I. EVOLUTION OF LABOR RELATIONS LAWS

A. Labor Movement history1. Hierarchy of Crafts: (this is before Industrialization)

a) master artisansb) journeymen – owned own tools but still not masters in their own rightc) apprentices – legally bound to service for a specified number of years d) indentured servant – legally bound to service for a specified number of years

2. Industrializationa) By 1900s 2/3 of workers were wage workers. They organized themselves in trade unions

(1) they formed National Labor Union and Knights of LaborB. Labor Strikes etc.

1. Early response = criminal conspiracy. e.g. public nuisance, etc. a) rationale : the employer has a right to conduct his business as he wants and labor

movements (e.g. strikes) interfere with the employer’s right2. Closed Shops: where you require that the company only hire people who are already part of the

union. Makes people who weren’t part of the union unable to get jobs.a) always illegal – pretty much discrimination (picking nonunion over union members)

3. Injunctions: employers would go to courts and seek an injunction enjoining unions from engaging in types of activities, like picketinga) Vegelahn v. Gunter: employer able to get injunction against picketing b/c of the right to

conduct his business. Plus employees were breaking their work contracts.(1) inherently intimidating

b) RULE: strikes unlawful if judge could consider them for inappropriate reasons or by using inappropriate tactics

C. Anti-Trust Laws1. Sherman Act (1890)

a) prohibited every contract, combination, in the form of trust or otherwise or conspiracy in restraint of trade or commerce

b) to prevent monopoliesc) even though it was meant to be against businesses, it was enforced against labor unions

more often than notd) Loewe v. Lawlor: secondary boycott against hat makers was not allowed. They were

interfering with the business itself2. Clayton Act (1914)

a) §6: anti trust laws do not prohibit union creationb) §20: limited court ordered labor-related injunctions.

(1) said you can enjoin secondary boycotts, etc.c) Duplex Printing: printing press case. They went to the customers of the printing press

company to ask them to stop buying the printing presses. Were enjoined b/c was a secondary boycott.

3. Railway Labor Act (in response to a strike 1894)a) no company unions (unions imposed by the employer)b) guarantees right to strike but makes lots of provisions to try to prevent strike or lockout

activity from occurring4. Norris La Guardia Act (1932)

a) prohibits court ordered injunctions in most labor disputesb) Goals:

(1) overriding policy of ending court interference with labor disputes(2) picketing and strikes are protected(3) government must be neutral in addressing labor disputes (i.e. not favoring

businesses)1

(4) Yellow Dog Ks outlawed (where employer makes you sign a K saying you won’t join a union)

(5) no discrimination due to union activity5. Wagner Act (“The Act” / NLRA 1935)

a) Gave employee rights b) §9 - created Ntl. Relations Board

(1) NLRB names the exclusive representative of the workers(2) deals with union votes etc.

c) Sections Overview:(1) 8(a)(1) – employer can’t interfere with §7 rights(2) 8(a)(2) – no company unions(3) 8(a)(3) – no discrimination due to union activity(4) 8(a)(4) – no discrimination for testifying or filing charges against the employer(5) 8(a)(5) – you must bargain faithfully with the union

6. Taft-Hartley (end WWII)a) enacted in response to Wagner. The Wagner Act didn’t really address union behavior, so

Taft Hartley Act amended The Act to address what constitutes unlawful union activityb) §7 – right to refrain from joining union

(1) remember: companies/unions can require that you join a union after you’re hired, but you don’t have to go for full membership, just pay the dues

c) Sections:(1) 8(b) – defines union ULPs

(a) 8(b)(1) – unions cannot coerce employees(b) 8(b)(2) – union can’t require employee to be fired unless security clause

required dues and employee hasn’t paid them(2) 8(a)(3) – no closed shops(3) 8(c) – free speech clause as long as there are no threats, or promises of benefits(4) 14(d) – right to work. Permits states to pass laws banning or limiting security

clauses (results in fewer unions in these states)(5) 301 – fed court jurisdiction for enforcing CBA

7. Landrum-Griffin (1959)a) Union Financial Stuff:

(1) financial disclosure requirements,(2) union elections(3) fiduciary responsibility of union officers(4) rights of union members to their union

b) 8(b)(7) – regulates picketing

II. ESTABLISHMENT OF THE COLLECTIVE PARGAINING RELATIONSHIP

A. Protection of the Right of Self Organization (§7)1. Section 7

a) protection of workers rights to:(1) self organization(2) form union, join union, assist labor orgs(3) bargain collectively thru representatives of their own choosing

2. Company Interference with §7 Right to form union a) NOTE: if violate §7 rights, you also violate §8(a)(1) at least (maybe 8(a)(5) too)b) GEN: unions are going to want to access employees b/c they will want to solicit

authorization cards, which say that they want to have a union. These cards are only used

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to show that there is interest and will be used by the union to show that they meet the 30% requirement and that there should be an election.(1) plus you want to encourage other unions to come in and allow for people to say

they don’t even want a union (i.e. encourage freedom of speech)c) Blanket Prohibitions

(1) Republic Aviation: company had a blanket rule prohibiting solicitation of any kind. Union sued b/c this prohibited it from handing out leaflets to try to get the workers to want them as their representative.(a) RULE: blanket prohibition unlawful b/c interferes with §7 rights(b) BUT where there is a legitimate reason for prohibiting the solicitation in

certain areas of your business, such prohibitions will be lawful(i) e.g. hospital wants to prohibit solicitation in patient corridors. This

is okay b/c it’s a legit purpose to protect patients b/c the patients are ill, etc.

(ii) Hospital cafeteria ok b/c patient use of the cafeteria was voluntary, random, and infrequent (and could be avoided by unusually sensitive patients), and the hospital had itself permitted charitable solicitations there in the past. Further, patients don’t receive treatment in the cafeteria.

(2) LOOK TO: whenever a company wants to prohibit solicitation on premises(a) special nature of the business(b) amount that it will disrupt the business or interfere with the public(c) whether it’s a general blanket prohibition or just against certain kinds (latter

is most likely unlawful)d) e.g. retail stores can require that you go to a nonpublic area to distribute literature b/c it would

interfere (disruptive) with the business and the public too much to be able to distribute lit on the sales floor. BUT, distributing literature in the law school library where the profs want to form a union is okay b/c not really public

3. Work Time v. Work Hours Prohibitionsa) DEF: when company prohibits employees from distribution of lit during certain times of

business operations. (1) Work Time = when you are actually working for the company’s benefit (i.e. when

you’re working your machine)(2) Work Hours = whenever you’re actually at the plant. This can include breaks and

lunches, etc. So b/c that’s technically your time when you’re on lunch, company can’t prohibit your right to distribute lit.(a) e.g. working 8-5

b) GEN RULE: if the company prohibits distribution of lit during work time, the prohibition is presumptively LAWFUL. But if it prohibits during work hours, it’s presumptively Unlawful.

c) LOOK TO:(1) intent of employer: significant is the timing

(a) Did the employer make this rule in response to union activity or was the rule already there?(i) if no, the intent was probably not to discourage union activity(ii) if yes, then employer probably has 8(a)1 violation

d) Work AREAS: company has a legit purpose in making sure you don’t distribute literature in work areas b/c of litter and possible interference with the machines. SO rules that restrict solicitations inside work areas are presumptively VALID.

e) Remember that break-time is decided by state laws. Indiana does not have a law that gives you a lunch break.

f) Solicitation- giving person union authorization cardg) Distribution-passing out literature

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4. Rules Restricting you to be in company only during your own shifta) RULE: presumptively invalid 8(a)1 violationb) You have to allow for employees to be able to communicate w/ each other, and making

employees only stay during their own working time is going to interfere with their right to communicate with each other. (1) there may be a legit business interest (disrupting productivity), but likely rules that

say you can only be at the company during working hours are going to be unlawful(2) Can union negotiate non-solicitation/distribution rule? Union can waive certain

rights (freedom to strike) in exchange for something else, but you can’t negotiate something that will directly interfere with Section 7 problems.

B. 8(a)(1) Violations1. GEN RULE: does not require intent. The employer violates §8(a)(1) when his conduct/rules have the

effect of interfering w/ §7 rights2. Button Wearing

a) GEN: Unions are allowed to wear union insignia. If the company puts in a rule prohibiting/limiting the wearing of these buttons/insignia, company has burden of proving that there is a legit safety reason for not allowing buttons(1) EXAMPLES when company can limit insignia wearing:

(a) can prohibit oversized buttons or normal ones that are worn in a distracting manner where the production process requires constant concentration

(b) where wearing the buttons may alienate customers(c) wearing may incite violence or lead to friction between groups w/in the

workplace(i) look to preexisting factionalism(ii) look to provocative nature of the message (e.g. “Don’t be a Scab”

on buttons may incite violence)b) Meijer: company rule that only allowed 3 types of buttons (store prohibited wearing of

union insignia during union organization period), so there was a violation b/c co. could not show a negative impact on business.

c) Eastern Omni Constructors: construction workers not allowed to wear stickers on hats b/c of safety concerns. The uniform (orange color) was functional/safety role(1) BUT could wear on other things b/c there wasn’t the safety concern. Rule still

protected workers right to wear insigniad) Burger King: Rule that only allowed them to have Burger King authorized button b/c INTENT

was to keep burger king uniform and professional working while working up front in restaurant. Not discriminatory

e) Nordstroms: Rule prohibiting union buttons. Nordstrom’s uniform code was not as specific as Burger King – employees only wore professional attire(1) because they were allowed to wear jewelry and stuff, the rule was found to be

discriminatory3. Rules against bad language / harassment (Martin Luther Memorial Home)

a) RULE: look to whether the company rule chills employee speech in exercising §7 rights. If yes = 8(a)(1) violation(1) Policy : you want to allow some rules restricting speech because these rules

promote the working environmentb) TEST: (if the language of the rule itself doesn’t explicitly forbid §7 speech)

(1) employees reasonably construe language of the rule to prohibit §7 speech or(2) when the rule was adopted or

(a) if adopted during union activity, likely violation(3) when rule has been applied or

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(a) if rule has been applied to restrict exercise of §7 rights, likely violationC. NON-Employee access

1. ISSUE: Companies will have rules prohibiting non-employees from entering. These have a legit business purpose. But you must balance that with the need for the union to be able to spread their message

2. GEN RULE: company may prohibit access b/c there are other means by which the union can reach employees. a) EXCEPT: (burden is on the union)

(1) where there’s no other way to reach the employees(2) difficult to prove b/c there are t.v., newspaper, internet, mailers, etc.(3) e.g. mining, logging, camping, lodges

3. Lechmere Balancing TESTa) degree of impairment of §7 rights b) VERSUSc) degree of impairment of business’s property rightsd) PLUSe) the availability of reasonably effective alternative means to reach the employees

4. BUT a) Sandusky: didn’t allow solicitation, but did allow charities to enter.

(1) this is VALID b/c public policy denotes you don’t want to discourage charity workb) Lucile Salter Packard – hospital that allowed both charities and commercial people.

(1) INVALID b/c you was discriminatory against union for prohibiting them to distribute information. All sorts of other groups were allowed in. (c) Not just charity v. profit, but who is the audience. Girl Scouts/Salvation Army goes to patrons of mall to make charitable donations. Hospital case is soliciting employees and ban is discriminatory in manner. Must allow access to union in hospital.

D. Union and Equal Access to Employees (§8(c) Violations) (Not an unfair labor practice. Langauge cannot be used as evidence unless language is threatening or coercive)1. GEN RULE: employees who are trying to organize can communicate w/ each other during non

working time as long as no interference w/ work / safety2. Captive Audience Speeches

a) companies do not have to provide equal time to employees whenever the company is making an anti-union speech(1) (i.e. company makes anti-union speech, unions don’t get to have equal time)

b) BUT, 24 hours before elections, there is to be NO captive audience speeches by employer. Not an unfair labor practice unless it is threatening or coercive.

c) Why have the rule? Sit back and reflect and make a free choice clear of bombardment. Lack of opportunity to respond to misinformation by candidates/unions.

3. Content of the Speech a) RULE: can say any general views about unionism or views about a specific union, as long as

the communication does NOT contain(1) threat of reprisal(2) force (3) promise of benefit(4) Predictions: you can say that the company will shut down or etc. as long as you

have something to back it upb) Must maintain LAB CONDITIONS (free and fair election must be maintained)

(1) freedom of reason, emotion, choice.(2) Cannot have coercive behavior(3) If you destroy these lab conditions, will set aside election

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c) TEST – forgery(1) No set aside elections based on misleading campaign statements alone(2) Only set aside elections when the company has made documents that the

employees can’t recognize as propaganda (forged)(a) Don’t look to truth or falsity of information but to the deceptive manner in

which it was made (Shopping cart test)(i) Standard: violation once you make something out there that

employees can’t recognize as false but take as trued) Inflammatory Appeals

(1) DEF: where company says stuff like communist like unions, only blacks join this union unions, etc. Racial Bias etc.

(2) RULE: don’t allow these(a) because you are just appealing to people’s emotions and sentiments to

influence their decisions (prevent making reasonable choice.) Ex. Employer says that if union comes in, everyone will have to speak Spanish. This is an inflammatory appeal.

(b) destroys lab conditions(3) even if this is truthful, grounds to set aside elections

e) Polling(1) RULE: employer MAY ask question as long as circumstances aren’t threatening or

coercive. (a) it’s not an expression of the employer’s views and so isn’t protected under

8(c) BUT it does protect the expression of ideas(2) TEST:

(a) purpose of polling is to determine truth of a union’s claim of majority(b) purpose is communicated to employees(c) assurances against reprisal(d) secret ballot poll(e) employer not engaged in ULPs or otherwise creates a coercive

atmosphere(i) FACTORS – is company being coercive

(a) history of hostility(b) nature of information is sought(c) rank of questioner (higher the rank, higher the

coerciveness)(f) place and method of interrogation (are you being called to the bosses’

office and who is questioning you).f) Threat or Promises of Benefit

(1) RULE: employer cannot make promises of benefits as incentive for employees to vote for no union(a) BUT union can make promises, but the union can’t promise anything that it

would have control over. (i) e.g. membership fees – b/c unions control what your fee is, it

could be buying votes just like the company would be buying votes. BUT, if they waived the fee for everyone, it’s not a violation b/c it’s not buying votes anymore. (a) also, gifts are a violation(b) also, promise of a favorable position in the union is

violation(2) Exchange Parts: just prior to the election, the company gave employees bunch of

benefits. VIOLATION b/c “buying votes”(3) FACTORS:

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(a) history of the company (when it has awarded benefits in the past, etc.)(i) e.g. holiday bonuses and the like not a problem b/c of the

company history(a) just because the award of the benefits happens to

coincide with the union activity doesn’t necessarily make it ULP

(b) surrounding circumstances (to determining intent)4. Election Eligibility List ( Excelsior List )

a) RULE: you are required to disclose employee contraction information ONLY when you have a pending election(1) must provide w/in 7 days of an election(2) Not an unfair labor practice. If no list is provided, election is set aside.

E. ELECTION PROCESS (§9)1. Sign a Petition – there are six kinds of petitions

a) Certification of Representative (RC petition) = Union filed. show “substantial amount” of interest (30% of eligible voters)(1) these are signed authorization cards, which the employer can’t inspect

(a) remedy for employer is to conduct polling (see above) to determine whether there is actual 30% support. But this must meet the requirements of employer polling.

b) Union Recognition – Representation (RM petition) = Company filed. You must show that the union demands recognition (1) you want to have an election immediately before union gains too much support

c) Decertification (RD petition) = employee filed to get rid of the union. Requires 30% showing. of interest. Subjected to 1yr certification bar

2. Hold Electiona) NOTE: employer can agree to recognize the union and forgo the expense of having an

election and just agree to bargainb) Before Election:

(1) employer must post notice of the electionc) held on employer’s premises usuallyd) secret ballote) observers: equal amount of representatives from each side are present (company and

union)f) challengability – each side can challenge voters (i.e. if there’s a manager present who

shouldn’t be there)3. ULP bargaining order: where company has committed such egregious ULPs that a fair election is not

possible, and the board orders that the company recognizes the union4. pre-hire agreement: short term agreement for construction workers and the like, b/c of short duration

of the workers, etc. 5. management rights clause – gives company right to cover what is not expressly stated in the

contractF. Employer Domination and Assistance 8(a)(2)

1. DEF: no company unions. 8(a)(2) prohibits companies from dominating, intervening, or providing financial support. NO intent requireda) Company Union: like joint labor-management committees whose institution, meetings, and

agenda were management initiated and controlled. Or employee committees that are more independent but still under management control

2. RULE: only prohibits dominating or interfering with a labor organizationa) LABOR ORG = §2(5) p.25 of supplement

(1) QUESTIONS:(a) do employees participate in the organization

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(b) does the organization exist at least partially to deal with employers(c) do the dealings concern conditions of work such as those specified in the

section3. Policy: the Act’s purpose is to promote the company from having arms-length dealings with the

employees b/c this promotes harmony and freedom of expression/association. a) company unions undermine the policy b/c the employees aren’t as free to advocate for their

positions b/c they fear losing their job4. Electromation, Inc:

a) RULE: Negotiations between employer and employee committees which discuss conditions of work= VIOLATION(1) can talk about quality or efficiency b/c this isn’t a condition of work

(a) e.g. conditions of work: job classifications, seniority, vacations, holidays, grievances

(2) okay if it’s designed as a communication device(a) e.g. where NOT conditions of work (and no 8a2 violation): share

information, brainstorm, act as suggestion box, plan educational programs. Or if the purpose was to achieve quality or efficiency, or be a communication device

b) FACTORS: (domination exists where:)(1) if employer sets it up

(a) i.e. if employee forms and structures the committee, not violation – even if the employer can influence its effectiveness

(2) if employer controls schedule for meetings(3) “ “ sets agenda(4) if the committee’s existence depends on the employer

c) RULE: Domination exists where employer forms, structures, controls member, contributes financial support (e.g. paying employees for their time)

5. INTERFERENCEa) DEF: where employer unlawfully influences or assists a labor organizationb) RULE: an employer is prohibited from interfering or assisting with the creation or operation of

a labor organization. (1) Remember: when a union tells an employer that it has the support of a majority of

the employees it can:(a) recognize union as exclusive rep(b) file a petition for an election(c) or wait for union to do so

(2) However, if the union says it has majority support and it in fact does NOT have the majority support, it is a ULP if it recognizes the union w/o an election(a) moral of the story: you can recognize the union but you’d better make sure

the union is telling the truth when it says it has majority supportc) Bernhard-Altmann Texas Corp

(1) the company and the union agreed that the company would recognize the union before the union established that it had majority status. INVALID b/c this is contributing/supporting a union, which is 8(a)(2) violation

d) e.g. contributes financial or other support, assisting union in its effort to organize employees, soliciting employees to join a union, permitting union to conduct meetings during paid work time, permitting us of company facilities, providing secretarial and clerical assistance

6. COMPETING UNIONSa) RULE: an employer may recognize a union which represents an uncoerced, unassisted

majority before a valid election petition is filed

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(1) BUT, once an election petition is filed (e.g. by a rival union), the employer must refrain from recognizing any of the rival unions until the election results are in – Abraham Grossman

b) An employer is not required to be neutral UNTIL someone files a petition for an election. After that, the company must be neutral re any rival union(1) Remember: a union must always show when it files an election petition that it has

30% support. If the rival union does not actually have 30% support, then it cannot delay recognition of the other union b/c it can’t have an election to win.

III. RETALIATION IN RESPONSE TO ORGANIZATION AND §7A. Discrimination – 8(a)(3) violation

1. DEF: §8(a)(3) prohibits employer from discriminating against employees b/c of union activity. i.e. no discouraging or encouraging union membership by discriminating w/ regard to hiring or tenure of employment or any term or condition of employmenta) protects job applicants as well as current employeesb) REQUIREMENTS 8(a)(3)

(1) proof of discrimination(2) anti union MOTIVE(3) most frequently filed ULP

2. Edward G. Budd: employee had been drinking on the job, brought a slut to work, left his job a lot. a) BUT, he had previously received pay increases as a result of this, never any disciplinary

actions.b) When he started union activity, he was discharged, and the company cited above reasons.

(1) VIOLATION 8(a)(3) and 8(a)(1) (If you have 8(a)(3), you will also have 8(a)(1)) – they were just using those reasons as excuse. (a) Timing: they could have fired him earlier for any of those reasons but

didn’t and encouraged the activity by giving him raises. (2) Held: Reinstate. BUT, if they begin to discipline his activity and institute a new

policy, they can legitimately fire him through the paper trail/record of discipline.(3) Can have a discharge that has negative impact that is found to be a 8(a)(1)

violation but not 8(a)(3). When does this happen? If anti-union motive missing, but terminate employee for involvement in union. When would the Board find an 8(a)(1)-this is such a key person in the union, that discharge would interfere with Section 7 rights even though no anti-union motive present. Employer always has legitimate interest in running business but if impact of discharge outweighs employer interest-than Board will find violation.

(4) NLRB v. Burnup & Sims- employees discharged for threatening to use dynamite to gain union recognition. Employees engaged in protected activity (union), and employer knew it. Basis of discharge was alleged misconduct. Misconduct never occurred. Employer has duty to investigate. No 8(a)(3) violation (ct. never got to it), but ct. says there was a 8(a)(1) violation. You are protected in your concerted activity until you cross the line with violence. (*leading cause of death among women in workplace is violence). Good faith belief is not a defense to 8(a)(1) violation because you look at the impact of the discharge.

3. Mixed Motive Casesa) DEF: dual motive, where you have a legitimate business reason for the discharge but there’s

also employer anti union biasb) The union finds out the employer’s true motive by shifting the burdens of proofc) TEST: Wright Line - 8(a)(3) Violation

(1) NLRB Gen Counsel must show the employer’s decision to discharged employee was motivated substantially by conduct of the employee which is protected by §7 (showing to be made by preponderance of evidence)(a) Prima facie case ELEMENTS:

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(i) existence of protected activity under Section 7(ii) knowledge by employer of that activity(iii) anti union bias

(2) THEN, employer can(a) Employer can rebut w/ equal evidence showing that the bias played no

part in his decision (inference is that employee’s conduct was reason for discharge).(i) present enough evidence to balance the presumption against the

employer (i.e. equal evidence)(b) Employer has affirmative defense: it would have fired the employee

anyway for permissible reasons relating to her unprotected Conduct(i) preponderance of the evidence (burden of production and burden

of evidence-high standard to meet)d) Pretext v. Mixed Motive

(1) Pretext : employer asserts valid business reason for its action, but the evidence shows the reason is a sham. In reality, the company rule relied upon didn’t exist or the employer did not in fact rely on it.

(2) Mixed Motive : two things: (1) a demonstrable and legitimate business reason; and (2) employer’s hostile reaction to the employee’s union activity

4. Standard of Reviewa) DEF: standard of review that the board and appellate courts have on decisions by the ALJ

(“substantial evidence” by Board so Appellate Ct. review now less deferential to Board) Why the change in raising the burden on Board? Board is too pro-worker and Ct. seen as pro-business.

b) Mueller Brass: The controlling factor is the employer’s MOTIVE. (1) RULE: An employee may be discharged for any reason except a showing of anti

union motivation, and the Board oversteps its bounds when it second guesses management decisions.

(2) Arbitration (ALJs): employer has to show good cause in firing employee.(3) Board : looks to whether there’s a ULP (these are two different standards)(4) Why was there not a violation in the Stone case when he had Rx notes and was

fired? No requirement for company to accept the notes. Need to show that company treated like cases differently.

B. Shutting down, runaway shops, and partial closings1. DEF: violation 8(a)(3) when company changes or stops its business operations b/c of anti union

animus2. Shutting Down

a) RULE: a company may suspend its operations or change its business methods as long as the change is not motivated by an illegal intention to avoid ets obligations under the Act(1) Atkins Transfer: 2 employees were in charge of truck maintenance. Joined a

union. The company either had to pay increased wages to the workers or discharge them. (a) closed down repair shop. NO VIOLATION b/c this was a pure business

decision. No anti union animus present. Fact that employees were union members only incidental to their firing. Decision promotes labor peace/averts labor strike. Decision falls short of protecting employees right to collective bargaining.

(b) Would Atkins come out differently following the Wright Line decision? Wright changed the burdens-would it change the outcome? No, still have to have the anti union animus.

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(c) MANAGEMENT PEROGATIVE: some things are so important to running a business that the fact that it may often discourage union membership is still not enough for it to but ULP(i) BUT, if you can show anti union animus history, this may be

enough(ii) balance the different interests of the business property interests

and the employee’s / union’s right to union activityb) RULE: only discrimination that encourages or discourage union membership is

proscribedc) VIOLATION IF:

(1) if there was a different union that came in to represent the truckers and not the one that was already on it

(2) history of animosity(3) other organizational things being carried out elsewhere in the company(4) if it really wasn’t cheaper for them to fire and contract out(5) if they were given incentives (raises, etc.) just prior to being laid off (this would

discourage union activity)3. Runaway Shops

a) DEF: you have multiple plants and the employer transfers work to another plan or to other employees w/in the same plant or subcontract the work to another company that does not have a union(1) i.e. you can’t move the site of the company to deprive the employees from

exercising their §7 rightsb) VIOLATION IF:

(1) motivated by anti union hostility Or(2) in an effort to avoid the union

4. Partial Closingsa) DEF: violation of 8(a)(3) IF

(1) motivated by anti union animus intended to chill unionism in the remaining plants of the employer AND

(2) if the employer should reasonably have foreseen that the closing would have that effect

b) Remember: management prerogative – an employer has the right to terminate it’s entire business, even if motivated by vindictiveness towards the union. (1) the Act doesn’t not make a company reopen its business

c) Textile Workers Union v. Darlington:(1) The company had several plants but closed down the Darlington plant because it

was trying to organize a union. (2) Issue(s): Can you shut down mill completely, or in the alternative, can you partially

close down in the face of union election?(3) HELD: 8(a)(3) violation

(a) NOTE: not 8(a)(1) violation(i) RULE: Section 8(a)(1) violated only when the employer’s

interference with §7 rights outweighs its true business needs – unlawful act without motive. (Could have a derivative 8(a)(1) that “flows” from an 8(a)(3).)

(4) TEST: if the decision to close the plant if it’s motivated by anti union animus which is intended to chill unionism in the remaining plants AND employer should have reasonably foreseen this effect at time of making decision.(a) rationale: a partial closing can have an impact on the rest of the business

by having a chilling effect on the other employees in the other plants – the same as a runaway shop would.

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(b) Why did they not order Darlington to reopen the whole plant? Undue hardship on owners.

(c) Main purpose of the act is to prohibit business use of economic weapons to get future benefits-no unions. If close the plant or entire business w/o ulterior motive-there is no future benefit so no 8(a)(1) violation.

(d) Company can terminate the entire business for any reason. Board no longer has authority over you b/c you’re not the employer over anyone.

d) FACTORS – anti-union motive(1) contemporaneous activities – is there union activity going on at other plants?(2) geographic proximity – how close are all the plants to each other(3) interaction between the plants – you don’t have to have actual organizational

cohesiveness b/w the plants (e.g. Disney owning airlines, gas stations, grocery stores, etc.)(a) FACTORS

(i) persons exercising ctrl over one entity have control over the other(ii) company closes a plant w/ intent to discourage union activity(iii) reasonably foreseeable chilling effect

(4) statements made by employer (history of anti union)C. Remedies for ULPS

1. Reinstatement (could place the employees in another company owned plant) and back pay (back pay comes from 10(c)): the normal result – even if the employee has found other work (sends message to other employees and to the employer that this action won’t be tolerated. Have a record of this for the future. Purpose of the act looks at collective injuries and collective rights…impact was not only on individuals discharged, but other employees as well. Message is: If you want to union organize, your job is protected. – Phelps Dodge. Another remedy is can also issue cease and desist order.a) employee has duty to mitigate damages (by finding work)

2. Temporary Injunction: §10(j)a) limited – the injunction is to stop the company from engaging in ULPs. Hardly ever used b) go to federal district court. This is a quicker way to get an injunction for really unfair ULPs.

The board process can take up to two years, the injunction is quick.c) Standard: court will grand injunction in order to prevent frustration of the remedial purposes

of the Act

IV. SELECTION OF THE BARGAINING REP (elections) §9

A. INTRO1. Remember – a company has three options whenever a union claims majority

a) Recognize the union (as long as you don’t have the thing where the union fraudulently tells you that they have majority status – 8a2 violation)

b) File Election Petition : this could be helpful if you don’t think the union is that popular at the time and you think the union will lose

c) Do nothing and wait for the union to file election petition2. Election Petitions:

a) elections conducted by the board under §9.b) Union files = must show substantial support/interest of the workers (at least 30% of the

members of the would-be bargaining unit-usually at least 60% to win)(1) for rival unions – a rival union only needs to have ONE authorization card to get

on the ballot(a) BUT, it must have at least 10% support (authorization cards) before it can

challenge the eligibility of voters (this would be during the election, see below)

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c) Commission of an unremedied ULP-union will file blocking charges to stop election until ULP’S remedied, or union can wait and file ULP’s with Board after it loses to attempt to get a bargaining order or more likely the election set aside

B. Decertification Petition1. DEF: after an election and the resulting certification, any employee or group of employees can file a

petition alleging that a substantial number of employees NOW assert that a majority of the bargaining unit does not want to be represented

2. Hold Decertification election if board finds that it’s substantial number of employees (30%)C. Grounds for Dismissing Election Petition

1. Voluntary Recognition Bar a) Employees may file a decertification petition up to 45 days after employer voluntarily

recognizes a union. After that, a recognition bar of 6 months or otherwise reasonable time prevents an election.

2. Election Bar a) DEF: no election if valid election has been held in the preceding 12 months (Board

Certification bar rule.) Under Taft –Hartley 9(C(3) extended this bar to an election w/I one year of another election (election bar rule).

b) BUT, if the election is just to talk about increasing the unit size, not barredc) Employer gets one year window/gets break.

3. Certification Bar a) DEF: after a union has been certified, you can’t have a new election

4. Contract Bar a) DEF: after the CBA is signed, the contract itself may have a clause which bars an election

for up to three yearsb) ELEMENTS

(1) K must be in writing(a) Remember: the contract bar provision itself must be in the contract

(2) K must be signed by all parties before a rival petition is filed.(3) K must specify a specific duration (1,2, or 3 years-no longer) – if the K does not

include a duration = not a K bar

-Why permit this/policy? Things change. Any longer terms, could block out rival unions indefinitely. Good for employer…predictable business model.

c) Unlawful Provisions:(1) If the CBA has a couple provisions which are unlawful (hot cargo clause), the

contract bar may still be VALID(2) BUT, where the unlawful provision is an unlawful union-security provision,

contract bar is INVALID(a) e.g. closed shop, contract w/ race/sex discrim, etc.

d) Where K Bar does not happen (rare circumstances but do occur):(1) Defunctness: union unable / unwilling to represent the employees in the union

(failure to hold meetings or fulfill its duties)(2) Schism: local union separates from the national (policy conflicts)(3) Changed Circumstances: changes in the employer’s operations call into question

the appropriateness of the bargaining unite) Contract Termination

(1) ISSUE: after the contract bar is up, when can a rival union petition for a new contract

(2) 90/60 RULE:

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(a) a rival union may NOT file a petition more than 90 days prior to the expiration of an existing contract. BUT, it also may not do it less than 60 days prior to ending.(i) THUS, you have to petition between 60 and 90 days prior to

the K’s end (this is about 2-3 months)(b) Hospitals: have a longer period – 120/90 day (b/c of more complex

issues). Why longer time period? Union nature of h/c, and they are complex entities for determining bargaining units.

(c) Purpose of rule: parties need oppty to negotiate K w/o pressures or interference from rival unions

(3) Premature Extension Doctrine: (a) If the K is renegotiated before the K is thru it’s three year period, and the

parties agree to a new K bar, the new K will NOT bar an election if the rival petition is timely filed.(i) b/c you could technically have it where a new K could never allow

for rival union(b) RULE: If the contract is renegotiated in the second year, this new contract

makes the old one voidD. Selecting Bargaining Unit §9

1. 9(a) job classifications2. Process

a) Most of the time, agreed upon by the parties (employer and union)b) if not agreed, determined by the board:

3. Standard – board determines the “appropriate bargaining unit”, NOT the best4. Restrictions

a) Craft Employees – have right to be separately represented. more like an art than workers.(1) e.g. glass blowers, fine sheet metal work, fancy furniture making (NOT carpenters)

b) Professional/Non Professional Employees – can’t be in groups together unless majority of professionals agree to do so. Professionals defined under Section 212 of the act. Why? Conflict of community of interest between the two groups. When would it be appropriate to combine the two groups? Perhaps when you have so few professionals compared to non-professionals-wouldn’t be efficient to put two professionals in their own group.

c) Security Personnel – must be separate from non-security b/c of conflict of interests. (1) b/c they need to be completely neutral in executing their jobs. If they were part of

one union and not the other, they may not do their job effectivelyd) Generally, unions favor smaller bargaining units. Why? Easier to organize. Employer favors

larger units b/c it creates dissension in the ranks/conflict of interest/harder to organize-all good for the employer.

5. RULE: in determining whether job classifications share a community of interestsa) FACTORS

(1) similarity in earnings(2) similarity in other benefits (hours, terms, etc)(3) similarity in kind of work performed(4) similarity in qualifications(5) geographic proximity(6) continuity or integration of production processes(7) common supervision and determination of labor relations policy(8) history of collective bargaining(9) desires of employees(10) extent of union organization

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6. Hospitals : You look at these separately. There are only 8 bargaining units in hospitals. a) registered nurses, physicians, professional (except registered nurses and physicians),

technical employees, skilled maintenance employees, business office clerical employees, guards, nonprofessional employees (other than technical employees, etc.).

b) RULE: the above control except:(1) extraordinary circumstances – like when an application of the general rule

produces a unit of five or fewer employees(2) cases in which conforming units already exist(3) cases in which a union seeks to combine two or more of the eight specified units

7. Final Order Requirement a) It’s hard to get a bargaining determination overturned. Because the board is not issuing an

order when it determines what your unit is – it’s only “finding” that. b) GEN: The only way to get unit determination overturned is to get a Board. You can only do

that by intentionally committing a ULP – usually 8(a)(5) by refusing to bargain with the unit. Then you can get into federal court to challenge the board order. Extreme measure. As long as board followed procedures, you’re probably still screwed.

8. Multi-Location Units : a) GEN: presumption in favor of single bargaining unit (b/c you don’t share a community of

interests all the time b/c you are in lots of placesb) FACTORS (when multi-employer unit is okay)

(1) central management – especially in labor relations(2) prior bargaining history(3) employee interchange b/w stores(4) independence/autonomy b/w facilities (favor more centralized)(5) similar skills/jobs among employees (6) geographic location-how far apart are they? Should they be looked at as single

units?9. Multi-Employer and Coordinated Bargaining

a) DEF: a bunch of independent employers join together to bargain as a group with a single union which represents employees at each company. They sign a single master agreement and then negotiate subsidiary agreements b/w the individual employers and local unions(1) Why? provides more bargaining power to small employers and to unions (where

jobs are more temporary)b) CREATION

(1) Board can’t create, can only say it’s inappropriate(a) looks to the bargaining history

(2) Consent of the parties by express delegation or participating in bargainingc) DISSOLUTION

(1) GEN: unions and employers have right to withdraw from the multi-employer unit(2) RULE Before Bargaining: provide adequate and unequivocal written notes PRIOR

to the date the CBA goes into effect (or date negotiations start)(3) RULE After Bargaining Starts:

(a) Mutual Consent OR unusual circumstances(i) Unusual Circumstance = where employer faces dire economic

consequences so that his status as a viable business entity is about or will cease OR where there have been a bunch of withdrawals and your bargaining power has shriveled – can’t keep people against their will(a) RULE: an impasse during bargaining does not constitute

unusual circumstances (b/c that’s what you’re agreeing to when you agree to bargain & b/c it’s temporary)

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d) PRESSURE(1) GEN: you can’t impose economic pressure on an employer in an attempt to

preserve the relationship(2) Look to Act: 8(b)(4); (8)(b)(1)(B), 8(b)(3), 8(a)(3)

10. Mixed Union Committees / Coordinated or Coalition Bargaining a) DEF: When a union who represents the employees at the plant wants to bring other

representatives who represent other employees to the bargaining table(1) Note: this is not where you expand a bargaining unit.

b) RULE: (1) not per se unlawful to bring others to the table(2) But make sure you are bargaining your own contract

c) General Electric: (1) GE was confronted by negotiation demands from different groups in its own

company. (2) RULE: You can’t combine different bargaining units - 9(b)(3) violation (you can’t

agree or demand it)(a) but that’s not what they were doing here. They just wanted to bring other

people to the bargaining table. (i) BUT, if the selection is designed to create ill will with the company

= VIOLATIONE. Unfair labor Practice Bargaining Orders

1. GEN: there are two circumstances where a company will be forced to bargain with the uniona) where the company chooses to do so b/c the union demonstrates majority status (remember

– the company must make sure the union is being truthfulb) or where the company has made egregious ULPs and the Board demands that it bargains

with the unit 2. Gissel Packing:

a) RULE: Board can issue a bargaining order requiring the employer to recognize the union and to bargain when an employer has committed ULPs which have made the holding of a fair election unlikely or which have in fact undermined a unions majority and caused an election to be set aside.

b) Overruled Rule: if the company is not going to recognize the union when it showed majority support, company must show good faith reason why it didn’t recognize this(1) TODAY, the good faith requirement is not need. You can simply refuse to

bargain w/o an election3. STANDARD: whether the ULPs interfered with the election in such a way as to preclude a fair

electiona) Categories of ULPs

(1) So pervasive and outrageous as to justify a bargaining order without first confirming union’s majority

(2) when the employer’s conduct undermines the union’s majority strength and impedes the election process(a) requires proof that the union was supported by majority before the

employer’s conduct(3) minor ULPs which have only minimal impact on the election and which would not

by themselves ordinarily support the issuance of a bargaining order(a) designed to remedy past election damage and deter future misconduct

4. Linden Lumber: a) RULE: union has burden to initiated elections by filing election petition. The company is not

required to do ANYTHING regarding union’s demands until there has been an election(1) NOTE: it can do something (file it’s own petition, recognize the union) but it is not

required to do so.

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b) OLD RULE: required the company to recognize unless there was good faith that the union’s majority status was not in fact majority. (1) NOW the burden is on the union to show bad faith on behalf of the employer.

(a) i.e. must show ULPs in order to make an election.

V. NEGOTIATION OF CBA

A. Statutes1. §9(a) – representatives selected are the exclusive representative of all the employees in the unit: 2. §8(a)(5) – ULP for employer to refuse to bargain or to bargain with any other group / person other

than the exclusive representative3. §8(b)(3) - same as above but for the union’s part4. §8(d) – duty to bargain in good faith about wages, hourse, and other terms of employment. 5. §8(c) – free speech clause. you can communicate with your employees and explain your position as

long as there’s no benefit in it for you6. §8(a)(1) – right to bargain collectively. No threats or promises of benefits or showing that this is a

weak union. B. Contracts with Individual Employees

1. RULE: negotiating for an individual contract is okay b/c it’s a separate K between the parties as long as the terms don’t take away provisions from the CBA – JI Case Co.a) BUT: these are going to be looked on with suspicion.

(1) GEN: individual Ks are okay when there’s a great variation in circumstances of employment, the CBA may be only minimal and the individual Ks will provide more specific benefits

2. The CBA is not a contract but a constitution of sorts. C. Employer Communication w/ Employees During Bargaining

1. INTRO: §8(a)(5) does not preclude the company from communicating stuff during the bargaining time (b/c prohibiting the communication would violate 8c, which is freedom of expression. a) BUT - NOT PERMISSIBLE

(1) closed door scenario(2) coercive speech(3) threat of reprisal(4) promise or benefit(5) communicating w/ intent of undermining the union’s support

D. Majority Rules1. RULE: minority union members (i.e. members who disagree with the majority vote on a CBA

provision) may NOT engage in unilateral bargaining a) this circumvents the union and the majority rule/exclusive representative thing

2. Emporium Capwella) Four employees objected to the majority’s vote to have arbitration and picketed and urged a

consumer boycott. (1) demanded to meet with the company president over the matter

b) HELD: unlawful because this bypasses the union’s right to bargain directly with employer. A union represents ALL members of the union.

3. Union’s Duty – fair representation. a) Steele v. Louisville & Nashville RR

(1) Union must represent all the employees in the union in good faith, even non-union members

(2) You can make reasonable choices, however (like based on seniority). (3) But you can’t discriminate on race and stuff

4. Union Member’s Remedies - a) file Title VII claim against employer in court

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(1) if it’s a discrimination matter and you want to deal with it without the unionb) contact EEOCc) try to decertify the uniond) drop out of the union and just pay the minimum fees

(1) but here you lose your voice, so it’s kind of not that great...e) Sue the union for violation of duty of self representation

5. §9(a) EXCEPTIONS a) Generally §9a permits employers to hear grievances from the employees without violating

§8a5 (duty to bargain in good faith w/ exclusive representative) (1) but that’s not what happened in Emporium- there, they wanted to actually bargain

on behalf of the minority union members. You can’t do this. BUT you can go to your employer with your own individual grievance (b/c you’re not bargaining on behalf of others)

b) RULE: As long as the adjustment to the is not inconsistent with the CBA and the union has opportunity to be present

6. Protections for Union Members a) Community of Interests

(1) In making the bargaining unit in the first place, the Board looks to the factors, above, to try to ensure that the unit members are going to want the same things

b) Decertification petitions(1) but Remember – these are subject to contract and election bars

c) Regulation of union affairs: Landrum-Griffin Act ensure that members have right to speak at mtgs, to vote, to seek office

d) Freedom not to Join union: you can always choose not to be a full member and instead by financial core member

e) Some Bargaining Permitted: individuals can bargain over nonmandatory subjectsf) Direct Bargaining: 9(a) exception, aboveg) Fair representation duty on union’s part

E. Duty to Bargain in Good Faith - §8(d)1. INTRO: under the statute, you have to

a) meet at reasonable times – meaning, you must bargain w/o unreasonable delays(1) e.g. violations: when company demands you bargain over phone, or requires that

you put every single proposal in writing w/o meeting in personb) confer in good faithc) execute a written agreement (if requested)d) NOTE: does not require that you actually agree or make concessions

(1) BUT, Board will look to the over all justification for specific proposals and the willingness to make concessions in the first place

(2) FACTOR: Totality of the conduct considered2. GOOD FAITH DEF

a) an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement

b) ELEMENTS: Montgomery Ward(1) open mind(2) sincere desire to reach agreement(3) sincere effort to reach common ground

3. BAD FAITHa) LOOK TOO:

(1) substance of the proposals made at the bargaining table(2) or by other dilatory tactics

4. RULE: No surface bargaining. But you may have hard bargaining.

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a) ELEMENTS(1) Look to totality of the conduct (instead of isolated incidents)(2) no legitimate business reason on company’s party in refusing to bargain(3) no indication of present intention(4) demand that union make huge concessions without making any themselves

b) EXAMPLES of bad faith(1) Insistence on a non-mandatory Subject: e.g. insistence on presence of

stenographer as precondition to bargaining, etc. (a) RULE: you can’t insist on a non-mandatory subject as a prerequisite to

bargaining at all(2) Willingness to compromise: Remember – you don’t’ have to make concessions,

but you must demonstrate willingness to compromise. (a) RULE: Can’t insist on stuff that you know is predictably unacceptable to

a union (like you want them to make a huge concession which would completely undermine their importance

(3) Hard bargaining on Specific Subjects: you may engage in hard bargaining BUT if you engage in it for the purpose of undermining union’s authority = VIOLATION(a) Examples: you can infer from employer’s hard position on stuff like

security, wages, dues check off, management rights, arbitration clauses, and no strike clause

c) A-I King Size Sandwiches(1) Company demanded a huge, incredibly broad management rights provision without

making any concessions in return. Wanted union to give up right to strike, but made no concessions

(2) VIOLATION: b/c they didn’t give anything in return and demanded that union give up it’s bargaining power

(3) Zipper Clause: clause in which employer and union agree not to reopen or bargain over any term of the agreement during the CBA’s term. They’ve already agreed to it, and zip it up not to be reopened

d) Hard Bargaining v. Surface Bargaining(1) If the employer has greater economic strength and is just exercising it, that’s okay. (2) The issue comes up whenever the company deprives the union of everything and

renders it powerlessF. Duty To Provide Information

1. GEN: If an argument is important enough to present, it is important enough to require some sort of proof of its accuracy

2. RULE: a company must provide information upon demand IF employer claims an inability to pay (i.e. if they cite economic reasonsa) BUT – if they just say they are unwilling to pay, this is hard bargaining and not subject to

disclosure – Truitt Mfg. Co.3. Remember: can’t pay v. unwillingness to pay (fine line)

a) Unwilling = the company would be a competitive disadvantage if they made the concession, etc.

b) Can’t pay = only arises when company says it cannot presently pay the wages and benefits4. Union’s Duty

a) Union also has this dutyb) e.g. if the union is saying that their members are on food stamps etc. b/c of their wages, they

are most likely going to have to DISCLOSE – even though this is personal informationG. Economic Weapons

1. Union Work Slowdowns a) RULE: not protected under §7 but not prohibited under 8(b)

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b) Insurance Agents’ Int’l Union(1) During negotiations, insurance agents essentially sabotaged the operation of the

business by slowing down (reported late to work, refusing to complete assignments, leave work early, picketed)

(2) HELD: not a ULP b/c they’re just using their economic weapon. BUT, this is not protected under §7 as a concerted activity(a) It’s not prohibited, but because it’s not protected, the company has the

option to fire them without reinstating them2. Unilateral Changes By Employer

a) RULE: employers MAY NOT make unilateral changes of mandatory subjects during the course of collective bargaining(1) this is a per se refusal to bargain

b) Katz:(1) Employer made unilateral changes to sick leave, wage increases, merit increases.(2) VIOLATION – b/c during negotiations, etc.

c) EXCEPTION– LAST BEST OFFER(1) RULE: when you’ve reached a true impasse or deadlock you can implement

your last best offer(2) DEF: last best offer is JUST that – your last best offer. You MAY NOT change

your last best offer, only implement the exact provisions.(a) ALSO, you may not implement a last best offer that gives the company

way too much power and takes away union’s bargaining power(i) e.g. company can’t implement a merit increase prog which gives it

total control over decide merit increases. McClatchy(a) Policy: Company has gotten what they wanted, and

union’s options (strike) would do nothing to break the impasse. You don’t want to encourage company to make ludicrous demands so that they reach impasse and get what they want.

(3) Policy: implementing last best offer acts as a kick start to end the impasse. Company using it’s economic leverage

(4) TEST: whether implementing the last best offer will move negotiations forward3. Boulwarism

a) DEF: employer goes into bargaining stating that this is its last best offer and refuses to listen. Take it or leave it attitude – General Electric

b) TEST: does the take-it-or-leave it attitude still provide the union time to respond or at least make another offer? (1) IF yes – this is just hard bargaining

(a) where union can strike, reject, negotiate, etc.(2) IF no (and the company implements it) = violation

H. Remedies1. pg. 75 of Bible

VI. SUBJECTS OF THE CBA

A. INTRO1. Mandatory Subjects: wages hours, and other terms and conditions of employment

a) refusal to bargain about these subjects = VIOLATION2. Permissive: you can but don’t have to bargain. Also, if you refuse to bargain unless you agree to a

permissive subject = VIOLATION (see above) – Wooster (see below)3. Illegal Subjects: Neither party may insist upon an unlawful provision under the Act.

a) Wooster:

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B. MANDATORY SUBJECTS1. GEN RULES

a) Violation if you refuse to bargain on mandatory subjectsb) employer cannot make unilateral changes prior to impassec) No individual agreements about these subjects UNLESS union waives its right to preempt the

agreements2. Wages

a) basic hourly rates of payb) paid holidaysc) severance payd) bonusese) pension plansf) group health and insurance plansg) profit-sharing and stock purchase plansh) stock purchase plansi) merit wage increasesj) employee cafeteria and vending machine prices

3. Hoursa) particular hours of the day and days of the week during which employees may be required to

work4. Other Terms of Employment

a) DEF: vitally affects employees. (1) May related with regard to third parties who still have a K or something that vitally

affects the relationship. (a) e.g. retirees getting health insurance NOT a mandatory bargaining b/c

does not affect current employees.(i) BUT compare: if the health benefits are for spouses/children it IS

mandatory b/c vitally affects current employee(2) Condition of Employment: germane to the working environment. i.e. if it has the

potential to affect the continued employment and does not represent a managerial decision at the core of entrepreneurial control(a) which is...

(i) fundamental to the basic direction of the enterprise(ii) not entrepreneurial in character

(3) LOOK TO: (a) Current Industrial Practice: how have the parties treated the subject in

the past, what do other companies do with regard to the subjectb) RELATIONSHIP Affected

(1) LOOK TO: A mandatory subject is between the employer and the employees. The provision must set a rule with regard to the employer/employees.

(2) e.g. A ballot provision which demands that the Union vote on the company’s last best offer before going on strike is permissive b/c this concerns the relationship between the union and employees – not employees and employer

c) GEN:(1) grievance and arbitration provisions(2) layoffs and recalls(3) no strike and no lockout provisions(4) discipline and discharge(5) sick leave(6) safety and health regs(7) definition of bargaining unit work

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(8) seniority(9) union security provisions(10) hiring halls(11) management rights clauses(12) plant rules (e.g. breaks, dress codes, absenteeism, lateness, parking, safety,

fighting)(13) non discrimination provisions(14) scheduling and arrangements for the negotiation sessions(15) physical exams(16) drug/alcohol(17) polygraph testing

d) Drug and Alcohol testing (1) RULE: mandatory subject when it’s of current employees

(a) BUT, testing of job applicants is not mandatory b/c they are not considered employees under the act and because their tests don’t vitally affect the employees

(2) Johnson Batement(a) Rule that all employees who were injured on the job to have drug test.(b) HELD: Mandatory b/c this has a direct potential to affect your continued

employment.e) Subcontracting

(1) RULE: mandatory when company replaces union employees with non-union employees(a) Remember to make sure that you’re replacing union employees w/ non

union employees who would otherwise be part of the same unit(i) e.g. Atkins Transfer where the two repairmen wanted to join the

union and did. The company laid them off and hired subcontractors. (a) b/c they were still considered at-will employees and there

was a legit economic reason(2) TEST: the sub contractors must do the exact same work with the exact same

conditions as the union employees(3) FACTORS – company doesn’t have to bargain IF...

(a) motivated solely by economic reasons(b) past practice to subcontract in which they didn’t bargain(c) no substantial change from that past practice (Company is maintaining the

status quo)(d) no significant detriment to unit employees

(4) First National – (a) cleaning company had K with nursing home, which it decided to terminate

(i) HELD: pure business decision b/c changed the scope and direction of company(a) The union couldn’t have affected anything with the K at all

– the K was with the company and the nursing home solely, so not mandatory

f) Surveillance cameras (1) Where employer suspects theft and installs cameras to catch it

(a) MANDATORY b/c germane to working environmentg) Plant Relocation

(1) Dubuque(a) P lant moved from one place to another in order to avoid the union. They

did offer economic reasons (that it’d be cheaper) but mandatory subject 22

because the union could have still tried to address this (make concessions)

(2) TEST PURE MANAGERIAL DECISION (a) basic change in nature of employer’s operation(b) change in scope/direction of enterprise(c) work performed at new location varies significantly from the work

performed at former plant(d) work performed at old plant is to be shut down completely

(3) Employer Defenses(a) Affirmative Defense: show you’re not moving b/c of labor costs but

because of other reasons, like tax price (i) something union has no control over

(b) Hard Bargaining: just give the union a chance but make sure it’s NOT surface bargaining – Remember – must be good faith bargaining

(c) Mixed Motive: if you say you’re moving for the weather, make sure that’s why you’re actually moving and someone won’t discover your true anti-union reason

(d) OR employer can show by preponderance of the evidence(i) Labor costs were NOT a factor in the decision(ii) the union could not have offered anything that would have

changed the decision to relocateC. PERMISSIVE SUBJECTS

1. DEF: Not mandatory or illegal. Refusal to bargain about these does NOT constitute a violation.a) BUT, when you refuse to bargain about mandatory subjects unless a permissive subject is

agreed to = VIOLATIOND. ILLEGAL SUBJECTS

1. RULE: VIOLATION if you insist upon the inclusion of an illegal provision. And if you agree to one, the provision is VOID and unenforceable

2. EXAMPLESa) closed shop provisions (8a3 violation)b) hot cargo clauses (8e violation)c) hiring hall provision (gives preference to union members)d) segregation of employees on basis of race in joining union (violates duty of fair

representation)3.

VII. STRIKES, PICKETING & BOYCOTTS

A. INTRO1. ANALYSIS:

a) Is this concerted employee activity protected or unprotect?(1) If protected = employer limited on disciplining, discharging, etc. (b/c §7 rights)

(a) protected = concerted activity(i) activities of employees who have joined together in order to

achieve common goals and pursued for union-related purposes (involving collective bargaining or other mutual aid and protection)

(ii) is protected even when a union has not been yet selected as bargaining representative(a) .

2. STATUTORY FRAMEWORK

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a) RULE: Concerted activity is either prohibited by §8, protected by §7 or unprotected (neither prohibited or protected)

b) Section 7 – Rights of Workers(1) right of employees to engage in other concerted activities for the purpose of

collective bargaining or other mutual aid and protectionc) Section 8 – types of unprotected concerted activity

(1) §8(b)(4) – Secondary Pressure(a) GEN: prohibited from exerting economic pressure on a firm with which the

union does not have a dispute (in order to cease the business between the secondary and primary employer)

(b) Publicity Proviso: if you have truthful public advertising that tells the public that the product produced by the primary employer is being distributed by the secondary employer = PERMITTED(i) i.e. can distribute handbills – not picket

(c) Strikes by non-certified union = VIOLATION (8b4C)(i) you may not strike or picket for recognition when there is already

a union in place(2) §8(b)(7)

(a) currently certified union MAY picket for recognition or organization(b) Non-Certified Union:

(i) MAY NOT picket when another union is fully recognized AND(a) no question exists concerning representation(b) valid election has been held in the last 12 months.

(ii) MAY picket but not to exceed 30 days unless a representation petition is filed.

(c) Publicity Proviso(i) May picket when the intent is to truthfully advise the public that

the employer does not employ members of (or have K with) a union UNLESS: (a) an effect of the picketing is to induce any individual

employed by any other person in the course of his employment not to pick up, deliver, or transport any goods or not to perform any services

B. CONCERTED ACTIVITY1. GEN: broadly interpreted2. When union is in place

a) RULE: concerted activity when employee acts to enforce a provision of an existing CBA(1) e.g. truck driver is part of a union and refuses to drive unsafe truck. He was

asserting his right b/c his CBA provided that he’d be provided a safe truck, which the company “breached” and so he was engaged in concerted activity even though he was just one person. City Disposal(a) Remember – employee is still under obligation not to engage in violence

or something in violation of the act AND if there’s a no strike clause, he may not strike b/c that’d be in violation of the CBA

b) Right to have Union Rep at meetings(1) RULE: you are entitled to have union rep at meetings in which your job security is

threatened (i.e. you’re accused of stealing, doing drugs, etc.) – when you could be disciplined/discharged (a) b/c substantial concern(b) this is because you may not know your rights and all that

(2) BUT no rep where(a) schedules or productivity concerns

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(b) routine duties of employment3. Absence of Union

a) Coworkers at Meetings?(1) RULE: Co workers MAY NOT be present at meetings b/w employer and employee

- IBM(a) b/c of confidentiality concerns (b) no mutual aid or protection of all workers at these meetings

(i) coworker is only working for individual employees’ rights and not all employees. Unlike shop steward.

(2) RULE: no right to have union representativeC. UNPROTECTED CONCERTED ACTIVITY (i.e. not protected concerted activity under §7)

1. Political Speecha) RULE: employee has duty of loyalty to company – Eastex

(1) therefore, you can only handbill about labor matters and not about practices in which the company is engaging.

2. Unlawful Objective3. Improper Methods

a) e.g. work slow downs4. Disloyal Conduct

a) Not protected under §7b) RULE: you must protest stuff related to labor stuff

(1) you can’t attack finances, public relations, and the like b/c they have nothing to do with labor disputes

c) RULE: the truthfulness of the information does not matter(1) BUT, if you put on label of cans of paint that “not made by union members” this is

OKAY b/c it’s publicity proviso but you MAY NOT say that the paint is chipping or anything even if it’s true – Patterson-Sargent

D. Employer Response To Concerted Activity1. Replacement of Economic Strikers:

a) TEST:(1) Economic Strike or ULP Strike? (2) REMEMBER: employees will lost their rights to reinstatement / preferential hiring if

the strike was conducted in an unlawful manner – 10(c)(a) BUT SOMETIMES in ULP strike, the stiker may still be entitled to

reinstatement if he engages in unlawful activity(i) Balance the ULP versus the unlawful conduct

(a) BUT they usually never reinstate(i) e.g. has been held that there’s no reinstatement

if you engage in violence(ii) as long as the person was not discharged for cause

b) IF ECONOMIC STRIKE:(1) DEF: employees who strike to bring economic pressure on an employer during

bargaining(2) RULE: Employer may hire permanent replacements

(a) This is not a 8(a)(1) or 8(a)(3) violation because you’re not actually firing the workers for their activity, you’re making a business decision.

(3) Mackay: (a) RULE: striking workers placed on preferential hiring list – even though

they’re not entitled to reinstatement (i) employees get first bid if the replacements are laid off / fired / quit

(b) employer may not discriminate against strikers by refusing to reinstate them solely b/c of their activity in the union / strike

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c) IF ULP STRIKE:(1) DEF: employees who strike to protest an employer’s ULPs(2) RULE: Employer must reinstate employees

(a) Must be a sole ULP striked) CONVERSION DOCTRINE

(1) DEF: when workers initially strike for economic reasons but they later turn it into a ULP strike b/c the employer committed ULPs during the strike.

(2) RULE: Strikers replaced during the initial economic strike phase are NOT entitled to immediate reinstatement BUT strikers replaced after it converts into a ULP strike ARE entitled to reinstatement.

e) LOOK TO: the cause of the strike2. §8(a)(3) VIOLATIONS - Interference, Discrimination, and inherently destructive Conduct

a) INHERENTLY DESTRUCTIVE (1) RULE: presume intent when the conduct is so inherently destructive of §7 rights

(a) Erie Resistor(i) Company granted super seniority to all replacements and all

returning strikers. VIOLATION(ii) RULE: there was not specific evidence of subjective intent is

3. LOCKOUTSa) RULE: After bargaining to impasse, an employer does NOT violate 8a1 or 8a3 by

temporarily shutting down its business and laying off employees in order to bring economic pressure on the union(1) this jump starts the bargaining process

4. BENEFITS – What can employers do to them during a strikea) RULE: If the benefit is received as a result of the work the company has put out (like holiday

bonuses), the company does NOT need to give these to you when you are on strike b/c you aren’t producing money when you’re on strike and therefore not putting anything into the “pot” = continuity of work effort

(a) Vacation Pay: it is VIOLATION when the company tries to take away your vacation time that you’ve already received under the CBA b/c you’ve already been entitled to it and they can’t take that away(i) Great Dane: the company tried to say that b/c the CBA had

expired, they were no longer entitled, but they were5. Crossing Picket Lines

a) RULE:(1) Unlawful Picket lines (e.g. in violation of no strike/picket clause) =

UNPROTECTED(2) At your own company = protected(3) At another company – considered concerted activity BUT UNPROTECTED b/c

secondary boycott in violation of 8(b)6. Disciplining Union Officials

a) GEN RULE: VIOLATION 8(a)(1) & 8(a)(3) if the company disciplines union officials more severely than other employees(1) BUT – if the union leaders are actually leading in the unlawful activity, then

they MAY be disciplined more(a) because you’re in charge of people and have substantial influence on their

actions(i) PLUS, it’s your DUTY as a union leader to ensure the CBA is

being followed(a) Remember: board is going to look at it differently –

they’re going to look in terms of whether the company was

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violating the Act. But the ALJ (arbitrator) is looking to see whether you violated the CBA

b) Metropolitan Edison(1) CBA had no strike provision. Union members decided to picket anyway in violation

of CBA. Company heavily disciplined the union officials for participating.(2) HELD: VIOLATION. 8a1 and 8a3 Discriminating amongst union employees. Has

the bad effect of discouraging people from taking leadership roles – violation of §7 rights. (a) Here, the union officials didn’t instigate or lead the picketing, just

participated in it. (3) NOTE: CBA may include a waiver of the union official’s right and require that he

take affirmative steps to end the dispute. Clear and unmistakable waiver(a) THEN, no violation b/c it’s in the agreement that he be disciplined more

heavilyE. Workers’ Right to Vote During Strikes

1. FOR ULP STRIKERSa) RULE: Right to vote in decertification hearingsb) RULE: Right to vote in ratifying the CBA is controlled by the union’s bylaws / constitution.

They’ll tell you whether you have the right to vote or not.2. FOR ECONOMIC STRIKERS:

a) RULE: Right to vote in decertification hearings(1) BUT: if the strike has last for MORE THAN 12 MONTHS = NO RIGHT TO VOTE

b) RULE: Right to vote in ratifying the CBA is controlled by the union’s bylaws / constitution. They’ll tell you whether you have the right to vote or not.

3. FOR REPLACEMENT WORKERSa) During ULP Strikes = NO RIGHT to vote b/c you’re going to be replaced anywayb) During Economic Strikes = RIGHT to vote b/c you’re a permanent employee at that point

VIII. HANDBILLING, PICKETING & STATE REGULATIONS

A. INTRO1. Con Law Issues

a) Right to join a union = freedom to associateb) Employee property rights – 5th amendment (no take life lib or prop w/o due process)c) Right to strike- is in the Act (and can be taken away by the CBA

2. Picketing v. Handbilling a) Picketing is inherently coercive b/c you’re being persuaded by the action

(1) more than speech, it’s a show of economic powerb) State Reg: They can only regulate, not put a blanket prohibition on it b/c guaranteed by fed

lawc) Handbilling = you’re persuaded by the message, not the action

(1) DeBartolo – companies can regulate where you give out handbills (can make a mall entrance inaccessible to you or something if you want)(a) can also make a prohibition against solicitation in general but remember:

you can’t discriminate – if you allow one person in, you allow all in (Lechmere)

B. §8(b)(7) VIOLATIONS - PICKETING1. ANALYSIS

a) IS THIS PICKETING?(1) IF NO = end of analysis, not dealing with 8(b)(7)(2) TEST: must be inherently coercive, confrontational

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(a) doesn’t require you to have to have signs. (3) Signal Effect – handbilling is considered picketing if it has a signal effect

(a) If the actual impact of the communication is to signal to other employees not to do business then it’s picketing(i) i.e. truck drivers don’t deliver to the company any more. Look at

the company. To some companies, two truck drivers refusing to deliver isn’t a huge deal, but to others, it is

b) PURPOSE OF PICKETING?(1) Objective = recognize/bargain = BANNED (if uncertified union)

(a) BUT, if a picket line just informs the public that the place is not involved in a union, NOT banned b/c purely informational

(b) Organization = BANNED(c) BUT: election bar applies

(2) Objective = ULP or political issues(3) Objective = Area Standards NOT banned

(a) i.e. where the picketing is to protest against an employer for paying lower salaries than the salaries paid by other employers in the area which are represented by unions.

(b) usually requires statement by the union that it’s not seeking recognition or organization

c) CERTIFIED OR UNCERTIFIED UNION? (1) Currently certified = ALLOWED to picket for recognition or organization(2) Not Certified =

(a) BANNED in 2 circumstances(i) If another union has been lawfully recognized AND no question

concerning recognition(a) NOTE: certification is not required (i.e. company can

choose to recognize w/o election(ii) If valid election has been held in last 12 months

(a) i.e. election ban applies(b) NOTE: If the picketing is ALLOWED (for uncertified unions), then it may

only picket for 30 days or less. (i) NOTE: This may be less than this if there’s violence or

intimidation(3) Is another union certified?

(a) IF YES = noncertified union BANNEDd) ELECTION IN LAST 12 MONTHS?

(1) Election bar appliese) HOW LONG HAS THIS BEEN GOING ON?

(1) NON Certified = no more than 30 days OR if you’ve filed a petitionf) HAS THERE BEEN A PETITON FOR ELECTION FILED?

(1) NOT filed = you only have 30 days if non certified union(2) FILED = you can picket until the election

g) IS THE ELECTION EXPEDITED?(1) RULE: Only when ULP charge has been filed by employer, the Board shall direct

an election “forthwith” without an investigation or requiring a showing of substantial interest

h) PUBLICITY PROVISIO APPLICABLE?(1) No time limit to picketing if PURPOSE is to truthfully advise the public UNLESS

(a) an effect of such picketing is to halt pickups or deliveries or the performance of services

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(b) NOTE: only applies to situations defined in 8b7C, not to the other subparagraphs

(2) NOTE: this type of picketing will be protected even if it isn’t not the only objective but is coupled with recognitional or organizational activities

(3) Applies to noncertified and certified unions(4) Remember: make sure it’s not signal picketing(5)

C. SECONDARY PRESSURE – Picketing 1. DEF: economic pressure by the union on a person with whom the union does not have a dispute

(secondary employer) in order to force that person to cease doing business with another employer with whom the union does have a dispute (primary employer)a) Neutral Employer: prohibition on secondary employer is to protect neutral employers

2. HIST – a) Original NLRA didn’t deal w/ secondary boycotts.

(1) Taft Hartley Act of 1947 amended to prohibited specific kinds of secondary activity. b) NOW: §8(b)(4) declares it ULP for a union to

(1) engage in a strike, refuse to handle goods or perform services, or to induce any individual to strike or refuse to handle goods or perform services OR

(2) to threaten or coerce any person using or dealing in another person’s products or to cease doing business w/ another person IF THE OBJECT IS:(a) forcing or requiring any person to cease using, selling, etc etc in the

products of any other producer, processor or manufacturer(a) NOTE: does NOT DEAL WITH PRIMARY DISPUTES!!!

(3) AND: no hot cargo clauses - §8(b)(4)(A)(a) DEF: clauses (in CBA, I assume) where the employer and the union agree

that the employer will not deal with a certain other employer.(i) because this kind of clause is exclusively under management

control.

3. Contractors / Subcontractor’s a) GEN: Because contractors are so different than regular employers (i.e they’re shorter

duration employers, etc.), diff rules applyb) Primary v. Secondary Activity

(1) ISSUE: General contractors will make several agreements with several subcontractors. (a) §8(e) excludes the general contractors from the hot cargo clauses

(i) REMEMBER: hot cargo clauses are clauses (in CBA, I assume) where the employer and the union agree that the employer will not deal with a certain other employer.

(2) Look to amount of Subcontractor Independence(a) A lot of general contractors will allow some subcontractors more

independence than others. (i) Some, though, are more controlled by the general contractor

(3) RULE: When primary dispute exists with a subcontractor who is nonunion, and the union puts pressure on the general contractor to cease doing business with the subcontractor = VIOLATION(a) Determining who the primary dispute is with:

(i) Denver Bldg:(a) RULE: When a primary dispute exist with a subcontractor

who is nonunion, and the union puts pressure on the

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general contractor to cease doing business w/ the subcontractor, VIOLATION secondary boycott

(b) The problem is that the union has a dispute with the general contractor and the subcontractor at the same time. Gen Contractor b/c you don’t want him hiring subcontractor’s with non union employees. Subcontractor because you don’t want him

(c) THUS: primary dispute w/ contractor and subcontractor at the same time(i) BUT: the court views the gen contractor and

subcontractor as separate employers so the secondary dispute is ALSO w/ the subcontractor or gen contractor (depending on who you’re analyzing is the primary employer)

(ii) SO VIOLATION 8(b)(4).4. Ambulatory Sites :

a) DEF: temporary worksite used by primary employer. (1) e.g. a truck delivery spot at a retail store, ship located in dry dock(2) this is likely at a secondary employer location

b) RULE: ambulatory site becomes situs of the primary dispute even if this is a temporary location at the secondary employer

c) BALANCE: Rights of secondary employer versus the union’s right to picketd) Dry Dock

(1) Boat company hires sailors. They dock at the Moore Dry Dock. They petition on the Moore Dry Dock. (a) HELD: the primary employer was the company, and they were technically

picketing on the secondary employer’s premises (the dry dock) BUT, b/c there was no other way for them to get to the

(b) sailors, they had to picket there.e) TEST:

(1) When situs is located on secondary employer’s premises(2) At the time of picketing, the primary employer was engaged in normal business at

the situs(3) picketing is limited to places reasonably close to the location of the situs(4) picketing discloses clearly that dispute is with primary employer(5) CONSIDER: how feasible it is to actually picket at the primary employer

5. ALLY DOCTRINEa) RULE: a union may lawfully picket a company which accepts struck work

(1) DEF: work that would not have been sent to or performed by it except for the labor dispute between the union and primary employer

b) Douds(1) the company went on strike and hired scabs from another companies. They had

started to subcontract to the other company before the strike. After the strike began, the company subcontracted all its work to the other company(a) This made the other company NON neutral and therefore, the union

COULD PICKET at the other companyc) NEUTRAL EMPLOYER:

(a) wholly unconcerned with the dispute between the primary employer and its employees

(b) HERE: the other company was not completely neutral b/c their wages were paid because the union was on strike

6. PICKETING AT GATES

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a) ISSUE: Can an employer set up special reserved gates for neutral employees where picketing CANNOT occur?(1) YES as long as....

b) RULE: If the work performed by the people using the reserved gate is related to the normal operations of the employer = NO VIOLATION if you picket there(1) e.g. truck deliveries etc are primary activity

c) REQUIREMENTS: GE(1) Separate gate marked and set apart from other gates(2) work done by those entering must be unrelated to the normal operations of

company(a) e.g. construction work to expand the factory

(3) work must be of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations

d) RULE: union can picket at the primary employer’s place to secondary employers who are customers or suppliers so long as the union does not induce or encourage the employees of any employer to engage in a strike or a concerted refusal in the course of their employment

7. PUBLICITY PROVISO of §8(b)(4)a) DEF: IS AN EXCEPTION TO SECONDARY BOYCOTTSb) REMEMBER: Secondary Boycotts

(1) 8(b)(4)(i-ii) both prohibit secondary boycotts. (2) 8(b)(4)(ii) says that you MAY NOT threaten, coerce or restrain anyone who’s

engaged in commerce WHERE the object is to:(a) 8(b)(4)(B) – to force or require any person to stop using, selling, handling,

transporting, or dealing with the products of any OTHER producer or to stop doing business with that person.(i) This is prohibiting secondary boycotts because of the

language in the Provided – it says that as long as you’re doing something with the PRIMARY employer that is otherwise lawful, you are not in violation

(3) RULE - struck product(a) RULE: Apples case. It’s okay to go outside and picket for the people not

to by Washington Apples – because that is the dispute you’re having – Fruit & Vegetable Packers & Warehousemen(i) i.e. Washington Apples is your primary employer(ii) BUT, you can’t say don’t patronize this grocery store because

that’s secondary boycott(b) RULE: The picketing MUST NOT: be for

(i) Merged Products : when the primary employer’s product is merged or integrated into the secondary employer’s goods so that the secondary employer cannot sell the goods separately – VIOLATION(a) e.g. bread company goes to restaurant to picket the bread,

steel products(b) economic loss is not part of the analysis to look to

UNLESS it’s a major part of the revenue(ii) Major part of Revenue : VIOLATION when struck product is the

source of the major part of the secondary employer’s revenue(4) the PUBLICITY PROVISO

(a) Sets out the rules where it is OKAY to go to these secondary businesses.

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(b) GEN RULES(i) it must NOT be picketing. If you are engaged in picketing, you

are NOT PROTECTED(a) Remember – handbilling can turn into picketing. See

below(ii) It must truthfully advise the public:

(a) that a product is produced by the employer with whom you have the primary dispute

(b) AND that the product is distributed by the secondary employer

(c) AND must NOT induce others to refuse to do business with the secondary employer(i) i.e. must not turn into picketing

(c) Hot Cargo Clauses:(i) DEF: the union and employer agree that the employer will refrain

from dealing in the products of another employer or from doing business w/ another person(a) VIOLATION and prohibited

(ii) If you have one of this, that portion of the CBA is INVALID BUT the rest of the CBA remains okay.

D. PICKETING REVIEW1. IS THIS PICKETING?

(1) If it’s handbilling you do NOT fall under 8(b)(7) (2) If it’s handbilling you do NOT need to see if you fall under the 8(b)(4) Publicity

Proviso section because you can handbill and it’s okay(a) handbilling is okay at secondary site (as long as not coercive)

(3) If it’s handbilling make sure you aren’t having the effect of coercing people to not conduct business at the employer

2. WHO IS DOING THE PICKETING?(1) Look at 8(b)(7) analysis to make sure you’re staying within the exceptions or doing

lawful picketing(2) Noncertified v. Certified union picketing

3. AGAINST WHOM IS THE PICKETING DIRECTED?(1) Secondary Employer – MUST fall into 8(b)(4) Publicity Proviso(2) Primary Picketing – MUST be lawful under 8(b)(7) analysis

4. WHAT IS THE PURPOSE OF THE PICKETING?(1) Organization and Recognition = 8(b)(7)(2) Secondary Boycott = 8(b)(4)

IX. THE COLLECTIVE BARGAINING AGREEMENT

A. INTRO1. Nature of CBA:

a) Courts call it a constitution and not a contract(1) if it were just considered a contract, the CBA would only fall under state contract

law. But you want to go to federal court, so it’s considered more of a constitution. b) Closed shop clauses = VIOLATIONc) Covers term of the agreement plus plant customs and practices in the industryd) Governs terms of employment, but employees are hired and fired separatelye) §301 – if one of the parties refuses to follow the terms of the CBA, enforced in court under

§3012. Grievance Procedure

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a) Grievance = any dispute arising b/w the parties (broad); dispute regarding the interpretation and application of the agreement (narrow)

b) Process:(1) employee/union goes to company supervisor(2) it goes throughout the next higher companies until:(3) the grievance is the subject of negotiation b/w high union and company

officials(4) If that doesn’t do it, arbitration

c) Arbitration options(1) panel of arbitrators(2) permanent designated arbitrator(3) expedited arbitration process(4) American Arbitration Association(5) Etc.

B. Judicial Enforcement 1. GEN RULES

a) Fed Courts have jurisdiction to hear the dispute and can create body of precedent – Textile Workers & (1) Taft Hartley Act - §301(a)

(a) suits for enforcement of a CBA may be brought in fed dist courts(b) Individual Employees : may also file §301 against an employer for

“uniquely personal rights” und3er the CBA (e.g. special employment conditions or wage rates)

(2) REMEMBER: must exhaust all administrative remedies before going to courtb) State courts = concurrent jurisdiction (but most likely, remove it to fed court) – Charles Dowd

Box(1) RULE: Courts may look to state laws but those state laws will be absorbed as

federal law – i.e. they’re not exclusive just for that particular state but applicable to everyone.

c) Apply federal law if in state court – Lucas Flourd) Role Of Arbitrator

(1) Looks to the CBA and not anything outside of it (except in limited circumstances)(2) Looks to common law of the shop

2. DEFERENCE : Steel Workers Trilogya) GEN RULES:

(1) Courts role limited to determining whether the parties have agreed to arbitrate the dispute(a) United Steelworkers of America v. American Mfg. Co.

(2) Any doubts whether dispute is covered by the arbitration clause should be resolved in favor of arbitration(a) US Steelworkers of America v. Warrior & Gulf Navigation(b) History: courts were seen as very biased and favored business. In

arbitration, you select your “judges” and it’s a lot more fair(3) Court must enforce the arbitrator’s decision, even if the decision is

ambiguous or the court would reach a different decision on the merits, so long as the decision is drawn from the essence of the contract

b) FAVOR ARBITRATION(1) Policy: the CBA is a constitution, which means it’s a way to enforce self

governance. Because courts want this self governance thing, they really favor arbitration where the CBA so provides.(a) industrial self governance

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(2) United Steelworkers of America v. American Mfg. Co.(a) Worker filed compensation papers due to injury on job. Went to

negotiation, and he accepted an agreement. However, he still demanded arbitration. Employer refused.

(b) Procedure: the trial court found that, since he had accepted a settlement already, he had already settled the dispute.

(c) HELD: Reversed. The trial court looked to the merits of the claim, not to whether or not this was governed by the CBA to go to arbitration.

(3) US Steelworkers of America v. Warrior & Gulf Navigation(a) CBA contained management rights clause providing that matters which are

strictly a function of management shall NOT be subject to arbitration. Union filed charges alleging partial lockout after company contracted out its work and hired back some workers at reduced wages. (i) employer refuses to arbitrate

(b) HELD: doubt over whether the dispute is covered by the arbitration clause should be resolved in favor of arb.(i) Management Rights Clause : narrowly interpreted to refer ONLY

to management functions over which the CBA gives COMPLETE CONTROL to management(a) HERE: contracting out work is a common grievance which

is heard by arbitrators, so common law of shop favors arbitration over this kind of dispute

c) DEFERENCE TO ARBITRATOR’S DECISION(1) RULE: court must enforce arbitrator’s decision even if the decision is ambiguous or

the court would reach a different decision on the merits(2) US Steelworkers v. Enterprise Wheel

(a) RULE: arbitrator can look to other sources for the “law” of the CBA but the decision must draw its essence from the CBA(i) arbitrators interpret and apply the CBA BUT they can’t dispense

their own brand of industrial justice(ii) COURTS MAY NOT RECONSIDER THE MERITS OF THE

DECISION(a) EXCEPTIONS:

(i) FRAUD(ii) ARBITRATOR’S DISHONESTY

3. Expired Contractsa) GEN: the Act does not state that the agreement to arbitrate goes beyond the date of CBA

expiration. Therefore, employer does NOT commit ULP when he refuses to arbitrate something that happens after the CBA has expired(1) Remember: if the alleged ULP or whatever drew the union to want to arbitrate had

happened during the term of the CBA and it later expired before it got there, the employer would be compelled to arbitrate

b) BUT: PRESUMPTION in favor of arbitration post CBA (1) UNLESS negated expressly or by clear implication in the contract(2) LIMITED to disputes arising under the contract, which =

(a) dispute involves facts and occurrences that happened before the expiration

(b) the action taken following expiration infringes on a right accrued or vested prior to expiration

(c) disputed contractual right survives expiration under the terms of the contract

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4. Policy Concerns – Arbitration Awarda) RULE: If there’s a public policy that requires the arbitrator to uphold, the policy must be

explicit, well-defined, and dominant that comes from reference to laws and legal precedents --- NOT general “public interest” considerations(1) employer has burden to show just cause for discharge

b) TEST:(1) Have the parties agreed in the CBA that the employee could be discharged on this

basis?(a) This must be an explicit provision in the “just cause” thing(b) LOOK TO:

(i) previous discharges that were not challenged, serious safety hazards, etc. – law of the shop

(2) Has employer proven his burden? (a) burden to show just cause for discharge

c) ASK: Whether arbitrator’s decision violated public policy, NOT whether the employee’s conduct violated public policy(1) The arbitrator is supposed to look EXCLUSIVELY at the CBA and see whether or

not the CBA was followed. If he finds that the CBA did not include that the employer had the right to fire the person, then the firing is UPHELD – even if this isn’t the desirable result

(2) ASK: NOT that is there a public policy that condemns the conduct, but how it affects performance of employment activities

d) Drug Abuse(1) Eastern Associated Coal Group

(a) employee discharged b/c of pot use. Arbitrator ordered reinstatement b/c there’s a desire to give people a chance to rehabilitate

(b) ISSUE: Is there a public policy against drug use that requires the arbitrator to affirm the discharge?

5. NO Strike Clause Enforcementa) RULE: Courts can issue an injunction against a strike which is begun in violation of a no-

strike clause, IF the underlying dispute is arbitrable under the grievance and arbitration procedures in the CBA(1) people were going to state courts to get the injunction

b) HISTORY:(1) Norris-LaGuardia Act provides that federal courts may not issue injunctions, but the

Taft Hartley Act provides that federal courts can hear these grievances(2) How to reconcile the two?

(a) Norris L. Act didn’t contemplate that unions and companies would agree to no strike, no picket clauses, so it IS okay to issue injunctions against unions whenever they’re not obeying the CBA (i.e. striking in violation of a no strike clause)

(3) This is because the courts used to issue injunctions on unions all the time and favored businesses.

c) You may only issue injunction when the dispute is arbitrable

C. ROLE OF NLRB AND ARBITRATOR1. Board

a) interprets and enforces the Act or ULPb) should defer to the arbitrator’s award UNLESSS “repugnant to the act”c) BUT, if the Board disagrees with the arbitrator, the Board’s decision takes precedence

(1) Board defers to arbitrator UNLESS the award is not susceptible to an interpretation CONSISTENT with the Act

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(a) Burden of Proof rests on the person who’s seeking reversal of arbitrator’s award

d) RULE: Board has jurisdiction of ULP even if the dispute ALSO involves interp of CBA2. Arbitrator

a) interprets and enforces the CBAb) Arbitration is faster than Board process

3. Board and Arbitrator have concurrent jurisdiction BUT, board rarely takes something before arba) public policy of the Act is to encourage arbitration and for that to be the primary means of

getting your reward

X. PREEMPTION OF STATE LABOR LAW

A. INTRO1. ISSUE: when does federal reg of labor relations preempt the application of state law?2. §301: give fed courts jurisdiction over suits for enforcement of the CBA3. §303: give employer right to file suit in fed court for compensatory damages from a union’s prohibited

secondary activity (under 8b4)4. §14(b): states may assert jurisdiction over labor disputes which the Board declines to regulate under

its discretionary jurisdiction5. §10(c): gives Board authority to relinquish jurisdiction in a specific case (but Board hasn’t done this)

B. Garmon Preemption1. RULE: Requires that state and fed courts defer to the primary jurisdiction of the NLRB WHEN the

claim is actually or arguably subject to §7 protection or §8 prohibitiona) but if the board chooses not to take it, it can go back to the state

2. ASK: Will the person still have a claim had there been no CBA? a) Genesis of the claim must arise out of the CBA in order for it to be preempted

3. Fed Courts preempt just about every claima) SO, as an employer you want to get your claim in federal court

C. EXAMPLES1. Preempted

a) wrongful dischargeb) defamation by employer (b/c privileged information under CBA)

2. NOT Preempteda) Title VII claims

(1) pretty much the only way an employee can get in court w/o going thru arbitration process

(2) Remember: you can still go thru arbitrationb) Retaliatory discharge for filing worker’s compensation

XI. UNION & INDIVIDUAL EMPLOYEE RELATIONSHIP

A. INTRO1. DUTY OF FAIR REPRESENTATION: to represent all members of a designated unit to serve the

interest of all members without hostility or discrimination toward anyone, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conducta) EXISTS when negotiating a CBA and enforcing the CBAb) Arises out of §9 – union shall be exclusive representative of all the employees in a unitc) BREACH of this duty if union acts in an arbitrary or discriminatory manner or in bad faith

(1) = ULP under §8(b)(1) and 8(b)(2)2. Union Security Clauses

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a) DEF: requires employees either to join union as a full member or just to pay a fee for union services as a condition of employment

b) GEN: states c) Union Shop Clause

(1) DEF: requires employees to join union within so many months of being hired to the company(a) usually required w/in 30days

(2) ALLOWED(3) can allow for financial core members must CANNOT force them to become full

membersd) Agency Shop Clause

(1) DEF: doesn’t require union membership but, if you don’t become a member, that you pay for union’s services regarding the collective bargaining process and grievance arbitration process

(2) Union favors the union shop clause because that means you become a member – whether a full member or a financial core member, you’re still a member(a) Agency Shop clause merely says you pay for the services (b) BUT, legally, union shop clause and agency shop clause are identical

e) Closed Shop Clauses (1) PROHIBITED under 8(a)(3)(2) DEF: requires the potential employee to be a member of a particular union

BEFORE being hired. (a) gives union too much control over hiring, which is traditionally a

membership thingf) Dues Checkoff Clause

(1) DEF: employer automatically deducts union fees from employee’s check IF(a) you agree to this – union and employee agree

(2) Union wants this in CBA, but this is often a tradeoff for there to be a no strike clause included in CBA

(3) NOTE: this is not a violation of 8(a)(2) (which says that companies may not bribe or give $$ to unions) b/c it’s an authorized payment under CBA(a) b/c they’re merely giving the union what it would have gotten thru its

members anyway(b) §302 – criminal penalties for unauthorized payments by employer to union

(i.e. bribes)3. Full Member v. Financial Core Membership

a) Financial Core(1) have no vote / voice(2) Union can’t punish you for failing to meet (some of?) the rules of the union\(3) Union can’t allow loyalty oath or mandatory attendance

b) Full(1) If you cross picket line at your company then you can be fined(2) subject to union constitution and by-laws(3) right to vote

c) RULE: failure to be either financial core or full member when there’s a clause = union demand that employee be FIRED (1) employer failure to fire = ULP, §301 suit

4. Fees:a) Initiation Fees : can’t be excessive or discriminatoryb) Union dues: must be uniformly required of members AND nonmembers

(1) BUT union may NOT require payment more than that of a financial core member

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c) Financial Core Membership = costs and expenses related to or arising out of the processes of the CBA administration and processing grievances(1) NOT the union’s political or fraternal activities

d) FACTORS – reasonableness of fees(1) practices and customs of labor organization in the particular industry(2) wages of the currently paid employees

5. Hiring Hall: the place that’s maintained by the union for the assembly of workers who wish employment and used for other organization purposes. a) Job referral service for employersb) used in industries characterized by irregular and short term employment

(1) construction, shipbuilding, long shoringc) Can be non exclusive or exclusived) RULE: must treat members and nonmembers the same and must refer employees based on

objective criteriaB. Discipline of Union Members

1. RULE: union MAY regulate the internal affairs and enforce its rules by disciplining or firing its membersa) BUT union may not interfere w/ the employees’ protected rights

(1) e.g. right to free speech2. Fines : may fine a member of the union, BUT no fine for conduct protected under §7

a) NOTE: illegal picketing or striking is NOT conduct protected under §73. Freedom of Speech :

a) PERMITTED as long as non coercive and non-threatening4. Limits:

a) NLRB does not have authority to evaluate union disciplines UNLESS the discipline by the union interferes with the employer / employee relationship OR violates the Act

5. Discipline of Management Supervisors a) RULE: no discipline for collective bargaining or grievance adjustment activities.

(1) VIOLATION §8(b)(1)(B) b/c it restrains or coerces an employer in the selection of management representatives who will participate in bargaining or grievance procedures

6. Right to Resign: a) RULE: Union MAY NOT restrict right of resigning from union and MY NOT fine such

employee for resigningC. DUTY OF FAIR REPRESENTATION

1. GEN: arises out of the duty for the union to represent all the employees of the union. Not explicitly stated in the acta) §9(a)b) RULE: the representation does not have to be the best, it must only be ADEQUATE-

very deferential to the CBA(1) NO BREACH where:

(a) negligence(b) ineffectiveness(c) mistakes of judgment

2. TEST of fairnessa) Union acts

(1) arbitrarily(2) discriminatorily(3) in bad faith

b) BUT, union given wide latitude

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c) ASK: Is union’s behavior so far outside a wide range of reasonableness as to be irrational

3. RULE: you may treat employees differently as long as it’s a rational discrimination – like senioritya) union has authority to make concessions and accept advantages which the

negotiators believe will best serve the interests of the union members(1) some stuff like seniority benefits are not going to be favorable to ALL employees,

but court gives WIDE LATITUDE to the parties (union and company) to make agreements

4. Employee Right to Arbitrationa) DUTY: must process a grievance in a timely fashion and MUST NOT have bad faith or

discriminatory reasons for refusing to arbitrateb) RULE: Employee does NOT have an absolute right for his/her grievances to go to

arbitration. The union is allowed to make reasonable choices regarding which cases it will take through arbitration(1) want to encourage enforcing the CBA’s grievance procedures(2) as long as the union is not discriminating, it is okay to decide not to arbitrate

(a) discrimination INCLUDES where union chooses to arbitrate full members but not financial core members (as well as other arbitrary stuff like race/gender)

c) Reasons Union may not want to arbitrate(1) Financial Reasons(2) when the chances of winning are slight

5. Exhaust CBA Remediesa) RULE: You must attempt to resolve the dispute through all of the procedures laid out in the

CBA BEFORE you can go to court or go to arbitration(1) NOTE: Requires attempt to go through the processes

D. UNION DUTIES IN BRIEF / REVIEW 1. DUTY OF FAIR REPRESENTATION2. DUTY TO BARGAIN3. DUTY TO PROCESS GRIEVANCES

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