conair Corp v. NLRB Supplement p 134
**cannot order GBO without indication of majority’s will to support union
facts: no card majority, union lost election, claim employer’s behavior outrageous so
impossible to win election
-in Gissel, there was a card majority at one point, but never was here
-ULPs in this case were outrageous, but doesn’t matter (fire supporters, threats they will
-Conair is Category 1 below, no GBO
rationale: issuing GBO would damage expression of will of the workers, the never
selected the union by majority appmt, would be like imposing union on them (says
principle of free choice rules here)

Conair dissent: free choice means you have to issue the GBO here! The GBO will
promote free choice in the future, traditional remedies can’t do it here, just as in Gissel
-Dissent says GBO not an imposition to put union there for a year
-employees wont strike if don’t support the union; union can’t get anywhere w/o support
of workers; union has no interest in pushing for things workers don’t want, because it is
looking down the road to the time there will be an election (next year), so wants the
workers to be happy

Court sets out 3 categories in Gissel, for when you do/do not get GBO- p335

1) No card majority AND ―outrageous and pervasive‖ ULPs (out/perv means traditional
remedies with absolute certainty cannot remedy the ULP) – like Conair, no barging order

2) Union has card majority AND serious ULPs (but less than O&P)
    -serious ULP = only small chance that traditional remedy will be able to fix it
    You DO get the GBO here (like Gissel case)

3) No ULPs or only minor ULPs, and traditional remedies can be used – No GBO

d. Linden Lumber (1974) p 342
facts: majority sings card, demands recognition and wants bargaining, employer refuses
*Ct holds that the burden is on the union to petition for an election, employer can refuse
and has not violated 8(a)(5) duty to bargain
-most employers do refuse to bargain based on card majority, force the election (and this
is ok)
8(a)(5) says employer has duty to bargain with reps of employees, doesn’t say rep has to
win an election (9a and 9c also say designated, but doesn’t say designated by election)
-statute itself doesn’t require an election, so why does Court allow employer to refuse
unless election?
Rationale: workers simply signing cards can be unreliable according to employer, distrust
the union (but Prof says, should allow card singing to be enough, and just rely on 8b1 to
make sure union doesn’t coerce into signing cards)
*unions tried to use this as a test case, want to be able to organize just with card check
*better for union to go on as long as possible w/o employer know they are attempting to
organize (then comes the intimidation, etc)

Weiler Article, p 144 Supplement – Source of Union decline…
-the structural defects in the system are apparent, fewer union certifications now, and
huge jump in ULPs by employers (1000%)
*strength and power of unions has decreased; workers fear retaliation
Two problems:
1st problem: rights are being denied
2nd: huge negative impact on success of organizing drives (rate of unionization has
plummeted); Act no longer protects and encourages industrial democracy
-ULP’s caused decrease from 35% to 12% today (percent of workforce unionized)

8(a)(3) remedies -> make whole remedies that are not enough, ignores group remedy –
reinstatement and GBO are too slow to have positive group effect

**Weiler wants unions to be able to show majority with card check! (this is done in
Canada, overcomes Conair incentive for employer to commit ULP before majority card
-also, stop employers from having anti-union election campaigns
-to change cost/benefit analysis for employers committing ULPs, need much steeper
penalties, possibly criminal

Bahrenberg’s theory:
-change in union density (percentage of workers unionized) = change in economics +
change in NLRB elections and organizing
-Weiler thinks the decline is due to increased ULP, Conair type rules

change in econ (unionized businesses opening or expanding increases union density); if
nonunionized company expands, this raises percentage of non-unionized workforce
*Decline in union density about 1% each year due to econ aspects, so have to organize
new workers just to MAINTAIN current levels of unionization!
(if we didn’t use non-union as the baseline, we might not have to deal with this ―natural‖
1% loss each year…)

change in NLRB: unionization rate used to be +2% each year, now only .2%, not enough
to keep up with natural rate of decline

*Bahrenberg says ULPs are skyrocketing, especially 8a3 firing union activists (causes
decline in union density)
**the problematic intermediate step is that NLRB is not remedying these ULP violations,
not enforcing workers’ rights

Wieler’s arguments about failures of NLRB:
8a1 remedy, posting a notice – weak!
8a3: reinstatement and back pay (but back pay mitigated, reinstatement order doesn’t
stick because uncomfortable/hostile environment, order is delayed

GBO – (when these traditional remedies inadequate) –
-union must have support of majority to get GBO, doesn’t do much

*this is why Weiler believes maj. card check union certification is the solution!
-election campaign is so riddled with coercion, provides incentives to employer to
commit ULP (cost/benefit analysis) – very low costs for ULP violations, GBO a few
years later doesn’t matter (supporters demoralized or gone)
*so get rid of the whole election campaign process that creates the opportunity for these
ULPs; instead let workers organize by signing cards

-If just tried to beef up the current system and impose stricter penalties, Wieler says this
would just overload the system (fed district cts would be overburdened)
**Wieler believes one little legal rule, Linden Lumber, changed the law tremendously by
saying need election, card check not enough

Besides ULPs, what else could cause decline in unionization rate???
1-shift from blue collar manufacturing jobs to service jobs (mnf jobs were the unionized
jobs); service sector is harder to unionize
2-globalization -> capital flight/outsourcing, this weakens workers’ bargaining power,
because company can always threaten to take work overseas, and workers might be less
likely to unionize
3 – perception that unions are corrupt, 1950s
4 – higher velocity labor market, workers moving around
5 – automation, machines instead of people – also can be used as a threat to workers
6 – effective human resources strategies, making people feel that they don’t need unions
7 – immigration – law wage jobs going to immigrants, who are more vulnerable, can’t
make trouble
8 - political shift; power of the NLRB is lessened, less aggressive; those that staff it now
are not activist types
9 – unions don’t play strategic role anymore; workers may think unions don’t take care of
the big issues
10 – earnings disparity; workers make different salaries, so greater differentiation among
workers, less cohesiveness *shift from mass production to differentiated work priorities
(workers doing all different things)
11 – bankruptcies and benefit termination in unionized sectors
12 – deregulation in key sections, airlines, trucking, telecom – more intense competition,
led to growth in nonunion sectors
13 – international trade – free trade agreements
14 – containerization
15 – increasing affluence of workers (boom in the economy)

Other considerations 
-It makes more sense for unions to spend resources on current members, rather than
wasting trying to get new workers unionized (also, unions blew it by ignoring women)

-Long term American ―exceptionalism‖ – US has never developed left wing, social
democratic tradition (aligned with dem party but nothing strong)

-US is individualist, less collectivist
        WHY? Ethnic diversity in the US that many Euro don’t have, makes more
difficult to organize, less solidarity,
        -Louis Hartz theory: Americans more individualistic since founding, very
Lockian, empty frontier where competitiveness encouraged; small holders, Jeffersonian
idea that people are economically independent and don’t have to be wage earners

-US lacks proportional representation: so vote for ―labor/socialist‖ type party wasted
even if 20% population votes for it; winner takes all, hard for 3rd party to get footing
-in prop rep system, if labor party got 20% votes, would get 20% seats in leg.

-US workers have less contact with workers in other countries (whereas in Europe, can
look at nearby countries to see what they are doing – lack this influence in US)

-in US, Constit gave right to vote early on, while Euro countries had to form working
class and mobilize, struggle for voting/other basic rights *workers in US lack inventive to
organize politically as a class
-also, US didn’t have feudalism (so again lack class awareness), Euro countries had to
break power of landed aristocracy to get political rights (bourgeoisie revolutions)

Prof is skeptical; doesn’t believe in long term causes for political and social events!
-would have to show that these things from the past were continually reproduced
-plus, we DID have a large labor movement in the US in the 1950s (most powerful in

shorter-term political factors are the cause:

-1950s purge in the labor movement *much destroyed by McCarthyism (the left-most
part destroyed), the most radical and outspoken part (communist) was destroyed

-Success of civil rights movement –
-weird alliance of Dem party in 60s – Workers/ethnic northern liberals & Southern white
elites (who don’t want unionization)

-Johnson signs civil rights legislation and knows the white southerners will leave the

1960s – new left focusing on anti-Viet war; tension between new left and labor (labor
used to be the core/darlings of the left); AFL remains committed to War (committed to
more conventional new deal strategy) * a lot of liberals now have abandoned labor!

1970s oil crisis, stall in postwar econ growth, very high interest rates, higher
unemployment, weakens labor bargaining power (interest rates set to lower inflation)
-early 80s, big economic recession, wiped out lots of blue collar manufacturing
communities, Regan – big strike of air traffic controllers; Reagan responded by firing
them all and breaking the union (a stunning thing) – Reagan’s NLRB is very hostile,
we’ve already seen some of their rules, difficult to organize

1990s – Clinton wants to move Dem party to the center (recapture southern white male,
capture new suburban vote); DLC (Dem Leadership Council, push away from feminist,
African Americans, and labor – make more business friendly party)
-Clinton promotes globalization, NAFTA, free trade, intense price competition
Bush admin- very hostile NLRB

****Prof says a series of hits that labor unions took – not deep, long term historical
forces, but political tactics one after another that were setbacks to labor

-some explanations consistent with Wieler’s thesis – but some are not
-most workers say, if we tried to organize, we think we would be fired (consistent with
his thesis)
-but globalization, shipping work overseas if organize (less consistent with Wieler’s

Weiler also says union membership increased rapidly in 50s to level that is still same for
unionization among govt employees! Why? Govt doesn’t run antiunion campaign and
commit ULPs
-would we get high levels like this if no intimidation outside govt sectors?
-Counter arguments -> govts don’t face price competition the way private sectors does, so
not same pressure to fight unions (but this only goes to why motivated to fight unions,
doesn’t undermined Wieler’s argument)

Freeman conclusion (Harvard economist) – employers’ antiunion campaigns account
from 25-50% of the decline (supports Wieler)
-25% because unions putting less resources into organizing; another 25% all the various
econ factors we put on the board

WHY are managers in US antiunion??
-not like this in other countries
-looking back far into history for this one explanation: 19th century very fast
industrialization for US; greater competition in US because market is big, (see p.195
        antitrust laws -> non-unionized company has advantage over unionized one
(lower costs) – worst is for your company to be one unionized among all non-unionized
*US decided to fight unions, best to have no one unionize – whereas Europe thought best
to have all unionize
        (makes sense that Euro companies all unionized because smaller, less power in
fighting union)
-in US, big powerful companies can take on the unions and often beat them (Europe
formed cartels/trade unions, but here this was stopped by antitrust laws)

What carries this forward from 19th c?
-unionization is fought on company level (Wagner act uses company-wide bargaining
units) – each company individually faces unionization
-Wagner got it wrong in thinking whole economy would become unionized on company
level with these small BUs
-these small BU were just a quirk but have been entrenched in history
--so it is hard for unions to organize a whole sector (in Europe/Japan, agreement will
cover whole sector and large issues)

Macro-econ irrationality -> Union wants to bargain wages high as possible without
having to think about impact on prices, don’t care because cost gets externalized to
nonunion consumers in sector (free rider problem)
*unions have no incentive to moderate their demands, but they would if the whole sector
was the bargaining unit (in Europe, where BU is the whole industry/sector, union
understands that wages too high and too fast will cause inflation and hurt own members,
because members are the consumers)

XII Defining Bargaining Unit


b. Models

US/Contractualist Model
      1) Decentralized
      2) Organize in small units
      3) Partial coverage (allows to externalize costs of wage increases to other
      4) One channel, local union is exclusive rep of worker

Euro/Neocprporatist Model
      1) Will take into account effects of prices on consumers (consumers = their
      2) Full coverage
      3) Three channels
             1) unions operating at higher level (industry, whole nation)
             2) works councils –workers elect bodies that consult with mgmt, solve
                 problems not dealt with in K, more cooperative
             3) codetermination –Workers elect labor reps to Bd of Directors
                 (stakeholders with interest in labor, but shareholders still have majority
                 on the Bd), common interest in expanding revenue (but how to slice it
                 up) *can’t control the majority outcomes, but the advantage is that
                 they get information, thus higher trust relationship between labor and
                 -social pact can only be enforced politically (not enforceable K)
                   **so labor’s participation in politics is crucial to the model! Don’t
                   disillusion workers or they wont trust in the future
               -critique: unions too cozy with businesses, unions less prepared to engage
               in hard fights with the firms when they need to

Works Councils – workers would almost always elect union activist employees (so
unions are not skeptical as they once were)

Neocorporatism -> social pacts - government, business federations, union federations
engage in bargaining and dialogue
Ex of pact: unions promise to moderate wage demands, push up wages to match growth
in economy (avoids inflation); but this promise of wage restraint can cause tension for
union members who want higher wages – in return, union gets full employment (govt
promises to make economy grow faster), greater welfare and social benefits (higher min

US – informal neocorporatism in 1950s – UAW would pick company to bargain with,
after deal reached would carry over to other big 4 car manufacturers (would take same
deal rather than subject themselves to a strike) – called pattern bargaining
-UAW agreed to deal that would allow wages to rise in relation to productivity increases

Globalization makes neocorproatism more difficult!
-businesses might go to other countries (where taxes lower, workers have less bargaining

XIII. Freedom of Association/ What Kind of Collective Arrangements can unions

General Motors, p. 1160 (1963)
-can you force all workers in the BU to become union members when the majority votes
for the union? What about minority who voted against union?
-closed shop (not allowed, ULP): have to be union member to get the job in the first place
-union shop (Not allowed, ULP): upon hiring, have to join union
HOLD: It is ULP by both union and employer to force minority to be union members

*agency shop is ok: minority can be required to pay dues but can’t be forced to join
       -law allows forced pay, because would be a collective action/free rider problem
(whole system would break down, everyone would think they could just let others pay)

What can unions do with dues money?
Street (p1166) and Beck (1175) cases –
*unions can use dues money for politics but only if individual members consent; they can
say no, union can only use for collective bargaining **check this holding…
-do workers have to opt in or opt out of political spending? *Sc holds opt OUT is good
enough –individual workers must come forward and sign statement to ask for refund of
whatever portion going to politics (Republicans want it to be an opt in system…)
(*note that in Europe, unions are a political party themselves)
*in US, idea that core function of unions is CB, politics should be done voluntarily
*did Wagner intend to limit unions’ pol participation?

Majority Rule/Exlcusive Rep in the US----

p.376 case in textbook
Case – need to read

-offered employee individual contract ???? could not hear….
-HOLD: company has to bargain – individual can’t waive benefits
Q: does collective bargaining agreement supersede individual contracts?

-whole collective bargaining system would collapse if collective bargaining was not
taken seriously by management, if they could just coerce individual employees to accept
worse off than collective terms

-if union bargained agreement, then individuals get better terms -> why shouldn’t
workers be able to do this? – employer might bargain for a collective minimum much
lower than otherwise if it knows individuals will bargain for more on top of that - then
collective bargaining doesn’t achieve anything

-Ct suggests that if anytime to allow bargaining up from collective agreement, it might be
where agreement itself authorizes that ex) professional sports, collective bargain/union
sets minimum terms, but individual players can make agreement for more money

Holins and Hawkins case –
Facts: agreement in place, but group of black employees don’t like union’s grievance
procedure so try to negotiate directly with company, company refuses, they picket and
are fired *try to claim company committed ULP by firing them, Sec 7 rights (assoc, CB,
*SC holds NO, not protected by NLRA – this would subvert the NLRA – the workers can
be fired
Sec 9(a) – representatives designated by the majority shall be the exclusive
(ct must balance this with Sec 7 right of workers concerted activity)
-are they presenting a grievance or demanding bargaining? (can present grievance but
can’t seek separate bargaining – depends how you look at what they’re doing…)

9(a) – any individual employee shall have right to present grievances to employer to have
them adjusted – as long as not inconsistent with CB agreement and bargaining rep given
opportunity to be present
could read it to say individuals can bargain with the employer and it is ok as long as
not inconsistent (but ct does not) – but this leads us back to the Case question
*See footnote 12 - workers can present a grievance, but not bargain individually!
-Hollins and Hawkins took themselves out of protection of this proviso because they
were trying to bargain an agreement
-direct conflict between Sec 7 and 9(a) – just like Case case
-don’t want bargaining power of the workforce unraveling

Ct of Appeals thought there was a ULP (but was reversed): workers pursuing something
union has already decided (there is a discrimination clause in K), they are pursuing a disc
issue (but SC says they had grievance procedure in CB agreement and must stick to that)

Wild cat activity: situations like this, where workers strike w/o union’s authorization;
even though supporting goal of union, it is union’s job to decide how to allocate
bargaining power

Douglas dissent: something special about discrimination, workers shouldn’t give this
right up to the union
(generally, when unionize, workers give up some Sec 7 rights so union can do it on their
*but Douglas says when union fails in its role as exclusive rep, especially in representing
minority group, then these workers can take back their Sec 7 rights

*a lot of wild cat activity at this time (1975), workers felt unions become too
beaurecratic, anti-auth spirit in society
-Marshall wrote the maj opinion – he goes against the black workers (he is traditional
mainstream left)
*he does not like this movement associated with black radicalism that is removing itself
from mainstream civil rights; disenfranchised with civil rights being hijacked by radicals
(earlier civil rights included many races supporting it)
-Marshall doesn’t want labor movement fragmented, doesn’t want to endorse these
revolutionary black groups

Alternative to Majority Rule Model: Pluralist Model
(everywhere except US and Canada)
-workers simply join a union, no majority process (might be many unions in one
workplace, just sign onto one you want); various unions then form coalition to bargain
with employer
-in Europe, no need for laws that tell us how majority ruler must treat the minority
subgroups in the bargaining unit

Exclusive Rep Model v. Pluralist

Exclusive rep requires designation of the BU; have to worry about tyranny of the
majority (as in Con law, a BofR that restrains majority)
-Decertification elections also restrain majority (at least protects big minorities)
 Pluralist system is a lot less regulated, sometimes will find most representative contract
in the industry and order it to be used at all (then Euro model starts to look like exclusive

      Defining What the Union Will Look Like – Which employees included?
XV. Managerial Exclusion

NLRB v. Bell Aerospace (1974), p202 of supplement
Rule: all ―management‖ employees are excluded from the NLRA!!
-UAW wants to organize ―buyers‖ in purchasing dept– company objects, saying they are
-Ct describes all the discretion these buyers have
-company concerned about alliances with sister unions in the company (those who
manufacture), because these buyers could always chose to have in-house stuff made
rather than buy it
Sec 2 (11) – supervisors are out of Act’s protection
Sec 2(12) – professionals are part of act, but must affirmatively consent – they can opt to
be in their own bargaining unit
*there is no exclusion of managers in language of Section 2 *this is Board and Judge
made exclusion!

Board’s view (SC disagrees): only exclude managers who have impact on making labor
policy (so supervisors in Research should be able to unionize)
*but SC sides with employer, saying ALL managerial employees are excluded!!!
Rationale: Congressional discussion about excluding higher-level employees, but thought
it was so obvious that they were excluded, they left it out
-Ct refers to Packard case (said foremen could be unionized, but Congress overruled this
and explicitly said supervisors cannot be unionized)

*Ct things, if all the managers could unionize, it would be shareholders/Bd v. all
managers, even top people/CEO; shareholders would have no mechanism for controlling
what was being done with their capital
-also the idea of conflicting loyalties, loyalty torn between workers and upper managers
*Ct is imposing what the interests of these middle managers should be (not what they are,
they clearly want to unionize, perceive their interests to be somewhat adversarial to
higher management – *Ct wants their interest aligned with higher mgmt)

Shareholders -> Board ->Managers -> Mid Managers -> Supervisors -> Rank & File

*Prof rejects Ct’s reasoning – even when organize, still have to follow rules!
-it is too simplistic for ct to say that mid managers’ interests have to be completely
aligned (even if unionize, they wont be completely adversarial to management)

*Congress thinks mid-level managers can tolerate pressure better than rank and file, don’t
need act’s protection
-p. 205 of supplement – they abandoned collective security of rank and file voluntarily
because of their seniority – widespread view that capacities to work were passed on
genetically (managers = wasps) *class bias and elitism

mangers - persons who exercise discretion and independent judgment

NLRB v. Yeshiva (1980), p 207 supp.
HOLD: Profs are managerial/supervisory employees and are excluded from NLRA
 -Bell Aerospace doesn’t clearly define managers, but we know they are excluded
-here, we get the criteria:
    1) exercises discretion
    2) makes employer policy
    3) interests are aligned with upper management
goal: avoid divided loyalty/conflict of interest
-holding only applies to this case – case-by-case determination each time (not all profs
facts: faculty oversees grading, admissions, curric, calendar, etc (they have discretion,
they are determining policy by deciding who the customers are, what the price is, what
they will ―produce‖); and they are aligned with mgmt (administrators – both have goal of
*Majority essentially trying to realign interests bt repressing collective action

Dissent (Brennan) fears mgmt can exclude bunch of workers from NLRA by simply
giving them a bit of discretion (mgmt can always retract this discretionary power too)
-univ admins really want to make money, this may conflict with profs
-faculty is trying to organize, shows that they believe there is a conflict of interest w/
mgmt (why is ct ignoring this and instead thinking up objective idea that faculty interests
should be aligned with mgmt)
-takes on Wagner/pragmatist view: if you equalize bargaining power, you encourage trust
and collaboration

Model 3, radical democracy – where employees elect mgmt
-seems like no protection needed, could just fire managers if not allowed to unionize
-but, might want union for efficiency (let union oversee the managers, if workers
constantly had to worry about this, fire mgmt instead of bargain, would be tough on the

Oakwood case – (emailed)
    -can charge nurses be included in the nurse union, or are they supervisors?
    (supervisors are explicitly excluded by the statute)
*case could potentially have taken millions of workers out of the act
facts: the charge nurses do the following: in charge of the other nurses on shift; direct
them to certain patients; follow up and monitor all patients; also have their own patients
in addition to overseeing
1st prong: 2(11) of NLRA: lists 12 different functions, this prong is met if employee does
any one of these 12
2nd step: employer must demonstrate that employee in question is exercising authority
through independent judgment
3rd: must show that this authority is held in the interest of the employer

1st prong) -in this case, charge nurses meet ―assign‖ of the 12 functions – they assign
other nurses tasks/patients
(dissent disagrees: idea of ―assign‖ is that you assign employees to long-term categories
or work, not day-to-day tasks)

Foreman – excluded from protection of act: doesn’t do any production work, just directs
and disciplines
Strawboss – is covered under the act, primarily a worker, works alongside coworkers,
doing the same jobs (Prof/dissent say charge nurses should fit here, they continue to work
with patients)

2nd prong: doe they exercise authority, not in routine way, but as independent judgment?
Majority finds that charge nurses do exercise indep judgment (make decisions on
particular patients and nurses to make match based on each side’s needs/qualif, this is
more than just distributing)

3rd prong: yes
-Dissent: this prong can be satisfied too easily, any decision you make you can say it is
for the employer

-concern that the 12 functions are too easy to find in any job

*Effect: this effects organizing campaigns because managerial workers can be fired if
they don’t take the same side as company, and firing legal because they are mid-
managers and not protected by the act
*so this case encourages anti-union behavior, can fire mid-managers who don’t agree,
force mid-managers to do anti-union things
-also can get mid-managers to fill in when rank and file strike (so strike affects firm less)
**Thus, company will make effort to label as many workers as possible as mid-
managers!!!- delegate little bits of authority

XVI. Ban on Company Unions

a. Electromation Inc (1994) p206
    8(a)(2): ULP for mgmt to dominate, interfere with or support of a labor organization

    violation if employer dominates, interferes with admin/formation of labor org, or
   contributes financially
-facts: management sets up committee to respond to wages strike by employees
(includes members from mgmt and labor)

1) Is this a labor organization (defined in Section 2(5)) = any organization, and
    group where employees are represented or they participate (yes(
2) Is there a purpose of ―dealing‖ with mgmt? Yes, talking in committees, then
    mgmt decides whether to implement what the committees talked about (dealing
    doesn’t have to be bargaining, just any broad communication)
3) Is the dealing about grievances, disputes about wages & work conditions? Yes,
    committee addressing all of these
*Is this dominated, interfered with, or supported by mgmt? Yes, mgmt set up the
committee and the agenda *goal behind 8(a)(2) is to ensure integrity of labor
orgs/collective action (don’t let mgmt infiltrate)

-only violation if set up by employer w/o union; union can bargain for these orgs to

Background:1930s, Wagner wanted to make sure to have extremely broad section to
get rid of tons of fake unions; don’t want any org that mgmt has interfered with or
supported – would undercut real unions
-competition from Japan in 80s, America losing at competitive production
-1990s restructuring to try to get to Toyotism instead of Fordism; use employee

Ford/Mass Production Model (US’s old model)
-all discretion and thought in management; ordinary workers are de-skilled

-Taylorism (break down the work process into little bits of motion, have many
workers do each little, parceled thing, deskilled, turns workers into machines)
**Flaws: might make sense if you are always producing the same thing without any
changes to the model

Toyota Production Model/Toyotism
-used team-based production, get rid of hierarchy
*main idea is to train and up-skill workers; give them discretion
-self-managing teams: workers decide how they do their tasks (ex team decides best
way to make an engine); labor and mgmt make decisions together
-horizontal coordination, not top-down; workers rotate through different tasks within
the team; workers take on quality-control functions (so don’t need separate dept at the
end to inspect)
-model strips out mid mgmt, not required when workers supervising themselves
-teams also take on some product devl tasks

Why Toyotism emerged?
   -markets became more specialized/fluid (consumers want lots of different models,
   styles, don’t want every car to look the same…)
   -companies need to be more nimble to respond to this
   -get machines that can be arranged to produce different types of models
   *the people doing it day to day usually know best way to run things!
   -uses ―just in time production‖ – don’t build up huge inventory and have it all sitting
   around, finish it at the right time to be sold *so need all teams working at same pace
   -fix defect immediately upon seeing it (whereas Ford model let it go by and quality
   control will check it at the end)
   -feel very responsible to team, if you are sick and don’t show up, your team has to
   work harder

   *Would Wagner’s managerial exclusion bar a system like Toyota in US?
   -are teams prohibited by 8a2?

   *this is the background for Electromatics case!
   -union says these organizations are shams just like the company unions of the 1930s
   *NLRB adopts this view, very Marxist, false consciousness, workers think they know
   that they want but they don’t

**Board strikes down these committees! Using 8(a)(2)
-calls it ―patent shams that delude workers into believing they’ve got more representation
than they do‖ – phrase used a lot in 1930s against company unions

FN 27 (p212) Plurality says they differ on whether employee perception is valid criteria
-statute prohibits factual inquiry into whether or not workers are fooled *by nature these
structures alter perceptions/fool workers!

*Logic flaw – if they are PATENT shams, how can workers be diluted? (remove work
patent in order to make sense)
-Exchange Parts case (it might fool workers so cant grant benefits during election)
*again, legal system is taking off the table an option that workers might want to choose!
Libertarian premise
– only lets them choose union or no union, now they can’t choose the intermediate
position of a weak, collaborative structure/committee
*why not have all options on the ballot and let workers decide! Then courts wouldn’t
have to decide what workers’ perception is

*8(a)(2) rests on idea that collaborative structures are even WORSE than having no
-maybe because mid option is illusory, think they have rights and representation, are
placated; but with no union, at least they know what the real deal is

-concern that works councils will distract workers from unions
-on the other hand, some saw works councils as an introduction to unionization and
would be a stepping stone to that; easier to coordinate once they had a little organization

Weiler wants to get rid of 8(a)(2) (workers are sophisticated and wont be fooled into
thinking these structures are collective bargaining); if workers unhappy with structures,
can just move to unions (which will be easier with card check)

*Barenberg says we should put these mid-level structures on the ballot; also create
objective criteria to distinguish bad and good cases (set out in excerpt towards end of
supplement, Dunlop proposals)

*open questions after Electromation

Some open questions after electromation -some cases before electromation -> one says if
mgmt delegates entirely to labor comm., and no back and forth afterwards, might be ok
because there is no dealing (sec 2(5) says a labor org ―deals‖ with management, so this
might be ok b/c not really a labor org); we’re not sure how viable this is after

-one theory says these system would have greater presence in economy if there were
more unions (force investors into high-performance work arrangements)- if don’t have
unions, companies can pay min wage, etc, use vulnerable workers, no incentive to give
them skills

XVII. Legal Duty to Bargain

Three rights under Section 7: association/organization, collective bargaining, collective

Structure: very bright-line system where mgmt and labor on different sides, law doesn’t
allow blurring – doctrine of managerial/supervisory exclusion
-doesn’t allow collaborative structures

**Now looking at Collective Bargaining Right 

a. NLRB v. Katz (1962) p427
RULE: employer has duty to bargain until impasse over any subject within Section 8(d),
then can set terms of employment unilaterally
*if employer sets terms unilaterally without bargaining, this is a ULP in violation of
facts: union and employer negotiating, in the middle of this (no deal or impasse)
employer unilaterally institutes change – union claims violation of 8a5 duty to bargain
collectively (8a5 refers to 9a and 8d) *must bargain in good faith

SC says you don’t need bad faith if there are per se violations by the employer
*how can ct find that they per se refused to bargain without making subjective inquiry
into bad faith, when company is still bargaining?
-8(d) says that company doesn’t have to reach any concessions or agreements *if it’s ok
to not give anything, why is it not ok to give more than it is saying at the table? (because
company is just imposing its own conditions)

Important exception: (FN 12) employer can unilaterally change conditions on
employment if institutes wage increase identical as one the union says was too low
-once reach an impasse, company can unilaterally make any change it wants
*Katz rule is very limited! Only WHILE bargaining, before impasse (once impasse
reached, company can make any change it wants)
*why the impasse rule? Would better serve industrial democracy if rule was that union
had to agree for there to be any chance
-means industrial democracy is not full here, don’t have to agree, just means that
management has to bargain until impasse
-rule could be that union has to agree for there to be any change

b. NLRB v. American National Insurance (1952), p ???
RULE: it is not an ULP to bargain for mgmt rights/functions clause (reserves some
matters from arbitration as purely under mgmt’s control)
-8(d) requires good faith bargaining, T-H said it doesn’t require counterproposals or
facts: in midst of negotiations, mgmt insists on mgmt rights clause
-Bd thinks it is a per se refusal to bargain (making it impossible to bargain over things in
*SC says mgmt is allowed to bargain on this issue because it is a counter proposal to
something union proposed

Mgmt Rights clause
-could say mgmt and labor are deciding all issues, even mgmt rights clause, but labor just
delegating to mgmt to decide the M.R. issues
-or could look at it as both mgmt and labor have power, but labor waives its right to
bargain over subjects within mgmt rights clause (we’ve seen waiver before of the three
Section 7 rights, union not allowed to waive right of assoc (Magnavox), union is allowed
to waive right to strike with no strike clause)
***So here, Ct says union is allowed to waive its right to bargain over some sets of issues
(those in the MR clause)

c. NLRB v. Borg Warner Corp. (1958), p 452
-ballot clause and recognition clause not part of 8(d) mandatory matters, so illegal to
insist on them as a condition to collective bargaining agreement
facts: during negotiations, employer proposes two clauses
    1) ballot: before a strike must be secret vote of employees to make final decision,
        has to put best proposals to the workers for a vote before they strike
   2) recognition clause: exclusion of intl union
**Employer committed ULP by pressing for these two clauses to be included, they are
evading duty to bargain in good faith
8(d) defines subjects over which two sides have to bargain in good faith (governing
conditions of work)
-ballot clause doesn’t fall under this
*a condition of employment has to regulate aspect of employee/employer relationship; ct
says the ballot clause regulates relationship between employees and the union
-Prof says could try to say 8a2 ULP of employer interfering with when to strike
-Recognition clause: also not within 8(d)

Illegal, Mandatory, and Permissive 
Legal v. Illegal issues (no one can bargain over illegal issues)

Within Legal issues -> 8d are mandatory and the rest are permissive (permissive is
anything that is not illegal and is not mandatory)

Mandatory: either side can raise it in bargaining, and other side must bargain in good
faith; either side can insist on the issue and make it a deal-breaker (can strike/lockout
over the issue)
-8(d): wages, hours, terms and conditions of employment (Union can strike and it is
protected, Fansteel)

Permissive: either side can raise the issue in bargaining, but other side can just say no;
cant make it a deal-breaker, union can’t strike on the issue and company can’t lock out on
it *the strike would be illegal and thus unprotected

*Court could have decided that a permissive subject can also be a deal breaker – but now,
striking over permissive subjects is illegal
-why doesn’t court want to encourage serious bargaining outside of 8d issues?
-rationale: want to make both parties channel their strike/lockout power to 8(d) issues,
which ct considers most important, subjects we want to institutionalize
*Prof -> why shouldn’t two sides be able to bargain over the issues that they think are the
most crucial?

―strike is legal, therefore protected‖ fansteel
Protected – employer can’t engage in self help (fire, penalize)
Legal – can’t go to police, etc

 Outcome of Borg-Warner

Borg-Warner effect -> line between mandatory and permissive is important line
0but in reality, there are ways to get around it -> can make a ridiculous demand on
something that is mandatory and a reasonable demand on something permissive – then
voluntarily lower its ridiculous mandatory issue (wages) if the company agrees to bargain
over the secondary issue, ex product price
Legal realist perspective  unions become very powerful after WWII, how far will they
-UAW leader after the war demands that GM increase wages without increasing prices;
wants to put the squeeze on investors
*GM does not want labor making these decisions! Draws a line, says no, and deals with a
very long strike
*product prices and investment decisions are NOT part of joint determination to be
shared with unions (GM succeeds)
*this move by GM set the pattern for the whole era we are still living through – unions
get money and benefits, but they do NOT get to bargain over investment and production

d. Fiberboard Paper Products (1964), p465
-subcontracting (outsourcing) is mandatory subject (8a5) – employer can subcontract but
must bargain first, union can strike over it
-employer wanted to replace one set of workers with another because it was cheaper
-Supreme Ct’s 3 reasons  (CJ Warren)
    1) effectuates purposes of NLRA overall (industrial peace), allowing strikes
        institutionalizes the conflict rather than a warfare
    2) Statutory interpretation – ―wages, hours, and other terms and conditions of
        employment‖ (Ct thinks subcontracting clearly falls under ―terms and cond of
        employment‖- having a job or not is central condition to employment)
    3) History – there has been negotiation over subcontracting before, present in CB
        agreements in the past (shows relative bargaining power) *logic is backward
    *why did ct want to freeze in place the subject matters that were important in the

e. First National Maintenance (1981), p ___
facts: maintenance company wants to stop service at client where its losing money, ct
treats like plant closing (says it is permissive)
*does employer have duty to bargain in good faith over its decision to close part of its
business (the K with Greenpark Nursing Home)?
-FNM wants to end the K, not making enough $, fires workers who work at Greenpark –
economic decision! (very deep recession)

Ct starts with principles:
p477 – Union not equal partner with shareholders in investment decisions
p478 - mgmt must be free from excessive labor regulations on essential matters of
TEST: (p477) balancing test, 3 categories
                a) Mandatory – aspect of employer/employee relationship (Borg Warner)
                b) Permissive – indirect impact on employer relationship (advertising,
                    product type and design)
           c) Balancing Test – matters that have direct impact on employment
               relationship but focus on profitability (ex: jobs might be eliminated,
               but econ profitability is at stake)
*HOLD: if in this 3rd category, must do balancing test to decide if it is mandatory or
permissive (employer’s costs and benefits v. collective bargaining process)
-odd that don’t balance it against workers

Important factors:
Speed, flexibility, secrecy

p480 – union already has a right to bargaining over one thing and strike over effects
(what???) – so Ct says if we add decision bargaining, only an incremental step to
increase workers’ interests, so we won’t do that – union will get enough from having
certain issues be deemed mandatory subjects

Ct’s logic: *futile because nothing could be done to ease the company’s problem
(bargaining can’t solve this)
Prof says – what if each worker gave up $8 per week? This would give FNM an
additional $250 per week, and everyone could keep their jobs, but ct didn’t see a way
for union to bargain over this

Ct’s Principles – p478
-ct has idea that unconstrained movement of capital is necessary to maximize social
welfare (because maximizes profit); resources should move freely to party that is
willing to bid highest price for them, because that party will make most productive
use of it (the capital)
**Why is profit an index of social welfare? profits = social welfare maximization
(benefits – costs)

Decision v. Effects Bargaining
-union can strike over 8(d) issues, so don’t need to give them right to strike over
decision itself

-workers play no part in strategic decisions on company’s future, so no incentive for
innovation on their part

p478 – Ct says point of the Act is to make decisions that are better for society as a
whole, mgmt must be free from restraints to run profitable business (why is max of
profits crucial to social welfare?)
-do we have to know this formula???

External costs/Coase –
*Externalities don’t matter because, if there are externalities who are hurt by plant
closing, not a problem because there will be bargaining among the parties
   –so if actors who are hurt suffer a cost that’s greater than the benefit to party making
   the decision, they will both bargain, bribe the party who wants to close the factory
   *if not bargaining, this is an indicator that social welfare is being maximized by the
   -Ct places entitlement to decide plant closings with the company
   *Coase -> it doesn’t matter who gets the entitlement! (bargain anyway)
   *Prof – but what if workers don’t have resources to keep it open, even if it really is
   important to them? Wealthy shareholders have more resources and bargaining power
   to bid for what they want (so we’re really talking about party that has most money,
   not party that values it more!) - takes for granted the background distribution of
   wealth –
   **Prof says it is a wealth maximizing model, not welfare max (maximizing price
   times quantity of resources in society)
   (Coast theorem breaks down if there are external costs)

   **It DOES matter who you assign entitlement to (Prof); b/c distribution of wealth
   -workers try to take out loans themselves (also free rider problem, let the other
   workers buy it)

FNM – we will not give workers the power to do the bargaining over a plant closing

Any suppression of wages will raise profits, so always increasing social welfare
according to this model – absolutely max of social welfare is paying workers $0 (Prof
questions this, obviously) – enslaving them, then you get the most profits/social welfare
according to model

XVIII. Duty to Disclose
XIX. Bargaining during term of K (only on short outline)

X. Remedies for Bargaining Violations

    a. HK Porter v. NLRB (SCOTUS), 1970 – p516
    Facts: union wants check off (where company directly takes union dues out of
    paychecks, similar to taxes); company refuses, bad faith – violates 8(a)(5) duty to
The Remedy: NLRB orders company to grant K clause providing for check off
HOLD: SC says this is IMPROPER remedy, beyond what Bd can do (under 10(c)) – 8d
(defines duty to bargain) prevents prevents Bd from controlling terms of agreement
Rationale: Bd’s job to foster freedom of K, not impose substantive decisions on parties

3 Options
   1) Walk them to the door – no further inquiry
   2) Good faith test (subjective) – what is state of mind of the parties a) attitudinal
       statements, b) bargaining tactics, c) reasonableness of the substantive demands
       (uses these to decide if there is bad faith)
   3) Objective review of substantive terms (don’t look at mental state of the parties) –
       a) order further bargaining b) govt itself could set the terms of the K
   -not sure that I understand this….

**Wagner Act combines 1 and 2!!

Tension btw looking at reasonableness and objective review; law not supposed to make
subjective decisions, but Bd has to look at objective fact as evidence of subjective
ultimate fact (hard to tell difference between looking at reasonableness of the K for
purposes of deciding good faith or not, as opposed to board reviewing substantive terms
of the K)

-Bd found it was objectively unreasonable for employer to refuse dues check off
-but can’t order check off, would look like govt determining terms of the K
REMEDY = Cease and Desist order, Bd tells employer must bargain in good faith (what
will this really accomplish?)

    b. Ex-Cell-O Corp (1970) p 521
8(a)(5) violation when company refuses to bargain, thought union was improperly
certified and wanted to push case to Ct.
facts: union won cert election, Bd says election was fine
-to get to Ct, company refuses to bargain (can’t directly appeal, so refuses to bargain then
NLRB brings ULP charges under 8(a)(5), then employer uses defense of invalid election,
Bd finds for union, THEN employer can appeal this to the Ct of Appeals)
HOLD: employer did have duty to bargain, send back to Bd to determine remedy
-Cease and Desist order (start bargaining in good faith)
-Bd also says company should compensate employees for their losses (lost wages from
cert time to final order)
**Ct -> can’t hold company liable for $ loss when the issue they were arguing over was
debatable, this was the only way company could get reviewed on appeal, don’t want
company to be penalized for doing it this way
*Ct says it would look like imposing the term of wage increase, and employer has right to
not give this concession (just had to bargain to impasse)
PROF -> it was a finding of fact that employer would have given a wage increase, so this
is not imposing terms, it is just giving a remedy workers would have gotten anyway

-there is always uncertainty in figuring out civil money damages (ex. figuring out wages
a tort victim might be expected to bring in)
-one downside of the order is that it could set a floor/ceiling for the wage increase amount

**main point  effectively there is no remedy for refusal to bargain in good faith!!
After years of avoiding bargaining, the employer is ordered to go back and bargain in
good faith (cease and desist) – can’t order employer to accept terms and can’t order
money damages
*Employer can delay and only remedy is cease and desist! Good way to avoid collective

Weiler – says remedies are extremely weak, incents employer to do ULPs during
organizing drives (8a1 and 8a3)
-unions now win less than 50% of organizing drives
-also with CB rights, employers commit tons of 8a5 violations
-It’s not just about organizing, but about reaching agreements if they have organized
(only 60% get to 1st agreement) - union has no point if it can’t reach this first agreement
*So less than 30% of those who try to organize end up with 1st agreement; weak remedies
is large part of this

-We should beef up remedies, use card checks instead of elections (Weiler); should also
have remedy of govt arb of 1st K, where govt can impose terms of the K (solidify the
bargaining relationship and allow the first K to be made)
-Workers demoralized over time when employer keeps holding up bargaining - by the
time ct of appeals, may years have passed, then employer can engage in good fiath
bargaining but still just not reach agreement/give concession

Problems with govt ordering K terms
-undemocratic, not achieved by workers themselves; but it does empower to strike and

XXI. Right to Engage in Concerted Activity
  a. Requirements
          i.      Group Action
          ii.     Mutual aid or protection
          iii.    Activity must be protected (from fansteel)
                   i. Illegal acts outside labor law are unprotected
                  ii. Acts that violate labor law are unprotected
                 iii. Contract violations are unprotected
                     (these three categories of illegality from Fansteel)

    b. NLRB v. City Disposal (1984), p533
-James Brown is truck driver who refuses to drive unsafe truck, sent home and is fired
-Bd says violates 8(a)(1), because K says shall not make employees operate unsafe equip
**Dealing with the 3rd right in Section 7 (Concerted Activity)
Issue: James is a lone actor, is there concerted activity?
-he is asserting right under the K, right that the whole group of workers has, forcing the
right on behalf of the whole group – his asserting this is harping back to the group
activity of making the K
Two models: 1) encourage them to act as a group and bargain with shareholders, govt
presides over this (called private ordering)
2) state directly regulates work place, creating individual rights, regulates individual
-US model is the first model, collectivist model, so strange to leave indiv workers weak
and requiring group action

Fansteel, p 573
-facts: refused to leave factory until company meets demands
-UAW launched sit-down strike at GM (successful and workers all over country start
having sit-ins
**SC holds that it is ok to fire sit-in strikers even though it is concerted activity for
mutual aid or protection
*Develops the 3rd requirement that it must be protected!
TEST: if illegal, it is unprotected (sit-down strike illegal under law of trespass, company
can seek govt intervention); unprotected = employer can use self help w/o committing

Fan steel’s 3 categories of illegality
   1) External Illegality (some other law, like trespass/assault, makes action illegal –
       not labor law)
   2) Internal Illegality – concerted activity that violates labor law ex) secondary
       strikes are illegal under 8(b)(4) and TH – illegal and unprotected; strikes over
       permissive subjects are also illegal (violates 8b3 and 8d, union’s duty to bargain);
       modification strikes are also illegal (Jacobs, Milwaukee Spring cases)
   3) No-Strike Clauses – violates the contract for workers to strike in violation of this
       clause – illegal (remedies) and unprotected (company can fire)

   c. Weingarten?

   XXII. Unprotected Activity and Law of ―Inside Action‖
*Fansteel – if illegal, unprotected

     b. Elk Lumber (NLRB 1950), p580
Facts: company workers slowdown after company unilaterally reduces pay, 5 people fired
-it is not illegal to slowdown (so not a Fansteel problem)
-slowdown is lawful, but unprotected here
HOLD: Bd says it was not protected, refuse to accept terms of their employment,
contracting to work on their own terms
*workers cannot pick and choose their own terms
*Core protection of Sec 7 is protecting FULL strike!
Forms of Concerted Activity:
     1) Slow Down (Elk Lumber)
     2) Partial Strike (Montgomery Ward, discussed in Elk Lumber)
     3) Overtime strike – refuse to work overtime
     4) Quickie/Intermittent strike (go out and come back, go out and come back)
    5) Sit down (fansteel)
    6) Full strike

Elk Lumbers says can’t continue to work but try to change terms (want to get paid at
higher level)
-insubordination, trying to make assertion that entitled to more pay (so do less work)
1,2,4: depends on whether still getting full pay or wages adjusted?
-really depends on facts: still meeting level of work required in K, is overtime required or

#6 FULL STRIKE is the ONLY protected concerted activity!
-maybe its idea that full strike easy to identify while others are not?
-or, idea that we only want this conflict in the workplace if the matter arises to a certain
level of importance (full strike indicator of how impt the issue is)
*Bd arranging to that company can keep production/profits going
    -full strike allows employer to keep production going by hiring replacement workers
    (in a slowdown, you can’t bring in replacement b/c workers are still there)
-Ct and Bd deciding what the two sides’ bargaining power should be: businesses should
be able to keep production going
-Act says goal to equalize bargaining power

Sec 7 Right to Org
-remember that workers can (usually) only talk about work during break; although statute
doesn’t explicitly require this (Ct imposed)
*Similar court imposition here: act says workers can engage in group action and
company can’t interfere, but Ct adds judge-made law that says workers can’t just slow
down production or decide for themselves how much work is fair for their wage

    c. NLRB v. Jefferson Standard Broadcasting (1953) p574 – SCOTUS
-Comp and union bargaining but reach impasse; then workers launch leaflet campaign
that attacks broadcasting company (says treats Charlotte as 2nd class city, attacks quality);
these employees fired because of disloyalty
HOLD: SC says insubordination, disloyalty are unprotected – therefore can be fired and
not ULP; under 10(c) the firing was for cause – ―detrimental disloyalty‖
*Why were leaflets disloyal?
-not at all related to dispute between union and company; Ct thinks workers should have
said that these criticisms on leaflets were part of the labor dispute, if noted this on leaflet,
maybe workers would be in better position (unclear)
*this case allows group firing even though it is group activity for mutual protection

-Prof says workers don’t owe loyalty to company aside from efficient work (companies
no longer show loyalty to employees, downsizing, etc); was loyalty in previous decades

-Unions run corporate accountability campaigns now (impose pressure and costs on
company – ex. convince investors that company violating antitrust/env law)
 -union will stop inflicting these costs when company comes to the table, and company
will agree to not run antiunion campaign (will agree to card check rather than forcing
*Essentially union has to restore its rights through private actions! Govt should be
protecting these rights in the first place

Dissent: doesn’t like idea of disloyalty, too much leeway for judges to impose own values
-Ct of Appeal’s bright line test would’ve been good: if illegal unprotected, but if legal it
is protected as long as it is concerted for mutual aid; Frankfurter doesn’t think ct should
make distinction based on what is proper

XXIII. Employer Responses to Full Strikes
a. NLRB v. Mackay Radio (SCOTUS 1938), p 585
RULE: Company can hire permanent replacements during strike, no obligation to get rid
of them and take back the strikers!
Facts: brings in replacement during strike (from another office), tells them they can stay
if they want - then there is no room for some strikers to come back (these 5 were the 5
most active in the strike)
-if you are still employee and there is vacancy, employer has to give you priority in
filling the slot (Laidlaw case)
*so striker can’t be discharged, but can be permanently replaced
*Ct says that, while you don’t have to fire replacements, you can’t decide which strikers
to take back based on their level of strike activity (this was all ct needed to decide, but it
also said don’t have to fire replacements)

Sec 7 supposedly protects right to full strike – but you can be replaced, even if still
technically remain an employee
*this is big discouragement on concerted activity! Interferes with the right to strike!
-formal conception of the right: you have it in substance but discouraged from exercising
it - hollow right to strike
-Ct wants company to be able to keep production going
         -but why can’t replacements just be temporary? Penalizing strikers
         -Ct says incents workers to keep strike short (shorter = less likely to hire
replacements); employer might need to offer replacements permanent place or may not be
able to attract them (but here they are workers from same company, other office, so this
concern shouldn’t apply…)
*Strike only works when both sides bear the costs, employer gets to do away with the
costs here, Act loses its ―punch‖ when workers can’t imposes costs on employer

-unskilled workers can be replaced the easiest, especially in high unemployment times
(skilled workers are protected, but unskilled left out to dry) *the weakest workers get hit
hardest by Mackay Radio decision

-lose symmetry of costs in strike: workers still bear the cost of lost wages, while company
can get around its cost of lost production – MacKay makes so cost ONLY on strikers!
(but workers can find other work when they strike, so slight flaw to this idea)
-not clear that symmetry argument is that compelling
-under Laidlaw, strikers lose right to be on rehire ―waiting list‖ if they find other jobs

*Prof believes bargaining power is the more powerful argument
-Regan’s firing of the air traffic controllers weakened the power of strikes
*Overturning Mackay radio is big goal of labor law

*in ULP Strike company can hire replacements but not permanently – reasoning: the
employer is the wrongdoer so shouldn’t get benefit of MacKay radio rule
Mackay applies in economic strike (econ pressure on employer; can be converted into
ULP strike, if strike going on and employer commits ULP during strike)
-Prof says employer’s degree of wrong doing shouldn’t affect workers’ ability to get their
jobs back
        -Prof says rule should be switched: with economic strike is all workers have; with
ULP they have other remedies (maybe realized rule was bad and wanted to limited it later

Summary of Concerted Activity
-after Bd/Ct get done interpreting, right of association weakened to point of nonexistence
-workers get little remedy when fired for organizing
-treacherous election required, cant use card check
-effectively no remedy for bad faith/refusal to bargain, union must use strike power
-ct removes protection for everything short of a full strike (so still have common law
baseline of employment at will basically)
-even in full strike, protected supposedly, but can be permanently replaced (their only
right is to have name on waiting list!)

-Act worsens it in a way by making it much more difficult to form union – by requiring
election process (wasn’t required before the Act in 1935)

XXIV. Regulation of Secondary Strikes, Picketing and Boycotts
a. Thornhill v. Alabama (SCOTUS 1940) p 68
-labor picketing is form of protected political speech; can’t regulate unless clear and
present danger or destruction of life/property
-Alabama statute bans picketing, workers try to stop people from crossing picket line
HOLD: statute is too broad, allowed to relay info having to do with facts of labor dispute
*outright ban on picketing violates 1st A! – labor speech at core of 1st Amd (sought to
protect political speech – industrial democracy)

b. Teamsters v. Vought (SCOTUS 1957) p 641
-union pickets and employer’s deliveries can’t be made
-state injunction against picketing; SC upholds this – picketers trying to get company to
fire non-union employees
*State can regulate picketing to achieve legitimate state purpose (no coercion); sounds
like rational relation test (much weaker than clear and present danger); usually need
compelling interest to regulate fundamental right (speech)
Test: is there legitimate state policy and is the restriction rationally related to this policy?
-picketing went from core expressive activity of 1st amd to almost no protection now

Brandenburg test (modern test)
-govt can only regulate speech if 1) it is designed to imminently induce illegal act and 2)
it actually has that effect

d. DeBartolo (SCOTUS 1988). P647
-union hands out leaflets at mall saying don’t buy anything there, because they have
grievance with the construction company (DeBartolo); mall charges union with ULP
under 8b4 ban against 2ndary strike
-different from tree fruits: treefrutis was partial consumer boycott through picketing, this
is total and no picketing
*Ct says can use handbills, cannot picket (hand billing is pure speech and doesn’t have
same attributes as picketing)

8(b)(4)(i) – prohibits secondary strikes – need showing of inducement or encouragement
8(b)(4)(ii) – prohibit secondary boycotts – need showing of threat, coercion, restraint

d. Longshoremen’s Assoc v. Allied Intl (SCOTUS 1982), p 645

-Russia invades Afghan, as protest, union members stop handling cargos that are going to
Sov Union (boycotting Russian goods); political objective, not labor
*SC says this is a 2ndary boycott, violates 8(b)(4) which forbids 2ndary strike, union
commits ULP
-political boycott not protected
-illegal because it is a secondary strike; could use Brandenburg test here (it is not ok
because the picketing is inducing an illegal action, the 2nd strike)
-so could arrive at same result w/o weakening 1st Am – instead ct moves towards saying
labor picketing is not protected expressive activity under 1st A

*Secondary because dispute not with the company, but with the Russian govt

e. Tree Fruits?

f. NLRB v. Safeco (SCOTUS 1980), p 728
-Prof’s theory runs into problems with this case
-a strike against Safeco insurance company, who sells its insurance through agents
-union pickets, asks consumers not to buy the Safeco insurance (consumer boycott
picketing, like Tree Fruits)
*But SC distinguishes from Tree Fruits!
-these agents selling almost nothing besides Safeco insurance (whereas Tree Fruits,
supermarket selling tons of other stuff besides apples wanted consumers to boycott)
*Ct says this is asking consumers to coerce – trying to stop ALL the business of these
agents (not coercive when supermarket can stay in business even if stop buying apples)
*Govt stopping the picketing here does NOT violate the 1st amd
-this goes against Brandenburg, because here you can stop picketing against something
that is legal (it is legal to stop buying Safeco)
*Ct takes picketing out of 1st amd protection instead of just applying Brandenburg!

Trend: Thornhill: strong protection (C&P danger) for labor picketing
-then weakened to lowest Const scrutiny: rationally related to reasonable interest in

1) *Idea that picketing is speech plus (more than just speech); precedents that say speech
intertwined with conduct is more able to be regulated
-the conduct is supposedly patrolling/walking back and forth
-but oncoming, because same in political marches, and they are epitome of what is
-all expressive activity involves conduct in some way!! (someone has to type up the
newspaper article, ex!)

2) *idea that labor picketing is not communication of idea, but is signaling
(worker carrying sign) – not convincing, is speech calls for action it is not speech?!
Shouldn’t lose protection just because picketing is effective speech

3) picketing is intimidating/coercive – intrinsically?
4) picket lines are pervaded with coercion and violence (but in fact, violence rare at
picket line)

h. NAACP v. Claiborne Hardware (SCOTUS 1982) – see my notes for this…
basic idea: Claiborne - purpose is to demonstrate that labor picketing is different than
civil rights picketing (labor is commercial)
-picketing in Claiborne was violent, but ct held it was still protected speech even if it was
embarrassing, offensive, and coercive

*Cts treat labor like commercial speech; thus labor unions try to broaden the scope for
unregulated advertising
-AFL-CIO sided with Nike on a false advertisement thing, said it was political speech;
labor wants commercial speech to be as broad as possible because that’s the umbrella
under which labor falls

i. Ally Doctrine – Douds case – p 702, 1948
RULE: if union strikes against a company, and contracts with 3rd party to continue
production, union can strike at this 3rd party company and it is not a secondary strike
-the 3rd party is closely related and is practically the same thing, this is lawful just like the
primary picketing – does not violate 8(b)(4) *because main employer giving all its work
to 3rd party, the are ALLIES (ally doctrine)
*they were so closely intermingled, almost the same
-timing: during the strike, subcontract out even more – this is ok

XXV. 8(a)(3) Constraints on Employer’s Escape from Unionism

a. NLRB v. Adkins (1955) , page? Around 236ish but get exact
-employer hired mechanics and servicemen, union demands pay increase for them to
match other employees, employer fires them for economic reasons
-didn’t fire because anti-union reasons, just couldn’t afford to pay the workers
**there is a difference between anti-union animus and firing workers because they now
belong to a union (and thus asked for higher wages), can’t afford these higher wages
*if allowed to do this, doesn’t it get rid of whole purpose of the act?

*no 8(a)(3) violation because no anti-union animus, economic motive for firing is ok
*can discharge workers as long as union can’t show some sort of ideological/emotional
hostility to the union

  1) Company wants to violate act                             -ILLEGAL, against act
  2) ideological/emotional hostility towards union                  -ILLEGAL, against
  3) protect managerial prerogative to control                -Grey
  4) lower profits in part of the business                    -OK
  5) lowers profits in whole business                         -OK
  6) negative profits in part                                 -OK
  7) neg profits in whole (bankruptcy)                        -OK

   Bright line test: if finds two motives and one is illegitimate, it is ULP unless find that
   legitimate motive itself would be sufficient to fire (if take away emotional hostility,
   would economic motive be enough for firing?)
   -in present case, we have a single motive and it is legitimate

   Pretext –
   Adkins, union said it would strike and made it clear what wages had to be, these
   wages would clearly hurt the employer
   *Prof says could limit the case to this type of situation
   *but as it is, a very EXPANSIVE case that helps management, can usually point out
   some sort of economic reason!

   Darlington case, p 252
   Facts: union elections in a plant, if union won, owners were going to close down the
   plant – wins and company closes down this one plant (Darlington) and not the others
   **Is there an absolute right to close down your business, even if it is because you hate
   Ct says Yes, as long as you close down the ENTIRE business (not just part of it)

   Darlington is one of 17 plants
   Rule for total shutdown – it is not a ULP, even if blatant antiunion animus
   Rationale: company gets no future benefit form attack on union because company no
   longer exists (but prof says the union’s right is still denied!)
   -can you look at the plant as freestanding company, not a plant of the main company

   *This case is a partial closing –
   TEST: (need to show purpose and likely consequence of chilling effect) if close one
   plant out of animosity, it is ULP under 8a3
   *strange that must now show company had motive of firing workers to chill union
   activity and that it is likely to chill it
   -difficult to prove – need to show anti-union hostility to workers at other plants

Fall River Dyeing p. 941
-after old company closes, employees start new company (does this new company have to
bargain with union of former company?)
    1) Is the new company a ―successor‖?
            a) -substantial continuity test: look at all circumstances, does company look
                like the same company as the old one (esp from employees’ point of
            b) Can also look at whether at least over 50% of employees at new place
                come from the old (this is a more bright line test)
                -when do you decide this question? First round of hiring, 2nd?
       **If a and b are met, new company IS a successor

Legal ramifications when dealing with a successor ->
-Successor can reject/terminate CBA and can make unilateral changes, just as if union
was not in place
*But, new company does have duty to bargain with old union (even though the old K can
be thrown out)
       -Prof says, if idea is that new owners are running the company the same as before,
       why can they throw out the contract?
       -Have to balance interests of new owners and the workers (background
       presumption that businesses can arrange their company as they want)
       -Policy in 1st National Maintenance case: free up capital and make so that
       businesses can be profitable, this is how we maximize welfare
       *Ct essentially making owners free to exit union-sector; will face deunionization
       or at least setbacks in collective bargaining (have to make brand new K)
       *So companies can move capital around – if union gets organized, move capital to
       an outside sector; by modernizing non-union facilities, comp has a good reason
       for closing unionized facilities under Atkins and Darlington
       *Law creates strategic game where companies get opportunities to escape after
       unions organize (there are transaction costs for new organization)

Ling Case p. 245
    - Congress passed amendment to food stamp program that striking workers
        couldn’t get food stamps (can’t get food stamps if income drops because of a
    - Union brought claim under 1st and 5th amendment
             o 1st amend – would have to disassociate with family (so family wouldn’t be
                 hurt by workers inability of get food stamps); couldn’t associate with
             o 5th/Equal protection claim—wouldn’t be able to unionize
    - SC rules that provision does not infringe on workers rights because it wasn’t
        enough – its ok to engage in censorship if its not too strict (ct typically applies
        strict scrutiny to fundamental rights of first amendment)
    - Food stamps are a subsidy to private activity and the gov’t can chose not to
        subsidize that activity even if gov’t acting on content based motivation---gov’t
        can subsidize some kinds of speech and not other speech (like labor speech in this
    - Equal Protection analysis
             o If there is a suspect classificationstrict scrutiny – does gov’t have
                 compelling purpose and is the law a necessary means to achieve the
             o If not a suspect classificationrational relationship review – is there any
                 legit gov’t purpose and is the law a rational means to achieve the purpose?
    - The threshold questions is whether strikers are a protected group
             o The court doesn’t give strict scrutiny to this classification
             o If group subject to systematic disadvantage and when gov’t passes law
                 that disadvantages group, court should be suspicious that law is trying to
                 reenact the systematic disadvantage leading to strict scrutiny. Is the
                 working class systematically disadvantaged and stigmatized?
                      Court previously said that they would not recognize workers or
                         poor people as suspect class –end of the era of the Warren Court
    - Majority says legit purpose of the law is the gov’t remaining neutral between
        capital and labor during a strike
****Case shows that beyond the NLRA, there are many legal rules that effect bargaining
power and unions – when the court is looking at NLRA rules, the court should be looking
at discrete rule as part of a complex set of rules that effect bargaining power

   XXIX. Substituting Arbitration for Strikes
a. Lincoln Mills case (SCOTUS, 1957) page??
-arb clause in K, employer refusing to arb certain issues union brought suit
-dealing with Sec 301 of T-H Act (p54 of supplement)
HOLD: SC says fed cts have jds to enforce arb clause

301(a) – employer in labor disputes, fed cts have jurisdiction to enforce collective
*but were they trying to create a general, fed common law on labor? (Erie problem)
-there has to be a fed law/statute that the cases arises under, looks like Sec 301 is just
a grant of jurisdiction, where is the substantive fed law?
**This case holds that Sec 301 of T-H, appears to be just grant of jd but is ALSO a
grant of substantive common law making authority to the fed cts
rationale: Congress wants collective Ks to be enforceable, promote industrial peace
(must enforce no-strike clause in agreement); if Congress wanted unions to agree to
no-strike clauses, will only do that if get right to go to arb over issues they can’t strike
-so has to be fed common law making, so can enforce arb in a way state law cannot
RULE: one area where fed cts have specialized fed common law making power
(exception to Erie) is authorized by Sec 301

*case also creates first substantive rule under this federal common law -> there will
be specific performance of the employer’s agreement to arbitrate

b. Local Teamsters v. Lucas Flour (SCOTUS 1962), p 815
*RULE: state cts enforcing CBA must apply federal common law
*Creates 2nd rule of fed common law: no-strike clause is implicit with agreement to
arb clause (no strike covers only issues subject to arbitration)
facts: company sues when union strikes, saying if you have right to arbitrate (they did
here), then you lose right to strike (even if K doesn’t have a no-strike provision)
*SC confirms, see 2nd rule above – says no-strike is implied for arb issues (would
undermine arb process if otherwise)
*Isn’t the Ct writing in terms for the parties (prof says)

*means almost all K’s would have no-striking – but the way around this is for union
to explicitly say in K that despite arb clause, not giving up right to strike (in general
or over certain issues)
-so doesn’t affect substantive outcomes that much, b/c parties can opt out (but
depends on their bargaining power whether they can get this explicitly in the K)
-prof says its just a matter of words on paper, what really matters is their relative
bargaining power

c. Steelworkers Trilogy Cases,
1st: order arb even if claim frivolous
2nd: order arb if arb clause is ambiguous
1st, versus American Mfg Co (SCOTUS, 1960), p817
Section 301
RULE: even if grievance looks frivolous, ct must order parties to arbitrate
Facts: employer refuses to take injured employee back on the job (K says retain jobs
based on seniority, but said employer doesn’t have to follow this is differences in
ability among workers)
-employer refuses to arbitrate because worker admitted that he doesn’t have equal
HOLD: even though claim seems frivolous, employer MUST arbitrate everything!
(because took away employees’ ability to strike)
-general rule that Ct wont interpret collective bargaining agreements, but here have to
interpret this section to decide if requires parties to go to arb.
-see FN 6
-arbitrator has greater knowledge of these complicated labor issues, he will solve
them (ct only rules on section about arbitration, merits of arb award are irrelevant in
whether to enforce agreement to arb)

2nd Steelworkers case, 1960, p820 – v. Warrior and Gulf Navigation
facts: company refuses to arb on issue of subcontracting, claiming it is strictly issue
for mgmt, *and arb clause says no arb on issues that are strictly issue for mgmt
RULE: if arb clause is VAGUE, cts must defer to arbitrator, arbitrator may need to
decide as threshold matter whether it is arbitrable
*strong presumption of arbitrabilty!
-sometimes, if arb clause is crystal clear to deny arb, ct will do that
rationale: again, not for cts to interpret merits of the K, want to encourage privatized
arb system

3rd case, Enterprise Wheel (scouts 196) p ____
facts: employees left jobs in protest of hiring other employees; goes to arbitration
-Arbitrator orders backpay and reinstatement but cuts out 10 days pay because should
have had 10 day suspension (rather than firing) – Agreement expired at some point

-if one side refuses to comply with Arb’s award, you bring another 301 case to
enforce it (Arb lacks power to enforce)
SC -> defer to judgment of the arbitrator and allow him to make the award
RULE: will not overrule the arbitrator as long as he is interpreting the agreement
-there is a presumption that arbitrator is interpreting the agreement, and it is only
overridden by arb’s words saying otherwise (would have to say, I am not interpreting
K but am doing X instead..)
*very deferential to arbitrator!! He or she could bring in other law if it is relevant to
the K in some way; arbs don’t have to follow precedent and don’t need to write
reasoned opinions

Boys Market Case (scouts 1970), p 859
-company trying to enforce no-strike clause against union (union pickets, there is arb
clause in place); union moves case to fed district ct (tension between what employer
can get in state v. fed ct)
-previous case, Sinclair, said that Norris LaGuardia Act said fed cts couldn’t issue
injunction ag. strikes that violate no-strike clause
HOLD: SC overrules Sinclair, allow injunctive relief to stop strike in fed ct (to
prevent forum shopping)
-Norris-LaGuardia Act – says fed cts can’t issue injunction in labor disputes; SC says
here, we will have forum shopping so changes it
*uses principles from Steel Trilogy,
-idea of quid pro quo, that company won’t agree to arb if it can’t enforce no-strike
clause; Ct wants industrial peace

-Boys Market only partially repeals NLGA – no injunction against strike unless meets
Boys Market conditions

*Called a Boys Market Injunction ->
Must show:
1) Strike in fact violates no-strike clause
2) CBA had mandatory arb provision (might say ―may‖ arbitrate, still mandatory)
3) Arb provision must cover issue over which workers are striking
4) Standard elements of injunction are met (irrep harm meaning $ damages not
   enough , likelihood of success on the merits); Must convince that there is balance
   of hardships tilting in your favor (harm to you worse than to workers)

-can’t get injunction when not arbitrable

-**Unprotected to strike in violation of no-strike clause, so other options besides
injunctive relief are self help (can fire workers), or damages awards
FN 17, Ct says other remedies aren’t adequate to enforce no-strike clause, (damage
remedy comes after the fact, employer will agree not to seek damages as part of
agreement to end strike); regarding firing, companies will be reluctant to do this
because will lose skilled workers

1947 – T-H policy of industrial peace; amounts to a repeal of the Norris-LaGuardia
Act (an implied partial appeal of a statute)

j. Buffalo Forge Co (scouts 1976), p ___

-production/maintenance workers have sympathy strike to support clerical/tech
workers who are trying to get a K (not secondary strike because employees of same
company) –2ndary is when you strike against company whose terms are not at stake
-employer brings suit under no-strike clause, K says P&M can’t strike during term of
*SC HOLDS here that fed cts can NOT issue injunction!
Rationale: purpose of this strike is NOT to avoid arbitration; strike issues NOT
covered by arb provision in the agreement (think back to Boys Market injunction
-this subject matter is not covered by the P&M workers’ collective agreement with
the employer, so arb clause can’t cover these terms (thus, no implied no-strike)
-there is an area where you can strike that is not covered by the arb agreement, and in
this area, employer can’t get Boys Market injunction
    -because in this area, workers would not have arb OR ability to strike (whereas
with areas under arb, they at least get ability to arbitrate it, and policy that don’t want
to undermine arb agreement), you can’t take both of these options and leave them
with nothing
**Point of Boys Market is only to repress strikes where unions have an alternate
channel *workers get to strike if they have no alternative channel!

Lincoln Mills case idea: quid pro quo btw arb and no-strike

*remember, in outer ring where not subject to arb clause, it is unprotected if violates a
no-strike clause, so employer can fire workers and get after the fact damages (just no

*Key whether company can show irreparable harm( can’t be made whole with $
-Prof says in most strike situations, lost profits can always be made up in money
damages; Cts always put $ damages on intangibles, like company image
**But, might lose Ks with supplies or subKs, but prof says even this can be reduced
to $ damages

*Boys Market gives employer right to have issue resolved through arb, so it would
damage a process right (can’t monetize this) – this has to be the logic, otherwise cts
shouldn’t be granting BM injunction

k. Lever Brothers, 4th Cir 1976, p 255 of supplement (or 277?)
-company wants to close plant and move production elsewhere, union asks for
injunction under Sec 301 (union claims it is contracting out, not moving, so union
should have right to participate in process according to the CBA)
Ct issues reverse Boys Market Injunction:
1) union is likely to succeed on the merits (likely to win in showing that issue is
    arbitrable); remember Steelworker Tril gives tons of discretion to arb, especially
    when it is ambiguous
2) irrep harm is met because if company moves, any finding after the fact is
    worthless, can’t monetize this (right to the process of arb)

*Normal rule is obey now, grieve later – but Reverse Boys Market are exceptions to
this general principle
-shows that in some cases, company is going to have to comply with union’s
interpretation of the K, while pending arbitration
Law encourages arb agreements; idea of quid pro quo with no-strike clause
-cts are removed from enforcing the K; strike is removed also
-will order and enforce arbitration in almost all cases (Steelworkers tril)

8(a)3 ULP – union can file ULP and seek arbitration
Concurrent jurisdiction: Bd will suspend its jurisdiction to see what arbitrator does, if
arb acted fairly/ruled on same set of facts, Bd will defer to arb decision

PROS of Private arb:
-faster than going to Ct/NLRB
-in theory, arb more in touch with realities of workplace, needs of both sides, more
pragmatic than judges

CONS of Private Arb:
Kathy Stone article in supplement (p. 289?)
-crit legal studies, the relationship is really adversarial
-pacifies the workplace, takes away direct action by workers, disputes should be on
work floor where workers can solve it themselves
*she wants these things to go to Ct, more public than arb, citizens can debate publicly
judge decisions and principles (but it really is not anymore public than arb!)

-also, Prof disagrees that arb demobilizes workers (see Tolliday and Zeitlen article)
    -which shows that when workers have arb, it mobilizes them, b/c arb system
provides protective umbrella if mgmt retaliates

-other critics say no-strike provision is real problem, Prof agrees that workers should
be able to strike directly, but there is a tradeoff
1) effectiveness in resolving dispute (arb good b/c many issues are too small to
    mobilize over, so good that arb system handles these)
2) if grievance resolved based on power of workers, more powerful subgroups would
    have rts enforced more than less powerful worker subgroups; EP concern if left
    totally to the shop floor

Tolliday and Zetler, argue in favor of arbitration, Supp 292

-arb acted as protective shield that allowed workers to be more aggressive: less likely
to fire workers, protects workers who want to be more militant, provides pull for
workers who want to band together and press grievances; also workers get to
participate in the arb process
-also, directly enforcing CB Agreement without arb can be a democracy problem
(because weaker, more marginalized subgroups among the workers will get their
rights enforced less than strong worker groups) *also, to get all these individual
grievances addressed, workers would need to continually maintain a level of
mobilization that is just not realistic

XXX. Union Democracy & Duty of Fair Representation

a. Metropolitan Edison case (scouts 1983) p629-
RULE: company cannot discriminate and give greater penalty to union leaders
-employer punished union leaders worse than rank and file, arbitrator said this was ok
facts: electoral workers refused to cross line when another union at the company went
on strike; company tells union leader he must cross the line and make others do it –
union has violated the no strike clause

*didn’t do what employer wanted union official to do to try to enforce the CBA –
affirmative step – need to take affirmative step, but doesn’t have to be exactly what
management say to do
-if union leader leads the strike, stricter punishment ok
-if just passive, it is questionable whether they can get more punishment
-balance – duty to their members and duty to enforce CBA

-employer cannot be allowed to decide what action the union official must take
(employer tried to say union official had affirmative duty to make employees comply
with CBA)
*Ct says law shouldn’t drive a wedge between union and its membership – union
democracy as more important value than enforcement of contractual obligation
-company can still punish by imposing same damages on officials as rank and file,
and assess money damages on union treasury

*this is Model 2: workers get what they want by using economic power against the
dictator (not all about democracy, where they elect managers)

d. Steele v. Louisiana & Nashville R company (scouts 1944), p___

-union bargained CBA that pushed black workers out of the union, gets rid of black
workers’ seniority rights; plaintiff here is one of these black employees
**Does bargaining rep have duty to protect All the members of the union or just the
-union is exclusive rep, but Railroad Act doesn’t say union has duty of fairness
towards all workers
*Ct here said that (even though private org, 1944), not allowed to discriminated based
on race – very advanced, considering statute doesn’t even require this! And Const
doesn’t constrain private actors
**Ct finds implied right (rare), says statutory obligation is just like Const obligation
not to discriminate
*union is required to represent minority workers without discrimination, must be fair
e. Ford Motor (scouts, 1953), p394
-company and union agree to give seniority credit for military service; some
employees say this violates their rep because it is not reasonably related to work skills
HOLD: it is reasonable and does not violate worker rights, it is OK to make this
-UAW negotiated to get seniority for veteran even if hadn’t worked at this same
company (Ford) before the war
-effect is that workers who worked longer at Ford than returning soldiers might get
**Ct’s test provides lots of leeway to union, it is just a reasonableness test (like
opposite of strict scrutiny)
*Is distinction rationally related to legitimate govt purpose?
-how is being a vet rationally related to having competence at the work place?
(worthiness based on something you did outside of the workplace) – once you open
this can of worms, there are all kinds of reasons and groups of people you could also
give preference to!!

**So, Ct gives union tremendous leeway to decide who is worth in society – just
can’t make any distinctions on race!

-interesting gender implications of the case: women kept factories going, vets are
almost all men – so women are mostly the ones who will be displaced by returning
vets – was big concern over whether there would be jobs for men when they returned,
what will happen to gender roles? - looks like UAW asserting male privilege cloaked
in vet preference

*ultimately, looking at status outside of the workplace
-question of relevance is really squishy and will depend on value judgment

f. Vaca v. Sipes (Scotus 1967) p1127
RULE: if employee can show union failed in its duty of fair representation, employee
can get its breach of K case against employer directly before a fed ct to decide merits
of the breach of K claim
-union refused to take employee’s grievance all the way to arb (didn’t think had a
good chance)
facts: employee was fired, had blood pressure problem, company dr says unfit to
-union tries to negotiate for him to do lighter work; but will not take to arb!
Is union breaching duty of representation?
*Ct carves out exception here: Ct will take a breach of K case if it FIRST finds
threshold issue that union not doing its duty of fair rep!
-worker can thus get the breach issue before the ct, whereas normally can only get
this before an arbitrator
-called a Hybrid DFR(duty of fair rep)/Sec 301 case – if union violated the way it
represented worker, doesn’t make sense for ct to order to follow arbitration (let
workers go directly against employer in fed ct)
*but ct mentions must be careful to give union room to settle and not overload the arb
system with non meritorious cases
1) must show that tried to exercise grievance
2) show that union used bad faith, breached its DFR ---see short outline
Dissent views grievance as claim of individual rights in CBA, while majority looks at
it as part of legislative process, fill in gaps of the CBA (collective interest)

Prof’s view: (p1151)
*what if we had a rule that said, when it looks like individual right, then this person
has absolute right to go to arb, and worker can go to fed ct if union wont arb
-but when looks like ambiguous/policy CBA provision, workers don’t have absolute
right to make unions arbitrate it – union needs the right to make tradeoffs and worker
can’t bring DFR/301 case in ct

NLRB v. GE p440
-GE makes offer to union that it thinks is fair, GE claims it will not budge,
communicated to workers directly and arrived at fair decision
HOLD: (2nd cir) it is ok to make firm and fair offers, AND it is ok to communicate
directly with workers BUT you cannot combine these two or it is violation of good
faith bargaining

-rationale: company raise the cost of compromise by putting its reputation on the line;
if it makes any changes it looks like GE’s word can’t be trusted (would created extra
reputation cost out of nowhere, union would have to deal with this ―cost‖ on top of
other things)

Dunlop Commission for the President – Barenberg’s Ideas for Labor Reform

-only small part of workforce still has collective representation
-employer anti-unionism and changes in culture

Goals: workers should be able to choose if they want collective rep; law should
encourage worker participation and empowerment (more worker participation makes
companies more innovative and competitive too)
*Based on thought experiment: what do we need to achieve real deliberation by
workers and empower their innovation and participation

Other Models that are Insufficient:

1) Fumigation model: need greater ULP penalties to deter employers; but companies
   can use subtle forms of intimidation that are inherently intimidating (because
   actions of the company)
2) Samizdat – underground: card check will prevent anti-union campaign; but Prof
   says this drives employee deliberation underground, doesn’t allow workers to
   come above ground and have full communication and deliberation

**Barenberg’s proposal 
Centers for workplace participation, regional office of NLRB
-would enforce ULPs; would have greater emphasis on mediation rather than
adversarial hearings
-a one-stop shopping place for variety of workplace programs (training, subsidies for
participation, workers get knowledge about innovation, how work place organized)

-Conferences: a showing of interest work workers (only a small percent needed, not
1/3 or anything) OR law could require these conferences (need to experiment)
-before conferences, employees designate orgs to make presentations (unions, labor
or mgmt consultants, advocacy)
-staff of centers preside over and facilitate conferences *so can look out for any
intimidation in real time
-outside of these deliberations, mgmt should be prohibited from talking to workers
about these issues (want to shut down anti-union campaign)
-centers not geographically based, workers can choose any center they want; strategy
to ―reinvent govt‖ so that there are market competition among centers to keep them
all at their best/competing

After Deliberation in Conference, workers have choice:
1) no union
2) self managing teams
3) joint labor-management councils
4) union
-could have combo of first 3, last 3, or just 1 or 4
*evidence that collaborative structures (2&3) work better when there are unions

Centers will also subsidize to make a more advanced workplace!
-any one firm hesitant to make the investment in training because workers could leave
their firm (so corp not willing to invest); thus the centers invest instead

Proposals to Change the Substantive Law 

1) Change bargaining units
     Workers should be able to choose larger bargaining units; might span many firms,
might cover whole sector regardless of different types of jobs in the industry, could
be regional across different sectors
     -recent successes in labor organizing have taken this path (janitors across whole

2) Retain exclusive representation – no exclusive rep for minority union, but nothing
   prohibits minority bargaining (law has said minority rep is inconsistent with the
   system – this should be changed) *make clear that minority rep is ok and it is an
   option for workers; minority that wants a union should be able to have collective

*think of pluralist model in Europe (many unions in one workplace), union just
represents whoever sings up for it; employer has to bargain with all of the unions; but
pluralist model is confusing because arrive at different terms for each group (form
coalitions and bargain), sometimes law will look at which is best agreement reached
an apply that to all the unions (so looks like exclusive rep in pluralist system) *the
problem is that these small minority unions don’t have as much power to call a strike
on their own

-its ok to give better deal to one union, as long as based on that union’s bargaining
power and not on preference or favoritism

***Prof proposes to combine pluralist and exclusive rep model!! If not a majority
union, might have minority unions and company has to bargain with them too

3) Current default rule on unionization: current rule is that new companies start out
    as not being unionized – could switch this default and just let it be disbanded if
    employees decide after opening that they don’t want it
***Prof doesn’t actually propose this because it is too radical!
-also, concern that union might not have that much power if those it represents don’t
care that much/take having the union for granted, might not have punch behind strike

***A related question for Prof’s whole model:
no culture of unions as in 1930s, law has to be more proactive
-if govt is the one to initiate these conferences though, will they fall flat because
workers not really invested?
*this is why prof says need experiment: govt convening conference v. requiring small
percent of workers to show interest in conference

-could argue that govt should start up even w/o interest, workers will be interested
once they learn more about it because will really affect their lives; creating the
conditions to allow for autonomous choice
-other side would say this is paternalistic

*Prof says we are not trying to reshape workers’ preferences, but just give them
confidence that they can engage in free deliberation (and likely to choose unions if
they do)

*Build legal rules that embody crit theory: point out to people that the way their
interests are shaped by power/manipulation of things they aren’t aware of
-if make people aware of asymmetric power, they are more in position to make truly
autonomous choice
-once they see how their preferences were manipulated, they will make more
autonomous choice
-conference will educate workers on how collaborative structures work, will be more
aware and less likely to be manipulated by mgmt

Can model apply to low-wage, low productivity areas? (hotel maids)
-jobs are not intrinsically low wage (retreat of union has gutted the mid class though

4) Concerted Activity
-should allow secondary acts and partial-type strikes (slow down, etc)
-would restore the balance intended by Wagner since things are so eroded

5) Exclusion of managerial workers – this exclusion should be much more limited,
    confined to higher mgmt – blurring of line between mgmt and workers
6) Mandatory bargaining subjects (8d I think) should be broadened; give union to
    discuss more issues (esp in light of fact that workers will be gaining more
    knowledge about org strategies available to them)
Ex)1st Nat Maintenance – said that plant closings were not a mandatory subject
(because ct through free movement of capital is essential for wealth max)

Could criticize B on this point by saying Wagner was aimed at particular era, when
workers had very low bargaining power, less affluence, and process was very
coercive; workers can regulate economy though pol process (don’t need democratic
voice in private institutions
-But Prof says industrial democracy is needed, because costs of exiting workplace are
very high, and workplace is still very coercive

Student comments about reforms:
Centers do worker training and neutral arb? Concerned about some sort of conflict of
interest – is there any way to separate these two functions? Does it threaten center’s
-but, Prof doesn’t like free standing worker training programs because they don’t tend
to be successful (training then jobs aren’t there), need to be meaningfully linked with
workers choosing work organization

What about the costs initially of setting up these new structures? Very high and
experimental - is it feasible
-could try intermediate step instead (like just card check), but prof says that itself is
not enough; want real deliberation (not underground!)
-Prof says card check initiative should be combined with BU reform (broader BU),
and also reform secondary boycott rules

How likely to really get govt competition among the centers – still govt after all? Get
some sort of private actor involved? Like university or labor consulting grp? More
market-like - what does govt care? Do govt workers get bonus? Otherwise, what is
motivation to attract laborers to use their center?

Just change the default (open business unionized) – Prof thinks this would be better
but just too radical – also, wont mean as much to workers if it is imposed
-but if have govt-initiated conferences, workers get together right away to choose to
keep or get rid of union, so default doesn’t really matter in this situation (would
matter if worker initiated conferences)

1 – no union
2 – teams
3 – labor management works councils (like Europe)
4 – union

*Prof wants workers to be allowed to have these two intermediate steps as an option;
in these middle steps, workers start demanding more autonomy (that’s what managers
fear them)

-Fear work might go abroad to avoid these labor restrictions
-only applies to companies that can move their work (but this is a lot!)
-work centers will heavily subsidize to provide workers and managers with incentives
(find out who pays for this…..)

1) Work place should be efficient and wealth maximizing; once maximize wealth,
   we can have redistributive programs
2) Redistributive should be built into production system (this is prof’s model)

Don’t need to focus that much on background reading, p 409, p 446

Local Strategies and Federal Preemption
Preemption of state law when labor law on the fed level (Congress didn’t intend for
states to alter the delicate balance)
-Wagner act stands as obstacle to pro-labor policies we would expect to see in some
labor-friendly, blue states
-so unions try to circumvent NLRB
    -put pressure on employers (because fed law has failed to enforce what it has
promised), unions turn to private rights and Ks to get the rights they want

Contractual strategy: privately regulating the campaign
Ex) no captive aud speeches, employer waives Lechmere right to exclude, gets to
review lit company distributes, arb provision
*When workers org this way (private), they get almost 100% results in first K
because the fight is all up front here – relationship between union and company is
cooperative once they agree to things like non-adversarial campaigns

Marriott case, 343 supplement – read this case, don’t understand
-Marriott came before SF development agency, wants to develop hotel on public land,
union opposed Marriott getting that deal with the city
-union can bring legal challenges against the employer (env, antitrust, discrim)
*impose costs on company! (called corporate accountability campaign): union brings
private leverage against company to get right of assoc that is not being implemented
by govt
*then union withdraws opposition when Marriott enters into agreement with them –
BUT Marriott goes back on this agreement
-union files Sec 301 (fed cts have jds to enforce Ks between employer and union)
**9th Circuit – holds that it cannot enforce this private agreement – this is not a
representation issue but is a contractual dispute

earlier Ketchken case – ct refused to enforce agreement because didn’t prove majority
choice at new facilities

*Ct will enforce as long as it doesn’t require them to decide things that are more
appropriate for the Bd (ex: we wont decide the proper bargaining unit)

-sent back to district ct to deiced whether city authority put pressure on Marriott to
enter into the private K with union (secondary action question could arise)

Justice for Janitors Campaign
-thought before that undocumented immigrant workers couldn’t be organized, they
are afraid so often don’t stand up for their rights; but very successful city-wide
*one way union succeeded was by putting pressure on building managers (looks like
secondary activity)
-sounds familiar to what 9th Cir had in mind in Marriott when sent back to district to
see if SF put pressure on Marriott?

-in Marriott, Ct also could have been concerned with preemption

St Vincent case, 348 supplement
-regulated election
-union and hospital enter into agreement, p348 lists terms
-union demands arb for employer’s violation of terms (antiunion speech, favored
opponents of union); employer refuses arb; union brings 301 to compel arb
TEST: whether major issue is primarily contractual (here, it was question of
-by ordering arbitration, ct is not deciding representation issue
Snap arbitration (24 hours)
-important, or else whole arrangement could unravel
Arbitrator acts like mediator too, don’t let dispute escalate

Verizon case, p 354
-What if try to shift to NLRB?
Facts: card check neutrality agreement; union demands arb and files election petition
with NLRB; NLRB dismissed (didn’t retain right to go to Bd.
*Case represents general proposition by the Bd that if either side petitions for NLRB
election when there was agreement for card check, Bd will dismiss petition (so Bd
has no jds over representation disagreement)
-but can have Bd decide in a privatized way, not in its govt capacity

Paul case, p 373 (DC Cir)
-employer agrees to card check neutrality, then revokes – union brings ULP charge
8a5/8d (Jacobs Manuf and Milwaukee Spring) – ―no modification‖ clause (during
term, neither side can modify under 8d unless consent of other side)
-union says company is now trying to modify the K
*no-modification clause only applies to mandatory subjects (8d), not to permissive
subjects (permissive can be modified without committing ULP)
**Ct decides card check agreements are NOT mandatory subjects, can be revoked
and modified by employer
*some card check clauses are mandatory and some are not
-doesn’t mean card check neutrality agreements are meaningless, this is only about
ULP **there is still breach of K that union can bring against employer (just no ULP)

2 card check cases now pending – Dana: whether card check agreements give rise to
―recognition bar‖ – what if workers immediately file for decert after card check?

Remember, Cts will enforce the agreement unless they are asked to get into defining
representation issues
-if employer repudiates, sometimes it is ULP, sometimes not (Paul case): sets out
what is mandatory what is permissive

Shaw case –
-seems to unsettle these basic rules
facts: employer petition for election even though agreed to card check
-Bd says will send back to regional office for hearing because want inquiry over
whether employee really knowingly waived right o election by NLRB (when signed
up for card check)
-Bush Bd looking for ways to restrict card check agreements

Dana and Meddledine (pending) will look at wrinkles
-if card check and recognize union, but then workers demand decertification
immediately, will bd hold decert election? – would mean opponents of union can
override card check (normally a 1 year recognition bar after election, where give it 1
year before can decertify) – does this apply when use card check instead of election?

-what if agreement for card check, and set some terms of employment that will apply
if union gets majority of cards? Essentially setting terms before workers have even
chosen the union to represent it (8a2 issue)
-but prof says shouldn’t be big problem because conditional terms told to workers, ―If
union is chosen, x will apply‖

EFCA statute proposed in Congress now
-will provide that workers will be able to org by card check instead of elections
-will be tough to pass through; corporate lobbying
-also, tough sell for unions because opponents say look, trying to take away your right
to secret ballot! (difficult to explain coercion, etc to general public); opponents will
also say unions trying to engage in top-down organizing and are imposing themselves
on workers (GC’s opinion on 371 of supplement)

When Big 3 buy from parts dealers, will buy from good corporate citizens – trying to
force companies to take on neutrality? *it only says wont refuse to buy from suppliers
who adopt neutrality (doesn’t say will only buy from them)

8(e) – it is ULP to enter into K to cease doing business with any other

lastly, EFCA opponents say card check is unreliable process (but elections under
intimidation aren’t reliable!)

Nat Right to Work Foundation – secretive, right wing, against unions

State law options:
1) public employees not covered by NLRA, states can regulate anyway they want
2) state law could say any employee not covered by NLRA can organize by card
3) govt contractors or grantees (subsidized by state govt, social welfare, food for
    airports, etc)

Wisconsin v. Gould (SC) case ---
State govt cannot refuse to buy from companies that commit ULPS (Wisc enacts
statute that says it wont buy from companies that are repeat violators of NLRA)
*Machinist preemption: states can’t regulate in way that alters ―delicate balance‖ of
power between la/mgmt that Congress struck in the Wagner Act
*the Wisconsin law crossed the line and is preempted, states can’t pile on additional
   -Wisconsin tries to argue that it is not giving sanction, just deciding don’t want tax $
   going to violators, an ethical purchasing law, not a regulatory law, state is market
   -Ct says no, state acting as regulator, trying to leverage its buying power in order to
   increase compliance

   California says if govt provides funds to an private employer (grants), private
   company can’t use state funds for antiunion activity **9th C struck this down as
   regulatory action! Congress wants to keep delicate balance
   -see case we read that found opposite outcome (this affects group 3, the govt

   New York City Procurement Law (drafted by prof)
   -law says contractors for garments with NYC have to produce only in factories that
   are not sweatshops and pay living wage
   -Wisconsin preemption problem

   Natsios case, p396
   -Mass law says MA will not do business with companies that operate in Burma
   -SC invalidates MA law on narrow ground:

   there is fed statute in place which preempts, implements sanctions against Burma
   (pres needs flexibility and MA can’t interfere)

Lochyer case – cal statute prohibiting recipients of state funds to fund anti-u campaigns,
**that decision was overruled by 9th circuit later on *ultimately decided the statute was
ok, didn’t prohibit them from anti-u campaigns, just from using state funds for that

New York City Law 20
-is it preempted?
-mayor used arguments from Burma case, saying violates exclusive power of fed govt to
conduct foreign policy
-violates intl commerce clause
*Prof briefed a few points – but Ct held city council didn’t have authority to make this
-now new draft to get around this ->
state procurement law says states must buy from lowest responsible bidder
-attaching labor conditions to these contracts raises cost sometimes

*Prof argues that it is not preempted because law doesn’t identify any particular foreign
govt and is not intended to put pressure on foreign govt to change is labor policy
(me: who cares what is intended? The effect is the same)
-law only says NYC must look at suppliers and make ethical choice

alternative model of global ground rules in our trade legislation which is promising for
labor rights around the world

review of trade leg:
GSP – Generalized System of Preferences *US can deny certain trade benefits to
developing countries if fail to enforce labor rights (these trade benefits are given to help
them develop, make it easy for them to export to us) *we’ll take away benefit if don’t
enforce labor rights

1988 – Section 301 of the Trade Act
– similar provision to GSP but applies to ALL trading partners: we will impose economic
sanctions against your country if you fail to enforce basic labor rights

Fast Track Authority – now called Trade Promotion Authority (TPA)
-Pres can only use this authority to pass trade agreements effectively if Congress has tied
its hands; when Pres negotiates and brings back to Congress to ratify, Cong will only
up/down vote it, wont amend any trade agreements
*crucial because other countries will only agree if they are sure that concessions made by
both sides won’t be tinkered with once it gets back to Congress (a carefully balanced
package of agreements)
*labor and env rights – Dem hesitant to support this because don’t want Pres to negotiate
free trade agreements that don’t include basic labor rights requirements
-Dems succeeded in having directive/provision put in to the trade promotion authority:
says when Pres negotiates, must negotiate for a labor rights provision

Bilateral Trade Agreements
-says that countries must enforce basic labor rights

*Pres’s TPA has expired, question whether Congress will give him this authority for the
next couple years of his presidency – probably not

NAFTA/CAFTA – these contain labor provisions
-CAFTA was almost defeated over labor rights – it was finally ratified, but commitments
by all govts to ensure labor rights were reformed in these Central Amer countries

*back to the NYC case –
Mayor says there is complicated system of laws at fed level (see above), so mayor says it
looks like fed law in Burma case that was found to preempt Mass. state law (Pres has
ability to impose/relax sanctions against Burma)
-but Prof argues on the other side, this doesn’t put pressure on foreign govts, only asking
city to look at behavior of private enterprises (not the govts of the countries); he thinks
this is different from state laws that boycott countries to boycott countries
-Prof says city always but standards to subcontractors (corruption, property,
environmental standards) – this is just another one of those requirements – if Mayor’s
argument went though, cities would not be able to apply any of these requirements in
future contracts

*Ct has not yet reached decision – strong arguments on both sides

**what about companies that are owned by govts (ie china) – this is not a private entity,
would be strong argument on mayor’s side…

Living wage is flexible around the world, depends on the country
*Other side could argue that this is form of discrimination in intl commerce (different
obligations on companies in different countries), violates intl commerce clause
-other side would say no, the standard (living wage) is a standard – it will just yield a
different number in each country – and inflexible single wage requirement would be
*this doesn’t require any change in law, it just decides which suppliers NYC will use

NAFTA side agreement –
-Clinton says he will support NAFTA only if add labor and env side agreements
-side agreements are negotiated
-labor and env groups say these side agreements are too weak – almost kills NAFTA
entirely *but Clinton is very pro-globalization and gets it ratified
-why labor groups opposed to side agreement?
         -agreement didn’t impose any new labor standards (look at p509 of supplement),
Art 3, para 1 (so country can have any labor law its wants, and just have to enforce what
it has) – this does nothing to improve labor rights
         *Prof disagrees: there is a new standard here – requires you to have and
effectively enforce labor laws (think of this whole course, we have laws on the book that
are not effectively enforced); if this standard to enforce was applied, it would be a big
deal *lack of enforcement is a problem here and all around the world – Prof thinks this is
a good standard - but what is the enforcement mechanism at the regional level??

3 step claims to enforce law:
    1) Consultation
        -freedom of assoc, right to organize, strike, other rights too (immigration,
        discrimination…etc) *consultation for the last 6 rights, not these first three
       *for these first three rights, only get consultation, which many claim is
       meaningless (get publicity, shaming against the govt, that’s about it); you do get
       solidarity between the unions of different countries to bring these issues to light

   2) Expert report on problem – first three don’t get this, last six do

   3) Intl arb/sanctions - the last three get all three enforcement mechanisms

FTAA – if this is passed the issue over labor side agreements will become a big issue

ILO – agency set up by UN after WWII
-tripartite model: unions, govt, and employer federations (only intl org with private actors
in its structure)
-issues conventions/rules on labor law; govts report to ILO on their compliance
-ILO then issues statements about govts’ compliance (soft law shaming system)

WTO – more powerful org, put labor rights here
-there was supposed to be ITO to supervise trade (Intl trade org), it would also enforce
labor rights and tie trading rights to labor rights *but this org was never ratified by the US
-instead, a series of multilateral negotiations (treaties), GATT

-all of these GATTs become part of WTO when it is formed in 1995
**do WTO rules already require countries to enforce labor rights as a matter of fair
          -key WTO provision says countries cannot subsidize their exports (this is unfair
trade) **Prof says you could make case that if country doesn’t enforce basic labor rights,
it is in a way subsidizing its exports, because they are cheaper
-under this logic, WTO already requires all countries to enforce labor rights
**but consensus that WTO does not yet embody this requirement
-SCOTUS adopts view that this does subsidize though; 1930s court took this view –ct
said if you don’t enforce labor rights, you are forcing community to subsidize the
employer (because community ends up paying for workers’ low earnings)

MFN principle – if country X gives certain trade benefits to Y, it must give the same to
other countries (a nondiscrimination principle)
-another principle of nondiscrim: national treatment – same treatment for imported goods
as domestic goods
*does US violate WTO rules by imposing unilateral sanctions? – could argue that if US
imposes sanctions against china, demanding improve labor rights, it wouldn’t violate ->
applying standard neutrally to all countries, including domestic goods *as long as same
standards as applied to our own goods, we are not discriminating between us and other
countries (strong arguments against this view)
article in supplement about tariff against china for labor violations (like a sanction) – pres
Bush denied petition to do this
-petition denied, but caused commotion at WTO – would have to address whether rules
block from using sanctions to enforce human rights

Article 20 exception – you can discriminate against another country’s goods if it is
necessary for human life, health, and public morals
**So prof argued in petition that can enforce labor rights through this

WTO – trade ministers come out against global labor rights
-a statement by ministers saying labor rights are for the ILO, not the WTO! Should not
use labor rights in a trade discriminatory way
-ILO is very timid because of the structure (govts tend to block aggressive action by the
-countries have to compete for jobs/capital, have to make sure labor standards aren’t too
-you would want it done fairly and concurrently, otherwise, if just enforced against you,
you lost your ability to compete! (much like in US, you don’t want to be the first in your
industry to be unionized, company will fight against it hard)

1998 – ILO issues declaration of fundamental principles and rights
-4 core rights: freedom of association, antidiscrimination, rights against forced labor, &
rights against child labor
*every country in the world has to abide by these!
-up until 1998, intl labor law only applied if your country ratified the convention

ILO looks at Burma (uses forced labor) – ILO finds provision in its constitution that says
it can authorize sanctions – so it authorizes all members of ILO to impose sanctions
against Burma

3rd initiative by ILO: was involved with enforcing labor rights in Cambodia
-bilateral trade agreement btw US and Camb, strong labor rights provisions for garment
-ILP as monitor (prof wanted teams made up of people from Cam civil society,
independent labor unions, women/HR groups, but this wont work)
*ILP must be invited in to investigate – US pressured Camb so it invited ILO in
*successful, and an alternative model to bureaucratic model like the NLRB

*US unions should support global labor rights – this will push up the standards

Worker Rights Consortium (students against sweatshops)
-150 member universities, go around and inspect factories (Prof is chairperson)
-model involves teams of local worker advocates to do the monitoring; but boutique
model, can’t be used to inspect tons of factories around the world
-not permitted to remove production to another country if you are found to be violating
*but overtime quietly, they move their production out (good reasons facially)
*found that need continuous, constant monitoring or else problem returns (only way to do
this is to get workers on site monitoring)
Designated Supplier Program: university should be required to consolidate its production
in small number of suppliers which could be systematically inspected
**My critique: its great that univ wont be using the sweatshop places, but that doesn’t
tremendously help the goal as a whole of stopping sweatshops – unless really motivated
by desire to have US universities buy their stuff??) – seems to just make univ feel better
about itself
-also requires any ―brands‖ that university uses (Nike, etc) to pay sufficient wage to
factories they get stuff from
*essentially requiring that big manufacturers like Nike become responsible for
compliance/wages in these factories
-govts want to use this model now – SF wants to contract with Workers Rights C to
monitor factories that SF uses

*Initiative: put together group of governors to form consortium, would monitor on behalf
of many states! Could even have the consortium do all the buying on behalf of the states