labor law fall 2010 fitzgibbons

LABOR LAW – FITZGIBBONS, FALL 2010 – MC MORAN

PART ONE – THE EVOLUTION of LABOR RELATIONS LAWS

Overall Policy of the NLRA: The NLRA is primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. (International Harvester)

I. Jurisdiction, Organization, and Procedure of the NRLBA. Early Regulation by Law – Statutory Overview

1. Judicial Control of Union Activity Prior to the Wagner Acta. 1800s – cts considered concerted ee activities (strikes, picketing, etc) to be common law

criminal conspiracies.i. Commonwealth v. Hunt (Mass, 1842) marked a shift from criminal to civil liability as

the tool for controlling union activity.ii. The court adopted an “ends/means test”: the finding of a criminal conspiracy req’d

proof of either an illegal purpose or the use of illegal means.b. Sherman Antitrust Act

i. Provided jx for fed cts (also found in diversity).ii. This Acts prohibition of “restraint of trade” was applied to most union tactics

involving organizing and/or economic pressure.iii. Danbury Hatters (Loewe v. Lawlor, U.S. 1908): ct found Sherman Act violation when

union boycotted retail stores that sold hats produced by a struck manufacturer.c. Clayton Act of 1914

i. Passed by Congress in attempts of limiting union exposure to antitrust liability.ii. Limited by Duplex Printing Press Co v. Deering (U.S. 1921) which gave a narrow

reading to the Clayton Act provisions protecting labor activity.d. Injunctions: Used broadly during these times. Often issued ex parte and cast in broad terms.e. Norris-LaGuardia Act of 1932 (union neutral)

i. specifically w/draws the pwr of the fed cts to issue temporary OR permanent injnxns in nonviolent labor disputes.

ii. declared fed cts were not to formulate rules to govern labor policy (the govt was to be neutral – this was expected to permit union growth).

2. Wagner Act of 1935 (NLRA) (union friendly)a. Marked the beginning of affirmative support of unionization and collective bargaining by the

federal govt b. Establishes the NLRB to administer and interpret ULPs and representation provisions of the

Act.3. Taft-Hartley Act (eer friendly)

a. Added many eer-friendly amendments to the NLRA.b. Makes CBAs enforceable in fed DCc. § 303 provides a civil dams remedy to private parties injured by secondary boycotts.d. Though eer friendly in design, this act results in a more neutral posture of the fed govt, while

continuing the right of ees to be free from eer coercion.4. Landrum-Griffin Act of 1959 (Labor-Mgmt Reporting and Disclosure Act (LMRDA))

a. Bill of Rights for Union Members.b. Req’s certain financial disclosures by unions.c. Gives procedures for union officer elexns.

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d. Provides civil and crim remedies for financial abuses by union officers

B. NLRB Jurisdiction1. Dollar amount standards to have NLRA apply:

a. Retail concerns doing $500,000 or more gross volume of businessb. Non-retail firms with an annual outflow or inflow, direct or indirect, in excess of $50,000c. Entities that derive $50,000 or more annually from the interstate portion of their operationsd. Utilities which have at least $250,000 gross annual volumee. Transit systems with an annual gross of $250,000f. Newspapers with $200,000 gross and communications systems (radio, tv) with $100,000

gross g. All firms having a substantial impact on national defenseh. Hospitals with gross annual revenue of at least $250,000i. Law firms with gross annual revenue of at least $250,000

2. Excluded Employers under the NLRAa. Public employers – federal, state, county, and municipal governments

3. Excluded Employees under the NLRAa. Supervisors: NRLA § 2(11) defines supervisors (having authority, in the interest of the

employer, to hire, transfer, suspend, … employees … [that] requires the use of independent judgment). NLRA § 14(a) allows supervisors to unionize, but the employer is free from any obligations to deal with such supervisors as employees for the purpose of collective bargaining. Supervisors may be fired legally. But §§ 8(a)(1) and (2) prohibit management interference in union activity, so thus supervisors may be union members in name only. But, exercising judgment over the work of other less skilled workers does not make someone a supervisor and exempt (nurses)

b. Agricultural laborers: construed narrowly. Duties must form an integral part of ordinary farming operations.

c. Independent contractors d. Managerial employees: Although there is no express exclusion in the NLRA for

“managerial employees,” such as company vice-presidents, they have been excluded by the “common law” of the Act.

e. Confidential employee: NLRA does not apply to "confidential employees" who have advance knowledge of matters affecting labor relations within the company

C. NLRB Organization and Procedure1. Members of the Board: The Board has 5 members. Appointed by the President for 5-year terms

with the consent of the Senatea. Two main functions of the NLRB:

i. Investigating Unfair labor practicesii. Representation Elections

2. General Counsel - represents the Board, appointed by the President to 4-year terms. Has the authority to investigate charges of unfair labor practices, to decide whether complaints should be issued on the basis of these charges and to direct the prosecution of such complaints. The General Counsel is appointed to a four-year term with the consent of the Senate.

a. Makes determinations of whether complaints will be issuedb. Keeps the prosecutorial and adjudicative (hearing) aspects of the agency separate

3. Regional Offices: 30 regional offices under a Regional Director and a Regional Attorneya. Regional offices report to the General Counsel who controls the administration

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4. Administrative Law Judge: Field Examiners and Field Attorneys investigate and prosecute before ALJs

a. The ALJs are independent and hear the complaints filed by the General Counsel. They issue written opinions

5. Appealing an ALJ Decision: a. Appeal to Board: The party can appeal the ALJ to the Board in DC. Issues are usually heard

in the form of written briefs. The board makes the ultimate decisionb. Appeal to Court of Appeals:

i. Who can appeal:1. Party can appeal: NLRA § 10(f) allows any person aggrieved by a final order

of the Board to obtain a review of the order in the court of appeals. 2. Board can appeal: NLRA § 10(e) allows the Board to petition the court of

appeals which will have the power to grant temporary relief or a restraining order and to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board.

ii. Overturning Board decision: The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive. This standard provides a high degree of judgment to the Board if the Board does not act unreasonably or arbitrarily. This is not as much discretion as “clearly erroneous” though.

NLRB Jurisdiction: Who is included and excluded?1. Employers –

a) INCLUDES: NLRA covers enterprises “affecting commerce” as defined by Section 2(6) and Section 2(7) of the National Labor Relations Act (“NLRA”):

Retail: $500K gross volume Non-retail: $50K outflow/inflow (direct or indirect) $50,000 from Interstate Commerce Utilities, transit systems, hospitals, law firms: $250K Newspapers: $200K Communications (radio/tv): $100K National Defense: All firms with a substantial impact on national defense Propriety and Nonprofit Hospitals (gross annual revenue of at least $250K) Law Firms and Legal Assistance Programs – At least $250K

b) EXCLUDES: Section 2(2) employers which is US Government, Government-owned corporations, Federal Reserve Banks, states and their

political subdiv, Railroad/airlines subject to the Railway Labor Act [~20 million people; 15% workforce]

Secondary Catholic Schools – Teachers cannot form unions (separation of church and state problems) (NLRB v. Catholic Bishop of Chicago)

Federal employee unions barred

2. Employees:a) EXCLUDES: Section 2(3) employees which are

Agricultural laborers: construed narrowly. Duties must form an integral part of ordinary farming operations. This does not include slaughtering/packing/processing/refining of the products as stated in Bayside Enterprises Inc v. NLRB.

Independent Contractors (Taft Hartley Act)

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Managerial employees: no express exclusion, excluded by the “common law” of the Act. (Bell Aerospace)

Confidential employee: have advance knowledge of matters affecting labor relations within the company or those who handle labor management relations/decisions (Fort Motor Co. v. NLRB)

Retirees: Interests of retirees cannot be a mandatory bargaining subject, no duty to bargain (Allied Chemical v. PPG)

Graduate Assistants educational, not economic relationship Managers: Supervisor: As defined in Section 2(11). The statute is disjunctive which means you need to show

only one element (e.g., responsibly direct) Registered nurses since they assign work to nurses aides (Health Care and Retirement Corp) Full-Time Faculty (Yeshiva) Oakland says (a) any of the 12 listed tasks found on the statutes, and (b) requires exercise of independent judgment (not routine or clerical), and (c) is of an interest to the employer.

Ad Hoc Instruction is NOT equal to assign Responsibility to Direct : Employee is held accountable for the acts of others and has authority to direct or take corrective action Independent Judgment : Ability to exercise discretion which includes a wide degree of latitude and must be able to effective recommendation action free from control of others Part-Time Supervisions: 10-15% of time as supervisor is sufficient to fit within this exclusion category (look at whether employer expects loyalty from employee) Discharge of a supervisor will violate the Act only if it “directly interferes” with an employee’s exercise of Section 7 rights including (a) testify before Board or processing grievance, (b) Refusing to commit an unfair labor practice (“ULP”), or (c) Pretext for discharging pro-union (“U”) crew (Parker Robb Chevy) Participation in a union by a supervisor is likely to be construed as interference by the employer in union activities which would violate Sections 8(a)(1), (2).

b) INCLUDES: Professional Employees as defined by Section 2(12) Medical Residents

§2(6) “COMMERCE”: trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.

§2(7) “AFFECTING COMMERCE”: in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.

§2(2) “EMPLOYER”: includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.

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§2(3) “EMPLOYEE”: includes any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individualhaving the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.

§2(11) “SUPERVISOR”: an individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

§2(12) PROFESSIONAL EMPLOYEE(a) any employee engaged in work

(i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general

PART TWO – ESTABLISHMENT of the COLLECTIVE BARGAINING RELATIONSHIP

I. Protection of the Right to Self-OrganizationA. General

1. Employees’ Right to Self-Organize: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. §7 of the National Labor Relations Act (NLRA).

a. 8(a)(1) of the NLRA: Employers may not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in § 7.

A . INTERFERENCE, RESTRAINT, and COERCION : Section 8(a) states what involves unfair labor practices. Most of these rules prohibit the exercise of Section 7 rights which violates Section 8(a) of the NLRA.

§8(a) Unfair labor practices by employer: (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7

1. RESTRICTIONS on SOLICITATION and COERCION: [Section 8(a) rights]B. Solicitations and Distribution of Union Information

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General Rule, 8(a)(1): It is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in §7.”

1. Employers Preventing EMPLOYEES from Soliciting Informationa) General Rule: Employers cannot prohibit employees from talking about or soliciting union information on the employer’s premises during the employee’s own time (before work, after work, during lunch breaks) (Republic Aviation 14).

i. Must determine if it is actual work time or not (i.e., lunch break or when the person should be working)

ii. “Working hours” solicitation ban - - Presume invalidiii. “Working Time” solicitation ban - - Can be okay if it exempts breaks

b) Uniform No-Solicitation Policy: i. Employer must permit U employees to post information on bulletin boards even if other groups cannot because employees could be discriminated against if the information is not available and has a chilling effect on the exercise of Section 7 Rights (Republic Aviation).ii. A “No solicitation”, a “no loitering”, and a “no unlawful strikes, work stoppages, and slowdowns” can lead an employee to conclude that these rules prohibit the exercise of Section 7 rights which violates Section 8(a) of the NLRA. [Martin Luther Memorial Home Inc] To determine if rule chills employees Section 7 rights, under Martin Luther Memorial Home Inc ask

(1) Whether employees would reasonable construe the language to prohibit S. 7 rights, or

(2) Or it motivation to create the rule was in response to union activity, OR(3) If rule applied discriminately against unions when using Section 7 rights

iii. EXCEPTION: Special circumstances (e.g., affects patient care) (Beth Israel). iv. NOTE: Unions can not waive the right to solicit on company property [Magnavox]

c) Breaks: Employees are free to talk & solicit on their breaks even if paid (Republic Aviation).d) Work Time: Employers can prevent solicitation and union talk during actual working time because it could distract other workers (Republic Aviation). Under the NLRA, there is a balance of the right of solicitation while the company has the right to maintain discipline. e) Bans on Profane/Abusive Language/Harassment/Physical Mental Abuse: Is okay because

maintain order in the workplace and avoid employer liability and the rules are clear to understand. [Martin Luther Memorial Home Inc]f) If Supervisors are supporting a union, that union support by supervisors are generally found

that there was an unfair labor practice because there is a concern for coercion since the supervisor is generally someone with disciplinary or assignment powers, or having control for the election [Harbor Healthcare]. [Companies have the right to express their opinion so long as there is no threat of reprisal that would violate Section 7 Rights.]g) Email systems: Companies can restrict union messages on company e-mail systems and computers unless work in a group is done primarily by e-mail across distances because the work group uses e-mail as the only way to make communications.

Issues:a. Whether the Respondent violated Section 8(a)(1) by maintaining a policy prohibiting the

use of email for all “non-job-related solicitations”

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i. Majority holds that the Respondent may lawfully bar employees’ nonwork-related use of its email system, unless the Respondent acts in a manner that discriminates against Section 7 activity.

b. Whether the Respondent violated Section 8(a)(1) by discriminatorily enforcing that policy against union-related emails while allowing some personal emails, and Section 8(a)(3) and (1) by disciplining an employee for sending union-related emails

i. Majority concluded Respondent’s enforcement of the CSP with respect to Prozanski’s second and third emails did not violate Section 8(a)(1) because there was no evidence that the Respondent permitted employees to use email to solicit other employees to support any group or organization.

c. Whether the Respondent violated Section 8(a)(5) and (1) by insisting on allegedly illegal bargaining proposal that would prohibit the use of email for “union business”

i. A party violates its duty to bargain in good faith by insisting on an unlawful proposal. A party does not necessarily violate the Act simply by proposing or bargaining about an unlawful subject. Rather, what the Act prohibits is “the insistence, as a condition precedent of entering into a collective bargaining agreement,” that the other party agree to an unlawful provision. The Majority cites the Union’s statements that it was prepared “to bargain a proposal” and that it “neither accepted nor rejected” the Respondent’s proposal as evidence that the evidence was insufficient to support a finding that the Respondent violated Section 8(a)(5). Guard Publishing Co.

h) Hospitals: The Board has tolerated hospital bans on such solicitation in working areas devoted strictly to patient care; but such solicitation must be permitted in other areas such as lounges and cafeterias open to visitors and even to patients “absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas.” Beth Israel Hospital.i) Supervisory pro-union Solicitation: the Board reversed prior precedent to hold the solicitation of union authorization cards by a statutory supervisor to be “inherently coercive absent mitigating circumstances.” Harborside Healthcare, Inc.

1. When asking whether the supervisor’s prounion conduct upsets the requisite laboratory conditions for a fair election, the Board looks to two factors.

a. Whether the supervisor’s prounion conduct reasonably tended to coerce or interfere with the EEs exercise of free choice in the election.

i. This includes: (a) consideration of the nature and degree of supervisory authority possessed by those who engage in the prounion conduct; and (b) an examination of the nature, extent, and context of the conduct in question.b. Whether the conduct interfered with freedom of choice to the extent that it

materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct.

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j) The Board held that, since the workplace was the natural and typically the only place where all employees could gather to discuss work matters including unionization, the employer’s ban was unlawful, with respect to both solicitation against the incumbent union and solicitation in support of that union. Magnavox Co.k) Rules in the work place: The Board has held that an employer violates Section 8(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.

1. Whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7.

a. If it does, the rule is unlawfulb. If not, the violation is dependent upon a showing of one of the following:

i. Employees would reasonably construe the language to prohibit section 7 activity

ii. The rule was promulgated in response to union activityiii. The rule has been applied to restrict the exercise of Section 7 rights.

l) The SC agrees with the judge that employees would not reasonably be discouraged from engaging in Section 7 activity for fear of contravening the Respondent’s rules against “verbal abuse,” “abusive or profane language,” or “harassment.” Martin Luther Memorial Home.

2. Employers Preventing NON-EMPLOYEES from Soliciting Information **a) 1A offers no protections (Central Hardware, Hudgens)

b) Employer prevents non-employees on property: Employer cannot be compelled to allow distribution of union literature by non-employee organizers on his property UNLESS

i. U organizers do not have reasonable access to employees outside an employer’s property [Babcock - Section 7 Rights belong to the employee, not the U, but Board may prohibit employer from excluding U if employee rights depend on ability to learn of the U; Lechmere: Applies only where employees are isolated and beyond U reach]. The Lechmere court establishes an exception which says (the No Reasonable Access Exception):

(1) Applies When: Only where the location of business and the living quarters of the employees places employees beyond reach of reasonable U efforts to communicate with them, not merely where non-trespasser access to employees may be cumbersome or less than ideal. (Babcock, Lechmere)(2) Burden of Proof: U must show lack of reasonable non-trespasser means of communicating to the employees is a heavy one. (Lechmere)

a. Examples: Logging camps, mining camps, resort hotels(3) Balancing Test IF Exception Applies: Only if the “no reasonable access” exception applies is it necessary to take the accommodation inquiry to a second level: Balance employees §7 Rights and employers’ property rights with as little destruction of one as is consistent with the maintenance of the other. (4) Rationale: There is some importance for being able to communicate with people outside your own enclave and to hear about the value of unions outside the workplace. This is a value to communication for union organizers that understand the process, who can run, whether there are better unions to join, etc. What is important to the court is meaningful ACCESS to employees, and not SUCCESS in winning them over on this critical issue.

(i) Rejects Jean Country Test [which states (a) harm to Section 7 rights in denying access to the property, (b) balance on impairment of property rights, (c) availability of reasonable alternative means, and (c) availability of reasonable alternative means] because of a heavy burden to prove the employee is isolated from the ordinary flow of information.

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c) Employer allows solicitation except from U is discriminatory: Allowing charities access to the parking lot and NOT the union is discriminatory.

3. Quest for Equal Accessa. Denial of Equal Time is LAWFUL except where the valid no-solicitation rules restrict the communication between employees (the burden will be upon General Counsel to demonstrate that the union is seriously incapacitated from communicating wit the employees by other means). It is not fair to condition employer’s right to speak to employees on the union’s ability to do so. HOWEVER, captive audience speeches on company time are prohibited within a 24-hour period prior to the election. [Livingston Shirt Co; Bonwit Teller]

b. Email Systems: Companies can restrict union messages on company e-mail systems unless work in a group is done primarily by e-mail across distances or there are multiple officers thereby the work group uses e-mail as the only way to make communications [Register Guard). The worry here is restricting Section 7 rights. It would be an unfair labor practice if the company promoted anti-union sentiment over email without allowing equal access to the union or if the company promoted one union over another rival union.

i. NOTE: The Register Guard court says that companies can distinguish between restrictions for charitable and uncharitable organizations which will not restrict Section 7 rights.

c. Employer Must Provide Employee List Before an Election: Within 7 days after regional directors (“RD”) has approved a consent-election agreement or directed an election, the employer must file election eligibility list, containing names and address of all eligible voters. Regional directors then gives the list to all parties in the case [Excelsior Underwear 18]. The Wyman Gorman Court also held that NLRB has the authority to adopt broad application rules in its unfair labor practice procedures.

i. Failure to Comply = Set Aside Election: Failure to comply is grounds for setting aside the election whenever proper objections are filed. ii. NOTE: The way union elections occur is when there is a question of representation. Authorization can be done by getting union cards from potential members. The Board tries to get the parties to agree to a consent election whereby all parties agree to the details of an election that is overseen by the Board. If the parties can not agree on a consent election, there will be a hearing and a regional director can order an election based on hearing and investigates whether there should be an election based on election petitions. Thus, during the election campaign, the union wants the names and address to communicate the employees (Excelsior). iii. NOTE: Elections are the preferred method for finding a duty to bargain over cards because there are special protections found in Section 9(c) [if a union has been certified, there can be no rivalry union or de-certification process for a year].

2. ELECTION PROPOGANDA [Section 8(c) rights]

1. Threats of Reprisal: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice unless such expression contains 1) threat of reprisal or force or 2) promise of benefit. §8(c) of the Labor Act; Gissel Packaging Co.

a. Restrictions on what Employers can Say: There must be lab conditions sufficient to hold and election and the Board will set aside election results even if no unfair labor practice [General Shoe].

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i. If a supervisor gives a statement regarding adverse consequences during an election campaign, the results will be set aside only if it is proved that there was widespread dissemination of that speech [Spring Industries].ii. If a company president makes speeches to employees in the plant (i.e., if they get a union, he’ll litigate and will fire workers), then this language will not be protected Section 8(c) speech and will thus set aside an election However, any predictions must be based on general, objective facts on unionization as well as predicted economic consequences that are outside the companies control [Daltex]. Why this limitation? Employees are economically dependent on the employer and will hear the speech in a different light and there is no other counter speech to the employer. iii. There is a distinction between warning regarding consequences of bargaining (lawful) and comparable warning of adverse consequences allowing simply upon the signing of an authorization card or upon a union victory (unlawful) [Wildoats]. You are limited to stating on general, objective facts, consequences that exist outside your control, and your specific views on unions(-ization) [Daltex].

b. Exceptions to Section 8(c): A broad no solicitation rule (which incapacitates U’s ability to communicate) and company speeches within 24 hours of an election do not fall under Section 8(c) exceptions

§8(c) Expression of views without threat of reprisal or force or promise of benefitThe expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

c. Interpreting Employer Communications:i. Take into account:

(1) Economic dependence on employees on employers(2) Natural tendency of employees to pick up intended implications of employer that

might be dismissed by a disinterested earExample: Employer predicts plant will close if union representation. Based on

circumstances and given employee-employer relationship, this is a threat of reprisal. Gissel.

ii. Employer Predicting Effect on Company: An employer is free to predict what he reasonably believes will be the likely economic consequences of unionization that are outside his control, but not threats of economic reprisal to be taken solely in his own volition. Gissel Packaging Co.

i. Example: Employer predicts that union will strike. Court held that employer had no support for its assumption that the union, which had not yet presented any of its demands, would have to strike. Gissel. – Eer Can predict economic consequences of unionization that are outside his control but NOT what he will do on his own volition.

(1). Employer predicts plant will close if U wins; threat of reprisal [Gissel 19]. He my make a prediction as to the precise effects he believes unionization will have of his company, but the prediction must be carefully phrased on the basis of objective fact to convey his belief as to demonstrably provable consequences beyond his control or to convey management decision already arrived at to close the plant in case of unionization. Otherwise, any statement is beyond protection of the first amendment(2) Must have some factual basis or objective proof (e.g., claim that U will strike and consequences that flow from that must have some support for the claim.(3) Can give legal position and predictions [Daltex].

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2. Factual Misrepresentations:a. NLRB does not look into truth or falsity of parties’ campaign statement unless extremely deceptive campaign practices occur [look at procedure, not substance].

b. Do not set aside election based on misleading campaign statements UNLESS:i. Forged Documentsii. Fraud

iii. Makes voters unable to recognize propaganda for what it is [Midland; Shopping Kart]. The rationale is that employees are mature enough to recognize propaganda for what it is. Thus, elections are set aside not on the basis of the substance of the representation but the deceptive manner in which it is made. The NLRB will not review literature for its truth.Policy: Employees are mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it. Further, the Shopping Kart rule lends itself to definite results which are both predictable and speedy because objections alleging merely false or inaccurate statements can be summarily rejected at the first stage of Board proceedings.

3. Inflammatory Appeals: No purpose except to inflame the (racial) feelings of votes (not allowed)a. Some statements with racial overtones are appropriate – U’s position on segregation or union financial contributions to civil rights groupsb. Burden is on the employer to establish racial message was temperate, germane, and factually correct.c. If unclear burden has been met, then it is resolved against the employer [Sewell].The reasoning is the Board wants to give employees a reasoned, untrammeled choice and to conduct elections in an atmosphere conducive to sober and informed choices. d. Also look at pervasiveness of comments and if made in response to employee question.

a. Example: Employer election propaganda showed photos of union employees at a different manufacturing plant dancing with black women and blacks dancing with white women. Headlines referred to “race mixing.” Board held the only purpose was to inflame the racial feelings of voters. So Board held election invalid.

4. Must be WIDESPREAD dissemination of threat [Crown Bolt].

3. OTHER FORMS of INTERFERENCE, RESTRAINT, or COERCION u [Section 8(a)(1) rights]Employer Questionnaires About Employee’s Interest in Union:

1. Polling – Two Approaches to determine if union has majority [Struksnes is the standard approach]

a. Struksnes (More Firm/Strict): Absent unusual circumstances, the polling of employees by an employer will violate Section 8(a)(1) of the act [we want to protect employees from fear of reprisal by employers] unless the following safeguards are observed to protect Section 7 rights:

i. The purpose of the poll is to determine the truth of a union’s claim of majority ii. This purpose is communicated and explained to the employeesiii. Assurances against reprisal are given

iv. Employers are polled by secret ballot, (if challenged courts might fight this element in particular excessively restrictive ANDv. The employer has not engaged in unfair labor practices or otherwise created a coercive atmosphereHOWEVER, a poll taken while a petition for a Board election is pending does not serve a legitimate purpose and violates Section 8(a)(1).

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b. Lorben 22 (More Flexible); Comprehensive approach to determine whether a particular questionnaire interferes with, restrains, and coerces employees. Employer interrogation of employees as to their desire to be represented by a particular union is not coercive or intimidating on its face. Factors to be included are:

i. Background: Is there a history of employer hostility or discriminationii. Nature of the Information Sought should be examined: Did the interrogator appear to

be seeking information on which to base taking action against individual employees?iii. Identity of the Questioner: How high was he in the company hierarchy?iv. Place & Method of Interrogation: Was employee called from work to the boss’s office?

Was there an atmosphere of “unnatural formality”?v. Explanation of Purpose: Did the employer explain his reasons for the questionnaire?vi. Assurance against Retaliation: Did the employer assure the employees that there would

be no retaliation?

c. Alternatives for a company if they are faced with a demand from an union for an election ?i. Can file an election petition itselfii. Wait for union to file itiii. Ask the union to show the company the cards, rather than go to a polliv. If employer still decides to use a poll, then follow either approach listed above

2. Benefits Promised by Employer Prior to Election: Violation of Section 8(a)(1) for an employer to grant benefits during a U election campaign IF the purpose is to induce employers to reject the U and reasonably calculated to have that effect [Exchange Parts]. The rationale is that the company may promise something but may not actually go through with the promise.

a. Delaying Wage Increases: If an employer delays a wage increase prior to an election, it may be found to have violated Section 8(a)(1) [Marshall Durbin Poultry]. b. May be OK if employer acted solely to right a past wrong [e.g., employer should have given raises but didn’t. Then realizes it during U election campaign.]c. EXAMPLE: 14 days prior to the election, employer promises better holiday and overtime pay. Board found this was reasonably calculated to impinge upon employee’s freedom of choice and thus an unfair labor practice [Exchange Parts 24].

3. Union Misconduct affecting Self-Organization: Union organizations that agree to waive union fees if the employee signs a recognition slip violates Section 8(b)(1) and Section 8(b)(4) because it allows the union to buy endorsements and paints a false picture of support during the election [Savair].

a. Unions cannot coerce or threaten employees to join union or else it violates Section 8(c)Union Misconduct, 8(b): 8(b): It is an unfair labor practice for a labor organization

a. (1) to restrain or coerce employees in the exercise of the rights guaranteed in section 7; b. (2) to discriminate against or attempt to cause an employer to discriminate against an

employee; c. (3) to refuse to bargain collectively with an employer;d. (4) to force an employer or employee to engage in a secondary boycott;e. (5) to require employees to pay an excessive union fee;f. (6) to cause or attempt to cause an employer to pay for services which are not performed or

not to be performed;g. (7) to engage in certain primary strikes and picketing by unions seeking immediate

recognition and bargaining rights.

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B. COMPANY DOMINATION or ASSISTANCE: [Section 8(a)(2) rights]

(DOMINATION) Section 8(a)(2): To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it:

Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;

1. 1. Company Domination (Electromation 25) or Assistance / Support? Section 8(a)(2) forbids employers from dominating, assisting, or interfering with the formation or administration of any labor organization.

a. Steps:

a. Is it a Labor Organization? Before a finding of unlawful domination can be made under Section 8(a)(2) a finding of “labor organization” status under Section 2(5) is required.

§2(5) “LABOR ORGANIZATION”: any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor dispute, wage, rates of pay, hours of employ’t, or conditions of work.TEST:

i. Employees participateii. Organization exists, at least in part, for the purpose of dealing with employers, AND

(1) “Dealing With” = Bilateral Mechanism(2) Focus on patter/practice of give and take between employer/employee in

each case [Peninsula General Hospital]iii. Dealings concern conditions of work (i.e., labor disputes, wages, hours, rates of pay, hours

of employment, grievances, etc)(1) Conditions of Work: This is where the crucial analysis is. The issue of whether it is a labor organization will turn on whether it deals with “conditions of work.”(2) NOT Conditions of Work:

(a) Delegation of Powers: Non-Economic Purpose (i.e., increase factory efficiency; or “quality of work life program”) means it is not a labor organization. But could be a working condition depending on facts:

(i) Safety Committees(ii) Management Teams(iii) Committees w/ adjudicative power over grievances

iv. No Formal Structure Necessary: Any group may meet the statutory definition of “labor organization: even if it lacks a formal structure, has no elected officials, constitution, or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues.

b. If so, is there DOMINATION or ASSISTANCE?i. Domination: Under Section 8(a)(2), the formation or administration of a labor organization is dominated by an employer if:

(1) It is the creation of management [more factors on next page](2) Its structure and function are essentially determined by management, AND

(a) Including time/place of meetings, who sit on committee(3) Its continued existence depends on the fiat of management (Electromation)(4) NOT DOMINATION [Keeler Brass, concurring opinion]

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(a) Committee not formed in response to union actions(b) Employees voluntarily participate(c) Only employees vote(d) No anti-U animus

ii. Assistance / Support: Section 8(a)(2) also prohibits employer from contributing financial or other support to a labor organization. So look to see if employer allowed employees to conduct the meetings during paid and/or on company premises.

iii. Rationale:(1) By having a company-picked company union representative, the employees are not getting the strongest possible representative on their behalf. (2) Do not have true opportunity for collective bargaining when company is on both side of the bargaining table. (3) The exclusive bargaining representatives are supposed to bring the strength of that bargaining unit to the ER. The idea behind the prohibition of company unions is that company unions undercuts the independent representative that is looking out for the employees’ best interest. It doesn’t matter whether the company meant to dominate; any hint of domination creates an unfair labor practice. c. U negotiator/officers with rule on supervising/hiring committees [Keeler Brass]

i. Does supervisory work give appearance of company representation and how much does employer foster that appearance?

ii. Look At:(1) How long U member in supervisory position and how long will they be in

it?(2) Nature of supervisory position(3) Balance the circumstances

2. Where U Asks for Recognition (And NO Incumbent or Rival Union): If U asks employer for recognition as the sole representative of employees, employer must take reasonable steps to verify that the U, in fact, represents the majority not the minority. If no reasonable steps take, and employer recognizes a non-majority U, violation of Section 8(a)(2) because employer has illegally assisted a labor organization. Also infringes on section 7 rights [look at Bernhard Altman 26]. (Intl. Ladies’ Garment Workers)

a. Example: U shows employer signed U cards and say they have majority. Employer does not verify that the U cards are legit. In fact, U had only a minority. This violates 8(a)(2). Employer must cross-check employer records with U listings or authorization cards to make sure the U, in fact, has the majority [Bernhard Altman].

i. Authorization Cards as means of securing rights/recognition(1) Cards can be used to get beyond and thru Section 9(a) (fits w/in “designated and selected” language)(2) Cumberland Shoe Doctrine: depends on what cards say and what employee is told when signing (dual purpose or single purpose?)(3) To have full benefits, U must be elected and certified [see Section 9(c)]

3. Where RIVAL Union Competes for Non-Unionized Employees: In initial organizing situations involving rival unions, an employer does not violate 8(a)(2) of the NLRA by recognizing one usion over the other if that union represents an uncoerced, unassisted majority and no valid petition for an election has been filed with the NLRB. Where 2 or more unions are competing to become representative, employer may recognize on the Unions are representative only if:

a. It is, in fact, supported by an uncoerced majority of employees, AND

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i. Colorable claim by rival not sufficient to prevent recognition at this pointii. A colorable claim is about 30% support

b. No election petitions have been filed:i. Election Petition Filed: If election petition has been filed (by one of the competing Unions), employer may not recognize any U and must wait for the results of the election. If employer fails to do this, violation of Section 8(a)(2) b/c it assisted a labor organization [Bruckner Nursing Home 28].

Brukner overrules modifications to the Midwest Piping doctrine. The doctrine held that in a rival union situation, an employer cannot render aid to one of two or more unions competing for representative status through a grant of recognition in advance of a Board conducted election and that employers presented with rival claims from competing unions in the form of representation has been resolved through an NLRB conduction election. This case reflected a view that is a compromise between the NLRBs traditional view and the view of the courts.

4. Rival U Competing against Incumbent U: Presumption of majority statutes for incumbent U if rival files valid petition and incumbent shows majority status under problems for discussion (Pg 228) is

a. Board favors stabilityb. Employer should negotiate w/ incumbent & try to reach a CBA [Midwest Piping]

i. If incumbent wins election: CBA validii. If rival wins election: CBA voided

C. DISCRIMINATION [Section 8(a)(3) but this typically goes hand-in-hand w/ Section 8(a)(1)]. There are three different kinds of tests: (1) Mueller, (2) Wright Line, (3) In-Part

Seciont 8(a)(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:

Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later,

(i) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement:

Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization

(A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

1. Employee Discharge and Suspension: Employer may discharge employee for any reason or no reason at all unless employer acted with a discriminatory motive to discourage U support which is a violation of Section 8(a)(3) and Section 8(a)(1). Discrimination consists of treating like cases

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different under the Mueller Brass opinion. The fact that an employed has a pro-union stance is not alone sufficient to destroy the just cause for his dischange based upon his breaking of a company rule.

a. Burden: Board has the burden of proving by a preponderance of evidence that employer acted with a discriminatory purpose [Wright Line; Transportation Management Corp]

i. Discriminatory purpose: Substantial or motivating factor of employer’s action is employee’s exercise of Section 7 rights for discipline or discharge.ii. if rebutted, Eer burden of production (affirmative defense) = same decision absent protected conduct

b. Factors (to determine discriminatory purpose):i. Employees work history, including previous misconduct, and employer’s response

to it: Did employer tolerate this conduct form this employee before and did not fire him until he became involved in union activities (there must be some sort of union activites? [Budd].

ii. The employer’s response to other employees’ misconduct in similar situations: Did this employee get punished in a way that others didn’t? [Adkins]

iii. Prior employer has shown anti-U animus [Mueller Brass]iv. An economic / business reason by the employer for the discharge [Adkins]

(1) U Employee’s Cost Too Much: Employer had history of friendly relationship with U and employed U members. Employer then fired two U employees because they wanted more money. Employer said he couldn’t afford them and hired non-U workers for cheaper on a job-by-job basis. Court held there was no discrimination [Adkins].v. Seriousness of employee’s conduct: Was conduct so outrageous that he would have

been fired anyway, such that even if no discrimination, would have been fired anyway/ [Mueller Brass]

2. Wright Line Test [occurs before Mueller case]a. Employees protected conduct was a substantial/motivating factor in dischargeb. Employers have an affirmative defense to this motivation – would have engaged in this conduct regardless of the motivating conduct.c. 8(a)(3) NEW RULE (Wrightline) - Where there is a possibility of a dual motive (legit business reason/anti-union motive), if general counsel proves anti-union motive, employer can raise affirmative defense saying the same outcome would occur despite anti-union animus. Where 2 employees were fired because employer couldnt afford them under new union rates, no anti-union animus, only business decision.

3. In-Part Test: The only thing to look for if the employer’s motivation in discharging an employee is done in part of engaging in protected NLRA activities.

4. Judicial Review: It is for the Courts to REVIEW board decisions to make sure they are fair and there is substantial evidence to support the Board’s conclusions and, as to competing inferences, courts should defer to the board [Universal Camera]. But the Mueller court does look for anti-union animus inferences.

5. Runaway Shops / Plant Closings: This occurs when a company closes, and then relocates, a shop in the face of union organization. There must be evidence that the employer’s acts encouraged or discouraged union membership.

a. This is not a purely economic motive [which is Adkins above] which then violated Section 8(a)(3) since it is motivated by a anti-union animus. If the employer closes his plant and reopens it elsewhere because of the union, such an action will generally be found to violate 8(a)(3) where the

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relocation is motivated by employer hostility to the union. This is not allowed when the employer only seeks to deprive his employees of their section seven rights.b. If there are situation where there is a dual motive (e.g., shop was old and crappy, and then union comes in), then you apply the WRIGHT-LINE analysis (page before)

i. Entire Closure of Business: Where an emergency closes his entire business, even if the liquidation is motivated by vindictiveness to the U, action is not an unfair labor practice [Darlington]. Thus, the decision to close an operation will never be a Section 8(a)(1) violation. Why? Because the plant is not being unjustly enriched through the closure.

ii. Partial Closure (Closure of One Plant and Company has Multiple):(1) Violates Section 8(a)(3) if:

(a) Motivated by a purpose to chill unionization in any of the remaining plants of the single employer AND

(b) Employer should reasonably foreseen that closing would have that effect and discourage employees in other plants from participating in union activities [Darlington](2) Company with Financial Interest in Plant: ULP has been made out if persons

exercising control over a plant that is being closed for anti-union reasons:(a) Have an interest in another business of sufficient substantiality to give

promise of their reaping a benefit from the discouragement of unionization in that business.

(b) Act to close their plant with the purpose of producing such a result, and (c) And occupy a relationship to the other business which makes it realistically

foreseeable that its employees will fear that such business will also be closed down if they persist in organizational activities [Darlington]

(d) Just have to show reasonable (not actual) chilling effect

D. REMEDIES for UNFAIR LABOR PRACTICES1. Remedies for Unfair Labor Practices (Supervisors and Discrimination in Hiring included [Section 10(c)]: The Board has the power under Section 10(c) to reinstate a wrongfully discharge employee, with or without backpay, which will effectuate the policies of the Act.

a. The mere fact that the discharged employee has obtained equivalent employment does not preclude the Board from undoing the discrimination and requiring reinstatement.b. Appeal: A reviewing court may set aside a Board decision when it cannot conscientiously find that the evidence supporting a decision is substantial, when viewed in light that the record in its entirety.

i. High deference to the Board in fashioning the remedy [ABF Freight]c. Supervisors: Discharge of a supervisor will violate the Act only if it “directly interferes” with an employee’s exercise of Section 7 rights.

i. Testifying before the Board or processing grievanceii. Refusing to commit ULP, oriii. Pretext for discharging pro-U crew [Parker Robb Chevy]

d. Discrimination in Hiring / Firing:i. Employer may not discriminate against U-job applicants solely based on their union activity. Discrimination in hiring is the twin to discriminating in firing.ii. Remedy: Cease and desist, reinstatement is the conventional remedy with backpay, look at 10(c) [Phelps Dodge] Even though the “employees” were not actually working for D, they were found to be employees within the meaning of the term in 2(3) of the Act.

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(1) Can be required to hire him too. To rectify the situation under Phelps, there must be some opportunity to hire him since the act was intended to protect individual and group rights

(2) The Court understands that this is an administrative burden but they must to what is socially desirable and carry out public policy.

e. Criticisms of Remedies (Weiler’s Article):i. Back pay remedy useful to individual employee but not effective to deter employers

(1) Too small to matter to the employer and NLRB lacks authority to impose fines

(2) Not a strong deterrent to employerii. Reinstatement

(1) Serves the purposes of the individual by restoring them to work(2) But employee reluctant to return because prejudice/retaliation against

him(3) Could be effective if it was done immediately or before the election was held – Sends a message that the NLRA works and discrimination against unions will not be tolerated

(4) However, getting a Board decision currently takes two yearsiii. Gissel Bargaining Order:

(1) When the behavior during union attempts to organize and the conduct is so egregious that it is impossible for there to be a free and fair election, the board will impose a Gissel Bargaining Order. Even though the union has not won the election, the Board will require the company to bargain with the union because the Board is convinced there cannot be a free and fair election.

(2) This order protects groups rights and serves as a deterrentiv. Other remedies listed on Page 270

v. Board has the availability of seeking a Section 10(j) injunction in situations where undue delay will seriously prevent employees from getting a fair election

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II. SELECTION of the Rep. for the PURPOSES of COLLECTIVE Bargaining

A. GROUNDS for NOT PROCEEDING to an INVESTIGATION and CERTIFICATION1. Who Can File: Typically a petition for investigation and certification is filed by a U (U has burden) but an employer may also file a petition (employer has option). Employees can also file for a petition to decertify the U (i.e., get rid of the U)

2. Three Questions After Petition is Filed: a. Whether to proceed with the investigationb. What is the appropriate unit for the purposes of collective bargaining, c. How, and to the extent which, fed’l courts review NLRB decisions in representation

hearings

3. Benefits of U Being Elected and Certified: A certified elected U has the benefit of numerous special privileges which are not accorded to Us recognized voluntarily or under a bargaining order, like

a. Protection against the filing of new election petitions by rival Us or employees seeking decertification for 12 months under Section 9(c)(3)b. Protection for a reasonable period, usually one year, against any disruption of the bargaining relationship because of claims that the U no longer represents the majority [Brooks]c. Protection against recognitional picketing by rival Us [Section 8(b)(4)(C)] Andd. Freedom from the restrictions placed in work assignment disputes by Section 8(b)(4)(D), and on recognitional and organizational picketing by Section 8(b)(7)

4. Policy: Filing for a petition for an election is the heavily favored option because the Act favors secret elections and they are less time-consuming.

5. Grounds for Board Declining to Proceed BEFORE a CBA is made: The Board will not proceed with an investigation and certification of a U if there is:

a. Failure of the petitioning U to show a substantial interest by the employees – 30% must support it.

i. Submit authorization cards to Regional Office – 30% of employees in BUii. If a second union intervenes to block an election, only 10% support needediii. Incumbent union needs one authorization card

b. Commission of unremedied Unfair labor practicesi. Union can do one of two things:(1) File a “blocking charge” that says that an election will not occur until the unfair practice is resolved, OR(2) Go ahead with the election. If they lose, filed charges that the election was unfair

(a) And seek to have election re-runned, OR(b) Get a Gissel Bargaining Order

c. Prior certification less than one year ago since the last previous election UNLESSi. Certification Bar Principle - Section 9(c)(3)

(1) Certification of bargaining rep is bar to another investigation within one year(2) Give union time to make its changes

ii. Unusual Circumstances: Unusual circumstances have been found in at least 4 situations(1) The certified U dissolved or become defunct

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(2) As a result of a schism, substantially all members and officers of certified U transferred their affiliation to a new or local union

(3) The size of the bargaining unit fluctuated rapidly within a short time

iii. Subsistence of a valid CBA(1) Normal Termination: Ordinarily, Ks that constitute a bar to an election will cease

to do so upon their termination(a) Exceptions:

(i) CBA longer than three years: A K for a fixed term will bar a petition filed by a rival U for only the first three years of its life, even if the specified term is for a longer period and even though Ks of a greater duration are commonly used in the industry or area in question.(ii) Bargaining rep “defunct”: If the bargaining representative has become

“defunct,” the K will not act as a bar to election.(1) Unable/unwilling to represent employees in bargaining unit (failure

to hold meetings, elect officers, or process grievances) [Container Corp](iii) Schism: An existing labor K will not bar a representation election if the

bargaining representative is involved in a “schism” (i.e., the local U has disaffiliated from the parent U.)

(1) Break between local and national union(2) Local union disaffiliates with parent because conflict over polic

(iv) Changed circumstances: A K may cease to operate as a bar when changes in circumstances have occurred due to expansion or changes in the emer’s operation. Example: 30% of the existing staff were working for the emer when the K in question was executed or if less than 50% of the present job classifications existed on the date of execution, the K will have no barring effect.

(1) Merger/change in direction of operation(2) Few employees are the same(3) New type of job(4) All due to changes in employer’s operations

d. AFTER an Agreement is made: i. Contract Bar Rule

(1) Must be in writing(2) By all contracting parties(3) Fixed Duration (will bar petition filed by rival union for first 3 years)

(a)Allows employees to get union out if unhappy(4). Must embody substantial terms/conditions of employment; Not merely

wages aloneii. Fails to Bar Elections when: (is this for both the contract and certification

bar?)(4) Dana Corp

(a) Contract bar rule doesn’t apply for at least 45 days when company has voluntarily recognized the union and entered into CBA; If no other petitions are filed within 45 days, then contract bar rule applies. If there is a petition, go to de-certification

iii. Filing of Petition / Decertification (rival union and employer)(1) Must be done between 60-90 days before CBA ends

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(2) Small amount of time to allow employees choice but not hurt incumbent in making new CBA(3) If company and incumbent union were to reach a new agreement before 90 day mark, it is set aside until after the 30-day window. If new union elected in, old CBA is thrown out. (4) If a group of employees within a union want to create their own union, the CBA does not serve as a bar for the company to bargain with this unit [American Seating Corp]

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B. APPROPRIATE BARGAINING UNIT1. Significancea. Section 9(a) – Exclusive bargaining representative is one who was chosen by a majority of employees in the unit to be the only representative for all the employees in that unit.

i. He is obligated to bargain for all employees in the unitii. Board does not need to determine the unit for the group – employer and employees can

agree informally on a groupiii. Board only allowed to select “an” appropriate bargaining unit.

b. Section 9(b) – Limited Guidance for what constitutes an appropriate bargaining uniti. Professional employees must be separate unions unless professionals choose

otherwiseii. Why? There is a concern for conflict units or interests.

Section 9(b) Representatives and Elections: Determination of bargaining unit by Board: The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not

(1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employee in proposed craft unit vote against separate representation, or (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

2. Criteria for Unit Determinationsa. Community of Interests: In making its decision, the Board seeks an employee group which is united by a “community of interest,” which is determined by the following factors:

i. Similarity of pay and method of computing payii. Similarity of benefits, hours worked, and kind of work performediii. Similarity of qualifications, skills, and trainingiv. Frequency of contact or interchange among the employeesv. Geographic proximityvi. Continuity or integration of production processvii. Common supervision and determination of labor-relations policyviii. History of collective bargaining;xi. Desires of the affected employees;x. E xtent of U organization within the firm [Section 9(c)(5) says that this cannot be

the sole reason for establishing a given unit].

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b. Dispute about Unit: Whenever there is a dispute as to the proper bargaining unit, the Board has the authority, under Section 9(b), to make a final determination as to an appropriate bargaining unit within the range of appropriate units [American Hospital Association].

i. Employer and U can reach agreement about bargaining unit (“BU”)(1) Employer typically prefer larger BUs(2) Union and Board typically prefer smaller BUs

ii. High deference to Board decision

c. Hospitals:i. General Rule: Board adopted 8 appropriate BUs @ acute care hospital (AHA)ii. Three exceptions

(1) Extraordinary circumstances (case-by-case)(a) E.g., 15 employees at the location, no other plant within one mile of it, and a

supervisor is present at location for a regular and substantial period makes it inappropriate BU(2) Existing non-conforming BUs(3) If U wants to combine BUs

3. Single-Location versus Multi-Location Unita. Presumption: A single store or plant is presumptively an appropriate unit for bargaining. However, this presumption is not conclusive and may be overcome where factors are present which could counter the appropriateness of a single store or plant unit [Chicago Health & Tennis Clubs; Saxon Paint]. When a corporation has centralized management and collective bargaining history of unionization on a scale including all of that corporations individual units, use of a single unit as the sole bargaining agent is inappropriate. The NLRB has the responsibility for determining which cases are appropriate for single unit bargaining orders, but if their determination is unreasonable, capricious or unsupported by the evidence, the courts can enforce, set aside or modify the order.b. Factors:

i. Geographic Proximity of the stores / plant in relation to each otherii. History of collective bargaining or unionizationiii. Extent of employee interchange between various stores / plantsiv. Functional Integration of operation AND

(1) Example: All of the stores are open on the same day at the same times. They sell the same merchandise at the same price and the physical layout of each store is the same. Special sales and promotions are held at the same time in each store.v. Centralization of management, particularly in regard to central control of personnel and

labor relations.(1) Hiring, training, and payroll is done exclusively through corporate office = Single

Unit Bargaining Unit (“SUBU”) [Saxon Paint](2) Manager at each has control and discretion = SUBU [CHTC]

4. Multiemployer and Coordinated Bargaining (40% of CBAs):a. Rationale: Saves time, bargaining at a higher level, better protected in the face of a strike, if a group of smaller employers bargains against a strong union then there is an opportunity for employers to gain strength, and opportunity to union to get better package/wages because employers are less worried about competition but public will pay higher prices for services.

b. General:

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i. A number of employers who bargain together to bargain as a group with a single union that represents employees at all of the companies.

ii. The Board cannot direct election for an initial U representative in a multi-Employer Unit

iii. Only be established consensually, after a representative has been designated.

c. Factors: In determining whether such a unit is appropriate, the Board looks for:i. Consent of the U having representative status because multiemployer is a consensus unitii. An employer’s participation for substantial period of time in joint bargaining negotiations,iii. An employer consistent adoption of the agreements resulting from such negotiations

d. Revoking Participation in Multi-Employer Bargaining: Once negotiations begin, withdrawal from a multiemployer bargaining unit upsets the relationships and assumptions upon which the parties have been relying. An employer may revoke its participation in multi-employer bargaining but only in the following situations:

i. Before negotiations for a new K have begun, clear & adequate notice must be given [Retail Assoc]ii. Once negotiations for a new K have commenced, withdrawal is permitted only if there is “mutual consent” or “unusual circumstances” exist. [Still have to abide by old CBA].

(1) “Unusual Circumstances”: Unusual circumstances will be found where an employer is subject to extreme financial pressures (bankrupt) or where a BU has become substantially fragmented.

(a) Impasse: An impasse in bargaining in a multi-employer unit by itself (i.e., U strikes or employers lock out employees) is not an unusual circumstances justifying unilateral withdrawal by the union OR by an employer [Bonanno; Hi-Way] A bargaining impasse is not a sufficiently unusual circumstance to justify an employer’s unilateral withdrawal from a multiemployer bargaining unit, and a failure to execute the resulting agreement is an unfair labor practice

(i) No time limit on impasse [Thus must withdraw prior to impasse](2) Strong presumption in favor of Multi-Employer Bargaining Unit (“MEBU”) because of stability [Resort Nursing]

e. Joint Employer and Leased Employees: This occurs when temps are supplied to assist the company or there is more than one employer who is responsible for controlling the work of employees.

i. The unwilling employer cannot be forced into a CBA because he hasn’t signed on and it would require the consent of the employers.

5. Consolidated / Coordinated / Coalition Bargaining: One employer and multiple BUsa. Rule: A mixed-U negotiating committee is not per se improper and absent a showing of “substantial evidence of ulterior motive or bad faith” on the part of the U, an employer commits an unfair labor practice unless it bargains with a mixed-U group [General Electric].

i. Section 7 guarantees employers and employees the right to choose whomever they wish to represent them in formal labor negotiations; neither side can control the others selection.

(1) Narrow Exception: Ill will, conflict of interest such that good faith (“GF”) bargaining not possible, must show clear and present danger to bargaining process [ill will and usually a personal conflict of interest which would make good faith bargaining impossible](2) If U wants to have other U reps sit in on collective bargaining, it’s OK so long as U reps don’t negotiation for their members at the same time.

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[Double check with Fitzgibbons](3) The policy reason for such an inclusion stem not only from the union’s interest in using experts to bargain, but also from the union’s desire to increase communications between all of them, and thereby, to prevent the employer from playing one off against the other.

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C. REVIEW of REPRESENTATION PROCEEDINGS1. Rule: Courts will not review an NLRB decision regarding the appropriate bargaining unit unless

a. An aggrieved party (i.e., the employer) has committed an ULP, ORb. The issue of review involves a matter of statutory construction where the NLRB has

overstepped its powers and is not merely a factual issue [Kyne].Section 9(d) limits review of Board representation orders,(certifications and decertification only if the rulings are incidental to prohibiting an unfair labor practice.Section 10 provides that a petition for review may be filed boly by a person aggrieved by an order.

2. Board order in certification proceedings under Section 9 is not a final order and not subject to judicial review UNLESS it may be drawn in question by a petition for enforcement or review of order made under Section 10(c) of Act restraining an ULP.

3. Otherwise put, if state ambiguous or silent: Board can fill in gap, court gives deferencea. Board may enact new rules through rulemaking procedures or adjudication by Board (Wyman-Gordon)

i. Agencies granted broad authority by Congressii. Reliance by emer not RLV unless substantial adverse consequences and those concerned

had a full opportunity to be heard [Bell Aerospace]b. Where statute explicitly mandates: Board and courts boundc. Substantial E Test: Court will not overrule Board if substantial evidence on record as a whole [Universal Camera, ABF Freight]d. Can get review of interpretation of law (i.e., a pure statutory question, but not on factual determinations [Greyhound]

III. SECURING BARGAINING RIGHTS thru UNFAIR LABOR PRACTICES

[§8(a)(4), (5)]Section 8(a)(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act;Section 8(a)(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).

1. Refusal to bargain within “Certification Year”: Upon certification by Board as exclusive bargaining agent for a unit for employees, a U enjoys an irrebuttable presumption of majority support for one year (even if majority doesn’t want U). During that time, am employer’s refusal to bargain with the U is per se an ULP under Section 8(a)(4) and Section 8(a)(5) [Brooks].

1.5. Bargain After Losing Support. An employer must bargain for a reasonable period with a union which has been selected by his employees in an NLRB conduction election and certified by the NLRB, even if that union loses the support of the employees shortly after it has been certified. Five supporting reasons

a. As in the political and business atmospheres, a binding election promotes a sense of responsibility in the electorate and needed a coherence in administration

b. Revocation of authority should occur by a procedure no less solemn than that of the initial designation. A petition or public meeting is no substitute for the privacy and independence of the voting booth

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c. A union should be given ample time, free from pressure, to produce hot-house results to carry out its mandate

d. An employer would be discouraged from serious bargaining if it knew that because of its own dilly-dallies or otherwise, the rank and file may, at the last moment repudiate their agent,

e. Raiding and strife among competition unions will be minimized if elections are not subject to the hazard of informal and short term recall.

The employees proper recourse is to submit their own grievance to the board. Certification must be recognized a “good faith period” for at least one year. Once that year has expired, either the employer or the employees may petition the Board for a new election.

2. Challenging U after One Year: After the certification year runs, or after a K expires, the presumption is that the U continues to represent those employees. But this presumption can be rebutted in two circumstances [Bartender’s Assn]

a. Where an employer in fact proved that the U no longer has majority support, then no bargaini. If employer unlawfully withdraws recognition in favor of rival, employer can be required to bargain with incumbent BU for a reasonable period (6 months – 1 year) [Lee Lumber]

b. Where an employer has a good faith doubt founded on a sufficient objective basis that the U does not have majority support, employer may file a decertification petition with the Board (but the employer cannot simply refuse to bargain) [Brooks; Allentown] [After the 1 year period is up]

i. To conduct poll, employer must have good faith reasonable doubt (i.e., defined as uncertainty or reasonable certainty that U is not majority supported [Allentown had uncertainty but not disbelief]. The “reasonable certainty” is a lower standard than “doubt = disbelief” that was advocated by the Board. Why? Employers should be able to conduct a poll to check prior to withdrawing. The issue should be evaluated as to what a reasonable jury would find as to the union’s majority.

c. After Allentown, the Board in Levitz makes three important distinctions i. The Board ignores requirement of “uncertainty” to do pollingii. Request a formal, Board-supervised election to determine if there is support requires

“uncertainty” since Boards prefer election to decide representation status (rather than unilateral withdrawal of recognition) when employers are presented with conflicting evidence of majority support.

Will there ever be this type of election before an actual election if it’s the first time that a group of employees is trying to become a union?

iii. An employer’s withdrawal of recognition of an incumbent union requires “good faith” that is based on objective evidence that the union has lost majority support [done thru polling?]

ii. NO Presumption that Replacement Workers do NOT want U: In evaluating whether an employer has a reasonable basis for doubting a U’s majority support after one year, there is no presumption that striker replacements oppose the U [Curtis Matheson Scientific].See if Fitzgibbons agrees with this rule statement

3. Refusal to Bargain with Non-Elected Majority U:Where an employer refuses to bargain with a non-elected U that has majority of employee support, as shown through U authorization cards (must be told that they are solely for obtaining an election) that are neither misrepresentative nor coercive, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the unions majority, decline the request to bargain and insist upon an election either by requesting the union to petition or petitioning to the union himself under Section 9(c)(1)(B)

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a. While Committing Unfair labor practices: the Board will issue a bargaining order if, while refusing to bargain, the employer has committed unfair labor practices that tend to undermine the U’s majority and make a fair election an unlikely possibility [Gissel].

i. Policy: The bargaining order is temporary, designed to insure only a reasonable period of good-faith bargaining and to dissipate the lingering effects of the employer’s Unfair labor practices.

ii. Three Categories:(1) Serious ULP: If it interferes with the election, it doesn’t matter if employer acts in Good Faith or Bad Faith Order bargaining, even without election. Will almost auto create BO:

(a) Includes threats to close the plan(b) Unlawful discharge of union friendlies(c) Promise significant benefits to employees(d) Threats to discharge employees(e) Repeated discriminatory acts in violation of Section 8(a)(3)

(2) Less Extraordinary Cases: Less pervasive practices which still have tendency to undermine majority strength and impede election process

(a) U must show majority support at one point(b) Look @ extrinsic E of Unfair labor practices past effects on election conditions(c) If traditional remedies would not erase past effect and bargaining order (“BO”) would protect employee expression order bargaining

(3) Minor, less intrusive ULP w/ minimal effect on Election: No BO(4) When there has been an elapse of time, turnover in employees or management representatives, Courts are likely to focus on whether a bargaining order is appropriate at the current time period as opposed to when the unfair labor practice occurred. Courts are going to refrain from issue the orders if there has been turnover and a long lapse of time. (4) General Stencils: The Board must create clear guidelines as to when to use BO

iii. Fair Election:(1) Determine at time Board makes decision (NOT at moment of ULP)(2) Employer has burden to show fair election

iv. Employer can Petition for Election: The employer must recognize the non-elected majority U for bargaining purposes and may not commit Unfair labor practices; In the meantime, employer may file an election petition.

b. No Majority Ever Shown: The Board lacks the authority to issue a bargaining order where a U has never shown majority support, even if there are UNFAIR LABOR PRACTICES [Gourmet Foods] Why? There is a concern for how much the Board should inject itself in-between the parties b/c Board is an impartial agency

c. Where There are NO Unfair labor practices: [Linden Lumber]i. An employer can refuse a U’s request for recognition even in the face of substantial evidence of majority employee support (such as cards or a strike by a majority of the employees) IF employer has not committed any Unfair labor practices. An employer is not required to accept majority status other than from the results of a NLRB election.ii. It is the U’s duty to petition for an election then.iii. Where a U is refused recognition, the U has the burden of filing an election petition, unless the employer is engaging in Unfair labor practices, warranting a Gissel remedy

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iv. An employer can refuse to reject authorization cards for many reasons. Analysis 45

3. Voluntary Recognition and Recognition Bar Rule (ask about the bar rule)a. Generally understood to be:

i. Unsigned, not explicit, but implicit because listening to grievancesii. Whether negotiating back and forthiii. Whether there is clear and unequivocal evidence of bargaining

b. Voluntary Recognitioni. Allows for rebuttable presumption for a reasonable period of timeii. Board will not impose a recognition bar until the employees receive notice of voluntary

recognition bar and then have 45 days for a valid election.(1) General counsel will provide notice for employees to inform them that there has

been voluntary recognition and have 45 days from time of notice posted to reconsider(2) If no decertification petition or election petition is filed, the recognition bar comes

into effect after 45 days

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PART THREE – NEGOTIATION OF THE COLLETIVE BARGAINING AGREEMENT

I. EXCLUSIVE REPRESENTATION and MAJORITY RULE1. Applicable Rules

a. Section 8(a)(5): Unfair for employer to refuse to bargain with the unionb. Section 8(d): Requires the parties to bargain in good faith as to wages, hours, other terms and conditions of employmentc. Section 9(a): Specifies that representatives selected for collective bargaining shall be the exclusive representative of all employees in unit

Section §9(a) Representatives and Elections: Exclusive representatives; employees' adjustment of grievances directly with employer Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment:

Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

2. Private Contracts Trumped: The act and collective bargaining agreements trump private employee contracts [JI Case]. No matter what the circumstances, they may not be used to defeat or delay any procedures or rights under the NLRB Act or delay bargaining of limit or condition terms of the collective agreement.

a. Why? The act was made to strengthen industrial peace and the CB process works only if both parties are of relatively equal strength. Thus, the hope is that there will be better terms in the agreement based on the power of the union representing the group by using that strength and bargaining with the employer. Advantages which may be given to some over others infer with the organizing of a union and the choice of representation. The greater good of the wholeb. Policy – Majority Rule: If the majority of a unit chooses U representation, the NLRA permits them to bargain with their employer to make U membership a condition of employment, thereby imposing their choice upon the minority. In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority. As a result, the complete satisfaction of all who are represented is hardly to be expected [Emporium Capwell]. Section 7 rights, however, are nonwaivable and can still go to court if it’s a discrimination claim [Alexander Gardner]. The problem with the employees in Emporium Capwell is that they were seeking to bargain. The problem is to allow individuals to bargain undercuts the power of the union to speak for the entire bargaining group.

3. Minority of Employees Can NOT Bargain on Their Own: Where a minority of U employees seeks to confront an employer outside the grievance process dictated by the CBA, the employees are unprotected under the Act because the principle of “exclusive representation” embodied in Section 9

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[Emporium Capwell]. Thus, an employer should not bargain with a minority of U employees who are acting outside of the CBA and not in concerted action with the U majority.

i. Section 9(a) of the NLRA provides that a labor organization which is designated as the bargaining representative by a majority of the employees in the appropriate barging unit shall serve as the exclusive representative for all the unit’s employeesii. Wildcat Activity

a. If the employee takes actions that the union is promoting, then it is protected activityb. If the employees is promoting a different position from the union, then it is not protected

activity since it seeks to bargain against and outside the union

4. Duty of Fair Representation: Us have a duty of fair representation whereby the U is required to represent non-U or minority U members of the craft without hostile discrimination, fairly, impartially, and in good faith. Whenever necessary to that end, the U is required to consider requests of non-U members of the craft and expressions of their views with respect to collective bargaining with the employer and to give them notice of, and opportunity for, hearing upon its proposed action [Steele]. Thus, a union should not act arbitrarily, discriminatorily, or in bad faith.

a. The Railway Labor Act imposes on the union, in the collective bargaining and in making contracts with the carrier, the duty to represent nonunion or minority union members of the craft without hostile discrimination, fairly, impartially and in good faith.b. Remedy: Where the duty of fair representation is breached, the proper remedy is an injunction and an award of damages.c. U has broad discretion: Difficult to show violation [Huffman – seniority for WWII vets]

i. Xxtends to negotiation and administration of CBA/grievancesii. To show violation:

a. Arbitrary, unreasonable actionb. Not in Good Faith (e.g., U refuses to investigate meritorious grievances)

iii. Extrinsic evidence admissible (i.e., is U refusing always refusing extrinsic or only here?)d. Duty of Care: Huffman, Steele The Act does not bar a union from making contracts that may have unfavorable effects on some members, just as long as there is an imposed duty of care to make sure the unfavorable effects aren’t based upon unlawful discrimination.

II. DUTY to BARGAIN in GOOD FAITH*** Only applies to mandatory subjects of bargaining (Allied Chemical)

1. The Duty to Bargain in Good Faith:a. Overall Rule: The duty to “bargain collectively” enjoined by Section 8(a)(5) is defined by Section 8(d) as the duty to “meet and confer in good faith with respect to wages, hours, and other terms and conditions of employment.”

i. Definition [Montgomery Ward](1) Participate actively(2) Indicate present intent to find agreement(3) Sincere effort to reach common ground

ii. Factors: In determining whether a party has bargained in bad faith, the Board looks at all of the circumstances surrounding the collective bargaining, including the actual proposals [A-1 King Sandwiches].

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(1) Here, the company refused to allow employees to be discharge for only just-cause [something unions typically get], company wanted complete discretion in layoffs, and company wanted to require employees not to strike even if ULP is committed(2) Can also include bargaining for the same amount of time that the CBA itself exists(3) NO OBLIGATION TO MAKE CONCESSIONS(4) Surface Bargaining: (where its proposals are so unusually harsh, vindictive, or unreasonable that they are predictably unacceptable) leaves no room for good fair negotiations; collective bargaining efforts are wasted

(a) Going through the motion but never coming to a conclusion, or(b) if the union agrees to company proposals, employer have fewer rights than if they

didn’t have a union.

iii. Policy: THE NLRA is designed to promote industrial peace by encouraging the making of voluntary agreements governing relations between Us and employers. The Act does not compel any agreement whatsoever between employees and employers. Nor does the Act regulate the substantive terms governing wages, hours, and working conditions which are incorporated in an agreement. The theory of the Act is that the making of voluntary labor agreements is encouraged by protecting employee’s rights to organize for collective bargaining and by imposing on labor and management the mutual obligation to bargain collectively [American National Insurance].

(1) Balancing Interests: The Board cannot compel parties to reach a K or to agree to K terms. However, it can compel parties to bargain in good faith.(2) Mutual Duty: The employer and U have a mutual duty to bargain in good faith under Section 8(a)(5).

b. Refusal to Negotiation in Fact: A refusal to negotiate in fact as to any subject which is found within Section 8(d) and about which the U seeks to negotiate, violates Section 8(a)(5), his statutory duty to bargain, even though the employer has ever desire to reach agreement with the U upon an overall collective bargaining agreement, and earnestly and in all good faith bargains to that end [Katz].

i. Do not need to show subjective bad faithii. Unilateral change of policy by employer is same as a refusal to bargain because it takes the

issue off the bargaining table.iii. once the labor and management negotiators have reached an impasse, the employer may

make unilateral changes which do not confer more benefits than those offered at the collective bargaining table.

c. Impasse: Not obliged to continue meeting once they have in GF bargained to a deadlock or “impasse” and it appears that further discussions would be fruitless; Until circumstances change sufficiently to break the impasse (i.e., if one party modifies its demands and requests a meeting), the duty to bargain is satisfied without actual meeting

d. Economic Pressure: Both the employer and the U are entitled to use economic pressure [Chevron; Insurance Agents]. The Board cannot “act as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands [Insurance Agents].

i. Example: Employees don’t have a total strike but they show up late to meetings on purpose and refuse to fill out certain forms. Court held that economic pressure did not equal bad faith [Insurance Agents].

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ii. A union does not fail to bargain in good faith in violation on 8(b)(3) by sponsoring on-the-job conduct designed to interfere with the employer’s economic pressure upon him at the same time that it is negotiating a contract.iii. This is not protected by Section 7 therefore, employees by engaging in these unprotected activities, risk suffering the consequences of such activities. These unprotected activities outside of the negotiations will not taint the bargaining sessions.

e. Changing Position: An employer is entitled to advance a position sincerely held, notwithstanding the employer’s having taken a different position at an earlier time so long as it does so in good faith [Atlas Metal Parts]

i. Change in ECONOMIC Position: It is not illegal for a party to take advantage of a shift in economic strength in a bona fide attempt to obtain agreement on original proposals seen as furthering its best interests [Atlas Metal Parts].

2. Duty to Disclose: The duty to bargain imposed on an employer by Section 8(a)(5) includes a duty to disclose relevant information needed by U

a. Generally,i. Not an absolute ruleii. Disclosure depends on the circumstances (i.e., whether U has a good reason not for

disclosing something [Truitt Industrial]iii. Applies to the period of negotiations and to labor-management relations during the term

of the agreement [Acme industrial]

d. Financial Records: Where employer asserts a position based on its financial situation, depending on the circumstances, the employer must substantiate its claim by providing to the U its financial records or else it will be found to have bargained in bad faith [Truitt Mfg].

i. Claims Inability to Pay: Duty to discloseii. Claims Financial Difficulties: No duty to discloseiii. U has duty to disclose financial needs of employees if raised

e. Employee Test Results: Employer disclosed the standard test it gave employees but would not disclose the employees’ scores because the tests were supposed to be confidential and the company did not want to destroy the integrity of the testing process. Court held employer did not have to disclose test scores [Detroit Edison]. An employer does not violate his duty to bargain in good faith by refusing to divulge to the union representing its employees tests and test scores achieved by individual employees, in a statistically validated psychological aptitude testing program UNLESS the union obtains individual employee consent before the company discloses scores.

f. Trade Secrets and Personal Informationi. Duty to disclose when RLV and useful to U in processing grievances and CBii. But if info is a trade secret, then company can

(1) Redact some information(2) Insist on confidentiality agreement

iii. Access to company property: Duty if RLV/useful and, if so, need to balance necessity of access against reasonableness of intrusion.

(1) Can limit extent of access to strike a balance

g. Customer Information: Employer has duty to disclose because it’s not confidential [Resorts Int’l Hotel Casino]

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3. Unilateral Change in Employment Conditions: An employer’s or U’s unilateral change in conditions of employment under negotiations is a per se violation of Section 8(a)(5) [Katz]. The Board may hold such unilateral action to be an ULP in violation of Section 8(a)(5) without also finding the employer or U guilty of overall subjective bad faith.

a. EXCEPTIONS: Unilateral action can be taken if [Duffy Tool]i. The parties have reached an impasse, OR

(1) Impasse: Look at(a) # of sessions(b) Length of sessions(c) What offers are and have been(d) If GF determines what the employees want, then can impose unilateral

action; (i) If BF, then unreasonable refusal to ever consider backing down

(e) ULP: Cannot impose unilateral action(2) Unilateral Wage Change: Employer cannot make unilateral changes to wages, even

if the parties have reached an impasse(a) NARROW EXCEPTION - purpose of breaking impasse [McClatchy

Newspapers]ii. The U has taken steps to delay or avoid bargaining, ORiii. There is an exigency / urgent need requiring immediate change in the terms or

conditions of employment to stave off disaster.

4. Remedies for Breach of Duty to Bargain (includes Duty to Disclose & Unilateral Change) Under Section 10(c), the Board may impose several remedies for breach of duty to bargain in good faith:

a. The Board may order a Gissel Bargaining Orderb. Compensatory reliefc. Or any other remedy just under the circumstances (taking into consideration the flagrancy of the violationd. BUT NEVER can the Board force an agreement upon the parties; The Board may never order a party to accept a particular agreement

III. SUBJECTS of COLLECTIVE BARGAINING

1. Subjects of Collective Bargaininga. Overall issue: What bargaining subjects are mandatory

b. Board cannot sit in judgment upon substantive terms: The Board may not, directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of the collective bargaining agreement without violating the per se requirement to bargain in good faith under section 7. Proposing a management functions clause is not bad faith bargaining. [American National Insurance Co]

In determining the respective responsibilities of management and unions, the discussions are classified into three groups

1. Matters as to which management makes the final decisions- products, pricing, location, work2. Matters for joint management-union determination- wages, hours, seniority, vacations,

union status, provisions

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3. Matters which the unions exclusion control- admission or exclusion of members, whether or not to operate as an unincorporated association or to obtain corporate character.

c. Three Categories of Bargaining Subjects:i. Mandatory: Within the phrase “rates of pay, wages, hours, and other terms and conditions of employment which are found within Section 8(d) and Section 9(a). Thus, it is a ULP for a company or union to refuse to bargain about the subject upon the other’s request.

(1) Direct connection with conditions of employment [Detroit Resilient](2) It is lawful for a party to insist upon matters within the scope of mandatory bargaining(3) Parties can contract around mandatory terms

ii. Permissive: As to permissive bargaining subjects, the parties are free to bargain or not to bargain, and to agree or not to agree, but it is unlawful to insist upon matters outside the scope of mandatory bargaining [Wooster Divisions]. Tends to be procedural (like a pre-strike procedure).

d. Is the matter Mandatory or Permissive?i. Issue: Is the matter within the phrase “rates of pay, wages, hours, and other terms and conditions of employment”? Is the matter “a condition of employment”? If yes, then it is mandatory; If no, then it is permissive.ii. Factors: The test for whether a bargaining subject is mandatory or permissive has been rephrased in a variety of ways:

(1) Is the matter “germane [closely related, relevant] in the working condition? [Ford](2) Is the matter “among those managerial decisions that lie at the core of entrepreneurial control? [Fibreboard (concurring opinion)](3) Does it impact the employer-employee relationship? [First-National Maintenance]. In general, the matter must be an aspect of the relationship between employer and employees. There are THREE categories of impact:

(a) Indirect and Attenuated Impact: Not a required bargaining subject. This includes managerial decisions that “lie at the core of entrepreneurial control” such as choice of advertising and promotion, product type and design, and financing arrangements. A business decision involved in changing the scope and direction of the enterprise was the same as the decision of whether or not there was going to be an enterprise at all.(b) Substantial Impact: This is a balancing test. Bargaining over management decisions that have a substantial impact on the continued availability of employer should be required bargaining subjects only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.(c) Direct Impact: Management decisions, such as the order of succession of layoffs and recalls, production quotas, work rules, are almost exclusively “an aspect of the relationship” between employer and employee. Thus, they are required bargaining subjects.(d) Benefit for employment relationship and CB must outweigh burden on employer for it to be a mandatory subject.

(4) If_ _ _, then look to(a) Sub-K Fibreboard(b) Partial Closing First National(c) Relocation Dubuque(d) To get more favorable position for one side, argue that act is more like (e.g., Sub-

K) than the others (e.g., relocation. See Regal Cinemas on Page 495).

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2. Examples of MANDATORY Subjects:a. “Recognition” Clause: Employer wanted U to agree to change its representative from the certified national U to the uncertified local affiliate. Court held that this was a ULP because the statute requires the company to bargain with the certified representative [Wooster Divisions].

b. “No Strike” Clause: A no-strike clause prohibits employees from striking during the life of the contract. Thus, it regulates the relations between the employer and employees, and is a condition of employer. T/f, it falls within a mandatory subject, and employer or U can insist upon it [Wooster Div’s]

c. Change of Bargaining Unit: U insisted that it would not bargain with the employer until the employer agreed to change the bargaining unit. Court held that this interfered with the mandatory bargaining subjects and thus was a ULP [Douds].

d. Changing Cafeteria Prices: Employer unilaterally changed the prices in its cafeteria. CBA dealt with cafeteria supervision, restocking vending machines and menu variety, but not in-plant food and beverage prices. Court held that since employees must eat at some point during the workday, the availability of food during working hours and the conditions under which it is to be consumed are matters of deep concern to workers. T/f, food prices and service “may reasonably be considered” a bargainable subject since they germane to the work environment [Ford of Chicago Stamping Plant].

e. Drug Testing: Employer unilaterally required that any injuries requiring treatment would be accompanied by a drug/alcohol test because of an increasingly high number of workplace accidents which the company suspected was due to drug use. The court held that the test was a “condition” of employment “because it had the potential to affect the continued employment of employees would become subject to it.” Court found that it was a change in an important facet of the workday life of employees. Thus, the Board concluded that the company’s unilateral implementation of its testing requirement was a violation of Section 8(a)(5) [Johnson-Bateman].

f. Video Surveillance

g. Contracting Out Work [Fibreboard]i. Contracting out = Terms and conditions of employmentii. Of vital importance to employer-employee relationshipiii. Required bargaining does not burden employer

(1) Do not need to bargain when subK’s pre-existing, only where it is a change of SQiv. Why? Union should be afforded the opportunity to meet management’s legitimate

complaints that its maintenance was unduly costly. The company’s motivation is to reduce costs.v. They looked at industrial practice and realized that they could have fruitful bargaining

over this issue. The language of this act covers this situation because it is a “term and condition of the employment.” Particularly where such contracting out necessitates termination of employment.

h. Closed Shop Agreements

i. Firing Employees and Having Managers to Employee’s Duties Too: List Cinema

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3. Examples of PERMISSIVE Subjectsa. Retired Employees: An employer has no duty to bargain with provision regarding employees [Allied Chemical Workers]. b. “Contribute to Promoting Industry” Clause: U insisted that employer agree to clause in which the employer would contribute money to promote the floor covering industry. The board ruled that the subject was not a mandatory bargaining subject and, t/f, U could not insist upon it. Thus, the U committed a ULP [Detroit Resilient Floor Decorators Local Union No. 2265]c. “Ballot” Clause = Permissive: A ballot clause calling for a pre-strike secret vote of the employees as to the employer’s last offer is not a condition of employment because it merely calls for an advisory vote of the employees. T/f, it is a permissive bargaining subject. Thus, it was unlawful for employer to insist upon the ballot clause [Wooster Division].d. Expansion of BU: [Douds]

i. Typically a Board responsibilityii. Parties can agree to expansion but not mandatory subject

e. After-Acquired Facilities Clause [Pall Biomedical]f. Drug-Alcohol-Lie Detector Tests for APPLICANTS [Johnson-Bateman Co v. Int’l Assn. of Machinists]

4. Decision to Relocate: Dubuque [Brings out the best of Fiberboard & First National]Plant relocations are exempt from a duty to bargain where they are entrepreneurial in nature, are motivated by something other than labor costs, or where bargaining would be futile or impossible.

A company decision to relocate where there is no change in the operation is a demonstration this is a mandatory bargaining subject. Employer can rebut by showing work at new plant varies significantly, or work at old plant has been discontinued, or there has been a shift in the scope of the enterprise.

a. Burden Shifting Test:i. General Counsel (“GC”) burden to demonstrate that a company’s decision to relocate is one

that is not based on the basic change in the nature of the operation which makes it a mandatory subject

ii. REBUT by employer if [objective factors](1) Work varies significantly, or(2) Work at old place not continued in new place, or(3) Changed scope/direction of enterprise

iii. Employer affirmative defense [preponderance of evidence]: Bargaining is useless if(1) Labor costs were not a factor [subjective factors], or(2) Labor costs were a factor, but U could or would not offer enough concession

[futility]b. Favors management, removes from bargaining table the decisions involving significant capital expenditures

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PART FOUR – STRIKES, PICKETING, and BOYCOTTSI. RIGHTS of EMPLOYEE PROTESTORS UNDER the NLRA

A. PROTECTED and UNPROTECTED CONCERTED ACTIVITY1. General Rule – Employee’s Rights – Section 7: Section 7 guarantees “the right to engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

a. Employer Duties: Section 8(a)(1) & (3): Section 8(a)(1) prohibits employer action which coerces, restrains, or interferes with the exercise of this right. Section 8(a)(3) also outlaws employer discouragement of U membership which is accomplished by discrimination.

b. “Mutual Aid” broadly defined: [Eastex]

Section 7 Rights of Employees: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

2. Protected Concerted Activity:a. Single Employee Grievance: Under the Interboro doctrine, an individual’s assertion of a right grounded in a CBA is recognized as “concerted activity” and, therefore, accorded the protection of Section 7 [City Disposal Systems]. (The assertion must be of a right “grounded in a collective bargaining agreement.”).

i. “Assertion of Right Grounded in CBA”: As long as the nature of the employee’s complaint is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the CBA, the complaining employee is engaging in the process of enforcing that agreement. ii. Employee does not need to expressly invoke CBA so long as employee believes he is acting under the CBA. iii. How do particular actions of an individual become linked to actions of fellow employees? The (a) lone employee intends to induce group activity, and (b) employee acts as the representative of at least one other employee, and (c) raises a right under the CBA.

b. Request for Union Assistance: An employee’s request for U assistance is within the literal coverage of the statutory phrase “concerted activities for mutual aid or protection” [Weingarten].

i. True even if the employee alone has an immediate stake in the outcome; He seeks “aid or protect” against a perceived threat to his employment security.

ii. The U representative whose participation he seeks is safeguarding the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.

iii. Employer does not need to inform employee of right to have U representative present. iv. Employee must believe meeting is disciplinary and requests U representative. v. DOES NOT extend to non-U workplace or non-U representative [IBM]

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Co workers, unlike union representatives do not represent the interests of the entire unite, cannot redress the perceived imbalance of power between the employer and employee and cannot facilitate the interview process like a union representative.

c. Distribution of Literature: U literature distributed in nonworking areas during nonworking time which describes legislative action affecting the employee’s rights constitutes concerted activity and is therefore protected under Section 7 [Eastex].

i. If nonemployees otherwise have reasonable access to employees, then there is no reason to allow them on property – property interest outweighs union interests [Lechmere].ii. Section 14(b) of the Act provides specifically that nothing in the act should be construed as requiring membership in a union as stated by the state constitution. It is allowance for states to opt out of the provision of Section 8(a)(3) which allows employers and unions to agree to a provision in the CBA require employees that have been hired to join the union. This has been known as a union shop or have to pay a union fee. While the Act provides for this, Section 14(b) allows states to opt out of this agreement (Missouri is not one of them). Right to work laws means that unions cannot insist that employees have to join the union or pay a union (administrative) fee. This is a right to work provision that goes to a state constitution.

Questions about the distinction between concerted and protected…

3. Unprotected Concerted Activity:a. Bad OBJECTIVES

i. Preemptive Strikesii. Strikes on Permissive Subjects: U’s use of economic pressure in support of

demands falling outside the scope of mandatory bargaining (i.e., “wages, hours, and other terms or conditions of employment”) will constitute a refusal to bargain in good faith.

(1) Employees participating in such concerted activity are thus engaging in unprotected activity and are liable to immediate discharge.

b. Bad METHODSi. Secondary Boycottii. Strike in Violation of NO-Strike Clause

(1) General no strike clause does not waive right to sympathetic or ULP strike(2) Does waive right to strike over less serious issues

iii. Direct Violation of Federal Law: If the method of concerted activity is a direct violation of federal law, it is unprotected by Section 7 (e.g., a secondary boycott) and the employees may be discharged as a result.

iv. Violation of Criminal and Tort Laws: If strikers engage in concerted activities that violate the criminal and tort laws, the state will too render the conduct unprotected.

(1) E.g., Attacking or sabotaging employer (disloyalty) [Jefferson Std. Broadcasting]

c. Concerted Activity and Discharge of Employee “For Cause”: Under Section 10(c), an employer may discharge an employee “for cause” even in the midst of protected concerted activity as long as the concerted activity isn’t the real reason for dismissal [Jefferson Std. Broadcasting].

§Section 10(c) Reduction of testimony to writing; findings and orders of Board: The testimony taken by such member, agent, or agency, or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear

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argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act:

Provided, That where an order directs reinstatement of an employee, backpay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: And provided further, That in determining whether a complaint shall issue alleging a violation of section 8(a)(1) or section 8(a)(2), and in deciding such cases, the same regulations and rules of decision shall apply irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope. Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause. In case the evidence is presented before a member of the Board, or before an administrative law judge or judges thereof, such member, or such judge or judges, as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become affective as therein prescribed.

i. “For Cause”(1) Disloyalty to the Employer: Discharge of an employee for disloyalty to the employer is “for cause” [Jefferson Std. Broadcasting]. Employees passed out literature bad-mouthing the quality and the product of the company but did not say it was in connection to their grievances with the company. Employees’ actions done just to make the company look bad [i.e., failure to relate the attack and the existence of a labor dispute].(2) Work Slowdown: Employees have the right to strike and quit their employment, but can not continue to work and remain at their positions, accept the wages paid to them, and, at the same time, select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the employer’s demise, to do other work. This constitutes a “for cause” discharge [Elks Lumbar].

B. EMPLOYER RESPONSES to CONCERTED ACTIVITIES1. General: Although the Act protects the right of the employees to strike in support of their demands, this protection is not so absolute as to deny self-help by employer when legitimate interest of employees and employer collide. The ultimate problem is the balancing of the conflict legitimate interests [Buffalo Linen].

a. If employees strike at time that will do most harm, employer should have the right to lock out.

b. Defensive lockouts OK [MEBU whipsaw tactic]c. Board seeks to balance power between U and employer

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2. Is employer’s response anti-U motivated?a. Is there discrimination against U employees? This is a question of fact – look at the

circumstances. Were only U employees affected by the employer’s response?b. If so, is there anti-U motivation or legit and SUBSTANTIAL business justification?

i. Burden falls on the employerii. A business reason for employer’s conduct is not an affirmative defense to an ULP

charge. Rather, the court balances the interests of the employees in the concerted activity against the interest of the employer in operating his business in light of the Act and its policy to determine if the employer’s conduct was discriminatory and a ULP [Erie Resistor]. Even if the employer has legit business purpose, the effects of the action may be evaluated by the Board. If it can be proved to be inherently discriminatory or destructive of rights (test found immediately below), then the Board may infer discriminatory intent and find a Section 8(a)(3) violation. c. Effect: Inherently destructive or comparatively slight? [Great Dane – decided to pay

for incurred vacation benefits but only for striking employees who had come back to work ULP] Once it has been proved that an employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that it was motivated by legitimate objectives since such proof is most accessible to him.

i. Inherently Destructive Discrimination: If the employer’s discriminatory conduct was “inherently destructive” of employees rights, no proof of anti-U motivation is needed and the Board can find a ULP even if the employer introduces evidence that the conduct was motivated by business considerations [Contractor’s Labor Pool].

(1) E.g., Super-senior discriminates old U strikers, undermines strike, and, in the long term, divides employees into two camps [Erie Resistor]

(2) A legitimate business purpose is not always a defense to an unfair labor practice charge because some conduct by is very nature may contain the implications of illegal intent or motive to discriminate or interfere with union rightsii. Comparatively Slight Discrimination: If the adverse effect of the discriminatory

conduct on employee rights is “comparatively slight,” an anti-U motivation must be proved to sustain the charge IF the employer has come forward with evidence of legitimate and substantial business justifications [TWA Flight Attendants].

3. Replacing Striking Workers:a. ECONOMIC Strikers: If the strike was for economic purposes, then:

i. Strikers can be permanently replaced: It is not a ULP for employer to hire replacements for striking workers and to retain the replacements after the strike IF he has a legitimate business justification and the strike was for economic reasons.

ii. Hiring back strikers: It is not an unfair practice to reinstate only so many of the strikers are there are vacancies [Mackay Radio].

(1) However, where there is a vacancy, the employer must consider the former strikers for the position because the striker continues as an “employee” until he has obtained “other regular and substantially equivalent employment” [Laidlaw]. An employer refusing to reinstate strikers must show that the action was due to a legitimate and substantial business justification.

(2) The employer may choose not to rehire the striker on the grounds of skill or ability, but not out of anti-U animus [Local 15 IBEW].

(3) Discrimination in rehiring striking employees on account of their union activity violates 8(a)(1) and (3) in regard to tenure of employment

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b. UNFAIR LABOR PRACTICE Strikers: If the strike was to protest a ULP, then i. Strikers can not be permanently replaced:ii. Hiring back strikers: Absolute right of reinstatement, employer must reinstate the

striking employees to their former positions, discharging if necessary replacements hired during the strike [Brown Shoe].

iii. Retain right to vote in regard to U majority status(1) So long as they do not get another job(2) Economic strikers only get this right for 12 months

c. Strikers retain right to reinstatement even if U decertified during striked. Is it an ECONOMIC or UNFAIR LABOR PRACTICE strike?

i. Sometimes it is hard to determine the “cause” of a strike(1) Where a strike starts an economic strike, an employer ULP will be held to

“convert” the strike to an unfair labor strike if it can be determined that the employer’s action prolonged the strike beyond the date it would have terminated in due course as an economic strike. Strikers who are permanently replaced during the economic phase of the strike are not entitled to reinstatement, but strikers replaced after the date of conversion are. ii. No-strike clauses in labor contracts should be read to bar only economic strikes

and not ULP strikes. If this is the case, then the employer must reinstate the strikers.e. Unprotected conduct during the strike = = = NO reinstatement

4. Lockout of Employees: Employer does not violate Section 8(a)(1) or Section 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his workers for the sole purpose of brining economic pressure to bear in support of his legitimate bargaining position [American Ship Building].

a. Shipyard locked out workers during a bargaining impasse because the company feared that workers would strike during the high season which would completely hinder the company. Court held this was a legitimate reason and not a ULP. A lockout is not inherently discriminatory against concerted union activity. Can be shown by extrinsic evidence.

5. Disciplining NO-Strike Clause Strikers: When employees have violated a no-strike clause in the CBA by participating in an economic strike, the employer may not selectively discipline Union officials [Metropolitan Edison].

a. Employer can impose higher penalties on U leader if he is strike leader or engaged in unprotected activity, but not just because he is a U leader.b. For statutory rights to be waived by CBA, it must be clear and unmistakably found in the CBA

II. CONSTITUTIONAL LIMITATIONS on GOVT REGULATION A. Fifth and Fourteenth Amendments [SKIPPED IN CLASS]

B. PICKETING and FREEDOM of COMMUNICATION

1. Freedom of Communication, First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” A picket line is “speech plus”

a. State abridging right to picket: A law enjoining picketing by a U does not violate the 14th

Amendment IF the law is effectuating state public policy.i. States have broad authority to enjoin picket’g; Cannot have blanket ban on picketing [Vogt]

(1) Must have rational basis and valid purpose for limitations

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(2) Must inquire into purpose of picketing and method used to determine permissibility

ii. Picketing has coercive element [speech PLUS] which takes it out of 1A protection [Int’l Longshoremen’s Assn] [what is 1A protection?]

b. First Amendment and Handbilling: Mere handbilling (passing out flyers) is different than picketing, and thus handbilling is covered under the 1st Amendment right to free speech (not the NLRA).

i. Also covered under publicity proviso to Section 8(b)(4)ii. Handbills are persuasive, not coerceive [DeBartolo]

(1) Need MORE than persuasion to trigger Section 8(b)(4)(ii)(2) All publicity short of ambulatory picketing is covered by proviso(3) Handbilling that puts secondary pressure on nonstruck employers is

protected speech and not an unfair labor practiceiii. Bannering: Like handbilling [Overstreet]

(1) Presence of U members ≠ coercion(2) UNLESS signal picketing or patrolling [what is signal picketing??](3) Union activity consisting of holding up banners and distributing handbills

on the premises of a neutral party does not violate 8(b)(4)(ii)(B) of the NLRA where the unions activity is stationary, does not block entrances, and does not involved verbal or physical interactions with the public, even if the unions goal is to dissuade consumers from patronizing the neutral parties business.

(4) Picketing with large procession with coffin , funeral music, death costume is violation

c. Picketing a Private Business: The 1st Amendment right to free speech plays no part in deciding whether people have the right to picket a private business [Hudgens]. Rather, it is decided by balancing the property rights of the private business versus the Section 7 rights of the employees as well as available alternative means.

i. Property Rights Test: [Babcock &Wilcox; Jean Country](1) The strength of the Section 7 interest,(2) The strength of the property interest, AND(3) Availability of alternative means to comm. the U’s message to the intended

audience

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III. NATIONAL LABOR RELATIONS ACT

A. ORGANIZATION and RECOGNITION PICKETING1. Striking/Picketing for recognition in defiance of certification - Section 8(b)(4)(C): It is unlawful for a U to engage in a strike or picketing for recognition in defiance of the certification of another U as the bargaining representative of the employees in question. 2. Right to refrain from picketing - Section 8(b)(4)(C): Employees have the right to form, join, or assist labor organizations. Employees also have the “right to refrain from any or all such activities.”

A. Labor organization can not coerce - Section 8(b)(1): It is a ULP for a labor organization or its agents to restrain or coerce employees in the exercise of rights guaranteed by Section 7.

3. Limitations on recognition picketing - Section 8(b)(7): Three questions to ask a. Does the conduct constitute picketing?

i. For Section 8(b)(7) to apply, the conduct must constitute picketingii. If it is not picketing, then Section 8(b)(7) does not applyiii. Handbilling is not picketing

b. Does the picketing constitute recognitional picketing?i. Picketing does not fall within Section 8(b)(7) unless it is for the purpose of gaining

recognition.(1) Recognition does not need to be sole purpose. Just “a” purpose [Blinne]. (2) Section 8(b)(7) only applies to outside U (not one currently certified)

c. Does the recognitional picketing violate (A), (B), or (C)? Under Section 8(b)(7), picketing for recognition purposes is unlawful:

i. [A] a U is already certified, orii. [B] valid election in last 12 months (even if no U elected), oriii. [C] picketing not covered by (A) or (B) limited to reasonable time (max 30 days)

(1) May be shorter if expedited election or violence breaks out(2) UNLESS union representation files a petition within 30 days(3) If goes beyond this time limit: ULP(4) Proviso 1: Expedited elections only if

(a) Expedited Election: An expedited election is where the provisions of Section 9(c)(1) do not need to be shown to get an election, including a showing of substantial interest.

(i) Employer may expedite election by:(1) Filing Section 8(b)(7) charge, or(2) Filing an election petition and a Section 8(b)(7) charge.

(a) But, if there is ULP by the employer, the Board will ensure a fair election by moving election to a later date.

(b) can be filed by either the company or the union(ii) Employees and U may not expedite election:

(1) The U can not obtain an expedited election without the employer’s cooperation; Only if the employer files the Section 8(b)(7) charge will an expedited election be ordered.

(b) Regular Section 8(b)(7) election: If the circumstances for an expedited election have not been met, then there will be a regular Section 9(c) election [Must have a showing of substantial interest, pre-election hearing, etc – see above].

(5) Proviso 2: Allows picketing for organization so long as object is to advise public of employer’s non-U status: (the picketing appeals to the puclic)

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(a) Can continue beyond 30-day limit(b) Still subject to limitations (A) and (B) (c) BUT if it has effect of haling delivery/pick-up/performance for services: ULP

(i) 30 Day Limit: A representation petition must be filed within a reasonable time by the U, not to exceed 30 days. The recognitional picketing is a ULP if continued for more than 30 days. (d) What is the “Purpose” of the picketing? The Board must approach its

conclusions as to whether or not the picketing was “for the purpose of truthfully advising the public” by way of a finding of whether or not the U’s tactical purpose was to signal economic action, backed by organized group discipline. If it was, then it is prohibited [IBEW].

B. SECONDARY PRESSURE - GENERALLY1. Generally:a. Definition: A secondary boycott is the application of economic pressure upon a person with whom the U has no dispute regarding its own terms of employment in order to induce that person to cease doing business with another employer with whom the U does have such a dispute.

i. Rule – Section 8(b)(4)(b)ii. NO political exception to secondary boycotts [Allied Int’l – Soviet Ships]

b. Policy/Rationale: The central policy behind outlawing the secondary boycott is to shield neutral employers from pressures arising from labor disputes not their own [so look to see if a neutral party is being brought in].

2. Appeals to Secondary Employersa. Picketing at Premises of Employer: Picketing at the premises of a primary employer is traditionally recognized as primary action even though it is “necessarily designed to induce and encourage third persons to cease doing business with the picketed employer” [Moore Dry Dock].

i. Can have weird issues around Sub-Ks [Denver Blvd & Const. Trades](1) U picketed site where general contractor had 1 Sub-K w/ non-U [rest were U](2) Court determined non-U Sub-K was primary and General-Kr was secondary(3) Since picket aimed at General-Kt Secondary boycott(4) It is a ULP to engage in a strike against employer A for the purpose of forcing that

employer to cease doing business with employer Bii. Non-permanent work location OR Two employers in same location: in the usual case,

the situs (“the place where something is located”) is the premise of the primary employer. But in some cases, the situs of the dispute may not be limited to a fixed location; it may be ambulatory (moveable). Or two employer may share a common space.

(1) Rule: Where the situs is ambulatory and rests temporarily at the premises of a secondary employer (e.g., like a boat that is docked on someone else’s property) or two employers share a common space, picketing around the premises of the secondary employer is primary if it meets the following conditions:

(a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer’s premises;

(b) At the time of the picketing, the primary employer is engaged in its normal business at the situs;

(c) Picketing is limited to places reasonably close to the location of the situs, AND(d) Picketing discloses early that the dispute is with the primary employer [Moore

Dry Dock].

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2. NOTE: U can picket around the secondary employer’s property but not on it because it is private property.

b. Hess Doctrine: Where an employer is an ally of the primary employer, the picketing is not a violation of Section 8(b)(4) [Douds].

i. Rule: An employer is an ally if:(1) The employer is essentially employed by the primary employer

(a) Common ownership of two companies is not enough to allow picketing UNLESS there is (1) common control of labor, AND (2) straight-line management(2) The employer is doing work which but for the strike would be performed by the

striking employees, OR(a) Example: But for the strike, the employer would not have done the work. It is

as if the employer were merely replacing the strikers.(3) The encouraging of a work stoppage occurred at a location intimately and

inextricably united to the U’s activity [Douds].ii. Policy / Rationale: In every meaningful sense, an ally makes itself a party to the contest.

It is no longer an innocent bystander nor a neutral party.

c. Different Gates/Entrances for Contractors: Where an employer has different gates/entrances for independent contractors than for its employees, it is unlawful for the U to picket the gate utilized exclusively by employees of independent contractors who work on the struck employer’s premises. The question is the type of work performed by those who use the separate gate [General Electric].

i. Factors to Consider:(1) Separate gate(2) Gate must be marked(3) Gate must be set apart from other gates, AND(4) The work performed by the independent contractors must be unrelated to the

normal operations of the employers.(a) Kind of work – The work performed by the workers must be the kind that

would not, if done, when the plant was engaged in regular operations, necessitate curtailing those operations. If the work would result in business curtailment, then the U may picket.

ii. Mixed use gate: Mixed use of gate would make gate susceptible to picketing (i.e., the gate is used by both struck employer’s employees and independent contractor’s employees).

C. SECONDARY PRESSURE and CONSUMER APPEALS1. Consumer Appeals: Publicity that does not constitute picketing (i.e., handbilling) or is peaceful consumer picketing conducted only for the purpose of asking the consumer to boycott the primary employer’s product are lawful under the publicity provision Section 8(b)(4)(b).

a. Encouraging Managerial Decision: Encouraging or inducing someone to make a managerial within their authority does not constitute encouragement under (i) [Servette]. b. Handbilling:

i. Threat to Handbill: Handbilling is not a violation because it is “publicity other than picketing.” A threat of handbilling is also legal. Can encourage patrons through handbilling to shop elsewhere even though dispute is only with one product [DeBartolo].ii. Must be aimed at primary employer: The handbilling may not be directed against the secondary employer. Rather, the handbilling must be intended to inform the public that the primary employer’s product is distributed by the secondary employer.

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c. Consumer Picketing:i. Three Categories:

(1) Directed at single product: When consumer picketing is employer only to persuade customers not to buy the particular struck product, then consumer picketing is not a violation. BUT where consumer picketing is employed to persuade customers not to trade at all with the secondary employer, this is a violation [Tree Fruits].

(2) Directed at single dominant product: Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss violates Section 8(4)(ii)(B) because the picketing plainly violates the ban on the coercion of neutrals by forcing the secondary employer to cease doing business with the primary employer or face economic ruin [Safeco].

(3) Not either extreme: If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominate product, neither Tree Fruits nor Safeco apply. The critical question is whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss.

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PART FIVE – EMPLOYEE FREE CHOICE ACT

Employee Free Choice Acta. Unions are in favor of it because it makes it quicker and easier to be recognized through a card-

check procedure, a quicker procedure and a binding procedure for a first collective bargaining agreement, and the act allows for arbitration if there is no bargaining agreement, and they want more political clout. That's the unions focus and why they are pushing for this Act

b. What is the company's concerns? Why are they generally opposed to the Act?i. It skips the election and the voluntary recognition. The Act imposes a recognition.

ii. If you don't have the secret ballot, then there will be extraordinary pressure on employees and unions will be pressuring people to join these cards, and it is not going to be a free and fair choice of the union

iii. As far as establishing a path to first collective bargaining agreement, and tougher remedies against employers, companies are not happy that it only focuses on tighter regulations of employers and providing for stronger remedies against them

c. Card Check Provision - Section IIi. If a union can produce a majority of valid authorization cards, and if its in the context

that there is no other labor organization certified or organized, then in those situations, the Board is entitled to certify the union

ii. The Board shall develop guidelines for having bargaining representatives - what would be the value of having this language? What does it mean? Did the authorization card have a single purpose or a dual-purpose? There was a concern for the idea of the cards not being clear enough. This language of the Act is designed for the Board to come up with clearer language so there won't be concerns for misunderstanding for those employees.

iii. The Board also has the authority to create law that determine the validity of signed cards. Currently, the Board will evaluate authorization cards and will use them for card-count so long they were signed within a year.

iv. The Act is seeking to address some of the cards regarding the card check procedurev. As far as the facilitation of a bargaining agreement, this part of the act amending

Section 8, within 10 days of the certification, once that union has requested bargaining within 10 days…an employer has a duty to begin that bargaining. After 90 days, either party can notify the Federal Mediation Board that there is no agreement. The mediation people can then be brought in. If the parties have not reached an agreement within 30 days after the notification to the Federal Mediation Board, then the Federal Mediation Board shall send the case to an Arbitration Board. It further provides that the Arbitration Panel shall determine the terms of the collective bargaining agreement which will be binding for two years unless both parties agree to amend it.

vi. This is not a particularly long period of time to reach a collective bargaining agreement.

vii. How is the structure of the Act designed to be useful to unions? The idea is that they will get a contract. This language of the Act gives the Union the power to get the company to arbitration. It only requires one party to bring the dispute to an Arbitration Panel.

viii. What are the holes in this process in achieving the collective bargaining agreement? There are no clear guidelines as to how this would operate.

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1. Some state statutes allow for interest arbitration…but most of those statutes define the arbitration process. It is unclear now how that arbitration process would be.

a. Who is going to be the arbitrators? Are they going to be neutral arbitrators? Or will there be a balance? How will be the arbitrators be paid?

2. In order for a government entity to be authorized in interest arbitration, there would have to be certain standards that would have to be followed including taking into consideration of the ability to pay, there are statutes that require arbitrators to look at comparable skill pay.

3. The lack of definition in the statute, which reflects Congress leaving to the Federal Mediation and Reconciliation Service

4. One other method that is used in the public sector is final interest arbitration. The idea is that each side comes up with their last best individual offer. The arbitrator is to choose the most reasonable offer under those circumstances. This is done to limit the discretion of the arbitrator and, at the same time, the final arbitration procedures are designed for each side to come up with the most fair and reasonable term that they can live with and won't be so considered out of bounds to accept the other side.

d. The rest of the Act focuses for broader remediesi. The Section 10(c) is amended to allow for back-pay

ii. Section 12 - if there is interference with the achievement of a collective bargaining agreement, there also can be willful violations, there will be a $20,000 fine.

iii. There can also be a 1011 priority injunctions scenarios

--- One of the changes - would allow for unions to provide a majority of employees in a bu had signed

authorization cards -based on this, the union would be entitled to be certified (as opposed to presently, where no voluntary recognition - need for election)

Pros/Cons Union - should be card authorization because under current act, opps for employers to thwart

process/engage in ulp Against the act - strong arm union tactics to get people to sign cards, use of cards could be fraudulent,

ppl could be coerced/mislead - important to keep free choice provided by the election Provides for interest arbitration - arbitrator will impose terms on both if don't reach agreement quickly

enough Additional remedies

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