Labor Law Outline
Author: Anonymous
Text: Cases & Materials on Labor Law, Cox, Bok, Gorman, Finkin. 13th Edition.
School: UC Davis School of Law
Professor: Professor West
Year: Spring, 2004

Format
I. Historical Background and California Common Law
II. History of Judicial and Legislative Response to the Organization of Labor in the U.S.
III. National Labor Relations Board
IV. Organizing for Collective Bargaining Purposes
V. Collective Bargaining Under the NLRA
VI. Strikes, Picketing, and Boycotts- Use of Economic Force
VII. Enforcement of the Collective Bargaining Agreement
VIII. Is There a Future For American Labor Unions?

I. Historical background and California common law

A. History of Employment and Labor Law

1. Employment Law: Servant Class

a. Began in England as family law (subset of ppty law)

(1) Compulsory labor system where servants owed loyalty and hard work

(2) 1349: Statute of Labourers (England)

(a) Black Plague = scarcity of labor. Bound to master for one year.

(3) Statute of Artificers (England)

(a) All persons b/t 12-60, who were not gentlemen born & w/o a craft had to be employed in agriculture by a master

(4) Servant could only be fired for good cause

b. United States :

(1) ½-2/3 of Caucasians came as bound servants to the US

(a) 1810: No more indentured servants

(b) People moving west to become master

(2) Black labor came as indentured servants until 1640s (slaves)

(a) 13th A: No more involuntary servitude

(b) Servants → Ees

(3) Avg. labor ks lasted 4-7 years

(4) 1870-80: Employment at will

(a) In response to Industrial Revolution & need for mobile labor force

(b) Supported by Ees wanting to be mobile

2. Labor Law: Skilled Trade

a. England—exempted from compulsory employment

b. US

(1) 1914: rise in factory system—high turnover

(2) 20th C (massive immigration) → labor surplus

B. Employment-at-will doctrine

1. Does not apply to public sector Ees b/c

a. US Constitution, property right in your job & due process

b. Civil service rules—can only be fired for good cause

c. Increasing union ks governing

2. Private sector: Ees can quit or be terminated @ any time or any reason except an illegal reason (e.g. union activity or race/gender/religion/age)

a. American system developed around 1880s (Industrial Revolution)

b. In response to English system where Ees employed for one year—cannot quit

3. Statutory modifications—These don’t alter the underlying employment at will doctrine. They are only the exceptions. [Note: from mid-1970s, states also creating c/l exceptions to employment at will.]

a. NLRA (1935): Workers have permission to organize in unions and to collectively bargain

b. Fair Labor Standards Act (1938): Set 8-hour workday, 40-hour workweek, minimum wage

c. Social Security System (1938): Retirement benefits conferred upon retirement

d. Workers Comp (1920s-1930s)—[state govt]: Gives workers benefits in exchange for their right to sue Ers for negligence

e. Unemployment Compensation System [state govt]: If laid off w/o good cause, can collect compensation

f. Equal Pay Act (1963): Women to be paid same as men for equal work

g. Title VII (1964): Prohibits employment discrimination on basis of race, national origin, religion, gender.

· Civil Rights Act also prohibits unions from discriminating on the basis of race

h. Age Discrimination in Employment Act (ADEA): No compulsory retirement; applies to anyone over 40.

i. ERISA (1974): Pension

j. Warn statute (1980s): Mandated notice (60 days) for Ees to know about layoffs.

k. ADA (1990)

l. Family and Medical Leave Act (1993): Unpaid leave up to 12 weeks a year for ppl to care of newborns or family w/ serious medical condition.

· CA: Can have 6 weeks paid for serious medical condition

C. CA law on wrongful discharge (Demonstrates the narrow and limited protection that workers in the private sector have w/o union protection and collective bargaining agreements)

1. 3 c/l causes of action:

a. Violation of Public Policy (tort)

(1) Must meet threshold that the policy must benefit the public at large

(a) Policy must be firmly established (i.e. in fed/state statute or constitution)

b. Breach of Implied Contract Terms

(1) Look @ whether totality of the circumstances of employment = implied promise by Er that they would only fire Ee for good cause

(2) Implied k terms can include: personnel policies, longevity, Er communications, industry practice/stds

(a) Even if Er has Ee sign a notice of at-will employment on their job apps, Er actions can contradict that agreement (promotions, progressive discipline) that implies Er will fire only for good cause

(3) In reality, few of these cases brought b/c of lack of $$.

(4) May be possible of emotional distress in a b/k claim (e.g. b/k for funeral arrangements). C/l must evolve this way. [Justice Broussard, concurring]

c. Breach of Covenant of Good Faith and Fair Dealing

(1) Covenant is in every k, but is only a k claim (i.e. no tort remedy)

(2) This was MERGED w/ #2—Thus, covenant of good faith and fair dealing is not really a separate claim. (Guz v. Bechtel—2000)

2. Remedy: Tort or k damages. No specific performance (i.e. reinstatement)

3. Foley v. Interactive Data Corp (1988): π worked for company and eventually promoted to branch mgr. π reported, to old supervisor, that his new supervisor was investigated for embezzlement. π given $6k merit bonus 2 days before being terminated. π terminated by new supervisor. Held: (1) No violation of public policy—Duty to report rumors does not run to the public interest, only the private interest of the Er; (2) Enough facts to go to trial on this c/a; (3) No b/k for covenant of good faith and fair dealing

a. CA Lab. Code § 2922: Codifies employment at will

4. Gantt v. Century Ins.: π brought action for wrongful discharge in violation of public policy. Held: Public policy must be expressed in a written statute or state constitution. Administrative regulation ≠ source of public policy.eldHeld

5. Green v. Ralee Engineering (1998): π inspects airplane parts. Δ company producing defective parts and shipping them to Boeing (according to FAA). π made reports to Er that parts were defective. π fired. Held: Violation of the administrative regulation is sufficient b/c it comes out of the statutes—which are passed by the legislature.

a. No protection for π under whistleblower statutes b/c π must inform violations of the law to a govt entity.

II. History of judicial and legislative response to the organization of labor in the US

A. The reaction against judicial intervention in labor disputes

1. Legal Response to early labor organizing

a. First national craft unions founded 1850s (Knights of Labor, 1869; American Federation of Labor, 1886)

b. Skilled crafts gradually losing status w/ rise in industrial revolution

c. Mgmt’s response = use of the labor injunction (i.e. enjoining workers from labor organizing activity such as joining unions, meeting, talking to others)

(1) State c/a: “Unlawful purpose” or “unlawful means”

(2) Fed. c/a: Sherman antitrust laws (1890)

(3) Labor injunctions effective b/c: 1) fast; 2) ex parte—no notice to the other side or adversarial hearings; 3) judge issuing the injunction could find violators in contempt of court; 4) provided legal justification for use of the police or federal troops

(4) Lead to hatred and distrust in the labor movement against lawyers, federal judges. Use of injunctions = history of violence

(a) e.g. Pullman strike (RR) Fed. marshals enforcing the labor injunction and killed 30 ppl on the first day.

d. Clayton Act (1914): Stopped the use of labor injunctions by the federal courts and from using the Sherman Act

(1) Thus, labor organizations not subject to injunction under the anti-trust laws

(2) Duplex Printing (1921): Machinist union trying to organize Ees who mfr printing presses. Actual factory was in Michigan, but union began picketing in NYC @ Duplex’s customers who ordered parts from Duplex Printing. Held: Clayton Act only directed to primary Ers. Use of secondary Ers is NOT covered by the Clayton Act.

(3) 1925: Ct extended Clayton Act to not cover primary boycotts/strikes/activity

(4) Hutchinson (1941): Restored the Clayton Act

2. Norris-LaGuardia Act (1932)

a. Written in context of legal abuses

b. Highlights:

(1) § 1: “No court…shall have jx to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute…”

(a) Clearer than the Clayton Act

(2) § 4: Prohibits use of injunctions for specific acts, including:

· Worker[s] refusing to work (i.e. strike)

· Being in a union

· Participation in lawsuits

· Giving publicity to labor disputes or advertising (i.e. picketing) as long as it is non-violent

· Peaceful assembly

(3) § 6: Unions not liable for acts of their members—only liable on clear proof on actual ratification or knowledge

(4) § 7: Procedural requirements for ct to issue an injunction

(a) Need open court hearing

(b) Need to demonstrate “substantial and irreparable injury”

(d) Police officers must be unable or unwilling to police the labor dispute

(5) § 13: Defines “labor dispute” such that the ct’s decisions under the Sherman antitrust laws and Clayton Act are overruled.

(a) Broad definition meant to cover primary and secondary Ers.

(b) 1947: Amended to prohibit secondary boycotts

c. → Cts could enjoin violence as long as they meet § 7 procedural requirements and does not violate § 4.

e. Burlington Northern RR Co. v. Brotherhood: National union striking against Guilford RR (Maine), and other RRs that did business w/ Guilford. District ct interpreted Norris-LaGuardia as only covering primary Ers or those substantially aligned. S.Ct. held: Norris-LaGuardia clearly covered the RRs—policy of the Act has no basis for a substantial alignment test/theory. This reflects Cong’s intent that Act extends to ALL labor disputes; i.e. including prohibition of injunctions extended to secondary Ers.

f. Intl Longshoremen v. USSR (1980): Δ refused to handle any USSR goods in US ports b/c of Soviet invasion of Afghanistan. Held: Δ’s could NOT be enjoined. This is a labor dispute under Norris-LaGuardia, and there is no exception for political reasons for labor dispute.

g. HYPO: Volunteer attys assigned to serve as public defenders. Defenders Association decides they’re not getting paid enough, and strike (i.e. refuse to take cases) to increase wages. Can the federal ct issue an injunction? Held: Yes b/c this violates the antitrust. Here, attys are independent contractors (i.e. no Ee-Er relationship), thus, Norris-LaGuardia does not apply. No labor dispute

3. Labor and the Constitution

a. Thornhill v. Alabama (1940): π and other Ees picketing outside Er’s business asking non-union workers not to go to work. Thornhill charged w/ criminal offense of picketing under the state statute (any picketing = misdemeanor). Held: Under federal Constitution (b/c state action), statute invalid. Picketing = free exchange of ideas.

(1) State can abridge speech in situations w/ imminent and present danger

(2) Does NOT apply to mass picketing, a tort (i.e. effectively blocking ingress and egress). No mass picketing here.

(a) Today: Picketing limited to 30 seconds to stop ppl. If the exchange is longer than 30 seconds = mass picketing

(3) 1948: Picketing bcm “speech plus” (i.e. cannot regulate the speech but can regulate the ‘plus’—the stick holding the sign)

(a) “Plus” – inciting words, signs

(b) Distinguishes b/t handbilling (speech only) and picketing (speech plus)

4. Wagner Act (passed: 1935; declared Constitutional: 1937)

a. History and Origins

(1) Arose from massive employer resistance (1930s): use of Pinkertons, Ee surveillance

(2) NLRB investigations (1939-41) → backlog of cases → increased criticism of NLRB

b. Highlights:

(1) § 7: Ee’s basic statement of rights

· self-organization

· form/join/assist labor organizations

· bargain collectively through selected representatives

· engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection (i.e. peaceful strikes and picketing)

(2) § 8: Er ULPs:

· interfere/restrain/coerce Ees in their exercise of § 7 rights

· discriminate w/r/t hire or tenure of employment to encourage/discourage membership in any labor organization

· discharge or discriminate against Ee b/c he has filed charges or given testimony under this Act

· refuse to bargain collectively with the Ee representatives

[§ 8(a)(5)]

(3) § 9: Procedure:

· representatives selected by a majority of the Ees in a unit are the exclusive representatives of all the Ees in unit for purposes of collective bargaining [§ 9(a)]

· NLRB created & has the power to administer the statute, issue orders

B. Post-WWII reaction against unions—

1. Increasing resistance to unions

a. Mass activity gaining recognition via illegal activity—NOT through the Wagner Act

(1) 1935-1937: 300 NLRB elections, 900 sit-down strikes

(2) Sit-down strikes effective b/c FDR (prez) and Democratic governors refuse to call out natl guard or state troops

(a) e.g. GM Strike (1937): UAW occupied the plant for 44 days. GM got an injunction of the 3d day of the sit-down strike, but the sheriff could not enforce the injunction. Governor and FDR refused to send state police or natl guard. Finally, GM forced to voluntarily recognize the UAW (w/o election)

b. All union activity suspended during WWII. NLRB resolves all disputes

c. Rise of Cold War + McCarthyism + Anticommunism—

(1) In response by labor movement of being labeled communist, bcms staunchly anti-communist

(2) BUT…lost the allegiance of the intellectual left by 1960s

(a) Unions: white/male/segregationist

(b) Unions segregated until Titivle VIII (1964)

(i) West: this is the reason why labor movement is dead now.

d. AFL-CIO merger (1955)

2. Taft-Hartley Act

a. § 8(b)—limits on Ee activity

(1) Bans secondary boycotts

(2) Limited recognition strikes (incl. sit-downs)

b. Created a damage remedy against unions

Prohibited “closed shop” agreements (i.e. agreements where Er agrees to only hire union members)-- Most CBAs had union-security provisions (i.e. w/in 30 days of being hired, you must join the union)

(1) § 14(b): “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or applications is prohibited by State…law.”

(2) Thus, states have the right to enact anti-union-security provisions

(a) These states are called “RIGHT TO WORK STATES”

(b) Southern states could prohibit union-shop and CBAs. Thus, entire industries and businesses headed to the south.

3. Landrum-Griffin Act (1959)—Regulates the internal practices of unions

a. Arises from fear of union bosses + desire to make unions democratic

b. Amends the Labor Act

c. Regulates internal affairs of unions

(1) Right to seek union office

(2) All Ees get a copy of the CBA

(3) Mandatory elections

d. Requires unions to file financial reports w/ the federal govt

(1) Unions are the only non-profit org required to file financial reports

(2) Becomes a great source of info for mgmt lawyers against unions (e.g. publishes salaries of union officers)

4. Labor Law Reform Bill (1978)—defeated

a. This was the last attempt to amend the labor statutes

III. National labor relations board

A. Jurisdiction of the NLRB:

1. Enterprises “affecting commerce”

a. Ers must engage in direct or indirectly w/ interstate commerce to amount exceeding prescribed $$ amount.

(1) NLRB voluntarily limited its jx

(2) These figures were set in 1958

b. § 14(c): NLRB can decline to assert jx over any labor dispute involving any class or category of Ers. But…once the Bd covers an area, it can’t retract w/o a change in the statute

(1) Bd does not cover certain areas (e.g. real estate firms)

(2) As new businesses emerge, the Bd decides whether or not to cover that industry

(3) Jx extended to law firms; private colleges/univ (1977); child care centers (late-1970s); social service centers w/ $250k+ (1980); health care industry (1974)

c. In reality, funding limits the NLRB from enforcing the entire law

2. Statutory and implied exclusions

a. Definition of Employer excludes:

(1) Any public Er (federal, state, municipal)

(a) But most public Ees allowed to unionize and collectively bargain—but no right to strike

(2) Any Er subject to the Railway Labor Act

(3) Catholic secondary schools

b. Definition of Employee, excludes

(1) Agricultural laborer

(a) Governed by state law

(2) Domestic workers

(3) Working for family

(4) Independent Contractor

(a) Determined by the “right to control” test

(5) Supervisors

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

(i) This is problematic in the health care industry where nurses were supervising nurses aides. S.Ct: No statutory basis to not call these people supervisors. Thus, all nurses bcm supervisors.

(ii) Tension b/t professional Ees using independent judgment and Ee supervisors

(b) Supervisors not prohibited from unionizing—only that Ers are free from the duty to deal w/ supervisors re: collective bargaining.

(c) Multi-Vision Cable TV (Cal. Ct. App. 1993): Supervisor fired for refusing to spy on Ees to see if they were organizing. Filed claim under wrongful discharge in violation of public policy; public policy = allowing Ees to organize. Held: Er wins b/c of doctrine of preemption: federal law source (i.e. NLRA) trumps state law.

(i) Cannot use federal law (NLRA) as source for policy for a state law claim of wrongful discharge

(ii) Since supervisors don’t have protection under the NLRA, can’t use this policy for a state law claim

(iii) Supervisor allowed to create an implied k claim

(6) Ee employed by Er subject to Railway Labor Act

(7) (implied) Retirees

(8) (implied) Confidential Ees (i.e. those Ees who have access/involved in labor relations—e.g. secretary to the HR mgr)

(9) (implied) Residents in hospitals

(a) Longtime declared as students, not Ees—has since changed once UC TAs were declared Ees, not students.

(10)(implied) Managers—NOT SUPERVISORS

(a) Rationale: Managers are identified w/ the Er & make policy for them

(b) Belle Aerospace (1974): Company v.p.’s –didn’t supervise anyone, but made policies

(c) Yeshiva Univ. (1980): Private university faculty are managers, NOT Ees w/in the meaning of the NLRA. Faculty aligned w/ mgmt b/c votes on tenure, helping decide the “product” by research, class lectures, curriculum—essentially helping the administrators run the university.

(i) S.Ct: Left open the possibility that faculty at “immature” universities could be considered mgrs—where no joint governance b/t faculty and administration

B. Organization of the NLRB—“two-headed agency”--[review chart, p. 35 in supplement]

1. Labor Board (1935)

a. 5 members w/ staggered 5-year terms

b. Reflects political changes in the presidency

(1) Typically, president will appoint one member for each year in office. Thus, by 3rd year of presidency, will control 3 of 5 members of the Bd

2. General Counsel’s Office (1947)

a. Prosecutor of ULP practices under the Bd

b. Regional Offices (where the action really happens)

(1) 33 offices

(2) Decision-making + enforcement delegated to Regional Directors

(3) Hearings held by Administrative Law Judges

(a) Huge implications for judicial review since reviewer is likely to refer to the findings of the ALJ

C. Procedures of the NLRB

1. Representation cases (“r” cases)

a. Unions organize Ees; Need 30% of Ees to sign the authorization cards

b. File petition in regional office

c. Regional offices determines appropriate bargaining unit

d. Direct the Election (Usually issued 6 weeks after petition)

(1) Union must get a majority vote to represent the Ees

(2) Er wins all ties

(3) If union loses, no appeal to court

(a) Decision in an “r” case is not the final order from the Labor Bd. Under admin law, can only appeal decisions of the Bd decision itself

(b) BUT, can request the election be set aside based on interference w/ Ee choice (but not a ULP).

(4) If union wins, Er under a duty to bargain w/ the union

(a) if Er refuses, then union must file a ULP (becomes a “c” case)

(b) Once the “c” case is decided, the Labor Bd issues a final order. This is reviewable in court

2. Unfair Labor Practices (“c” cases)

a. 6 month SOL to file a complaint

b. Regional Office

(1) Accepts charges

(2) Investigates charges

(3) Decides whether to file ULP complaint before the Bd

(4) Settles charges and/or complaints

c. GC’s office (Investigator, prosecutor)

(1) Decides whether to file ULP complaints in “novel or complex cases”

(2) Accepts appeals from Regional Director’s decision NOT to issue complaint. (No review available of GC’s decision not to file a ULP complaint.)

(3) Tries ULP complaints before the Bd (i.e. ALJ)

d. Administrative Law Judge Hearing

(1) Hears ULP complaints, prosecuted by regional attorney

(2) Issues findings of fact and recommended decisions

e. NLRB

(1) Reviews 10(j) injunction decisions

(2) Receives ULP decisions from ALJ

(3) Receives exceptions from parties re: ALJ decision

(4) Issues final decisions on whether ULP has occurred

(a) If no exceptions are filed, Bd normally adopts position of the ALJ

(5) Petitions Ct. App. for enforcement (GC represents the Bd)

f. Judicial review can be sought be aggrieved party in the Court of Appeals

(1) Cts must accept the Bd’s findings of fact “if supported by substantial evidence on the record considered as a whole”

(2) Defer to Bd on matters of statutory interpretation (Chevron)

(3) NLRB’s “non-acquiescence doctrine”: Since circuits vary (and often reverses the Bd), a circuit decision will be ignored if so far from NLRB decision. Thus, that will become the law of the Circuit so long as the S.Ct. doesn’t take the case.

(a) Bd will not change its policy to acquiesce to the Circuit’s reversal unless the S.Ct takes the case.

IV. organizing for collective bargaining purposes

A. Protection of the right of self-organization under § 7: “Ees shall have the right to self-organization, for form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities…”

1. Process of an Organizing Campaign

a. Union targets Ees

b. Ee committee formed (i.e. union trying to contact Ees w/o Er knowing)

c. Ee committee trained (how to organize co-workers)

d. Card/petition distribution (distributing “authorization cards”—authorize union to act as Ees’ agent to represent Ees in collective bargaining)

(1) Union must get 30% of Ees to sign these cards in order to go to the Labor Bd to petition for an election

(2) In reality, union needs 75% of the cards signed in order for the union to prevail in the election

e. File a petition to the Labor Bd to request a union election

(1) In general, the longer the time drawn out, the more the Er will gain votes. Likely the ‘undecideds’ will go w/ the Ers the longer the waiting period b/t signing cards and the election.

f. Prehearing Conference

g. Hearing

h. Election day set

i) Usually 6 weeks after petition

ii) Period of most intensive activity by Ers. Ers send out formal letters to the Ees

2. Employer Unfair Labor Practices under § 8(a)(1)

a. § 8(a)(1)—“(a) It shall be an unfair labor practice for an Er—(1) to interfere with, restrain, or coerce Ees in the exercise of the rights guaranteed in section 7”

b. No solicitation rules (asking Ees to refuse to sign authorization cards)

(1) Republic Aviation: Military aircraft manufacturing factory during WWII. [before Taft-Hartley; original Wagner Act]. Ees passing out authorization cards during lunch period (Ees fired) + Ees wearing union buttons.

(a) NLRB’s rule on solicitation: Ees may not solicit other Ees during “working time.” Er may not prohibit solicitation if Ee is on his own time (i.e. rest periods, lunch breaks).

i) Need to balance Er’s property rights/rt to proper discipline v. Ee’s rt to organize.

(b) Er must enforce their anti-solicitation rules consistently; otherwise, they may be liable for discriminatory enforcement (violation of § 8(a)(3)).

(c) Another issue here: Can the NLRB take its rules from adversary proceedings (here, rule established in payton packing), and apply it forward [since it differs from other administrative agency rule-making]?

i) S.Ct: Ok for Bd to set rules in this way—unless Ers can show that they have special circumstances that would remove the Er from the presumption.

(2) Healthcare Industry’s no-solicitation rules: Hospitals are “special” and can prohibit ALL solicitation in patient-care areas/floors—whether Ees are on their own time or not.

(a) Thus, Ees must take breaks in the cafeterias or lobby.

(3) Dept Stores: Can’t talk shop on the department floor b/c would distract customers + interfere w/ business.

(4) BUTTONS [worn by Ees]: Rule, fn 7: “The rights of Ees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity and the respondent’s curtailment of that right is clearly violative of that Act.”

(a) Thus, a general rule against union buttons is presumed to violated § 8(a)(1)

i) Ers must show special circumstances why they should be allowed to prohibit buttons

(b) Health care industry: Er argued union buttons as upsetting to patient care, but nursing home allowed “jesus saves” buttons, so needed to allow union buttons. Otherwise, would be considered discriminatory application (old case)

(5) T-SHIRTS

(a) Southwest Bell: Ees wore t-shirts, “Ma Bell is a cheap mother.” Held: Ok to ban these shirts b/c disrespectful

(b) Midstate TV (1983): T-shirts, “I survived the strike of 1979” NLRB: T-shirts ok b/c promoted solidarity; 2d Circuit: Reversed. Balanced Ees rights to organize v. companies’ rt to discipline. Held for Er b/c of detrimental effect to company

(c) Point: The closer the Ees can confine their activities to traditional union speech, the more protection. Cts/Bd has more trouble when branching out to newer forms of speech.

c. No distribution rules

(1) Basic rule: Ers can prohibit literature in non-work areas (e.g. break rooms) and on the plant floors

(a) Rationale: Balancing § 7 rts of Ees v. Er’s ppty rts. Literature on the floor can get into the machines and make them malfunction. (**think of the machines as property**)

(2) Rights of non-Ees (i.e. union reps) to solicit Ees

(a) Babcock/Wilcox: Country plant 30 mi outside of town w/ long driveway into the plant + parking lot. Issue: can the union organizers come into the parking lot? S.Ct: No, must protect the private property rts of the Ers from trespassing union organizers.

i) General rule: Ers can keep strangers (i.e. non-Ees) off of their property unless location is soooo remote that the union otherwise would not get to contact Ees (e.g. Ees living on the premises of the Er, logging camps, mountain resort hotels)

(b) Jean Country (1988): Complications in “big city rule.” Bd comes up w/ new 3-factor balancing test:

i) degree of impairment if access denied

ii) degree of impairment on property right

iii) reasonable alternative means

(c) Lechmere: Strip mall adjacent to public land. Union organizers tried fliering the parking lot, but were kicked off by mgmt under Babcock. Then went to the grassy strip of land to picket and copied license plates to get addresses via DMV. Got 20% of Ees addresses & sent mailings. Over 6 months over 1 Ee signed authorization card.

i) Held: Reaffirms Babcock. No special rule for urban Ees. If non-Ee organizers have reasonable accommodation to Ees outside Er’s property, then “accommodation” has taken place

ii) Dissent/Criticism: No language in the statute to define non-Ees v. Ees. Should strike down the rigid distinction b/t Ees and non-Ees. Also, balancing test only applies unless NO reasonable access

1) West: S.Ct ignoring labor history in interpreting the NLRA & brings in outside assumptions on private ppty, etc.

2) Chevron deference issue: S.Ct should defer to the Bd when interpreting the statute.

(d) Post-Lechmere: Union organizers getting hired by the Er to get the status of Ee. Called “salting.” S.Ct: These organizers are Ees, despite the fract they may also work for a union, too. Thus, cannot fire a “salter” for being a union Ee.

(e) Off-Duty Ee who comes back onto the parking lot after his shift is over to talk to Ees. Bd: Ee is an Ee, not a trespasser, even though he may not have access to the plant at the time.

(f) Important: FIRST AMENDMENT DOES NOT APPLY TO PRIVATE PROPERTY; THESE RIGHTS ARE ONLY UNDER THE LABOR STATUTE

d. Threats of reprisal or promise of benefit—Employer speech under § 8(c)

(1) Issue of Er speech arises when the Er finds out something is going on (usually when cards are getting signed)

(2) 1941: S.Ct rules that Bd can’t tell the Ers they can’t talk. Ers have freedom of speech to their opinion.

(3) § 8(c): “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.”

(a) In short, Ers’ speech is ok so long as no threats and no promises. Also written so that statute complied w/ 1st A.

(b) In voicing their anti-union opinion, Er’s speech cannot be used as evid of a ULP.

(4) General Shoe (1948): Speech may not violate § 8(a)(1), but still violates the election.

(a) Ct develops “laboratory conditions” doctrine: Union elections are like an experiment in a lab. If Ers’ speech is too out of line, will contaminate the lab conditions—i.e. Ees free choice.

i) Limits certain kinds of speech not rising to the level of a threat or a promise

ii) This only applies to the period b/t when the Bd sets the election date and the election held, usually 6 months, when lab conditions must prevail

iii) A violation of the “laboratory conditions” ≠ ULP. Thus, only remedy: re-do the election

iv) Controversial b/c studies show that this doesn’t make a difference in the election since Ees expect Ers to engage in this type of speech. Studies also show that the “cleaner” the Er was, the more effective the Ers’ campaign against the union was.

(5) Dal-Tex Optical Co (1962): Er said, “Do you want to gamble all these things? If I am required to bargain, I will bargain with cold-blooded business basis. You may come out w/ a lot less than you have now.” Bd: Er’s statements were coercive (i.e. illegal threats) and not protected by § 8(c). ULP here.

(6) Gissel Packing Co (1969): Plant of a parents company in W. Mass. Mid-1960s, plants closing. Er told Ees that they were forgetting the lessons of the past strikes and that a strike would lead to a closing. Also told Ees that they might lose their jobs b/c parent co. had no reason to stay in Mass. “Teamsters are a strike-happy outfit w/ hoodlums.” Bargaining unit: 14 Ees. Before the campaign, 11 signed cards. After the campaign, union loses, 6-7.

(a) S.Ct.: Need to balance Er’s free speech rts v. Ees free choice. BUT…balancing the rights must take into account the fact that the Ees are economically dependent on their Ers.

(b) Gissel Rule: Er may make a prediction—but prediction must be carefully phrased on basis of ⁽¹⁾ objective facts to convey demonstratively ⁽²⁾ probable consequences ⁽³⁾ outside of the Er’s control.

i) Here, mgmt had control over the closing of the plant. Thus, conditions of bad consequences are probably w/in the Er’s control.

ii) The court will defer to the board in deciding whether Er’s predictions go over the line

(c) EXCEPTION: If a company has made a decision that if the Ees vote in the election to close the entire business → NO ULP. Er can cease being an Er entirely.

i) Thus, can tell the Ees that if they vote for the union, you will close the plant. BUT, need evid to show that the decision was made beforehand

ii) BUT…if the Ees call your bluff and they vote and you don’t close → ULPf

1) This is considered a threat

(d) These threats of retailiation are NOT protected by the 1st A

(e) Examples of lawful Er speech

i) Attack union’s promise (e.g. “Union cannot guarantee anything, only ask.”)

ii) Warning of strikes based on history or the state of the law (e.g. “SEIU has been on 32 strikes.” OR “Strikers can be replaced and as long as a strikes her gone, we can replace their job.” [this is not warning that the Ee will be fired, only replaced.])

iii) “Union victory can result in a serious harm.” (Serious harm is only a prediction)

iv) “Law allows Ers to replace strikers.”

(f) Examples of unlawful Er speech

i) “This is a very serious matter for you and your family. On the day of the election, vote as if your job depends on it.” Threat; violation of § 8(a)(1).

ii) “I will close down the shop if you do not do what I tell you to do…”

iii) “Should the union win, they will insist on higher prices.” (Violation b/c Er raises the prices, not the union.)

(g) re: Promises. Er’s get into trouble by implied promises and indirect words. (e.g. Er solicits grievances; implied promise that the Er is going to do something if they find out what is wrong.)

e. Interrogation and surveillance

(1) Interrogation

(a) Interrogation/Polling Ees before an election—Violation of § 8(a)(1)

i) Rationale: Attempt by Er causes fear of reprisal in the Ee’s mind if he replies in favor of unionism; Impinges on his § 7 rights.

ii) Presumption that interrogation will have a negative effect on Ees

(b) Formal Polling (Struksnes): Union organizing on the job, 20 of 26 Ees sign cards. Ee make a demand for bargaining. Er circulated a petition asking Ees to sign their own name. Afterwards, only 9 Ees agreed to have union representation.

i) Held: Violation of § 8(a)(1) b/c polling interfered w/ Ees free choice. Ct. App. remanded, asking Bd to make a rule

ii) RULE: Polling will violate § 8(a)(1) unless:

1) Purpose of the poll is to determine truths of a union’s claim of majority

2) Purpose is communicated to Ees

3) Assurance against reprisal

4) Secret ballot

5) Er not engaged in any ULP

iii) Once this rule set, Ers almost never polled. Reason: if the Er finds a majority, then the Er is obligated to bargain w/ the union. Most Ers want to delay bargaining for as long as possible.

iv) If union already filed a petition for election w/ the Bd, Ers may NOT poll.

1) Narrow window for Er to poll: from time union demands recognition to time Ees file for an election

i) The higher up the supervisor, greater likelihood of violation

ii) Known union adherent w/ union button, may not be a violation since Er knows that Ee is for the unions

iii) If Er removes Ee from the work floor and into their office, likely violation

(2) Surveillance: ALWAYS a violation

(a) Photographs of Ees engaging in union activity (e.g. going to meetings) = ULP

i) Exception: Er can take photos of violence on a picket line

(b) re: E-Mail. If Ers monitor e-mail all the time, can monitor for union campaign. But if they never monitored e-mail before, cannot start monitoring it once the union campaign begins

f. Conferring or withholding economic benefits

(1) NLRB v. Exchange Parts: Two weeks before the election, Er sent a letter listing all the benefits of working. Gave a new system for increasing the overtime benefits. Union lost the election

(a) Held: § 8(a)(1) violation.

(b) Granting benefits = violation of § 8(a)(1). “The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove.”

i) This case is about the action, not the speech, of the Er (i.e. the Er actually granting a benefit of increased wages and vacation time)

ii) Once the union shows up, Er cannot change the working conditions. Er cannot grant benefits until an election held.

1) This includes withholding any benefits (e.g. Er gives a raise every year. Union wants to hold an election. Er cannot stop giving this annual raise.)

(2) Concept: Maintaining the status quo. Once the union shows up, the Er cannot do anything different through organizing → election → bargaining phases. Thus, Er may NOT make any unilateral changes while they are bargaining.

i) HYPO: Co. gives wage increases every 3 years. Co. planning a wage increase 2002 (consistent w/ past practice). Union shows up in march 2002 & Er knows they cannot grant or withhold economic benefit near an election. What should they do?

1) Key: Establish the status quo.

2) If the status quo is dynamic (i.e. changes), need to show that proposed wage increase is in line w/ past practices & dynamic status quo.

ii) re: Solicitation and grievances. Er called a mtg prior to election; mtgs had never been given before.

1) This is a § 8(a)(1) violation

2) Implied promise…This is not a speech, but a change. Here, Ees are given access to mgmt when not previously given.

3) Includes implementing “attitude” surveys for the first time

3. Discriminatory discharges—Er ULPs under § 8(a)(3)

a. § 8(a)(3): “(a) It shall be an unfair labor practice for an employer—(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

(1) Most violations are when Ers discourage membership

(2) Union may negotiate a union security clause

(a) But, if a union security clause is negotiated, every Ee doesn’t actually have to join the union, only need to pay dues

b. Budd Mfg v. NLRB: Walter Weigand, Ee, hardly worked at all, brought in women, also became a representative for UAW. Once he started organizing w/ the UAW, he was fired. Held: Discharge violated § 8(a)(3)

(1) Employment at will: Er may discharge an Ee for a good reason, a poor reason, or no reason at all so long as the provisions of the NLRA are not violated

(2) HYPO: Upon reinstatement, Walter continues to live a life of leisure on the job. Company’s response? Can probably make him work

c. Diff b/t § 8(a)(1) and § 8(a)(3) violations….

(1) § 8(a)(1): Bd looks @ impact of Ee’s § 7 rights v. Er’s interests

(2) § 8(a)(3): Must prove Er’s motive or intent (i.e. anti-union animous). Burden is on General Counsel to prove:

(a) Prima facie case (inference of anti-union motive)

i) Ee engaged in “protected” activity that demonstrated Ees’ support for the union

ii) Er knew of the “protected” activity

iii) Er took adverse action against the Ee

iv) Any other comparative evidence, or any other evidence relevant to prove intent (e.g. the timing of the evid)

(b) Er can rebut the prima facie case

i) Rebut case

ii) Produce evid of a legitimate business reason

(c) GC: Comes back to prove pretext (i.e. that the legitimate business reason was really a pretext for union activity)—e.g. in W’s case, show that W never did any work, but this only became problematic when W started union organizing

i) Sole reason: anti-union animous

ii) Dual or mixed motive: GC cannot totally rebut the legitimate business reason, but can prove that anti-union animous was another reason (a second motive, also a motivating factor)

(d) In a dual motive case ONLY, Er can put on an affirmative defense. Er has the burden to prove they would’ve made the same decision anyway despite their anti-union animous.

i) This rule is from Mt. Healthy: School teacher called a radion station protesting school policies and was fired. School’s justification was that the teacher said obscenities in the school cafeteria. S.Ct: School needs to show that the teacher would’ve been fired anyway for misconduct

d. Mixed Motive Cases—e..g Mueller Brass Co: 2 Ees, Stone and Rogers

(1) Stone

(a) Prima facie case

i) Stone was a well-known union sympathizer

ii) Er knew

iii) Stone fired for violating the attendance rule. Had a prior (incorrect) dr’s note giving date for Stone’s return to work, but confused with final dr’s note. Er overrides prior dr’s notes

(b) Er has legitimate biz reason since received prior dr’s note

i) Er had a dr’s note

ii) GC must show that despite dr’s note, there was still anti-union animous. Bd: Infers anti-union motive. Ct: Reversed.

(2) Rogers

(a) Prima facie case

i) R a union activist

ii) Er knew

iii)