Labor Law Outline
Text: Cases & Materials on Labor Law, Cox, Bok, Gorman, Finkin. 13th Edition.
School: UC Davis School of Law
Professor: Professor West
Year: Spring, 2004
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
(c) → Thus, individuals could eventually escape the servant status
(2) Black labor came as indentured servants until 1640s (slaves)
(a) 13th A: No more involuntary servitude
(b) Servants → Ees
(c) No specific performance of k (i.e. cannot order someone to work)
(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
(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.
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
(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"
(c) Both sides need notice
(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
(1) § 7: Ee’s basic statement of rights
- 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
(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)
(c) Also lost allegiance of women (women’s movement), minorities (civil rights movement)
(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
(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
(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
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)
(c) Harrah’s Reno (1960s): Rule: strict uniform, no jewelry allowed. Thus, Er allowed to have “no union button" rule.
(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.
(c) But, threats or promise of a benefit IS a ULP b/c they are coercing Ees.
(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
(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
(c) Non-Anonymous Questioning—case by case basis. Look @ all circumstances
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
(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
(c) Pretext—dual motive case here
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.
(a) Prima facie case
i) R a union activist
ii) Er knew
iii) Adverse action: R fired
iv) Other evidence: comparative evid—no one else had ever been fired under Rule 22 (for lewd misconduct), even though others engaged in the conduct
(b) Er’s Legitimate reason: R used lewd and suggestive misconduct toward female Ees that Er had a plant rule against.
i) Evid: No other Ee had been fired for this misconduct
ii) Evid: Other complaints had never been looked @
(d) Er’s affirmative defense
(e) Held: Rogers’ conduct so offensive, ct refuses to sanction the behavior—even though its been happening for years. Don’t look @ past labor activity.
(3) West: Std of judicial review is violated by this court
(a) § 10(e): Findings of the Bd w/r/t questions of fact, if supported by evidence…should be conclusive
e. Darlington (1965): Textile mill in the south. Ees voted the union in. Millikin shut down the textile mill b/c he hated the union. Ees bring a § 8(a)(3) charge to contest the Er’s decision.
(1) Held: Case remanded to decide whether this was a total or partial closing.
(a) Total closing of a plant/business will NEVER violate § 8(a)(3) b/c Er ceases to be an Er under the Act.
i) Bd cannot prohibit to close the entire business—cannot force Er to continue being an Er if they don’t want to be an Er any longer.
(b) A partial closing may violate § 8(a)(3) if the GC can prove the motive/purpose of the closing was to chill union activity in other remaining parts of the business and if it was “reasonably foreseeable" that the closing would have that effect.
i) Partial closing not on the exam
(2) Called “runaway shops": when the Er’s shop becomes unionized and goes out of business after the unionization and moves shop to non-union area.
(a) To make this a § 8(a)(3) violation, GC must prove anti-union motive. Easy for the Er to argue back that the cost of business arose (i.e. economic necessity)
(3) This case hampered by severe delay.
(a) e.g. Plant closes, 1956 → S.Ct remands case, 1965 → NLRB award, 1967 → Enforces Bd’s order, 1968 → S.Ct demands cert (ends liability phase), 1969.
(b) Remedy = backpay
(c) 10-year process on compliance to litigate 550 Ees’ entitlement
(d) Bd takes 2.5 yrs to write up specifics of the compliance
(e) 1980, Co settles for $5m. Ees accept the offer—1/3 of them dead.
(1) Supervisors ≠ Ees w/in meaning of Act. Thus, supervisor cannot have a § 8(a)(3) claim
(2) In a limited set of circumstances, supervisor’s discharge could be a § 8(a)(1) violation IF it interferes w/ the Ees’ rights of self-organization (i.e. if supervisor had a significant impact on self-organization, can get Er for § 8(a)(1) violation)
i) Discharge of a supervisor will violate the Act only if it “directly interferes" w/ an Ees exercise of § 7 rights.
ii) Thus, the claim essentially belongs to the other Ees b/c the Act is trying to enforce their rights
(3) Supervisors may not be disciplined for:
i) testifying before the Bd or in processing an Ees grievance
ii) refusing to commit a ULP
iii) as pretext for discharging a pro-union crew
(4) For § 8(a)(1), do NOT need to prove motive, only the impact of the ULP
(5) Alternative c/a for supervisors:
i) Violation of public policy
ii) Free Speech Right
1) CA: Ers prohibited from discriminating against Ees b/c of their political activities (ct interpreted this code to see “coming out" at work = political activity
4. Remedies for Unfair Labor Practices
a. § 10(c):“If on preponderance of the testimony taken the Bd shall be of the opinion that any person…engaged in a ULP, then the Bd shall state its findings of fact and shall issue…an order requiring such person to cease and desist from such [ULP], and to take such affirmative action including reinstatement w/ or w/o back pay…"
(1) Bd has greater discretion in determining remedies + limited judicial review to review remedies—then discretion in determining liability
b. Common Remedies (Goal: to make the Ees “whole," i.e. the position they would’ve been in w/o the discrimination)
(1) Cease & Desist Order; (followed by) Post Notice
(2) Back Pay–
(a) How to calculate
i) Back pay = Loss wages – interim earnings
ii) Ee also has a duty to mitigate damages (i.e. go out and find substantially similar work)
(a) Phelps Dodge (1941): Applicants who were known union activists denied job b/c of their union activity. Could they get the reinstatement remedy?
i) Held: Yes, applicants also protected.
ii) Ee still entitled to remedial remedies, even if the Ee obtains substantially similar employment.
(b) This remedy usually doesn’t work b/c comes too long after Ee left employment. Few accept reinstatement and even fewer are still there 2 years later
c. Extraordinary Remedies
(1) Under notice, personal reading by president of the company
(2) Mailing cease and desist notice to each Ee
(3) Union access on Er’s property
(4) Reestablishing “runaway" shop
(5) Paying NLRB or union expenses
d. Injunctions—§ 10(j)—once a regional director orders a complaint, can get an injunction
(1) Ee more apt to accept reinstatement and to stay on the job
(2) GC accepts very vew injunctions
(3) Labor Law Reform (1978)—sought to make § 10(j) injunctions mandatory for organizing campaigns—FAILED
e. Hoffman Plastic Compounds (2002): People fired during the organizing campaign. One worker, Castro, takes the stand and testifies that he is an undocumented worker—he used a false birth certificate to obtain a job. Issue: Can an undocumented worker get back pay or reinstatement for ULP?
(1) US S.Ct: Bd may have expertise under NLRA, but this also involves IRCA (Immigration Reform and Control Act). Remedy of back pay violates the policy of IRCA. Thus, no right to give any remedies to undocumented workers.
(a) Dissent: No evid to show that Cong intended IRCA to impact the NLRB. Now, no remedy to hire undocumented workers—will it encourage Ers to hire undocumented workers and violated the NLRB b/c no sanctions against Ers who hire undocumented workers?
5. Bargaining Orders
a. Gissel: Union comes in; gets Ees to sign cards. During the card signing campaign, Er starts to violate the statute—impairs people, solicits grievances, takes adverse action against Ees in the union. Union did not file for election, but did file 3 ULPs
(1) This case consolidated w/ 4 fact patterns united by the fact that at some point in time, union had gotten a majority of cards by Ees to vote in the election.
(a) DERIVATIVE § 8(a)(5) violation (refusal to bargain)
(b) After the Bd has found sufficient #s of § 8(a)(1)-(3), the Er’s refusal to negotiate w/ the union once they’ve made the bargain demand → § 8(a)(5) violation
i) In short, an Er can lose the right to have an election b/c of all of the § 8(a)(1) & (3) violations. And, since at one point, the union did have a majority, Er has lost the right to demand election & must bargain with the union or be accused of § 8(a)(5).
1) Remedy for violation of § 8(a)(5) → bargaining order (even w/o a showing of majority status)
ii) Irrelevant: good/bad faith of Er’s refusal to bargain. Only matters that § 8(a)(1)-(3) violated.
iii) Rationale: Er has contaminated conditions so badly, there is no possibility of holding a fair election.
(2) General rule: After getting a majority of cards, Ees can notify Er and file petition w/ the Bd OR Ees can make a bargain demand.
(a) After a bargain demand, Er can refuse and tell the Ees to have an election.
(b) Er can reject a bargain demand (for any or no reason) so long as there is no independent reason/knowledge the Er knows that a majority exists—e.g. by looking @ Er’s independent polls or by looking at the majority of the cards)
(c) BUT…if the Er violates § 8(a)(1)-(3) enough, Bd may withhold the election or set it aside, and instead, issue a [Gissel] bargaining order. In order to issue a bargain order, need to find a violation of § 8(a)(5).
(3)3-types of Gissel bargain orders
(a) Gissel I: Non-majority bargain order: For outrageous and pervasive ULPs, Bd can issue a bargain order in absence of a majority.
i) Not really used in practice anymore
(b) Gissel II: Less extraordinary cases, but Er still has the tendency to undermine the majority’s strength
i) Requirements: 1) union, at one point, had a majority; 2) Er committed serious ULPs under § 8(a)(1) & § 8(a)(3) (looking @ gravity, extent, timing, repetition); 3) ensuring a fair election is slight
1) This is the basic test for a bargain order today
ii) But…Bd reluctant to have rule-making to define what/how many ULPs are sufficient to get a bargain order
(c) Gissel III: Minor/less extensive ULPs will not sustain a bargaining order.
b. Gourmet Foods (1984): Held: Non-majority orders fail to recognize Ees rights. Thus, Bd can no longer issue Gissel Is, non-majority bargain orders.
c. 1999: GC sent a memo setting the guidelines for when appropriate to issue a bargaining order—essentially look @ Gravity of the ULP; Extent of ULP; Timing; Repetition
(1) Presence of “hallmark" violations (e.g. giving benefits)
(2) Size of the bargain unit
(3) ID of perpetrators of the ULP (e.g. prez or low-level supervisor)
(4) Timing (i.e. far before the vote or right up to the election)
(5) Direct evidence/violation or impact of the ULP (can tell by the # of cards signed and # of votes in election)
(6) Likelihood violation will actually occur
B. Holding NLRB Elections
1. Elections-Preferred Route to Recognition
a. Linden Lumber Co: Held: If the Er has not committed any ULPs, Er has the rt to insist the union file for an election. No obligation on Er to recognize the union or to file for an election.
(1) Still consistent w/ Gissel (i.e. elections as the preferred route)
(2) Dissent: Fails to recognize the other ways to recognize majority status via the statute (i.e. authorization cards, recognition strike, notifying Er in person)
(3) Thus, an election is virtually the only way to get the Bd to recognize them.
(4) Practical consequences of Linden Lumber: Union must run 2 election campaigns (card campaign + formal election campaign)
(a) thus, union needs 75% of cards signed to have a shot at winning the election. unions generally peak at the card campaign
i) Cooper study: Even w/ 90% of the cards, union only wins 66% of the time
(b) undecided voters almost always vote in favor of the Er
b. Determining an Appropriate Bargaining Unit
(1) § 9(a): “Union may designate an appropriate bargaining unit…"
(a) Standard: A community of interest
(b) Important to determine this correctly b/c the bargain unit is the 1) election unit; 2) economic power unit (i.e. strike unit); 3) bargaining unit (i.e. need to represent interests of a cohesive group at the table.
(2) This is one way for the Er to contest the bargaining unit
(a) e.g. in a chain store, contest whether the bargaining unit is one store or a regional group of stores
(b) Thus, if the Bd decides that the bargain unit is wrong, union’s petition can be dismissed since 30% of total Ees have not signed cards
(3) In healthcare, the Bd set bargain units (i.e. all nurses, alll physicians, all profs, all technicians) w/in one Er.
2. The Election Campaign—Maintaining Laboratory Conditions (from time the election date set → election)
a. Union Access to Employees—the Excelsior list and captive audience speeches
(1) Excelsior Underwear Inc (1966): election campaign. union asked for names/addresses of voters and Er refused.
(a) Held: For all elections, w/in 7 days after the Regional Director has approved of an election or directed an election, the Er must file an election eligibility list of names/addresses of all eligible voters [call the “Excelsior list"]
(2) Captive Audience Speeches: Ers can give captive audience speeches w/ the limit that a captive audience speech cannot happen w/in last 24-hours before the election
(3) Remedy for violations of laboratory conditions: set aside the election and re-run
(a) ULP almost always violates the laboratory conditions. But, still remedy is to re-run the election
(b) If a union loses an election, only way to review the election is to file objects w/ the regional office under the laboratory conditions. Thus, can get administrative review (NOT judicial) to re-run the election.
i) Rationale: Bd decision in a representation case ≠ final order. (i.e. decisions in “r" cases are not final orders)
(c) If an Er refuses to bargain, then § 8 violation (i.e. ULP). Thus, Bd decision on ULP = final order + subject to judicial review.
b. Misrepresentations and Propaganda
(1) Hollywood Ceramics (1962): Held: Election should be set aside where misrepresentation which represents (1) substantial departure from the truth; (2) at a time which prevents the other party from making an effective reply (i.e. w/in last 48 hours before the election); (3) w/ significant impact on the election (e.g. how close the vote was)
(2) 1976: Gattman/Goldberg study—Speech during a campaign is unimportant b/c 90% of Ees make up mind by the time the election is set.
(3) Shopping Kart (1977): Held: Bd not to probe into the truth/falsity of campaign statements—instead rely on individual maturity and sophistication to recognize propaganda. But, Bd to intervene and set aside the elections if deceptive campaign practices involve the Bd or its processes OR involves forged documents.
(a) Here, altered Bd documents = copying the ballot marked and passing it out, saying the Bd endorses one party
(b) THIS ONLY APPLIES TO THE LAST 48 HOURS
(4) General Knit (1978): Overruled shopping kart and went back to hollywood ceramics.
(5) Midland Natl (1982): Photos of abandoned plants implying that the union put all of those out of work. Also used the union’s report to the Labor Dept to manipulate facts, implying that the union would only collect high salaries for its officers and not pay out to Ees.
(a) Held: Back to Shopping Kart. This is propaganda, not a threat. No violation of laboratory conditions, no ULP. Ers generally have the freedom to say what they want.
(b) 48 hours of propaganda is unregulated unless it includes altered Bd documents or forged documents
(6) Inflammatory appeals
(a) Sewell Mfg (1962): Propaganda relates union to blacks, racial integration, communism, anti-Christianity.
i) Bd: These are appeals to racial prejudice and will ALWAYS violate laboratory conditions & set aside election
(b) DC Circuit case (1999): Labor union appealed to prejudice by appealing to the tension b/t black and hispanic daycare workers. Issue: whether hispanic workers should be allowed to speak spanish.
i) Held: union’s message implicated race, but was ok.
ii) Race can be used to appeal to racial harmony and civil rights
(c) e.g. Union circulated letter of unrelated Japanese businessman who was critical of American workers. Union won the election. Er contests. Ct.App: Letter appealed to racial prejudice.
(7) Other propaganda
(a) Passing out anti-union hats to Ees one week before the election. Bd: Indirectly asking Ees their stance on the pending election = solicitation
(b) Cannot have off-site crab feed where Er pays the Ee to attend (2 days before the election). Bd: Interferes w/ the election as a benefit
(c) Cannot have election day raffles (on either side). Bd: Interferes w/ the voting.
c. Union Misconduct and Waiver of Fees
(1) § 8(a)(6): Union ULP to “restrain or coerce" Ees to exercise their § 7 rights
(2) ULP for a union to promise fee waiver [of union dues] if the Ees signed up before the election
(a) Rationale: This is bribery and giving a false sense of union support
d. Alternatives to NLRB Regulation of Campaigns
e. Election Procedures and Judicial Review
(1) § 10(f): Party may have judicial review if “aggrieved by a final order."
(a) Final orders only issued in ULP cases
(b) Parties must commit a ULP to obtain judicial review
(2) § 9(d): Record in the representation case is to become a part of the record which is certified to the fed ct app in the ULP case
(a) Here, ULP of refusing to bargain will trigger judicial review of a representation case
(b) Cts rarely overturn a Bd decision in a representation case
V. COLLECTIVE BARGAINING UNDER THE NLRA
A. Union as the Exclusive Representative—§ 9(a)
1. § 9(a): “Representatives designated or selected for the purposes of collective bargaining by the majority of the Ees in a unit appropriate for such purposes, shall be the exclusive representatives of all Ees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment."
a. Proviso: Any individual Ee can present grievances to Er, and to have those grievances addressed so long as they are not inconsistent with the bargaining agreement. Union representative has a right to be present at any adjustment of grievances
2. J1 Case v. NLRB (1944): Er has individual ks of employment. Union wins election and Er refuses to bargain. Union charges Er of § 8(a)(5) violation for refusing to bargain
a. Issue: What is a CBA?
(1) Trade agreement
(2) 3d party beneficiary k—Ees like 3d parties since CBA is signed b/t Er and Union. Thus, Ees work under the CBA.
b. Issue: What is CBA’s relationship to individual ks of employment?
(1) Individual ks are subsumed into the CBA. CBA is not a k of employment—it only sets the overriding provisions of employment. Individual Ees can bargain w/in this.
(2) In order for Ees to negotiate individual deals, CBA must give express permission to negotiate deals separate and apart from the individual agreement.
(a) e.g. Professional sports—where CBA sets broad terms w/ permission for individuals to negotiate individual salaries
(3) If individuals are in the bargaining unit (and union wins election), Ees w/in the unit are represented by the union.
(a) It is immaterial whether the Ees are members of the union or not; they still cannot bypass the union to negotiate individual deals absent permission
3. Ers cannot bypass the union; must communicate/deal through them
a. HYPO: In the middle of the strike w/ deadlocked negotiations. Co wants to send leaflets to individual Ees to let them know of their position. Can Co distribute ballots to Ees?
(1) No, this is bypassing the union
(2) Ers may be able to communicate via publicity (i.e. publicize position at the bargaining table)
4. Emporium Capwell Co v. Western Addition Comm. Org (1975): Er has a CBA w/ provision prohibiting “employment discrimination." African-American Ees protested discrimination by handing out fliers. Ees discharged. Issue: Was the action of the discharged Ees protected by § 7?
a. Held: The Ees’ activity is not protected—even though it is “concerted."
(1) Ees’ concerted activity in response to their bargaining demand (i.e. not protected by the statute) à Ees lose their labor law claim.
(a) Once Ees lost protection of the Labor Act, they cannot claim a ULP
(2) Ees argue § 9(a) proviso (i.e. Ees can present individual grievances to the union as long as the union representative is there)
(a) § 9(a) not intended to be enforceable—fn 12
(b) § 9(a) protects the Er by (voluntarily) allowing them to meet w/ Ees on grievances, but if they refuse, it is not a ULP
b. Ees bargaining was not allowed b/c
(1) Undermines the union’s strength/power
(2) Want to force the union to represent the minority Ees
(3) Prevent fragmentation by race
c. How to protect [numerical] minorities w/in the union:
(1) Construct appropriate bargaining units
(2) 1972 Landham-Griffin: Protects individual rights w/in the union & promotes democracy w/in a union
(3) Duty of fair representation (“DFR")
(a) Steel v. Louisville RR (1944): Union negotiated a k where all black Ees would be terminated. Ct: Agreement is wrong; union needed to fairly represent all members in the bargain unit
(b) If the union doesn’t represent the Ees properly, then Ees have c/a against the union for violating DFR
i) But high burden of proof. Ee must prove that union acted (1) arbitrarily, (2) discriminatorily, (3) in bad faith
B. Duty to Bargain in Good Faith—§§ 8(a)(5), 8(b)(3), 8(d)
1. What is “good faith?"
a. § 8(a)(5): ULP for Er to refuse to bargain in good faith
(1) “Good faith" = present intention to have a basis for agreement; Er must have a sincere desire to reach common ground.
(a) This is evidenced through the Er’s behavior
(2) “Surface bargaining" = bad faith; just going through the motions
(3) “Hard bargaining" = ok; fulfills the requirements of the statute; Er seen as just being tough
b. § 8(b)(3): ULP for a union to refuse to bargain in good faith
c. § 8(d): “…to bargain collectively is the performance of the mutual obligation of the Er and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment…but such obligation does not compel either party to agree to a proposal or require the making of a concession."
(1) Essentially gets parties to the table, then “closes the door" since Bd can never dictate terms of the agreement & can only compel negotiations
(2) This duty to bargain continues in effect until the parties reach impasse
d. To determine whether either party is bargaining in good faith, look at the totality of the circumstances
(1) Examine: Procedure
(a) e.g. Insisting on having a stenographer indicates bad faith b/c acting like the parties are preparing for litigation & no sincere desire to reach an agreement
(b) Location: If Er asks the union to bargain at a place they know the union won’t go, e.g. on the Er’s premises during a strike
(2) Lack of a counter-proposal: indication of bad faith bargaining in the totality of the circumstances
(a) e.g. when the company simply says, “thank you, we understand your position and will get back to you."
(b) Most negotiations are by the horse trading model—i.e. both sides make proposals and go back and forth
(3) Absolute demands—not alone ULPs, but can indicate bad faith bargaining.
(a) e.g. We will “never agree to a union-security clause of a dues check off."
i) If Er allowed payroll deduction for other charities/entities, can get the Er into trouble under § 8(a)(3) for discrimination
(b) Take it or leave it proposals—e.g. of bad faith bargaining for refusing to take counter-proposals.
e. NLRB v. A-1 King Size Sandwiches (1984): π and Co met 18 times in 11 months. Company did not make any concessions. Co’s proposals kept expanding Er control over mandatory subjects of bargaining. Held: Violation of § 8(a)(5).
(1) Bd can decide that Co violated § 8(a)(5) solely on the content of their proposals
(a) Content of the Er’s proposal was so awful that it indicates that the Er had no sincere desire to reach agreement
(b) Under these facts, union would have been in a worse position with the agreement than without it.
(2) If there is a strong Co and weak union, sometimes this will NOT be considered bad faith bargaining.
f. Bulwarism (1969): Mr. Bulwar engaged in scientific research to survey their Ees over what they wanted to develop a firm and fair proposal, which they marketed as their product. Presented proposal to the union.
(1) Held: Violation of § 8(a)(5) b/c bad faith bargaining. Going to the table w/o wishing to change
(2) Publicity campaign to Ees ≠ protected by § 8(c).
(3) Dissent: This is only a matter of economic strength, which is what bargaining is about. Govt can’t tell Co that they must reach specific proposals
2. Employer’s Duty to Disclose Information
a. Duty to make a good-faith proposal includes the Co’s willingness to supply information to the union
(1) Governed by a relevancy standard
(a) Truitt: Co claimed that they were not able to pay higher wages, so union asked for proof. Held: Any Er who claims they can’t pay must disclose financial status.
i) Co’s financial info is relevant if the company claims inability to pay wage increase (versus “unwilling to pay")
ii) This differs in the public sector since this is all public info
(b) But…Bd can take a case by case approach when dealing with company’s financial info (sensitive)
(2) Union can get the names and addresses of all Ees from the company b/c it is crucial to the union’s ability to carry out functions. Irrelevant to whether the Co thinks the union only wants to collect dues.
b. Duty to disclose continues throughout the life of the k
(1) This duty is reciprocal, i.e. the Er can also ask the union for info
c. Er’s DEFENSES to Union’s request for info
(1) Not relevant
(2) Too burdensome
(a) Union must accept the info in the same format that the company keeps it
(a) Detroit Edison (1979): Union to file a grievance on Er’s reliance on aptitude test to give promotions. 10 positions open, but no union Ees promoted and outside workers were hired. Union sought access to the tests (incl. actual questions, Ee answer sheets and scores for each Ee); Co only turned over the test validation study, arguing secrecy of the tests & assurance to Ees that the tests would be confidential & high cost to validate the test
i) Bd: Found § 8(a)(5) violation. Ordered Co to turn over test
ii) Ct: Bd’s remedy was an abuse of discretion. Feared the possibility that the union would not be able to control the confidential info of the test
iii) Here, Ees had a expectation of privacy
(b) NJ Bell Telephone (1983): 3 Ees marked tardy. Union asked to see absentee and privacy records. Co refused b/c they had their own privacy protection plan that prohibited info to outside people. Held: This is private information and the union cannot get access—even though the info really wasn’t confidential b/c any Ee could answer the phone.
(c) Harrah’s case: Cocktail waitresses discharged b/c of complaints by customers. Union wants the names of the customers so that they can file a grievance. Held: Casino must release their names b/c no expectations of privacy when you submit a complaint since needs to be a way to litigate the grievance
(4) Involves trade secrets
3. Partial Strike Activity v. Unilateral Action by the Employer
a. NLRB v. Ins. Agents’ Intl Union: Workers in a “work w/o a k" program—in a slow-down (i.e. not participating in special promotions, showing up late)
(1) Bd: per se ULP (§ 8b3)
(2) S.Ct: Reversed b/c found the Bd was trying to determine the degree of economic power of each side when it was trying to regulate the tactics away from the table—which would ultimately impact the substantive agreement at the table
(a) Use of economic tactics is consistent with the duty to bargain in good faith
(b) Although this is a non-traditional method of using economic power does not mean that they are not engaging in good faith bargaining.
i) However, slow-down is not a protected activity. Ers could have fired the insurance agents.
b. Unilateral change by the Er in mandatory subjects of bargaining, during bargaining = ULP under § 8(a)(5).
(1) NLRB v. Katz (1962): During bargaining, Co unilaterally changed merit increases, sick-leave, and wage increases. Held: Violation of § 8(a)(5).
(a) Er’s use of its economic power by granting wage increase and changing the sick-leave plan = flat refusal to bargain about those issues (i.e. terms and conditions of employment).
(b) Er essentially took these issues off of the table.
c. During the bargaining process, the Er must maintain the status quo—Er cannot make any unilateral changes until the parties reach IMPASSE
(1) Impasse = point after long bargaining when no agreement is reached & parties do not want to make any changes
(a) Determining impasse requires a case by case, totality of the circumstances (including history of relationship b/t parties, record of what has been said at the table via parties’ notes, importance of the issue)
(b) Once impasse is reached, the duty to bargain in good faith ends
(c) BUT…impasse is a temporary condition that ends once a party decides that they will change.
(2) After impasse, Er may implement the “last offer"
(3) Thus, it is to the Er’s advantage to reach impasse so that they can make unilateral changes
(4) Duffy Tool & Stamping: Er implemented “no fault" attendance policy since parties reached impasse.
(a) Held: Impasse must be had on the entire package before Er can make unilateral changes. Bargaining is about the entire agreement
(b) Thus, Er’s ability to make changes is really limited if negotiations go on for years & Er must maintain the status quo
C. Subjects of Collective Bargaining—Mandatory v. Permissive
1. Distinction determines:
a. Whether parties must talk about the subject at the table
b. Whether info about the mandatory subject must be disclosed
c. Whether unilateral action can be taken
d. Whether parties can use economic force
(1) Union can only call a strike over mandatory subjects of bargaining; It is an illegal strike for the union to strike over a permissive subject
2. Rationale for distinction: If you insist on talking about a permissive topic is really a refusal to talk about a mandatory subject
a. Insisting on a permissive topic = refusal to bargain in good faith on a mandatory topic
3. Mandatory subjects of bargaining
a. § 8(d): “…wages, hours, and other terms and conditions of employment…"
b. Ford Motor Co: Ford wanted to raise the prices of in-plant food. Union protested. No surrounding restaurants, so impracticable for workers to eat off-site. Held: This is a ‘term and condition’ of employment, thus, a mandatory subject of bargaining.
(1) Ford should then bargain for a clause that gives them a right to change the food prices. (Thus, will not need to bargain every time the food prices need to change)
c. Johnson-Bateman (1989): New drug testing requirement was a mandatory subject of bargaining for Ees to start taking drug tests (but this does not apply to applicants)
d. re: Christmas bonuses. Look @ status quo. If xmas bonuses are a regular practice (and related to terms of employment), it is considered a wage—not a gift.
e. re: On-site child care. Co wanted to close the child care center. Arguable whether this constitutes a change in social conditions.
f. Fibreboard Paper Products Corp v. NLRB (1964): Maintenance Ees in a bargaining unit. Co decided to contract out the maintenance work to an independent contractor. Co announces the decision 4 days before the k expired. Co insisted that this was b/c of economics, but union brings the grievance to the Bd.
(1) Held: This is a mandatory bargaining subject. Whether you have a job = “terms and conditions of employment."
(a) Decision reinforced by industrial practices around the country—contracting out = mandatory bargaining subject.
i) “…that type of claim is grist in the mills of the arbitrators…"
(b) Co’s decision does not alter the basic operation of the company—only changing the people doing the work & nothing is changed about the jobs
(c) Issue revolves around the cost of labor (i.e. wage rate). Cost of labor is an amenable subject of bargaining. Union deserves a chance to bargain about the wage rates.
(2) Justice Stevens concurrence
(a) Limit to these facts
i) Views this as substituting one group for another
(b) BUT IF an item lies at the core of entrepreneurial control (i.e. commitment of investment capital), then it should be excluded from mandatory subjects
i) e.g. investing in machines or lands are at the core of entrepreneurial control
4. Permissive subjects of bargaining: Neither side can compel bargaining about these subjects. Have both permissive subjects w/in the management’s control and permissive subjects w/in the union’s control
a. Detroit Resilient Floor Decorators: Union wanted Er to join an industry group to promote the business & contribute to its improvement. Held: Advertisements & joining industry trade group = permissive subject w/in the mgmt’s control
b. First National Maintenance (1981): Maintenance workers for Er, the maintenance company, doing housekeeping for nursing homes in NY. 3/77, union wins elections. Er asks for fee increase from Greenpark nursing home. Union makes demand for bargain. Co gives notice that they are terminating their business w/Greenpark nursing home, and all Ees terminated.
(1) Held: Decision to partially close = permissive subject
(a) NB: Total closing is NEVER a mandatory subject (Darlington). If Co goes out of biz, no longer considered an Er
(2) Held: Effects of the partial closing = mandatory subject
(a) Severance pay
(b) Health care/COBRA
(c) Transfer rights/job bidding rights to any remaining jobs
i) Thus, bargaining must happen before the place actually closes (i.e. bargaining must happen at a "meaningful manner and at a meaningful time…")
(3) Apply balancing test: Burden of negotiations v. benefit of the union on bargaining
c. Dubuque Packing: Dubuque was relocating its meat packing plant. Bd: If moving the plant w/ no change in the operations (i.e. keeping the same equipment, same assignment of the work, just moving the work) → will be treated like subcontracting in Fibreboard.
(1) New [complicated] balancing test:
(a) If the decision is to relocate the plant w/ no change in operations, then the decision to relocate the plant is a mandatory subject
i) Must assume what the union would be willing to bargain on or make concessions with. e.g. if the decision to relocate is only based on labor costs, likely that it will be mandatory since the union has power to control or negotiate the cost of work.
(b) If there is a substantial change in the way business is done @ the new location, then the decision to relocate the plant is NOT mandatory.
5. Illegal subjects: ULP to insist upon the inclusion of an illegal provision in the k or to use economic force in support of a demand.
D. Remedies for Failure to Bargain in Good Faith
1. Cease and desist order; Posting/reading/mailing of the order
2. Order to bargain (in good faith)
a. Contempt sanctions—usually takes 7-8 years to issue + high burden (clear & convincing evidence and willful disregard of the law)
3. Restore the status quo
a. e.g. bring Ees back to work (Fibreboard)
b. (2003): MI auto brake parts mfr relocated several operations to KT after the union was certified. Er refused to bargain about relocation decision (§ 8(a)(5) + § 8(a)(3) b/c motivated by anti-union animus). Little change in mfr operations = mandatory subject.
(1) Bd: Required the co to return operations back to MI plant + restore workers
4. Extraordinary remedies—reserved for flagrant violators
a. e.g. ordering Co to pay wages of the union members @ bargain table
b. e.g. pay other sides’ litigation costs
c. e.g. ordering party to pay Bd litigation expenses
5. Getting a § 10(j) injunction
a. Can mandate the bargaining before the change takes place
b. If the union finds out before the decision, the Bd can enjoin the transfer of work/relocation before it happens
6. Unavailable remedies:
a. HK Porter (1970): Er refuses to agree to a checkoff clause to collect union dues. Bd: Mandated Er to collect the $$
(1) Ct: Reversed. Cannot force Er to agree to a particular term of a substantive k term. Freedom of k
(a) Bd cannot dictate any terms of the k
i) Exception: Co and union reach agreement on a package of proposals. Er then w/draws their proposals. Bd can find bad faith bargaining & order the Co to sign to what they had already agreed.
ii) But this is a very narrow window
(2) Union’s recourse: Strike or sign the k w/o the clause in it.
b. Ex-Cell-O Corporation (1970): “Make whole" remedy—e.g. if there is a violation of § 8(a)(5), can the Bd order the Co to pay monetary fine to Ees based on a hypothetical k (i.e. IF the Co had bargained in good faith, this was the agreement we would’ve reached…)?
(1) Ct: No, cannot force the Co to agree to a k they didn’t agree to.
(2) The “make whole" remedy was a topic of the labor law reform in 1978, but failed.
VI. STRIKES, PICKETING AND BOYCOTTS—USE OF ECONOMIC FORCE
A. Role of the strike v. Impasse Resolution
1. Strike – total stoppage of work or complete w/holding of labor power
a. In general, if the Er is paying the Ee, he can expect a full days work. Thus, intermittent work stoppage and slowdowns and partial strikes are not protected by the NLRA
2. No constitutional right to strike for Ees
a. Private Ees get right to strike from statutes
b. Public Ees get right to strike from state law
(1) City Sanitation Workers (1985): CA S.Ct: Reversed the c/l prohibition that public (i.e. local govt Ees) Ees couldn’t strike.
(a) Exception: “essential" Ees cannot strike
a. § 8(d): If CBA is already in effect, need 60 days notice to the other side before the strike. Must notify a federal mediator w/in 30 days of providing notice to the Er.
b. § 8(g): Health care Ees must provide:
(1) 90 days notice–??
(2) Chance for mediators to come in for labor dispute
(3) 10-day strike notice
c. National Emergencies: Strike can be enjoined if the president believes the strike will imperil national health/safety. Required 60-day cooling off period where the union can’t strike then.
B. Picketing and Constitutional Law
1. US Constitution
a. Thornhill v. Alabama (1940): Ees on strike. Picketer told a non-union Ee to go home. Held: Protected speech since no threats, coercion. Only disseminating info.
(1) Good law for one year
b. 1942: Picketing = “speech plus"
(1) Govt can limit picketing in light of state gain of interest
(2) Labor pickets ≠ communicate ideas. Instead, pickets coerce people and are designed to provoke an automatic response to a signal.
(a) “Plus" = sign
(b) Non-speech element (i.e. sign) can justify “incidental" limits to free speech/1st A
c. Teamsters v. Vogt (1957): Picketing = “aspect of communication." But can limit or control picketing. Presence of picket line may induce action & thus, is not just disseminating info.
(1) Under constitutional theory, fed and state govt can choose kind of picketing to allow and prohibit
(a) If picketing for an unlawful purpose, then the 1st A allows prohibition here.
(b) Recognition picketing is a disfavored form of picketing
(2) No blanket ban on picketing—
d. In general, free speech will NOT override private property interests
(1) Hudgens (1978): Ees of Butler Shoe picketing the entire mall b/c the Er would not agree to collective bargaining terms. Held: Picketing is not protected at malls (lloyd v. tanner)
(a) Speech not ordinarily protected on private property
(b) But…protected if the private property takes on all/most of characteristics of public town
i) Logan Valley (1968): Mall as a central part of town
e. Secondary picketing ≠ protected by the 1st A
(1) Longshoremen v. USSR: Under Taft-Hartley, illegal secondary boycott.
f. Civil rights picketing
(1) NAACP v. Claiborne Hardware (1982): Boycott of Miss. town by blacks for 3 years. Business owners sued NAACP for damages. S.Ct: Can have tort damages for violent acts, but NO economic damages from peaceful picketing
(a) Distinguished from labor picketing since this is a public/political issue, in the heart of the democratic system.
(b) Labor picketing = economic picketing, and govt can regulate the economy
2. CA Constitution
a. Pruneyard (1979): HS kids setting up opposition against zionism at shopping mall. CA S.Ct: Shopping malls are like public property. Shopping mall owners can regulate TMP, but can’t prohibit speech altogether
(1) Home Depot (2001): Home Depot has 8 x 8 square as a designated picketing entrance. CA Ct. App: Ok to force ppl to stay in this area. Single big box stores ≠ Pruneyard
C. Protected “concerted activity" under the NLRA
1. § 7: “Ees shall have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…"
a. Protects: (1) concerted activity (2) for mutual aid and protection
(1) Concerted—Don’t necessarily need the union
(a) WA Aluminum (1962): Ees walked out b/c plant was too cold. Held: Concerted activity, even though not directed by the union. Still protected.
(b) Can be “concerted" even if the Ee acts alone—but pursuant to the CBA
i) City Disposal Systems: Truck driver in accident b/c of faulty brakes, so refused to drive the truck. (Under CBA, no requirement to drive unsafe trucks). S.Ct: Concerted activity b/c acting pursuant to the CBA. → “constructive" concerted activity
ii) Called the Interboro doctrine: If Ee asserts a CBA right, then it is concerted activity—even if Ee is acting alone
iii) Ways individual can be in “concerted activity"
- Trying to gather Ees
- Acting as a representative of @ least one other Ee
b. Primary strikes = concerted + for mutual aid
(1) Thus, if on a protected strike, still considered an Ee of the Er
2. Hudgens v. NLRB (1979): Butler Shoe Ees picket the entire shopping mall to protest collective bargaining negotiations. 2nd issue: Is this protected concerted activity?
a. Here: Primary picketing
b. Under NLRA, Bd must balance § 7 rights of Ees to engage in concerted activity v. property rights of Er/others
(1) Here, since primary picketing à stronger § 7 rights. Also, property rights are minimal b/c the mall is open to the public.
(2) Primary strike picketors are allowed to picket @ Er’s place of business under § 7—even if they are on private property inside a mall
3. Problem: Ees want to engage in primary strike activity to Er on 15th floor of a highrise. Must they stay @ entrance on the ground floor or go up to the 15th floor?
a. 9th Cir: Ok to limit # of pickets in foyer outside of restaurant
b. 2nd Cir: No picketing b/c public space is small
c. Also need to act w/in the tort of mass picketing
4. Analytical framework for determining “concerted