LABOR LAW – FALL 2012

August 16, 2012

UNION / MANAGEMENT RELATIONSHIPS Union numbers have been declining for the past 40 years, but it looks like the numbers are finally

bottoming out. A lot of the most prominent industries are unionized:

o Transportation & Communication industries are heavily organized - they are linchpins within the economy.

o NFL, NHL, NBA. Union density is much higher in the New York metropolitan area than anywhere else in the country. Labor unions weren't really around prior to the 18th century – the rise of wage labor & the industrial

revolution gave us modern unions. 2 primary responses in the 19th century to the rise of labor unions:

o Common Law "Criminal Conspiracy Doctrine" – the law's 1st reaction to the formation of unions (the main legal reaction from approx. 1800-1850).

Philadelphia Cordwainers’ (pg. 9) A group of shoemakers banded together & formed a "union" they all agreed

that they wouldn't work for less than a set wage. They went on strike & then confronted potential replacement workers to try & prevent them from working i.e. picketed their employer's business.

The workers were found guilty & forced to pay fines. o Labor Injunction – prohibited the union from striking or picketing (forming a union at this

point wasn't illegal but the courts very easily granted injunctions against a union ex parte - this response lasted until the 1930's).

The employer approached the courts to stop the strikes & pickets. Injunctions were particularly effective weapons against unions – it could take the wind

out of a union's sails right at the most important time, it couldn't exert any economic muscle by striking and setting up pickets.

NATIONAL LABOR RELATIONS ACT (WAGNER ACT), 1935 o Move from a common law system of regulating labor & management relationships to a

statutory system. o The principle objective of the statutes is to "keep the industrial peace," i.e. to keep people

working – there is a significant federal interest in preventing labor unrest & work stoppages. o The goal was to channel the union / management relationship into collective bargaining, but

keeping the government out of the substance of the labor agreements & just balance the relative power between the 2 parties.

o Underwent major revisions in 1947 & 1959. Taft-Hartley Act (1947) Landrum-Griffin Act (1959)

NLRB v. Jones & Laughlin Steel Corp. (1937) (pg. 14) The NLRB found that the corp. had committed an unfair labor practice by discharging 10 men

because of their union activities. The court of appeals declined to enforce the Board’s order to cease & desist.

1

The SC granted cert. & in a 5-4 decision, sustained the constitutionality of the NLRA & the authority of the NLRB to regulate local disputes that affected interstate commerce.

August 21, 2012

THE WAGNER ACT (1935) An enormous victory for labor, but the statute itself gives employees nothing – it gives unions the

ability to bargain for things like benefits, wages etc… §151. Findings & Declaration of Policy

o The point of this statute is to help ensure the industrial peace “by encouraging the practice & procedure of collective bargaining & by protecting the exercise by workers of full freedom of association, self-organization, & designation of representatives of their own choosing, for the purpose of negotiating the terms & conditions of their employment or other mutual aid or protection.”

A BIG shift in federal policy TOWARD unions. §152. Definitions §153-156 & §160

o Creates the NLRB to administer the NLRA, charged with investigating, prosecuting & acting as judge in any NLRA dispute.

§157. Rights of Employees as to Organization, Collective Bargaining, etc…o “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” [creation of a new federal right]

§158. Unfair Labor Practiceso It shall be an unfair labor practice for an employer—

1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; [catch-all section]

2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; [outlaws company unions]

3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; [an employer can’t discriminate against an employee because of his/her union activity]

2

4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter; [anti-retaliation provision]

5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.

There was a 5-fold increase in union density in the 12 years after the Wagner Act was passed (between 1935 & 1947).

Industry wide strikes coupled with the idea that union leaders had too much power, caused Congress to pass the TAFT-HARTLEY ACT in 1947.

o The Taft-Hartley Act changed the definitions of who was & was not covered by the NLRA.o Added the right to refrain from joining a union in §157; “and shall also have the right to refrain from

any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of.”

o Added a list of outlawed union activities in §158(b).o Bifurcated the federal agency – split it into the NLRB & the general counsel.

Between 1947 & 1959, the post-war economy took off, union density continued to grow, but there began to be a concern about what was happening within unions internally, so Congress passed the LANDRUM-GRIFFIN ACT in 1959.

o Required unions to file periodic financial & other reports.o Began to regulate election procedures & the misappropriation of union funds.

The NLRA is essentially the same as it was in 1959.

THE SCOPE OF THE NLRA & THE STRUCTURE OF THE NLRBSCOPE – Whether the Act covers a particular dispute.

1) Does the dispute affect commerce? Not commerce in the constitutional sense, because almost any labor dispute affects commerce

in the constitutional sense. In its discretion it limits the exercise of its power to cases involving enterprises whose effect

on commerce is substantial – jurisdictional standards. (pg. 21-22)o Based on the yearly amount of business done by the enterprise, or on the yearly

amount of its sales or of its purchases. They are stated in terms of total dollar volume of business & are different for different kinds of enterprises.

2) Does the dispute involve a covered EMPLOYER? EXCLUDED employers:

o Federal govt.o State or local govt.o Railwayso Airlines

3) Does the dispute involve a covered EMPLOYEE? EXCLUDED from coverage:

o Agricultural laborers.o Domestic servants.o Children employed by their parents.o Individuals employed by family members.o Independent contractors (excluded by the Taft-Hartley Act)

The person for whom services are performed reserves control only as to the result sought.

If an employer only controls the result it seeks, then the worker is an independent contractor.

3

If the employer controls the manner/way in which the worker is supposed to carry out the result, then the worker is an employee.

o Supervisors (excluded by the Taft-Hartley Act) People who have the authority to hire, fire, transfer, lay off, recall or

promote, etc…o Or to “responsibly direct” other workers, even if they don’t hire, fire, etc…

Managerial workers Workers who formulate and effectuate management policies, even though

they have no supervisory capacity.o Confidential workers

Workers who assist and act in a confidential capacity to persons who formulate and effectuate management labor relations policies (e.g. the secretary in the HR dept.)

o Retired workerso Graduate Research & Teaching Assistants at private universities.

Job applicants ARE covered under the NLRA – to prevent discrimination in the hiring process.

Undocumented workers ARE covered under the NLRA.

August 23, 2012THE STRUCTURE OF THE NLRB

A federal agency created by the NLRA to administer the Act. Split into 2 branches:

o The Board – Judicial Power 5 members when fully staffed who sit in panels of 3 to decide cases. Members serve staggered 5-year terms. They oversee Administrative Law Judges (ALJs) who travel throughout the country to

hold hearings. [Similar to trial judges]o The General Counsel – Investigators/Prosecutors

Appointed by the President for a 4-year term. Has final authority under the NLRA over the investigation & prosecution of unfair

labor practice charges. He oversees over 40 regions across the country. We are in Region 29 (headquartered in Brooklyn).

The Process of the NLRB The Board has no power to commence proceedings on its own – a person has to make a charge

against an employer or union. o 80% of the charges filed allege employer unfair labor practices.

6-month statute of limitations for filing a charge under the NLRA. A charge may be disposed of in 3 ways:

o Withdrawal (sometimes pursuant to a non-Board settlement between the charging party & the charged party).

o Dismissal

4

If the Regional Director decides to dismiss the charge, an appeal may be taken to the General Counsel in Washington. The General Counsel’s decision whether to issue a complaint is final & not subject to judicial review.

o Settlement or Adjustment – the Regional Office reaches a settlement of the case, accomplishing the purposes of the act (can be formal or informal).

Approx. 10% of the time a complaint is actually made & goes before an ALJ. Respondent is given time to file an answer to the complaint, & then case proceeds to hearing before

an ALJ.o The case is presented by an attorney from the Regional Office, representing the G.C.o Respondent may cross-examine witnesses, & may obtain, for this purpose, a copy of any

written pretrial statement of the witnesses.o The charging party is permitted to participate in the hearing.o The person prosecuting the case is the NLRB.o The person defending the case is the person charged.o Person who filed the charge is notably absent because they are not part of the case (think of

criminal proceedings). If you don’t like the result from the ALJ, you can appeal to the Board in Washington, D.C.

o The Board basically is taking the place of the district court.o You bypass the district court.

August 28, 2012EMPLOYER UNFAIR LABOR PRACTICES

§8(a)(1) is a general catch-all section of the NLRAIt shall be an unfair labor practice for an employer – to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.

EMPLOYER INTERFERENCE, RESTRAINT, OR COERCION

Lechmere, Inc. v. NLRB (1992) (pg. 38) Lechmere, Inc. owned a retail store in a shopping plaza in a metropolitan area, & also was part owner

of the plaza's parking lot. Employees of Lechmere, Inc. who drove to work used this lot to park their vehicles during their shifts. This parking lot was separated from a public highway by a strip of land that was almost entirely public property.

Local union organizers, not employees of Lechmere, attempted to organize Lechmere employees by placing promotional handbills on the windshields of cars parked in the employee area of the lot. After this, Lechmere denied the organizers access to the lot. This act caused the organizers to instead distribute their handbills from the strip of public land between the lot & the highway.

The union filed an unfair labor practice charge to the NLRB, claiming that Lechmere had violated §7 of the NLRA by barring them access to the parking lot. The applicable language of the law cited was the guarantee of the NLRA that employees have, "the right to self-organization, to form, join, or assist labor organizations," (§7) & that it is an unfair labor practice for an employer, "to interfere with, restrain, or coerce employees" in exercising their §7 rights. [a §8(a)(1) violation]

Lechmere claimed that they had a nondiscriminatory “no solicitation” policy both on its face & as it was applied.

5

o Lechmere’s ownership of the property didn’t give them an absolute right to exclude – property rights are usually dealt with at the state level, but this case deals with a federally protected right that supersedes state law.

The NLRB affirmed the union's grievance, & the Court of Appeals enforced the NLRB's decision. The SC reversed the lower court's decision based on 3 primary faults observed with the complaint:

1. The NLRA "confers rights only on employees, NOT on unions or their nonemployee organizers." They reasoned that the NLRA, while guaranteeing that employees would be free to organize if those so chose, the employer is not obligated to allow nonemployee union representatives access to their private property [derivative rights].

Critical reading of the decision: o BUT the definition of “employee” says that the term “shall not be limited

to the employees of a particular employer.”o So, the “nonemployee organizers” are employees under the NLRA.

2. §7 of the NLRA does not apply to nonemployee union organizers except when, "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels." The Court reasoned it was improper to even begin a balancing test with regards to §7 & private property rights unless "reasonable access to employees is infeasible."

Presumption – If the employees don’t live on the employer’s premises, they are presumptively not beyond the reach of reasonable efforts to communicate with them.

Jean Country Balancing test should only be used if the employees are beyond the reach of reasonable efforts to communicate with them.

o Degree of impairment to the employees of their § 7 rights if access is denied.

o Degree of impairment to the employers private property rights if access is granted.

o Availability of reasonably effective alternative means of communication.3. The union failed in demonstrating that there were any "unique obstacles" that prevented

reasonable union access to the employees. The employees did not live in the shopping plaza, so they were not beyond the

union's reach, & the Court further reasoned that the mere size of the city itself did not render the employees "inaccessible." The Court cited the fact that the union had been able to directly contact some of the employees regarding the organization.

[This case was a fairly significant shift in Labor Law. It gets criticized for undervaluing employee organizing rights & overvaluing employer property rights].

August 30, 2012 What about situations when an employee within a workplace wants to organize fellow employees? What if the employer has a policy about not distributing materials at work? If not, & they are

singling out unions, it is an unfair labor practice. o Soliciting – work time vs. non-work time

Work hours (the hours spent at work, but not necessarily working i.e. meal times, breaks etc…) vs. work time (time actually spent on the “shop floor”).

o Distributing – work areas vs. non-work areas Work areas are shop floors etc… vs. non-work areas are break rooms, parking

lots, etc…

6

Retail stores can prohibit employees from soliciting & distributing within a store to avoid customer confusion.

If an employer wants to prohibit soliciting & distribution, he can generally prohibit it during work time & in work areas. An employer generally cannot prohibit it in non-work time & in non-work areas without committing an unfair labor practice.

“Salting” – The practice in which a member of a labor union applies & receives a job with a non-union company with the intent of organizing the company's other employees into a labor union.

A salt’s role is to gather information as a company insider & use it in the union organizing campaign. Some salts attempt to create issues in the workplace.

Salts have the protection of the NLRA & employers are prohibited from denying a qualified applicant a job solely due to union affiliation.

NLRB v. United Steelworkers [NuTone, Inc.] (1958) (pg. 52) NLRB declined to hold that the enforcement of an employer’s no-distribution rule against a union

was an unfair labor practice even though it was coupled with an antiunion campaign.o The employer was engaged in protected speech, but it was contrary to the no-discrimination &

no solicitation rule. The enforcement of the no-distribution rule against the union is NOT by itself an unfair labor

practice. The employer’s expressions of his antiunion views were non-coercive in nature & therefore protected

by §8(c) of the NLRA & so cannot be used to show that the contemporaneous enforcement of the no-distribution rule was an unfair labor practice.

ANTI-UNION SPEECHES & PUBLICATIONS

NLRB v. Gissel Packing Co. (1969) (pg. 60) An employer is free to communicate to his employees any of his general views about unionism or any

of his specific views about a particular union, so long as the communications don’t contain a threat of reprisal or force or promise of benefit [§8(c) of the NLRA].

o The speech should be judged in its overall context.o An employer’s opinion about a union is always protected.

Rule : An employer is free only to tell what he reasonably believes will be the likely consequences of unionization based on objective fact that are outside his control & NOT threats of economic reprisal to be taken solely on his own volition.

o Valid prediction vs. an invalid threat. The Board could reasonably conclude that the intended & understood import of that message was not

to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities.

o The court focuses on the employer saying that the “the Teamsters Union is a strike happy outfit” – that is not based on any fact & amounts to an invalid threat.

o Essentially a prediction that they will strike, that wasn’t based on any objective fact because the union hadn’t even made any demands.

An employer can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees – impermissibly vague argument made by the court.

o An employer’s free speech is restricted more than a union’s free speech during an organizing drive.

7

September 4, 2012INTERROGATION

When & under what conditions can an employer question an employee about their union activities?

Blue Flash Express, Inc. – National Labor Relations Board (1954) (pg. 68) Interrogation of employees by an employer about their union membership or union activities, which,

when viewed in the context in which the interrogation occurred, falls short of interference or coercion, is unlawful.

o Interrogation is NOT per se unlawful. The test is whether, under all the circumstances, the interrogation reasonably tends to restrain or

interfere with the employees in the exercise of rights guaranteed by the NLRA. o No real rule coming out of the case because the “test” is just a restatement of the statutory

provision. Any employer who engages in interrogation does so with notice that he risks a finding of unfair labor

practices if the circumstances are such that his interrogation restrains or interferes with employees in the exercise of their eights under the NLRA.

Note 1. pg. 72 – The Board revised the Blue Flash test in Struksnes Constr. Co. (1967) [only applies when the polling is being done in a systematic manner]. Absent unusual circumstances, the polling of employees by an employer will violate §8(a)(1) unless

the following safeguards are observed: 1) the purpose of the poll is to determine the truth of a union’s claim of majority;2) this purpose is communicated to the employees;3) assurances against reprisals are given;4) the employees are polled by a secret ballot; &5) the employer has not engaged in unfair labor practices or otherwise created a coercive

atmosphere. Note 3. pg. 73 – Sporadic non-polling questioning of employees is examined under the Bourne v.

NLRB totality of the circumstances test. Look for an employer’s attempt to elicit information about an employee’s desire to join a union.

ECONOMIC COERCION & INDUCEMENT

NLRB v. Exchange Parts Co. (1964) (pg. 74) Exchange Parts arranged the announcement and grant of overtime & vacation benefits with the

intention of inducing employees to vote against the union. Issue : Is the grant of benefits of during the union organizing drive an unfair labor practice?

o The Board found that the employer’s conduct violated §8(a)(1) because the benefits were arranged with the intention of inducing employees to vote against the union.

o The circuit court reversed the lower court’s decision saying that it wasn’t an unfair labor practice because “the benefits were put into effect unconditionally on a permanent basis, & no one has suggested that there was any implication the benefits would be withdrawn if the workers voted for the union.”

o But, the SC reverses the circuit court holding that it is an unfair labor practice. The danger inherent in well-timed increases in benefits is the suggestion of a fist

inside the velvet glove – employees are not likely to miss the inference that the source

8

of benefits now conferred is also the source from which future benefits must flow & which may dry up if it’s not obliged.

Employer statements containing threats of reprisals or promises of benefits constitute unlawful interference, restraint, or coercion [even if the benefits are unconditional].

o If the employer actually effectuates such reprisals or benefits for the purpose of defeating unionization, this constitutes a separate unfair labor practice.

o The promise of the benefits without the actual conferral is enough to constitute an unfair labor practice.

This case is criticized for underselling employee sophistication by assuming that they will act threatened by the promise of additional benefits.

What’s the remedy in a case like this?o The Board doesn’t make the employer revoke the benefit conferred. o If the union losing the election, the Board will typically order a new election.

What if an employer customarily increases compensation levels at the same time each year, & a union organizing campaign is going on at that time?

That’s fine – in fact, if the employer withholds a customary increase they are committing an unfair labor practice.

Note 4. pg. 76 – the implementation of a health insurance plan during a union organizational effort was NOT a violation of §8(a)(1), when preparations for the plan had begun 9 months before the organizing campaign.

VIOLENCE, INTIMIDATION, ESPIONAGE & SURVEILLANCE Violence & threats of violence to deter union organization are clearly unlawful under §8(a)(1). General rule: surveillance is a §8(a)(1) violation even if it’s not detected by the employees & even if

the employer is not actually engaged in surveillance, but just giving the impression of surveillance. Employers who photograph or videotape employees engaged in protected concerted activities during

organizing campaigns are in violation of §8(a)(1), unless they can demonstrate special circumstances warranting such action.

o But, management’s routine observation of employees engaged in organizing activity on company property doesn’t violate §8(a)(1) unless it’s “out of the ordinary” & “coercive.”

September 6, 2012§8(a)(2) of the NLRA outlaws employer domination or interference with the formation or administration of any labor organization or to contribute financial or other support to it. This section not only outlaws “company unions” that are dominated by the employer, but also forbids an employer to contribute money to a union it favors or to give a union improper advantages that are denied to rival unions.

EMPLOYER DOMINATION OR SUPPORT Domination is found only when the employer has interfered with the formation of the organization &

has assisted & supported its administration to such an extent that it must be regarded as its own creation and subject to his control.

Electromation, Inc. (pg. 81)o In response to worker complaints, the company set up “action committees” made up of

employees & management representatives. The NLRB found the committees to be “labor organizations” under §2(5).

9

o The employer created them, their existence depended on the employer, & the employer essentially determined their functions – the significant involvement of the employer in the action committees made it unlawful domination even if the employer had good intentions.

E.I. Du Pont de Nemours & Co . (pg. 82)o Involved a unionized company that created 6 employee-management safety committees & 1

joint fitness committee to discuss safety & fitness issues & to submit recommendations to management officials regarding those topics.

o The NLRB found that these committees were “labor organizations,” because they “dealt with” Du Pont regarding important working conditions.

o On the other hand, the Board found no §8(a)(2) violation with respect to safety conferences conducted by company officials with employees. These “brainstorming” sessions simply enhance employee-management communication & elicited worker input. The employee participants were not “dealing with” management with regard to discussed safety matters, & company officials openly acknowledged the role of union reps. concerning these topics.

The “dealing with” requirement is only met when there is a pattern or practice over time of committee proposals & management responses with regard to Wages, Hours, Terms & Conditions of Employment.

o Involves some kind of back & forth between the employee group & the employer. o The more one-way it looks, the less “dealing with” it will appear, i.e. an employee suggestion

box or employees working together to solve workplace issues without the employer. To have a §8(a)(2) violation you need:

1. A labor organization.2. “Domination” or “Assistance” by the employer.

“Assistance” cases usually involve an employer favoring one union over another. o “Sweetheart” deals – a person who says he represents a union walks into the employers place

of business & says that he can represent the employer’s workers & they can come to an agreement about that representation i.e. a deal that’s very favorable to the employer. By recognizing this person as the union rep, it becomes very difficult for another union to come in.

o An employer also can’t solicit for a union.

International Ladies’ Garment Workers’ Union v. NLRB (1961) [Bernhard-Altmann Texas Corp.] (pg. 84) The employer recognized the union as exclusive bargaining representative of certain employees, but

in reality only a minority of those employees had authorized the union to represent them. The employer recognized the union under the good-faith belief that the union had the majority’s

consent – the prohibited conduct can’t be excused by a showing of good faith. A grant of exclusive recognition to a minority union constitutes unlawful support in violation of §8(a)

(2) because the union is given a “marked advantage over any other is securing the adherence of employees.”

Rule: The employer has to take reasonable steps to verify union claims.

EMPLOYER DISCRIMINATION§ 8(a)(3) Makes it a violation for an employer to discriminate in order to encourage or discourage membership in any labor organization.

Whenever the employer makes a decision affecting adversely the employment situation of an employee who happens to belong to or to be interested in a union, & some other employee who happens not to belong to or be interested in a union isn’t similarly treated, a charge of discrimination

10

may be made with the possibility that it will be sustained. It doesn’t matter if the adverse effect was intentional or not.

DISCRIMINATION TO ENCOURAGE UNION MEMBERSHIP Hiring Halls

o Function as clearinghouses or brokers for casual or temporary employees.o When an employer needs an employee they contact the hiring hall. o Exclusive : the employer(s) & the union agree that the employer will only get employees via

the hiring hall vs. Nonexclusive.

September 10, 2012 HIRING HALLS & OTHER PRACTICES

International Brotherhood of Teamsters, Local 357 v. NLRB (pg. 95) The union made a 3-year collective bargaining agreement [an exclusive hiring hall agreement] with

CTA which represented a group of motor truck operators in California. The union maintained a hiring hall for casual employees.

Slater was a member of the union who customarily used the hiring hall – but, in Aug. 1955 he obtained casual employment with an employer who was party to the hiring-hall agreement without being dispatched by the union. He worked until sometime in Nov., when he was discharged by the employer on complaint of the union that he hadn’t been referred through the hiring hall agreement.

Slater made a charge against the union & the employer. Getting fired under a hiring hall agreement that is run by a union is a §8(a)(3) violation. Exclusive hiring halls are NOT per se an unfair labor practice.

UNION SECURITY UNDER FEDERAL LEGISLATION Union Security Agreement: a contractual agreement, usually part of a union collective bargaining

agreement, in which an employer & a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, & assessments on behalf of the union. [A clause in a collective bargaining agreement describing what the employees have to do in terms of supporting the union.] There are 3 types of union security agreements:

o Closed Shop : where only union members may be hired, & an employee must remain a union member in order to remain employed (an exclusive hiring hall that requires you to be a member of the union in order to be hired is a “closed shop” agreement).

o Union Shop : where the employer may hire union or non-union workers, but employees must join the union in order to remain employed. There is a grace period on the front-end.

o Agency Shop : where the employer may hire union or non-union workers, & employees don’t have to join the union in order to remain employed. However, the non-union worker must pay an “agency fee” to cover collective bargaining costs.

NLRB v. General Motors Corp. (pg. 104) The UAW represents GM workers in a lot of different states. Indiana has a state law that bans any kind of union security device. An Indiana court interpreted

Indiana law to say that the ban on union security devices doesn’t ban agency shops.

11

Issue: Whether an employer commits an unfair labor practice under § 8(a)(5), when it refuses to bargain with a certified union over the union’s proposal for the adoption of the “agency shop.”

o Since the employer isn’t obliged to bargain over a proposal that he commit an unfair labor practice, the question is whether the agency shop is an unfair labor practice under §8(a)(3).

GM’s argument is that agency shops are illegal under §8(a)(3). The SC examined the nature of this purported "membership" requirement, & held that:

o “[T]he burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees & monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. 'Membership' as a condition of employment is whittled down to its financial core."

Thus, an employee cannot be required to sign a membership card or to take an oath of membership. Indeed, the so-called "union shop" - requiring formal membership in the union - ceased to exist as a matter of law after General Motors.

Union shop agreements are only legal if membership is available to everyone on the same basis & by being a member it only means that dues are paid.

Full membership vs. Financial core membership – Union shops are legal ONLY is membership means “financial core membership.”

o It’s NOT an unfair labor practice to fire an employee who stops paying dues under a union shop agreement.

What’s the difference between a legal union shop & an agency shop? o Essentially have the same force – you have to pay the union as a condition of employment,

either union dues or an agency fee which in effect are the same thing. Full member vs. Financial Core member?

o Full members pay full dues (even if they spend some of those dues on political funding), have voting rights within the organizational structure of the union (i.e. electing officers in the union or running for office within the union), & the union can also impose disciplinary action upon full members. (A union has an independent duty to tell employees that they can drop back to financial core membership).

September 20, 2012Why do we have UNION SECURITY CLAUSES?

Once a union is designated one way or another as the rep, for a group of workers, that union represents all those in the bargaining unit. Individual employees can no longer go to the employer to cut their own deal, regardless of whether or not the individual employee is a union member.

o Freedom of contract argument – employee wants to cut their own deal & not be forced to deal with the union.

Union security devices prevent individuals within the bargaining unit who will make the judgment that they will get the benefits of the bargaining agreement whether they are members of the union or not – prevents “free riders.”

o Union wants it because the exclusive bargaining unit bargains for a contract that covers all employees & not just union members.

Unions want them because they get money & membership & want the employees in the collective bargaining unit – Solves the cooperation problem

Remember : these things aren't mandated by federal law & are freely bargained for in contract agreement so there is freedom of contract; it is when you restrict USCs that you infringe on freedom of contract.

12

May NOT want a USC because:o Forces individual workers to join or at least pay the union even if they don't want to do so;

seen as infringing on individual rightso Can lead to issues with tyranny of the majority

In the political sphere, we have the Bill of Rights as a check on this. In this context, we have certain things to keep it in check, e.g. the Board is supposed to

ensure that all in a collective bargaining unit has very similar interests; also union is under a duty of fair representation (have to process everyone's grievances).

UNCONSENTING MINORITYEllis v. Brotherhood of Railway, Airline & Steamship Clerks (pg. 112)

Facts: The Union & Western Airlines implemented a previously negotiated agreement requiring that all Western’s clerical employees join the union within 60 days of commencing employment. As the agreement has been interpreted, employees need not become formal members of the union, but must pay agency fees equal to members’ dues. Petitioners are present or former clerical employees (financial core members) of Western who objected to the use of their compelled dues for specified union activities.

o Petitioners main argument is that for the union to compel their financial support of the 6 activities violates the First Amendment.

Issue: Can the union spend agency fees on whatever they want? Some of the things they spend their money are related to collective bargaining. BUT, the union was

also spending their money on a bunch of other things that don’t seem very related to their job & collective bargaining. Some of these employees didn't like that they were doing this; these employees are financial core members.

Why did they sue in the Southern District of California if they are alleging some violation of federal labor law?

o It’s under a different statute; NOT the NLRA but the RLA (the other federal statute that deals with labor relations among railways & airlines).

Held: CANNOT require non-consenting employees (fee payers) to use union dues on political purposes BUT you can require non-consenting employees to support collective bargaining agreements.

Test: Are the challenged expenditures necessarily or reasonably incurred for the purpose of performing the union’s duties of an exclusive representative of the employees in dealing with the employer on labor management issues?

They are spending their money on 6 things discussed in the opinion:1. Conventions – must pay because they are used to elect officers in order to create a structure

to bargain.2. Social Activities – these are OK because they are incidental to running a union; they are de

minimis expenses.3. Union Publications – the court is split on this; what part of the publication is regarding

general union activities & what part is political? If articles are about union's political activities, this is unrelated to the negotiations of

the next collective bargaining. If articles are related to the next collective bargaining contract or grievances pursued,

then it's OK. Most publications have both, so the union must count column inches & divide to

determine what is germane to collective bargaining & what isn’t. If it's 5% then you are given back 5% of your agency fee.

13

4. Organizing – general efforts; objecting non-members get their money back; generally, NOT related enough.

The Court of Appeals found that organizing expenses could be charged to objecting employees because organizing efforts are aimed toward a stronger union, which in turn would be more successful at the bargaining table – The SC said that this connection was too attenuated.

5. Litigation – (NOT involving collective bargaining agreement & grievances) – Only valid if in furtherance of local grievance; general litigation is NOT required to be paid by for dues paying members; full members pay for this.

6. Death Benefits – the court does not reach this issue. Rules of Ellis also apply to the NLRA. Communications Workers v. Beck (pg. 124) says §8(a)(3)

should be interpreted as forbidding union use of compulsory fees collected from objecting non-member employees to fund activities unrelated to collective bargaining.

o Beck rights of an employee are the employees right to object.o A union must inform their members of their Beck rights.

Dues check-off provisions – states say unions must get yearly permission to ask non-member employees if they want money spent on political events or non-union events. (Now you can opt-in to pay for political activities).

State “Right-to-Work” Legislation State laws, usually built into state constitutions or a state statute that BAN or LIMIT USCs. 22 States (listed on pg. 127) Most states with these provisions are in the South or West.

o New York is NOT a right-to-work state. Why can these things exist?

o Once we have the NLRA covering something, federal law controls & state control drops out.o This is one exception.o It is written into the federal law in NLRA 14(b) [pg. 23 of statutory supplement]

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

o This is an express exemption to the preemption doctrine.

September 25, 2012PROTECTED CONCERTED ACTIVITIES & EMPLOYER RESPONSE

NLRB v. City Disposal Systems (pg. 132) Facts: Brown refuses to drive a garbage truck because he had a good faith belief that it was unsafe.

The collective bargaining agreement (CBA) had a clause that said that employers cannot require employees to operate unsafe vehicles but Brown didn’t point out this clause specifically & was eventually discharged for refusing to drive.

Issue: Whether Brown's action (refusing to drive the truck) equates to a concerted activity. o Concerted meaning acting with somebody else.o This is the issue that split the lower judiciary authorities.

Once the case reaches the SC the issue becomes whether he’s acting in concert. The court adopts the “Interboro Doctrine” which states that a lone employee invoking a right

grounded in the CBA is recognized as “concerted activity” & therefore is accorded protection under §7. The person invoking it doesn't have to refer to it.

14

Reasoning: His act on invoking the CBA is an extension of the process that made the CBA.o Brown's refusal to drive affects the rights of ALL employees in the CBA.

By refusing he is protecting the rights of the next driver told to drive the unsafe truck; this touches ALL the employees under the CBA.

o When an employee engages in acts protected by a CBA it is a concerted activity because it is part of a larger action.

o Doesn't matter if the truck wasn't actually unsafe provided the employee has a reasonable belief to think it is unsafe – his grievance does NOT need to be based on objective fact, it just has to be made in good faith.

o He made a reasonably clear reference to something that was in the CBA, so it doesn’t matter whether or not he even knew that that specific clause was in the CBA.

What if there’s no CBA, but there’s a state statute saying that no employer can make an employee drive an unsafe vehicle? Is he acting in concert in this case under the same set of facts?

The rights found in state statutes can already be independently enforced. Invoking a right found in a state statute is NOT engaging in collective concerted activity for the

purposes of the NLRB because the NLRA is concerned with CBAs. See Note 1 (pg. 138).

NLRB v. J. Weingarten, Inc. (pg. 139) A store manager & investigator summoned Collins for an interview & questioned her about not

paying the full price for something that she purchased. Collins asked for the presence of a union representative several times but was refused by the manager each time.

The SC ruled that employees in unionized workplaces have the right under the NLRB to the presence of a union representative during any management inquiry that the employee reasonably believes may result in discipline.

o So, the refusal to allow her a representative was an unfair labor practice under §8(a)(1) because it interfered with the rights of the employee under §7 to protected concerted activities.

NOT an absolute right – the meeting that the employee requests a union representative for MUST be an investigatory interview that the employee reasonably believes may result in disciplinary action.

o The employee must request the assistance of the representative, the right doesn’t automatically attach – it must be invoked.

o The employee does not get their preferred representative – they must take whomever the union provides.

o By invoking the right to a union representative under the CBA, the employee is acting in protected concerted activity.

o No Weingarten right exists if the employer intends merely to communicate a disciplinary decision previously made.

Note that the employer is always free to discipline an employee based on the underlying situation.

Typically CONCERTED means 2 or more employees acting together, but it can be 1 employee seemingly acting alone.

Ex) Cases like NRLB v. City Disposal Systems. 2nd example was what if trying to solicit but no one is trying to listen; or distributing union materials

but no one is taking?o Courts have agreed that has to count as concerted; attempt to get other involved to better

wages, etc.

15

3rd potential case is a situation where a single employee invokes a right based on a state statute instead of the collective bargaining agreement (Meyers in Note 1-page 145-46).

"PROTECTED CONCERTED ACTIVITY" has got to be the right kind of activity: Acting in concert in order to effectuate some kind of change with regard to wages, hours, terms or

conditions of employment.o Has to be aimed at the right thing & has to be an attempt to change that thing.o When the Board tries to separate out real attempts to engage in concerted activity vs. mere

griping activity; not a real definition of what actually constitutes mere griping.o A lot of times it is the de minimis stuff; complaining about the parking, coffee, etc.

Means it wouldn't be a ULP for employee to be demoted by an employer for annoying the employer with complaints about these kinds of things.

Also see situations where you have a group of employees being punished for complaining about something that doesn't seem constructive; this is mere griping.

This is not very clear cut because why wouldn't you be complaining if not for a change? Just complaining vs. engaged in an active attempt to change things.

Elk Lumber Co. – NLRB (pg. 144) 5 employees who worked for Elk Lumber Co. (a non-union company) were “car loaders” who loaded

the lumber onto railroad cars. The employer paid these 5 employees per car loaded – their salary was based entirely on how many

railroad cars they loaded (approx. $270/hr.). Then the employer decided to start paying using a hourly system ($150/hr.).

The employees engaged in a work slow-down to match their new wage rate. Did the employer engage in a §8(a)(3) violation by disciplining/firing them? Is a work slow-down a protected concerted activity? NO!

o The NLRB decided that the work slow-down was against public policy. Why? Because if you make a slow-down protected, then employees could virtually dictate all of the

terms & conditions of their employment. A work stoppage is protected, but not a work slow-down.

GENERAL TEST for determining whether activity is PROTECTED or UNPROTECTED – Activity is unprotected IF the END/GOAL of the activity is illegal OR the MEANS are illegal or

against public policy.o “Partial” strikes of various kinds have been found to be unprotected activity.

Ex) Yale graduate teaching fellows refused to submit final student grades in order to enhance their bargaining position with the university. Since the teaching fellows were willing to perform all of their other duties, including continuing to teach their courses, the NLRB found that their conduct was unprotected (1999).

o “Sit-down” strikes are unprotected.o Ship work stoppage (mutiny) is unprotected.o “Industrial sabotage” is an unprotected means to achieve an end/goal.o In particular circumstances, a strike without a warning is unprotected – i.e. nurses who work

in the ICU, actions that would damage equipment, etc…o Certain acts of disloyalty.

“Paint Case” (pg. 147) – the employees who manufactured paint went out & advised consumers that they should make sure that any paint they buy is made by the regular employees (who were out striking) who know the formulas & the amount of ingredients to put into the paint. They said that the paint being made while they were

16

out on strike could not be of the same quality that they were used to. This conduct is disloyal disparagement of the employer’s product.

September 27, 2012

Mastro Plastics Corp. v. NLRB (pg. 149) Carpenter’s union had a CBA with the employer that had a “no strike” clause. 2 months before the

end of the agreement, the union gave notice of a desire to negotiate new conditions of employment, starting the 60-day “cooling-off” period prescribed in §8(d)(4). During the “cooling-off” period workers aren’t allow to strike or lockout (if they do, they lose their status as employees & consequently their right to reinstatement).

Meanwhile, a rival union began a campaign to replace the Carpenter’s local. The employer believed the campaigning union was communist dominated so it gave a 3rd union (Pulp Workers) assistance in its attempt to get majority status. In Nov. the employer fired Caiccone because of his support of the Carpenters. The union went on strike to remedy the unfair conditions before the agreement terminated & the 60 day notice was up. 4 months later the strikers made unconditional offer to return to work but employer denied reinstatement. Employer charged with violating §8(a)(1), (2) & (3).

Employer’s defense was based on: 1) Affirmative defense that the CBA had a waiver of the right to strike. 2) Strike began during the statutory waiting period initiated by the employees’ request for a modification of the agreement. Therefore, under §8(d) the strikers lost their status as employees.

Issues : 1. Whether the collective bargaining contract waived the employees’ right to strike against

the unfair labor practices committed by their employers. 2. Whether Congress enacted a deprivation of status in §8(d) if employees are with in the

§8(d)(4) waiting period & they engage in a strike solely against unfair labor practices. The 1st issue turns on the proper interpretation of the contract. The employer argued that the words

“any strike” in the agreement leave no room for interpretation & include all strikes even those against unlawful practices by the employer. The SC believed that the contract taken as a whole deals solely with the economic relationship between the employers & their employees. The no strike terms deal with operating policy aimed at avoiding interruptions of production when employees try to change existing economic relationships. The contract did NOT waive the employee’s right to strike solely against the unfair labor practices.

The 2nd issue involved the proper interpretation of the Act. Mastro Plastics relied on the language in §8(d) that stated: “Any employee who engages in a strike within the 60-day period specified in this subsection shall lose his status as an employee of the employer…”

o The Board said that the paragraph requires the party giving notice of a desire to “terminate or modify” such a contract to continue in full force with out resorting to strike or lockout.

The Board found in this case that the strike wasn’t to terminate or modify the contract but was to protest the unfair labor practices & that the loss-of-status provision of §8(b) does NOT apply. The SC

17

STRIKES are concerted refusals to perform work that has been assigned. They are usually protected concerted activity unless they are contrary to law or contract.

2 Types:1. Unfair labor practice strikes.2. Economic strikes (virtually every other kind of strike) – usually strikes either to force an

employer to recognize a union and bargain with it or during contract negotiations.

agreed. The employer’s interpretation of §8(d) would mean if the employees give the 60-day notice of their desire to modify the contract they are penalized for exercising their right to strike. They would be deprived of their most effective weapon when they would need it the most.

Mastro holds that a general no-strike clause does NOT waive the employees’ right to strike in response to unfair labor practices committed by the employer (i.e. the “cooling off” period only applies to economic strikes).

SO, it makes a difference if it’s an economic strike or an unfair labor practice strike. o If the strike converts from one kind to another, you test whether the employer action was an

unfair labor practice at the time it was taken. When the change in the type of strike occurred is very important.

o To decide what kind of strike it is, the NLRB asks, “what would end the strike?”

NLRB v. Mackay Radio & Telegraph Co. (pg. 155) Union engages in an economic strike against it’s employer. A lot of the employees went out on strike

& are replaced. Ultimately, the strike was unsuccessful so it gets called off. The employer had promised permanent employment to 5 of the replacements hired, so when reinstating the strikers, it picked out the 5 most active employees in the strike & refused to reinstate them. So, the employer’s reinstatement decision was based on the level of strike activity.

o Strikers maintain reinstatement rights if the permanent replacement leaves (but that doesn’t happen often).

If employees go out on strike for economic reasons & not because of any unfair labor practices on the part of their employer, the employer may replace them in order to keep his business running, & the strikers thereafter have NO absolute right of reinstatement to their old jobs. After the termination of a strike, however, an employer may not discriminatorily refuse to reinstate or reemploy the strikers merely because of their union membership or concerted activity.

The dicta is the only really important part of this case!

October 2, 2012LOCKOUTS

An EMPLOYER started work stoppage. Usually initiated in order to gain an upper hand in a potential strike situation or in certain

circumstances to exert economic pressure on employees.

Buffalo Linen Case (pg. 172) Facts : Union engaged in collective bargaining with an employer's association that represents workers

in all of 8 linen supply companies. Legally the companies are distinct bargaining unit & the union has a duty to represent each

bargaining unit. Just bargaining on a multi-employer basis. These employers who have come up with an employer's association have basically done the same

thing. Employer's association is handling the bargaining from their end. Union, during negotiations holds a "whipsaw strike" – essentially means that what they are going to

do is take 1 of the linen supply companies & strike it for a week or so. After the week they are going to go back to work & hit the 2nd company & so on.

o The theory here is divide & conquer. The hope of the union is that since employers are putting up a united front & will divide & conquer the multi-employer bargaining group.

o It reduces the hardship on the employees. They are all doing linen supply in the same town so all customers of the linen supply company struck

will go to the other linen supply companies.

18

The other 7 employers lockout their employees in anticipation of a strike. This puts pressure back on the employees & shifts the power back to the employer. It removes some of the effects of the whipsaw strike & also reduces the economic pressure on the single employer because they’re no longer losing business to the other supply companies. This is a defensive tactic to the whipsaw strike.

Union charges a violation of Section §8(a)(3). The ULP allegation is that the 7 employers engaged in a ULP by locking out their employees. They claim that are violating the rights of employees engaging in a protected concerted activity.

o The employees argue that the lockout is an unfair labor practice because it tends to discourage union membership.

Issue : Whether employers can engage in defensive lockouts against a union whipsaw strike. Holding : the Court held that a temporary lockout by a multi-employer bargaining group threatened by

a whipsaw strike was lawful under the NLRA. The lockout was permitted as a defense against a union whipsaw strike tactic (a very narrow holding).

NLRB v. Brown (pg. 173) Facts : 6 retail food stores engaged in collective bargaining as a multi-employer association with the

union. The union attempted a whipsaw strike. The store continued to operate with temporary replacements.

o This is the difference from Buffalo Linen. Other 5 stores lock out & operate with temps. Group bargaining continued.

Issue : Whether a multi-employer bargaining unit can continue to operate using temps & lockout strikers as a defense against the union attempting destruction of its interest in bargaining as a single unit.

o Issue is not the one store that continued to operate with temps; it is the other 5 stores that locked out their workers & operated with temps.

Holding : the court discusses the employer’s situation – o Employers are stuck because if they don't lockout, the whipsaw strike continues.o If the struck employer remains open the whipsaw strike tactic doesn't really work. A little

more pressure because they’re operating with temps, but nothing like the kind of pressure that the court was worried about & the union intended to inflict in Buffalo Linen.

o This is permissible because there was no intent/motivation to destroy the union. You need independent evidence of an unlawful purpose behind the lockout.

o Employer's use of replacements to continue operation was "wholly consistent with a legitimate business purpose."

o No evidence of hostility towards the union or that the employers were acting in reprisal for the whipsaw strike & it does not discourage union membership.

To violate §8(a)(3) there must be a discriminatory act intended to discourage union activity – this is NOT present here.

Rule: An employer CAN defensively lockout in response to a whipsaw strike tactic AND temporarily replace your workers.

Dissent : there is nothing in the NLRA that gives an employer the right to lockout & the struck employers were not out of business so there was no undue pressure. It should be an §8(a)(3) violation because the lockout itself discourages union membership & puts locked out employees at a disadvantage.

American Shipbuilding Co. v. NLRB (pg. 179) Facts : Companies bargain to impasse. Generally speaking it’s a term of art that means for our

purposes that both sides have been bargaining & both sides refuse to budge & thus, there is no

19

movement in the collective bargaining. At this point, the company is afraid that the union will strike at an inopportune time (their busiest time) because the union has a history for this behavior.

They lockout & the agreement gets signed. The employer says it was a defensive lockout, while the union says no, it was an offensive lockout.

o The seasonal business issue does make it look like a defensive lockout. But also at impasse & doesn't look like union will call strike at this time so in that sense appears to be offensive.

The Trial Examiner (ALJ) says it’s a defensive lockout & says it is fine. NLRB said it was an offensive lockout. The case goes up to the SC.

Issue : Whether a temporary layoff is an ULP when it is used as a means to bring economic pressure to bear support of the employer's bargaining positions after a bargaining impasse has been reached? Whether this lockout is a violation of §8(a)(3)?

Holding : SC says the Board’s finding that it was an offensive lockout is fine; so it says it’s a defensive lockout. Can you lockout to support what is otherwise a legitimate bargaining position?

o They say yes, it’s okay to use a lockout in support of legitimate bargaining purpose.o Even thought there was an act of discrimination, it was not done to discriminate against union

membership because the employer had no intent to hurt the union or make employees quit & this isn’t an activity that is inherently destructive of §7 rights where a §8(a)(3) violation would be found.

o Normally an offensive lockout would constitute an 8(a)(1)(3) violation, BUT: Offensive lockouts are now permitted; BUT only in a situation like this where the

parties have bargained to impasse. Can you force impasse?

o Yes, but if the Board gets wind of an employer intentionally engaging in impasse/fake bargaining, that will independently be a ULP.

o However, it’s hard for the Board to figure out when that occurs; would need a "smoking gun."o It’s NOT an impasse that makes a lockout offensive. What makes it offensive is that it was

designed to put pressure on the union.

ANALYZING LOCKOUTS:

1. Figure out whether in situation where employer has some kind of bad intent?o Do you have a situation where an employer is using a lockout to injure a union? Not just an

economic type of pressure situation. Is it being used to break up the union or evade responsibility to bargain in good faith with the union?

o If Board "smells" anything like this, it will be an ULP (see this in Brown & American Ship).2. If the intentions are OK, when can you lockout?

o Depends on whether locking out offensively or defensively; need to categorize – Offensively : American Ship – CAN do this when bargaining has come to an impasse

in order to put pressure on employees. Defensively : Buffalo Linen & Brown – CAN defensively lockout in response to a

whipsaw strike tactic. Can also lockout where a well-timed strike might cause usual damage to the

employer.o Occurs in seasonal industries where employer is doing large

proportion of business in a relatively short period of time, e.g. American Ship & thus, excessive damage could be caused by strike because of the seasonal nature of business;

20

If it gets wind that union is going to pull a sit-down strike, an employer CAN lockout as a defensive tactic.

If an employer has an integrated business & is worried about a “quickie strike” being called, it CAN defensively lockout in order to control the timing of that. We’re worried here about well-timed strikes that are going to cause excessive damage; these are the kind you see in Major League sports.

3. Use of Replacements – What CAN an employer do in an otherwise legitimate lockout?o Defensive – employers CAN use temporary replacements.

In Brown employers used temps in response to a whipsaw strike. Offensive – the Board says yes; depends on what circuit it’s in because there is a

circuit split. 7th says unfair & 8th & 6th say it is oko Regardless of defensive or offensive; CANNOT permanently replace – an employer will be

required to reinstate after lockout ends.

October 4, 2012 PLANT CLOSINGS

Textile Workers Union v. Darlington Mfg. Co. (pg. 193) Facts : Roger Miliken & family own Deering Miliken, which owns other companies, one of which is

Darlington Mfg. Darlington employees initiate an organizing campaign & the union wins the election. 6 days later the board meets & votes to liquidate the company. Within 6 months the company is gone; equipment is sold off piece-meal.

Union files an §8(a)(3) violation that they closed & refused to bargain. It’s not in dispute that it was closed because of anti-union animus. Ct. of Appeals denied enforcement because they say an employer can always close business.

Issue : Whether an employer that is part of a large enterprise may close down COMPLETELY & liquidate its business in order to frustrate §7 rights of employees (because of anti-union animus) or is this a ULP? Whether an employer can PARTIALLY go out of business if motivated by antiunion animus?

Holding : Yes – Only if employer’s reasoning is NOT to frustrate employees’ §7 rights. The case has to come out the way it does because can't force someone to remain in business (the problem with this is when we look to §8(a)(3) – employers may not take action that discourages union membership).

The Court’s 1st argument is that if the termination is a really a bona fide termination, there is no future benefit to the employer (employer is not getting rich quick). Also, this does not affect other employees in other companies – doesn't chill their union activity.

o Problem – there must be something employer is getting because if not, why is he closing? Also, it chills the union activity, because employees who lost the job because of plant closing, will not engage in union activity in the future, for fear to lose their job.

o Hayden argues that the whole point is whether action “tends to discourage union membership” so why does it matter whether employer gets no future benefit out of it? He also argues they got something out of it – assuming that most employers are acting rationally.

o Hayden on no future benefit argument – signal that the court gives to say that this is not going to happen i.e. there aren’t going to be companies that make the decision to go out of business based on anti-union animus alone.

The Court’s 2nd argument is that once Darlington goes out of business, it is no longer an employer & therefore cannot commit an ULP.

21

o (A bad argument because it was still the employer when it made the actionable decision to close the business).

Rule : A company can always completely close down (total shutdown) even if motivated by anti-union animus without committing an ULP. Not an ULP to engage in a bona fide termination even if motivated by antiunion animus.

If you CONDITIONALLY/PARTIALLY shutdown, that is problematic.o This is when an employer shuts down & then says it will re-open when employees renounce

their union status – a clear §8(a)(3) violation. RUNAWAY SHOP – a related kind of shutdown.

o When an employer shuts down in 1 location & re-opens in another area to escape unions – NOT a bona fide shutdown – clear violation of §8(a)(3).

o Will have to distinguish between legitimate economic reasons for the move vs. anti-union animus.

What if the closing is a partial closing of a bigger enterprise?o This is different for the SC from a complete closing – in partial closing situations, the

dynamics are different & the potential for chilling union activity are different.o The Court comes up with a TEST: a partial closing violates §8(a)(3) if the purpose of closing

is to chill unionism in the remaining divisions & if the employer may have reasonably foreseen that such a closing will have that effect (pg. 198-199).

o NEED BOTH to be a violation of §8(a)(3) = ULP (this is the purpose & effect test) Use in a situation where you know you have a partial closing

The difficulty in this case is trying to sort out whether it is a complete closing of a single entity or a partial closing of a more extended entity.

In situations where you are not sure whether you have a complete or partial closing, the Court uses another TEST: the Interest & Relationship test –

o See whether employer has INTEREST in another business that is sufficiently substantial to give promise of his reaping a benefit from the discouragement of unionization in that business,

o Occupies a RELATIONSHIP to the other business, which makes it realistically foreseeable that its employees will fear that such businesses will also be closed if they persist to unionize.

What happened in this case?o 1st the Court uses the interests & relationship test because the situation is unclear.o They find there was enough of an interest for Deering Milliken for this to be a partial

shutdown.o The Court then uses the purpose & effect test – they remand back to the Board for lack of

information.o On remand, Board finds there to be a purpose & interest based on what Milliken did after

shutting down (i.e. showed he wanted to send an anti-union message to the other Milliken companies – it was reasonably foreseeable employees would be chilled).

o Thus, §8(a)(3) violation in this case – partial shutdown that met the purpose & effect test.

§8(a)(4) – This is just the anti-retaliation provision – makes it an ULP for employer to go after employee for filing a charge or giving testimony.

§8(a)(4) – “It shall be an unfair labor practice for an employer – to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.”

§8(a)(5) – “It shall be an unfair labor practice for an employer – to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).”

22

How does a union become a representative of a group of workers? There’s NO one set way in the Act – Instead there are a variety of ways that a union can become a lawful representative of a group of workers:

4 Ways a Union Can Become a Union Rep. of a Group of Workers:1. Election – the most common way.

Run by a union.2. Through an ULP Proceeding.3. An employer can voluntarily recognize a union as a representative of a group of workers.4. Through an employer poll.

To not be an ULP, must live up to certain requirements. Run by an employer.

ELECTIONS Representation Proceedings, which give rise to elections:

o Someone files a petition for an election with a Regional office (either union or employer or employees can do it).

30% of EES turn in cards for an election or an EER writes letter to the NLRB & he requests an election.

Hearing is held – RO investigates to make sure no other representation & that there are common interests between EES.

Consent from union & EER or sometimes have a hearing if the EER does not consent to the election. Election – all EES vote yes or no for representation. RO issues a certification which says, “the union is the representative or not the representative.” If the

union is elected, the duty is established by §8(a)(5) & §8(b)(3).

October 9, 2012 WHAT DOES THE BOARD NEED TO CHECK TO SEE IF THEY CAN HAVE AN ELECTION?

(1) Check to see whether it has JURISDICTION over the labor dispute. NLRA does not cover public employers, governments, Railroads, airlines, agricultural

workers, domestic servants, or independent contractors. Both employees & employers must be covered by the Act. Must be a dispute affecting commerce.

(2) Union needs to claim to represent an APPROPRIATE BARGAINING UNIT. Board needs to make a unit determination. Individual employees come & go, but units stay the same; job classifications do not change;

unit does not move just because employees move in & out of positions.o A bargaining unit is made up of job classifications, NOT individual employees.

Even though it’s called a bargaining unit, really more appropriately called an election unit because often times unions will bargain on a grander scale; don't have to bargain unit by unit – can bargain for a bunch of units at the same time.

Board's unit determination decision is basically a thumbs up or down decision; in most cases, petition will include a proposed unit. Board is merely trying to figure out if this is an appropriate unit vs. the best unit.

23

UNIT DETERMINATION(3) Need to see if these employees have a COMMUNITY OF INTEREST:

Will look at a variety of factors: Making sure these employees have similar economic interests with respect to the

job (e.g. use a similar wage scale, similar houses, terms, conditions of employment, similar types of work, share supervisors, similar skills & qualifications, etc.)

History, if any, of collective bargaining. For example, have they been informally bargaining together with their

employer? Extent of employee organization.

Board is prohibited by statute from giving this controlling weight, but that doesn't mean they can't look at it as a factor.

In rare situations, when all factors seem like they are coming out even & Board is faced with a choice, it will essentially turn the choice back over to the employees as to whether or not they want to be represented by a unit; Globe election will be held.

Some restrictions on unit determination within the Statute: NLRA Section §9(b)(1), (2), (3): §9(b)(1) – can't have professional employees & non-professional employees in the

same bargaining unit unless the professional employees sign off on it (they virtually have veto power over it).

Worry is that professional employees who independently might have more market power are just going to get drowned in a unit with non-professional employees & don't want to put them in such a unit unless they really want to be there.

Occurs frequently enough to require a rule vs. a test. Don't confuse with rule that can't put professional & non-professional in same

unit – just prohibited it without their signing off on it. §9(b)(3) – guards can't be included in a unit with other employees:

We are talking about security guards. They can only be represented by a union that ONLY represents security

guards. Why?

o There are conflicting loyalties.o Employer needs someone to rely upon during times of industrial strike.

HOW DOES THIS BATTLE OVER UNIT DETERMINATION TAKE PLACE? Who wants a large unit; who wants a small unit?

o Often times it is the employer who pushes for a bigger bargaining unit & the union pushing for a smaller unit.

o Why? A bigger unit means fewer units, which is less of a headache for the employer. May be harder to represent the interests of a greater number of employees. Employers may want a bigger unit because it’s harder for union to keep all employees

happy. A bigger unit may be harder for union to organize, which is better for employer. Essentially, unions hope for smaller units that they think they can win.

24

(4) Needs to be a SHOWING OF INTEREST: Means that at least 30% (30% is both necessary & sufficient) of employees in the petitioner for

bargaining unit have to indicate, usually by signing a union authorization card, that they want this unit on the ballot.

Will file petition for election & union authorization cards at the same time. If employer is filing petition for election, this is not a requirement (keep in mind that it is also

possible for an employer to file for election – assumption is that there has to be enough interest if employer is the one filing the petition for election).

(5) There must be NO pending ULP charges/proceedings relating to this organizing activity because when NLRB has an election, it wants laboratory conditions (nothing out of the ordinary) – elections free of ULP charges for both sides.

(6) There must be NO ELECTION BAR – a valid election or certification serves as a bar to future elections for 1 yr. or longer if the employer is out to frustrate the bargaining process (when employer doesn't bargain in good faith).

(7) Also, there can't be a CONTRACT BAR – We are talking about a collective bargaining agreement that is in writing, signed, & of a definite

duration. The contract will operate for the life of the contract or for 3 years, whichever period is shorter with

the EXCEPTION of the 90/60 window period.o Window Period – a rival union may NOT file a petition more than 90 days prior to or less

than 60 days prior to the expiration of an outstanding bargaining unit. Therefore, there is a 30-day period before the last 60 days of the contract to file a petition.

Ex) Have a 4 year contract, which expires on Jan 1 of 2004. Here, the contract acts as a bar up to the period of 2003 – shorter period of 3 years & the 90-day window will open right before the expiration of the 2003. Or if the contract is for one year from Jan of 2000 to Jan of 2001, then the window will open between Oct 1 & Nov.

o Premature extension doctrine. A contract will NOT be a bar to a petition if:

o If the collective bargaining agreement contains a really unlawful provision.o Ex) A contract that on its face discriminates on the basis of race.o EXCEPTION: a contract containing an illegal hot cargo clause CAN act as a bar.o Clear there is no hard & fast rule, the Board just acts with discretion.

THE ELECTION ITSELF

PRE-ELECTION: Once an election is slated, an employer has to file the names & addresses of all employees in the

bargaining unit. Within 7 days of having the election slated, the employer has to turn over list to Board, which hands the list over to the union. This is the Excelsior Rule.

Board wants to have laboratory conditions to make sure the election is free from taint.o Means if employer or union are engaging in speech that is an ULP, that speech will eventually

cause the election results to get set aside.o Means more than just no ULPs going on.

25

o Some additional rules that further constrain employers & unions in the time leading up to the election:

The “Peerless Plywood” Rule In the 24 hours leading up to the election, neither side – union nor employer –

can make election speeches on company time to groups of assembled employees.

Some cases where there have been things showing up in the newspaper, threats, racist appeals, etc., while protected by the 1st Amend., may lead the Board to set aside election results.

ELECTION: NLRB runs the election – Board agent goes to employer's place of business with a cardboard box &

stack of ballots & has the election; doesn't always happen on employer's premises, but usually does because of ease of accessing employees.

Generally a list of eligible voters will be generated using payroll data.o Complexity of who can vote & who can't vote gets magnified in a strike situation.o Economic strikers also have the right to vote unless:

They have been permanently replaced for more than 1 yr. If they have indicated they have no further interest in the job.

o ULP strikers & permanent replacements CAN vote.o Temporary replacements CAN'T vote.o It’s possible to have more employees voting than are actually in the unit.

Majority of votes cast is what wins – as long as sufficient notice is given to all eligible voters, person can decide whether or not to vote & no vote does not count. No minimum amount of people is needed to vote as long as sufficient notice is provided.

Voting Situationso Situation 1

Union A Union B No Union

o In Situation 1, it’s quite possible no group will have a majority & there will be a run-off between the top 2 candidates.

o Situation 2 Union A No Rep.

o In Situation 2, don't have that issue.

POST-ELECTIONS: No way for a party who feels aggrieved by the election to get directly into federal court ("C"

Proceedings). These are "R" Proceedings (Representation). To get direct review, they need to turn the "R" proceeding into a "C" proceeding (Complaint).

o Will try to bargain & then employer will refuse to bargain & then the union will file a §8(a)(5) charge that will convert it into a "C" proceeding.

If the employer thinks they were wronged, what do they do?o They will do the same type of thing – When the union says “we won the election, start

bargaining!” & the employer refuses to bargain, this will prompt the union to file an §8(a)(5) charge which puts at issue whether union is lawful bargaining unit turning on whether election was fair.

26

Remember: There’s no requirement that union be named lawful representative via an election.

October 23, 2012A union can achieve the status of representative of a group of workers in 4 ways:

1. Election2. ULP Proceeding3. Voluntary recognition by the employer4. Employer poll

ESTABLISHING REPRESENTATIVE STATUS THROUGH ULP PROCEEDINGS Does NOT involve an election – Cases center on when a union approaches an employer with cards &

asks the employer to recognize them. Once the cards are presented to employer, he has to bargain. If he refuses, the union may charge

employer with an ULP. Remember Gissel Packing Co.

o Are union authorization cards reliable enough to establish union majority status? May argue they are not as reliable as elections. The Court says they are not as good as elections, but they are good enough. The Board itself will deal with coercion issues – it already has mechanisms in place

for dealing with fraud or coercion.o Is a bargaining order the appropriate order where there have been ULPs that make it unlikely

that you can have a fair election? The SC says YES. They hedge a little bit however – discusses outrageous & pervasive ULPs.

Board can issue a bargaining order even if a union never had a majority of the employees sign cards (no need for majority status). If employer is calculated in planning to commit a ULP.

If evidence that employer planned out ULPs, more likely to find them to be outrageous & pervasive.

Same with demotions on the basis of union activity – also more likely to be found outrageous & pervasive.

Need to be somewhere out of the ordinary ULP situation for it to be outrageous & pervasive and for the Board to issue a bargaining order.

o Can the Board issue a bargaining order in the outcome of a ULP proceeding if the union never had majority support?

Board will not do so in this circumstance – union had to have had majority support at some point, if they didn’t, then the Board will not issue a bargaining order.

Argument in favor – unfair to force a representative on a group of workers where majority never voiced wanting this representative.

ACHIEVING REPRESENTATIVE STATUS THROUGH VOLUNTARY RECOGNITION A union can achieve representative status if it collects a stack of cards indicating majority support,

goes to the employer & says “I have majority support, bargain with me,” & employer says, “I recognize you as the representative of my workers.”

At that point, the union enjoys an irrebuttable presumption that it has majority support for a reasonable period of time (interpreted to be somewhere between 3 & 6 months).

27

o Means during that period of time, internal dissenters (employees that didn't want union) & rival unions can't go down to Board file a petition for an election.

Issues with Union Cards:o Worried that a majority do not really support the union, but all of them signed cards so the

worry is that they are then stuck with that union for 3-6 months since cards are not reliable. What happens for example if you have a union & they get 50% on the cards, seek recognition,

employer grants it setting off the 45-day period, negotiations begin & within the period a collective bargaining agreement is put in place…what effect does that agreement have?

o Ordinarily a contract in place serves as bar to file for a petition for election/file for decertification.

o Remember the rules about contracts.o Board said contract only has preclusive effect until the petition gets signed & won't have

effect on petition signed during that period.o So it alters the contract bar rule.

ACHIEVING REPRESENTATIVE STATUS THROUGH EMPLOYER POLLS This is the final way a union can achieve representative status. 5 conditions must be met:

o Most notably must be by secret ballot. If a poll is taken & reveals that the union does have majority support, then the employer is under the

obligation to bargain.

When Does a Union Lose Majority Support/Lose Their Status as Representative?Comes up in 3 different contexts:

(1) When an employer can withdraw recognition WITHOUT incurring an §8(a)(5) violation.(2) When an employer can take a poll to test an incumbent unions strength (taking a poll to test

hypothesis that there is no majority support).(3) When employees or an employer can file a decertification petition.

These 3 questions used to be answered under a unitary set of standards; now the answer is a little more complicated.

HYPOTHETICAL Day 1 – Election held by NLRB; Union wins 8-5. Day 7 – Employer gets a letter signed by 9 employees saying they disavow the union; now, the

employer refuses to bargain. Has this employer by refusing to bargain & withdrawing recognition of this union who just won the

election committed an §8(a)(5) violation? Will turn on whether union still has majority support; don't know why they now disavow the union,

but something happened within the week to cause them to do so. Ultimate Question – Has the employer committed an ULP here?

o The SC has said YES they have. RULE: After an election, the election sets off a 1 year period where the union enjoys an

IRREBUTTABLE PRESUMPTION that it is still a majority union (the 1 year election rule).o Meaning it doesn't matter if the next day or week, the employees sign such a letter.o Arguments in favor of this rule are many:

28

One reason is because we prefer elections over signed letters; tend to think employees are more likely to express their true preferences with regard to the union via an election held by the union/by secret ballot vs. through such a letter.

The flip side is that it decreases the incentive for the employer to frustrate the bargaining process.

o Arguments against: Potentially frustrating employee free-choice; maybe something happened that really

made them want to change their mind about the union & this prevents them from doing anything about that.

o If in an ULP situation, reasonable period of time is 3-6 months to a year. Let's say a year passes, a contract is created, somewhere in 2nd year employer says he doesn't think a

majority is represented & he’s going to test it; either going to take a poll or withdraw recognition – can the employer do that?

o In this situation, there’s ALSO an irrebuttable presumption that arises due to a contract bar.o Union enjoys an irrebuttable presumption of majority status for the life of contract OR for 3

years whichever is shorter, subject to the 90/60 day window.

What if you are not in either of these 2 situations – not an election or contract bar situation – what can the employer do then to test majority support?

o Then you are in a period where you have a rebuttable presumption of majority status.o How do you rebut majority status?

Depends on what you are trying to do as an employer: withdraw recognition & cease bargaining or are you planning on filing a poll or seeking decertification?

In order to rebut the presumption/withdraw from the bargaining table, you need to be sure that the union in fact has lost majority status.

If on the other hand you want to take a poll to test union strength or want to file a petition & have the Board come & test their strength, either have to have evidence that the union in fact lost support (actual loss) or if have good faith doubt that union still represents a majority of the workers (lower standard).

o Proving actual loss: An anti-union petition signed by a majority of the employees. Can just count up 1st hand statements made by a majority of the employees.

o Proving Good-Faith Doubt: If have a lot of replacements or high turn-over that might give rise to good-faith doubt. If 30% of employees got together on their own & went down & filed a de-cert.

petition. Other cases, arose when there was a lot of violence at the picket-line. Comments around the plant if sufficiently numerous.

Why should a union get this continuing presumption that it has majority support forever? Not like politics where there are re-elections.

Also, why should an employer ever be in the position to challenge a union's majority status? Why should the employer ever be in the position to question this relationship?

November 6, 2012UNION UNFAIR LABOR PRACTICES

Section 8(b):

29

§8(b)(1) – is essentially the §8(a)(1) equivalent; general catch-all provision that applies to labor unions; part of the right that gets added on by Taft-Hartley to refrain from union membership –

o It is a unfair labor practice for a labor organization or its agents – to restrain or coerce (A) employees in the exercise of the rights guaranteed in §7:

o Proviso: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules

with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.

§8(b)(2) – essentially the §8(a)(3) equivalent – union anti-discrimination provision – unions cannot cause or attempt to cause an employer to discriminate against an employee in violation of §8(a)(3) (for union support or membership) – ULP; here, unions commit an ULP by forcing an employer to commit an §8(a)(3) violation.

§8(b)(3) – essentially §8(a)(5) equivalent – ULP for union to refuse to bargain. §8(b)(4) – prohibits secondary pressure – ULP for union to engage in this. §8(b)(5) – ULP to require employees to pay excessive union dues or initiation fees. §8(b)(6) – ULP for unions to featherbed – when union tries to get employer to pay union members

for not working. §8(b)(7) – Picketing regulations.

UNION DISCIPLINE §8(b)(1) – CATCHALL – unfair labor practice for labor unions to restrain or coerce employees in

the exercise of their §7 rights (right to refrain from union activity). §8(b)(2) – when a union tries to get an employer to go after “problem employee.”

o Exception if what union is doing is to try & enforce a valid union security agreement (i.e., somebody stops paying dues, union can have employer fire employee).

§8(b)(5) – if there’s a union security agreement, union can’t impose discriminatory or excessive initiation fees.

PICKETING & UNION DISCIPLINERegulation of coercive methods in picketing –

If it’s a PICKETING + SOMETHING ELSE situation, then you do a §8(b)(1) analysis – o Ex) Picketing + Violence = ULP

Will this make the whole picket unlawful? Well, it doesn't take many acts of violence to coerce or restrain employees

from exercising their §7 rights (their right to walk through that picket line & take a job as a replacement).

Will 1 or 2 acts of violence be enough to make an entire picket unlawful? Will be up to the NLRB/courts to make a judgment based on their discretion.

Milk Wagon Drivers, Local 753 v. Meadowmoor Dairies, Inc. Facts: Peaceful picket lines. Part of a broader labor dispute & there were many picket lines. Some

experienced violence. Issue: Whether the state can issue an injunction banning peaceful picketing when the picketing itself

is not violent but there is contemporaneously violent conduct, which is concededly outlawed. Holding: Yes. Picking + the threat of violence can be outlawed. It will be more coercive than

peaceful picketing. This kind of picketing will tend to coerce or restrain potential crossovers—violation because the employees have the right to crossover picket lines.

Picketing + Blocking (e.g. entry/exit)

30

ULP in violation of §8(b)(1) – can have it, but can't prevent people from entering or exiting.

Picketing + Language in particular cases Threats of violence from a picket line – ULP §8(b)(1). Language that involves fraud, libel, & misrepresentations = ULP.

Picketing + Silent intimidation Ex) Writing down of license plate numbers can be seen as coercive (e.g. Wallace Co.); BUT if used

to mail literature, then it is not an ULP & not coercive.

Mass Picketing Cases Sometimes an ULP under §8(b)(1) & sometimes not. Many people picketing (huge lines), & even though they may be peaceful & don't block entry, the

court may rule that having numerous numbers of pickets is coercive – may be found to be an ULP (circuits are split on this).

Distinguish from blocking cases. It is more that having that many people picketing is enough to restrain/coerce employees from

exercising their §7 rights.

Remedies for Coercive PicketingTeamsters, Local 901 [Lock Joint Pipe & Co.]

Issue: Whether a union can be forced to give back pay to all employees restrained/coerced in the exercise of their §7 rights.

Holding: NO. Courts state that back pay will harshly prevent unions from utilizing their only economic weapon which is striking because unions feel that they will be monetarily responsible for striking, they will be less likely to strike.

UNION FINES & DISCIPLINE AS COERCION When a union tries to discipline its members internally or use state courts, then we are talking about

§8(b)(1).o Ex) When a union fines a member internally; can bring to state court to enforce that fine.

Also §8(b)(2) – when union uses employer to get back at employee/discipline the problem employee. Also §8(b)(5) – really only applies to initiation fees.

NLRB v. Allis-Chalmers Mfg. Co. (pg. 285) Facts: There is a strike with a picket & some members cross the picket line. The union fined them &

in order to enforce the fines the union brought an action in state court (a contract action). Issue: Whether imposing fines restrains/coerces employees in violation of their §7 rights &/or

whether this is an §8(b)(1) violation. Holding: (Split Decision 5-4): No ULP here. Unions can impose discipline & fines on their members

& enforce them in court without committing an ULP.o The language of §8(b)(1) ("to restrain or coerce") is unclear.o They look to the legislative history of §8(b)(2) & the Landrum-Griffin Amendments.o Looking at §8(b)(1)(A) – where a union has freedom in controlling its membership

("acquisition or retention of membership") & says that unions can expel members so they should be able to fine them.

o Under the §8(b)(1) proviso, unions can come up with their own rules.

31

o In §8(b)(2) there is a distinction because the internal discipline is OK, while external is NOT ok. Makes sense according to Hayden because now a union will be able to kick our members who don't pay their dues.

o Court fears expulsion will weaken unions (Hayden thinks this also makes sense because weak unions need effective strong discipline – need to keep its members in line. If we prohibit enforcing fines, then it would hurt weak unions. Better than kicking employees out of union, which hurts both).

Dissent: o Nothing in the Act talks about unions right to impose fines & collect them in court.o They conclude that fines tend to coerce or restrain the ability of employees to exercise their

§7 rights.o Problem is also that employees don't always know they have the ability to drop from full to

financial core members & can then cross picket lines without running the risk of fines. Full-blown members subject themselves to union discipline whereas financial-core members simply

pay fees & don't subject themselves to union discipline measures. Union members can voluntarily waive their right if they cross over because you voluntarily waive

some rights when you join the union (because you can voluntarily drop back to fee-paying membership status).

The majority's best argument is that this doesn't restrain or coerce their §7 rights because they voluntarily signed up for this.

NLRB v. Boeing Co. Facts: Union calls a strike & some employees crossover. Union imposes heavy fines on these

employees. This is challenged as an §8(b)(1) violation. Issue: Whether imposing heavy fines is an ULP. Holding: Unions CAN impose fines & the court cannot step in to determine the reasonableness of

fines. Fines are not coercive according to Chalmers. "All fines are coercive" but the court can't examine fines because it is not covered by §8(b)(1). The court decided in Chalmers that they are not in the business of assessing fines.

Pattern Makers’ League of North America v. NLRB (pg. 295) Facts: Union has a provision called League Law 13 that says if a strike or lockout is ongoing or

imminent, members can't resign. There is a strike & union members resign from full membership, crossover the picket line, the union rejects their resignation & they are fined.

Issue: Whether the restriction on resignation is a violation under the Act. Holding: Rules that restrict union members right to resign is an ULP.

o Key to Chalmers was that unions can use internal mechanisms, but employees still had a choice & could quit. Here, if you allow a union to change rules of resignation, then it’s outside of their power – expansion of scope of what counts as internal enforcement.

Rule: Members must be free to resign otherwise union rules are coercive because you can't opt out. Counter-Arguments: It's not a condition for employees to be full-blown members. Union members

were informed about the terms of the provision – they knew they couldn't resign. Employees freely joined the union & voluntarily submitted themselves to the rules when they signed the agreement.

November 8, 2012ORGANIZATIONAL & RECOGNITIONAL PICKETING – §8(b)(7)

What counts as picketing?

32

○ Picketing usually involves some kind of mobile patrol with signs.○ There might be attempts by unions to do things that aren’t picketing, but are like picketing

to skirt ULP charges: Ex) Posting a sign on a tree by the entrance & trying to talk to customers/suppliers as they try

to walk inside. Need to decide whether it is picketing, mere hand billing, or neither – whether an ULP exists

will turn on that.○ What about putting the rat up? Is that picketing?○ Board says the key to making something a picket is that it has to involve an ELEMENT OF

CONFRONTATION, e.g. putting the sign up & approaching everyone as they walk in will most likely be enough to fulfill this element.

○ Confrontation meaning forced to deal with them in some way – employers, customers, suppliers or others who have to walk pass the picketing line have to deal with strikers.

RECOGNITIONAL Picket○ Picket targeting the employer.○ Intended to put pressure on the employer to recognize the union & start bargaining with it.○ Putting economic pressure on business & hurts the employer's business.

ORGANIZATIONAL Picket○ Aimed at the employees.○ Intended to put pressure on them & persuade them to join the union/to organize.○ The pressure is both of the persuasive kind; buts pressure on both employers & employees; also

indirect pressure which hurts the employer & will then hurt the employees who rely on employer for a livelihood.

§8(b)(7) – Added by the Landrum-Griffin Act – puts a set of restrictions on the union's ability to engage in

certain kinds of picketing:○ §8(b) it shall be a ULP for a labor organization or its agents –

(7) to picket or caused to be picketed, or threaten to picket or cause to be picketed, any employer where an object is forcing or requiring an employer to recognize the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such a labor org is currently certified as the rep of such employees:

○ This is only going to apply where a union engaged in organization or recognition picketing & that union is NOT the certified representative of employees.

○ This exemption doesn't exempt all lawfully recognized unions; if a union is voluntarily recognized, recognized through a poll, etc. it’s still subject to these §8(b)(7) restrictions & only certified are exempt (those recognized through an election).

There are 3 SITUATIONS WHERE PICKETING IS AN ULP (A, B, & C). (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question

concerning representation may not appropriately be raised under section 9(c) of this Act...- An uncertified union cannot engage in organization or recognitional picketing, where the

employer has lawfully recognized another union (another union certified by an election OR Gissel type bargaining order – if an employer commits a severe/pervasive ULP) & a question concerning representation may not be appropriately raised under §9(c) of this Act (hurdles to filing a petition: contract bar, 1 yr. election bar, etc.)

- If in a situation where another union is lawfully recognized & not at a point in time where an outside union can file a petition (irrebuttable presumption of majority status) then outside union

33

cannot picket for organizational/recognition reasons for the same reasons we do not allow outside unions to file a petition.

- This becomes a 3rd scenario we need to check – - What if you are an outside union, but there’s already lawfully recognized union in place, when

can you try to persuade those employees by means of picket to join your union?o Has to be outside of election/recognition bar period.o Has to be outside of contract bar period.o Also can picket within that 30-day window (set up an organizational picket).

o (B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or…- Disallows organizational/recognitional picketing by uncertified unions when there has been

an election within the last yr. (valid under §9(c))o Ex) Union A wins & 6 months later union B pickets for an election – violation of §8(7)(b)

(B) & also §8(7)(b)(A).- Key to (B) which shows it’s not redundant: election must be a valid election within the last

12 months.o Unions used this provision to challenge elections they believe invalid because in "R"

proceeding there is no direct review. Ex) Union thinks NLRB screwed up by leaving out job categories. Union will start

picketing & employer files an §8(b)(7)(B) violation. (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of

time not to exceed thirty days from the commencement: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such 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.- Means if you’re not in situation (A) or (B), the unrecognized union only has a reasonable period

of time not exceed 30 days to picket before you have to go down & file a petition for an election.- 1 st PROVISO isn't really an exception; rather is more of special circumstance that might arise.

o Employer can file a request with the Board for an expedited election.o Board will step in, skip the hearing, & have an election right away.o Strategically from the point of view from the employer – can let them picket knowing they

can't picket past 30 days cut-off without filing petition or can basically just jump the gun & file an §8(b)(7)(C) charge & say it’s has gone on for more than a reasonable time & ask Board for expedited election.

One way or another an election is going to come up unless they just pull the picket.o One way or another are going to be done with §8(b)(7) because if the union wins, they

will certified or if they lose, §8(b)(7)(B) will apply & they will have to stop picketing.o Gives the employer the chance to make a strategic decision to accelerate the whole

process.- Factual scenario that motivated Congress to pass §8(b)(7) – Landrum-Griffin Act was blackmail

picketing – where the union approached employer & said “recognize me as representative of your employees or I'm going to picket & shut you down”

o §8(b)(7)(C) gives the employer an out.- 2 nd PROVISO is an EXCEPTION.

o Excepts out from §8(b)(7)(C) INFORMATIONAL picketing.o To be exempted needs to fulfill 4 ELEMENTS:

34

o Needs to be addressed to the public (as opposed to suppliers, workers, customers, etc.)

o The message of the picketing has got to be either that the employer doesn't employ union members or have a contract with the union.

o Information has to be truthful.o Picket can't have the effect of inducing other employees not to pick up or

deliver goods or perform services.o Why?

o If worried about blackmail picketing – worried about coercive effects – don't want a union to able to coerce employers into bargaining with them if the employees do not want to be represented.

With an informational picket if it doesn't have the effect, much less the intention, of keeping people from walking through it, then you are just informing the public – shut-down is not an issue.

- REMEMBER – the main prohibition with §8(b)(7)(C) is that it CAN'T EXCEED A REASONABLE PERIOD OF TIME; 30 days is just the ceiling – gives the Board the power to be flexible & address attempts to flout the statute.

HYPOTHETICAL – Hayden walks into employer's place of business & says “recognize me or I'm going to start picketing” & then he walks out. ULP? If so, when has he?

o §8(b)(7) covers both pickets & threats to picket.o Sounds recognitional as described.o If not a certified union & there’s already a lawfully recognized union, can't go down to file petition.o What about §8(b)(7)(C)? How does it apply in a threat to picket case?

o Board looks to see if it is a live threat. o In this situation, clock would start running if it was a live threat.

o If he retracts the threat or goes down within a reasonable period of time to file a petition, then no violation.

NLRB v. Drivers, Chauffeurs, Helpers, Local 639 [Curtis Bros.] (pg. 307) Resolved a confusion which was that: for years & years in a regular old recognitional picketing case

Board had refused to analyze any kind of recognitional picketing under §8(b)(1) (before §8(b)(7) even existed); then, at the last minute, the Board flipped & said you know what we think some of these organizational & recognitional pickets that aren't picketing + restraint or coercion on employees & will analyze under §8(b)(1) to see if it’s coercive.

Meanwhile Congress passes §8(b)(7). The Court here says when Congress stepped in to regulate O&R pickets it declared some to be ULPs,

but the SC says the other thing is does is makes a O&R picket that doesn't fall into A, B, or C legal so don't analyze under §8(b)(1) at all.

§8(b)(7) if it is NOT a picketing + […] case.

International HOD Carriers Local 840 [Blinne Construction Co.] (pg. 310)- Facts: 3 employees signed union cards. The union wants recognition, but the employer refuses to

recognize & transfers one employee (they tell the him they are doing it to destroy the majority status). They start to picket with 3 objectives: (1) recognition, (2) scaled wages, (3) ULP protest of transfer of one employee.

- Feb 8 – union starts picketing.- March 1 – union files an ULP charge, based on a transfer of an employee.

35

- March 11 – the union stops picketing.- March 22 – union files a petition for an election.- April 20th – Board settles the ULP charge.- Here, picketing is going over the 30 days

- Issue: Whether despite the ULP of the employer, the union committed a §8(b)(7)(C) violation?Analyze via 8(b)(7):

There was recognitional picketing. It was NOT the certified union, so we’re still in §8(b)(7) – Which situation are we in?

Are we in situation (A)? NO – There’s no union in place.

Are we in (B)? NO – No valid election in last 12 months.

So we are in situation (C), the catchall. The union picketed for more than 30 days without filing a petition for an

election. Saved by the proviso?

NO – picketing was not informational. Therefore, the union violated §8(b)(7).

- Why is this not a straightforward case then? What does the union argue?o That §8(b)(7) especially (C) was intended to protect blackmail picketing (court rejected

this & said Congress thought about this & in the NLRA only exempted certified unions & not unions with majority status).

o Argue that they had a majority of employees (court rejected this & said “we still want you to file a petition.”)

o If a non-certified union pickets when another union is recognized (certified for O/R purposes), then it violates §8(b)(7)(A) & §8(b)(4)(C).

o Must file a petition to be recognized.- §8(b)(7) is mechanical & should be applied as such; don't be thrown by the equities of the case!- What if the picket had been a protest of an unfair labor practice?

o Not in §8(b)(7) at all because it’s not an O/R picket.

November 13, 2012

Crown Cafeteria v. NLRB (pg. 318) Facts : Union pickets for over 30 days before filing a petition. The court points out that object of

picketing was recognitional but that the purpose of the picketing was to advise the public that the company was a non-unionized employer (pickets don't end up stopping any deliveries).

Issue : Whether this picket fell into that 2nd proviso under §8(b)(7)(C)? Holding :

○ Do the §8(b)(7) analysis: 1st, this was a recognitional picket. 2nd, NOT a certified union, 3rd, NOT in (A) or (B) so need to look at the proviso. It is in (C) because it went over 30 days without filing a petition.

o Almost whenever a union is engaged in organizational picketing, usually to advise the public (2nd proviso) that employer does not have a union contract – long-term goal is to achieve recognition.

36

Does it meet the elements for the proviso?o Addresses the public,o Has the right message,o Telling the truth about it,o Didn't stop deliveries.

It’s in the proviso, so what’s the problem? Argument for why this might not be saved by proviso was:

o The employer argues that the real purpose of the picket is not to address the public, but instead to gain recognition.

o Informational picketing has to involve recognitional organization picketing otherwise nothing would fall within the proviso.

o Only get to proviso if you have a recognitional picket to begin with; that is the only way the proviso makes sense.

Rule: picketing can/has to be both: either recognitional or organizational or both in order to fall under the 2nd proviso of informational picketing – it is particular species of recognitional picketing that we carve out.

Claude Everett Construction Co. (pg. 322) Facts : Union pickets employer with signs pointing out that employer pays non-scale/sub-

standard wages & the union doesn't intend this to stop deliveries. But deliveries stop anyway. Union doesn’t file a petition within the 30 days.

Issue : Tempted to think the issue is the about proviso, but the issue is whether this is a §8(b)(7) violation; need to go through the test!

Analyze with §8(b)(7):o Was this O/R picketing?

NO – they were merely asking that this employer pay area standard wages. Ask what employer has to do for picketing to stop – here employer doesn't

have to recognize the union in order to get the picketing to end, he just has to increase the wages.

o There is no motive that the union intended to have a O/R picket – they only wanted better wages for employees.

o Just trying to get employer to raise wages to protect your own workers that you already represent.

o AREA STANDARDS PICKETING is NOT a species of O/R picketing & is NOT COVERED by §8(b)(7).

o Should it be? Hayden: can argue that forcing an employer to pay standard wages is the same

as forcing him to recognize the union, which would later force the employer to increase the wages anyway. The result is the same. Here, the union achieves recognition informally – employer gives in to the union demand & therefore, informally recognizes the union.

o The key is to always start at the beginning of §8(b)(7) & work your way through & don't just jump to the provisos. Here, the picketing stopping deliveries DOESN’T MATTER because the picketing is NOT O/R so we’re not in §8(b)(7) at all.

SECONDARY PRESSURE §8(b)(4)

37

○ It shall be an unfair labor practice for a labor organization or its agents—(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—( A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by section 8(e);(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9;(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution;

Break-Down Activities (that are proscribed in the statutory supplement)

o i – ULP to engage in or try to induce other employees to engage persuade others to strike or refuse to handle goods.

o ii – ULP to engage in activity of threatening, coercing, restraining some other person engaged in commerce; most typically an employer, with one of the following in mind:

(A) – can't force employer to join a some organization or enter into any agreement prohibited by §8(e) – “hot cargo” agreements.

(B) – can't do one of these 2 things with the object of forcing one person to cease doing business with any other person.

Proviso – exempts out any primary strikes/primary picketing activities. (C) – ULP for a union to engage in one of those 2 proscribed activities in order to force

any employer to recognize you when another union is already in place & recognized/certified.

(D) – Jurisdictional disputes between unions.o Provisos at the end of the section:

It is not unlawful to refuse to cross picket lines (proviso to ALL of §8(b) – now, never a ULP to refuse to cross a picket line).

Similar to §8(b)(7) – exempts out engaging in consumer informational picketing –only applies to §8(b)(4).

PRIMARY-SECONDARY DISTINCTION

38

What type of acts are §8(b)(4) aimed at?o SECONDARY PRESSURE – union pressure aimed at a 3rd party with whom union has no

labor dispute in an attempt to dissuade that 3rd party to stop dealing with the primary party whim whom the union DOES have a dispute.

o Need to identify your players: Must ask who the primary/secondary employers are:

Primary Employer – employer with whom union has a labor dispute with. Employees of the primary are the primary employees.

Secondary Employer – supplier/customer Neutral party with whom you don't have a dispute that you are trying to force

to stop doing business with the primary.o Then need to ask if calling for a picket violates §8(b)(4) –

Look to see if union is attempting to persuade employees to join union or if the union is trying to get a supplier to stop supplying.

Is it the right type of action?o Then must ask if the union is picketing in a way that forces/requires someone to cease

doing business with any other person. Main argument is that it’s unfair to drag a neutral party into the dispute! A more practical reason for having secondary pressure: Enormously powerful weapon for a union

– puts tremendous power into the hands of a union.

NLRB v. National Rice Milling Co. (pg. 329) Facts: Union engaged in recognition picketing. One of the Rice Milling Co.'s customer's sends a

truck. The 2 men driving the truck refuse to pick up an order after picketers persuaded them not to. (Came up under the law that existed with respect to secondary boycotts prior to the change made in 1959).

Issue: Whether when the picket tried to get the secondary's truck to turn around & not make the pick-up, did the union commit at 8(b)(4) violation?

o Issue turned on whether this was concerted activity – (but this requirement drops out of the act in 1959).

Holding: No. It was NOT a concerted activity. o Picketing was direct at a primary employer in a traditional manner & any incidental side

effects will not make it a ULP. §8(b)(4) only applies to secondary activity.o Trying to distinguish an appeal to secondary employees to refuse to do work that brings it into

contract with the primary from an appeal to the secondary employees to refuse to work for the secondary employer in order to force the secondary employer to cease dealing business with the primary.

Former is a secondary effect of primary activity – it’s an incidental secondary effect of behavior/activity that is primary & not a violation of §8(b)(4).

Latter is secondary activity & is violation of §8(b)(4). General Rule: if you have activity on the premises or in front of the premises of the primary,

then it’s a presumptively PRIMARY activity – PROTECTED. If the same is before secondary, then it’s presumptively secondary & is NOT protected.

o It’s NOT okay to put up a picket line by a secondary employer to coerce them to screw over the primary employer.

November 20, 2012 COMMON SITUS PROBLEMS

39

Always 1st need to identify who the primary & secondary employers are!

Sailors’ Union of the Pacific & Moore Dry Dock Co. – NLRB (pg. 333) Facts: A Greek shipper replaces unionized American employees with non-union Greek employees. A

ship, the Phopho pulls into Moore Dry Dock to train new workers. Union wants to represent new Greek sailors & recognition is turned down. Union puts pickets at the front of the entrance of the shipyard closest to where the Phopho is located inform MDD employees & other outside employees that Phopho is hot (non-unionized). Now, the MDD employees cease to perform any repair work for the Greek ship.

Go through the steps: WHO is who?o The Phopho (Samsoc – the shipper) & the Greek crew are the primary, because the union

wants recognition with them.o MDD & the employees are secondary.o Here, picketing is in front of the primary & the secondary – doesn't fall within the general

rule. What is the purpose of the picketing? – There’s no clear answer. Default – picketing in front of a secondary is NOT ok – but this case is different!

How do we allow a union to engage in primary activity when a union is on a secondary's situs? Issue: Do we have illegal secondary activity or legal primary activity? Test will play off the presumption – framed in a way where the default is "this is illegal" – test is that

picketing is "only will considered primary if…" Rule/Test: The secondary employer can be treated as a primary employer if these 4 things occur

– the MOORE test.(1) The picketing is limited to a time when the PRIMARY SITUS IS ON THE

SECONDARY'S PREMISES. (when the primary employees or employer is there – if the ship is there, but no people, then it’s NOT ok) Been more narrowly limited to be that primary's employees need to be there when

picketing. If they (the primary) aren't there, then who must be the target of the picketing? The

secondary(s) & that would be problematic secondary activity.(2) Primary & its employees must be engaged in NORMAL BUSINESS at the primary

situs.(3) The picketing is REASONABLY CLOSE to the primary situs.(4) The picketing CLEARLY DISCLOSES that the dispute is with the primary.

How does the union do here? Step 1 – YES – limited to time when on premises, there’s no evidence that the picketing went

on after the crew left. Step 2 – YES – engaged in normal business – training a crew. Step 3 – YES – reasonably close – union got as close as they could get to the Phopho. It went

as close as allowed & that is reasonably close; only put a picket up at the gate by the Phopho. Step 4 – YES – clearly disclosed that the dispute was with the primary employer. The

picketing signs & the union specifically appealed to MDD & its employees – don't want you to quit work, only want you to quit work that brings you into contact with the Phopho.

SO, the test is passed here – NOT a violation of §8(b)(4). Picketing will always have incidental effects, but it will not always violate §8(b)(4). If a union fails any element, the Board will say it is secondary activity.

40

However, if meet the 4 part test, then the picketing of the secondary employer is treated as if it was a primary employer.

November 27, 2012

NLRB v. Denver Building & Construction Trades Council (pg. 336) Facts: A construction site is owned by a 3rd party. A general contractor (GC) has sub-contractors,

one of whom is not unionized (the electricians). All other subs & GC are unionized & affiliated with D (council). D gives notice to its member-unions that there are non-union people “hot” on the job (signal to pull members off the site). Then they: 1) the council visits the site and reminds GC that they hired non-union employees and 2) post picket signs saying the job is unfair the to the Council. GC eventually fires the subs (non-union). The union subs then come back after the electricians leave and non-union subs file ULP and allege §8(b)(4) violation.

Go through the steps: WHO is who?o Non-union sub-contractor & its employees are the primary according to G & P.o All other subs are secondary.o The GC is secondary.

Here, the general rule & the Moore rule don't apply because both the secondary & primary are on the 3rd party's premises. All these workers are being thrown together on a common site. Here, the strike is before a secondary, because the object is to force secondary not to work with the non-union (primary).

Issue: Whether it is an §8(b)(4) violation to pressure a GC to terminate a contract with a certain sub-contractor?

Holding: YES. Primary employer was the subcontractor & the secondary was the GC. The Court states that the existence of a GC-SC relationship is dealt with the same way as a primary-secondary relationship. GC & SC are different entities & are at arms length so the pressure was on the secondary to stop dealing with the primary.

o Primary should be D&L, a picket against them would be fine. But the picket is not against them here. They don't care that the construction site is different. The union had the right kind of activity but for the wrong purpose.

Dissent: Union is just trying to prevent secondary employees from coming into contact w/ the primary (primary pressure).

o Pickets were only before primary.o Majority disagreed with dissent & said union was trying to put direct pressure on secondary

not to deal with the primary & thus, was secondary which is illegal. Respect the GC-SC as an arms-length relationship & not as some kind of special relationship

that requires special rules.

International Union Of Electrical, Radio & Machine Workers, Local 761, AFL-CIO V. NLRB [ General Electric Co .] (pg. 342)

Facts: GE has a manufacturing plant with 5 gates. Gate 3A is for use by independent contractors that GE hires & the other gates are for GE employees. GE employees strike & picket every gate. As a result, independent contractors refuse to go to work because the GE EES are picketing at their gate.

41

Go through the steps: WHO is who?o GE & its employees are primary.o Independent Contractors – secondary.

Note: this case is opposite of Moore – Here, the secondary is on the primary’s property, while in Moore it’s the opposite.

Issue: Whether picketing gate 3A violates §8(b)(4)(b)? Need to tinker with the MDD test because we are in a different situation – can't be applied here

because of the separate gates. Rule/Test: Primary ERS may create a separate gate for neutrals & the union may not picket

that gate only when the 3 conditions are met:o The separate gate has to separate & marked.

Needs to be labeled that this gate is for independent contractors & is not for GE employees.

Gate needs to be policed/kept separate.o The work being done by those independent contractors or whoever else is using that gate

has to be unrelated to the normal operations of the primary employer. Why?

If the kind of people that are using this gate are customers, suppliers, people doing routine maintenance, etc. then the union should be free to picket the gate because those are the type of people you are normally confronting in the traditional primary picketing situation.

That would be an incidental primary effect of secondary activity.o What kind of work might be unrelated?

Building a new building.o What kind of work would be related?

Normal security, delivering goods, supplying regular maintenance.o The work that the independent contractors are performing has to be of the kind that

doesn't necessitate curtailing regular operations. Ex) Say every 2 yrs. GE has to completely bring it's production process down for a

special cleaning of the assembly line. Have to bring in an independent contractor to clean it for a week & then bring it back up. The work being done by those independent contractors is the kind of work that would necessitate curtailing operations.

Worried about this because if the GE workers call a strike, we don't want them to take advantage;

We would consider them allies & allow the picket. So, basically if the work could only be done when the plant is shut down, then it

doesn't meet the criteria & the employees CAN picket. If the facts satisfy this 3-part test then picketing at the gate IS an ULP; if you fail one or more

elements of this test, then you can picket at the gate & it will NOT be an ULP. Note: under Moore it is easier for the union to commit an ULP whereas under GE it's the opposite.

Building & Construction Trades Council Of New Orleans [Markwell & Hartz, Inc.] (pg. 349) Facts: M&H is the GC (they are the primary) & the union has a dispute with them. Binning & Barnes

are the SCs. The union pickets at the job-site against the GC. M&H in response sets up a separate gate for the SCs. The union, except for a limited amount of time, pickets that gate as well.

Issue: Whether that picketing at the gate reserved for the neutral SCs (the secondary’s) is a violation of § 8(b)(4)?

Holding: YES it is.

42

o Run through Moore Test 1 st : Is the picketing limited to the time when the primary is there?

NO – the picket stayed when they were off the premises. Was the primary employer engaged in ordinary business on the site?

YES. Was it reasonably close to the primary?

Hard to tell; they targeted another gate; would probably say no here too. Was it clear who dispute was with?

Probably not because with separate gates would appear unclear who dispute was really with – if they picket the SC gate then would appear dispute is with the secondary.

o Applying Moore, picket is a §8(b)(4) violation easily – fails on at least 2 or 3 of the elements.

o Run through the GE test: Separate and marked gate that is policed?

YES. Work done by SC unrelated to the normal operations of the business?

NO, this is a construction site; GC is running it; having SCs come on & do work is part of the normal operations.

o Fails the GE test & the picket would therefore be OK. So under Moore it IS an ULP, but under GE it is NOT an ULP. The Court ends up going with the Moore test & thus finds a §8(b)(4) violation. Majority said Moore sets the rules for these common situs situations; it is the general test & every

time we have a common situs, need to use Moore.o They say GE applies only when on a primary’s premises; shouldn't apply here because no

primary premises here, only premises of 3rd party, therefore Moore should apply.o Picketing of 3rd parties is viewed as a common situs problem.

Dissent: Argues that it’s a gates case. They would apply the GE test & not Moore & would find no §8(b)(4) violation.

Special rule for this case: applies to cases with construction sites & gates – separate gate construction cases & cases with construction sites where contractor owns the premises.

THE ALLY DOCTRINE

NLRB v. Business Machine & Office Appliance Mechanics Conferences Board Iue, Local 459 [Royal Typewriter Co.] (pg. 359)

Facts: Royal Typewriter has service contracts under which it is obligated to repair typewriters. Some apply to the typewriters it sells & some are independent service contracts. Key point is they are under a contractual obligation with lots of customers to service their typewriters. Their service personnel strike & picket Royal (the primary). Royal has no one to fix the typewriters so they tell its customers to find independent service providers & have their machines repaired there & send them the receipt & they will reimburse the cost. Royal customers do just that. Sometimes the person would be the one turning in the receipt & being reimbursed & other times the unpaid bill would be turned over to Royal who would directly pay it. The service personnel who were on strike picket the independent service providers who serving royal typewriters.

WHO are the players?o Royal Typewriter is the primary.

43

o The ISPs are all secondary’s – neutrals with whom the service personnel don't have the dispute & are being dragged in – goal is to have the ISPs stop serving royal typewriters.

Issue: Whether this is a violation of §8(b)(4)(B)? Holding: The Court finds that these ISPs are so allied with Royal that we will treat them are

primaries. Thus, picketing would be OK in this particular type of secondary picketing where we treat the independent contractors as primaries.

The Court comes up with a 3-part test to see if a secondary is ALLIED such that we will treat them as primaries –

(1) Secondary must be doing struck work(2) Secondary must be receiving economic benefits from performing the struck work(3) Must be some type of arrangement between the primary and secondary**

Looking for some kind of affirmative alliance Generally means we are looking for some kind of express agreement between the two Or you need some kind of integration between the enterprises; e.g. RT sends

supervisors over to the ISPs to oversee the struck work. If just met 1st two elements, the strike would still be illegal; would just be a perk they are receiving

from the strike – they are not primaries at that point; otherwise, it would render everyone an ALLY. This is almost like a runaway shop without the employer having to run away so of course the picket

can follow the work. Here Royal entered into an affirmative alliance with the customers NOT with the secondary. But, the Court relies on the fact that the secondaries knew they were doing struck work & also

knew of the arrangement with the customers sending their receipts to Royal. Kind of pushes the notice requirement here. A pretty powerful doctrine according to Hayden – this case really tells you how hard you can push as

far as arrangements.

Hypothetical: GM employees go on strike. Now, GM customers go to Ford to buy cars from them. Now GM strikers throw picket line before Ford plants. Here, the striking employees will lose, because there is no relationship between GM & Ford. GM will not reimburse customers who bought car from Ford.

o GO THROUGH THE TEST: although Ford derives economic benefit & performs work usually done by GM, the 3rd requirement is not met – there is no relationship between them.

The key is that you must meet ALL the elements of the test – especially the 3rd element.

November 29, 2012CONSUMER PICKETING

§ 8(b)(4) – Proviso 2 (Consumer Publicity Proviso)o OK for unions to advise the public by means other than picketing that products are being

produced by a primary employer & being distributed by a secondary employer so long as you don't induce work stoppages or interfere with deliveries this is NOT an §8(b)(4) violation.

o We are talking about following a PRODUCT (allied cases were about following the work).o Exception for what would traditionally look like secondary activity.o Goal is to get the consumer to stop buying the product from the secondary.o Means we are talking about include: newspapers, handbills, advertisements, etc.

NLRB v. Retail Clerks, Local 1001 [Safeco Title Insurance Co.] (pg. 364) Facts: Safeco underwrites insurance policies that are sold by local insurance carriers. Safeco has a

relation with Title Insur. Companies (TICs) BUT does NOT give control of personnel & day-to-day activities (there is a relationship between these 2 companies, but this demonstrates that they are NOT

44

allies). The primary relation is that Safeco gives TICs 90% of their business = separate entities & NOT allies. Safeco employees strike & picket Safeco (primary) & also strike TICs (secondaries) [they say Safeco has no union contract & hand bill asking consumers not to purchase Safeco policies].

Issue: Whether picketing & hand billing violates §8(b)(4)? Holding: The potential save by the proviso does NOT protect picketing & here there is picketing in

addition to hand billing so it CAN’T be saved by the proviso.o So why aren’t we done?

Because of the Tree Fruits EXCEPTION. Tree Fruits involves a company that distributed Washington apples; there was

a picket of stores that carried these Washington applies in an attempt to get consumers to not buy applies in the grocery stores that carried them.

Thus the picketers followed the product & threw up a picket in front of the grocery stores.

The Tree Fruit court said there was a distinction between picketing to cut off business at a grocery store & picketing to stop people from buying apples at the store.

Holding in Tree Fruits: Worried enough about 1st Amend. implications of banning this activity such that we are willing to make an exception. These types of pickets are OK where you say "do not buy apples" because the grocery store was an "ally" in a sense & this is the only way to get to the customers. The picketing at the store is not traditional secondary picketing because they did not intend to have the store cease doing business with the packing plant but instead only to say "stop buying apples."

If only following struck product & trying to convince people to not buy the struck product, we will make an exception & say that is OK based on this case.

If the picketing is reasonably likely to threaten the secondary with ruin or substantial loss then it does NOT fall under the Tree Fruits exception.

Back to Safeco:o The wrinkle here is that in Tree Fruits distinguishing between a picketing to stop them from

buying the struck product is very distant from picketing to have store cease dong business. However, in Safeco, since 90% of the business is selling Safeco products, then by picking to stop buying of struck product, is basically to cease doing business. They come up with a way to distinguish – can follow the product as long as you don't threaten the secondary with ruin or substantial loss.

o In Safeco, that was what happened – ruin or substantial loss WAS threatened & thus, the picket was ILLEGAL.

o In Tree Fruits, ruin or substantial loss was not threatened by picketing to convince people to not buy Washington apples.

In the product picketing area; give an example of a union following a product where we use the proviso:

o Imagine Safeco facts, but have them hand billing ONLY.o Proviso does not have the limitation on ruin or substantial loss.

THREATS & COERCION OF SECONDARY EMPLOYERS §8(b)(4) covers 2 kinds of activity: (i) & (ii).

45

We have so far spent time on (i) with a focus on B. Will now move & see what it takes to fall under ii:

o Talking about employers not employees.o Need to be doing more than inducing them to stop working, need to threaten, coerce or

restrain with one of the prohibited objects (A, B, C, D, or E).

NLRB v. Servette, Inc. (pg. 372) Facts: Union calls a strike against a wholesale food distributor (the primary) & pickets. Union also,

goes to the secondary employer/managers & requests that they do not handle anymore of the primary’s goods. Union also threatens to begin a consumer information campaign – hand billing.

Issue: Is this a §8(b)(4) violation? Has the union engaged in prohibited secondary pressure?o To be this violation need to have activities either under (i) or (ii) & with the object of (A)(B)

(C)(D). The issue here, is the TYPE OF ACTIVITY. Does it fall under (i)?

o NO. Is the union here encourage any individual employed by any person to refuse to work or handle certain goods? NO.

o Here, the union goes to the managers of the secondary to persuade them to make a certain managerial decision – no violation. Not appealing to them to stop handling products but rather appealing to them to make a managerial decision on behalf of the grocery store to stop dealing with the primary.

For the distinction between (i) & (ii) to make sense we need to make the distinction between appealing to employees & appealing to management to make a managerial decision.

What about (ii)?o NO. Has to threaten, coerce or restraint & employer with an object of (A)(B)(C)(D). The

action of the union is not a threat, because they threaten to do something that is legal – that they have a right to do – therefore, threatening to do something that you are lawfully allowed to do is NOT a threat (has to be more than mere persuasion).

o Could have done that anyway because that is within the proviso.o Need to look at (i) & (ii) in the context of each other. The structure of §8(b)(4) wouldn’t make

any sense if both (i) & (ii) apply to management. No threat under (ii) & they aren’t encouraging them to refuse to handle goods under (i), all

they do is to attempt to persuade managers to make a certain managerial decision. Therefore, there is NO violation of §8(b)(4).

Edward J. Debartolo Corp. V. Florida Gulf Coast Building Trades Council (pg. 373) Facts: Mall owner (DeBartolo), a store in the mall (Wilson) hires a contractor, High, who is non-

unionized/the primary. Wilson is the secondary. The union goes after the primary & hand bills the mall customers asking them not to patronize any store in the mall, until the mall promises not to deal with any store that hires contractors who do not pay their employees fair wages. All the stores, the mall, & the store that hired contractors – are secondary.

1 st time in court – Issue: Whether the hand billing fell under the consumer information proviso. Under the consumer information proviso – can give info to public, has to be in dispute with the primary & the secondary must be distributing the products of the primary. Holding: the primary & secondaries in this case are not distributing any products of the primary – therefore, doesn’t fall under the proviso. It just didn't fit because it’s not product picketing. The case is remanded to figure out if it’s an ULP?

46

2 nd time in court – Issue: Whether this falls under the §8(b)(4) at all – We need to see whether the activity falls under the (i) or (i) & (A)(B)(C)(D).

Does it fall under (i)? Is this union making an appeal to employees to stop working?o NO. There is no pressure on the employees to quit working, only pressure on consumers.

Does it fall under (ii)? Does this threaten or coerce employers?o NO. Here, must be threatening the secondary (ex – mall owner). Under TF & SC – any kind

of economic threat/loss doesn’t necessarily mean that it is coercive. Also, the court says that hand billing is less coercive than picketing before the secondary. Therefore, NO ULP under (ii).

o For 1st Amend. types reasons, we are not even in §8(b)(4) to begin with.o Here, even though the activity doesn’t fall under the provisos, it is still legal.

Union can appeal to customers in certain cases, can either fall in proviso or TF/SC exception or it can look like this case. Can also appeal to employers of the secondary, e.g. cease doing business with the primary. What you can't do is make an appeal to the employees of the secondary, people with whom you probably have the most in common – that will get you into trouble in these cases.

In these cases, 1st label the primary & the secondary then quickly check to see if there’s any ally relationships in place.

When you see a construction site – apply Moore Dry Dock.

“FEATHERBEDDING” §8(b)(6) – It shall be an unfair labor practice for a labor organization or its agents—to cause or attempt to cause an

employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed;

o Think of Terry in the loft in “On the Waterfront” or the guys on “The Sopranos” at the construction site in lawn chairs.

Provision has become kind of toothless.

American Newspaper Publishers Ass’n v. NLRB (pg. 416) Facts: Union wants an employer to agree to pay its employees to do “make-work” – pay them for

work that is not necessary, work that is not needed & is already made before (duplicate type). Done for job security reasons, to keep workers working. Printers would set bogus & employer would pay them to do that.

Issue: Whether having the employer to pay for “make-work” or putting pressure on employer to pay for it is a §8(b)(6) violation?

Holding: NO, because §8(b)(6) prohibits paying for doing nothing, while here, the employees were actually doing something. While it serves no social good, they are still doing something.

Rule : The featherbedding prohibition is construed narrowly – only covers payment for doing NOTHING. If employees are doing something, then the employer must pay.

If you look to legislative history, they discussed such things & decided not going to inquire into employer's day-to-day activities & see what is worthwhile, so they deliberately decided to word it this way.

What about minimum crew requirements? o Where a union will send out a certain minimum crew despite actual crew needed – That’s

fine.o Agreements where painters union has secured agreement where painter can take a dry brush

& "paint" – still paying them to do something so it’s OK. JUST NEED TO PERFORM A SERVICE.

47

The take-away is essentially, you really have to be paying something for doing nothing for §8(b)(6) to apply.

Some exceptions where allowed to pay for doing nothing:o Paid vacation policies, paid lunch hours, severance pay – seem that all are examples of getting

paid for doing nothing.o These are exceptions & excepted out by the way the Board has interpreted it.o Need to be free to negotiate such things.

SAMPLE EXAM QUESTION(A) The president of Lavalamps sent a letter to all of its employees stating, “Unions are vile. Unions

are evil. Unions killed disco. We are, therefore, adamantly opposed to this effort to unionize.” §8(c) employers can always express their opinions as long as they don’t threaten reprisals

or promise benefits. Here the union president is merely expressing his opinion, so there’s no unfair labor practice because it’s protected speech.

(B) Early in the campaign, the Lavalamps Unlimited personnel department, worried that it might appear to be “buying off” the workers, placed an article in the company newsletter stating the Lavalamp Unlimited’s traditional gift of a frozen Thanksgiving turkey to every employee would be suspended this year.

Withholding a traditional benefit is an unfair labor practice under §8(a)(1) or §8(a)(3) – the key is for the employer to maintain the status quo.

(C) Later in the campaign, the personnel department decided that it made a mistake, & gave a frozen turkey to every employer for Thanksgiving.

Usually giving a benefit in the midst of an organizing drive is an unfair labor practice. But a longstanding benefit is not considered an unfair labor practice.

But, a new baseline was potentially set for the benefit with the article in the company newsletter. The wording “suspended this year” makes it more likely that it will be found to be an unfair labor practice as opposed to if it had said that the benefit would no longer be provided. Also, Giving benefits signals to the employees that it’s the employers who is in charge, so taking it away & then giving it back could make employees scared? Exchange Parts.

(D) The company placed a large posted on the central employee bulletin board. The poster said, among other things, “Unions general drive up labor costs. If you vote for the Electrical Workers’ Union, & the union drives up costs too much, we may be forced, at some point, to cease operations.”

Employers can generally express their opinions with regard to unionism but may not threaten use of force. Predictions must be based on objective evidence as to circumstances beyond the employers control. Could be argued either way. Taken in context, this is a threat & an employer can’t get away with making such a threat simply by saying that it’s not under their control.

48