berendtlaborlaw

8/2/2019 BerendtLaborLaw

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G. Berendt Fall 2011

Labor Law Outline

I. The NLRA and NLRB (Assignments 1 & 2)A. Evolution of Labor Law

1. Generally

i. Labor Law = the regulatory scheme of collective bargaining established

under the NLRA (Wagner Act of 1935 and as amended by the Taft-HartleyAct of 1947)

ii. Relationship b/t employees and employers in the presence of a union

iii. Motivation to join a union: strength in numbers in negotiations, protection,economics (to be treated fairly), union will negotiate on basis of seniority, not

performance

a. Changes employment at willb. Montana is unique because employment is for cause there, not at

will

iv. Administered by the NLRB instead of by the courtsa. Primary forum for adjudication is an administrative tribunal

v. Largely federal law states cannot prescribe or affect itvi. Defining and central theme = unionization and collective bargaining

vii. Once organized, the union is the single, collective voice for the employees,whether they support the union or not, and they are forbidden to bargain

individually with the employer

a. Employer must negotiate in good faith for the terms and conditionsof employment

2. Pre-NLRA

i. 1850s Formation of the first national unions, representing one craft oroccupation in different localities

ii. 1869 Noble Order of the Knights of Labor

a. Merged trade union and political endeavorsb. Only admitted the skilled and unskilled workers and farmers butexcluded professionals

c. Chicago Haymarket Riot ended its popularity

iii. 1880s - American Federation of Labora. Did away with the radicalism of the Knights and focused on a

narrower trade-union philosophy that lessened emphasis on social

reform through politics and more on building disciplined unions,which thru collective bargaining, would be business-like in

improving wages and working conditions

b. Began the political philosophy that lasted through 1920s of

voluntarism = a commitment to the private ordering of laborrelations thru collective bargaining

c. 1890s leading labor organization but remained a craft union

iv. 1890 United Mine Workers organized the first permanent industrial union

3. At Common Law

i. Originally, union activity was held as criminal conspiracy (Philadelphia

Cordwainers)ii. Commonwealth v. Hunt ended criminal conspiracy indictments shifted

labor cases from criminal to civil courts

iii. Holmes Dissent in Vegelahn v. Guntner


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Labor Law Outline

a. Policy of allowing free competition justifies intentional inflicting of

temporal damage, including interference with business, when it is

done as an instrumentality in reaching victory in labor disputeb. To exclude the relationship b/t employers and employees from this

competition would be to narrow it too far capitalism is good for

the employer is business, it should be allowed and good for

employees too (supply and demand in labor relations)c. Conduct done by a group is not unlawful if an individual could do it

by himselfiv. Anti-trust laws Courts used anti-trust reasoning to attack organized labor

amendment to the Clayton Act attempted to free labor from anti-trust

arguments but was struck down by the SC

4. 20t h Century Legislation

i. Railway Labor Act

a. Prohibited interference, influence, or coercion by either party over

the self-organization of employees

b. Duties imposed: to make/maintain agreements about rates of pay

and working conditions, abide by the agreement until settlementprocedures are exhausted (negotiation, mediation, voluntary

arbitration, and conciliation) before resorting to self-helpc. Formed the National Railroad Adjustment Board and the National

Mediation Board

ii. Norris-LaGuardia Act (1932)a. Congress took away courts jurisdiction over labor exercised

authority under Art III to limit jurisdiction

i. Taft-Hartley gave it back a little bit in context of K no

strike clauses courts can enforce the K violation if unionstrikes

b. Promoted unionization (in response to courts growing hostilitytoward organized labor), collective bargaining, and concertedactivities

c. Set limitations on the jurisdiction of federal courts to issue

injunctions in labor disputesiii. National Industrial Recovery Act (1933)

a. Struck down as violating the delegation doctrine and separation of

powersiv. Wagner Act (1935) written by Leon Keyserling from SC

a. Original NLRA

b. Almost vetoed by FDR Frances Perkins convinced Eleanor R to

get FDR not to veto itc. Supplied shield against exercise of employer power to frustrate the

organization of employees for collective bargaining

d. Declared unfair labor practices of employers that violated basicrights of employees

e. Imposed a duty on employee to bargain with the union

f. Heavily favored labor organizationsg. Formed the NLRB

h. Constitutional under NLRB v. Jones & Laughlin Steel effect is


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Labor Law Outline

that it legitimized the new branch of government in administrative

agencies like the NLRB

i. 7 gave employees the right to unionize and collectively organizeand provided remedies for violations union was the exclusive

bargaining rep to determine wages/hours/benefits

j. The War years b/t Wagner and Taft-Hartley introduced

arbitration/mediation as primary dispute resolution so that strikeswould not interrupt the war effort

i. Unions struck anyway leading to a negative reaction toorganized labor and a power shift in Congress to become

Republican

v. Taft-Hartley Act (Labor Management Relations Act) - 1947

a. Vetoed by Truman but Congress overruled vetob. Retained the unfair labor practices for employers in Wagner Act and

reaffirmed the endorsement of collective bargaining

c. Gave president authority to declare a national emergency dispute toforce the union and employer back to bargaining table and stop

utilizing self-help tacticsi. Truman invoked it in Youngstown Steel to take over steel

industry after a strike and SC struck it downd. Added provisions defining unfair labor practices by labor

organizations and gave workers the right to refrain

i. Appeared to take away the secondary boycott (picketingcustomers of the employer until the customer no longer is a

customer of the employer)

e. Increased NLRB members from 3 to 5 and separated its

prosecutorial and judicial functionsf. Suits in federal courts allowed to enforce collective-bargaining

agreementsg. Right to Work laws = reaction to compulsory unionization in the

collective bargaining agreement (union compulsory clause forces

all employees to join the union w/in 30 days)

i. 14 left this provision to the statesh. 301 exception to the Norris-LaGuardia Act provides that an

employer/employees can file in federal court for breach of K

vi. Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act) -1959

a. Curbed abuses and improper union activities amended the

secondary boycott prohibitions and added prohibition against

blackmail picketing (used to hurt the business enough to getrecognition by the union)

b. Imposed fiduciary responsibility on unions sometimes called the

Union Members Bill of Rightsi. Fairness and financial disclosure

ii. Jimmy Hoffas abuses led to the enactment

c. Amended the NLRA to tighten the Acts secondary boycottprovisions and the placing of restrictions on organizational and

recognition picketing


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Labor Law Outline

vii. Health Care Industry Amendments 1974

a. NLRB declined to assert jurisdiction over non-profits or healthcare

institutions over the yearsb. Amendments to the NLRA to direct the NLRB to assert jurisdiction

over these entities

i. NLRB has no jurisdiction over government entities

ii. Notice requirement so hospitals can arrange for care when/ifnurses strike

viii. Future Legislation:a. EFCA would substitute NLRB election process with a card count

certification; include interest arbitration as remedy for stalling

negotiation process once union is recognized; includes punitive

damages and mandatory injunctive relief as remediesb. Respect Act overturns supervisor cases

c. Arbitration Fairness Act pre-dispute arbitration agreements could

be used to get around remedies for civil rights violations

B. NLRB

1. Generallyi. Administrative procedures and remedies instead of judicial adjudication

ii. Precluded private litigation to enforce workers statutory rights

iii. Confined the role of the courts

iv. Created to administer the statute

2. Jurisdiction

i. Primary measure of NLRB jurisdiction is commerce

a. 9(c)(1) & 10(a)

b. Coextensive with the power of Congress to legislate under thecommerce clause (Jones & Laughlin Steel)

ii. Extends to:

a. Non-retail businessb. Office buildings

c. Retail enterprises

d. Public utilitiese. Newspapers

f. Radio/telegraph/television/telephone enterprises

g. Hotels/motels/residential apartment houses

h. Privately operated health care institutionsi. Transportation enterprises

j. Transit systems

k. Taxicab companies

l. Associationsm. DC enterprises

n. National defenseo. Private universities and colleges

p. Symphony orchestras

q. Law firms and legal assistance programsr. Employers that provide social services

s. Lawful gambling casinos

iii. 14(c) authorizes the Board to refuse jurisdiction over any employer whose


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Labor Law Outline

labor dispute is not sufficiently substantial, but the Board cannot refuse a

labor dispute over which it would have asserted jurisdiction under the

standards of Aug 1 1959a. No Mans Land If congress gave statutory jurisdiction to an

agency then states cant enter, but if NLRB does not assert

jurisdiction then those orgs are left in the middle

iv. Limited to enterprises whose affect on commerce is substantial and throughthe definitions of employer and employee in 2(2) and (3) and

supervisor in 2(11)a. Excluded from NLRBs reach: agricultural workers, domestics,

public employees (federal/state/local governments), fed reserve

banks, RR and airlines subject to the Railway Labor Act,

independent contractors and supervisors (including most nurses)b. Hospitals: Exclusion of nonprofit hospitals was deleted by the 1974

healthcare amendments today nonprofit hospitals, health-

maintenance orgs, health clinics, nursing homes, and extended-carefacilities are covered under 2(14)

i. House staff in hospitals (interns, residents, fellows) arestatutory employees entitled to protection

c. Graduate Students: primarily students functioning in an academic

relationship w/their school, not statutory employees entitled to

organize (Brown University)

i. IL law = if student is workin in department related to studies= student; if not related = employee

ii. No NLRA exclusion of students so conflicting decisions by

Boardd. Public employees: under the Federal Labor Relations Authority (not

NLRB) and are forbidden to strike (pg 60-61)

e. Religious schools: excluded workers in church-operated schools(Catholic Bishop of Chicago)

f. Independent Contractors right of control test and on the basis of

the total factual context assessed through agency principles

i. Wither the employee has control over how the work getsdone or over just the work product

ii. If employer controls the manor/result = employee

iii. If employer contracts for result but nothing to do with themanor of execution = Independent Contractor

g. Agricultural workers

i. Excluded since 1935 made sense during that period of time

b/c of the recession and farm ownershiph. Supervisors

i. 2(11) defines supervisor as an individual who exercisesindependent judgment in performing their employment

function, such as directing others, to hire, transfer, suspend,

lay off, recall, promote, adjust grievances, etc. that is not

merely of a routine or clerical natureii. Context of nurses:

1. Nurses act on behalf of the employer, not exclusively


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Labor Law Outline

on behalf of patients (NLRB v. Health Care)

2. Nurses generally assign tasks to others and often

responsibly direct others (NLRB v. KentuckyRiver)

i. Managers

i. Non-statutory exclusion of managers employer should

have the loyalty of its managers who have authority tocommit management resources to set institutional policy or

implement policy at the highest levelsii. University faculty: termed managerial so they are

excluded from the Act (Yeshiva University) but no hard and

fast rule is adopted about faculty members

j. Confidential employeesi. Excluded even if they are statutory employees under 2(3)

ii. Test = whether an employee assists and acts in a confidential

capacity to persons who formulate, determine, and effectuatemanagement policies in the field of labor relations (labor-

nexus test)iii. Individual must have some connection to personnel and

collective bargaining and either have access to materials or

be present with those decisions are made

iv. Example: secretary taking notes during meeting, person in

charge of personnel files

3. Organization

i. Function = to prevent and remedy violations of the NLRA (unfair labor

practices) and to conduct secret-ballot elections on the question whetheremployees which to be represented by a union

ii. Members are appointed to 5 year terms by the President, subject to Senate

confirmationiii. 5 members that sit in 3 member panels

iv. Adjudicative and prosecuting functions were separated in the Taft-Hartley

Act

a. General Counsel oversees prosecuting functions and is appointed bythe President with consent from the Senate for a 4 year term

b. 3(d) provides that the General Counsel supervises all NLRB

attorneys and regional offices and gives GC final authority over theinvestigation of charges filed by aggrieved persons, issuance of

complaints, and prosecution before the Board

i. Issuance of complaints is initially controlled by the regional

directors and their decisions are subject to review by the GCc. GCs decision not to issue a complaint or to withdraw a complaint is

not reviewable by the Board or by the courts but it does haveprocedures for giving the charging party reasons for refusal and

appeals to its office

d. GC does not initiate ULP case on its own motion requires a charge

to be filed first

4. Procedure

i. Any person may file a charge in the regional office for the area where the


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Labor Law Outline

ULP occurred

ii. 6 month statute of limitations must file w/in 6 months of the violation

a. 10(b) provides a 6 month window for the individual to file a chargestarting with the point when the claimant discovers or should have

discovered the misconduct

iii. Employees of the regional office will investigate the charges and discuss them

with the parties high % result in settlements before formal litigation beforethe board (90%ish)

iv. Formal proceedings are begun by the issuance of a complaint and setting thetime and place of hearing

v. A hearing on the complaint is held before an Administrative Law Judge (ALJ)

who is appointed by the Board, independent of the Board, and can be

removed only for good causea. The complaint is prosecuted by an attorney from the regional office

but the charging party may intervene with own counsel

b. Rules of evidence apply (10(b))c. GC has the burden

vi. ALJ files a decision setting forth findings of fact and proposed dispositionof the case

a. If no exceptions, the Board usually adopts the decision of the ALJ

b. If exceptions are filed, then the Board will review the case on the

basis of the briefs and w/o oral argument

vii. 10(j) and (l) (j) gives NLRB discretion whether to apply for injunction

5. Judicial Review

i. NLRB Review:

a. Typical remedial order of the NLRB is to cease and desist fromthe unlawful behavior and post notice of the action in the workplace

(and reinstatement with back pay if appropriate)

b. ULP order is not self-executing if compliance is not forthcoming,the Board must seek enforcement by petitioning the court of appeals

(10(e))

c. Enforcement order entered by the court = injunction and its

violation is punishable by an action for contemptii. Appeals to Federal Courts of Appeals

a. Any person aggrieved by a Board order may also seek judicial

review in the appeals courtsi. 10(f) provides wider choice of forums for review than the

Board has to seek enforcement so usually a forum-shopping

race to file with a favorable appellate court after decision is

handed downb. Charging party cannot maintain a contempt action for violation of

the judicially-enforced Board order, only the Board can do thatiii. Scope of Review

a. 10(e) findings of the Board with respect to questions of fact, if

supported by substantial evidence on the record considered as a

whole, is conclusiveb. The court will uphold the Boards decision if based on

facts/substantial evidence and the Boards expertise


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Labor Law Outline

c. Courts have less discretion in overturning an ALJ than the Board,

whose policy is not to overrule the ALJ credibility determinations

unless incorrectness is shown by a clear preponderance ofevidence

d. In general, NLRBs findings of law are reviewed to determine

whether they have a reasonable basis in law and are upheld unless

they are irrational or inconsistent with the Acti. Two part test of deference: did Congress directly speak on

this issue and if not then is the Boards decision based on apermissible construction of the statute


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II. The Election Process - 8(a)(1) Violations (Assignment 3)A. 8(a)(1) v. 8(b)(1)(A)

1. 8(a)(1)

i. ULP = employer to interfere, restrain, coerce employees

ii. Interfere = standing in the doorway

iii. Coercion = pulling a gun and threateningiv. Restrain = physically holding you back

2. 8(b)(1)(A)

i. ULP = labor organization to restrain, coerceii. (1)(B) Prohibits unions from coercing the employer in its selection of

representatives for collective bargaining

iii. Missing element from 8(a) = interference asymmetry of the statutea. Employers have a different standing maintains power and

authority whereas the union doesnt so the employer can interfere in

ways a union cannot

B. 8(c) and Freedom of Speech Threats v. Predictions

1. Expression of any views/argument/opinion that does not, by its own terms,threaten force or economic reprisal ULP (Golub)i. Volition helps define the line b/t threat and predictions

a. Volition = control; prediction on a matter that is outside ofemployers control is legal; a prediction that involves a matter that

the employer does control is more of a threat

ii. Threat of reprisal = adverse consequences will be deliberately inflicted inreturn; more than a mere prediction of adverse consequences

iii. Employer is free to tell employees what he reasonably believes will be the

likely economic consequences of unionization that are outside his control, as

distinguished from threats of economic reprisal taken on his own volition

iv. Predictions based on objective facts so allowablev. Hays dissent in Golub = people listen more carefully for implications in

employers speeches and are more sensitive to implicit threatsvi. Employer is free to communicate to his employees any of his general views

about unionism or specific views about a particular union, as lon as they dont

contain a threat (Gissel)

a. Prediction must be based on objective fact to demonstrably probable

consequences beyond his control or to convey a managementdecision already arrived at to close the plant in case of unionization

b. If there is any implication that the employer may or may not take

action based on his own initiative and for reasons unrelated to

economic necessities then it is no longer protected by the 1st

Amendment

c. Implied threat = statement in the form of a prediction not based on

objective facts outside the employers controld. Brinksmanship employers going too far to try to find the line b/t

threats and predictions

vii. Predictions based on common sense and general experience are adequate

protections under 1st Amendment and 8(c)

2. NLRB applies the totality of conduct approach


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Labor Law Outline

i. Words and conduct that are so intertwined as to be considered a single

coercive act

ii. Board does not assess the impact of the conduct

3. Laboratory Conditions General Shoe

i. In election proceedings, it is the Boards function to provide a laboratory in

which an experiment may be conducted, under conditions as nearly ideal as

possible to determine the uninhibited desires of the employeesii. = Circumstances surrounding an election should be free of pollutants to

ensure that the employees have the most freedom to make an informeddecision

iii. Election can be set aside if the conditions are tainted, even if no ULP is found

to have been committed

a. Standard is where the misconduct tends to interfere withemployees freedom of choice would well have affected the voting

b. More restrictive than test of conduct that = 8(a)(1) violation

c. Board approaches election objections with a strong presumptionthat ballots cast accurately reflect employee choice so the burden is

heavier to show that the conduct tended to interfere withemployee choice.

4. Remedies available for 8(a)(1) violations

i. Set aside the election

ii. Cease and desist and post notice

5. Captive audience speeches and home campaigning

i. Irrespective of 8(a)(1) NLRB says there are certain kinds of captive

audience speeches that are objectionable irrespective of the content based on

their location, size of the group, position of the speaker in the managerialhierarchy and the tenor of the remarks

ii. NLRB will set aside the election

C. Coercion1. Critical Period for Objectionable Conduct

i. Regulates through 9 with laboratory conditions standard

ii. Critical period = SOL for objectionable conducta. Begins with the filing of the petition (by the union) and this is when

the laboratory conditions start

b. Ends with the holding of a valid election 5 days after the election

for it to be validated or objections to be filed

2. Overlapping ULP and Objectionable Conduct

i. ULP standard for 8(a)(1) is the tendency to interfere, coerce, threaten

ii. OBJ violation of laboratory standard

a. OBJs that are not generally ULPs - captive audience speeches,misrepresentations

iii. In the overlap, if a ULP occurs during the OBJ period, it is a fortiori

(automatically follows) that the ULP is also OBJ

3. Anti-union films

i. Generally lawful and unobjectionable under General Shoe, if used in a

context free from other unlawful or objectionable conduct

4. Bargaining-from-scratch

i. Distinguish b/t situations where remarks can be interpreted either as a threat


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Labor Law Outline

to discontinue existing benefits (futility message) from remarks that merely

describe bargaining strategy referring to the normal give and take of

negotiations to remind employees that unionization is no guarantee ifincreased benefits

ii. Legal: Under the NLRB, we have to bargain in good faith and we intend to

and it isnt guaranteed that we can preserve anything we bargain from

scratchiii. Futility v. accurate statement of law and facts

a. Bargaining might not lead to anything more, not guarantee, mayhave to reduce benefits = legal

b. Illegal = I wont give anything to the union

iv. Totality of the circumstances = legal for an employer to say: if you select a

union, we have a legal obligation to bargain in good faith which means wehave to bargain over wages/hours/conditions of employment and everything

you have now is on the table; union can promise everything but employer has

to agree; will bargain in good faith but nothing guaranteeda. Illegal = threat that everything they have will be taken away and

will retaliate by withdrawing benefitsb. Look for a retaliatory message

5. Interrogation

i. Coercion can happen w/o threats depending on the circumstances under

which employees are addressed about their unionizing activities

ii. Case by case totality test guided by theBourne factors:

a. The background, history of employer hostility and discrimination

b. The nature of the information sought

c. Identity of the questioner

d. Place and method of the interrogatione. Truthfulness of the reply

iii. Questions gauging nothing more than the numerical support for a union unlawful interrogation

iv. Its about the content of the questionsa. Intrusive = who here wants to support the union and discuss it with

me

b. Not intrusive = what can the union give you that the company cant,to a group of employees

c. Look for intrusion make a factual distinction based on whether it

is intrusive or a reasonable discussion about the pros/cons of

unionization so as not to deprive the employees of a healthydebate/discussion

6. Pollingi. A poll of employees and their support of a union violates 8(a)(1) if these

safeguards are absent after a demand for recognition has been made:

(Struksnes test)

a. The purpose of the poll is to determine the truth of the unions claimof majority (union has made a demand for recognition gives

employer a legitimate reason for the poll)

b. This purpose is communicated to the employeesc. Assurances against reprisals are given


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d. The employees are polled by secret ballot

e. The employer has not engaged in ULPs or otherwise created a

coercive atmospheref. Berendts suggested additional factor: NLRB conducts the poll after

the petition is filed so employer cannot justify taking one

ii. Once an election is pending, polling is likely to be found as interfering with

the election7. Surveillance

i. Presumed violative unless employer can come up with a reasonable, objectivejustification for the surveillance

ii. Focus on intrusion and expectation of privacy

iii. Is there an impression that the employer is trying to acquire information that

he can use to retaliate against the employee or does the employer have alegitimate reason for being there

8. 24-Hour Rule

i. Peerless Plywood rule a massed captive audience speech on companyproperty w/in 24 hours of the election automatically violates the laboratory

conditions9. Milchem rule? Campaigning too close to the polling place???

D. Campaign Misrepresentations1. Generally

i. Objectionable conduct, generally not ULP b/c 8(c) protects themii. Fundamental question of government regulation is who is involved and who

should determine the truth or falsity of the statements

2. Original Board position (no longer current law) Hollywood Ceramics

i. Election is set aside only where there is 1) a misrepresentation or campaigntrickery that involves a substantial departure from the truth 2) at a time which

prevents the other party from making an effective reply and 3) that is

expected to have a significant impact on the outcome of the electionii. Reversed in Shopping Kart

iii. Reinstated by General Knit of CA

iv. Problems with this position: empirical research, difficulties administering the

test, subjective, inconsistent and discriminatory in application (harder for

employers than unions)

3. Getman Goldberg Study

i. Promoted elimination of the Hollywood Ceramics doctrine

ii. Theorized that election campaign communications play a limited role in the

employees ultimate vote

4. Current Law Midland National Life

i. Reinstated Shopping Kart and overruled General Knit and HollywoodCeramics

ii. Elections will not be set aside based on the substance of the representation

BUT on the deceptive manner in which it was made

a. Board no longer inquires into the truth/falsity of the statements if

employees can independently evaluate their decisioniii. As long as campaign material is what it purports to be (mere propaganda of a

particular viewpoint) then its ok

iv. Where, due to forgery, no voter could recognize the propaganda for what it is,


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then the Board will intervene

v. Court reasoned that employees are to be assumed mature individuals who are

capable of recognizing propaganda for what it isvi. No longer probes the truth or falsity of the campaign statements but will

intervene in cases where a party has used forged documents

5. Racial Propaganda Appeals to Prejudice

i. Sewell Doctrinea. Racial propaganda will not be tolerated unless the statements are

truthful, temperate, and germane to a partys position and do notdeliberately seek to overstress and exacerbate racial feelings by

irrelevant and inflammatory appeals

b. Objectionable if it is intemperate, untruthful, irrational,

inflammatory appeals to base instincts, rather than reason, andirrelevant

c. Comments about a unions position on segregation or monetary

contributions toward eliminating segregation are oki. Bancroft case appeal to racial solidarity based on a

relevant issue; appeal to racial self-consciousness okd. As long as the party limits itself to truthfully setting forth another

partys position on matters of racial interest, then wont set aside the

election

E. Third Party Interference and Agency1. Apparent Authority

i. 2(2) incorporates the common law agency as the test of employer

responsibility

ii. 2(13) makes apparent authority available to charge a union with theunauthorized acts of its authorized representatives and subjects unions as well

as employers to agency principles

iii. Apparent authority = employer responsible for actions/statements ofsupervisor if employees may reasonably believe that the supervisor speaks for

management any individual reasonably understood by the workforce to act

for management in given circumstances would be an agent of the employeriv. Limitations: employers can limit liability if they direct supervisors not to

interfere and promptly tell the employees of such directions and disavow

supervisors conduct and promptly communicate such to the employees

v. Nonsupervisory employees responsibility is usually not imputed to theemployer unless the employee has some special relationship with

management or unless management has instigated or condoned the conduct

vi. Union liability attempts to impose responsibility on unions for employees

who have no position in the union frequently fail absent proof of unionauthorization or ratification

a. The activist employee must ordinarily have functioned as theunions presence in the plant or its conduit to the workforce

b. Asymmetry of the statute

2. 3rd Parties

i. Outsider conduct generally is not imputed to the employer unless there is ashowing that the employer instigated or aided the outside activity or failed to

disavow it under circumstances that made such failure adoption


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ii. Although not imputed to the company, can still destroy laboratory conditions

and warrant setting aside an election

F. Promises of Benefit1. Fist in a velvet glove NLRB v. Exchange Parts

i. Well-timed benefits given before an election are called the fist in the velvet

glove b/c employees are not likely to miss the inference that the source of

benefits now conferred is also the source from which future benefits mustflow and which may dry up if it is not obliged

ii. Benefit is new and took the employer took the opportunity to assocate itselfwith the benefit as the source of all benefits

iii. Remedy: cease and desist

2. Russell Stover Candies

i. Employer must proceed as it would have done had the union not beenconducting its campaign

3. The Damned if you do, damned if you dont position remedied by an

exception

i. A benefit may be postponed provided that the employer makes clear to

employees that it will be implemented whether or not they select a union andthat the sole purpose of the postponement is to avoid the appearance ofinfluencing the election

ii. Could then use it in negotiations should the union win

iii. Hypo about dental insurance legal: under advise of counsel, during thependency of the union election, granting a benefit might violate the NLRA so

will hold off

4. Common Employer defenses:

i. Regularly scheduled benefitii. Prior decsion that has been set in motion

iii. Ojectively identifiable exigency emergency sitatuion like a competitor

taking advantage of the situation5. Union version under Exchange Parts Savair case

i. Fee waiver, limited only to those who sign up with the union before an

election unfairly allows the union to buy endorsements and paint a falseportrait of employee support and = union bribe

a. If the offer stands after the election, then no violation

ii. Cant bribe the employees with free gifts

a. But if its a trivial thing (pens/pencils/hats) then its ok

6. Employers can link the future to the past in its campaigns

i. General promises of an even better future are permitted


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III. Concerted Activity & Access (Assignment 4)A. Clash of Legitimate Rights & Interests

1. Union/Employee Rights v. Employer Rights

i. Employees have 7 rights to pursue collective bargaining and representation

(form, join, assist a labor organization)

ii. Employers have a legitimate property interest in workplace order andefficiency mostly enforced by no-solicitation policies

a. Interests include real property and trespass, equipment, management

of business as employer sees fit

2. Employee rights communication at work

i. Republic Aviation SC acknowledges NLRB experience, expertise and the

resulting power to draw inferences from the facts regarding a tendency to

restrain employees concerning 7 rights & approves NLRB adoption ofpresumptions regarding employer rules restricting employee communication

B. Employee Rights to Communication & NLRB Presumptions1. Prohibit wearing of union insignia presumptively invalid

i. Unless there are special circumstances to rebut the presumption of invaliditya. This exception is narrow and includes circumstances when the

display of union insignia and apparel is shown to jeopardizeemployee safety, exacerbate employee dissension, or unreasonably

interfere with a public image the employer, through appearance-

rules, has sought to establishb. Customer contact (like in retail outlets with uniform requirements)

is not in and of itself a special circumstance justifying a total ban

on union insignia and nor is a customers displeasure with union

insigniac. It makes a difference though if the message is just a small button or

provocative message/languageii. Republic Aviation rule

2. Prohibit communications between on-duty employees presumptively valid

3. Prohibit communications among off-duty employees (including breaks and

lunch) presumptively invalid

i. Board rules are privileged for retail establishments, health care facilities, or

other employers on an as needed basis

4. Oral v. Written communication

i. Restricting distribution of literature to non-working areas presumptivelyvalid, irrespective of time

5. Working Time v. Working Hours (Our Way)

i. Prohibitions of communication while on working time (periods of actualwork) = Legal

a. The rule must state with reasonable clarity that it does not applyduring employees non-work time i.e. only applies during working

time

ii. Prohibitions of communication while in working hours (from opening to

closing of business, includes employees own time such as breaks) = Illegal

6. Special circumstances for retail operations

i. Retailers may ban solicitation and distribution at any time during business


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Labor Law Outline

hours, even during employees non-working time, on selling floors and in

adjacent aisles and corridors, but not in such non-selling areas as public

restrooms and restaurantsii. Hospitals: may generally ban all organizing activity, even during employees

nonworking time, in patient care areas; including corridors on patients

floors but not in visitor-access or patient-access areas

7. New Technology - Emaili. Register Guard

ii. Email is treated as if it is the use of company property which companies havemore compelling interest to prohibit matter is unresolved in federal courts

C. Discriminatory Practices1. Content or application of no-solicitation rules differential treatment of pro-

union activity is normally an unfair labor practice

i. Beneficent acts exception: Despite some tolerance of an employer who

permits occasional charitable solicitation during work hours, where incidents

of charitable or beneficent solicitation cannot be characterized as few orisolated the Board will likely find the employers enforcement of a rule

against union solicitation to be unlawful discrimination2. Disparate enforcement

i. = An employer with a facially valid no-solicitation rule banning solicitation

of any kind discharges employees for union solicitations on work time but

during the previous year had allowed work-time non-union solicitations onother occasions

3. Discharge of employee for violating an illegal rule = 8a3 and 8a1 violation

4. Singling out union activity for prohibitions in the body of the rule itself

5. Applying an otherwise valid rule in a discriminatory fashion

6. Application of rule to activities of a similar character

i. Unequal treatment of equals is discrimination

ii. Discrimination in the enforcement of a no-solicitation policy occurs only ifthe prohibited groups or activities are comparable to those permitted

7. NLRB current view: save for the limited beneficent acts exception, a

lawful restriction on work-time solicitations must be applied in neutral

fashion to union activities

8. Proper remedy: 8a1, 8a3, Objectionable conduct if during the critical period

D. Employer Property Rights (directed against 3rd parties)1. NLRB v. Magnavox Union may not waive employees 7 rights to

distribute organizational literature on company property through

acquiescence to an overly broad no-solicitation rule or in collective

bargaining

i. But does this rule deprive the employer of its bargain? Probably but employeerights are more important

2. Babcock & Wilcox an employer may validly post his property against non-

employee distribution of union literature if reasonable efforts by the union

through other available channels of communication will enable it to reach

the employees with its message and if the employers notice or order does not

discriminate against the union by allowing other distribution

i. The employer may not interfere with organization and the Union cannot insist

that employer aid in organization


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Labor Law Outline

ii. But where the inaccessibility of employees makes ineffective the reasonable

attempts by non-employees to communicate with them through the usual

channels, the right to exclude from property should yield to the extent neededto permit communication of information on the right to organize

a. If the location of a plant and the living quarters of the employees

place them beyond reach of union

b. Example: company town, resorts, oil drilling stationsiii. In application, this rule has been difficult for unions to satisfy that the usual

channels have been inadequate

3. Public Access

i. Babcock rule applies in situations where organizers use private property, to

which the public is not invited, in a manner inconsistent with the propertys

intended purpose (Montgomery Ward)

4. Comparative Standards

i. NuTone enforcing a valid no-solicitation rule, employer does not have to

give the union equal opportunity for expression of views if it uses working

time for its anti-union message, while precluding employees from using the

same time (not precluded from enforcing its no-solicitation rule)a. Must be in the absence of an unlawfully broad no-solicitation rule or

a privileged no-solicitation ruleii. When there is an unlawfully broad or privileged broad (in a retail setting) no-

solicitation rule and employer makes a speech to massed employees on

working time on company property = ULP when it doesnt afford the unionequal time

iii. Excelsior List requirement that w/in 7 days after an election has been

approved, the employer must file with the Regional Director an election

eligibility list, containing the names and addresses of all eligible voters

5. 24-Hour Rule

i. Employers and unions alike are prohibited from making election speeches oncompany time to massed assemblies of employees within 24 hours before a

scheduled election (Peerless Plywood)


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Labor Law Outline

IV. Employer Support or Domination of Union (Assign. 5)A. 8(a)(2)

1. Provisions

i. Impedes unilateral management efforts to establish cooperative and

participatory arrangements for employee involvement in workplace decision-

making company unions2. Situations Implicating 8(a)(2)

i. Company sponsored team management model

ii. Recognition of a minority union (good faith in believing the union not adefense to a 8(a)(2) violation) (ILGWU Bernard Altman)

iii. Favoritism of one union over another particularly during a challenging

unions campaign to replace incumbenta. i.e. giving incumbent preferential treatment when communicating

with employees

b. Rule of thumb = proceed as you would have had the other union notbeen present ignore rival b/c you are under K

iv. Domination of the union through support/bribes (sweetheart unions = unionwhose officials have been bought by the company so it no longer serves

interests of employees against employer)v. Labor Management Reporting and Disclosure Act (LMRDA) union member

bill of rights and union officers have fiduciary responsibilities

3. Must an employer stay totally neutral when there are 2 unions on the scene?

i. Should operate as if 2nd union is not there

ii. 8(c) free speech provision allow employer to express a preference (employer

has worked will with union A constructive relationship, you have no idea

what youll get with union B, easy to make promises but hard to produce,recommend to take what you have and your and companys best interest

served with union A)a. Illegal: You have better wages/benefits with Union A, go withUnion B and I cant tell you whats going to happen; subtext that

employer will not bargain in good faith with Union B

4. Remedies

i. Mostly it is cease/desist and post notice, order to withdraw recognition ifwrongly supported

ii. Remedial election is at discretion of regional director

iii. Disestablishment is reserved for most extreme situations

5. Analysis of 8(b)(2) cases

i. Is it a labor organization?

ii. Yes, was it dominated, supported?iii. Yes, what is the appropriate remedy?

6. 2(5) = definition of a labor organization = exists to deal with employer on

terms/conditions of employment

i. Deal =

a. Cabot Carbon case dealing is confined to bargaining

b. Streamway rejected this definition

ii. Streamway factors for committees that labor organization:

a. Continuous rotation of membersb. No employer hostility or anti-union animus


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Labor Law Outline

c. Whether the employees/committee considered the committee to

resemble a labor organization

d. No encouragement of employees in the mistaken belief that acommittee is truly representative and affords an agency for

collective bargaining

e. Employees are free to choose for themselves

7. 8(a)(2)s ban on employer-sponsored forms of employee representation doesnot outlaw all forms of employee involvement (Streamway)

8. Electromation rejects Streamway

i. Core element of a labor organization is that it deals concerning conditions

of employment dealing with contemplates a pattern or practice of a

bilateral mechanism involving proposals from an employee committee

concerning terms and conditions of employment coupled with considerationof those proposals by management in a give and take fashion

ii. Does not matter if employer had no anti-union animus

iii. purpose = what committee is set up to doiv. motive = hostility/or not toward unions

9. Test for 8(a)(2) violation (Electormation):i. Is the team committee a labor organization under 2(5)?

a. Employee participation?

b. Purpose to deal with employers?

c. Concerning conditions of employment?

d. If there is an employee representation committee, does thecommittee in some way represent the employees?

ii. Has the employer dominated or interfered with the formation/administration

of the committee or contributed financial or other supporta. Focuses on the purpose of the committee and if the purpose is to

deal with conditions of employment and if it has unfettered power to

determine its own actions and independence (lack of control byemployer evidenced by membership on the committee, participation,

financial support etc.)

B. Neutrality Agreements1. Agreement b/t union and employer that employer will remain neutral in

any organizing campaign conducted by the union in the future at other

plants

i. Employer agrees not to resist the unions organizational campaign

2. Dana Corp

3. Do not violate 8(a)(2) as support

4. Do not violate 8(b)(1)(a) denying employees right to a debate


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Labor Law Outline

V. Protected Activity (Assignment 6)A. Generally

1. 8(a)(3)

i. Violation if the employer discriminated against because of 7 activities and

that discrimination tended to encourage or discourage union membership

ii. Discriminate = treating union different from non-unioniii. Hire/tenure of employment = not just discharge/discipline but also

promotion, suspension, lay off, recall

iv. Encourage or discourage membership in labor organization = mostlyactions that discourage membership

v. Proviso: employers can agree to and enforce lawful union security clauses in

non-right-to-work-statesa. In a right-to-work-state, it would be illegal for employer to force an

employee into a union

2. 7

i. Right to join/support a union and bargain collectively and any other

concerted activity that is for the purpose of collective bargaining/othermutual aid or protection

ii. Protected activity can be lost if the activity is abusive

3. Concerted Interobo Doctrine (when there is a union and a K)

i. An individuals assertion of a right grounded in a collective-bargaining

agreement is recognized as concerted activity and is accorded 7 protection

ii. Concerted = activity of employees who have joined together to achievecommon goals (City Disposal)

iii. BUT even a lone employee, acting in invocation of a right grounded in his

collective-bargaining agreement is acting concertedlyiv. Requirements: (City Disposal)

a.As long as the employees statement or action is based on areasonable and honest belief that he is being, or has been, asked to

perform a task that he is not required to perform under his

collective-bargaining agreement, andb. The statement/action is reasonably directed toward the enforcement

of a collectively bargained right

c. Employee not required to use the magic words in invoking an

explicit contract provision as long as the assertion was essentially areference to the provision

4. Protection w/o Union

i. Meyers objective standard of concerted activity

a. To be concerted, it has to be with or on the authority of otheremployees, not solely by and on behalf of the employee himself

b. Includes those circumstances where individual employees seek toinitiate or induce or prepare for group action as well as individual

employees bringing truly group complaints to management

i. So it can be a single conversation b/t 2 employees

ii. It has to at least look toward group action request to jointogether is protected (Mushroom Transp v. NLRB)

ii. A reasonable employee who has been rejected should know that it is unlikely

that he/she will achieve concerted activity and may be terminated anyway


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Labor Law Outline

iii. Has to be objectively deducted that activity is concerted by the employer

5. Motive

i. Unimportant for 8(a)(1)ii. Important for 8(a)(3) need to show intent/motive

iii. Unimportant for 8(a)(2)

6. Requirements for 8(a)(3) violation when an employee complains:

i. Actual concerted activity (not constructive)a. Actual concerted activity = 2 people in making the complaint or a

second person who authorizes the person to complain on their behalfii. Has to remain protected

iii. Employer has to know of the concerted activity

iv. Employer must be motivated to retaliate against the employee

7. 7s Mutual Aid or Protection Clause

i. The dispute underlying the activity must be connected to the terms and

conditions of work

a. Whatever is reasonably related to the employees jobs or their statusas employees in the plant may be the subject of plant

communication/concerted activity (Eastex)ii. 2(3) does not limit employee to employees to a particular employer

protects employees when they engage in concerted activity in support of

employees/employers other than their own (Eastex)

iii. Employees do not loose their protected status when they seek to improve the

terms/conditions of employment through channels outside the immediateemployee-employer relationship

a. Eastex employees could distribute literature about legislation in

TX that would incorporate right-to-work into the state constitutionb. The scope of the clause includes appeals through administrative,

judicial, and legislative forums to protect their interests as

employeesiv. SC recognized in Eastex that some employee communications may become

too attenuated that it breaks the connection to conditions of employment but

says that the NLRB should address it case by case

v. Its ok if the issue cuts across all labor situations, not the immediate laborrelations b/t the employees and employer

B. Loss of Protected Status1. Employees who engage in concerted activities may lose their 7 & 8

protections if they engage in unprotected activity

2. Test for loss of protected status: (Elk Lumber)

i. Whether the activity is so indefensible that it warrants the employer

discharging the employeesii. Either an unlawful objective or an improper means may render employee

conduct unprotected

3. Partial Strikes/Slowdowns

i. Elk Lumber employees slowdown was an improper means to achieve anotherwise lawful objective (to induce employer to increase the hourly rate of

pay)

ii. Slowdown = partial strike which is usually unprotected b/c the means are

improper


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Labor Law Outline

iii. Montgomery Ward when an employee agrees to work, agrees to work

faithfully, diligently, in good faith

a. Shouldnt engage in partial strike if going to strike then strike andnot get paid; dont get paid for a job well done when the job is not

well done (not good faith)

4. Indefensible

i. A presumption that a single concerted refusal to work is protected and thatpresumption is only rebutted when the stoppage is part of a plan or pattern of

intermittent action inconsistent with a genuine strike or genuine performance

by the employees of expected worka. If repeated, then indefensible

ii. The Acts protection is lost only if job-related concerted activity is unlawful,

violent, in breach of contract, or otherwise indefensible WashingtonAluminum

iii. Spontaneous strike w/o notice by unrepresented employees to protest unsafe

working conditions = protected Washington Aluminum

iv. One-time refusal to work overtime = protected (Polytech)

v. The reasonableness of employees to engage in concerted activities isirrelevant to the determination of whether a labor dispute exists or not

5. Disloyalty & Insubordination

i. Disloyalty and insubordination are unprotected as indefensible

ii. Disloyalty = attack on product/service, no connection b/t the labor dispute and

the attack, failure to disclose the nature of the dispute, location of the conduct,excessive destructive nature of the conduct, although off duty, employees are

not striking when they engage in the conduct

a. Jefferson Standard leafleting made no reference to a labor dispute,

only attacked the product of the broadcasting station; made noreference to wages/hours/terms of employment

b. Discharge for cause under 10(c) was valid b/c of the disloyalty6. Wildcat strikes

i. Unauthorized strikes there is a union and the employees take maters into

their own hands w/o going through the union

ii. Only minority strikes that support union objectives are protectediii. Unauthorized strikes undercut the majority union and the exclusivity concept

so they are unprotected (Shop Rite Foods)

7. Vandalism and Plant Seizures

i. Unprotected activity

8. Blue Flu

i. Police started this kind of strike everyone calls in sick

ii. Unprotected b/c police do not have the right to strikeiii. Work to rule police give too many parking tickets and people complain to

put pressure on the government or work strictly according to the rules

a. Unprotected

9. Secondary Boycotts

i. Violate 8(b)(4) so unprotected

10. No Strike Clauses & 8(d) Mastro Plastics

i. Employees lose protected status for:

a. Engaging in a strike during a term of a K with a no-strike clause and


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Labor Law Outline

arbitration clause UNLESS the strike is for a serious ULP

b. Engaging in a strike w/o giving 8(d)s 60 day notice and waiting

for the K to terminate UNLESS the strike is in response to employerULP

ii. 8(d) only applies to economic strikes, not strikes to protest ULP

a. If the strike was not to terminate or modify the K but in protest of

the ULP, the loss-of-status provision of 8(d) does not applyiii. Under a general no-strike clause, only strikes protesting non-serious

employer ULP lose protected status strikes protesting serious ULPs areimmune from unspecific no-strike clauses and are protected

11. Employee Violence and Misconduct

i. Strikes and picketing create tense situations

ii. Employees who leave the workplace that unduly threatens the health andsafety of others could lose protected status endangered anyone to the point

that harm was foreseeable

a. Harm both to people and damage to employers premises orequipment

iii. Clear Pine Mouldings objective standard in denying protection tomisconduct that reasonably tends to coerce or intimidate verbal threats,even if ineffective would not necessarily be protected

a. Did away with the requirement of a physical act for employee to

lose protected status

b. Test is if conduct/threat reasonably tends to coerce or intimidatec. Resembles tort of assault

iv. Thayer Doctrine: (upheld in Kholer) Provocation of employee

a. Where an employer who has committed an ULP dischargesemployees for unprotected acts of misconduct, the Board must

consider both the seriousness of the employers unlawful acts and

the seriousness of the misconduct in determining whetherreinstatement would effectuate policies of the Act

b. Misconduct that is provoked by the employers ULP is not grounds

for discharge employers should not be permitted to benefit from

own unlawful acts, even if employee misconduct justifies disciplinec. Only serious misconduct during a strike will exclude the striker

from the Acts protections

v. Prevailing standard is that employees engaged in protected activity cannot bedismissed UNLESS their improprieties are so flagrant, violent or extreme as

to render the individual unfit for further service


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Labor Law Outline

VI. Reprisals Against Protected Activity (Assignment 7)A. 8(a)(3) and 10(c)

1. 8(a)(3) protects against discrimination satisfied if antiunion sentiment or

animus was the motivating factor in the challenged employer action and its

based on union activity

2. 10(c) NLRB has no authority to reinstate employee who has beenterminated for cause

i. Cause = requires a system of progressive discipline that is adhered to b/c cant

look the other way and then fire the employee for it when employee engagesin union activity

ii. You can fire an employee for any reason as long as the NLRA is not violated

iii. You have to have a system of progressive discipline and adhere to it, not justlook away and then fire them for union activity under pretext of other

violations

a. Cant pick and choose what to allow and not allow (Edward Buddcase)

B. Mixed/Dual Motive Cases1. Where the employer has legitimate and illegitimate reasons for a discharge,

must prove that the actual motivation was the illegitimate reason (union or

concerted activity) to find a violation

2. Wright Line Test:

i. GC has the burden to establish the prima facie case that the protected activitywas the substantial/motivating factor behind the discharge

ii. Employer may rebut this prima facie case by proving by a preponderance of

the evidence that the discharge would have occurred even absent theemployees protected conduct

3. Transportation Mngt

i. The burden of proving that the employers hostility to the union never shiftsbut even if that burden is carried, the employer can defend by showing that

the decision would have been made anyway (affirms Wright Line)

ii. If employee commits misconduct that is so egregious that she loses protected

status, Wright Line still applies cannot pick and choose what violations toenforce and what not to enforce

C. Remedies1. NLRB has broad discretion in crafting remedies

2. Reinstatement

i. If employer replaced the employee, the reinstated employee has preferential

treatment

3. Back payi. Narrow situations where NLRB has granted back pay w/o reinstatement

4. Mitigation

i. Subtracting interim actual earnings and unearned amounts due to failure of

employee to pursue interim employment

ii. Incentive for employer to help employees find other work

iii. Employer has the burden to show employee did not mitigate damagesiv. Employee has legal obligation to mitigate damages but employer carries

evidentiary burden


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Labor Law Outline

5. Interest

i. % According to IRS scale computed on quarterly basis

6. Other remedies

i. Back benefits, retirement credits/contributions, healthcare, vacation benefits

7. Effectiveness of Remedies

i. Board orders must be remedial and not punitive

D. Mixed Motive and Salts1. Salt = plants by the union to get them to unionize from the inside

2. Refusal to hire a salt = violation of 8(a)(3)

i. Town & Country a worker can still be an employee under the Act even if

a union is paying the worker to organize the employers workforce

3. Wright Line Test adjusted GC must prove:

i. That the employer was hiring at the time of the alleged conductii. That the applicants had experience or training relevant to the positions for

hire and

iii. That antiunion animus contributed to the decision not to hire the applicants

4. Remedy:

i. Instatement and back pay are appropriate only if employer actually refuses tohire a union applicant (refusal to hire)

ii. Refusal to consider cease and desist and rightful place consideration

5. Get around this problem:

i. Include in K that employee cant moonlight only work for employer

E. Undocumented workers1. Back pay to an undocumented alien never authorized to work in the US is

foreclosed by federal immigration policy

2. No reinstatement b/c not here legally

3. NLRB has no remedial authority b/c the employees are not entitled to work

in the US

F. Motive1. Unnecessary in an 8(a)(1) violation

i. Violation if an employee is discharged for misconduct arising out of a

protected activity, despite the employers good faith

2. Necessary in an 8(a)(3) violation

i. Unlawful motive can be proven by inference if the consequences are

foreseeable wrongdoer is held to be liable for the foreseeable consequencesof his/her conduct

ii. Employers conduct carries its own indicia of unlawful intent

3. Burnup & Sims

i. Once an employer shows a good faith belief tht an employee engaged inmisconduct justifying discharge, the GC has the burden of showing that in

fact no misconduct occurred, or if it did that it was not sufficient to justify

discharge

4. Union caused discrimination

i. 8(b)(1)(a) and 8(b)(2) involves union requesting termination of a member

ii. Remedies are usually shared b/t the employer and the unioniii. Super seniority under a K for union stewards is presumptively valid

(Dairylea Coop) but become presumptively invalid when applied to benefits

other than layoff and recall situations and when applied to members other


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Labor Law Outline

than stewards

5. When 8a1 is violated, doesnt necessarily mean the others are too but if one

of the subdivisions is violated then an 8a1 violation naturally follows

G. Total Closing/Partial Closing/Runaway Shops1. Total Closings

i. 8a1 cannot be independently violated (Textile Workers)

a. On the face of the statute it looks like employer is violating 8a1BUT NLRB cant force an employer to stay open employer has

private interests in his companyii. 8a3 violation

a. No, a total closing cannot violate 8a3 b/c it does not discourage

employee membership b/c the employer/employee relationship is

destroyed no union membership if no employmentb. No statutory employees left when employer shuts down entirely

c. Total closing cannot violate 8a3 even if motivated by hostility to the

union

2. Partial Closings/Runaway Shops (Darlington Mnfg)

i. Partial closing = persons exercising control over a plant that is being closedfor anti-union reasons have an interest in another business that they wouldreap the benefit of the closing, act to close the plant with the purpose of

producing that result, and occupy a relationship to the other business which

makes it realistically foreseeable that its employees will fear that suchbusiness will also be closed if unionized

ii. May be illegal if they chill employees desire for unionization in other

locations

iii. May also violate 8a5iv. If a partial closing ends the employment relationship (the terminated

employees cannot be protected b/c no more relationship) BUT the employees

in other plants/locations need to be protected and their desire to unionizemight be chilled by employers actions

v. Not automatically illegal: Burden under 8a3 of showing anti-union animus is

not carried by showing a partial closing still has to show the motivationa. Employer has affirmative defense of an economic reason to close

the shop

vi. Remedies:

a. Terminated employees get back pay and moving expenses if its a

runaway shop and preferential hiring in other parts as 3rd party

beneficiaries to the vindication of remaining employees rights

3. Announcing a decision to close

i. Announcements are protected under 8c free speech but cannot make a threatto close

a. Announcement = prediction based on existing facts not in retaliation


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Labor Law Outline

VII. Weapons of Economic Conflict (Assignment 8)A. Generally (now that the union is chosen)

1. Statute assumes parties will collectively bargain and anticipates coercion

(self-help)

B. Strikes/Lockouts

1. Unemployed strikers are employees with respect to 7 rights even ifreplaced so recall cannot be based on union activity (Mackay Radio)

2. Unions hate Mackay Radio b/c basically allows strikers to be replaced,

diminishing the impact of the strike and putting jobs in jeopardy if it is ruled

an economic strike (employees not fully protected)

3. Replacements

i. Economic Strikesa. Economic strikers may bepermanently replaced (Mackay Radio)

and employer may grant permanent employment to those

replacements not a ULP

b. Economic strikers may be temporarily replaced

ii. ULP Strikesa. ULP strikers can only be temporarily replaced

4. Strikers Rights

i. 7 and 13 give employees the right to strike

ii. BUT employers can replace them (Mackay Radio)iii. Strikers REMAIN statutory employees and are protected from acts of

discrimination (like during recall)

iv. ULPs cannot be permanently replaced (if so then 8a1 and 8a3 violations)

v. Economic strikers can be permanently replaced (Mackay Radio)vi. Neither economic nor ULP strikers are entitled to back pay for any period

during which they withhold services voluntarily i.e. after a recall

vii. Strikers rights to back pay start FROM: the point that employees ask to comeback OR the strike is settled and denied reinstatement

viii. Before recall rights arise, union must make an unconditional request forreinstatement then employer must act promptly

ix. Crossovers are no different from permanent replacement workers (TWA v.

Flight Attendants)x. A wrongfully discharged striker is entitled to back pay from the date of the

discharge even w/o requesting reinstatement

xi. Economic strikers who unconditionally apply for reinstatement at a timewhen their positions are filled by permanent replacements 1) remain

employees; 2) are entitled to full reinstatement upon the departure of

replacements unless they have acquired regular and equivalent employment(Laidlaw Doctrine)

5. Dilemma

i. Status of the strike (ULP or economic) is not determined until a decision by

the board/court could be many years from the time of the strike

ii. Employee risk being replaced permanently if they are determined to be

economic strikers

iii. Employer risk if a ULP strike then have to reinstate employees and pay

back pay (violates 8a3 and 8a1 if they fail to hire back the ULP strikers) and


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Labor Law Outline

employer would be liable to the replacements it promised would be

permanent for K and tort action

6. Conversion

i. When the strike begins as an economic strike and then becomes a ULP strike

b/c employer committed a ULP after the commencement of the strike

ii. Strikers replaced before conversion have the rights of economic strikers and

those replaced after conversion have the rights of ULP strikers7. Lockouts (American Shipbuilding)

i. Offensive lockouts are LEGAL employers can lock out employeesfollowing an impasse in order to bring economic pressure on employees and

the union

ii. Do not carry own indicia of unlawful intent just part of the process

iii. Not inherently destructive b/c employer is not discouraging unionmembership, rejecting the union, or trying to destroy it (different from Erie

Resistor)

iv. Employer CAN lock out employees to win concessions AND hire temporaryreplacements (Inter-Collegiate Press comparatively slight actions)

a. Not inherently destructive because its for the purpose of bargainingwith the union

b. Hiring permanent employees violation b/c induces people to cross

the line to save their jobs

C. Employer Interference with Strike1. Tests to determine whether the employers solicitation of workers to return

to work is lawful AND not in violation of 8a3 for discrimination

2. Super-seniority as a way to entice employees out of the strike

i. Erie Resistor inherently destructive; wrongdoer should be held to foresee

the possible violative consequences of conduct

3. Test to whether it is 8a3 violation:

i. Inherently destructivea. GC carries burden of establishing the prima facie case for 8a3

employers conduct may have its own indicia of unlawful intent if it

is foreseeable (Radio Officers)

i. No need for subjective intent/smoking gunii. If it presents evidence of an inherently discriminatory

conduct, then satisfies motive

b. Burden shifts to employer to provide a legitimate business

justification for the actionsi. Employer can refuse to reinstate un-replaced strikers for a

good reason such as loss of customers but strikers remain

statutory employees until they find other employmentc. NLRB balances the destruction of rights against the employers legit

business reason

ii. Characteristics of Inherently Destructive conduct:a. Effects the tenure of all strikers

b. Hurts strikers but not non-strikers

c. Offers a benefit to abandon the strike* still good law

d. Cripples the strike efforte. Renders future bargaining difficult or impossible creating long-term


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Labor Law Outline

divisions among employees* still good law

iii. Ambiguous (American Shipbuilding)

a. Specific evidence of unlawful intent is necessary so ambiguous

situations do not violate 8a3iv. Comparatively Slight

a. Conduct has some negative affect and carries its own indicia of

unlawful intentb. Burden shifts to employer to provide an LBJ, and if it does then it

erases the inference of unlawful intent and no violation

c. Different from Inherently destructive b/c no balancing by NLRBd. Example: Carmi case not enough teachers to open school so cant

reward the teachers who break the strike by paying them to stay

home should pay hourly for the hours at school

D. Union Interference1. Employees have the right to refrain from a strike but to avoid being fined for

not observing as a member, have to resign from the union before you cross

2. Union can then charge you fair share fees as a non-member but cant fine

you3. Union violates 8(b)(1)(A) by enforcing a rule that prevented employees from

resigning prior to a strike or during a strike (Patternmakers v. NLRB)

E. Multi-Employer Bargaining Units1. All employers have the same union

2. When the union strikes one employer, the non-struck member employers can

lock out employees and hire temporary replacements

3. Still discourages union membership but is comparatively-slight (as opposed

to the lock out in American Shipbuilding that was ambiguous)


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VIII. Exclusive Representative Status (Assignment 9)A. 9 Election Process

1. Ways to achieve recognized status by a Union

i. Election process in section 9

ii. Voluntary recognition based on authorization cards after employer checks

iii. After polling or private electioniv. Remedial bargaining order

2. Types of Petitions

i. RC Request for Certification filed by unionii. RM Request by Management, filed by employer to test a unions initial or

continuing claim of majority status

iii. RD Request for Decertification filed by employees who no longer want theunion

iv. UC Unit clarification filed by either union or employer

a. Workplaces are not stagnant so when employee categories arecreated a question arises if the new ones are simply added to the unit

or get their own determination thru electionv. AC Amendment of certification (name change)

vi. UD De-authorization of union security filed by union employees

B. QCR1. The election process is not self-regulating NLRB cannot initiate one on its

own

2. There must be substantial showing of interest by employees that they wish

to be represented by a union

i. One authorization card starts the QCRii. Substantial showing = 30% of employees in the unit support the petition

and obtain the election

iii. The card has to say I want the union has to state on its face that the unionwill be exclusive representative (single purpose)

iv. Unions typically try to get 60-70% support before submitting the QCR

v. 50%+1 of voters casting ballots to win the election

vi. 50%+1 of employees in the unit for voluntary recognition or a remedialbargaining order

C. Defeating the QCR1. Balancing of statutory objectives of employee choice and stability in

commerce

2. Blocking Charges

i. Another union files an 8a2 charge against an employer for supporting the

incumbent or other union illegallyii. Blocks the election

3. Contract Bar

i. Second union comes in to rival the incumbent

ii. Employer naturally prefers the incumbent

iii. Bars other petitions of other unions

iv. Lasts for up to 3 yearsa. K for 1 year, lasts 1 year

b. K for 2 years, lasts 2 years


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c. K for 3 years, lasts 3 years

d. K for 4 years, lasts for 3 years

v. 30 day window b/t 90 and 60 days before expiration of the existing unions Kvi. Then window closes and there is a 60 day insulator period

vii. EXCEPTIONS:

a. Schism = union breaks off at the highest levels (division of the

union)b. Defunctness = union has abandoned the employees

c. Rapid expansion or contraction of the work force/unit = the K wassigned when the employer hadnt hired all of its employees so

subsequent employees shouldnt be deprived of decision rights

viii. Intervening Certification when another union wins an election and becomes

certified while incumbent unions K is still in effect (American Seating)a. Bargaining with new union is immediate

b. Old unions K merely defines the status quo from which to bargain

and must be maintained until new K is negotiated

c. Old unions K is void in the exclusive bargaining and check off

provisions but voidable at the execution of a new Kd. IF Union #2 merely files the petition during the OP, then the

employer still has obligation to bargain with the incumbent or riskviolating 8a5 (switch from Midwest Piping doctrine that allowed

employer to place everything on hold until the contest was decided

b/t the two unions) (RAC Del Caribe)

4. Election Bar

i. Chronologically comes first

a. Election bar certification bar K bar with an executed K

b. Does not prevent unit clarification

ii. Source 9(c)(3)

iii. Purpose no election in the unit or subdivision w/in 12 months of a validelection; protects employers/ees from non-stop petitions

iv. Duration 12 months from the date of a valid election (no matter who wins)v. Effect petitions raising a QCR filed in this period will be dismissed, unless

filed in the last 60 days of the period and the election will not be held until the

12 months expires NO EXCEPTIONSvi. Operates regardless of the outcome of the election

vii. Extensions - None

5. Certification Year

i. Source NLRB case lawii. Purpose gives a newly certified union and employer a year to bargain and

reach agreement undistracted by a possible QCR; stabilizes relationships;employer cant withdraw and another union cant com in

iii. Duration applies for 12 months after the certification of a union

iv. Effect Any petition filed during the year will be dismissed unless an

exception applies (same exceptions as K bar)v. Operates only when union wins election and is certified

vi. Extensions may be extended if the employer refuses or fails to bargain in

good faithvii. Presumptions:


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a. During Union has ir-rebuttable presumption of majority status so

an employer cannot withdraw recognition and must bargain or

violates 8a5 and 8a1 (usual exceptions of schism, defunctness, rapidfluctuation apply)

b. After Union has a rebuttable presumption of majority status

employer can show that union did not have majority and withdraw

recognitioni. Employer doubt that union does not have majority three

views:1. Employer has a good faith doubt by establishing

that the # of employees who crossed the picket line =

those who do not support union

2. Presume that people who crossed the picket linesupport the union in same proportion as those before

the strike began

3. CURRENT LAW: No presumption attached nosignificance to the act of crossing the picket line

must show by objective basis and preponderance ofevidence that union lost majority status (AllentownMack & Levitz Furniture)

a. Rumor is enough to = reasonable doubt

ii. Employer can always file an RM if it believes union has lost

majority status

6. Voluntary Recognition Bar

i. Employer can grant voluntary recognition to a union as long as the majority

status is there and not a coerced majority and not assisting one union over theother in violation of 8a2

ii. May recognize before the petition is filed

iii. Recognition bar lasts for a reasonable time not to exceed 12 monthsiv. BEFORE voluntary recognition, employer must give employees 45 days

notice and opportunity to change (Dana Corp)

a. Neither the election bar nor the K bar will apply unless the

employees are giving notice and 45 days to file a dcert petition + 45days passes w/o filing of a petition

7. Voting Rights

i. Temporarily replaced strikers = voteii. Permanently replaced economic strikers = vote until 12 months after the

commencement of the strike (no voting rights if they have taken employment

elsewhere or discharged for good cause)

iii. Temporary replacements = no voting rightsiv. Permanent replacements = vote

D. Appropriate Unit1. 9 gives NLRB authority to conduct elections for appropriate units

i. Unit can be any unit and doesnt have to be the most appropriate, just

appropriate

2. Factors considered:

i. Extent and type of union organization and the history of collective bargaining

of the employer


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ii. Nature of the work done

iii. Method of payment

iv. Supervised by same supervisorsv. Location(s)

vi. Configuration of labor relations management

vii. Desires of the employees themselves

3. 9(b)i. Professional employees cannot be placed in a unit with non-professionals

unless expressly consented toii. Craft units craft severance has been an issue; NLRB cannot decide that any

craft unit is inappropriate on ground that a different unit has been established

by a prior Board determination

iii. Guards prohibition; guards cannot be in same unit as non-guards b/c ofpotential conflict of interest

4. Globe elections = members are permitted to choose whether they want to be

represented and decide by which union it wants to be represented by

5. Hospital units = only 8 appropriate units in hospitals with 3 exceptions:

i. Cases that present extraordinary circumstances (too few employees)cases in which nonconforming units already exist

ii. Cases in which labor organizations seek to combine two or more of the 8

units

6. Single or Multi-Location Units

i. Single location is presumptively appropriatea. Presumption can be overcome by looking at the centralized control

of operations/employee interchange b/t facilities/common wages,

benefits, terms of employmentii. Accretion (without an election) or self-determination election when new

employees are sought to be added to existing unit

7. Multi-employer unitsi. Employers and unions must consent to the initial formation of the multi-

employer unit (after majority representative selected)

ii. Rules for unilateral withdrawal (Retail Associates)

a. Must be timely before negotiation for a successor agreement starts

(if it has started, then it is bilateral and need permission from union

and other employers)

b. Must be unequivocal relatively permanent

c. Impasse with union exception to allow unilateral withdrawal

d. Exceptions: company is in dire economic straights and whipsawstrike

E. Authorization Cards1. Purposes:

i. Majority claim of a union seeking voluntary recognition

ii. Toward the 30% necessary for a showing of interest to obtain an election

iii. For the majority to get a bargaining order in light of an extreme ULP

2. Must be single purpose for the 30% showing of interest purpose, recognition,

and for a remedial bargaining order

3. 10% is needed for showing of interest for a second union on the ballot

4. 48 Hour Rule showing of interest must be filed within 48 hours of filing the


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petition; if not then it will be dismissed

5. Cards are considered stale after 1 year of filing the petition

6. Authorization cards are used to determine majority status

i. NLRB can refuse to count a card if it can be proven that the person who

handed out the cards stated that the sole purpose of the card was to obtain an

election (and nothing more) and on its face it states that the union will be the

exclusive representative single purpose card (Cumberland Shoe doctrine)a. Essentially cancelling out the clear facial meaning of the card by the

statements counted

ii. Single purpose cards are presumptively valid

F. Judicial Review

1. Very little judicial review in representation cases

2. Appellate court review allowed under 9(d) as an indirect method

i. Union files an 8a5 petitionii. Employer can raise the representation question as a defense

3. Unions do not have similar way to review

4. Unions can, however, accuse the NLRB of acting outside its section 9

authority, in contravention to statutory mandate/prohibition or deprivesemployees of a specific right - by, for example, combining professionals and

non-professionals in the same unit District Cts review this accusation


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IX. Remedial Bargaining Orders (Assignment 10)A. Generally

1. Traditional = order to bargain in good faith (to remedy violation of 8a5 and

8a1)

2. Remedial = to remedy hallmark violations

i. Hallmark violations = serious conduct in violation of 8a1 and 8a3ii. Example of hallmark violations =

a. Highly coercive

b. Resistant to correction by conventional remediesc. Could be expected to have long lasting effects in deterring

employees from exercising their 7 rights

iii. Discharge of union leaders or substantial number of union supporters,promises of benefits, threats to close

iv. No need for 8a5 violation

v. Usually based on majority based on cards and substitutes for election processwhere the employer has made the process impossible

3. An employer can respond to unions demand for recognition w/o committinga ULP:

i. Check the cardsii. Refuse to look at the cards

iii. Tell union to file an RC petition

iv. Could file an RM petitionv. Tell the union agent to leave

vi. Refuse to meet at all

B. Categories of ULPs1. Category 1

i. Exceptional cases outrageous and pervasive ULPs

ii. Remedy = issue a remedial bargaining order w/o card majority or demand forrecognition (Gissel dicta)

iii. Non-majority order is controversial some members think it prevents

employers from committing such bad ULPs, others think it takes employee

choice awayiv. No 8a5 violation necessary

2. Category 2

i. Less extraordinary cases marked by les pervasive ULPs that still have atendency to undermine union majority

ii. Remedy = remedial bargaining order where union has a majority and conduct

reduced that majority (need majority status)

iii. No need for 8a5 violationiv. No need for a reque

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