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I.

EVOLUTION OF LABOR RELATIONS LAWS

A. Labor Movement history


1. Hierarchy of Crafts: (this is before Industrialization)
a) master artisans
b) journeymen – owned own tools but still not masters in their own
right
c) apprentices – legally bound to service for a specified number of
years
d) indentured servant – legally bound to service for a specified
number of years
2. Industrialization
a) By 1900s 2/3 of workers were wage workers. They organized
themselves in trade unions
(1) they formed National Labor Union and Knights of Labor
B. Labor Strikes etc.
1. Early response = criminal conspiracy. e.g. public nuisance, etc.
a) rationale: the employer has a right to conduct his business as he
wants and labor movements (e.g. strikes) interfere with the
employer’s right
2. Closed Shops: where you require that the company only hire people
who are already part of the union. Makes people who weren’t part of the
union unable to get jobs.
a) always illegal – pretty much discrimination (picking nonunion
over union members)
3. Injunctions: employers would go to courts and seek an injunction
enjoining unions from engaging in types of activities, like picketing
a) Vegelahn v. Gunter: employer able to get injunction against
picketing b/c of the right to conduct his business. Plus employees
were breaking their work contracts.
(1) inherently intimidating
b) RULE: strikes unlawful if judge could consider them for
inappropriate reasons or by using inappropriate tactics
C. Anti-Trust Laws
1. Sherman Act (1890)
a) prohibited every contract, combination, in the form of trust or
otherwise or conspiracy in restraint of trade or commerce
b) to prevent monopolies
c) even though it was meant to be against businesses, it was
enforced against labor unions more often than not
d) Loewe v. Lawlor: secondary boycott against hat makers was not
allowed. They were interfering with the business itself
2. Clayton Act (1914)
a) §6: anti trust laws do not prohibit union creation
b) §20: limited court ordered labor-related injunctions.
(1) said you can enjoin secondary boycotts, etc.
c) Duplex Printing: printing press case. They went to the customers
of the printing press company to ask them to stop buying the
printing presses. Were enjoined b/c was a secondary boycott.
3. Railway Labor Act (in response to a strike 1894)
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a) no company unions (unions imposed by the employer)
b) guarantees right to strike but makes lots of provisions to try to
prevent strike or lockout activity from occurring
4. Norris La Guardia Act (1932)
a) prohibits court ordered injunctions in most labor disputes
b) Goals:
(1) overriding policy of ending court interference with labor
disputes
(2) picketing and strikes are protected
(3) government must be neutral in addressing labor disputes
(i.e. not favoring businesses)
(4) Yellow Dog Ks outlawed (where employer makes you sign
a K saying you won’t join a union)
(5) no discrimination due to union activity
5. Wagner Act (“The Act” / NLRA 1935)
a) Gave employee rights
b) §9 - created Ntl. Relations Board
(1) NLRB names the exclusive representative of the workers
(2) deals with union votes etc.
c) Sections Overview:
(1) 8(a)(1) – employer can’t interfere with §7 rights
(2) 8(a)(2) – no company unions
(3) 8(a)(3) – no discrimination due to union activity
(4) 8(a)(4) – no discrimination for testifying or filing charges
against the employer
(5) 8(a)(5) – you must bargain faithfully with the union
6. Taft-Hartley (end WWII)
a) enacted in response to Wagner. The Wagner Act didn’t really
address union behavior, so Taft Hartley Act amended The Act to
address what constitutes unlawful union activity
b) §7 – right to refrain from joining union
(1) remember: companies/unions can require that you join a
union after you’re hired, but you don’t have to go for full
membership, just pay the dues
c) Sections:
(1) 8(b) – defines union ULPs
(a) 8(b)(1) – unions cannot coerce employees
(b) 8(b)(2) – union can’t require employee to be fired
unless security clause required dues and employee
hasn’t paid them
(2) 8(a)(3) – no closed shops
(3) 8(c) – free speech clause as long as there are no threats,
or promises of benefits
(4) 14(d) – right to work. Permits states to pass laws banning
or limiting security clauses (results in fewer unions in these
states)
(5) 301 – fed court jurisdiction for enforcing CBA
7. Landrum-Griffin (1959)
a) Union Financial Stuff:
(1) financial disclosure requirements,
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(2) union elections
(3) fiduciary responsibility of union officers
(4) rights of union members to their union
b) 8(b)(7) – regulates picketing

II. ESTABLISHMENT OF THE COLLECTIVE PARGAINING RELATIONSHIP

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


1. Section 7
a) protection of workers rights to:
(1) self organization
(2) form union, join union, assist labor orgs
(3) bargain collectively thru representatives of their own
choosing
2. Company Interference with §7 Right to form union
a) NOTE: if violate §7 rights, you also violate §8(a)(1) at least
(maybe 8(a)(5) too)
b) GEN: unions are going to want to access employees b/c they will
want to solicit authorization cards, which say that they want to
have a union. These cards are only used to show that there is
interest and will be used by the union to show that they meet the
30% requirement and that there should be an election.
(1) plus you want to encourage other unions to come in and
allow for people to say they don’t even want a union (i.e.
encourage freedom of speech)
c) Blanket Prohibitions
(1) Republic Aviation: company had a blanket rule prohibiting
solicitation of any kind. Union sued b/c this prohibited it
from handing out leaflets to try to get the workers to want
them as their representative.
(a) RULE: blanket prohibition unlawful b/c interferes with
§7 rights
(b) BUT where there is a legitimate reason for prohibiting
the solicitation in certain areas of your business, such
prohibitions will be lawful
(i) e.g. hospital wants to prohibit solicitation in
patient corridors. This is okay b/c it’s a legit
purpose to protect patients b/c the patients are
ill, etc.
(ii) Hospital cafeteria ok b/c patient use of the
cafeteria was voluntary, random, and
infrequent (and could be avoided by unusually
sensitive patients), and the hospital had itself
permitted charitable solicitations there in the
past. Further, patients don’t receive treatment
in the cafeteria.
(2) LOOK TO: whenever a company wants to prohibit
solicitation on premises
(a) special nature of the business
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(b) amount that it will disrupt the business or interfere
with the public
(c) whether it’s a general blanket prohibition or just
against certain kinds (latter is most likely unlawful)
d) e.g. retail stores can require that you go to a nonpublic area to
distribute literature b/c it would interfere (disruptive) with the
business and the public too much to be able to distribute lit on the
sales floor. BUT, distributing literature in the law school library
where the profs want to form a union is okay b/c not really public
3. Work Time v. Work Hours Prohibitions
a) DEF: when company prohibits employees from distribution of lit
during certain times of business operations.
(1) Work Time = when you are actually working for the
company’s benefit (i.e. when you’re working your machine)
(2) Work Hours = whenever you’re actually at the plant. This
can include breaks and lunches, etc. So b/c that’s
technically your time when you’re on lunch, company can’t
prohibit your right to distribute lit.
(a) e.g. working 8-5
b) GEN RULE: if the company prohibits distribution of lit during work
time, the prohibition is presumptively LAWFUL. But if it prohibits
during work hours, it’s presumptively Unlawful.
c) LOOK TO:
(1) intent of employer: significant is the timing
(a) Did the employer make this rule in response to union
activity or was the rule already there?
(i) if no, the intent was probably not to discourage
union activity
(ii) if yes, then employer probably has 8(a)1
violation
d) Work AREAS: company has a legit purpose in making sure you
don’t distribute literature in work areas b/c of litter and possible
interference with the machines. SO rules that restrict solicitations
inside work areas are presumptively VALID.
e) Remember that break-time is decided by state laws. Indiana does
not have a law that gives you a lunch break.
f) Solicitation- giving person union authorization card
g) Distribution-passing out literature
4. Rules Restricting you to be in company only during your own
shift
a) RULE: presumptively invalid 8(a)1 violation
b) You have to allow for employees to be able to communicate w/
each other, and making employees only stay during their own
working time is going to interfere with their right to communicate
with each other.
(1) there may be a legit business interest (disrupting
productivity), but likely rules that say you can only be at
the company during working hours are going to be unlawful
(2) Can union negotiate non-solicitation/distribution rule? Union
can waive certain rights (freedom to strike) in exchange for
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something else, but you can’t negotiate something that will
directly interfere with Section 7 problems.

B. 8(a)(1) Violations
1. GEN RULE: does not require intent. The employer violates §8(a)(1)
when his conduct/rules have the effect of interfering w/ §7 rights
2. Button Wearing
a) GEN: Unions are allowed to wear union insignia. If the company
puts in a rule prohibiting/limiting the wearing of these
buttons/insignia, company has burden of proving that there is a
legit safety reason for not allowing buttons
(1) EXAMPLES when company can limit insignia wearing:
(a) can prohibit oversized buttons or normal ones that
are worn in a distracting manner where the
production process requires constant
concentration
(b) where wearing the buttons may alienate
customers
(c) wearing may incite violence or lead to friction
between groups w/in the workplace
(i) look to preexisting factionalism
(ii) look to provocative nature of the message (e.g.
“Don’t be a Scab” on buttons may incite
violence)
b) Meijer: company rule that only allowed 3 types of buttons
(store prohibited wearing of union insignia during union
organization period), so there was a violation b/c co. could not
show a negative impact on business.
c) Eastern Omni Constructors: construction workers not allowed to
wear stickers on hats b/c of safety concerns. The uniform (orange
color) was functional/safety role
(1) BUT could wear on other things b/c there wasn’t the safety
concern. Rule still protected workers right to wear insignia
d) Burger King: Rule that only allowed them to have Burger King
authorized button b/c INTENT was to keep burger king uniform and
professional working while working up front in restaurant. Not
discriminatory
e) Nordstroms: Rule prohibiting union buttons. Nordstrom’s uniform
code was not as specific as Burger King – employees only wore
professional attire
(1) because they were allowed to wear jewelry and stuff, the
rule was found to be discriminatory
3. Rules against bad language / harassment (Martin Luther Memorial
Home)
a) RULE: look to whether the company rule chills employee
speech in exercising §7 rights. If yes = 8(a)(1) violation
(1) Policy: you want to allow some rules restricting speech
because these rules promote the working environment
b) TEST: (if the language of the rule itself doesn’t explicitly forbid §7
speech)
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(1) employees reasonably construe language of the rule to
prohibit §7 speech or
(2) when the rule was adopted or
(a) if adopted during union activity, likely violation
(3) when rule has been applied or
(a) if rule has been applied to restrict exercise of §7
rights, likely violation
C. NON-Employee access
1. ISSUE: Companies will have rules prohibiting non-employees from
entering. These have a legit business purpose. But you must balance
that with the need for the union to be able to spread their message
2. GEN RULE: company may prohibit access b/c there are other means by
which the union can reach employees.
a) EXCEPT: (burden is on the union)
(1) where there’s no other way to reach the employees
(2) difficult to prove b/c there are t.v., newspaper, internet,
mailers, etc.
(3) e.g. mining, logging, camping, lodges
3. Lechmere Balancing TEST
a) degree of impairment of §7 rights
b) VERSUS
c) degree of impairment of business’s property rights
d) PLUS
e) the availability of reasonably effective alternative means to reach
the employees
4. BUT
a) Sandusky: didn’t allow solicitation, but did allow charities to enter.
(1) this is VALID b/c public policy denotes you don’t want to
discourage charity work
b) Lucile Salter Packard – hospital that allowed both charities and
commercial people.
(1) INVALID b/c you was discriminatory against union for
prohibiting them to distribute information. All sorts of other
groups were allowed in.
(c) Not just charity v. profit, but who is the audience. Girl
Scouts/Salvation Army goes to patrons of mall to make
charitable donations. Hospital case is soliciting employees
and ban is discriminatory in manner. Must allow access to
union in hospital.

D. Union and Equal Access to Employees (§8(c) Violations) (Not an unfair


labor practice. Langauge cannot be used as evidence unless language is
threatening or coercive)
1. GEN RULE: employees who are trying to organize can communicate w/
each other during non working time as long as no interference w/ work /
safety
2. Captive Audience Speeches
a) companies do not have to provide equal time to employees
whenever the company is making an anti-union speech

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(1) (i.e. company makes anti-union speech, unions don’t get to
have equal time)
b) BUT, 24 hours before elections, there is to be NO captive audience
speeches by employer. Not an unfair labor practice unless it is
threatening or coercive.
c) Why have the rule? Sit back and reflect and make a free choice
clear of bombardment. Lack of opportunity to respond to
misinformation by candidates/unions.
3. Content of the Speech
a) RULE: can say any general views about unionism or views about a
specific union, as long as the communication does NOT contain
(1) threat of reprisal
(2) force
(3) promise of benefit
(4) Predictions: you can say that the company will shut down
or etc. as long as you have something to back it up
b) Must maintain LAB CONDITIONS (free and fair election must be
maintained)
(1) freedom of reason, emotion, choice.
(2) Cannot have coercive behavior
(3) If you destroy these lab conditions, will set aside election
c) TEST – forgery
(1) No set aside elections based on misleading campaign
statements alone
(2) Only set aside elections when the company has made
documents that the employees can’t recognize as
propaganda (forged)
(a) Don’t look to truth or falsity of information but to the
deceptive manner in which it was made (Shopping
cart test)
(i) Standard: violation once you make something
out there that employees can’t recognize as
false but take as true
d) Inflammatory Appeals
(1) DEF: where company says stuff like communist like unions,
only blacks join this union unions, etc. Racial Bias etc.
(2) RULE: don’t allow these
(a) because you are just appealing to people’s emotions
and sentiments to influence their decisions (prevent
making reasonable choice.) Ex. Employer says that if
union comes in, everyone will have to speak Spanish.
This is an inflammatory appeal.
(b) destroys lab conditions
(3) even if this is truthful, grounds to set aside elections
e) Polling
(1) RULE: employer MAY ask question as long as
circumstances aren’t threatening or coercive.
(a) it’s not an expression of the employer’s views and so
isn’t protected under 8(c) BUT it does protect the
expression of ideas
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(2) TEST:
(a) purpose of polling is to determine truth of a union’s
claim of majority
(b) purpose is communicated to employees
(c) assurances against reprisal
(d) secret ballot poll
(e) employer not engaged in ULPs or otherwise creates a
coercive atmosphere
(i) FACTORS – is company being coercive
(a) history of hostility
(b) nature of information is sought
(c) rank of questioner (higher the rank,
higher the coerciveness)
(f) place and method of interrogation (are you being
called to the bosses’ office and who is questioning
you).
f) Threat or Promises of Benefit
(1) RULE: employer cannot make promises of benefits as
incentive for employees to vote for no union
(a) BUT union can make promises, but the union can’t
promise anything that it would have control over.
(i) e.g. membership fees – b/c unions control what
your fee is, it could be buying votes just like
the company would be buying votes. BUT, if
they waived the fee for everyone, it’s not a
violation b/c it’s not buying votes anymore.
(a) also, gifts are a violation
(b) also, promise of a favorable position in
the union is violation
(2) Exchange Parts: just prior to the election, the company
gave employees bunch of benefits. VIOLATION b/c “buying
votes”
(3) FACTORS:
(a) history of the company (when it has awarded
benefits in the past, etc.)
(i) e.g. holiday bonuses and the like not a problem
b/c of the company history
(a) just because the award of the benefits
happens to coincide with the union
activity doesn’t necessarily make it ULP
(b) surrounding circumstances (to determining intent)
4. Election Eligibility List (Excelsior List)
a) RULE: you are required to disclose employee contraction
information ONLY when you have a pending election
(1) must provide w/in 7 days of an election
(2) Not an unfair labor practice. If no list is provided, election is
set aside.
E. ELECTION PROCESS (§9)
1. Sign a Petition – there are six kinds of petitions

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a) Certification of Representative (RC petition) = Union filed. show
“substantial amount” of interest (30% of eligible voters)
(1) these are signed authorization cards, which the employer
can’t inspect
(a) remedy for employer is to conduct polling (see
above) to determine whether there is actual 30%
support. But this must meet the requirements of
employer polling.
b) Union Recognition – Representation (RM petition) = Company filed.
You must show that the union demands recognition
(1) you want to have an election immediately before union
gains too much support
c) Decertification (RD petition) = employee filed to get rid of the
union. Requires 30% showing. of interest. Subjected to 1yr
certification bar
2. Hold Election
a) NOTE: employer can agree to recognize the union and forgo the
expense of having an election and just agree to bargain
b) Before Election:
(1) employer must post notice of the election
c) held on employer’s premises usually
d) secret ballot
e) observers: equal amount of representatives from each side are
present (company and union)
f) challengability – each side can challenge voters (i.e. if there’s a
manager present who shouldn’t be there)
3. ULP bargaining order: where company has committed such egregious
ULPs that a fair election is not possible, and the board orders that the
company recognizes the union
4. pre-hire agreement: short term agreement for construction workers
and the like, b/c of short duration of the workers, etc.
5. management rights clause – gives company right to cover what is not
expressly stated in the contract
F. Employer Domination and Assistance 8(a)(2)
1. DEF: no company unions. 8(a)(2) prohibits companies from
dominating, intervening, or providing financial support. NO intent
required
a) Company Union: like joint labor-management committees whose
institution, meetings, and agenda were management initiated and
controlled. Or employee committees that are more independent
but still under management control
2. RULE: only prohibits dominating or interfering with a labor organization
a) LABOR ORG = §2(5) p.25 of supplement
(1) QUESTIONS:
(a) do employees participate in the organization
(b) does the organization exist at least partially to deal
with employers
(c) do the dealings concern conditions of work such as
those specified in the section

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3. Policy: the Act’s purpose is to promote the company from having arms-
length dealings with the employees b/c this promotes harmony and
freedom of expression/association.
a) company unions undermine the policy b/c the employees aren’t as
free to advocate for their positions b/c they fear losing their job
4. Electromation, Inc:
a) RULE: Negotiations between employer and employee committees
which discuss conditions of work= VIOLATION
(1) can talk about quality or efficiency b/c this isn’t a condition
of work
(a) e.g. conditions of work: job classifications, seniority,
vacations, holidays, grievances
(2) okay if it’s designed as a communication device
(a) e.g. where NOT conditions of work (and no 8a2
violation): share information, brainstorm, act as
suggestion box, plan educational programs. Or if the
purpose was to achieve quality or efficiency, or be a
communication device
b) FACTORS: (domination exists where:)
(1) if employer sets it up
(a) i.e. if employee forms and structures the committee,
not violation – even if the employer can influence its
effectiveness
(2) if employer controls schedule for meetings
(3) “ “ sets agenda
(4) if the committee’s existence depends on the employer
c) RULE: Domination exists where employer forms, structures,
controls member, contributes financial support (e.g. paying
employees for their time)
5. INTERFERENCE
a) DEF: where employer unlawfully influences or assists a labor
organization
b) RULE: an employer is prohibited from interfering or assisting with
the creation or operation of a labor organization.
(1) Remember: when a union tells an employer that it has the
support of a majority of the employees it can:
(a) recognize union as exclusive rep
(b) file a petition for an election
(c) or wait for union to do so
(2) However, if the union says it has majority support and it in
fact does NOT have the majority support, it is a ULP if it
recognizes the union w/o an election
(a) moral of the story: you can recognize the union but
you’d better make sure the union is telling the truth
when it says it has majority support
c) Bernhard-Altmann Texas Corp
(1) the company and the union agreed that the company would
recognize the union before the union established that it had
majority status. INVALID b/c this is contributing/supporting
a union, which is 8(a)(2) violation
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d) e.g. contributes financial or other support, assisting union in its
effort to organize employees, soliciting employees to join a union,
permitting union to conduct meetings during paid work time,
permitting us of company facilities, providing secretarial and
clerical assistance
6. COMPETING UNIONS
a) RULE: an employer may recognize a union which represents an
uncoerced, unassisted majority before a valid election petition is
filed
(1) BUT, once an election petition is filed (e.g. by a rival union),
the employer must refrain from recognizing any of the rival
unions until the election results are in – Abraham Grossman
b) An employer is not required to be neutral UNTIL someone files
a petition for an election. After that, the company must be neutral
re any rival union
(1) Remember: a union must always show when it files an
election petition that it has 30% support. If the rival union
does not actually have 30% support, then it cannot delay
recognition of the other union b/c it can’t have an election
to win.

III. RETALIATION IN RESPONSE TO ORGANIZATION AND §7


A. Discrimination – 8(a)(3) violation
1. DEF: §8(a)(3) prohibits employer from discriminating against employees
b/c of union activity. i.e. no discouraging or encouraging union
membership by discriminating w/ regard to hiring or tenure of
employment or any term or condition of employment
a) protects job applicants as well as current employees
b) REQUIREMENTS 8(a)(3)
(1) proof of discrimination
(2) anti union MOTIVE
(3) most frequently filed ULP
2. Edward G. Budd: employee had been drinking on the job, brought a slut
to work, left his job a lot.
a) BUT, he had previously received pay increases as a result of this,
never any disciplinary actions.
b) When he started union activity, he was discharged, and the
company cited above reasons.
(1) VIOLATION 8(a)(3) and 8(a)(1) (If you have 8(a)(3), you will
also have 8(a)(1)) – they were just using those reasons as
excuse.
(a) Timing: they could have fired him earlier for any of
those reasons but didn’t and encouraged the activity
by giving him raises.
(2) Held: Reinstate. BUT, if they begin to discipline his activity
and institute a new policy, they can legitimately fire him
through the paper trail/record of discipline.
(3) Can have a discharge that has negative impact that is
found to be a 8(a)(1) violation but not 8(a)(3). When does
this happen? If anti-union motive missing, but terminate
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employee for involvement in union. When would the Board
find an 8(a)(1)-this is such a key person in the union, that
discharge would interfere with Section 7 rights even though
no anti-union motive present. Employer always has
legitimate interest in running business but if impact of
discharge outweighs employer interest-than Board will find
violation.
(4) NLRB v. Burnup & Sims- employees discharged for
threatening to use dynamite to gain union recognition.
Employees engaged in protected activity (union), and
employer knew it. Basis of discharge was alleged
misconduct. Misconduct never occurred. Employer has duty
to investigate. No 8(a)(3) violation (ct. never got to it), but
ct. says there was a 8(a)(1) violation. You are protected in
your concerted activity until you cross the line with
violence. (*leading cause of death among women in
workplace is violence). Good faith belief is not a defense to
8(a)(1) violation because you look at the impact of the
discharge.
3. Mixed Motive Cases
a) DEF: dual motive, where you have a legitimate business reason for
the discharge but there’s also employer anti union bias
b) The union finds out the employer’s true motive by shifting the
burdens of proof
c) TEST: Wright Line - 8(a)(3) Violation
(1) NLRB Gen Counsel must show the employer’s decision to
discharged employee was motivated substantially by
conduct of the employee which is protected by §7 (showing
to be made by preponderance of evidence)
(a) Prima facie case ELEMENTS:
(i) existence of protected activity under Section 7
(ii) knowledge by employer of that activity
(iii) anti union bias
(2) THEN, employer can
(a) Employer can rebut w/ equal evidence showing that
the bias played no part in his decision (inference
is that employee’s conduct was reason for
discharge).
(i) present enough evidence to balance the
presumption against the employer (i.e. equal
evidence)
(b) Employer has affirmative defense: it would have fired
the employee anyway for permissible reasons relating
to her unprotected Conduct
(i) preponderance of the evidence (burden of
production and burden of evidence-high
standard to meet)
d) Pretext v. Mixed Motive
(1) Pretext: employer asserts valid business reason for its
action, but the evidence shows the reason is a sham. In
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reality, the company rule relied upon didn’t exist or the
employer did not in fact rely on it.
(2) Mixed Motive: two things: (1) a demonstrable and
legitimate business reason; and (2) employer’s hostile
reaction to the employee’s union activity
4. Standard of Review
a) DEF: standard of review that the board and appellate courts have
on decisions by the ALJ (“substantial evidence” by Board so
Appellate Ct. review now less deferential to Board) Why the
change in raising the burden on Board? Board is too pro-worker
and Ct. seen as pro-business.
b) Mueller Brass: The controlling factor is the employer’s MOTIVE.
(1) RULE: An employee may be discharged for any reason
except a showing of anti union motivation, and the Board
oversteps its bounds when it second guesses management
decisions.
(2) Arbitration (ALJs): employer has to show good cause in
firing employee.
(3) Board: looks to whether there’s a ULP (these are two
different standards)
(4) Why was there not a violation in the Stone case when he
had Rx notes and was fired? No requirement for company
to accept the notes. Need to show that company treated
like cases differently.
B. Shutting down, runaway shops, and partial closings
1. DEF: violation 8(a)(3) when company changes or stops its business
operations b/c of anti union animus
2. Shutting Down
a) RULE: a company may suspend its operations or change its
business methods as long as the change is not motivated by an
illegal intention to avoid ets obligations under the Act
(1) Atkins Transfer: 2 employees were in charge of truck
maintenance. Joined a union. The company either had to
pay increased wages to the workers or discharge them.
(a) closed down repair shop. NO VIOLATION b/c this was
a pure business decision. No anti union animus
present. Fact that employees were union members
only incidental to their firing. Decision promotes labor
peace/averts labor strike. Decision falls short of
protecting employees right to collective bargaining.
(b) Would Atkins come out differently following the
Wright Line decision? Wright changed the burdens-
would it change the outcome? No, still have to have
the anti union animus.
(c) MANAGEMENT PEROGATIVE: some things are so
important to running a business that the fact that it
may often discourage union membership is still not
enough for it to but ULP
(i) BUT, if you can show anti union animus
history, this may be enough
13
(ii) balance the different interests of the business
property interests and the employee’s / union’s
right to union activity
b) RULE: only discrimination that encourages or discourage
union membership is proscribed
c) VIOLATION IF:
(1) if there was a different union that came in to represent the
truckers and not the one that was already on it
(2) history of animosity
(3) other organizational things being carried out elsewhere in
the company
(4) if it really wasn’t cheaper for them to fire and contract out
(5) if they were given incentives (raises, etc.) just prior to being
laid off (this would discourage union activity)
3. Runaway Shops
a) DEF: you have multiple plants and the employer transfers work to
another plan or to other employees w/in the same plant or
subcontract the work to another company that does not have a
union
(1) i.e. you can’t move the site of the company to deprive the
employees from exercising their §7 rights
b) VIOLATION IF:
(1) motivated by anti union hostility Or
(2) in an effort to avoid the union
4. Partial Closings
a) DEF: violation of 8(a)(3) IF
(1) motivated by anti union animus intended to chill unionism
in the remaining plants of the employer AND
(2) if the employer should reasonably have foreseen that the
closing would have that effect
b) Remember: management prerogative – an employer has the
right to terminate it’s entire business, even if motivated by
vindictiveness towards the union.
(1) the Act doesn’t not make a company reopen its business
c) Textile Workers Union v. Darlington:
(1) The company had several plants but closed down the
Darlington plant because it was trying to organize a union.
(2) Issue(s): Can you shut down mill completely, or in the
alternative, can you partially close down in the face of
union election?
(3) HELD: 8(a)(3) violation
(a) NOTE: not 8(a)(1) violation
(i) RULE: Section 8(a)(1) violated only when the
employer’s interference with §7 rights
outweighs its true business needs – unlawful
act without motive. (Could have a derivative
8(a)(1) that “flows” from an 8(a)(3).)
(4) TEST: if the decision to close the plant if it’s
motivated by anti union animus which is intended to
chill unionism in the remaining plants AND employer
14
should have reasonably foreseen this effect at time
of making decision.
(a) rationale: a partial closing can have an impact on the
rest of the business by having a chilling effect on the
other employees in the other plants – the same as a
runaway shop would.
(b) Why did they not order Darlington to reopen the
whole plant? Undue hardship on owners.
(c) Main purpose of the act is to prohibit business use of
economic weapons to get future benefits-no unions. If
close the plant or entire business w/o ulterior motive-
there is no future benefit so no 8(a)(1) violation.
(d) Company can terminate the entire business for any
reason. Board no longer has authority over you b/c
you’re not the employer over anyone.
d) FACTORS – anti-union motive
(1) contemporaneous activities – is there union activity going
on at other plants?
(2) geographic proximity – how close are all the plants to each
other
(3) interaction between the plants – you don’t have to have
actual organizational cohesiveness b/w the plants (e.g.
Disney owning airlines, gas stations, grocery stores, etc.)
(a) FACTORS
(i) persons exercising ctrl over one entity have
control over the other
(ii) company closes a plant w/ intent to discourage
union activity
(iii) reasonably foreseeable chilling effect
(4) statements made by employer (history of anti union)
C. Remedies for ULPS
1. Reinstatement (could place the employees in another company owned
plant) and back pay (back pay comes from 10(c)): the normal result –
even if the employee has found other work (sends message to other
employees and to the employer that this action won’t be tolerated. Have
a record of this for the future. Purpose of the act looks at collective
injuries and collective rights…impact was not only on individuals
discharged, but other employees as well. Message is: If you want to
union organize, your job is protected. – Phelps Dodge. Another remedy is
can also issue cease and desist order.
a) employee has duty to mitigate damages (by finding work)
2. Temporary Injunction: §10(j)
a) limited – the injunction is to stop the company from engaging in
ULPs. Hardly ever used
b) go to federal district court. This is a quicker way to get an
injunction for really unfair ULPs. The board process can take up to
two years, the injunction is quick.
c) Standard: court will grand injunction in order to prevent
frustration of the remedial purposes of the Act

15
IV. SELECTION OF THE BARGAINING REP (elections) §9

A. INTRO
1. Remember – a company has three options whenever a union claims
majority
a) Recognize the union (as long as you don’t have the thing where
the union fraudulently tells you that they have majority status –
8a2 violation)
b) File Election Petition: this could be helpful if you don’t think the
union is that popular at the time and you think the union will lose
c) Do nothing and wait for the union to file election petition
2. Election Petitions:
a) elections conducted by the board under §9.
b) Union files = must show substantial support/interest of the
workers (at least 30% of the members of the would-be bargaining
unit-usually at least 60% to win)
(1) for rival unions – a rival union only needs to have ONE
authorization card to get on the ballot
(a) BUT, it must have at least 10% support (authorization
cards) before it can challenge the eligibility of voters
(this would be during the election, see below)
c) Commission of an unremedied ULP-union will file blocking charges
to stop election until ULP’S remedied, or union can wait and file
ULP’s with Board after it loses to attempt to get a bargaining order
or more likely the election set aside
B. Decertification Petition
1. DEF: after an election and the resulting certification, any employee or
group of employees can file a petition alleging that a substantial number
of employees NOW assert that a majority of the bargaining unit does
not want to be represented
2. Hold Decertification election if board finds that it’s substantial number of
employees (30%)
C. Grounds for Dismissing Election Petition

1. Voluntary Recognition Bar


a) Employees may file a decertification petition up to 45 days after
employer voluntarily recognizes a union. After that, a recognition
bar of 6 months or otherwise reasonable time prevents an
election.
2. Election Bar
a) DEF: no election if valid election has been held in the preceding
12 months (Board Certification bar rule.) Under Taft –Hartley
9(C(3) extended this bar to an election w/I one year of another
election (election bar rule).
b) BUT, if the election is just to talk about increasing the unit size, not
barred
c) Employer gets one year window/gets break.
3. Certification Bar
a) DEF: after a union has been certified, you can’t have a new
election
16
4. Contract Bar
a) DEF: after the CBA is signed, the contract itself may have a clause
which bars an election for up to three years
b) ELEMENTS
(1) K must be in writing
(a) Remember: the contract bar provision itself must be
in the contract
(2) K must be signed by all parties before a rival petition is
filed.
(3) K must specify a specific duration (1,2, or 3 years-no
longer) – if the K does not include a duration = not a K bar

-Why permit this/policy? Things change. Any longer terms,


could block out rival unions indefinitely. Good for
employer…predictable business model.
c) Unlawful Provisions:
(1) If the CBA has a couple provisions which are unlawful (hot
cargo clause), the contract bar may still be VALID
(2) BUT, where the unlawful provision is an unlawful union-
security provision, contract bar is INVALID
(a) e.g. closed shop, contract w/ race/sex discrim, etc.
d) Where K Bar does not happen (rare circumstances but do occur):
(1) Defunctness: union unable / unwilling to represent the
employees in the union (failure to hold meetings or fulfill its
duties)
(2) Schism: local union separates from the national (policy
conflicts)
(3) Changed Circumstances: changes in the employer’s
operations call into question the appropriateness of the
bargaining unit
e) Contract Termination
(1) ISSUE: after the contract bar is up, when can a rival union
petition for a new contract
(2) 90/60 RULE:
(a) a rival union may NOT file a petition more than 90
days prior to the expiration of an existing contract.
BUT, it also may not do it less than 60 days prior to
ending.
(i) THUS, you have to petition between 60 and
90 days prior to the K’s end (this is about 2-
3 months)
(b) Hospitals: have a longer period – 120/90 day (b/c of
more complex issues). Why longer time period? Union
nature of h/c, and they are complex entities for
determining bargaining units.
(c) Purpose of rule: parties need oppty to negotiate K
w/o pressures or interference from rival unions
(3) Premature Extension Doctrine:
(a) If the K is renegotiated before the K is thru it’s three
year period, and the parties agree to a new K bar, the
17
new K will NOT bar an election if the rival petition is
timely filed.
(i) b/c you could technically have it where a new K
could never allow for rival union
(b) RULE: If the contract is renegotiated in the second
year, this new contract makes the old one void
D. Selecting Bargaining Unit §9
1. 9(a) job classifications
2. Process
a) Most of the time, agreed upon by the parties (employer and union)
b) if not agreed, determined by the board:
3. Standard – board determines the “appropriate bargaining unit”, NOT
the best
4. Restrictions
a) Craft Employees – have right to be separately represented. more
like an art than workers.
(1) e.g. glass blowers, fine sheet metal work, fancy furniture
making (NOT carpenters)
b) Professional/Non Professional Employees – can’t be in groups
together unless majority of professionals agree to do so.
Professionals defined under Section 212 of the act. Why? Conflict
of community of interest between the two groups. When would it
be appropriate to combine the two groups? Perhaps when you
have so few professionals compared to non-professionals-wouldn’t
be efficient to put two professionals in their own group.
c) Security Personnel – must be separate from non-security b/c of
conflict of interests.
(1) b/c they need to be completely neutral in executing their
jobs. If they were part of one union and not the other, they
may not do their job effectively
d) Generally, unions favor smaller bargaining units. Why? Easier to
organize. Employer favors larger units b/c it creates dissension in
the ranks/conflict of interest/harder to organize-all good for the
employer.

5. RULE: in determining whether job classifications share a


community of interests
a) FACTORS
(1) similarity in earnings
(2) similarity in other benefits (hours, terms, etc)
(3) similarity in kind of work performed
(4) similarity in qualifications
(5) geographic proximity
(6) continuity or integration of production processes
(7) common supervision and determination of labor relations
policy
(8) history of collective bargaining
(9) desires of employees
(10) extent of union organization
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6. Hospitals: You look at these separately. There are only 8 bargaining
units in hospitals.
a) registered nurses, physicians, professional (except registered
nurses and physicians), technical employees, skilled maintenance
employees, business office clerical employees, guards,
nonprofessional employees (other than technical employees, etc.).
b) RULE: the above control except:
(1) extraordinary circumstances – like when an application of
the general rule produces a unit of five or fewer employees
(2) cases in which conforming units already exist
(3) cases in which a union seeks to combine two or more of the
eight specified units
7. Final Order Requirement
a) It’s hard to get a bargaining determination overturned. Because
the board is not issuing an order when it determines what
your unit is – it’s only “finding” that.
b) GEN: The only way to get unit determination overturned is to get
a Board. You can only do that by intentionally committing a ULP –
usually 8(a)(5) by refusing to bargain with the unit.
Then you can get into federal court to challenge the board order.
Extreme measure. As long as board followed procedures, you’re
probably still screwed.
8. Multi-Location Units:
a) GEN: presumption in favor of single bargaining unit (b/c you don’t
share a community of interests all the time b/c you are in lots of
places
b) FACTORS (when multi-employer unit is okay)
(1) central management – especially in labor relations
(2) prior bargaining history
(3) employee interchange b/w stores
(4) independence/autonomy b/w facilities (favor more
centralized)
(5) similar skills/jobs among employees
(6) geographic location-how far apart are they? Should they be
looked at as single units?
9. Multi-Employer and Coordinated Bargaining
a) DEF: a bunch of independent employers join together to bargain
as a group with a single union which represents employees at each
company. They sign a single master agreement and then
negotiate subsidiary agreements b/w the individual employers
and local unions
(1) Why? provides more bargaining power to small employers
and to unions (where jobs are more temporary)
b) CREATION
(1) Board can’t create, can only say it’s inappropriate
(a) looks to the bargaining history
(2) Consent of the parties by express delegation or
participating in bargaining
c) DISSOLUTION

19
(1) GEN: unions and employers have right to withdraw from
the multi-employer unit
(2) RULE Before Bargaining: provide adequate and
unequivocal written notes PRIOR to the date the CBA goes
into effect (or date negotiations start)
(3) RULE After Bargaining Starts:
(a) Mutual Consent OR unusual circumstances
(i) Unusual Circumstance = where employer faces
dire economic consequences so that his status
as a viable business entity is about or will
cease OR where there have been a bunch of
withdrawals and your bargaining power has
shriveled – can’t keep people against their will
(a) RULE: an impasse during bargaining
does not constitute unusual
circumstances (b/c that’s what you’re
agreeing to when you agree to bargain &
b/c it’s temporary)
d) PRESSURE
(1) GEN: you can’t impose economic pressure on an employer
in an attempt to preserve the relationship
(2) Look to Act: 8(b)(4); (8)(b)(1)(B), 8(b)(3), 8(a)(3)
10. Mixed Union Committees / Coordinated or Coalition Bargaining
a) DEF: When a union who represents the employees at the plant
wants to bring other representatives who represent other
employees to the bargaining table
(1) Note: this is not where you expand a bargaining unit.
b) RULE:
(1) not per se unlawful to bring others to the table
(2) But make sure you are bargaining your own contract
c) General Electric:
(1) GE was confronted by negotiation demands from different
groups in its own company.
(2) RULE: You can’t combine different bargaining units - 9(b)
(3) violation (you can’t agree or demand it)
(a) but that’s not what they were doing here. They just
wanted to bring other people to the bargaining table.
(i) BUT, if the selection is designed to create ill
will with the company = VIOLATION
E. Unfair labor Practice Bargaining Orders
1. GEN: there are two circumstances where a company will be forced to
bargain with the union
a) where the company chooses to do so b/c the union demonstrates
majority status (remember – the company must make sure the
union is being truthful
b) or where the company has made egregious ULPs and the Board
demands that it bargains with the unit
2. Gissel Packing:
a) RULE: Board can issue a bargaining order requiring the employer
to recognize the union and to bargain when an employer has
20
committed ULPs which have made the holding of a fair
election unlikely or which have in fact undermined a unions
majority and caused an election to be set aside.
b) Overruled Rule: if the company is not going to recognize the union
when it showed majority support, company must show good faith
reason why it didn’t recognize this
(1) TODAY, the good faith requirement is not need. You can
simply refuse to bargain w/o an election
3. STANDARD: whether the ULPs interfered with the election in such a way
as to preclude a fair election
a) Categories of ULPs
(1) So pervasive and outrageous as to justify a bargaining
order without first confirming union’s majority
(2) when the employer’s conduct undermines the union’s
majority strength and impedes the election process
(a) requires proof that the union was supported by
majority before the employer’s conduct
(3) minor ULPs which have only minimal impact on the election
and which would not by themselves ordinarily support the
issuance of a bargaining order
(a) designed to remedy past election damage and deter
future misconduct
4. Linden Lumber:
a) RULE: union has burden to initiated elections by filing election
petition. The company is not required to do ANYTHING regarding
union’s demands until there has been an election
(1) NOTE: it can do something (file it’s own petition, recognize
the union) but it is not required to do so.
b) OLD RULE: required the company to recognize unless there was
good faith that the union’s majority status was not in fact
majority.
(1) NOW the burden is on the union to show bad faith on behalf
of the employer.
(a) i.e. must show ULPs in order to make an election.

V. NEGOTIATION OF CBA

A. Statutes
1. §9(a) – representatives selected are the exclusive representative of all
the employees in the unit:
2. §8(a)(5) – ULP for employer to refuse to bargain or to bargain with any
other group / person other than the exclusive representative
3. §8(b)(3) - same as above but for the union’s part
4. §8(d) – duty to bargain in good faith about wages, hourse, and other
terms of employment.
5. §8(c) – free speech clause. you can communicate with your employees
and explain your position as long as there’s no benefit in it for you
6. §8(a)(1) – right to bargain collectively. No threats or promises of
benefits or showing that this is a weak union.
B. Contracts with Individual Employees
21
1. RULE: negotiating for an individual contract is okay b/c it’s a separate K
between the parties as long as the terms don’t take away
provisions from the CBA – JI Case Co.
a) BUT: these are going to be looked on with suspicion.
(1) GEN: individual Ks are okay when there’s a great variation
in circumstances of employment, the CBA may be only
minimal and the individual Ks will provide more specific
benefits
2. The CBA is not a contract but a constitution of sorts.
C. Employer Communication w/ Employees During Bargaining
1. INTRO: §8(a)(5) does not preclude the company from communicating
stuff during the bargaining time (b/c prohibiting the communication
would violate 8c, which is freedom of expression.
a) BUT - NOT PERMISSIBLE
(1) closed door scenario
(2) coercive speech
(3) threat of reprisal
(4) promise or benefit
(5) communicating w/ intent of undermining the union’s
support
D. Majority Rules
1. RULE: minority union members (i.e. members who disagree with the
majority vote on a CBA provision) may NOT engage in unilateral
bargaining
a) this circumvents the union and the majority rule/exclusive
representative thing
2. Emporium Capwell
a) Four employees objected to the majority’s vote to have arbitration
and picketed and urged a consumer boycott.
(1) demanded to meet with the company president over the
matter
b) HELD: unlawful because this bypasses the union’s right to bargain
directly with employer. A union represents ALL members of the
union.
3. Union’s Duty – fair representation.
a) Steele v. Louisville & Nashville RR
(1) Union must represent all the employees in the union in
good faith, even non-union members
(2) You can make reasonable choices, however (like based
on seniority).
(3) But you can’t discriminate on race and stuff
4. Union Member’s Remedies -
a) file Title VII claim against employer in court
(1) if it’s a discrimination matter and you want to deal with it
without the union
b) contact EEOC
c) try to decertify the union
d) drop out of the union and just pay the minimum fees
(1) but here you lose your voice, so it’s kind of not that great...
e) Sue the union for violation of duty of self representation
22
5. §9(a) EXCEPTIONS
a) Generally §9a permits employers to hear grievances from the
employees without violating §8a5 (duty to bargain in good faith w/
exclusive representative)
(1) but that’s not what happened in Emporium- there, they
wanted to actually bargain on behalf of the minority union
members. You can’t do this. BUT you can go to your
employer with your own individual grievance (b/c you’re not
bargaining on behalf of others)
b) RULE: As long as the adjustment to the is not inconsistent
with the CBA and the union has opportunity to be present
6. Protections for Union Members
a) Community of Interests
(1) In making the bargaining unit in the first place, the Board
looks to the factors, above, to try to ensure that the unit
members are going to want the same things
b) Decertification petitions
(1) but Remember – these are subject to contract and election
bars
c) Regulation of union affairs: Landrum-Griffin Act ensure that
members have right to speak at mtgs, to vote, to seek office
d) Freedom not to Join union: you can always choose not to be a full
member and instead by financial core member
e) Some Bargaining Permitted: individuals can bargain over
nonmandatory subjects
f) Direct Bargaining: 9(a) exception, above
g) Fair representation duty on union’s part
E. Duty to Bargain in Good Faith - §8(d)
1. INTRO: under the statute, you have to
a) meet at reasonable times – meaning, you must bargain w/o
unreasonable delays
(1) e.g. violations: when company demands you bargain over
phone, or requires that you put every single proposal in
writing w/o meeting in person
b) confer in good faith
c) execute a written agreement (if requested)
d) NOTE: does not require that you actually agree or make
concessions
(1) BUT, Board will look to the over all justification for specific
proposals and the willingness to make concessions in the
first place
(2) FACTOR: Totality of the conduct considered
2. GOOD FAITH DEF
a) an obligation to participate actively in the deliberations so as to
indicate a present intention to find a basis for agreement
b) ELEMENTS: Montgomery Ward
(1) open mind
(2) sincere desire to reach agreement
(3) sincere effort to reach common ground
3. BAD FAITH
23
a) LOOK TOO:
(1) substance of the proposals made at the bargaining table
(2) or by other dilatory tactics
4. RULE: No surface bargaining. But you may have hard bargaining.
a) ELEMENTS
(1) Look to totality of the conduct (instead of isolated
incidents)
(2) no legitimate business reason on company’s party in
refusing to bargain
(3) no indication of present intention
(4) demand that union make huge concessions without making
any themselves
b) EXAMPLES of bad faith
(1) Insistence on a non-mandatory Subject: e.g. insistence on
presence of stenographer as precondition to bargaining,
etc.
(a) RULE: you can’t insist on a non-mandatory subject as
a prerequisite to bargaining at all
(2) Willingness to compromise: Remember – you don’t’ have to
make concessions, but you must demonstrate willingness
to compromise.
(a) RULE: Can’t insist on stuff that you know is
predictably unacceptable to a union (like you want
them to make a huge concession which would
completely undermine their importance
(3) Hard bargaining on Specific Subjects: you may engage in
hard bargaining BUT if you engage in it for the purpose
of undermining union’s authority = VIOLATION
(a) Examples: you can infer from employer’s hard
position on stuff like security, wages, dues check off,
management rights, arbitration clauses, and no strike
clause
c) A-I King Size Sandwiches
(1) Company demanded a huge, incredibly broad management
rights provision without making any concessions in return.
Wanted union to give up right to strike, but made no
concessions
(2) VIOLATION: b/c they didn’t give anything in return and
demanded that union give up it’s bargaining power
(3) Zipper Clause: clause in which employer and union agree
not to reopen or bargain over any term of the agreement
during the CBA’s term. They’ve already agreed to it, and
zip it up not to be reopened
d) Hard Bargaining v. Surface Bargaining
(1) If the employer has greater economic strength and is just
exercising it, that’s okay.
(2) The issue comes up whenever the company deprives the
union of everything and renders it powerless
F. Duty To Provide Information

24
1. GEN: If an argument is important enough to present, it is
important enough to require some sort of proof of its accuracy
2. RULE: a company must provide information upon demand IF employer
claims an inability to pay (i.e. if they cite economic reasons
a) BUT – if they just say they are unwilling to pay, this is hard
bargaining and not subject to disclosure – Truitt Mfg. Co.
3. Remember: can’t pay v. unwillingness to pay (fine line)
a) Unwilling = the company would be a competitive disadvantage if
they made the concession, etc.
b) Can’t pay = only arises when company says it cannot presently
pay the wages and benefits
4. Union’s Duty
a) Union also has this duty
b) e.g. if the union is saying that their members are on food stamps
etc. b/c of their wages, they are most likely going to have to
DISCLOSE – even though this is personal information
G. Economic Weapons
1. Union Work Slowdowns
a) RULE: not protected under §7 but not prohibited under 8(b)
b) Insurance Agents’ Int’l Union
(1) During negotiations, insurance agents essentially
sabotaged the operation of the business by slowing down
(reported late to work, refusing to complete assignments,
leave work early, picketed)
(2) HELD: not a ULP b/c they’re just using their economic
weapon. BUT, this is not protected under §7 as a
concerted activity
(a) It’s not prohibited, but because it’s not protected, the
company has the option to fire them without
reinstating them
2. Unilateral Changes By Employer
a) RULE: employers MAY NOT make unilateral changes of
mandatory subjects during the course of collective bargaining
(1) this is a per se refusal to bargain
b) Katz:
(1) Employer made unilateral changes to sick leave, wage
increases, merit increases.
(2) VIOLATION – b/c during negotiations, etc.
c) EXCEPTION– LAST BEST OFFER
(1) RULE: when you’ve reached a true impasse or
deadlock you can implement your last best offer
(2) DEF: last best offer is JUST that – your last best offer. You
MAY NOT change your last best offer, only implement the
exact provisions.
(a) ALSO, you may not implement a last best offer that
gives the company way too much power and takes
away union’s bargaining power
(i) e.g. company can’t implement a merit increase
prog which gives it total control over decide
merit increases. McClatchy
25
(a) Policy: Company has gotten what they
wanted, and union’s options (strike)
would do nothing to break the impasse.
You don’t want to encourage company to
make ludicrous demands so that they
reach impasse and get what they want.
(3) Policy: implementing last best offer acts as a kick start to
end the impasse. Company using it’s economic leverage
(4) TEST: whether implementing the last best offer will move
negotiations forward
3. Boulwarism
a) DEF: employer goes into bargaining stating that this is its last best
offer and refuses to listen. Take it or leave it attitude – General
Electric
b) TEST: does the take-it-or-leave it attitude still provide the union
time to respond or at least make another offer?
(1) IF yes – this is just hard bargaining
(a) where union can strike, reject, negotiate, etc.
(2) IF no (and the company implements it) = violation
H. Remedies
1. pg. 75 of Bible

VI. SUBJECTS OF THE CBA

A. INTRO
1. Mandatory Subjects: wages hours, and other terms and conditions of
employment
a) refusal to bargain about these subjects = VIOLATION
2. Permissive: you can but don’t have to bargain. Also, if you refuse to
bargain unless you agree to a permissive subject = VIOLATION (see
above) – Wooster (see below)
3. Illegal Subjects: Neither party may insist upon an unlawful provision
under the Act.
a) Wooster:
B. MANDATORY SUBJECTS
1. GEN RULES
a) Violation if you refuse to bargain on mandatory subjects
b) employer cannot make unilateral changes prior to impasse
c) No individual agreements about these subjects UNLESS union
waives its right to preempt the agreements
2. Wages
a) basic hourly rates of pay
b) paid holidays
c) severance pay
d) bonuses
e) pension plans
f) group health and insurance plans
g) profit-sharing and stock purchase plans
h) stock purchase plans
i) merit wage increases
26
j) employee cafeteria and vending machine prices
3. Hours
a) particular hours of the day and days of the week during which
employees may be required to work
4. Other Terms of Employment
a) DEF: vitally affects employees.
(1) May related with regard to third parties who still have a K
or something that vitally affects the relationship.
(a) e.g. retirees getting health insurance NOT a
mandatory bargaining b/c does not affect current
employees.
(i) BUT compare: if the health benefits are for
spouses/children it IS mandatory b/c vitally
affects current employee
(2) Condition of Employment: germane to the working
environment. i.e. if it has the potential to affect the
continued employment and does not represent a
managerial decision at the core of entrepreneurial control
(a) which is...
(i) fundamental to the basic direction of the
enterprise
(ii) not entrepreneurial in character
(3) LOOK TO:
(a) Current Industrial Practice: how have the parties
treated the subject in the past, what do other
companies do with regard to the subject
b) RELATIONSHIP Affected
(1) LOOK TO: A mandatory subject is between the employer
and the employees. The provision must set a rule with
regard to the employer/employees.
(2) e.g. A ballot provision which demands that the Union vote
on the company’s last best offer before going on strike is
permissive b/c this concerns the relationship between the
union and employees – not employees and employer
c) GEN:
(1) grievance and arbitration provisions
(2) layoffs and recalls
(3) no strike and no lockout provisions
(4) discipline and discharge
(5) sick leave
(6) safety and health regs
(7) definition of bargaining unit work
(8) seniority
(9) union security provisions
(10) hiring halls
(11) management rights clauses
(12) plant rules (e.g. breaks, dress codes, absenteeism,
lateness, parking, safety, fighting)
(13) non discrimination provisions
(14) scheduling and arrangements for the negotiation sessions
27
(15) physical exams
(16) drug/alcohol
(17) polygraph testing
d) Drug and Alcohol testing
(1) RULE: mandatory subject when it’s of current employees
(a) BUT, testing of job applicants is not mandatory b/c
they are not considered employees under the act and
because their tests don’t vitally affect the employees
(2) Johnson Batement
(a) Rule that all employees who were injured on the job
to have drug test.
(b) HELD: Mandatory b/c this has a direct potential to
affect your continued employment.
e) Subcontracting
(1) RULE: mandatory when company replaces union
employees with non-union employees
(a) Remember to make sure that you’re replacing union
employees w/ non union employees who would
otherwise be part of the same unit
(i) e.g. Atkins Transfer where the two repairmen
wanted to join the union and did. The
company laid them off and hired
subcontractors.
(a) b/c they were still considered at-will
employees and there was a legit
economic reason
(2) TEST: the sub contractors must do the exact same work
with the exact same conditions as the union employees
(3) FACTORS – company doesn’t have to bargain IF...
(a) motivated solely by economic reasons
(b) past practice to subcontract in which they didn’t
bargain
(c) no substantial change from that past practice
(Company is maintaining the status quo)
(d) no significant detriment to unit employees
(4) First National –
(a) cleaning company had K with nursing home, which it
decided to terminate
(i) HELD: pure business decision b/c changed
the scope and direction of company
(a) The union couldn’t have affected
anything with the K at all – the K was with
the company and the nursing home
solely, so not mandatory
f) Surveillance cameras
(1) Where employer suspects theft and installs cameras to
catch it
(a) MANDATORY b/c germane to working environment
g) Plant Relocation
(1) Dubuque
28
(a) Plant moved from one place to another in order to
avoid the union. They did offer economic reasons
(that it’d be cheaper) but mandatory subject
because the union could have still tried to
address this (make concessions)
(2) TEST PURE MANAGERIAL DECISION
(a) basic change in nature of employer’s operation
(b) change in scope/direction of enterprise
(c) work performed at new location varies
significantly from the work performed at former
plant
(d) work performed at old plant is to be shut down
completely
(3) Employer Defenses
(a) Affirmative Defense: show you’re not moving b/c of
labor costs but because of other reasons, like tax
price
(i) something union has no control over
(b) Hard Bargaining: just give the union a chance but
make sure it’s NOT surface bargaining – Remember
– must be good faith bargaining
(c) Mixed Motive: if you say you’re moving for the
weather, make sure that’s why you’re actually
moving and someone won’t discover your true anti-
union reason
(d) OR employer can show by preponderance of the
evidence
(i) Labor costs were NOT a factor in the decision
(ii) the union could not have offered anything that
would have changed the decision to relocate
C. PERMISSIVE SUBJECTS
1. DEF: Not mandatory or illegal. Refusal to bargain about these does NOT
constitute a violation.
a) BUT, when you refuse to bargain about mandatory subjects unless
a permissive subject is agreed to = VIOLATION
D. ILLEGAL SUBJECTS
1. RULE: VIOLATION if you insist upon the inclusion of an illegal provision.
And if you agree to one, the provision is VOID and unenforceable
2. EXAMPLES
a) closed shop provisions (8a3 violation)
b) hot cargo clauses (8e violation)
c) hiring hall provision (gives preference to union members)
d) segregation of employees on basis of race in joining union (violates
duty of fair representation)
3.

VII. STRIKES, PICKETING & BOYCOTTS

A. INTRO
29
1. ANALYSIS:
a) Is this concerted employee activity protected or unprotect?
(1) If protected = employer limited on disciplining,
discharging, etc. (b/c §7 rights)
(a) protected = concerted activity
(i) activities of employees who have joined
together in order to achieve common goals and
pursued for union-related purposes (involving
collective bargaining or other mutual aid and
protection)
(ii) is protected even when a union has not been
yet selected as bargaining representative
(a) .
2. STATUTORY FRAMEWORK
a) RULE: Concerted activity is either prohibited by §8,
protected by §7 or unprotected (neither prohibited or
protected)
b) Section 7 – Rights of Workers
(1) right of employees to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
and protection
c) Section 8 – types of unprotected concerted activity
(1) §8(b)(4) – Secondary Pressure
(a) GEN: prohibited from exerting economic pressure on
a firm with which the union does not have a dispute
(in order to cease the business between the
secondary and primary employer)
(b) Publicity Proviso: if you have truthful public
advertising that tells the public that the product
produced by the primary employer is being
distributed by the secondary employer = PERMITTED
(i) i.e. can distribute handbills – not picket
(c) Strikes by non-certified union = VIOLATION (8b4C)
(i) you may not strike or picket for recognition
when there is already a union in place
(2) §8(b)(7)
(a) currently certified union MAY picket for recognition
or organization
(b) Non-Certified Union:
(i) MAY NOT picket when another union is fully
recognized AND
(a) no question exists concerning
representation
(b) valid election has been held in the last 12
months.
(ii) MAY picket but not to exceed 30 days unless a
representation petition is filed.
(c) Publicity Proviso
(i) May picket when the intent is to truthfully
advise the public that the employer does not
30
employ members of (or have K with) a union
UNLESS:
(a) an effect of the picketing is to induce any
individual employed by any other person
in the course of his employment not to
pick up, deliver, or transport any goods or
not to perform any services
B. CONCERTED ACTIVITY
1. GEN: broadly interpreted
2. When union is in place
a) RULE: concerted activity when employee acts to enforce a
provision of an existing CBA
(1) e.g. truck driver is part of a union and refuses to drive
unsafe truck. He was asserting his right b/c his CBA
provided that he’d be provided a safe truck, which the
company “breached” and so he was engaged in concerted
activity even though he was just one person. City Disposal
(a) Remember – employee is still under obligation not to
engage in violence or something in violation of the
act AND if there’s a no strike clause, he may not
strike b/c that’d be in violation of the CBA
b) Right to have Union Rep at meetings
(1) RULE: you are entitled to have union rep at meetings in
which your job security is threatened (i.e. you’re
accused of stealing, doing drugs, etc.) – when you could be
disciplined/discharged
(a) b/c substantial concern
(b) this is because you may not know your rights and all
that
(2) BUT no rep where
(a) schedules or productivity concerns
(b) routine duties of employment
3. Absence of Union
a) Coworkers at Meetings?
(1) RULE: Co workers MAY NOT be present at meetings b/w
employer and employee - IBM
(a) b/c of confidentiality concerns
(b) no mutual aid or protection of all workers at these
meetings
(i) coworker is only working for individual
employees’ rights and not all employees.
Unlike shop steward.
(2) RULE: no right to have union representative
C. UNPROTECTED CONCERTED ACTIVITY (i.e. not protected concerted activity
under §7)
1. Political Speech
a) RULE: employee has duty of loyalty to company – Eastex
(1) therefore, you can only handbill about labor matters and
not about practices in which the company is engaging.
2. Unlawful Objective
31
3. Improper Methods
a) e.g. work slow downs
4. Disloyal Conduct
a) Not protected under §7
b) RULE: you must protest stuff related to labor stuff
(1) you can’t attack finances, public relations, and the like b/c
they have nothing to do with labor disputes
c) RULE: the truthfulness of the information does not matter
(1) BUT, if you put on label of cans of paint that “not made by
union members” this is OKAY b/c it’s publicity proviso but
you MAY NOT say that the paint is chipping or anything
even if it’s true – Patterson-Sargent
D. Employer Response To Concerted Activity
1. Replacement of Economic Strikers:
a) TEST:
(1) Economic Strike or ULP Strike?
(2) REMEMBER: employees will lost their rights to
reinstatement / preferential hiring if the strike was
conducted in an unlawful manner – 10(c)
(a) BUT SOMETIMES in ULP strike, the stiker may still be
entitled to reinstatement if he engages in unlawful
activity
(i) Balance the ULP versus the unlawful
conduct
(a) BUT they usually never reinstate
(i) e.g. has been held that there’s no
reinstatement if you engage in
violence
(ii) as long as the person was not discharged for
cause
b) IF ECONOMIC STRIKE:
(1) DEF: employees who strike to bring economic pressure on
an employer during bargaining
(2) RULE: Employer may hire permanent replacements
(a) This is not a 8(a)(1) or 8(a)(3) violation because
you’re not actually firing the workers for their activity,
you’re making a business decision.
(3) Mackay:
(a) RULE: striking workers placed on preferential hiring
list – even though they’re not entitled to
reinstatement
(i) employees get first bid if the replacements are
laid off / fired / quit
(b) employer may not discriminate against strikers by
refusing to reinstate them solely b/c of their activity
in the union / strike
c) IF ULP STRIKE:
(1) DEF: employees who strike to protest an employer’s ULPs
(2) RULE: Employer must reinstate employees
(a) Must be a sole ULP strike
32
d) CONVERSION DOCTRINE
(1) DEF: when workers initially strike for economic reasons but
they later turn it into a ULP strike b/c the employer
committed ULPs during the strike.
(2) RULE: Strikers replaced during the initial economic strike
phase are NOT entitled to immediate reinstatement BUT
strikers replaced after it converts into a ULP strike ARE
entitled to reinstatement.
e) LOOK TO: the cause of the strike
2. §8(a)(3) VIOLATIONS - Interference, Discrimination, and
inherently destructive Conduct
a) INHERENTLY DESTRUCTIVE
(1) RULE: presume intent when the conduct is so inherently
destructive of §7 rights
(a) Erie Resistor
(i) Company granted super seniority to all
replacements and all returning strikers.
VIOLATION
(ii) RULE: there was not specific evidence of
subjective intent is
3. LOCKOUTS
a) RULE: After bargaining to impasse, an employer does NOT
violate 8a1 or 8a3 by temporarily shutting down its business and
laying off employees in order to bring economic pressure on the
union
(1) this jump starts the bargaining process
4. BENEFITS – What can employers do to them during a strike
a) RULE: If the benefit is received as a result of the work the
company has put out (like holiday bonuses), the company does
NOT need to give these to you when you are on strike b/c you
aren’t producing money when you’re on strike and therefore not
putting anything into the “pot” = continuity of work effort
(a) Vacation Pay: it is VIOLATION when the company
tries to take away your vacation time that you’ve
already received under the CBA b/c you’ve already
been entitled to it and they can’t take that away
(i) Great Dane: the company tried to say that b/c
the CBA had expired, they were no longer
entitled, but they were
5. Crossing Picket Lines
a) RULE:
(1) Unlawful Picket lines (e.g. in violation of no strike/picket
clause) = UNPROTECTED
(2) At your own company = protected
(3) At another company – considered concerted activity BUT
UNPROTECTED b/c secondary boycott in violation of 8(b)
6. Disciplining Union Officials
a) GEN RULE: VIOLATION 8(a)(1) & 8(a)(3) if the company disciplines
union officials more severely than other employees

33
(1) BUT – if the union leaders are actually leading in the
unlawful activity, then they MAY be disciplined more
(a) because you’re in charge of people and have
substantial influence on their actions
(i) PLUS, it’s your DUTY as a union leader to
ensure the CBA is being followed
(a) Remember: board is going to look at it
differently – they’re going to look in terms
of whether the company was violating the
Act. But the ALJ (arbitrator) is looking to
see whether you violated the CBA
b) Metropolitan Edison
(1) CBA had no strike provision. Union members decided to
picket anyway in violation of CBA. Company heavily
disciplined the union officials for participating.
(2) HELD: VIOLATION. 8a1 and 8a3 Discriminating amongst
union employees. Has the bad effect of discouraging
people from taking leadership roles – violation of §7 rights.
(a) Here, the union officials didn’t instigate or lead the
picketing, just participated in it.
(3) NOTE: CBA may include a waiver of the union official’s
right and require that he take affirmative steps to end the
dispute. Clear and unmistakable waiver
(a) THEN, no violation b/c it’s in the agreement that he
be disciplined more heavily
E. Workers’ Right to Vote During Strikes
1. FOR ULP STRIKERS
a) RULE: Right to vote in decertification hearings
b) RULE: Right to vote in ratifying the CBA is controlled by the
union’s bylaws / constitution. They’ll tell you whether you have
the right to vote or not.
2. FOR ECONOMIC STRIKERS:
a) RULE: Right to vote in decertification hearings
(1) BUT: if the strike has last for MORE THAN 12 MONTHS =
NO RIGHT TO VOTE
b) RULE: Right to vote in ratifying the CBA is controlled by the
union’s bylaws / constitution. They’ll tell you whether you have
the right to vote or not.
3. FOR REPLACEMENT WORKERS
a) During ULP Strikes = NO RIGHT to vote b/c you’re going to be
replaced anyway
b) During Economic Strikes = RIGHT to vote b/c you’re a permanent
employee at that point

VIII. HANDBILLING, PICKETING & STATE REGULATIONS

A. INTRO
1. Con Law Issues
a) Right to join a union = freedom to associate
34
b) Employee property rights – 5th amendment (no take life lib or prop
w/o due process)
c) Right to strike- is in the Act (and can be taken away by the CBA
2. Picketing v. Handbilling
a) Picketing is inherently coercive b/c you’re being persuaded by
the action
(1) more than speech, it’s a show of economic power
b) State Reg: They can only regulate, not put a blanket prohibition
on it b/c guaranteed by fed law
c) Handbilling = you’re persuaded by the message, not the action
(1) DeBartolo – companies can regulate where you give out
handbills (can make a mall entrance inaccessible to you or
something if you want)
(a) can also make a prohibition against solicitation in
general but remember: you can’t discriminate – if
you allow one person in, you allow all in (Lechmere)
B. §8(b)(7) VIOLATIONS - PICKETING
1. ANALYSIS
a) IS THIS PICKETING?
(1) IF NO = end of analysis, not dealing with 8(b)(7)
(2) TEST: must be inherently coercive, confrontational
(a) doesn’t require you to have to have signs.
(3) Signal Effect – handbilling is considered picketing if it has
a signal effect
(a) If the actual impact of the communication is to signal
to other employees not to do business then it’s
picketing
(i) i.e. truck drivers don’t deliver to the company
any more. Look at the company. To some
companies, two truck drivers refusing to
deliver isn’t a huge deal, but to others, it is
b) PURPOSE OF PICKETING?
(1) Objective = recognize/bargain = BANNED (if uncertified
union)
(a) BUT, if a picket line just informs the public that the
place is not involved in a union, NOT banned b/c
purely informational
(b) Organization = BANNED
(c) BUT: election bar applies
(2) Objective = ULP or political issues
(3) Objective = Area Standards NOT banned
(a) i.e. where the picketing is to protest against an
employer for paying lower salaries than the salaries
paid by other employers in the area which are
represented by unions.
(b) usually requires statement by the union that it’s not
seeking recognition or organization
c) CERTIFIED OR UNCERTIFIED UNION?
(1) Currently certified = ALLOWED to picket for recognition
or organization
35
(2) Not Certified =
(a) BANNED in 2 circumstances
(i) If another union has been lawfully recognized
AND no question concerning recognition
(a) NOTE: certification is not required (i.e.
company can choose to recognize w/o
election
(ii) If valid election has been held in last 12
months
(a) i.e. election ban applies
(b) NOTE: If the picketing is ALLOWED (for uncertified
unions), then it may only picket for 30 days or
less.
(i) NOTE: This may be less than this if there’s
violence or intimidation
(3) Is another union certified?
(a) IF YES = noncertified union BANNED
d) ELECTION IN LAST 12 MONTHS?
(1) Election bar applies
e) HOW LONG HAS THIS BEEN GOING ON?
(1) NON Certified = no more than 30 days OR if you’ve filed a
petition
f) HAS THERE BEEN A PETITON FOR ELECTION FILED?
(1) NOT filed = you only have 30 days if non certified union
(2) FILED = you can picket until the election
g) IS THE ELECTION EXPEDITED?
(1) RULE: Only when ULP charge has been filed by employer,
the Board shall direct an election “forthwith” without an
investigation or requiring a showing of substantial interest
h) PUBLICITY PROVISIO APPLICABLE?
(1) No time limit to picketing if PURPOSE is to truthfully advise
the public UNLESS
(a) an effect of such picketing is to halt pickups or
deliveries or the performance of services
(b) NOTE: only applies to situations defined in 8b7C, not
to the other subparagraphs
(2) NOTE: this type of picketing will be protected even if it isn’t
not the only objective but is coupled with recognitional or
organizational activities
(3) Applies to noncertified and certified unions
(4) Remember: make sure it’s not signal picketing
(5)

C. SECONDARY PRESSURE – Picketing


1. DEF: economic pressure by the union on a person with whom the union
does not have a dispute (secondary employer) in order to force that
person to cease doing business with another employer with whom the
union does have a dispute (primary employer)
a) Neutral Employer: prohibition on secondary employer is to protect
neutral employers
36
2. HIST –
a) Original NLRA didn’t deal w/ secondary boycotts.
(1) Taft Hartley Act of 1947 amended to prohibited specific
kinds of secondary activity.
b) NOW: §8(b)(4) declares it ULP for a union to
(1) engage in a strike, refuse to handle goods or perform
services, or to induce any individual to strike or refuse to
handle goods or perform services OR
(2) to threaten or coerce any person using or dealing in
another person’s products or to cease doing business w/
another person IF THE OBJECT IS:
(a) forcing or requiring any person to cease using,
selling, etc etc in the products of any other
producer, processor or manufacturer
(a) NOTE: does NOT DEAL WITH PRIMARY
DISPUTES!!!
(3) AND: no hot cargo clauses - §8(b)(4)(A)
(a) DEF: clauses (in CBA, I assume) where the employer
and the union agree that the employer will not deal
with a certain other employer.
(i) because this kind of clause is exclusively under
management control.

3. Contractors / Subcontractor’s
a) GEN: Because contractors are so different than regular employers
(i.e they’re shorter duration employers, etc.), diff rules apply
b) Primary v. Secondary Activity
(1) ISSUE: General contractors will make several agreements
with several subcontractors.
(a) §8(e) excludes the general contractors from the hot
cargo clauses
(i) REMEMBER: hot cargo clauses are clauses (in
CBA, I assume) where the employer and the
union agree that the employer will not deal
with a certain other employer.
(2) Look to amount of Subcontractor Independence
(a) A lot of general contractors will allow some
subcontractors more independence than others.
(i) Some, though, are more controlled by the
general contractor
(3) RULE: When primary dispute exists with a subcontractor
who is nonunion, and the union puts pressure on the
general contractor to cease doing business with the
subcontractor = VIOLATION
(a) Determining who the primary dispute is with:
(i) Denver Bldg:
(a) RULE: When a primary dispute exist with
a subcontractor who is nonunion, and the
union puts pressure on the general
contractor to cease doing business w/ the
37
subcontractor, VIOLATION secondary
boycott
(b) The problem is that the union has a
dispute with the general contractor and
the subcontractor at the same time. Gen
Contractor b/c you don’t want him hiring
subcontractor’s with non union
employees. Subcontractor because you
don’t want him
(c) THUS: primary dispute w/ contractor and
subcontractor at the same time
(i) BUT: the court views the gen
contractor and subcontractor as
separate employers so the
secondary dispute is ALSO w/ the
subcontractor or gen contractor
(depending on who you’re analyzing
is the primary employer)
(ii) SO VIOLATION 8(b)(4).
4. Ambulatory Sites :
a) DEF: temporary worksite used by primary employer.
(1) e.g. a truck delivery spot at a retail store, ship located in
dry dock
(2) this is likely at a secondary employer location
b) RULE: ambulatory site becomes situs of the primary dispute
even if this is a temporary location at the secondary employer
c) BALANCE: Rights of secondary employer versus the union’s right
to picket
d) Dry Dock
(1) Boat company hires sailors. They dock at the Moore Dry
Dock. They petition on the Moore Dry Dock.
(a) HELD: the primary employer was the company, and
they were technically picketing on the secondary
employer’s premises (the dry dock) BUT, b/c there
was no other way for them to get to the
(b) sailors, they had to picket there.
e) TEST:
(1) When situs is located on secondary employer’s
premises
(2) At the time of picketing, the primary employer was
engaged in normal business at the situs
(3) picketing is limited to places reasonably close to the
location of the situs
(4) picketing discloses clearly that dispute is with primary
employer
(5) CONSIDER: how feasible it is to actually picket at the
primary employer
5. ALLY DOCTRINE
a) RULE: a union may lawfully picket a company which accepts
struck work
38
(1) DEF: work that would not have been sent to or performed
by it except for the labor dispute between the union and
primary employer
b) Douds
(1) the company went on strike and hired scabs from another
companies. They had started to subcontract to the other
company before the strike. After the strike began, the
company subcontracted all its work to the other company
(a) This made the other company NON neutral and
therefore, the union COULD PICKET at the other
company
c) NEUTRAL EMPLOYER:
(a) wholly unconcerned with the dispute between
the primary employer and its employees
(b) HERE: the other company was not completely neutral
b/c their wages were paid because the union was on
strike
6. PICKETING AT GATES
a) ISSUE: Can an employer set up special reserved gates for
neutral employees where picketing CANNOT occur?
(1) YES as long as....
b) RULE: If the work performed by the people using the reserved
gate is related to the normal operations of the employer = NO
VIOLATION if you picket there
(1) e.g. truck deliveries etc are primary activity
c) REQUIREMENTS: GE
(1) Separate gate marked and set apart from other gates
(2) work done by those entering must be unrelated to the
normal operations of company
(a) e.g. construction work to expand the factory
(3) work must be of a kind that would not, if done when the
plant were engaged in its regular operations, necessitate
curtailing those operations
d) RULE: union can picket at the primary employer’s place to
secondary employers who are customers or suppliers so long as
the union does not induce or encourage the employees of any
employer to engage in a strike or a concerted refusal in the course
of their employment

7. PUBLICITY PROVISO of §8(b)(4)


a) DEF: IS AN EXCEPTION TO SECONDARY BOYCOTTS
b) REMEMBER: Secondary Boycotts
(1) 8(b)(4)(i-ii) both prohibit secondary boycotts.
(2) 8(b)(4)(ii) says that you MAY NOT threaten, coerce or
restrain anyone who’s engaged in commerce WHERE the
object is to:
(a) 8(b)(4)(B) – to force or require any person to stop
using, selling, handling, transporting, or dealing with

39
the products of any OTHER producer or to stop doing
business with that person.
(i) This is prohibiting secondary boycotts
because of the language in the Provided –
it says that as long as you’re doing something
with the PRIMARY employer that is otherwise
lawful, you are not in violation
(3) RULE - struck product
(a) RULE: Apples case. It’s okay to go outside and picket
for the people not to by Washington Apples – because
that is the dispute you’re having – Fruit & Vegetable
Packers & Warehousemen
(i) i.e. Washington Apples is your primary
employer
(ii) BUT, you can’t say don’t patronize this grocery
store because that’s secondary boycott
(b) RULE: The picketing MUST NOT: be for
(i) Merged Products: when the primary
employer’s product is merged or integrated
into the secondary employer’s goods so that
the secondary employer cannot sell the
goods separately – VIOLATION
(a) e.g. bread company goes to restaurant to
picket the bread, steel products
(b) economic loss is not part of the analysis
to look to UNLESS it’s a major part of the
revenue
(ii) Major part of Revenue: VIOLATION when
struck product is the source of the major part
of the secondary employer’s revenue
(4) the PUBLICITY PROVISO
(a) Sets out the rules where it is OKAY to go to these
secondary businesses.
(b) GEN RULES
(i) it must NOT be picketing. If you are engaged
in picketing, you are NOT PROTECTED
(a) Remember – handbilling can turn into
picketing. See below
(ii) It must truthfully advise the public:
(a) that a product is produced by the
employer with whom you have the
primary dispute
(b) AND that the product is distributed by the
secondary employer
(c) AND must NOT induce others to refuse
to do business with the secondary
employer
(i) i.e. must not turn into picketing
(c) Hot Cargo Clauses:

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(i) DEF: the union and employer agree that the
employer will refrain from dealing in the
products of another employer or from doing
business w/ another person
(a) VIOLATION and prohibited
(ii) If you have one of this, that portion of the
CBA is INVALID BUT the rest of the CBA
remains okay.
D. PICKETING REVIEW
1. IS THIS PICKETING?
(1) If it’s handbilling you do NOT fall under 8(b)(7)
(2) If it’s handbilling you do NOT need to see if you fall under
the 8(b)(4) Publicity Proviso section because you can
handbill and it’s okay
(a) handbilling is okay at secondary site (as long as
not coercive)
(3) If it’s handbilling make sure you aren’t having the effect of
coercing people to not conduct business at the employer
2. WHO IS DOING THE PICKETING?
(1) Look at 8(b)(7) analysis to make sure you’re staying within
the exceptions or doing lawful picketing
(2) Noncertified v. Certified union picketing
3. AGAINST WHOM IS THE PICKETING DIRECTED?
(1) Secondary Employer – MUST fall into 8(b)(4) Publicity
Proviso
(2) Primary Picketing – MUST be lawful under 8(b)(7) analysis
4. WHAT IS THE PURPOSE OF THE PICKETING?
(1) Organization and Recognition = 8(b)(7)
(2) Secondary Boycott = 8(b)(4)

IX. THE COLLECTIVE BARGAINING AGREEMENT

A. INTRO
1. Nature of CBA:
a) Courts call it a constitution and not a contract
(1) if it were just considered a contract, the CBA would only fall
under state contract law. But you want to go to federal
court, so it’s considered more of a constitution.
b) Closed shop clauses = VIOLATION
c) Covers term of the agreement plus plant customs and practices in
the industry
d) Governs terms of employment, but employees are hired and fired
separately
e) §301 – if one of the parties refuses to follow the terms of the CBA,
enforced in court under §301
2. Grievance Procedure
a) Grievance = any dispute arising b/w the parties (broad); dispute
regarding the interpretation and application of the agreement
(narrow)
b) Process:
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(1) employee/union goes to company supervisor
(2) it goes throughout the next higher companies until:
(3) the grievance is the subject of negotiation b/w high
union and company officials
(4) If that doesn’t do it, arbitration
c) Arbitration options
(1) panel of arbitrators
(2) permanent designated arbitrator
(3) expedited arbitration process
(4) American Arbitration Association
(5) Etc.
B. Judicial Enforcement
1. GEN RULES
a) Fed Courts have jurisdiction to hear the dispute and can create
body of precedent – Textile Workers &
(1) Taft Hartley Act - §301(a)
(a) suits for enforcement of a CBA may be brought in fed
dist courts
(b) Individual Employees: may also file §301 against an
employer for “uniquely personal rights” und3er the
CBA (e.g. special employment conditions or wage
rates)
(2) REMEMBER: must exhaust all administrative
remedies before going to court
b) State courts = concurrent jurisdiction (but most likely, remove it
to fed court) – Charles Dowd Box
(1) RULE: Courts may look to state laws but those state laws
will be absorbed as federal law – i.e. they’re not exclusive
just for that particular state but applicable to everyone.
c) Apply federal law if in state court – Lucas Flour
d) Role Of Arbitrator
(1) Looks to the CBA and not anything outside of it (except in
limited circumstances)
(2) Looks to common law of the shop

2. DEFERENCE : Steel Workers Trilogy


a) GEN RULES:
(1) Courts role limited to determining whether the
parties have agreed to arbitrate the dispute
(a) United Steelworkers of America v. American Mfg. Co.
(2) Any doubts whether dispute is covered by the
arbitration clause should be resolved in favor of
arbitration
(a) US Steelworkers of America v. Warrior & Gulf
Navigation
(b) History: courts were seen as very biased and favored
business. In arbitration, you select your “judges” and
it’s a lot more fair
(3) Court must enforce the arbitrator’s decision, even if
the decision is ambiguous or the court would reach a
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different decision on the merits, so long as the
decision is drawn from the essence of the contract
b) FAVOR ARBITRATION
(1) Policy: the CBA is a constitution, which means it’s a way to
enforce self governance. Because courts want this self
governance thing, they really favor arbitration where the
CBA so provides.
(a) industrial self governance
(2) United Steelworkers of America v. American Mfg. Co.
(a) Worker filed compensation papers due to injury on
job. Went to negotiation, and he accepted an
agreement. However, he still demanded arbitration.
Employer refused.
(b) Procedure: the trial court found that, since he had
accepted a settlement already, he had already settled
the dispute.
(c) HELD: Reversed. The trial court looked to the
merits of the claim, not to whether or not this
was governed by the CBA to go to arbitration.
(3) US Steelworkers of America v. Warrior & Gulf Navigation
(a) CBA contained management rights clause providing
that matters which are strictly a function of
management shall NOT be subject to arbitration.
Union filed charges alleging partial lockout after
company contracted out its work and hired back
some workers at reduced wages.
(i) employer refuses to arbitrate
(b) HELD: doubt over whether the dispute is
covered by the arbitration clause should be
resolved in favor of arb.
(i) Management Rights Clause: narrowly
interpreted to refer ONLY to management
functions over which the CBA gives COMPLETE
CONTROL to management
(a) HERE: contracting out work is a common
grievance which is heard by arbitrators,
so common law of shop favors arbitration
over this kind of dispute
c) DEFERENCE TO ARBITRATOR’S DECISION
(1) RULE: court must enforce arbitrator’s decision even if the
decision is ambiguous or the court would reach a different
decision on the merits
(2) US Steelworkers v. Enterprise Wheel
(a) RULE: arbitrator can look to other sources for the
“law” of the CBA but the decision must draw its
essence from the CBA
(i) arbitrators interpret and apply the CBA BUT
they can’t dispense their own brand of
industrial justice

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(ii) COURTS MAY NOT RECONSIDER THE MERITS
OF THE DECISION
(a) EXCEPTIONS:
(i) FRAUD
(ii) ARBITRATOR’S DISHONESTY
3. Expired Contracts
a) GEN: the Act does not state that the agreement to arbitrate goes
beyond the date of CBA expiration. Therefore, employer does NOT
commit ULP when he refuses to arbitrate something that happens
after the CBA has expired
(1) Remember: if the alleged ULP or whatever drew the union
to want to arbitrate had happened during the term of the
CBA and it later expired before it got there, the employer
would be compelled to arbitrate
b) BUT: PRESUMPTION in favor of arbitration post CBA
(1) UNLESS negated expressly or by clear implication in the
contract
(2) LIMITED to disputes arising under the contract, which =
(a) dispute involves facts and occurrences that happened
before the expiration
(b) the action taken following expiration infringes on a
right accrued or vested prior to expiration
(c) disputed contractual right survives expiration under
the terms of the contract
4. Policy Concerns – Arbitration Award
a) RULE: If there’s a public policy that requires the arbitrator to
uphold, the policy must be explicit, well-defined, and
dominant that comes from reference to laws and legal
precedents --- NOT general “public interest” considerations
(1) employer has burden to show just cause for discharge
b) TEST:
(1) Have the parties agreed in the CBA that the employee
could be discharged on this basis?
(a) This must be an explicit provision in the “just cause”
thing
(b) LOOK TO:
(i) previous discharges that were not challenged,
serious safety hazards, etc. – law of the shop
(2) Has employer proven his burden?
(a) burden to show just cause for discharge
c) ASK: Whether arbitrator’s decision violated public policy,
NOT whether the employee’s conduct violated public policy
(1) The arbitrator is supposed to look EXCLUSIVELY at the CBA
and see whether or not the CBA was followed. If he finds
that the CBA did not include that the employer had the
right to fire the person, then the firing is UPHELD – even if
this isn’t the desirable result
(2) ASK: NOT that is there a public policy that condemns the
conduct, but how it affects performance of employment
activities
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d) Drug Abuse
(1) Eastern Associated Coal Group
(a) employee discharged b/c of pot use. Arbitrator
ordered reinstatement b/c there’s a desire to give
people a chance to rehabilitate
(b) ISSUE: Is there a public policy against drug use that
requires the arbitrator to affirm the discharge?
5. NO Strike Clause Enforcement
a) RULE: Courts can issue an injunction against a strike which is
begun in violation of a no-strike clause, IF the underlying dispute is
arbitrable under the grievance and arbitration procedures in the
CBA
(1) people were going to state courts to get the injunction
b) HISTORY:
(1) Norris-LaGuardia Act provides that federal courts may not
issue injunctions, but the Taft Hartley Act provides that
federal courts can hear these grievances
(2) How to reconcile the two?
(a) Norris L. Act didn’t contemplate that unions and
companies would agree to no strike, no picket
clauses, so it IS okay to issue injunctions against
unions whenever they’re not obeying the CBA (i.e.
striking in violation of a no strike clause)
(3) This is because the courts used to issue injunctions on
unions all the time and favored businesses.
c) You may only issue injunction when the dispute is
arbitrable

C. ROLE OF NLRB AND ARBITRATOR


1. Board
a) interprets and enforces the Act or ULP
b) should defer to the arbitrator’s award UNLESSS “repugnant to the
act”
c) BUT, if the Board disagrees with the arbitrator, the Board’s
decision takes precedence
(1) Board defers to arbitrator UNLESS the award is not
susceptible to an interpretation CONSISTENT with the Act
(a) Burden of Proof rests on the person who’s seeking
reversal of arbitrator’s award
d) RULE: Board has jurisdiction of ULP even if the dispute ALSO
involves interp of CBA
2. Arbitrator
a) interprets and enforces the CBA
b) Arbitration is faster than Board process
3. Board and Arbitrator have concurrent jurisdiction BUT, board rarely takes
something before arb
a) public policy of the Act is to encourage arbitration and for that to
be the primary means of getting your reward

X. PREEMPTION OF STATE LABOR LAW


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A. INTRO
1. ISSUE: when does federal reg of labor relations preempt the application
of state law?
2. §301: give fed courts jurisdiction over suits for enforcement of the CBA
3. §303: give employer right to file suit in fed court for compensatory
damages from a union’s prohibited secondary activity (under 8b4)
4. §14(b): states may assert jurisdiction over labor disputes which the
Board declines to regulate under its discretionary jurisdiction
5. §10(c): gives Board authority to relinquish jurisdiction in a specific case
(but Board hasn’t done this)
B. Garmon Preemption
1. RULE: Requires that state and fed courts defer to the primary jurisdiction
of the NLRB WHEN the claim is actually or arguably subject to §7
protection or §8 prohibition
a) but if the board chooses not to take it, it can go back to the state
2. ASK: Will the person still have a claim had there been no CBA?
a) Genesis of the claim must arise out of the CBA in order for
it to be preempted
3. Fed Courts preempt just about every claim
a) SO, as an employer you want to get your claim in federal court
C. EXAMPLES
1. Preempted
a) wrongful discharge
b) defamation by employer (b/c privileged information under CBA)
2. NOT Preempted
a) Title VII claims
(1) pretty much the only way an employee can get in court w/o
going thru arbitration process
(2) Remember: you can still go thru arbitration
b) Retaliatory discharge for filing worker’s compensation

XI. UNION & INDIVIDUAL EMPLOYEE RELATIONSHIP

A. INTRO
1. DUTY OF FAIR REPRESENTATION: to represent all members of a
designated unit to serve the interest of all members without
hostility or discrimination toward anyone, to exercise its
discretion with complete good faith and honesty, and to avoid
arbitrary conduct
a) EXISTS when negotiating a CBA and enforcing the CBA
b) Arises out of §9 – union shall be exclusive representative of all the
employees in a unit
c) BREACH of this duty if union acts in an arbitrary or
discriminatory manner or in bad faith
(1) = ULP under §8(b)(1) and 8(b)(2)
2. Union Security Clauses
a) DEF: requires employees either to join union as a full member or
just to pay a fee for union services as a condition of employment
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b) GEN: states
c) Union Shop Clause
(1) DEF: requires employees to join union within so many
months of being hired to the company
(a) usually required w/in 30days
(2) ALLOWED
(3) can allow for financial core members must CANNOT
force them to become full members
d) Agency Shop Clause
(1) DEF: doesn’t require union membership but, if you don’t
become a member, that you pay for union’s services
regarding the collective bargaining process and grievance
arbitration process
(2) Union favors the union shop clause because that means
you become a member – whether a full member or a
financial core member, you’re still a member
(a) Agency Shop clause merely says you pay for the
services
(b) BUT, legally, union shop clause and agency shop
clause are identical
e) Closed Shop Clauses
(1) PROHIBITED under 8(a)(3)
(2) DEF: requires the potential employee to be a member of a
particular union BEFORE being hired.
(a) gives union too much control over hiring, which is
traditionally a membership thing
f) Dues Checkoff Clause
(1) DEF: employer automatically deducts union fees from
employee’s check IF
(a) you agree to this – union and employee agree
(2) Union wants this in CBA, but this is often a tradeoff for
there to be a no strike clause included in CBA
(3) NOTE: this is not a violation of 8(a)(2) (which says that
companies may not bribe or give $$ to unions) b/c it’s an
authorized payment under CBA
(a) b/c they’re merely giving the union what it would
have gotten thru its members anyway
(b) §302 – criminal penalties for unauthorized payments
by employer to union (i.e. bribes)
3. Full Member v. Financial Core Membership
a) Financial Core
(1) have no vote / voice
(2) Union can’t punish you for failing to meet (some of?) the
rules of the union\
(3) Union can’t allow loyalty oath or mandatory attendance
b) Full
(1) If you cross picket line at your company then you can be
fined
(2) subject to union constitution and by-laws
(3) right to vote
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c) RULE: failure to be either financial core or full member when
there’s a clause = union demand that employee be FIRED
(1) employer failure to fire = ULP, §301 suit
4. Fees:
a) Initiation Fees: can’t be excessive or discriminatory
b) Union dues: must be uniformly required of members AND
nonmembers
(1) BUT union may NOT require payment more than that of a
financial core member
c) Financial Core Membership= costs and expenses related to or
arising out of the processes of the CBA administration and
processing grievances
(1) NOT the union’s political or fraternal activities
d) FACTORS – reasonableness of fees
(1) practices and customs of labor organization in the
particular industry
(2) wages of the currently paid employees
5. Hiring Hall: the place that’s maintained by the union for the assembly
of workers who wish employment and used for other organization
purposes.
a) Job referral service for employers
b) used in industries characterized by irregular and short term
employment
(1) construction, shipbuilding, long shoring
c) Can be non exclusive or exclusive
d) RULE: must treat members and nonmembers the same and must
refer employees based on objective criteria
B. Discipline of Union Members
1. RULE: union MAY regulate the internal affairs and enforce its rules by
disciplining or firing its members
a) BUT union may not interfere w/ the employees’ protected rights
(1) e.g. right to free speech
2. Fines: may fine a member of the union, BUT no fine for conduct
protected under §7
a) NOTE: illegal picketing or striking is NOT conduct protected under
§7
3. Freedom of Speech:
a) PERMITTED as long as non coercive and non-threatening
4. Limits:
a) NLRB does not have authority to evaluate union disciplines UNLESS
the discipline by the union interferes with the employer / employee
relationship OR violates the Act
5. Discipline of Management Supervisors
a) RULE: no discipline for collective bargaining or grievance
adjustment activities.
(1) VIOLATION §8(b)(1)(B) b/c it restrains or coerces an
employer in the selection of management representatives
who will participate in bargaining or grievance procedures
6. Right to Resign:

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a) RULE: Union MAY NOT restrict right of resigning from union and
MY NOT fine such employee for resigning
C. DUTY OF FAIR REPRESENTATION
1. GEN: arises out of the duty for the union to represent all the employees
of the union. Not explicitly stated in the act
a) §9(a)
b) RULE: the representation does not have to be the best, it
must only be ADEQUATE- very deferential to the CBA
(1) NO BREACH where:
(a) negligence
(b) ineffectiveness
(c) mistakes of judgment
2. TEST of fairness
a) Union acts
(1) arbitrarily
(2) discriminatorily
(3) in bad faith
b) BUT, union given wide latitude
c) ASK: Is union’s behavior so far outside a wide range of
reasonableness as to be irrational
3. RULE: you may treat employees differently as long as it’s a rational
discrimination – like seniority
a) union has authority to make concessions and accept
advantages which the negotiators believe will best serve
the interests of the union members
(1) some stuff like seniority benefits are not going to be
favorable to ALL employees, but court gives WIDE
LATITUDE to the parties (union and company) to make
agreements
4. Employee Right to Arbitration
a) DUTY: must process a grievance in a timely fashion and MUST
NOT have bad faith or discriminatory reasons for refusing to
arbitrate
b) RULE: Employee does NOT have an absolute right for his/her
grievances to go to arbitration. The union is allowed to make
reasonable choices regarding which cases it will take through
arbitration
(1) want to encourage enforcing the CBA’s grievance
procedures
(2) as long as the union is not discriminating, it is okay to
decide not to arbitrate
(a) discrimination INCLUDES where union chooses to
arbitrate full members but not financial core
members (as well as other arbitrary stuff like
race/gender)
c) Reasons Union may not want to arbitrate
(1) Financial Reasons
(2) when the chances of winning are slight
5. Exhaust CBA Remedies

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a)RULE: You must attempt to resolve the dispute through all of the
procedures laid out in the CBA BEFORE you can go to court or go
to arbitration
(1) NOTE: Requires attempt to go through the processes
D. UNION DUTIES IN BRIEF / REVIEW
1. DUTY OF FAIR REPRESENTATION
2. DUTY TO BARGAIN
3. DUTY TO PROCESS GRIEVANCES

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