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Labor Law Terms

NLRA (Wagner Act): Sec. 7: Beating heart of NLRA

Employees have the right to self-organize, to form, join, or assist labor organizations, ot bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining (strikes, boycotts - even applies to non-union shops) or other mutual aid or protection.

NLRA Sec. 8

Employer Unfair Labor Practices

NLRA Section: 8(a)1

ER can't interfere, restrain, or coerce EEs with their exercise of §7 rights.

NLRA Section: 8(a)2

ER can't dominate or interfere with formation or administration of unions (outlawing company unions).

NLRA Section: 8(a)3

ER can't discriminate against union members or discourage membership in the unions. After Taft-Hartley, can't encourage, either. EE has the right to not be in the union.

NLRA Section: 8(a)4

ER can't discharge or discriminate against EE b/c he filed charges or gave testimony under the act.

NLRA Section: 8(a)5

ER can't refuse to bargain collectively with EE reps.

NLRA: Sec 9

How unions become certified

NLRA: Sec 10

Remedies

Labor Law:

• Defined in terms of federal legislation, primarily the National Labor Relations Act, govern collective bargaining and union representation

Employment Law:

• Refers to diverse both of state and federal law that regulates individual employment relations.

Low Velocity Labor Market

• People expected their careers to stay with the same company and advance in that company.

High Velocity Labor Market

• Nowadays with corporations coming and going more often people cannot rely on staying with one company and they find themselves wondering what's next.
• It is much harder to organize unions with the frequency of turnovers and job changes in today's High Velocity market.

COLLINS v. CITY OF HARKER HEIGHTS: •

Facts: Gov worker died because of government's failure to train, warn, or provide safety equipment.

• The worker was only denied Due Process under the 14th amendment if the city's failure to train reflects "deliberate indifference" to the constitutional rights of its inhabitants. • Due process clause does not obligate city to maintain minimal levels of safety and security.
• May be an assumption of risk argument if worker is paid a higher wage for danger.

Judicial Assumption of Work -
Individual:

• Voluntary Contract
• Work for Wages
• Wages includes Risk

LYNG v. INT'L UNION, UNITED AUTO WORKERS (1988) •

Facts: Workers go on strike and get no food stamps.

The Court applied a rational basis analysis and concluded that the statute was rationally related to the legitimate governmental objective of maintaining neutrality in private labor disputes. The union should have been providing for the strikers. Three factors: • Act not intended to be a weapon
• Workers choose to strike
• Striker's right to association does not require the gov. to furnish funds to maximize the exercise of that right

INT'L BROTHERHOOD OF TEAMSTER v. DANIEL •

Facts: Teamsters want information regarding investments. They argue that workers holding pension rights are holding securities.

Use the HOWEY test to determine whether worker is entitled to disclosure of info: "Is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others" ** Court says NO: 1. Labor is not an investment because an employee is considered as selling his labor primarily to obtain a livelihood.
2. Employer contributions are not made "on behalf" of any individual worker
3. Charland v. Norge: There is no constitutionalized property right in a job

UNITED STEEL WORKERS OF AMERICA v. US STEEL •

Facts: Workers at factory want the plant to stay in business because their whole livelihood depends on it. Company says they will stay open if certain concessions are made. They closed anyway.

ISSUE:: Did workers have a detrimental reliance right and can the court require a factory to stay open?

Promissory Estoppel:
Workers would have to prove three elements of for the doctrine of Promissory Estoppel:
1) That there was a promise intended to create reliance
2) That the promise capable of being relied upon
3) And that the workers relied on the promise to their detriment

Court:
Workers did not detrimentally rely because the promise was made conditional on something that did not occur (profitability of plant).

COMMONWEALTH v. MORROW (1815) •

Facts: The workers banded together to refuse to work for any less than a specific price or walk out. The court charged them with criminal conspiracy.

ISSUE: Can workers be indicted for conspiracy to quit working if demands are not met?

Yes, any act which threatens to put someone out of business like this and damage the welfare of the town is conspiracy punishable by indictment.

Rationale: This sort of looks like the first makings of a labor union? The judge is concerned about stopping production. (About the government on behalf of the public against the union.)

COMMONWEALTH v. HUNT (1842) •

Facts: Seven defendants banded together in a meeting to make a group which would extort great sums of money from employers by threatening to walk out if not paid better.

ISSUE: Is it a criminal act for a group of workers to band together and make efforts to increase their own wages.

Holding: No, if their intent was a positive one and not just to harm other workers in the same industry, their actions are not criminal.

Rationale: Common law doctrine of conspiracy does not apply to labor unions. Shaw says not every combination to do things is not illegal.
• No problems with workers to get together to do things that they cannot do as easily individually.
• If it is clear that workers can individually withhold their labor why cant they do it as a group?

PAYNE v. WESTERN & ATLANTIC RAILROAD (1884)

• Payne was the first case to announce the at-will discharge rule where the Employer/Employee is free to fire or leave for good reason, bad reason, or no reason at all. Thus, there were no restrictions on mobility.
• There is no equality of bargaining power under this model because everyone has an equal opportunity to bargain for what they want in the free market.

IN RE DEBS (1895)•

Facts: Workers of Chicago Railroad union went on strike. All of the large centers of population in the U.S. were dependent on these stockyards for their food supply.

HOLDING: Court allowed an injunction from strike because the strike was interfering with interstate commerce.

VEGELAHN v. GUNTNER (1896)

When strikers use coercion, intimidation, and threats then the strikers are subject to civil, but not criminal charges.

"One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services the least possible return."

NLRA (1935)

National Labor Relations Act is a United States federal law that limits the means with which employers may react to workers in the private sector that create labor unions, engage in collective bargaining, and take part in strikes and other forms of concerted activity in support of their demands. The Act does not, on the other hand, cover those workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers.

COPPAGE v. KANSAS (1915) •

Facts:

• Railroad Employer has a contract with Employees that they cannot join a union. The Employer sues the state of Kansas for prohibiting the contracts like this.
• These are called "Yellow Dog" contracts and Kansas has a state statute that prohibits such contracts.

HOLDING:

Yellow Dog contracts are OK because the employee voluntarily entered into the contract. Moreover, there is no inherent right to join a union. Further, states cannot interfere with the freedom to contract (Lochner era).

HITCHMAN COAL AND COKE CO. v. MITCHELL (1917) •

FACTS: Coalmine owner owned 5,000 acres of coal lands and operated a coalmine that employed 200 to 300 men. It operated as a non-union mine. The union sought to unionize the plant. The owner brought a suit in equity to obtain an injunction to restrain the union from interfering with the relations existing between the owner and its employees in order to compel the owner to unionize the mine.

HOLDING:

The Supreme Court determined that upon all the facts, it was constrained to hold that the purpose entertained by the union to bring about a strike at the owner's mine in order to compel the owner, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose, and that the methods resorted to by the union were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the union.

WEST COAST HOTEL v. PARRISH (1937)•

FACTS: Employer sought review of the decision of the Supreme Court of Washington, which held that the Minimum Wages for Women Act was constitutional. The employer contended that the Act violated the Due Process Clause of the Fourteenth Amendment.

HOLDING:

The Court upheld a minimum wage law for women on the ground that women were an exploited class who were in an unequal position with respect to bargaining power.

NLRB v. JONES & LAUGHLIN STEEL CO. (1937)•

FACTS: Supreme Court made the NLRA (Wagner Act) constitutional because the NLRA has close connection to interstate commerce.

Rationale for NLRA:
• Employers could not punish workers for joining unions
• Made as a meant to transfer wealth from owners to workers
• Reason for this is that workers will use their wages to buy goods and stimulate the economy
• Section 7 creates a right to employees:
o Can join organizations
o Can bargain collectively through representatives
o Can strike

DEFINITION OF SERVANT:

A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

Right of Control:
1. Masters control over Details?
2. Employed engaged in Distinct Occupation?
3. Length Employed
4. Skills (specialized)
5. Work done under supervision or by a specialist without supervision?
6. Location of Work (onsite or offsite from the ER's location)
7. Tools and place of work (provided for worker or provided by worker?)
8. Pay (By the time or by the job?)
9. Regular Course Business (part of daily production or short term contracted function)

U.S. v. SILK (1947) •

ISSUE: Are drivers and handlers employees or independent contractors?
• It is an important distinction because independent contractors must pay their own Social Security tax, but Employers pay Employee's Social Security tax

HOLDING: Court looks at the definition of Independent Contractor. Both drivers and handlers supplied their own tools. However the drivers supplied trucks (which are more expensive than the cheap tools being supplied by the handlers).

• Drivers were held to be independent contractors
• Handlers were held to be employees

CITY CAB OF ORLANDO v. NLRB (1980) •

ISSUE: Whether the cab drivers are Employees or independent contracts. This matters because employees can collectively bargain, but independent contractors cannot.

Independent Contractor Factors show that the drivers are Employees:
• 90 percent of cab driver's business came from dispatcher of the Employer or at the Airport
• The drivers had to keep a log and record their trips
• Cab drivers could only drive during certain hours
• Drivers had a dress code
• Cab vehicle had advertisements on it and the benefits went to the cab company, not to the driver

HOLDING: Drivers were Employees and were allowed to collectively bargain.

YELLOW TAXI OF MINNEAPOLIS (1983) •

FACTS: Employment contract said that cab drivers were independent contractors.

ISSUE: Whether the cab drivers are Employees or independent contracts. This matters because employees can collectively bargain, but independent contractors cannot.

COURT: Said that working in an employment contract is not dispositive and does not matter. The Court, again, considered the independent contractor factors.

HOLDING: Cab drivers were independent contractors.

Here, the drivers did not have to wear uniforms, did not have to keep a trip log for the employer (only the city), and the city controlled the cab drivers more than the company. Moreover, there was no company dispatcher and the good will did not go to the company.

NLRB V. HEALTH CARE & RETIREMENT CORP. OF AMERICA (1994) •

ISSUE: Whether workers were "employees" or "supervisors" for collective bargaining reasons.

• This is important because the NLRA affords employees rights to organize and to engage in collective bargaining. The Act does not grant those rights to supervisory employees.
• The NLRA affords employees rights to organize and to engage in collective bargaining.
• The Act does NOT grant those rights to supervisory employees.

NLRA defines Supervisor as:
Any individual having authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, discipline, direct adjust grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of "independent judgment." Courts hold that nurses are supervisors because they are making judgments in the interest of the Employer.

NLRB v. KENTUCKY RIVER COMMUNITY CARE (2001) •

• In another nursing case, the Supreme Court interpreted the independent judgment requirement to deny the Board's tests that there is no supervisory status when employees exercise ordinary professional or technical judgment in directing less-skilled employees to deliver service in accordance with employer-specific standards.

• The NLRB ruled that professional judgment was categorically not, and different from independent judgment.
• Supreme Court overruled this saying that professional judgment may be independent judgment depending on the circumstances.
• The Board places the burden of proof on the party claiming the employee is a supervisor (this is usually the company).

DUNKIN DONUTS v. NLRB (2004) •

FACTS: Lessor Employer leased out Employee's to Lessee Employer
Lessor and Lessee Employer violated NLRA 8a (1,3)

ISSUE: Whether the Employers are Joint Employers?

RULE: Two separate entities may be joint Employers of a single workforce if they share or co-determine those matters governing essential terms and conditions of employment.

HOLDING: Court holds these are Joint Employers.

Because both are:
• Involved in hiring, firing
• Disciplining
• Assigning of work and equipment
• Recognition and awards
• Day-to-day direction of the leased Employees

LINGLE v. MAGIC CHEF (1988) •

FACTS: State law created a tort claim for wrongful discharge. Federal law (Labor Management Relations Act) said it was wrongful discharge and had to go through arbitration.
Issue: does the federal law preempt the state law claim for retaliatory discharge?

ISSUE: Does the federal law preempt the state law claim for retaliatory discharge?

HOLDING:
If the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of the state law (which might lead to inconsistent results because each state could have different laws) is pre-empted and federal labor laws (which are uniform throughout the country) must be employed to resolve the dispute.

In Illinois, the application of the state retaliatory discharge law does not require a court to interpret any term of a collective bargaining agreement. All that the court has to look at is:
1. The employees conduct and
2. The conduct and motivation of the Employer

Thus, the state law does not depend on the meaning of a collective bargaining agreement and the state law is not preempted.

WI DEPT. OF INDUSTRY v. GOULD, INC. (1986) •

FACTS:The state had a statute that said if companies were found to be in violation of the NLRA, they would not be allowed to sell anything to private parties within in the state.

HOLDING: The NLRA pre-empts a Wisconsin statute debarring certain repeat violators of the act from doing business in the state.

RATIONALE:
1. States may not regulate activity that the NLRA protects or prohibits
2. The NLRA would prevent the state from forbidding private parties within the state to do business with repeat labor law violators
3. Nothing in the NLRA prevents private purchasers from boycotting labor law violators, so the state is not allowed to invoke this remedy.

NLRB v. WASHINGTON ALUMINUM (1962) •

FACTS: Employees had been complaining about working conditions (too cold in the building). One day, the furnace breaks and the working conditions are unbearable. The employees leave without telling management. The employer assumes that either the employees (1) quit, or (2) even if they didn't quit they were fired for leaving without permission.

ISSUE: Was this concerted activity that is give protection?

HOLDING:
• Court said that this was concerted activity, even though the employees did not complain about the activity as a group and left individually.
• Workers took the most direct route to protect their conditions (they did not have an established bargaining unit)
• Reasonableness is not part of the inquiry into the activity
• Workers do not forfeit their section 7 right even if they do not make a demand upon the employer

ALLEN FAMILY FOODS, INC. (1985) •

FACTS: Employees left early due to worsening road conditions. The Employer did not have a policy regarding bad weather. The Employees did not complaint to the Employer about its lack of formal policy concerning bad weather. The Employees did not attempt to persuade the Employer to permit them to leave work early on account of the blizzard.

HOLDING:
• Court said that there was no evidence that these Employees, by leaving early, were protesting the Employers policy as to snowy road conditions.
• Basically the Employees needed to directly state that they were leaving and protesting due to a POLICY of the Employer
• The Employees actions indicate at most an attempt to set their own terms and conditions of employment. These employees were not engaged in a protected work stoppage over terms and conditions of employment
• Here, Employees were not engaged in protesting actual terms and conditions of employment (weather and weather policy). In Washington Aluminum, the Employees were protesting heat, which is a working condition and the Employees had complained about it previously.

MOLON MOTOR v. NLRB (1992) •

FACTS: Employees took over the break room and commandeered it for 5 hours. The Employer said, "Either you go to work or you will be terminated."

ISSUE: Does this activity lose the protection of section 7 because the Employer has a property right to the Employer's premises?

Problem: Line between a protected work stoppage and an illegal trespass is not clear-cut.

Court: Evidence shows that the Company ultimately fired the workers because they refused to go to work and refusing to work is protected activity under section 7 of the NLRA.

RULE: Employer must give Employees the opportunity to leave the premises without threatening termination.

Wright Line:
1. General counsel must first establish a prima facie case that protected activity was a motivating factor.
2. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation.
3. If unable to make this showing, the employer is in violation of section 8(a)1

AUDUBON HEALTH CARE CENTER (1983) •

FACTS: Nurses refuse to pick up an extra shift but remain at the health care center and continue doing their own work.

RULE OF LAW: Partial strikes are not protected by section 7 of the NLRA

• A concerted stoppage of work by employees is not protected under section 7 of the Act if it is conducted in an improper manner.
• A partial strike, in which employees refuse to work on certain assigned tasks while accepting pay or while remaining on the employer's premises is a method of striking which is not condoned by the Board.
• While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging gin a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all of their services from their employer.
• Workers cannot pick and choose the work they do or when they will do it. Such conduct constitutes an attempt by the employees to se their own terms and conditions of employment in defiance of their employer's authority to determine those matters and is unprotected.

TIMEKEEPING SYSTEMS V. LAWRENCE LEINWEBER (1997) •

FACTS: Employer sent out an email to Employees regarding a proposed plan for an incentive bonus system and changes in vacation policy. Employees emailed the other employees that spelled out the result of a proposed vacation policy change. The Employer required the Employee to write an apology. The Employee said he couldn't come up with anything and the Employer fired him.

HOLDING:

Court held that this was concerted activity
• In communicating with his fellow employees, Leinweber was attempting to correct any misimpression of the vacation proposal and to arouse support for his own decision to appose the proposal.

Court further held that this was Mutual Aid and Protection
• Leinweber's effort to incite the other employees to help him preserve a vacation policy which he believed best served his interests, and perhaps the interests of other employees, unquestionably qualified his communication as being in pursuit of "Mutual Aid and Protection."
• The activity did not lose its protection because the Employee used the company's email system. The Employee was not taking over the computer system.

The Employee wins because the Employer failed to meet its burden under Wright Line to show that it would have discharged the Employee even if he had not sent the letters to the other Employees.

WRIGHT LINE (1981)

1. General counsel must first establish a prima facie case that protected activity was a motivating factor.
2. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation.
3. If unable to make this showing, the employer is in violation of section 8(a)1

GATEWAY COAL V. UMW (1974) •

FACTS: Workers in a mine refuse to go in to work because of poor air quality. They wait around for it to be fixed but some workers go home prior to the company finally getting it fixed. They later find out that the foremen had been forging air quality records and when one of the foremen who had been fired was reinstated the workers refuse to work for him, because they do not trust him and fear for their lives.

Court of Appeals - dissolves the injunction and says that neither the collective bargaining agreement nor the federal act should require minors to work when there are significant questions as to their safety. Court of Appeals found that there was a public policy exception to arbitration if there is a safety issue.

Supreme Court - says the arbitration provision includes safety disputes. This is contrary to the public policy objection found by the Court of Appeals.

Constructive Concerted Activity and the Link to Individual-Based Rights

• The group-based model of federal labor law extends protection only to "concerted" activities of employees.
• This means that individuals cannot seek protection if they act alone.

NLRB v. CITY DISPOSAL SYSTEMS (1984) •

FACTS: Employee refused to drive a truck with no brakes and was discharged.

ISSUE: Was the Employee's activity concerted?

HOLDING: Under the collective bargaining agreement the Employee could refuse to drive an unsafe truck, therefore the Employee was asserting a collectively bargained right.

Interboro Doctrine:
Employees' reasonable and honest assertion of collective bargaining right is a concerted activity and protected under section 7 of the NLRA. Moreover the Employee doesn't have to explicitly refer to the collective bargaining agreement when he is asserting his right.

NLRB v. WEINGARTEN (1975) •

FACTS: Employer saw that Employee only put $1 into the cash register and then left with a box for the larger, and higher priced $2 chicken lunch. Employee was called into the office to discuss the issue. The Employee requested her Union Steward, but the supervisor would not allow it.

HOLDING:

Employer's denial of Employee's request that a union representative be present at an investigatory interview which the Employee reasonably believed might result in a disciplinary action meant that the Employer interfered with, restrained, and coerced the Employee's right to engage in concerted activities for Mutual Aid and Protection and constituted an unfair labor practice.

EPILEPSY FOUNDATION v. NLRB (2001) •

• Extends Weingarten right to unorganized work place.
• Having a witness can serve to encourage the employer in the non-organized situation to act in some procedurally fair way with some consistency across cases.
• There is the same employee interest in having a witness, even if that person is not a union representative.
• The Supreme Court overturned this later. Court says that it would not have the same effect.
• Section 7 protects any employee that is working to engaging in a protected concerted activity.
• If that right wasn't protection, it would be highly unlikely that organization would ever occur. The employer could discriminate and ensure that union organization would never materialize.

NLRB v. INT'L BROTHERHOOD OF ELECTRICAL WORKERS (1953) •

(Jefferson Standard Case)

FACTS: Technicians sponsored or distributed handbills, which made a sharp, public, disparaging attack upon quality of station's product and its business policies, and which made no referent to union, to labor controversy, or to collective bargaining, in a manner reasonably calculated to harm station's reputation and reduce its income.

HOLDING: Discharge of certain technicians was "discharge for cause" not "unfair labor practice" within the Taft-Hartley Act, though at the time of distribution of handbills a labor dispute existed between the station and the union.

• Purpose of harming Employer's reputation is "disloyalty" and disloyalty is "just cause" for discharge
• Disloyalty overpowers Employees concerted activities protected by section 7 of the NLRA

NLRB v. TRANSPORTATION MANAGEMENT (1983) •

FACTS: Bus Driver contacts a union and talks about the possibility of organizing the workplace. The manager (Employer) tells another worker that he will get even with the Bus Driver for attempting to organize. A short time later, the Bus Driver is discharged for leaving his key in the bus and talking about unauthorized business. The Bus Driver claims an unfair labor practice and that the manager is anti union. The Bus Driver claims that the real reason he was discharged was for trying to organize a union.

Once the general counsel says there is some retaliation for union activities the burden shifts to the Employer to give another reason for the discharge. Then the burden shifts back to the Employee to show that those reasons are pretextual.

HOLDING:
Court uses the Wright-Line rule to find that the Employer's purported reason for firing the Employee (leaving his keys in the truck) was pretextual because the company had never fired anyone before for that offense even though workers frequently left their keys in the vehicle and had non-work related discussions.

Thus the real reason that the Employer fired the Employee was because of anti-union animus, which is an 8(a)3 violation.

BIRD ENGINEERING and KEITH MAIN (1984) •

FACTS: Employer made a rule saying that Employees' could not leave the premises during lunch break or break time. The Employees ignored this rule and left during their breaks. When they returned to the Employer's premises, they were fired.

HOLDING: Employees did not go on strike because they did not stop working. If they had gone on strike that action would have been protected. Instead, the Employees simply ignored the Employer's rule. By ignoring the rule, rather than going on strike, the action was not a legitimate protected exercise. Thus, it is insubordination and the Employer can fire an Employee for this purpose.

THORNHILL v. STATE OF ALABAMA (1940) •

FACTS: State passed a statute against picketing. The Employees picket in a company town and the President of the Union is arrested for picketing and is put in jail.

ISSUE: Is this statute legal? Is it against collective bargaining law? Can Alabama prevent peaceful picketing, even though it is protected by the NLRA (a federal statute)?

(RIGHT TO PICKET)•

HOLDING: Employees should not be treated as trespassers because they were invited to live in the company town and to work there.

Moreover, Alabama cannot pass a statute limiting peaceful picketing and free-speech because of the importance of free speech on labor issues and because this area (where the picketing took place) was held out to be a common area (of the town/company).

The Court, thus, found the statute invalid on its fact. Freedom of speech and press guaranteed by the Constitution embraces the worker's liberty to discuss publically their concerns about employment.

The Court balanced property rights with individual rights.

REPUBLIC AVIATION CORP. v. NLRB (1945) •

FACTS: Employer adopted a rule against solicitation. Employee passed out union material during lunch periods and was discharged.

There is a tension between Employees' right to organize and Employer's right to maintain discipline in the workplace.

RULE:

If an Employee is trying to organize on work time in a work area interfering with Employer production, the Employer has the right to retaliate or prohibit such activity, but if the organization is off premises and not on work time then the activity is presumed valid.

EASTEX, INC. v. NLRB (1978) •

FACTS:
• Employees want to pass out a pamphlet, which has pro-union material in it. In addition, the material has political information in it.

ISSUE: Does it have to be a protest over something the employer has control over? For example: An employer policy?

• Court holds that this is activity that is protected under section 7 and that this activity was for Mutual Aid and Protection.
• Supreme Court says that Employees can be engaged in Mutual Aid and Protection not just of one's co-workers in a given plant or company, but of all workers or a combination of different workers.
• Court holds that this is still Mutual Aid and Protection. Employees distribution of political material, rather than work-related material, is still concerted activity for "mutual aid and protection" because the workplace is the one place where employees clearly share common interests and where they traditionally seek to persuade fellow workers.
• Moreover, this activity does not lose its protection because it is conducted on the Employer's property during non-working time.
• Court found that the Employer could not prevent Employees from distributing such literature in nonworking areas of Employer's property during nonworking hours, in absence of showing by Employer that a ban was necessary to maintain plant discipline or production.

LECHMERE, INC v. NLRB (1992) •

FACTS: Lechmere is the anchor store to a shopping center. Employees are not organized, but the union wants to organize them. The union goes on employer's property to put flyers in the parking lot. Lechmere management disposes of the flyers. Then the union retreats to the grassy strip where they attempt to pass out literature to employees.

There is a conflict of rights:
• Employees: The right to have information from each other or from outsiders as to the merits of organizing
• Employers: Property Rights

HOLDING:
(Thomas)
• Instead of allowing the Board's balancing accommodating, Thomas says so long as Non-Employee union organizations have reasonable access to Employees outside of Employer's property - the requisite accommodation has taken place.
• Employee's right to information depends on whether it is "infeasible" for others to get information to them outside of the employer's property.
• Store employees were accessible to nonemployee union organizers, and, thus, Employer did not commit unfair labor practice by barring organizers from its property.

TECHNOLOGY SERVICE SOLUTIONS and INTERN. BROTHERHOOD OF ELETRICAL WORKERS (1997) •

FACTS: Employees were customer service representatives that worked from their homes and did not know each other's contract information. The Employees asked the Employer for each other's contact information to help with organizing. The Employer refused.

HOLDING: Employer may have violated section 8 of the NLRA.

RULING:
• Just because the Employee cannot organize because of the organizational structure does not mean that the Employer violates section 8(a)1
o For example: Having no central location is not enough to violate section 8(a)1
• However, if the Employer takes actions that make it unreasonably difficult for Employees to reach other Employees, then that could be a violation.
• 8(a)1 is a violation for interfering with Employee organizing protected by section 7. An Employer does not have to perform an "overt act." Thus, refusing to act can still violate 8a1.
• HOWEVER, Court holds that refusing to furnish contact information was not an over act and there was no 8(a)1 violation.

REPUBLIC STEEL CORP. v. NLRB (1939) •

FACTS: Employer set up Employer dominated unions and ran campaigns that every Employee should join that union. The Employees were threatened with discharge and when they were on strike under an outside union, they were beaten. The violence escalated and strikers were killed.

ISSUE: What can the Board order as remedy for unfair labor practices.

RULING: Employers actions were retaliation of engaging in union activities and was a violation of 8a1

Sometimes, it's enough for the Board to say cease and desist or to reinstate Employees with backpay.
However, section 10c authorized the Board to take any affirmative action that will effectuate the policies of the Act. This is a very broad grant of authority on the issue of remedies.
Here, the Board ordered the Employer to reinstate the Employee with backpay.
HOLDING:
The Board knows best how to remedy the Employer wrongs so the Court defers to the Board. However, certain Employees were not reinstated because of their misconduct during a strike. The Court determined which Employees committed felonies and they were not reinstated (this part wasn't deferred).

J.P. STEVENS & CO., INC v. NLRB (1969 •

FACTS: Employer had multiple violations of unfair labor practices. Basically Employer didn't care about the law. So the Board ordered the Employer to send a notice of the Board's order to all Employees. The Board also ordered the Employer to read the order to all Employees. The Board wanted access to company bulletin boards for the year and ordered the Employer to make a list of its Employee's names for the union. The Employer claimed that the Board's orders made organizing easier for the union. Court says this is true, but the Boards order is OK because the Employer had violated the Act so many times before.

RULING: The Board's order was OK because the Employees needed to know that the unfair labor practices would not happen again.

NLRB v. GISSEL PACKING CO. (1969) •

FACTS: The union had waged an organizational campaign, obtained cards from employees, and then demanded recognition from the employer based on the cards. The employers said NO, and embarked on anti-union campaigns which resulted in unfair labor practices.

ISSUE: Whether the card holding is legitimate to authorize a union representation without election...

How the union becomes the bargaining representative of the Employees:
• Need 30 percent of Employees to have an election. This results in a back and forth campaign between the Employer and the Union.
• If, during the election, the Union gets more than 50 percent of the vote, then the union is declared a "Certified Union."
• But a union can also become the bargaining representative of the Employees even without an election if 50 percent of the Employees show that they want the union to be their representative. The 50 percent showing means there doesn't even have to be an election. More than 50 percent is enough to have the Union be the exclusive bargaining representative.
• Moreover, election cards are not the only way to show the Employer that the Union has Employee support. The Employees can also wear t-shirts, go on strike, etc.
• There are two types of cards:

• There are two types of cards:

1. Any time there card is dual-purpose or ambiguous it is a card to see if there will be an election (need 30 percent to get an election). A union can also become a "certified" union through an election. A certified union has an irrebuttable presumption in favor of majority status for one year and thereafter has a rebuttable presumption of majority status.
2. If it is a single-purpose card, then if 50 percent of the Employees have the cards, then they skip the election and the union becomes the union of the Employees.

2. If it is a single-purpose card, then if 50 percent of the Employees have the cards, then they skip the election and the union becomes the union of the Employees.

Cumberland Shoe Doctrine

Aaron Brothers Doctrine

CUMBERLAND SHOE DOCTRINE

If the card itself is unambiguous (i.e. states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was only to be used for the purpose of obtaining an election.

AARON BROTHERS DOCTRINE

This is the way to determine when an Employer must recognize the cards as union support. General Counsel has the burden of proving Employer's bad faith and Employer will not be held to have violated his bargaining obligation simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority. An Employer faced with the cards, can say that the cards don't represent a majority, but if they say that they must take non-interrogational means to find out if there is a majority. Or, the Employer can call for an election.

JOY SILK DOCTRINE

o Employer can refuse to bargain with a union claiming representation status through possession of authorization cards if he has a "good faith doubt" as to the unions majority status; Instead of bargaining he could insist the union seek an election in order to test out his doubts.

J.I. CASE v. NLRB (1944) •

FACTS: Employer issues contract to Employees, which stipulates that, for a term of a year, the wages will be fixed. In the mean time, a union wins and election to be the Employee's representative of collective bargaining. The Employer refuses to bargain because of the contract. The NLRB said that the contracts, however, were no barrier to bargaining.

RULING:
• When Employees vote for a collective bargaining representative, they forfeit any possibility of an individual contract.
• Tradition of collective bargaining is that it benefits most Employees, thus, workers on the average will be able to do better and if they vote by majority, they should be able to use the union to collectively bargain, even if some Employees would do better under the individual contract.
• The principle that makes collective bargaining effective is the principle of solidarity (doing better together)
• Individual contracts and collective bargaining cannot coexist: collective bargaining wins
o Collective bargaining serves the purpose of the NLRA - that the purpose of collective bargaining serves the welfare of the entire group, on average.
• Collective bargaining means that the majority rules and that all the Employees must follow what the majority says.

NLRB v. MACKAY RADIO & TELEGRAPH COMPANY (1939) •

FACTS:
• There was a dispute over a contract between a union and a company.
• The Employees are called out for an "economic strike"
• The company brings in replacements to keep operating business
• Strikers eventually ask to return to work
• Workers are told they can return to work except that the company has promised some replacements jobs, thus bumping some of the strikers from being allowed to return to work.
• The strikers that were not allowed to return were the ones who were actively involved in the strike

RULING:
• Court must decide whether the strike is in connection with a labor dispute because if there is a labor dispute the strikers are still Employees.
• Court says that an Employer has the right to continue production if he can hire replacements when the Employees are on strike
• However, the restriction on this is that the Employer cannot do this to try to break the strike because that would be a section 8 violation.

HOLDING: Employer was in violation of 8(a)3 because they put the strikers who were the most involved on the waiting list to return to work rather than reinstate them, which they did with other strikers who were not as involved in the strike. This showed discrimination for engaging in union activity.

Two Kinds of Strikes:
1. Economic strike

2. Unfair Labor Practice Strike

Economic strike

a. Striker are just trying to get a better deal
b. In these kinds of strikers, the Employer can permanently replace economic strikers

Unfair Labor Practice Strike

a. Strikers can only be temporarily replaced by the Employer
b. An Employer doing so would be in violation of 8(a)1 and 8(a)3

→If there are components of both types of strikes, then the Employer can only hire temporary replacements.

PHELPS DODGE CORP. v. NLRB (1941) •

FACTS: e'rs refusal to rehire 2 e'ees who had voluntarily quit before a strike, and refused to rehire several others because of union affiliations.

• It is a violation of section 8 to refuse to hire someone because of union affiliation
• Can you discriminate against pro-union workers at the level of hiring?
o No, refusal to hire pro-union employees is an interference with attempts to organize under section 8 and would be a major deterrent to existing workers to self-organization.
o Court says that Employer is free to hire as he is to discharge, but in neither case does the statute permit discrimination against unions

• NLRB v. Town and Country

• Towring:

• Oil Capital:

• NLRB v. Town and Country: "Salted Employees - union Employees who apply for jobs with the Employer are protected from discrimination

• Towring: Held that a salted Employer is not protected unless the Employer proves that he is genuinely interested in being an Employee for the Employer.

• Oil Capital: Held that a Salted Employee who is retaliated against and discharged for union activity can only get back pay if the Employee can show that the Employee would have worked the full time for the Employer.

NLRB v. ERIE RESISTOR CORP. (1963) •

FACTS: e'ees struck after CBA expired. E'rs offered 20 years of "additional seniority" to workers who returned to work and to all replacements. All strikers were rehired, but when layoffs became necessary, those without "additional seniority" were laid off first.

ISSUE: Does the Employer commit an unfair labor practice under section 8(a) by giving replacement workers during the strike and strikers who return to work seniority?

HOLDING: It was a violation of 8a1 and 8a3, even though there was no specific evidence that the Employer gave the seniority in order to break or discourage the strikers.

8a1 - Employer cannot interfere with or discourage union activity
For the NLRB to prove this, they do not have to show intent by the Employer. The NLRB can just look at the character of the act. There is a violation if the conduct does in fact interfere with union activity whether or not the Employer intends it to interfere with union activity

8a3 - Employer cannot retaliate for union activity. For the NLRB to prove this, they have to show intent (anti-union animus). However, if the conduct is inherently discriminatory, the NLRB does not have to show intent.

HOLDING: Giving super-seniority to replacements is inherently discriminatory so the NLRV does not have to prove anti-union animus.

NLRB v. GREAT DANE TRAILERS, INC. (1967) •

FACTS: A union filed an ULP complaint with the NLRB charging the employer with discrimination in terms and conditions of employment discouraging union membership, as well as with unlawful interference with protected activity, in violation of 8(a)(3) and (1) of the NLRA. The charge was based on the employer's refusal to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement, while announcing an intention to pay such benefits to striker replacements, returning strikers, and nonstrikers who had been at work on a certain date during the strike.

Supreme Court held:
1. The union's complaint stated an unfair labor practice charge and the National Labor Relations Board was not deprived of jurisdiction merely because the employer's conduct might also have supported a lawsuit for breach of a collective bargaining agreement under 301 of the Labor Management Relations Act,
2. In determining whether an employer's discriminatory conduct constituted an unfair labor practice under 8(a)(3) of the National Labor Relations Act, once it was proved that the employer engaged in discriminating conduct which could have adversely affected employee rights to some extent, the burden was on the employer to establish that it was motivated by legitimate objectives, and antiunion motivation had to be proved only if the employer came forward with evidence of legitimate and substantial business justifications for its conduct, and
3. The Board's finding of an unfair labor practice in the case at bar was supported by substantial evidence and should have been sustained notwithstanding the absence of proof of an antiunion motivation, since the employer had failed to present evidence of legitimate motives for its conduct, which had been proved to carry a potential for adverse effect on employee rights.

NLRB v. FAN-STEEL METALLURGICAL CORP (1939) •

FACTS: Employee engaged in a "sit-down" strike by taking over the plant production. Board ordered company to reinstate all workers with backpay.

Issue: Whether the board had the authority to require employer to reinstate employees who were discharged because of their unlawful "sitdown strike."

RULING:
• The NLRA, in authorizing strikes, only contemplates lawful strikes.
o Taking over the means of production is an unlawful act.
• Employees had a right to strike but had no license to commit acts of violence or to seize the Employer's plan, which would be trespassing.
• NLRB's powers to require affirmative action "to effectuate the policies" of the NLRA is broad but not unlimited. The NLRB cannot punish, it can only remedy.
***• Fansteel becomes classic case of misconduct forfeiting protection of the strike.

CORONET CASUALS, INC. and UPPER SOUTH DEPARTMENT, ILGWU (1973 ) •

FACTS: Respondent chose not to reinstate striking workers. Board found this as an unfair labor practice. Certain employees had tried to damage other employees cars, others tried to make it difficult for cars to enter the parking lot by standing in front of approaching cars. Other employees decided to exchange name calling an profanities. One employee would stand in front of cars and jump back as they approached, kick cars, throw mud and gravel, shout names and profanity, throw eggs at delivery truck.

ISSUE: Whether the actions of the strikers were substantial enough to warrant not being reinstated.

HOLDING: Momentarily blocking cars of non-strikers and using non-threatening language does not make the strike unprotected.

RATIONALE:
• NLRA must have intended to allow minor stuff that always occurs during strikes. Impulsive misconduct is to be expected, especially against non-strikers or picket breakers.
• Moreover, each striker's eligibility for reinstatement must be judged solely upon incidents in which the striker individually participated.
• Upon proof that the strike misconduct on the part of a particular striker has occurred, the burden of proving the innocence of the striker shifts to the Employee who, in order to gain reinstatement, must show that the conduct was not sufficiently serious to justify the Employer's refusal to reemploy the striker.
• In determining whether reinstatement should be ordered for unfair labor practice strikers, the severity of the Employer's unfair labor practices must be balanced against the Employee misconduct (this standard is rejected by Clear Pine Mouldings).

CLEAR PINE MOULDINGS and INT'L WOODWORKERS of AMERICA (1984) •

FACTS: Strikers threaten to kill and burn houses down and hit non-striker's cars

RULING: Not every impropriety committed in the course of a strike deprives and Employee of the protection of the Act. However, serious acts of misconduct may disqualify a striker from the Act's protection.

What is "serious misconduct?"

RULE:
• Whether the misconduct is such that, under the circumstances, it may reasonably tend to coerce or intimidate Employees in the exercise of rights protected under this Act.
• Court rejects to adopt the rule that they will balance Employer unfair labor practices against the Employee's misconduct (OVERRULES CORONET)
• Court rejects a per se words alone rule. The Court says that words alone can be sufficient to disqualify a striker.
o Need to Look at the at the circumstances to determine whether words alone is "serious misconduct."
• In cases of misconduct, the remedy is to deny reinstatement and back pay to the Employees.

POLICY: People should resort to legal remedies rather than force.

FORD MOTOR and JOHN ELLIS (1979) •

FACTS: Strikers walked around the entire plant for 20 minutes (including places where people were working) telling all the Employees to leave their work and join the group.

RULING:
• Court determines that this was unprotected activity. Even if no workers actually joined the group, the chanting would inevitably interfere with the work and the Employee's and it was inherently disruptive and disorderly.
• Employer has the right to maintain discipline in its establish, and the strikers disrupted the Employer's discipline.
o "This was so disrespectful to as seriously to impair the maintenance of discipline."

CATERPILLAR, INC (1996)•

FACTS: Employee who was in a union representative told people that he "would get them paid."

ISSUE 1: Was there work-to-rule? Yes.

ISSUE 2: Employer gave gag order to Employee, which violated section 8(a)1

ISSUE 3: Discharge of Employee as a result of stuff he did during his grievance procedure

ISSUE 1: Was there work-to-rule? Yes.
• The Court says because these are highly paid factory workers that do not need to be told what to do and they are getting paid to do work that they are not doing. In addition, the Employees had work-to-rule training.

ISSUE 2: Employer gave gag order to Employee, which violated section 8(a)1
• Work-to-rule: work and get paid but do less work (only do what you are told to do; don't make suggestions for improvement; don't do more than you have to)
• Standard: whether the Employer engaged in conduct, which, it may reasonably be said, tends to interfere with the free exercise of Employee rights under the Act.
• Employer violated 8a1 by imposing a gag order on Employee. Employee's statements constituted protected union activity. Work to rule activity is unprotected. Here, the statement made by the Employee showed no connection to a work-to-rule campaign.

ISSUE 3: Discharge of Employee as a result of stuff he did during his grievance procedure
• Employee's statement was protected and he could not be discharged for insubordination.
• Rule: Determine whether the statement made is "indefensible in the context of the grievance involved."
o Insubordinate behavior during grievance meetings is necessary because it's dispute between the two parties.
• Even assuming that the Employee could be discharged for insubordination, the Employee would still not lose protected status because his actions were provoked by the Employer ("provocation doctrine").
o Employer did not meet the Wright Line burden
o NLRB v. Headwater: standard for provocation doctrine → compare the extent of the Employer's conduct with the extent of the Employee's conduct.
o This is different from Clear Pine Moulding case where Court held that there was no balance of conduct test when the Employee is on the picket line.

IN RE ELK LUMBER (1950) •

FACTS: Employees don't like what they're getting paid so they slow down production.
• If they had gone on strike it would have been protected; however, they could have been permanently replaced.
• This is not really work-to-rule because they are working for what they're getting paid to do
• Employees are never told how much work they had to do and they were never warned that they would be discharged if they worked too little.
• Employees knew that their amount of production was not satisfactory to the Employer.

HOLDING:
• Slow-down was not protected concerted activity, so the Employer did not violate NLRA by discharging Employees.
• Test for determining whether Employee conduct loses its section 7 protection: whether the activity is so indefensible as to warrant the Employer in discharging the Employees.
• Indefensible means either:
o Unlawful objective or
o Improper means
• It was implied in the contract that they would work in good faith → by the Employees not doing this - they were trying to set the terms of their contract.

NLRB v. BRIDGEPORT AMBULANCE SERVICES (1992) •

FACTS: Employees had a union that was the collective bargainer for the Employees. Employees went on strike without the union telling them to do it ("wildcat strike").

HOLDING:
• Wildcat strike was protected activity. Employees attempts to bargain directly with the Employer when they have a union to do it, is not protected activity.
• However, here Employees strike had nothing to do with collective bargaining and did not affect the union's ability to bargain with the Employer.

RULE:
• Unless a wildcat strike is called for the purpose of asserting a right to bargain collectively in the union's place or is likely, regardless of its purpose, to impair the union's performance as exclusive bargaining representative.
• Section 9(a) does not put the strikers beyond the pale of section 7.

COMPLETE AUTO TRANSIT, INC. v. REIS (1981) •

FACTS:
• Three trucking companies brought suit against certain employees who had staged a wildcat strike resulting from the employees' belief that their union was not properly representing them in negotiations for amendments to their collective bargaining agreement.
• The collective bargaining agreement to which the trucking companies and the employees' union were parties contained a no-strike clause and subjected all disputes to a binding grievance and arbitration procedure.
• Relying on 301(a) of the Labor Management Relations Act which by its terms confers jurisdiction on Federal District Courts to decide lawsuits alleging violations of collective bargaining agreements, the trucking companies sought, among other things, damages against the employees in their individual capacities for all losses arising out of the unlawful work stoppage. The companies sought no damages from the union, alleging that the strike was neither authorized nor approved by it.

PROCEDURAL POSTURE:
• Court held that an employer may not sue his employees for monetary relief for breach of a collective bargaining agreement whether or not the union may also be liable.
• The COA affirmed, concluding that Congress had not intended through 301 to create a cause of action for damages against individual union members for breach of a no strike agreement.

HOLDING: (Brennan) 301(a) of the Labor Management Relations Act does not sanction damages actions against individual employees for violating the no-strike provision of a collective bargaining agreement whether or not their union participated in or authorized the strike.

STANDARD CONCRETE PRODUCTS INC. v. GENERAL TRUCK DRIVERS UNION (2003) •

FACTS:
• Sympathy Strike - Union represents Employees at multiple plants.
• One plant's Employees go on strike. The Employees under the union at other plants go on strike to support the other Employees.
• The unions of the other plants have no strike clauses. The Employees of the other plants already have what the striking union wants.

RULING:
• A general no strike clause that does not specify whether sympathy strikes are included or excluded. The clause does not, simply by virtue of its incorporation in a collective bargaining agreement constitutes such a clear and unmistakable waiver of sympathy strikes.
• Look at the intent of the parties (if they wanted to include sympathy strikes in a "no strike clause" and the burden is on the Employer to show a clear waiver of the right to do sympathy strikes. Here, the union did not make a clear and unmistakable waiver of its members' right to do sympathy strikes.

INT'L ASSOC. OF METAL WORKERS v. NLRB (1988) •

FACTS:
• When a labor dispute between employees, permanent workers, and employer broke down, employer lawfully locked out employees and continued to operate with temporary replacement workers in order to leverage its bargaining position.
• Employees challenged the action as a violation of 29 U.S.C.S. §§ 158(a)(1), (3) (1982), and sought review after the NLRB held that employer's conduct did not violate the law.
• The court noted that an employer did not violate §§ 158(a)(1), (3) unless its action was motivated by antiunion animus.
• Antiunion motivation could be inferred without proof if the conduct was "inherently destructive" of employee rights. If the adverse effect of the conduct was "comparatively slight," an employer could overcome the inference of animus by proving business justification for the conduct.
• The court found that employer's conduct was not inherently destructive of the collective bargaining process under the facts presented. Employer's conduct in bringing pressure to bear to strengthen its bargaining position was a legitimate, substantial and sufficient business justification for such conduct.

HOLDING:
• The court denied the employees' petition challenging the NLRB's order that allowed the employer to continue to operate with temporary workers after lawfully locking out employees in a labor dispute.
• Thus, the court held that Employees aren't the only ones that can bargain by withholding work and that the Employer should also be able to lock out workers for bargaining tactic.
• Either side is taking a risk by withholding work or access to work, but both sides are permitted to do as much.
• There is harm to the employees because they aren't working and aren't getting paid. There are pains for the company too if they lose production, etc. - but can hire replacements if it is an economic strike.
• Locking out employees limited. For example, if and employer refuses to bargain and it is an unfair labor practice. Employer cannot compound the situation by locking out employees. That will also be seen as an unfair labor practice.
• But if the employer is engaged in economic bargaining, then the employer can put pressure on the employees by locking them out.

INT'L PAPER CO. v. NLRB (1997) •

FACTS:
• The company argued that it implemented the permanent subcontract during the lockout solely for economic reasons and that its action did not support an inference of antiunion motive.
• The court held that the company's implementation of the permanent subcontract while the lockout was in progress, but only after having fulfilled its bargaining obligations on the issue, produced too minimal an effect to place the company's conduct in the inherently destructive category.
• Additionally, not only did the company's conduct have a comparatively slight impact on employee rights, but the company met its burden in showing that its implementation of the permanent subcontract was based on legitimate and substantial economic business reasons.

• The employer who wants to subcontract out work is not permanently prevented from doing so. Just has to seriously bargain.
• If parties reach an impasse then employer can unilaterally bargain for subcontracting work. Even in a lockout situation the employer has a duty to bargain to an impasse before unilaterally engaging in subcontracting.
• Nonetheless, even if International Paper has fulfilled bargaining duty isn't it still inherently disparaging to future bargaining efforts? Court here says there is only a slight impact on the bargaining of the union's future and the employer is not doing this as a punishment (they are doing this because it is cheaper).
• So the employer is just getting the same work done more cheaply by subcontracting even though the work is only available because the employer has locked out the former employees. Employees should just understand this because it's not personal (Ct. says).

PATTERN MAKERS' LEAGUE of NORTH AMERICA v. NLRB (1985) •

FACTS:
• Union sought review of a decision sustaining a ruling by the Board, holding that petitioner committed an unfair labor practice, in violation of the NLRA, § 8(b)(1(A) by fining 10 members who violated petitioner's constitution by resigning during a strike and returning to work.
• The court held that when petitioner's members refused to support a strike, whether or not a union rule prohibited returning to work, members were refraining from a concerted activity, a right protected under NLRA, § 7.
• Further, the NLRA, § 8(b)(1(A), provided that a union committed an unfair labor practice if it restrained or coerced employees exercising that right.

HOLDING: (5-4)
• The court held that the Board had the primary responsibility for applying general provisions of the NLRA to the complexities of industrial life.
• Further, when the Board's construction of the NLRA was reasonable, it should not have been rejected merely because courts might prefer another view.
• The Board had been consistent in construing the NLRA as prohibiting imposition of fines on employees who had given their resignation.
• When petitioner's members refused to support a strike, whether or not a rule prohibited returning to work, members were refraining from a concerted activity, a right protected under the National Labor Relations Act (NLRA).
• When petitioner restrained employees exercising that right, petitioner committed an unfair labor practice under the NLRA.
• Court in Allis-Chalmers held that union could fine employees. Did employees resign lawfully as in the union's constitution?

NOTES:
• Taft Hartley eradicated the closed shop agreement. That provision also allows union to collect fees from all employees.
• Employees that don't choose to be in a union (right to work states) still benefit from union activity. Thus, collecting dues from everyone prevents complete "free riding."
• However, this doesn't go to the question of whether a person can resign if the union goes on strike.

NLRB v. ADKINS TRANSFER (1955) •

FACTS: The workers at the company were union members. The company hired the two employees to maintain the company's trucks in the maintenance department. The employees joined the local union and the union began negotiating contracts for the two employees. After discovering the union wage scale for the employees' positions, the company decided to close the maintenance department and discharge the employees. The company never filled the positions. The union filed a complaint with the NLRB alleging violations of the Act. The NLRB ordered the company to reinstate the two employees and filed a petition in court for enforcement of its order. The court denied the petition, finding that the company did not violate the Act.

HOLDING:
• The court concluded that the company committed no unfair labor practice by choosing to discontinue its maintenance department and to discharge the two employees. The court found that the company did not discharge the employees to discourage union membership. The company simply could not afford to pay the higher union wage scale.
• Trial examiner says not a ULP because there was no anti union animus. This business move was just a matter of economic reasons. Simply, it was just cheaper for the company to have this done.
• The Board overturned the trial examiners decision and the Court reversed and agreed with the trial examiner.

NOTES:
• Isn't the employer's prerogative to hire and fire whoever they please? Employer might be restrained if there was no cause to fire an employee but there might be cause to fire if the alternative is cheaper.
• Adkins seems to say that an employer can fire and subcontract out of bargaining union work because of economic business reasons. Cases after suggest that employer has to bargain around doing this activity. As long as employer bargains over the subcontracting decision and reaches an impasse, then the employer can unilaterally subcontract.
• What about a union closing? See Darlington Manufacturing.

TEXTILE WORKERS UNION v. DARLINGTON MFG. CO. (1965) •

FACTS: Employer closes down the company in retaliation for Employee's voting in a union.

ISSUE: Where there is clear anti union animus, is a retaliatory shutdown of the company a violation of 8a3?

RULING: No, it's not an unfair labor practice.
• If Employer shuts down part of its business in retaliation for Employees voting in a union in order to send a message to other Employees, then that is an unfair labor practice. But here, Employer shut down the entire business.
• Employer has the right to terminate his entire business for any reason he pleases.
• Rationale: there would be no future benefit for the Employer to remain open and either not make a profit or suffer a loss.

Runaway Shop Rule:

If the persons exercising control over a plant that is being closed for anti-union reasons:

1. Have an interest in another business, whether or not affiliated with or engaged in the same line of commercial activity as the closed plant, of sufficient substantiality to give promose of their reaping a benefit from the discouragement of unionization in that business
2. Act to close their plant with the purpose of producing such a result; and
3. Occupy a relationship to the other business which makes it reasonably foreseeable that its Employee's will fear that such business which makes it reasonably foreseeable that its Employees will fear that such business will also be closed down if they persist in organizational activities, then an unfair labor practice has occurred

Runaway Shop - Is an illegal shut down. It's where an employer transfers equipment and resources to another plant and effectively shuts down the shop.

VICO PRODUCTS CO., INC. v. NLRB (2003) •

FACTS:
• Three months after the union was certified as the exclusive bargaining representative for the employees, the employer moved its manufacturing and distribution facility.
• The following month, the employer declined to give its employees a wage increase as it had done the preceding five years.
• The Court held that the evidence showed that the move decision was based on labor costs.
• One of the employer's primary reasons for relocation was that the move allowed for automation of machines. This move, then, was based on labor costs.
• The employer's cost-benefit analysis was performed after the company decided to relocate.
• The employer's after-the-fact offers to engage in effects bargaining were irrelevant. The union did not waive the right to bargain because it was unaware of the past annual wage increases. Because the past increases were regular and consistent in criteria, the employer could not discontinue the program unilaterally.
• Substantial evidence supported the Board's finding that the relocation decision was motivated by antiunion reasons.
• The haphazardness, the timing, and the secretive nature of the hasty relocation decision rendered the decision "suspicious." The Board's restoration order was within its broad discretion.

Holding: Dubuque Packing: 4 step process:
• Burden is on Board Counsel to show that the move was unaccompanied by a change in the nature.
• Then the employer may rebut the prima facie case by showing:
o The work at this location varies significantly from the last location
o Work at previous decision will be discontinued entirely
o Decision involved change in scope and direction of the enterprise.
• Employer can still defend by showing it was no a labor cost decision
• Union could not have offered labor cost concessions that would have resulted in employer changing its decision.
After finding Vico could not justify, what could the board do? (Runaway shop)
• They can order restoration of production at the runaway site.

RULE: Notice of relocation is required before an Employer tries to collectively bargain with the union. Here, Employer decided to relocate before they tried to negotiate.

Secondary Boycotts
• Two types of effects of a strike: Primary and Secondary
• Prohibited by 8(b)(4)
• Secondary boycott:

o Union applies pressure
o Coerces
o Or restrains a person with whom the union has no dispute over terms of employment in order to induce that person to cease doing business with another Employer with whom the union does have a dispute.

NLRB v. INT'L RICE MILLING

Court held picketing to be lawful even though the picketers encouraged supplier truck drivers not to deliver because the picketers were at their Employer's site. If the picketers went to the supplier's site, then it would have been a secondary boycott.

Common Situs Dilemma

Picketer's employer works on same site as other employer's.

INT'L UNION OF ELEC. RADIO & MACHINE v. NLRB (1961)•

RULE: For a secondary boycott to be an unfair labor practice, its purpose must be to induce secondary Employees to engage in concerted conduct against their Employer in order to force him to refuse to deal with the struck Employer; if picketing incidentally induces such action of secondary Employees, the it is still lawful.

• Whether picketing at gate utilized exclusively by employees of independent contractors working on struck Employer's premises was unlawful would depend upon type of work performed by those using separate gate.
• Union could picket gates used by employees, suppliers, and customers of struck employer, though it may not picket gates used by contractors performing tasks unconnected with normal operations of struck employer.
• Mixed use of gate to struck employer's premises both by employees of independent contractors performing tasks unconnected with normal operation of struck employer and by employees of independent contractors performing conventional maintenance works as necessary to normal operation of struck employer would not bar picketing of such gate.
• Strikers cannot strike the gate because only independent contracts doing work unrelated to the business go through the gate.

Handbilling, Consumer Picketing and Corporate Campaigns

8(b)(4) proviso protected "publicity other than picketing, for the purpose of truthfully advising the public, including consumers that a product is being produced by an ER with whom the labor organization has a primary dispute and are distributed by another Employer."

NLRB v. FRUIT & VEGETABLE PACKERS (1964) •

FACTS: Primary Employees pickets to consumers of a store that sells primary Employer's products.

HOLDING: Union secondary picketing of retail stores confined to persuading customers to cease buying the product of primary employer did not fall within area of secondary consumer picketing condemned as an unfair labor practice, even if the picketing was effective to reduce secondary employer's sales of primary employer's product leading or possibly leading to secondary employer dropping the item as a poor seller.

• 8(b)(4) makes it an unfair labor practice to coerce any secondary person with the object of forcing the secondary person to cease selling products of the Employee's Employer does not prohibit all consumer picketing at a secondary site.
• 8(b)(4) has a proviso that protects Employees (will not be an unfair labor practice) doing other things than picketing to inform consumers that the Employee has a dispute with the Employer.
• 8(b)(4) means that it is an unfair labor practice to coerce secondary Employer's to stop dealing with the primary Employer.
o However, there is an exception when the purpose of the Employee activity is publicity to truthfully advise the public, other than picketing, unless the publicity has the effect of inducing the secondary Employee to stop doing work for his own Employer.
o Must truthfully advise the public to be protected.
o If the picketers are picketing the product ('don't buy Washington apples') there will be some revenue affect on Safeway, but that's OK because the labor dispute is being labeled clearly as with the primary Employer, so not unfair labor practice.

DeBARTOLO v. FLORIDA GULF COAST BULDING COUNCIL (1988) •

FACTS: Employee construction workers hand out handbills to consumers telling them not to patronize the mall.

RULING:
There is no doubt that if they picketed the shopping mall, then that would be a prohibited by 8(b)(4), however, here they were not picketing, they were doing a consumer boycott (handing out handbills).
The First Amendment requires that there be no unfair labor practice

HOLDING:
• Union's peaceful distribution of handbills at shopping mall's entrances, urging customers not to shop at any of mall's stores until mall's owner promised that all mall construction would be done by contractors paying fair wages, did not violate the provision of NLRA making it an unfair labor practice to "threaten, coerce, or restrain any person" to cease doing business with another. There was no suggestion that leaflets had any coercive effect on costumers of all, and there was no violence, picketing, or patrolling by union members
• Not all handbilling, picketing, or other appeals to secondary employer to case doing business with employer involved in labor dispute is "coercion" if it has some economic impact on neutral, within the meaning of NLRA provision prohibiting union from threatening, coercing, or restraining any person to cease doing business with another.

Alternatives to Strike As a Mode of Resistance

1. ATS is grounded in the idea that normal collective bargaining process won't work (collective bargaining or a normal strike won't work).
2. ATS depends on Employee's showing that they have a high degree of mobilization (show that there are a lot of Employees that have a dispute with the Employer).
3. ATS is based on applying political, economical, and social pressure on the Employer (example: hold hearings; pressure politicians; turn to OSHA)
4. ATS transforms bargaining issues into community concerns, not a labor struggle.

UNITED FOOD WORKERS and HORMEL (1986) •

FACTS:
• Hormel makes Spam. Local union went on strike and picketed but Hormel refused to bargain.
• Then union sets up picket lines at the banks where Hormel deposits corporate funds or gets investor funds.
• Board of Directors of the Banks and Board of Directors of Hormel sitting on each other's Boards. This is analogous to a distributor's relationships.
• There is a claim that the product is revenue.
• Workers picket to not patronize these banks based on dispute with Hormel. Don't patronize the bank's services because of the dispute with Hormel.

HOLDING:
• Court holds that this kind of picketing does not fall within the Tree Fruits case, which held that workers could picket the product.
• The Board says the product is not revenue. The product is food.
• Does that kind of picketing fall within Tree Fruits (is that picketing the product?). The Board says that the product is not revenue.
• Production is modern and based on contractual networks. Court assumes this model is like that during the Industrial Revolution.
• Professor thinks this is the wrong decision.
• Here, Court refuses to extend the Proviso. This action is prohibited. Court goes against the ALJ.

HORMEL v. NLRB (1992)•

FACTS:
• The employee argued that the employer discharged him for engaging in activity protected by § 7 of the Act.
• The employer contended that it fired the employee solely for participating in unprotected activity, advocating the consumer boycott of the employer's products.
• The Board concluded that the employee did not support the boycott based upon its examination of his subjective intent.
• The court noted that supporting a boycott of an employer's product was protected activity only if it was related to an ongoing labor dispute and did not disparage the employer's product.

ISSUE: Whether the board properly determined that Langemeier did not support he consumer boycott of Hormel products after the end of the local dispute between Local 9 and Hormel at the Austin Plant.

RULE:
An employee can be fired for disloyalty to his company (boycotting), UNLESS it is related to an ongoing labor dispute and does not disparage the employer's product.

HOLDING:
• The court held that the board's subjective approach did not entail a possible construction of the Act because it was inconsistent with the statutory policy of preserving the employer's right to discharge an employee for disloyalty.
• The court agreed with the board that the employee's handing out leaflets and speaking in favor of extending the boycott arose out of an ongoing labor dispute and were protected by § 7.
• However, the employee violated his duty of loyalty by participating in a boycott parade and rally because his mere presence indicated that he supported the boycott.
• Section 7 of the NLRA protects the rights of employees "to engage in...concerted activities for the purpose of...mutual aid or protection."
• Nothing in the Act prevents an employer from disciplining or discharging an employee for disloyalty, however.
• As a rule, an employee who supports a boycott of his employer's product violates his duty of loyalty to the employer. This is an exception to that rule however: supporting a boycott is protected Section 7 activity if it (1) is related to an ongoing labor dispute and (2) does not disparage the employer's product. (See Jefferson Standard).
• Employer didn't win here because he didn't show that he took steps sufficient to limit the interference reasonably to be drawn from his participation in the parade and rally.
• COA doesn't touch the First Amendment implication. Perhaps the employee was just voicing his opinion?

HANSON, TRUSTEE OF UNION v. GUYETTE, SUSPENDED UNION PRESIDENT (1986) •

FACTS: When Local p9 did not want to follow the orders of the International Union, the IU placed a trustee in charge of Local P9.

ISSUE: Whether IU had authority under its constitution and under labor law to appoint the trustee.

RULE: The constitution of IU authorizes the imposition of a trusteeship upon a local union whenever, in the judgment of the IU exec committee such action is required. It may be exercised for enforcing compliance with directives of the IU.

HOLDING: It was the purpose of enforcing the directives that they implemented the trusteeship here and thus according to the broad language of the constitution it was proper.

GEORGE A. HORMEL & COMPANY (1988) •

FACTS:
Employee wears cram your spam t-shirt to work and other people see it. The employee wore it under other clothes but it was partially visible for a moment, he was fired for disloyalty and violation of a no boycott agreement.

ISSUE: Whether the wearing of the shirt was protected concerted activity in which a violation occurred when he was fired for the activity.

Rule: If there is no ongoing labor dispute there can be no relationship or link between an employees conduct and a labor dispute. NLRB v. Electrical Workers.

Holding: He was not protected and thus legally fired.
• If there is no ongoing labor dispute there can be no relationship or link between an employees conduct and a labor dispute. NLRB v. Electrical Workers.
• It must be settled whether there was an ongoing labor dispute.
o In Emarco, even though the strike had ended the company has not completed its end of the deal to end the strike, payment of the pension plans, thus the dispute had not officially ended and the employee could be considered protected.
o Here, the shirt was not worn in support of anything to do with an ongoing issue, not the rehiring of struck workers or any connected reason. Even though he says he was not protesting anything, the wearing of the shirt is still part of the Austin strike, which had been ended.
o The labor dispute was considered officially over and the wearing of the shirt was an unprotected act.
o Furthermore his action was an unprotected dissident activity in that it was conduct in opposition to the policies and actions of his s9(a) representative.

MALLINCRODT CHEMICAL WOKRS and INT BRO. OF ELECTRICAL WORKERS (1966) •

HOLDING: Six factors to make decision on whether a unit is appropriate to bargain for a group of workers:

• Whether the unit is a distinct group workers that are commonly found in separate units with separate representation
o Here they are sort of like craftsmen but they work hand in hand with another group.
• History of collective bargaining of the employees sought and at the plant involved.
• Extent to which the separate unit has been establishes and maintained.
• History and pattern of CB in the industry involved.
• Degree of integration of the employer's production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.
• Qualifications of the union seeking to carve out a separate unit, including that union's experience in representing employees like those involved in the severance action.

The Principle of Exclusivity of Representation

First the NLRB determines whether the union is appropriate. Then the majority of Employees have to vote to have the union to be the collective bargaining representative, and the union becomes the EXCLUSIVE representative.

EMPORIUM CAPWELL CO. v. WACO (1975) •

FACTS: Group of employees believed they were being discriminated against by Emporium. They go to union and explain and ask for them to do something. Union says, ok we will prosecute this grievance through arbitration. Subsequently the members of the local met and expressed dissatisfaction with the grievance process. 1st step is a hearing. 4 employees unhappy with the unions actions go separate and demand to speak with the president, he refuses. They decide to picket separately. They are warned to stop ruining the employers reputation. They don't, and they are fired. WACO, a community organization files suit on behalf of the employees who are group members.

ISSUE: Whether a minority of unions members attempt to bargain separately a violation of the exclusion requirement of 9(a).

HOLDING:
• Attempts by members of a union to negotiate directly with the Employer is in violation of section 9a: Representatives designed or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.
• Insofar as Employees are seeking a contract remedy the Employees must go through the collective bargaining representative and then the representative negotiates with the Employer.
• Section 9 does not allow groups of Employees to express dissatisfaction to Employers but the Employer is not required to bargain with the Employees, Employer is only required to listen to the Employees, absent the collective bargaining representative.

BLACK GRIEVANCE COMMITTEE v. NLRB (1984) •

FACTS:
• Employee group was formed as a non-exclusive bargaining representative because the organizers believed that the other non-exclusive bargaining representative did not adequately address the needs of the members.
• The employer established policies that recognized the other bargaining agent for grievances, but did not recognize petitioner.
• Petitioner challenged the procedure and requested that an unfair labor practice charge be initiated.

Holding: For 8(a)1 we have to show that employer practice restrains voluntary representation choice.
By favoring one unit uncertified you are coercing employees to join that union for representation.
• Its not wrong for PECO to bargain with IGA but when there is two groups, choosing one will indicate to employees where they need to join for representation which will interfere with §7 rights to band in a group of their own choice.
• If PECO is found to have no business justification for treating the groups differently or if it is shown to be racially motivated then they would be held to violated NLRA.
• They could choose to either eliminate the grievance procedures for both or make them the same.

STEELE v. LOUISVILLE & N.R. CO. (1944) •

FACTS: Suit by Bester William Steele against the Louisville & Nashville Railroad Company, Brotherhood of Locomotive Firemen and Enginemen and others to enjoin enforcement of agreements between the named defendants that discriminate against negro firemen in favor of white firemen and for other relief. The brotherhood only allowed white members and in fact blatantly discriminated against negros especially in the CBA's. They represented the majority and as such the negros had no choice but to be represented by them. They purposely stripped away negros seniority rights and the petitioner in particular who was made to give up his position to perform harder and less paying work so a white brotherhood member could have his job.

HOLDING: The Court concluded that
1. The statute imposed on the union a duty to equally protect the interests of all its members because Congress clothed labor unions with powers comparable to those possessed by a legislative body. And
2. The trial court could grant both injunctive relief and damages because the statute contemplated those judicial remedies.
• Collective bargaining can't be solely for a racial majority. The Court says that there could be differences within a unit (based on job, and criteria - related to different jobs).
• But when, based on race, that is a violation based on the premise of exclusive representation.
• In exclusive bargaining, there is an implied duty of representation.
• Duty of representation doesn't mean equal representation. But, does have to be related to differences of employment in job conditions, job titles, etc.
• This implied duty of representation is thus read into the NLRA. A much more contemporary situation is increasing throughout the country is the factual situation of Douglas v. American Steel Workers.

DOUGLAS v. UNITED STEELWORKERS OF AMERICA (1989) •

FACTS:
• Company complaining that they were losing money and needed to lower labor costs. Company entered into a freeze agreement for a three-year contract where continued profitability would depend on reopening of the contract.
• Then the company bargained and reached a five-year contract, which included the company not asking for additional concessions from the union. Then reach a five-year contract, which includes the company not asking for additional concessions.
• However, Company still comes back and asks for concessions.
• Bargaining locals say "this is smoke blowing" because employer continues to enter into contracts with us. Red House plant takes a stronger stance than Milton plant.
• In the mean time, the company reaches the decision that they are going to close Red House. Thus, further bargaining with Red House is inappropriate. The union still doesn't believe the company until a notice of closure appears. Then the union tries to negotiate but the company still closes the Red House plant.

ISSUE: Did the union representatives fail in fair representation?

HOLDING:
• No, the union did not fail in their duty of fair representation because unions have discretion in bargaining.
• When bargaining commences then certain things aren't going to be accomplished. Here, just bad judgment of union in bargaining. A misjudgment is unfortunate but not a violation. This is a contract bargaining situation. A contract administration is another option.

NOTES:
• Union required treating all claims even-handedly. But that doesn't mean that all grievances have to be pursued all the way through to litigation. A union can decide that pursuing a claim isn't worth it. See Vaca v. Sipes.
• However, a union can't have hostility and has to avoid arbitrary conduct. Have to prove the union's actions were arbitrary, discriminatory, or in bad faith.
• Here, the court held that if you are stuck with a bad negotiator the mere fact that there was negligence isn't enough to show unfair representation.
• Court held that the union's conduct must be grossly deficient or recklessly disregard the members' rights.
• This is a difficult standard to reach. With regard to contract bargaining that standard means that a union's choice of strategy (while it might be unwise) doesn't breach the contract of fair representation. A bargaining representation must have a large degree of discretion to get the best (or what it is believed to be the best) deal for employees.
• "When a union is negotiating a collective bargaining agreement for its members, there are frequently a number of postures which it may reasonably assume in representing the adverse, and sometimes conflicting, interests of its members. To respond to all the exigencies of the contract negotiating process, a union must have broad discretion to determine bargaining strategy...The need for judicial intervention is at least in theory less pressing in the case of contract negotiation than in the matter of the grievance process."
• Two tier bargaining strategy, which companies that are profit making. If not profitable, union will engage in concessionary demands in order to protect jobs. This depends on whether the company is in economic distress. This is not discriminatory and is not arbitrary because it goes to the employees' interest in maintaining employment and union's goal of maintaining membership.

VACA v. SIPES (1967) •

FACTS:
Employee filed an action against union, alleging that he had been discharged from his employment in violation of a collective bargaining agreement and that union improperly refused to take his grievance to arbitration.

HOLDING: NO, Not every individual employee is allowed to compel arbitration of their grievances regardless of merit. This would undermine the settlement workings of a contract and ruin the employers confidence in the unions authority making them unable to negotiate and basically returning the employee to his previous individual unrepresented state. Plus, allowing every matter to arbitrate would clog the system and greatly increase costs, preventing the system from functioning effectively.
According to the Court, employee could not prevail because he failed to prove arbitrary or bad-faith conduct on the part of the union in processing his grievance.

NOTES:
Every grievance must be treated seriously, NOT arbitrarily or discriminatorily.
• They listen to the basis of the grievance and determine its importance.
• They should also probably notify company management.
• Not EVERY grievance need be pushed forward. If it has no merit, it has no merit.

NLRB v. FLEX PLASTICS (1984) •

FACTS: Employer refused to bargain with Union alleging that the Union had lost its majority support. The employer had a lawyer speak to employees a new plant informing them that they would be better off without the Union and to bargain on their own. Although some employees tried to start a new
"flex shop" committee to represent there was an election and the results were undeterminative because of challenges from the Union. Challenges were sustained and the Union won. Company says they don't have to bargain in good faith because they have a legitimate doubt that the Union is still supported by the majority.
• Flex shop committee is a specific committee for specific interests of the members.

ISSUE: Whether the company had a legitimate doubt of the Unions majority vote at the times they refused to bargain.

HOLDING:
• Company was not justified in withdrawing recognition of the union and refusing to bargain on the basis of the breakdown in negotiations and respondent had no evidence that that the union-employee relationship was not an active one.
• A speech to the employees by respondent's labor relations advisor that the employees would have the same rights without union representation as they would with such representation and that they could get through to management better without a union was violative of the NLRA.
• Petitioner's remedy of directing respondent to bargain with and recognize the union was justified based on respondent's history of practices, which tended to undermine majority strength and impede the election process.

NOTES:
• Section 8a5 of the act makes it an unfair labor practice to refuse to bargain in good faith. This is generally brought against employers.
• Having won an NLRB election certification, the union is now certified. A certified union has an irrebuttable presumption of representation for a year. Thereafter, they have a rebuttable presumption for longer than that.
• Company has to demonstrate objective evidence for its belief that there is majority lacking. That evidence must reach clear, cogent, and convincing. Subjective evidence can only be used for back up.
• There is evidence that there is trouble (decertification filed) but that doesn't support the breadth of decertification.
• Do stalled union negotiations mean that there is no longer a majority interest? No. Is a decertification objective evidence of a lack of majority support? No. That's why there is a vote.
• There is a question of why the union member interest is still active. Stalled negotiations are not by themselves objective evidence. Need to show that the union/employee relationship is not continuing.
• Board is going to go on a case-by-case basis to determine if there is unrest.
• The employer doesn't have to demonstrate that 51% of the members no longer support the union. Employer just needs clear, convincing, cogent evidence.
• The company here wasn't justified in refusing to negotiate further. Under those circumstances, no further talk of a union would be permitted that is an 8a1 violation of Section 7 rights. Bringing the best labor lawyer in was part of what could have undermined support for the union during decertification and the union election. When lawyer says that employees have the same rights as under a union, that is not true and is misleading. Some of the same rights are protected but not all or the same.
• Here, (1) Refusing to bargain (2) Preventing employees from talking about unions (3) Bringing in a lawyer that gives incorrect information = Section 8a1 violation.

NLRB v. COCA-COLA BOTTLING (1984) •

FACTS: Company agreed to allow access to the premises to the Union. Then a decertification petition was filed. The Union tried then to go onto the premises to discuss the petition and the company says no, you cannot because it is not in service of grievance and has union reps arrested. Company begins interrogating members on union membership and then the election occurs and the union loses.

ISSUE: Whether the companies actions interfered with the election and was an unfair labor practice.

HOLDING: The NLRB found company guilty of various unfair labor practices in violation of the National Labor Relations Act after a decertification petition was filed. The court held that access by employees' representatives constituted a mandatory bargaining subject, and the unilateral change in the manner and degree of access constituted a basic change. The company's action was an unfair labor practice. The conversation with the employee was also an unfair labor practice where the interrogation followed the confrontation involving the representatives and their subsequent arrest, and there was an implication of surveillance. The court concluded that enforcement of NLRB's order best effectuated the statutory purpose of protecting the right of the company's employees to freely choose a bargaining representative.

It was true that the agreement had concluded but the terms will still apply if both parties still agree to them. The mere fact of decertification petition filing does not allow the company to disregard the previous agreements.
• The employer has 2 obligations while the petition is being reviewed:
o Not to bargain
o Not to make changes.
• Unilateral changes will poison the atmosphere, the company must remain neutral.

ABOOD v. DETROIT BOARD OF EDUC. (1977) •

FACTS: The Detroit Board of Education and a union certified as the exclusive representative of teachers employed by the Board entered into a collective bargaining agreement, which contained an agency shop clause. Certain teachers, alleging that they were unwilling or had refused to pay union dues, that they were opposed to collective bargaining in the public sector, and that the union used a substantial part of the agency shop fees to support ideological and political causes which were unrelated to collective bargaining activities and which were opposed by the plaintiffs, instituted actions against the Board, the union, and certain union officials, the plaintiffs contending, inter alia, that the agency shop clause was unconstitutional as violating the plaintiffs' freedom of association protected by the First and Fourteenth Amendments.

ISSUE: This case presented the question whether an "agency shop" arrangement, authorized by Michigan law between a local government employer and a union representing local government employees, whereby every employee represented by the union, even though not a union member, was required to pay to the union, as a condition of employment, a service fee equal in amount to union dues, violated the constitutional rights of those government employees who objected to public sector unions or to various union activities financed by the compulsory service fees.

HOLDING:
(Stewart, Brennan, White, Marshall, Rehnquist, Stevens)
1. An agency shop arrangement between a local government employer and a union representing local government employees did not violate the First and Fourteenth Amendment of expression and association rights of employees who objected to public sector unions, or to various union activities, insofar as the service charges collected by the union were used to finance union expenditures for the purposes of collective bargaining, contract administration, and grievance adjustment, it being immaterial that because public employee unions attempted to influence governmental policymaking, their activities in collective bargaining might properly be termed political;
2. However, the use of service charges for political and ideological purposes which were unrelated to collective bargaining and as to which an employee objected was unconstitutional;
3. If the plaintiffs proved that their constitutional rights had been violated by the union's use of service charges for political and ideological purposes unrelated to collective bargaining activities, the plaintiffs would be entitled to an appropriate remedy, such as (a) an injunction against expenditures for political causes opposed by the plaintiffs, (b) restitution of a portion of the funds exacted from the plaintiffs in the proportion that union political expenditures opposed by the plaintiffs bore to total union expenditures, and (c) the reduction of future exactions by the same proportion; and
4. The plaintiffs were not required to indicate to the union their opposition to specific expenditures to which they objected, but instead could indicate their opposition to ideological expenditures of any sort that were unrelated to collective bargaining.

TURNER v. AIR TRANSPORT LODGE (1978) •

FACTS:
• After plaintiff member was expelled from his union for being guilty of the misconduct of advocating communist ideas, plaintiff sought reinstatement by filing an action under the Labor-Management Reporting and Disclosure Act (LMRDA), against defendant labor unions.
• Unions challenged the court's judgment, which held that defendants violated the freedom of speech provision of the LMRDA, and which granted plaintiff relief.

HOLDING: On appeal, the court affirmed the district court's judgment because defendants' constitutional provision making the advocacy of communism grounds for expulsion was forbidden by LMRDA pronouncement that union members had the right to express any views or opinions. The court held that defendants' right to adopt reasonable rules to prohibit its members from interfering with defendants' legal or contractual obligations did not justify the provision under which plaintiff was expelled because there was no evidence that anything plaintiff said caused any harm to defendants and the provision was so broad and vague that it was not a reasonable way of keeping out members of the Communist Party. Thus, the court affirmed the judgment ordering that plaintiff member be reinstated in his union because the provision of defendant labor unions' constitution that made advocating communist ideas a ground for expulsion was not a reasonable means for preventing Communist Party infiltration into the union and, thus, it violated the freedom of speech provision of the Labor-Management Reporting and Disclosure Act.

CORONET CASUALS (1973) •

FACTS:
• Employees weren't paid on an hourly wage rate. They were paid on a piecework rate. Fairly complicated calculation. Calibration of garments per minute. The piecework rate was calculated so that if an employee worked steadily for 460 minutes per day they would get an average of $1.60 per hour. Most employees got piecework premium.
• When the contract was up, union wants an increase in the base rate compensation. Union also wants additional piecework premiums on top of that.
• Coronet Casuals hires a negotiator and the company decides a number of things in relation to the bargaining.
• The company also decides a number of things in relation to the bargaining. Company doesn't schedule negotiations and is stalling.
• In addition, the employees want information on how the base rate is calculated. It is unclear if company knew how to calculate the base rate.

HOLDING:
Court finds that the Employer refused to bargain in good faith in violation of 8(a)(5).

The Employer did not bargain in good faith because:
• Employer kept stalling meeting with the union
• Refused to provide a bargaining representative with sufficient information about the issues to be bargained about so that the collective bargaining representative can't do his job effectively.

NOTES:
1. Has to be a response for the bargaining request, which is reasonable. This goes to good faith.
2. The union in order to be able to bargain collectively has to have the information of what is actually being paid. Not only do you have to sit at a table the company has to furnish enough information to determine how to bargain. Goes to good faith.
3. Have to tell bargaining representative the truth. The union thus can count on what the representative says and can negotiate fluidly. Goes to good faith.
4. Company has to disclose how additional wages are paid. The three above are the primary good faith requirements:
a. Have to meet
b. Have to provide information
c. Have to have competent and fully informed negotiator.

RIVERA-VEGA v. CONAGRA, INC. (1995) •

FACTS: Employer asserts that the employer can't afford additional labor costs. Company says that they can't be competitive with the other ConAgra subsidiaries. The company gives the union a complete proposal for a new agreement. The new agreement would cut wages from approx. $17 an hour to $11 an hour. The final figure was $2 less than competitors. Company says can't be competitive without these drastic cuts. Union unhappy and wants to see the company's books to determine if there really is a financial crisis. The company isn't alleging inability to pay workers or some sort of financial crisis - the company just says it can't remain competitive. The union and the employer bargain to an impasse and the Employer goes back to the original offer and threatens to lock out the employees. However, the union wants to still negotiate. Employer says no and locks out and then lays off 40 employees. At the same time, Employer continues operations by bringing in employees from other ConAgra companies. Then ConAgra pays the new employees more than the former employees and then hires permanent replacements - these wages are lower than what they wanted to pay their former union employees. So there is a two-tiered system. ConAgra replacements get more $ and permanent replacements get less $ than former union workers.

Issues regarding the duty to bargain in good faith:
1. Duty to bargain in good faith requires both parties to participate actively in negotiations so as to indicate a present intention to agree. Although the parties do not actually have to agree on anything.
a. Look at the total conduct of the Employer to determine whether the Employer bargained in good faith.
b. Delaying tactics, unreasonable bargaining demands, unilateral changes to the contract, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of positions already agreed upon, arbitrary schedule of meetings.
c. Court here finds that Employer did not make an unreasonable demand because the union had contracts with other Employer's with lower wages and Employer did not modify some of its proposals. A hard bargain, therefore, does not mean a refusal to bargain.
2. Does the Employer have to provide the union with financial information when the Employer has an "inability to pay" not when the Employer claims an "inability to compete."
a. Here, the Employer was claiming an inability to compete, but the inability to compete would cause them to go out of business, which would in tern be an inability to pay. Thus, the Employer must give union its financial information.
3. Was there a bargaining to impasse?
a. Rule: If one party remains willing to move toward an agreement, there is no valid impasse. If there is no valid impasse, the Employer cannot make unilateral changes to the contract.
4. The Lock-Out
a. Rule: An Employer who does a lockout with the purpose of making the Employees accept the Employer's unfair labor practices, as opposed to a lockout with the purpose of negotiating, then Employer cannot hire temporary Employees (if they hire temporary Employees, then it's a violation of 8(a)(3))
b. Here, because the previous unilateral modification was an unfair labor practice and the lockout's purpose was to put pressure on the Employees to accept that unilateral modification, then Employer cannot hire temporary Employees.
5. Since the Employer here was a subsidiary of Conagra, do they both share the management of Employees?
a. Do the independent entities share or codetermine negotiations? If yes, then they are joint Employers and are both responsible for the unfair labor practice.

FIBREBOARD PRODUCTS, INC. v. NLRB (1964) •

FACTS: Employer did not bargain with the union regarding whether the Employer was going to hire independent contractors to replace the Employee's to save money.

ISSUE: Was the company's decision to subcontract former bargaining unit work a decision they had to bargain about? (To replace Union workers with subcontractors.)

RULING:
What does the Employer have a duty to bargain about?
1. Section 8(d) required the Employer have a duty to bargain with each other in good faith with respect to wages, hours, and other terms and conditions of employment; duty is limited to those subject, and within that area neither party is legally obligated to yield, and as to other matters, each party is free to bargain or not to bargain.
2. The Court held that "terms and conditions of employment" that Employer is required to bargain about whether the Employer will contract out the work performed by the Employee's and terminate the Employee's employment, which resulted from contracting out.
o While not determinative, it is appropriate to look to industrial bargaining practices in appraising propriety of including particular subject within scope of mandatory bargaining.
o NLRA does not encourage each party to engage in fruitless marathon discussions at expense of frank statement and support of his position, but at least demands that issue be submitted to mediatory influence of collective negotiation. In order to require negotiation on issue, it is not necessary that it be likely or probable that union will yield or supply feasible solution, but rather that union be afforded opportunity to meet management's legitimate complaints.
o Because the Employer violated the NLRA by improperly refusing to bargain, the NLRB can order resumption of maintenance operations and employee's reinstatement with back pay under 10(c). This is within the broad discretion that the NLRB has in providing remedies that will effectuate the policies of the NLRA.

FIBREBOARD PRODUCTS, INC. v. NLRB (1964) •

Steward Concurrence:

• "Conditions of employment" does not include such managerial decision, which lie at the core of entrepreneurial control (investment decisions).
• Assumption of this rule is that investment decisions are for management, but wage decisions are for workers.
• Examples of when an Employer has to bargain (examples of "conditions of employment"):
o Physical things,
o Number of hours,
o Work expected,
o Periods of relief,
o Safety practices,
o Those are all clearly conditions or employment,
o Physical surroundings and carrying out work at the work place.
• Examples of when Employer does not have to bargain:
o Decision to liquidate,
o Changing product lines, decisions about marketing,
o All those are the kind of entrepreneurial decision that can have effect on employment, but they are indirect effects

OAK CLIFF-GOLMAN BAKING and CONFECTIONARY UNION (1973) •

FACTS:
• An Employer unilaterally modifying a collective bargaining contract within the meaning of 8(d) violated 8(a)(5) and (1).
• Employer lowered the wages of collectively bargained for contracts without first bargaining with the union.

HOLDING:
• Employer cannot unilaterally change a collectively bargained for contract.

FIRST NAT'L MAINTENANCE INC. v. NLRB (1981) •

FACTS: Green park contracts out its maintenance work to FNM. In their contract FNM tells green park that their employees they get will only work there and they are the only ones they get. They cannot employee any of their employees within 90 days after the contract expires. FNM decides the terms of contract are not favorable and give notice of termination of agreement at the expiration. They continue working for a period after. The Hospital Healthcare Union comes in and organizes the FNM employees. When that happens FNM says they refuse to work for Green park. Union says FNM had to bargain with them over the decision to quit working at Green Acre.

ISSUE: Whether they were required to bargain about the removal of employees from Green Acre.

Opinion divides e'r decisions into three types:
• Decisions with indirect and attenuated impact on employment relationship. These include financing, advertising, etc.
• Decisions that clearly have an effect on the employment relationship. These include layoffs, retention, severance pay.
• Decisions that directly impact the employment relationship, but focus only on the economic profitability with the customer. So facts at issue in decision are separate from employment relationship.

REASONING: Court held that decision to close part of business fell into 3rd category. Court said that the point of mandatory subjects is that collective discussions backed by parties' economic pressure will result in better decisions. But here, the issue is simple profitability, which can't be resolved by bargaining. So harm done to e'rs need to operate freely in deciding whether to shut down part of business for economic reasons outweighs incremental benefit of allowing the union to be part of the decision making process.

HOLDING: in view of an e'rs need for unencumbered decision making, bargaining over management decisions should be required only if the benefit, for labor-management relations and the collective bargaining process outweighs the burden placed on the conduct of the business.

Grievance Arbitration: Workplace Governance by Private Agreement •

FACTS:

Grievance Arbitration: Workplace Governance by Private Agreement
• Arbitrators only role is to interpret the contract
• The arbitrator will determine the intent of the parties, will look at what has happened in past agreements and will look at the custom of the industry
• Arbitrators agreement will be reviewed by courts
• What is arbitratable is subject to court's decision
• Reviewing courts are deferential to arbitrators decision
• Only if there is corruption, bias, or no basis in the contract for the arbitrators decision will the reviewing court overturn arbitrators decision
• Grievance arbitration creates a quid pro quo for a no strike obligation during the course of the contract
• No strike clause is implied into the contract through the arbitration agreement

WHOLESALE PRODUCT SUPPLY CO. v. TEAMSTERS LOCAL UNION (2002) •

FACTS: Union and Employer had CBA in which it said, "employer cannot fire anyone without just cause and shall give one warning unless it is for dishonesty, drunkenness or drug addiction...Any controversy that cannot be solved must go to arbitration for decision of facts. Knox was terminated and his case immediately brought to arbitration. Arbitrator found Knox was guilty of taking a long lunch, attempting to mislead supervisor, and being late to work multiple times. They decided to reinstate him with full benefit but no back pay, essentially reducing his sentence to suspension for the time he was gone. They said, "termination was too severe a sanction for his actions.

ISSUE: Whether the Arbitrator correctly adhered to the CBA.

Holding: The cases Wholesale relies on are distinguishable here because that case has a more narrow description of terminable offenses of which their employee had met. Here the employee can only be fired for just cause amounting to "dishonesty, drunkenness, and drug use, plus repeated negligence of job performance." The arbitrator, being a finder of fact did not overstep his authority in deciding the facts did not amount to dishonesty or negligence to justify termination and that a lesser punishment was sufficient.

NOTES:
• Employer allows discharge for "just cause." Does the employee's actions meet this "just cause" interpretation?
• Court doesn't agree with the arbitrator because the arbitrator never makes a finding that the employee's actions were dishonest. Thus, the arbitrator never determined "just cause."
• Management likes to have broad management prerogative clauses so that it's prerogatives can't be challenged even in arbitration. Management in that situation would want to limit the arbitrator's decisions to factual judgments. Then management can decide based on facts whether that rises to the level of just cause under management's standards.
• Courts hold that the purpose of arbitration is to resolve disputes peacefully over the contract. Thus, unless clearly limited the arbitrator has authority to interpret any clause under dispute.

UNITED STEELWORKERS OF AMERICA v. AMERICAN MANUFACTURING (1960) •

FACTS:
A union which entered into a collective bargaining contract containing an agreement for arbitration of all grievances sought to compel arbitration of its contention that an employee who had left his job because of injury and while off work brought an action for compensation benefits which he settled on the basis that he was permanently partially disabled was entitled to return to his job by virtue of a seniority provision of the collective bargaining agreement.

ISSUE: Whether or not the disabled employee's continued employment is required under the contract? The union grieves and management refuses to go to arbitration over it.

HOLDING:
(Douglas)
• The courts below had erred in weighing the merits of the grievance and the equities of the employee's claim, in view of the fact that the arbitration clause called for submission of all grievances to arbitration, not merely those a court would deem meritorious.
• Taft Hartley revisions evidence that adjustment by the parties over the contract have to be settled over peaceful means. That statutory provision is meant to encourage arbitration as one of those peaceful settlement procedures. The union shouldn't be left out in the cold with no way to address their grievances. So arbitration is appropriate and is a stabilizing influence. Court forces employer to go through arbitration. It doesn't matter if the employer is convinced that the outcome is a slam-dunk. It is also not a matter of the union's opinion. Arbitration has a therapeutic relief for union workers and coming together as a group.

NOTES:
• This is the first case that no strike clauses are the quid pro quo for ADR. The parties for negotiation and ADR could create explicit exceptions to what is subject to arbitration.
• Those kinds of exceptions have to be express and have to be in the contract. From now on federal courts are going to assume that arbitration processes should be construed broadly unless the parties expressly state in the contract.
• In addition, no strike clauses = quid pro quo for ADR (unless there are explicit exceptions in the contract).
• There might be situations where a union might want to arbitration anything. Union will not arbitrate safety considerations (mining) see section 502.
• There are some situations where unions cannot bargain away on behalf of their membership. That's the reason why the unions might want to exclude such safety issues even if there is a comprehensive and agreeable dispute resolution mechanism.

UNITED STEELWORKERS OF AMERICA v. WARRIOR AND GULF NAVIGATION (1960) •

FACTS: Employees whose collective bargaining contract with the employer provided for arbitration of differences as to the meaning and application of the provisions of the contract, but excepted from arbitration matters which are strictly a function of management, protested the employer's practice of contracting out work formerly done by employees. Upon the employer's refusal to arbitrate this grievance, a suit to compel arbitration was brought.

Holding: (Douglas) Broad arbitration clause here.
• Doubts about whether something should be covered by arbitration clause should be resolved in favor of arbitration by reason of 301(a) - policy for industrial stabilization.
• Famous test: an order to arbitrate the particular grievance should not be denied unless it must be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. [e.g., rational lawyer with a straight face.]
• There is a limit: excepts things that are "strictly a function of management."
• Cant arbitrators make management decisions if an arbitrator is, "an extension of the contract" as the majority says.

UNITED STEELWORKERS OF AMERICA v. ENTERPRISE CORP. (1960) •

FACTS: Employees whose collective bargaining contract contained an arbitration clause providing for arbitration of differences as to the meaning and application of the contract and specifying that the employer was obliged to reinstate and compensate for lost pay an employee found by an arbitrator to have been suspended or discharged in violation of the contract, brought an action to compel the employer to arbitrate a grievance as to the discharge of employees who left their jobs in protest against the discharge of another employee. The court ordered arbitration, and the arbitrator found that the employees were entitled to reinstatement and back pay; he rejected the contention that expiration of the collective bargaining agreement between the time of the discharge of the employees and the time he made his award barred the award. On the employer's refusal to comply with the award, the employees sued.

HOLDING:
(Douglas)
The COA, in ruling that the award was barred by the termination of the collective bargaining contract, exceeded its proper function under the arbitration clause, which is to determine whether a grievance is arbitrable, and not the merits of an arbitrable grievance.

As long as arbitration decision is drawn from the K, court should enforce it.
• Essence test: as long as arbitrator purports to be interpreting the K, then the arbitrator's award is OK and enforceable, even if there are mistakes of facts or law.

ALEXANDER v. GARDNER-DENVER COMPANY (1974)•

FACTS: After respondent employer terminated petitioner employee. Employee initiated grievance proceedings pursuant to a collective-bargaining agreement. Petitioner testified at an arbitration hearing that he was discharged due to racial discrimination, but the arbitrator ruled petitioner was discharged for just cause.

Petitioner then sued respondent under Title VII. The Court held that the employee was precluded from litigating the Title VII claim due to the arbitrator's ruling against him.

Issue. Whether Alexanders racial discrimination claim is a dispute over employment subject to arbitration under the CBA and therefore he would lose because union had already decided against arbitrating.

HOLDING: The Supreme Court reversed, holding that petitioner, in submitting his grievance to arbitration, was seeking to vindicate his contractual rights under the collective-bargaining agreement, and therefore was not precluded from asserting his independent statutory rights under Title VII. Moreover, the Supreme Court rejected company's suggestion that the courts had to defer to the arbitrator's decision and held that a federal court should consider a claim under Title VII de novo, while according such weight to an arbitral decision, as the court deemed proper. Thus, the employee was not precluded from asserting his rights under Title VII merely because he had submitted his grievance to arbitration pursuant to a collective-bargaining agreement, and the federal courts were to hear such Title VII claims de novo without deference to the arbitrator. Therefore an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.

GILMER v. INTERSTATE/JOHNSON LANE CORP. (1991) •

FACTS: Stockbroker signs form contract to work for NYSE is required to arbitrate ALL disputes including federal statutory rights. Employee claims age discrimination under ADEA and wants to pursue right by going to court.

ISSUE: Was the contract legally enforceable?

RULING:
• To have a private cause of action even though your individual employment contract says arbitration only, Employee has the burden of proving that Congress, in enacting whatever statute the claim is under (in this case, the ADEA) intended to preclude arbitration of claims
• Here, ADEA was not intended to preclude arbitration of claims
• If the contract says you can only arbitrate statutory rights, then Employee must only arbitrate. However, if there is a showing of fraud or unequal bargaining power, then the contract provision requiring arbitration is not valid
• Gardner-Denver is distinguished because of the difference between the bargaining of an individual of an Employee contract and the bargaining of the union for a collective bargaining agreement.

DeGROFF v. MASCOTECH (2001) •

FACTS: Degroff was given a conditional employment as long as she signed an agreed to the policy of the company to arbitrate any employment disputes. She was given no chance to read and she just signed it quickly. She left and then later filed a sexual harassment suit. (D) tried to say she had to then arbitrate. Under state law, "anything you sign, you are presumed to have read."

ISSUE: Whether under state law there was a contract for arbitration.

Holding: (State law is preempted by federal law of collective bargaining.)
• Although whats in the contract is an issue, its an issue and arbitrator should resolve, State laws bearing no weight.]

POTENTIAL PROBLEMS WITH ENFORCEABILITY OF ARBITRATION PROVISION.
• Is this a knowing and intelligible waiver?
o Not strictly an issue on the table.
• Disparaty of bargaining power?
o No such thing as coercive bargaining in a collective bargaining agreement (through Union.)
o Title VII is a right... (Gilmer)
• Discovery
o Could be a problem with arbitrator if arbitrator cannot allow the employee to provide all of the evidence it needs. (Tradeoff for simplicity of arbitration)
• Attorneys Fees
• Court costs.

Court says although these can be problems they don't automatically render the provision unenforceable.
• MIGHT Still be a problem:
o Voluntary Waiver
o Question whether the provision creates an effective alternative for enforcement of a statutory right.

14 PENN PLAZA LLC v. PYETT (2009) •

FACTS: Employer decides to contract out night security. These people then have to be deployed to other jobs. These lower paid jobs are not as desirable. The employers sue under ADEA - a part of Title VII. These employees had pensions/had been at the company for a long time. Company decides to withdraw before arbitration. There was an arbitration provision in the contract stating that all disputes under the contract were compelled to go to arbitration. That included all disputes arising under statutes (Title VII).

This is significantly different from Steelworker's Trilogy - where the majority distinguished disputes arising under the contract versus disputes arising under the statute. The argument is that arbitrators are only competent to understand the contract between the parties. The arbitrator was only to decipher the contract as it was contracted.

ISSUE:
Are arbitration clauses in employment contracts -- waiving an employee's right to bring statutory claims in federal court -- enforceable?

CONCLUSION:
Yes. The Supreme Court held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. With Justice Thomas writing for the majority, the Court reasoned that ,here, the arbitration provision was a "bargained-for exchange" in the collective bargaining agreement and thus should not be interfered with by the courts. The Court went on to state that because the ADEA itself did not mandate such interference, the arbitration provision should be enforced.

BIG CHANGES:
o Arbitrator is now applying law (title VII). This was not something arbitrarors were normally allowed to do.
o The arbitration provision of the statutory claims was clearly a bargained condition of employment which is enforceable and not to be interfered with by the courts.
o Title VII rights can be waived by someone other than the person who is protected by them (Union waiving employees rights.)

THE BOYS MARKET, INC. v. RETAIL CLERKS UNION (1970) •

FACTS: CBA said that all controversies concerning its interpretation or application should be resolved by arbitration and that there should be no work stoppage, lockout, picketing, or boycotts during the life of the contract. A dispute arose and, when petitioner did not accede to respondent's demand, a strike was called and the union began to picket petitioner's establishment. Petitioner's effort to invoke the contract's arbitration procedures being unsuccessful, it sought injunctive relief in the state court, which issued a temporary restraining order. The union removed the case to the Federal District Court, which ordered arbitration and enjoined the strike and the picketing. The Court of Appeals reversed, considering itself bound by Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), which held that § 4 of the Norris-LaGuardia Act bars a federal district court from enjoining a strike in breach of a no-strike clause in a collective bargaining agreement, even though that agreement contains binding arbitration provisions enforceable under § 301(a) of the Labor Management Relations Act.

HOLDING: Federal court can issue injunction against strike in violation of no-strike clause IF dispute is based on something arbitrable under grievance procedure. No evidence that Congress intended removal mechanism to be utilized to foreclose remedies in state courts - devastating implication for enforceability to arbitration agreements if equitable remedies aren't available.
• Holding is NARROW: only in situations where CBA has mandatory grievance or arbitration procedures.
• To get a federal court injunction there must be an arbitration clause that applies to the dispute, and e'r must be willing to arbitrate.
o If the arbitrator says its arbitrable then you cannot injunct.
• You can use LaGuardia to bring an action but only for damages.

BUFFALO FORGE v. UNITED STEELWORKERS OF AMERICA (1976)•

FACTS: Clerical and technical Ees on strike to negotiate a first-contract. Steelworkers refused to cross the picket line set up by the clerical and tech Ees (i.e. sympathy strike). Er sought an injunction against the steelworkers as a violation of their no-strike clause.

ISSUE. Are workers who honor a picket line and sympathy strike violating their own CBA.

HOLDING: Sympathy strikes aren't over an arbitrable issue, so arbitrator cannot resolve dispute, so you can't enjoin strikes to force folks into arbitration. No injunction b/c this is not an arbitrable dispute. Underlying issue: clerical and tech workers trying to get a k. This is not arbitrable b/t steelworkers and Er.
• If this an issue with THEIR CBA than it can be arbitrated, if its not, it cannot.
• Does not violate federal no-strike because it wasn't an issue between the (sympathy) strikers and management.

ELECTROMATION INC. v. NLRB (1994•

FACTS: : Co in financial trouble and won't be able to award annual bonuses. Employees signs petition in protest. Employer sets up 5 mgmt Action committees (Attendance bonus, no smoking, absenteeism, pay progression, communication network) to solve these issues. 6 Ees and 2 mgmt members on each committee. Next month, union demands recognition. Er claims that they were unaware of the union organizing efforts. Thus, no anti-union animus in setting up these committees. Following month, Er announces that they would no longer work with the committees until the election.

HOLDING:
Bd: Violation of § 8(a)(2). These committees deal w/ terms and conditions of employment.
(1) Mgmt may not participate in forming any independent Ee group. If mgmt creates its own system, it interferes w/ Ees free choice to have their own union. Thus, Bd confined Er to traditional adversarial union management

E.g. of committee that does not violate § 8(a)(2):
o Suggestion box. Simple communication is ok—just cannot respond to a group.
o "Quality of work life programs"—If mgmt delegates to Ees the opportunity to make decisions regarding time and manner to operate the workplace
• Improving operations ≠ dealing w/ terms and conditions of employment
o Communication programs
• But if mgmt becomes aware of Ee problems, can change policy, but cannot negotiate back and forth

NOTES:
No existing union at Electromation, so this case applies to all non-union shops.
Problems:
• Management decided how committees would be formed, how decisions would be made, what the committees would be discussing.
• ER drafted policy goals, determined number of EEs on the committees, made manager the coordinator of the committees. EEs were paid for time at meetings; ER had final say.

TOLEDO TYPOGRAPHICAL UNION v. NLRB (1990)•

FACTS: Toledo is a union that represents the employees of a newspaper company. When bargaining over a new CBA with the employer, they insisted on a clause saying they could deal directly with employees over retirement issues. Although they had agreed on it in prior CBA's the union refused to agree. The company claimed they had bargained to impasse and the Union filed a charge with the NLRB alleging bad faith negotiations. The NLRB dismissed the complaint alleging that it was an issue of "terms and conditions" which is a mandatory subject that could be bargained to impasse, the union argued it was not a mandatory subject.

ISSUE: Whether the ability to deal directly with employees was a mandatory subject that could be bargained to impasse.

Held: Employer may deal directly with employees over any lawful matter if it first obtains consent of union, but employer that negotiates directly with employee without first bargaining with union commits unfair labor practice by refusing to bargain collectively.
Employer's demand to include in collective bargaining agreement direct-dealing clause permitting employer to bargain directly with employees over retirement issues and to exclude union in those negotiations was not mandatory subject of bargaining, and, thus, employer's insistence upon clause to point of impasse was unfair labor practice, i.e., refusal to bargain collectively with union

Mergers, Acquisitions and Successor Employers

WILLIAM BURNS DET. AGENCY v. NLRB (1971) •
o Company takes over control of airport security from Wackenhut (Replaces just management)
o Burns has CBA with different union than the one the employees from Wackenhut use.
o They tell Wackenhut EE union they cannot bargain with them because they bargain with a previous union with Burns.
o CT:
• Especially since it is within the first year of new ownership BURNS has the responsibility to bargain with the old union who represented the Wackenhut employees.

Plant Closings

Warn Act:
Plants of more than 60 people must notify Employees 60 days before closing so they can find other work.

→Exceptions:
1. If the business is rapidly failing, you can't force it to stay in business or
2. If the losing is the result of unforeseen circumstances or
3. If the plant closes, they must pay the Employees 60 days pay as severance

FALL RIVER DYING v. NLRB (1987) •

FACTS: Dying company closes and two former managers decide to reopen. They have essentially the same business minus one small department, the speculative fabrics. They hire about 12 former supervisors and 36 former employees to run the business again. Same location, same business, same jobs. Different ownership.

ISSUE # 1: Should the system of collective bargaining require this type of successor to bargain with the union.

ISSUE #2: When is there a duty of a successor to bargain with a prior union?

ISSUE #3: How long is a union's demand to bargain open

HOLDING:

Issue # 1: Should the system of collective bargaining require this type of successor to bargain with the union.
• Employees are nervous because they had been laid off and will defer to management requests in order not to "rock the boat"
• But if they had a union before they would likely want one again.
• Substantial Continuity Test:
o Whether there is the same business, employees are the same doing same work and under the same supervisors, same products, and same customers?
o Petitioner WAS a successor.

Issue #2: When is there a duty of a successor to bargain with a prior union?
• If successor has same work, same product, same customers, same Employees
o But, successor doesn't take on the obligations of the old collective bargaining agreement, they just have an obligation to bargain with the union
o If some of the Employees of the new enterprise are different than the old Employees and the Employee has a good faith doubt about whether the majority of Employees favors the union, then he does not have to bargain with the union
o "Substantial and representative complement" rule: fixes moment when determination is to be made as to whether majority of successor's employees are former employees of predecessor
• Determines whether successor must bargain with union representing predecessor's employees

Issue #2: How long is a union's demand to bargain open
• "Continued Demand Rule" - If a union makes a demand to bargain but the substantial complement has not yet been met, then the demand remains in force until the substantial complement has been met.

Board examines a number of factors
o Whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors
o Whether the new entity has the same production process, produces the same products, and basically has the same body of customers.
o Whether "those employees who have been retained will understandably view their jobs situations as essentially unaltered"

HOWARD JOHNSONS CO., INC. v. DETROIT HOTEL... UNION (1974)•

FACTS: Grissoms decide to sell the company back to Howard Johnsons when they get tired of franchising. HJ hires back only 9 of the previous employees and when they do they refuse to bargain with the old union.

ISSUE: Whether the union may compel Howard Johnson to arbitrate und ether arbitration provisions of the collective-bargaining agreements signed by its predecessors, the extent of its obligations under those agreements to the predecessors employees.

HOLDING: Court says, no, Grissoms are still on hook for previous contract requirements. It is not HJ problem to worry about the old contract requirements, the Grissoms are responsible.
2 Exceptions:
• When new ownership MERGED two companies.
o One who had a previous CBA disappears. (Wiley)
o WILEY: You can't get out of CBA by merging.
• When you set up a new Corporation with the same and it is just a sham to reject CBA.

ALLENTOWN MACK v. NLRB (1998) •

FACTS: Parent company sold off a branch facility. Group of managers formed new company to purchase the branch, rehired 32 of 45 employees. Same business employees etc indicated the new owners were successors. New owners declined to recognize the union and conducted a poll as per Struksness. (believing the Union lost support.) Union lost at poll 19 -13. Union argued poll invalid b/c ER had no good faith belief that union did not have majority.

ISSUE: Is the National Labor Relations Board's "good-faith reasonable doubt" standard for polling employees on union support rational and consistent with the National Labor Relations Act? Is the NLRB's factual determination that Allentown Mack Sales, Inc. lacked such doubt supported by substantial evidence in the record?

HOLDING: Objective consideration includes unsubstantiated assertion by an employee about what others feel, even through hearsay offered in job interview with company's new owners.
ER who believes union doesn't have support of majority has three options:
• Request a formal election
• Withdraw recognition and refuse to bargain (NLRB: unfair)
• Conduct internal poll of EE support for union (NLRB: unfair).
Asking people in job interviews is unfair!
• Must keep in mind Struksnes Factors.

Appeal: We need to decide if the Employer had a good faith reasonable doubt in the unions support.

If they had reasonable doubt then they can do the poll.
ER did possess good faith => polling was lawful

Bildisco
• Debtor went to Bkrptcy judge to get approval to repudiate the existing CBA in order to get more money to satisfy the creditors.
• Allowed this request from judge who would allow the repudiation based on his view that the value to the employees for them to remain in business outweighs the value of their CBA.

Then, Congress rewrote Code making hoops for company to go to judge. (11 U.S.C s 113)

The debtor ER must
• make a proposal to the employees rep about the reorganization
• Based on most recent and accurate financial information
• Requirements in proposal must be NECESSARY to meet the requirements of the reorganization
• Must make sure ALL creditors (including the employees) are treated fairly.
• He must also provide all information to the Union necessary to evaluate the company's claimed need.
• The ER must also bargain in good faith before the judge can ever repudiate.

If the Union rejects the proposal with good cause the judge cannot go ahead with repudiation.
o Only if they have no cause to reject the proposal can the judge repudiate.

WHEELING PITTSBURG STEEL v. UNITED STEELWORKERS (1986) •

FACTS: The Steel company takes out excessive loans and discovers it cannot operate as is and pay back the loans. Requests a reorganization dependent upon repudiation. Union says no, Company has enough cash on-hand to cover its labor costs and then meet current operational expenses. Steel company seeks to have CBA rejected from Bankruptcy court.

HOLDING: Issue in proceeding in which debtor-in-possession sought to reject collective bargaining agreement was not whether debtor could continue to pay wage rate required by current collective bargaining agreement and still emerge with enough cash in hand at expiration of contract term to meet current operational expenses, **but whether it was necessary for debtor to pay rate found in its proposal in order to successfully reorganize.**
• Necessity is constructed as modifications the company would need to get to be able to reorganize and repay debts.
• "Necessary" standard for purposes of determining whether debtor-in-possession would be authorized to reject collective bargaining agreement cannot be satisfied by mere showing that it would be desirable for trustee to reject prevailing labor contract so that debtor could lower its costs.
• Bankruptcy court was required to consider absence of "snap back" provision in context of determining whether modification of collective bargaining agreement was "necessary" before approving modification which provided unusually long five-year term at marketedly reduced labor costs based on pessimistic five-year projection without at least also providing for some compensation for employees' concessions.

INTERNATIONAL LONGSHOREMAN'S ASS'N v. NLRB (1995) •

FACTS: U.S. union went to Japanese unions to tell them that oranges were being shipped from U.S. companies that were not unionized and to do a secondary boycott

HOLDING: American Labor statute only applies with territoriality of Japan. But I am deciding on whether the ILA had any control on Japanese unions decision. Standard agency law, there is no reason to believe the Japanese unions are acting as an agent of American union. The Japanese unions were sympathetic and engage in solidarity with American unions but that is not enough to create agency. Japanese secondary boycott was not agency of American, just an action of solidarity.

INTERNATIONAL LONGSHOREMAN'S ASS'N v. ALLIED INTERNATIONAL (1982) •

FACTS:
• Foreign union asks U.S. union to secondary boycott
• Russian union asks U.S. union to stop unloading ships sent from Russia (opposite situation from previous case) in order to bring pressure on the Russian government to withdraw from Afghanistan.

RULING:
• This is considered interstate commerce so it is within the NLRA's regulation.
• This was not meant to bring pressure on the Employer to settle a labor dispute.
• However, while the purpose of the strike was to protest the Russian government it was reasonably expected that it would bring neutral parties (Employer) losses.
• Employees can do strikes that are out of the Employers control as long as they are related to labor (ex. sympathy strike), but Employees cannot do a strike on something that is not within the Employer's control and that is unrelated to employment

ASPLUNDH TREE EXPERT CO. v. NLRB (2004) •

FACTS: Big company that does clearing of trees, maintenance, highways, interference with wires, and for many years were in the practice of responding to calls for help for weather emergencies in other countries. They would send their workers over to help out. (they were of course paid.) So there is a big ice storm in Canada, trees knocked over collapsing power lines. The workers get a certain amount for food and lodging. The Ottawa workers find out that workers in Quebec are getting more and they object and refuse to work if they don't get the raise. The management calls home office and they say, if they don't work their fired. Some of those employees say this is no good, they are fired and told to go home. (they are told that they quit.) Bring a ULP charge

RULING:
Normally we refer to the boards construction of the statute, but this involved a matter of law as to when it has jurisdiction. Purely a court decision, we don't care what the board said.

Rule: American rule has no extraterritorial effect unless congress specifically says they mean it to.

HOFFMAN PLASTICS COMPOUND, INC. v. NLRB (2002) •

FACTS: Illegal immigrant, who was hired by Employer because he falsified documents, was retaliated against for union activity.

ISSUE: Does the National Labor Relations Board have the discretion to award backpay to an undocumented alien employee who was not legally authorized to work in the United States?

RULING: "NO"
• NLRB's discretion to select and fashion remedies for violations of the NLRA though generally broad is not unlimited.
• When the National Labor Relations Board's (NLRB's) chosen remedy for a violation of the National Labor Relations Act (NLRA) trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may be required to yield.
• Here, there is such a statute, the Immigration Reform and Control Act of 1986 (IRCA) is a comprehensive scheme prohibiting the employment of illegal aliens in the United States.
• Under the Immigration Reform and Control Act of 1986 (IRCA), if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status.
• Federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA), foreclosed the National Labor Relations Board (NLRB) from awarding backpay to undocumented alien who had never been legally authorized to work in the United States, even though alien had been unlawfully terminated in violation of the National Labor Relations Act (NLRA).
• Title VII, however, does protect undocumented immigrants and they can get damages.
• Undocumented workers can get damages in a tort suit for injuries on the job.

NAFTA/Maqiladoras•

Multinational treaties where countries decide and agree upon how labor standards be enforced.
Ex: NAFTA:
• Labor side of NAFTA says there are certain international standards which each country should implement (in their own way.) Things such as:
o Freedom of association, right to organize, right to collectively bargain, right to strike, prohibition of forced labor, prohibition of employment discrimination, etc.
o These are agreed to as goals, each country implementing these goals in their own ways.
o No NAFTA enforcement mechanism or administration enforcing the goals.
o Each country has a NAFTA office Where one country can file a complaint that one country is not enforcing their own labor laws.

CANADA-MEXICO-UNITED STATES:
NORTH AMERICAN AGREEMENT ON LABOR COOPERATION (1993)--

Parties insisted on labor site agreement. IT does not set up any required labor standard apply to all three countries. It set up aspiration .pg 1166: things company agree to provide but not in min sense.

•Other important aspect, none of the parties can enforce the labor laws of another country against those country citizens. This is contrary to the commercial regulations of the NAFTA agreement itself.

LCF, INC. and SPRINT CORPORATION and COMMUNICATIONS WORKERS (1996) •

FACTS: LCF provide Spanish telephone service. (people in U.S. trying to communicate with Mexico.) Spring buys them thinking it will be a great new market. Turns out not to be. They decide to close LCF claiming they are not doing well. They were collecting lists of employees who are members of the CWA union. The company tells management to make a paper trail claiming we were planning to close for a while. Employees claim they closed to prevent unionization.

First, Mexican labor union, files with its own national office that US laws had failed to live up protection that were promised in the agreement. All the Mexican union can do it ask their national office to complain to us for not enforce their laws, they can't do anything more than that as a legal matter. Mexican union request two things:
1) ask the national office of Mexico to hold public hearings in San Fran.
2) don't let sprint come into México with their anti labor record.
The US complies with the NAFTA site agreement by use of the normal unfair labor practice:

HOLDING: LCF clearly violated 8(a)3 for trying to prevent unionization by closing the section. Cannot order sprint to recreate LCF but we can order them to pay back pay and then hire back the people they fired and anyone they cannot fire they have to put on a preferential hiring list. (Make the employees whole.)

o Sprint cannot decide to close LCF, because it is only a partial closing. (One department)

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