ClassNotesLaborLawISills

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Labor Law

Professor Ira Sills

Thursday, May 29, 2003 (Class 1)

Introduction

• National Labor Relations Act passed in 1935 ("Wagner Act").
• Interpretted by Supreme Court, Courts of Appeals, and NLRB, very little action by Congress.

Legal Rights of Employees

• Labor law generally regulates employees with representation; useful to understand rights of employees in absence of unions.

Harry King Article

CB 3-1

• King worked for 22 years for manufacturer in New Hampshire.
• Fired after being accused of stealing 35 cents from supervisor's desk.
• Hard to make out a wrongful discharge claim. King could be fired for almost any reason.
• Possible wrongful discharge claim in violation of public policy because King got worker's compensation recently from occupational injury.
• Worker's compensation: no fault system, just need to prove causation. Bars negligence lawsuit.

• Hoffmann Plastics: no back wages when employee was undocumented worker; question as to whether it applies to worker's compensation claims as well.

• Public policy bases for wrongful discharge claim: whistleblower (possibly), refusing to do something illegal, cooperating with criminal investigation.

• For next class: IIA of syllabus, and cases in section IIB. Most important case is Yeshiva University.

Tuesday, June 3, 2003 (Class 2)

• Read Nickled and Dimed by next Tuesday

History and Background on National Labor Relations Act

• Some historians believe that Labor Law was passed in 1935 because labor unions were too strong.
• Ancient world "employment" relationship was predominantly slave labor.
• Late middle ages/early renaissance: growth of cities, economies, people formed organizations of workers--craft guilds.
• Guilds would create monopoly in particular trades, required members to go along with group decisions.
• Late 19th century, European labor unions took on more ideological basis from Marxism, socialism, etc..
• American unions born in 19th century, craft unions similar to guilds at that time.
• During 19th century, considered unlawful for workers to organize (Hatters case), strike, or boycott.
• Unions still organized, members were regularly jailed.
• Organization was predominantly local, contracts negotiated with single employers.
• Unions were craft-based: shoemakers, hatmakers, etc..
• Trade-based organization remains in building trades.
• Indusrial unions: organize by industry. E.g., auto workers.
• During 1930's predominant organizing technique was "sit down" strike; workers couldn't be locked out.
• 1935: Wagner Act passed to provide for administrative agency to decide labor disputes.
• Initially companies insisted Act was illegal; ultimately upheld by Supreme Court in 1937.

NLRA Jurisdiction

• Certain exclusions from federal jurisdiction (e.g., horse and dog racing workers).
• State laws generally govern public sector workers, often no right to strike.
• Other exception: Railway Labor Act for railroads and airlines. (Federal Express claims to be airline for labor purposes).
• Taft-Hartley amendments (1947): supervisors are excluded from Act.
• Frequent issue in labor disputes: whether workers are supervisors or not. E.g., nursing home organizing--charge nurse makes assignments and are often lead organizers for union drives.
• Agricultural and domestic workers also excluded. Predominantly immigrant and people of color.

• For Thursday: adjunct faculty member wants to unionize with whole faculty to have more power. Problems under Yeshiva?

Thursday, June 5, 2003 (Class 3)

• Hypothetical problem: adjunct faculty member wants to organize at NUSL.
• Management claim: faculty have power to hire/fire, can't be in union under Yeshiva; alternatively, bargaining unit should be entire university faculty.
• Right to strike: could be problem with contract.
• Graduate student organizing: management would argue TA's are students, not employees.
• Independent contractor: no rights for gender discrimination, etc.. Don't have to pay withholding taxes/social security taxes or worker's compensation. But employer can be liable for negligence.

NLRB v. Yeshiva University

[444 U.S. 672] 1979 United States Supreme Court (cb4-6)

• Faculty voted and union won election.
• NLRA covers professional employees who are not "supervisors".
• NLRB found decisions were "collegial" and "in faculty's own interests." Real power was in administration which controlled money.
• Court relies on myth of "pyramdical hierarchy" model for NLRA, claims that Yeshiva University is different environment.

• For Tuesday, read through 3A.
  • Focus on Washington Aluminum, Weingarten, Meyers.

Tuesday, June 10, 2003 (Class 4)

Section 7 of NLRA

• Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

National Labor Relations Board v. Washington Aluminum Company

[370 U.S. 9] 1962 United States Supreme Court (cb5-1)

• Workers get together and decide to walk out of factory because it was too cold, fired later for walking out.
• NLRB Process
  • Workers file unfair labor practice complaint.
  • Six month statute of limitations, must file with NLRB.
  • Company: respondent, union: charging party.
  • If cause is found, trial before ALJ.
  • Worker representing by NLRB lawyer.
  • No pre-trial discovery.
  • Can only see witness' affidavit when they testify.
  • Either side can appeal to the NLRB in Washington.
  • Appeal then to the Federal Court of Appeals (forum shopping opportunity).
• Board (and Court) held that workers engaged in concerted activity for mutual aid or protection.
• Court holds that employees can not lose their right to engage in concerted protected activity under Section 7 merely because they failed to present their demand to the employer.
• Employer argues that employees must be engaged in labor dispute under Sec. 2(9):
  • The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
• Court gives broad reading to labor dispute.
• Company argues that company rule said that employees could not leave without permission from foreman, thus there was justifiable cause under sec. 10(c) to leave. Claims contract allowed them to fire works.
• Court holds that statutory rights supersedes private rights created by employer.
• Employees are not protected if concerted activity is unlawful, violent, or in breach of contract.
• Other exception: activities which are "indefensible" because they were found to show "disloyalty" to employer.

National Labor Relations Board v. Weingarten, Inc.

[420 U.S. 251] 1975 United States Supreme Court (cb5-6)

• Worker accused of stealing from store, purchasing large box of chicken for price of smaller box.
• Worker asked for union steward to be present at interview, company refused.
• Worker claims small boxes were gone, thus she took smaller amount and put it in large box.
• Employer is not required to notify worker of rights (unlike Miranda), but does require employer to respect request for representative.
• Employee started crying, saying the only thing she had ever taken without paying was the free lunch she thouht was provided.
• Employee previously worked at other store where employees got free lunches. Also, every other employee at store took free lunch, including manager.
• NLRB held that employee did have right to representative under Section 7; Supreme Court confirmed.
• However, nowhere in express language of NLRA does right to union representative appear.
• Employer can elect not to have interview at all if employee insists on union representative, rarely happens because union contracts usually provide for arbitration for dismissal.

Sears, Roebuck & Co.

[274 NLRB No. 55] (cb5-15)

• Non-union setting, refusing to bring Weingarten rights to employees not in union. "Would wreck havoc upon fundamental provisions of the Act."

• Epilepsy Foundation [2000 WL 967066]; involves nonprofit; board reversed Sears, readopted Materials Research, granting Weingarten rights in non-Union setting.

• Next time: Myers, Prudential, and next section--under 3B of outline. Focus on Metalurgical, Jefferson Standard, Harrah's.

Thursday, June 12, 2003 (Class 5)

• Start reading We Can't Eat Prestige.

Prill v. NLRB [Prill I]

[755 F.2d 941] 1985 District Court Court of Appeals (cb5-19)

• Employer's damages are limited by fact that earned income is deducted from backpay. Thus very important to have general counsel of NLRB because lawyers are generally not otherwise available.
• Administrative Law Judge found for employee; overruled by NLRB. Appealed to Circuit Court of Appeals.
• Court of Appeals reverses NLRB, remands.
• NLRB rules against Prill again on remand.
• Court of Appeals then upholds new NLRB decision.
• Prill keeps complaining about unsafe truck, gets cited, finally gets in accident.
• Management instructs Prill to get truck and trailer towed back, Prill responds trailer hitch is broken, too dangerous.
• Prill called authorities, who recorded that it was not safe to tow trailer.
• Management tells Prill he can't call the police all the time, fires him.
• No issue of pretextual reason for dismissal--company dismisesd Prill for refusing to get truck towed.
• Administrative Law Judge decides in favor of Prill. Prill actions were "concerted activities for mutual aid or protection," following Alleluia Cushion Co.
• Under Alleluia, if employee's act was of mutual concern to employees and was for benefit of employees, then it qualified for concerted protected activity under NLRA.
• Interboro doctrine: if single employee enforces right not derived from statutes but from collective bargaining agreement, then action qualifies as concerted protected activity.
• Supreme Court upheld NLRB v. City Disposal, preserving Interboro doctrine. City Disposal had same facts--driver refused to drive truck because of faulty breaks.
• Court finds distinction between Interboro and Meyers line of cases: rights asserted from collective bargaining agreement are continuation of concerted action in making contract.
• Had Prill taken another worker with him to make complaint, probably would have qualified as concerted activity.
• Court holds that NLRB erred when it found decision was mandated by NLRA.
• On remand, NLRB holds that interpretation was "reasonable" under act, not mandated, and thus upheld on appeal.

• 11(c) of OSHA prohibits retaliatory tactics for employees complaining of OSHA violations individually. But has 30 day statute of limitations.

NLRB v. Fansteel Metallurgical Corporation

[306 U.S. 240] 1939 United States Supreme Court (cb5-32)

• Actions took place in 1936, Wagner Act was passed in 1935 but upheld in 1937. Most employers ignored Wagner Act between 1935 and 1937.
• Company tried to create company union; isolated union president; refused to bargain with "outside" union; employed "labor spy."

• Judicial Deradicalization of the Wagner Act, by Karl Klare, discusses Fansteel.

Tuesday, June 17, 2003 (Class 6)

NLRB v. Fansteel Metallurgical Corporation

[306 U.S. 240] 1939 United States Supreme Court (cb5-32)

• Sit down strike, most popular form of labor protest at time, occurred during period when employers ignored existance of NLRA.
• National Labor Relations Board found that sit down strike could not serve as grounds for dismissal.
• State court injunction to leave building
• Local authorities attempt, unsuccessfully, to remove workers from buildings.
• Finally, authorities come in with more reinforcements, remove workers.
• Workers are all fired.
• NLRB found for workers on the basis of all the tactics the company had used: refusing to bargain; isolating union leader; establishing company-dominated 'internal' union.
• Company ultimately offers workers jobs again, even after they have been convicted of crimes. Only two don't come back because of age. Also pays back pay.
• Created another company union, invalidated by Board, who then required company to negotiate with union.
• Board ordered company to reinstate all workers with backpay, and dismiss any scab workers.
• NLRB v. Jones & Laughlin Steel: Board cannot use its authority to prevent discharge of workers for legitimate reason. "Had there been no strike," company certainly could have dismissed employees for their acts. Legal formalism.
• Company was free to rehire as it chose.
• Bad sign to labor as to how NLRA is going to be interpretted.

NLRB v. Local 1229, Int'l Bro. of Elec. Workers ("Jefferson Standard")

[346 U.S. 464] 1953 United States Supreme Court (cb5-39)

• Another legal formalism case.
• Technicians for television station which broadcast recycled content.
• Union wanted arbitration for all dismissals to demonstrate just cause. Company wanted to be able to dismiss workers for any reason.
• After failing to make progress with peaceful picket, placards, and handbills on unfair labor practices, workers start leafletting about quality of programming, with no mention of labor controversy.
• Company fired leafletting technicians.
• ALJ found workers should be reinstated with back pay.
• NLRB upheld company's position, overturning ALJ, except for one worker who was not leafletting.
• DC Court of Appeals remanded back to Board for further findings as to what was unlawful about workers' conduct.
• Supreme Court holds that workers were acting indefensibly disloyal, with purpose to harm company. Dismissal was lawful.
• Alternatives: mention labor conditions in leaflets, or have people other than workers distribute leaflets.
• Court tries to separate out behavior: assuming there had been no labor controversy, worker's acts would have justified firing. "The fortuity of the coexistence of a labor dispute affords these technicias no substantial defense."

Bird Engineering

[270 N.L.R.B. 1415] 1984 National Labor Relations Board (cb5-46)

• Workers walk out during lunch break after company makes rule that workers can't leave.
• Board holds no right to break rules. Employees could have gone on strike, but not walk out during lunch.
• Employees were trying to "remain on the job" and also determine their own working conditions.

Elk Lumber Co.

[91 N.L.R.B. 333] 1950 National Labor Relations Board (cb5-49)

• Workers do slowdown in response to new pay rate, fired.
• Board holds that means to protest wages were not protected means. Could have gone on srike, but no slowdown.
• Workers knew they were going too slow, didn't matter that there was no warning.

• Next time: Focus on Republic Aviation, Beth Israel, Eastex.

Thursday, June 19, 2003 (Class 7)

Harrah's Lake Tahoe Resort Casino

[307 N.L.R.B. 182] 1992 National Labor Relations Board (cb5-60)

• Employee trying to organize fellow employees to do leveraged buyout of employer company.
• Would borrow money through Employee Stock Ownership Plan, secured by assets, pay off loans over many year.
• Employee fired.
• Board finds activity was not for mutual aid, does not advance employees' interests as employees, but rather employees' interests as owners.
• Dissent: primary purpose was to increase money, not ownership/management issue.

Access Issues

Republic Aviation Corporation. v. NLRB

[324 U.S. 793] 1945 United States Supreme Court (cb6-1)

• Difficulty in holding meeting of interested workers: company will send spies and leaders will be discharged.
• Employees discharged for wearing union buttons, handing out union cards.
• Cards passed out during lunch break, in cafeteria.
• Key questions: when and where?
• Supreme Court affirms NLRB rule: Peyton Packing rule. Act does not prevent company from establish reasonable rules during working time--"working time is for work"--union solicitation can be prohibiting during working hours. Although employee is on company property, lunch or rest periods are employee's time to use.
• Special circumstances may justify rule necessary to maintain production or discipline.
• 5th amendment claim: employer's property is being taken without compensation.

• Presumption rules: cb6-5.

Beth Israel Hospital v. NLRB

[437 U.S. 483] 1978 United States Supreme Court (cb6-6)

• In 1974, Congress took jurisdiction over nonprofit hospitals for NLRA.
• Employee soliciting people to join union in cafeteria, distributing union newsletter, only to employees.
• Employer issued written warning to employee.
• Cafeteria used for many other solicitations, also primarily used by employees and not patients.
• Hospitals may impose more stringent limitations on solicitations--e.g., non-working time in patient care areas (patient rooms).
• "Congress found that patient care would be improved by unions."
• Critical to understand that case concerns employees, not union organizers; employees are already rightfully on property.

NLRB v. Northeastern University

[601 F.2d 1208] 1979 1st Circuit Court of Appeals (cb6-16)

• 9-to-5, non-union but organizational entity, for clerical staff. Wanted to meet in university rooms.
• President denied group opportunity to meet "as group", but said they could meet "as individuals".
• 1st Circuit holds that employees have right to meet as long as other organizations have right to meet.
• Remedy is just for Northeastern has to provide access--no sanction--thus ultimately a victory for Northeastern because group never took root.

• Next class: employees start emailing each other at workplace about union activities, both during work time, and non-work time. Employer has policy that people should only use email for work-related activities, but nobody follows policy. Protected activity?

• Babcock, Lechmere most important for next week.

Tuesday, June 24, 2003 (Class 8)

Access Issues Continued

• Discussion thus far concerns employees and organizers access rights--what about management access rights?
• Management has plenary access rights--can talk to employees all the time, etc., just can't threaten to fire employees for organizing.
• NLRA was passed when factories were downtown, centrally located. Today, service sector is biggest growing sector of economy, work place is not as centrally located. Residence is much more scattered.

Eastex, Inc. v. NLRB

[437 U.S. 556] 1978 United States Supreme Court (cb6-18)

• Workers unionized under Paperworkers Union
• Union wants to distribute newsletter in "clock alley", non-work area on non-work time.
• Issue is whether content of newsletter is related to mutual aid.
• Company claims content is so unrelated to union activity that it could be prohibited without violating §8a(1).
• Issues in newsletter
  • Someone is trying to constitutionalize "right to work" law in Texas
  • Register to vote because President because President just vetoed minimum wage hike
• Closed shop contracts: can require employee to join union 30 days after being hired if in signed union contract. Because Union is legally required to represent all workers, whether members or not.
• Right to work laws--make closed shop clauses illegla.
• Court holds that items in newsletter are sufficient related to mutual aid or protection to fall under §7 clause.
• If materials were entirely "political", would probably give different result.
• Employer tries to defend with property rights. But employees are already rightfully on property, thus managerial issues are crucial, not property rights.
• Distribution tied to "vital concerns" of act, wanted to boost employees position in negotiations.
• Although court finds for employees, no penalty is put in place against employer. Thus, what is the deterrent?

• More difficult situation: what if workers want to flyer to protest working conditions in Mexico? Need to tie it with own working conditions.

NLRB v. Babcock & Wilcox, Co.

[351 U.S. 105] 1956 United States Supreme Court (cb6-30)

• Nonemployee union organizers want to distribute literature in parking lot.
• Employer can exclude nonemployees from parkig lot.
• Important that employer's prohibition does not discriminate against unions; if other people are allowed in, then prohibition might be unlawful.
• Accommodations between property rights and organizing rights must be made with as little damage to each one.
• Court finds alternative means exist for contacting employees.

• After Babcock, NLRB held Union had access to areas that are accessible to general public (e.g., front of hotel, parking lot for mall).

Lechmere, Inc. v. NLRB

[502 U.S. 527] 1992 United States Supreme Court (cb6-34)

• Most regressive labor law case decided by Supreme Court in last 10-15 years. Reversed Hudgens and other precedent.
• Court holds that mall can exclude organizers from mall, tells them to go to grassy strip adjacent to highway.
• Difficult to distinguish workers from customers, and workers of different stores, at edge of mall.
• Lechmere had strict no solicitation rule.
• Where reasonable alternative access exists, union should use that instead.
• Previously, Court would defer to NLRB to apply facts and decide whether/how Babcock applied.
• Dissent claims Hudgens left it to Board to decide locus of accommodation. Hudgens did not overrule Babcock, thus it must have meant Babcock provided for flexible standards.

• For Thursday, focus on Deutsch Excerpt and Georgine Testimony, and cases in B2: General Shoe, Dal-Tex Optical, Gissel Packing.

Thursday, June 26, 2003 (Class 9)

NLRB v. Federbush Co.

[121 F.2d 954] 2d Circuit Court of Appeals (cb7-9)

• Employer said plant would be unable to operate for more than six months a year if union won.
• Court finds speech is not protected speech but rather constitutes threat of job loss and thus enforces Board's injunction.

NLRB v. Virginia Electric & Power Co.

[314 U.S. 469] 1941 United States Supreme Court (cb7-10)

• Company hired person to spy on labor union, interrogated employees, wages frozen.
• Company also created alternative company union.
• Company union won, reached contract in two days. Wanted to rush to keep outside union out.
• Look at "totality of activity" when looking at company's speech; when there is massive unlawful conduct, speech is held to higher standard for legality.

General Shoe Corp.

[77 N.L.R.B. 124] 1948 National Labor Relations Board (cb7-13)

• Objectionable conduct: takes place within critical period, within time union seeks election (NLRB Petition--supp. 129) and date of election.
• Union and management can both be held liable for objectionable conduct; losing side in election can have new election if other side engaged in objectionable conduct. No financial damages.
• Conduct which renders improbable a "free choice" is objectionable. Can justify setting aside election results even in absence of unfair labor practice.
• President gave "intemperate" anti-Union address, not clearly unlawful.
• "Laboratory conditions" test. Board's function is to provide laboratory in which "uninhibited desires of employees" can be expressed.
• Employer can give captive audience speech any time except day before election. Can continue to campaign, however.

Dal-Tex Optical Co.

[137 N.L.R.B. 1782] 1962 National Labor Relations Board (cb7-16)

• Employer violated law for every election, each time new election would be ordered.
• In latter attempts, employer would read from transcript of NLRB hearing finding his speech unlawful--thus repeating the same speech that was found illegal.
• Violation of both 8(a)(1) and "laboratory conditions"
• Next time: Gissel Packing, Exchange Parts, go to Section 4--Discriminatory Discharges, Wright Line, Darlington Manufacturing.

Tuesday, July 1, 2003 (Class 10)

NLRB v. Gissel Packing Co.

[395 U.S. 575] 1969 United States Supreme Court (cb7-21)

• Employer tells employees that plant may have to close if they form union; distributed pamphlet with "obituaries" for manufacturing facilities that had closed down after unionizing.
• Employer's statements must be based on facts beyond his control if he is going to say plant will close down.
• Court finds employer's conduct was unlawful, orders new election.

American Airlines Inc. v. Brotherhood of Railway, Airline & Steamship Clerks

[3 Canada LRBR 90] 1981 Canadian Labor Relations Board (cb7-24)

• Candian labor law requires employer not to interfere with formation of union.
• Company threatens to close, talks about strikes, etc..
• Labor Board finds for union, requires company to write letter to all employees.

NLRB v. Exchange Parts Co.

[375 U.S. 405] 1964 United States Supreme Court (cb7-30)

• Employer grants employees additional holiday, lets them vote on birthday vs. floating, other benefits.
• Is not necessary for granting of benefit to be conditional on rejecting the union; benefit is unlawful in either case.

Sewell Mfg. Co.

[138 N.L.R.B. 66] 1962 National Labor Relations Board (cb7-35)

• Employer uses racial prejudice to attack union, sends newspaper clippings, etc., to employees, claiming that union promotes miscegenation, etc..

• Next class: Briefly on speech cases, move to discriminatory discharge cases: Phelps Dodge, Wright Line, Darlington Manufacturing.

Thursday, July 3, 2003 (Class 11)

Livingston Shirt Corp.

[107 N.L.R.B. 400] 1953 National Labor Relations Board (cb7-46)

• 25 hours prior to union election, employer holds captive audience session criticizing union.
• Prior law, under Bonwit Teller, required employer to grant union equal time for captive audience meeting at workplace on work time.
• Board overrules Bonwit Teller, finding nothing in NLRA restricting employer from airing views at workplace.
• Two examples where union can have access to workplace:
  • Where employer has discriminatory non-solicitation rule, or overly broad non-solicitation rule (i.e., all locations)
  • Where non-solicitation rule is lawful but broad--"retail rule". Where solicitation is banned in non-work areas, in public retail setting.

Phelps Dodge Corp. v. NLRB

[313 U.S. 177] 1941 United States Supreme Court (cb8-4)

• Discriminatory refusal to hire--NLRB has authority to compel employer to hire person.
• Damaged employee must seek to "mitigate" back-pay award by seeking other employment.

Edward G. Budd Mfg. Co. v. NLRB

[138 F.2d 86] 3rd Circuit Court of Appeals (cb8-10)

• Employee barely worked, was drunk all the time, but was representative in company union, so employer never fired him.
• Employer saw employee talking to outside union, then fires him.
• Court orders employee reinstated, upholding Board's finding that he was fired because of union activities.

Tuesday, July 8, 2003 (Class 12)

Wright Line, A Div. of Wright Line, Inc.

[251 N.L.R.B. 1083] 1980 National Labor Relations Board (cb8-20)

• Mt. Healthy: school teacher sued after being fired, claims it was for protected speech.
  • Dual motive: plaintiff criticized school board on local radio station, used obscene language and gestures in cafeteria.
  • First, plaintiff must establish that protected conduct was substantial or motivating fator.
  • Next, defendant has burden of establishing that it would have fired employee absent protected conduct.
• In practice, burden then shifts back to employee (or general counsel of NLRB) to show that alleged reason is pretextual.
• Employer claims employee was fired for knowingly altering time card.
• Employee had been employed for ten years, considered "better than average" employee.
• Employer already prepared to fire employee before questioning him, suggests prejudgment.
• Employee was involved in union activity.
• Supervisors referred to employee as "union kingpin"--goes to knowledge.
• Employer only discharged two employees in the past for falsification of records; one was embezzling and the other collecting fraudulent sales commissions.
• Board thus finds discharged unlawful.

A & T Manufacturing Co.

[265 N.L.R.B. 1560] 1982 National Labor Relations Board (cb8-26)

Textile Workers Union v. Darlington Mfg. Co.

[380 U.S. 263] 1965 United States Supreme Court (cb8-50)

• Employer shuts down facility in response to union campaign.
• Employer operated 17 textile manufacturers at 27 mills.
• Board held that employer had discriminated against employees by closing part of business, ordered rehiring at other mills, but did not order reopening mill (thus, maybe ineffective remedy).
• Court finds closing plant is not "inherently discriminatory", thus need to prove motive.
• Even if plant closing is discriminatory, Court holds that it is not prohibited by NLRA.
• Ironically, illegal to threaten to close, but legal to actually close.
• Supreme Court remands to see if plant closing had purpose and foreseeable effect of discouraging unionization at other plants.

• Next time, focus on Electromation line of cases, and Karl Klare's testimony.

Thursday, July 10, 2003 (Class 13)

• "American Dream" film, Room 97 Friday, July 11 1:45pm.
• Read Mackey Radio CB (12-1 - 12-4) for film.

Sec. 8(a)(2)

• Established to deal with company union
• Employee participation systems; can be used to keep union out.
• Prohibits domination or interference with labor organization.
• Sec. 2(5): broad definition of "labor organization" -- any organization of any kind ... dealing with employers.

NLRB v. Northeastern University

[601 F.2d 1208] 1979 1st Circuit Court of Appeals (cb9-2)

• Weekly Staff Cabinet--organization for staff, idea came from employees, approved by university.
• President of University could fill midterm vacancies. Ordinarily committee included appointed and elected members.
• Once University realized 8(a)(2) problem, President stopped appointing cabinet members.
• Statute of Limitations had passed for earlier illegal conduct (6 months)

Electromation, Inc.

[309 N.L.R.B. 990] 1992 National Labor Relations Board (cb9-13)

• Company has economic difficulties, cuts benefits, wages
• Employer forms "Action Committees", sets agenda/topic matters, has some employer representives on each committee
• Board finds committee deals with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, conditions of work.
• Union campaign bgins after employer rejects Action Committee recommendation.
• Paying employees for participating in committee and giving space to meet is not per se illegal but rather in this case was in furtherance of unlawful domination.

Representation

• Appropriate bargaining units issues

• For next Tuesday, read V(a), (b): Gissel Packing, Lyndon Lumber.

Tuesday, July 15, 2003 (Class 14)

Representation Procedure

• Through Labor Board; but can go through other routes.
• Need 30% to show interest, but practically need much higher number because support will be eroded by anti-union campaign.
• Need to show "community of interest" for bargaining unit; also statutory exclusions (supervisors).
• Single location is presumptively appropriate bargaining unit

• For Thursday, read Gissel Packing part II and Lyndon Lumber.
• Mackay Radio and Laidlaw, Erie Resistor.

Thursday, July 17, 2003 (Class 15)

• Election Procedure
  • Excelsior list: employee's names and addresses
  • Each side has election observer--must be employee.
• Representation cases cannot be appealed to court.
• Employer can trigger "technical refusal to bargain" under §8(a)(5) when they disagree with representation case (appropriateness of bargaining unit, eligibility of voters, etc.); Board will grant summary judgment to union, then employer will appeal to Circuit Court of Appeals.
• Many opportunities to delay, stretch out, in Board process. Unions now tend to target larger units (chain of restaurants) and avoid Board process.

• Secondary target: must be accurate (not defamatory), can't picket

NLRB v. Gissel Packing Co.

[395 U.S. 575] 1969 United States Supreme Court (cb10-20)

• Extraordinary remedial power available under NLRA: order to bargain.
• If union files with more than 50% of union authorization cards, and employer commits unfair labor practices ("serious" or "intermediate"), even if union loses election, NLRB can order Gissel bargaining order.

Linden Lumber Div., Summer & Co. v. NLRB

[419 U.S. 301] 1974 United States Supreme Court (cb10-40)

• Unless employer commits unfair labor practices, it cannot be ordered to bargain, even with a showing of majority of cards signed.

Constitutional Right to Strike

NLRB v. Insurance Agents' International Union

[361 U.S. 477] 1960 United States Supreme Court (cb11-40)

• Prudential life insurance company had unionized agents; contract dispute.
• Company charges §8(b)(3) unfair tactics--"bad faith negotiations".
• Employees refused to solicit new business; failed to follow write-up procedure; etc..
• Court holds that economic tactics are part and parcel of system.
• "...if Board could regulate choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract."

NLRB v. Mackay Radio & Telegraph Co.

[304 U.S. 333] 1938 United States Supreme Court (cb12-1)

• Even though employees have right to strike, they can be replaced by permanent replacements.
• Overturned clear NLRB law.
• Can only request to be put on waiting list when worker gives unconditional return to work.

• If strike is, in part, over company unfair labor practices, and company hires replacement workers, and employees agree to return to work unconditionally, then refusal to rehire is unfair labor practice (and backpay counter starts tolling).
• For economic strike, if replacements were temporary, not permanent, then company must take back strikers.

• Read note on cb12-5.
• Next Tuesday, read Erie Resistor, American Shipbuilding, Plastics.

Tuesday, July 22, 2003 (Class 16)

NLRB v. Fleetwood Trailer Co., Inc.

[389 U.S. 375] 1967 United States Supreme Court (cb12-11)

• Employer argued that there was no continuing obigation to rehire striking workers who have made an unconditional offer to return to work after a certain window in time.
• NLRA defines employee to include workers on strike.
• Ability to return to work is contingent on vacancy; thus for better jobs with good union conditions, it is much harder to return to work after strike, because of low turnover.

Laidlaw Corp. v. NLRB

[414 F.2d 99] 1969 7th Circuit Court of Appeals (cb12-14)

• Economic strike, workers made unconditional offer to return to work.
• Employer took position that if no jobs were available on day of application to return to work, then employment was terminated permanently.
• Court held that employer's termination was unfair labor practice, which turned strike into unfair labor practice strike, which triggers requirement to rehire and to pay backpay if no rehiring.

• Frequently, dispute will revolve around whether it is an unfair labor practice strike or an economic strike.
• No obligation on part of employer to keep strike replacements; they are no hired under union contract.
• Backpay requirement does not start running until workers make unconditional offer to return to work.
• If employee makes unconditional offer and position is available but employer does not reinstate worker, then backpay begins to run from that point.

NLRB v. Erie Resistor Corp.

[373 U.S. 221] 1963 United States Supreme Court (cb12-21)

• Employer had difficulty finding strike replacements, offered replacements "super-seniority"--credited 20 years of service, although only for layoff purposes, not for benefits, etc..
• Consequence was that workers who made unconditional offer to return to work would be laid off before strike replacements.
• Union negotiated, starting granting concessions to undo super-seniority.
• Employer claims that you need to show discriminatory intent, Court of Appeals upheld argument that superseniority was just used to attract workers, legitimate economic purpose.
• Supreme Court reverses Court of Appeals; found conduct to be "inherently discriminatory", and thus per se unlawful.
• Court gives 5 reasons why granting super-seniority is inherently discriminatory.
• But why isn't permanent replacement (as in Mackay Radio) inherently discriminatory?

Trans World Airlines, Inc. v. Independent Federation of Flight Attendants

[489 U.S. 426] 1989 United States Supreme Court (cb12-30)

• Striking flight attendants, key issue for flight attendants is 'domicile'--where they fly out of.
• Domicile is picked out of seniority.
• Replacements were assigned wherever needed, but often this meant preferential domiciles.
• 5000 attendants struck; TWA hires 2350 replacements, half in first few days of strike.
• Only 1100 strikers finally rehired; 4000 lost jobs.
• Replacements were given preferential domicile.
• Issue: does this conflict with Erie Resistor?
• Holds that policy was not inherently discriminatory, and thus does not require airline to grant domicile to former strikers.
• Blackmun, Brennan, and Marshall dissent, believe that O'Connor misunderstood Erie Resistor and union's position.
• Blackmun: poststrike situation is not "a game of musical chairs", rather conflict claims of legal entitlements.

• Next class: read lockout cases, including American Shipbuilding and Harter Equipment.
• Mastro Plastics, Manpower, Indianapolis, through end of VI.

Thursday, July 24, 2003 (Class 17)

• Binding arbitration -- substitute for strikes to resolve labor disputes
• Usually binding arbitration in contract is given in return for promise not to strike
• Waiver of right to strike--unlike waiving right to sue for sexual harrassment, minimum wage, etc.--strike right can be waived.

Mastro Plastics Corp. v. NLRB

[350 U.S. 270] 1956 United States Supreme Court (cb12-50)

• Contract was in effect, worker was fired.
• Workers struck.
• Strike was in response to unfair labor practice, however.
• ULP strikers have more rights than economic strikers, however.
• Contract included no-strike clause.
• Court refuses to enforce no-strike clause, however, because employer committed ULP.

• Later, Mastro Plastics doctrine is limited to serious unfair labor practices. Arian's Department Store [133 N.L.R.B. 802] 1961 National Labor Relations Board.

• Sexual harrassment laws--strike for sexual harrassment would outweigh contract bar to strike.

TNS, Inc.

• TNS had no-strike clause.
• §502: quitting of labor in good faith because of abnormally dangerous conditions at work shall not be deemed a strike.
• Gateway Coal Co. v. United Mine Workers [414 U.S. 368] 1974 United States Supreme Court (cb12-60)
  • Mineworkers did not have a "no strike" clause, although there was one prior.
  • Contract said union could call strike for health and safety issue
  • Issue was whether striking employees were protected under §7, or not, because they had breached contract
  • Supreme Court decided that employees were unprotected. Typically, binding arbitration was quid pro quo for no-strike clause. Thus, if union has negotiated binding arbitration, they have implicitly agreed not to strike.
  • Even if there was a contractual right to strike, Court said committee never met to call strike, thus strike was defective.
  • Thus, requirement is nearly that you have to have imminent threat of losing life to be protected.
• Employees were also striking over new contract
• Employer hired permanent replacement workers
• In 1992, Board held that employees were not reasonable in believing that conditions in plant were dangerous, and that Gateway imposes heavy burden of proof. Thus strike was economic strike, and strikers could be replaced with permanent replacement.
• In 1995, Court vacated Board's decision, remanded. Board's position on underlying decision could not be discerned.

Business Services By Manpower, Inc. v. NLRB

[784 F.2d 442] 1986 2d Circuit Court of Appeals (cb12-70)

• Temp employees were called to work at Bakery.
• Manpower has power that if you are late or can't show up, you have resigned.
• When employees show up, there are sympathy strikers outside plant.
• Temp employees decide not to cross picket line.
• As soon as temps get to phone booth, they call Manpower's answering service and leave message that they can't work because of picket line.
• Temps are then discharged, company said they didn't call sufficiently far in advance.
• ALJ didn't permit answering service operator to testify, just allowed evidence of note that said temp called and said he would be available next few days.

• Next class: Manpower, Inc., Indianapolis Power, Emporium, section VII(a). Bargaining cases.

Tuesday, July 29, 2003 (Class 18)

Majority Rule

• Intersection of contract law and labor law
• Labor contracts are not really "contracts"--they are agreements, but are sui generis with respect to traditional business contracts. Collective bargaining agreement.
• Impossible for collective bargaining agreement to deal with every single contingency that might occur; viewed more as "legislative."

J.I. Case Co. v. NLRB

[321 U.S. 332] 1944 United States Supreme Court (cb15-1)

• Employer made individual contracts with each employee, in order to ward off unions.
• Employees organized, formed union, negotiated contract.
• Employer claimed individual contracts trumped collective bargaining agreement.
• Union was exclusive bargaining agent pursuant to Sec. 9(a) of NLRA.
• Court holds that individual contract cannot be used to waive a right under a union contract.

• Duty of fair representation: union must represent all members of bargaining unit fairly, regardless of union membership.

The Emporium Capwell Co. v. Western Addition Community Organization

[420 U.S. 50] 1975 United States Supreme Court (cb15-15)

• Employees felt they were being discriminated against because of their race.
• Union investigated allegations, made report to company, asked individual employees to file grievances under union contract.
• Union agreed to process grievances through to arbitration if necessary.
• Employees refuse to participate in grievance process, start picketing and demand boycott.
• 1968: Martin Luther King assassinated, Black Panther Party emerging, NAACP marginalized.
• Employees seem to be engaged in protected speech/traditionally protected activity.
• Section 9(a) has proviso allowing individual employee or group of employees to present grievances to employer without bargaining representative as long as it is not inconsistent with union contract.

• Thursday: move on to bargaining cases. (b) and (c). Reed, Prince, H.K. Porter, Fiberboard, First National Maintenance.

Thursday, July 31, 2003 (Class 19)

• Missed this one

Tuesday, August 5, 2003 (Class 20)

Mandatory Subjects of Bargaining

NLRB v. Wooster Division of Borg-Warner Corp.

[356 U.S. 342] 1958 United States Supreme Court (cb17-11)

• Employer wanted change in recognition (not include international union) and secret ballot voting specified in contract.
• Court holds that these matters are not mandatory bargaining subject, if employer insists on non-mandatory subject, could be unfair labor practice.

• Employer cannot change mandatory subjects of bargaining unilaterally; obligation to bargain on good faith upon request by union.
• List of mandatory and permissive subjects (cb17-17/17-18)
  • Drug testing: only mandatory subject for current employees, not in hiring process
• If union does not respond to permissive bargaining subject, employer can take unilateral action.
• For waiver of mandatory subject, must be clear in contract language.

Fibreboard Paper Products Corp. v. NLRB

[379 U.S. 203] 1964 United States Supreme Court (cb17-25)

• Issue: is contracting out work mandatory subject of bargaining?
• Company unilaterally contracted out maintenance work for factory.
• Contractor didn't provide fringe benefits or overtime pay, was thus cheaper.
• Stewart's concurrence: not every managerial decision which necessarily terminates an individual's employment is subject to the duty to bargain.
• Many decisions affect joob security: volume/kind of advertising, financing, sales, design.

First National Maintenance Corp. v. NLRB

[452 U.S. 666] 1981 United States Supreme Court (cb17-33)

• First National is cleaning subcontractor to Nursing Home.
• Green Park Nursing Home paid less than other customers to First National, paid workers directly ("pass through" contract--labor, fringe benefits, materials passed through to hiring company). Green Park paid $250 to First National as profit.
• Union election preceeded events in question. After election, First National discovers it is "losing money" and terminates contract with Green Park.
• First National increased fee purposely to get contract terminated.
• Board and 2nd Circuit find that this was mandatory subject of bargaining, orders restoration to status quo.
• Supreme Court frames issue: Is going out of business at single location a mandatory subject?
• Decision to terminate contract is more like whether to business or not, not mandatory subject of bargaining.
• Companies do not have bargain over decision as to whether or not to go out of business, but do have to bargain about "effects" of decision.

• Next class: finish up with UFCW and Howard Johnson's.

Thursday, August 7, 2003 (Class 21)

Successorship Law

NLRB v. Burns International Security Services, Inc.

[406 U.S. 272] 1972 United States Supreme Court (cb18-4)

• Burns provides security guards for Lockheed.
• Wackenhut was underbid by Burns; Wackenhut had Union contract.
• Burns hires some, but not all of Wackenhut employees (27 from Wackenhut, 15 newly hired).
• Burns acknowledges it didn't want Wackenhut contract ("could not live with"), instead passed out cards for rival union.
• Violation of §8(a)2: prohibits employer domination of labor unions.
• No privity of ownership between Wackenhut and Burns--companies were competitors. More frequent situation is where one company sells assets to another company.
• Court sets aside unfair labor practice finding; does not requires Burns to honor contract.
• Only need to recognize union if majority of employees are from former unionized employer
• Issue: does new employer have to keep old wages/working conditions, or just recognize and bargain with union?
  • Ordinarily, successor can establish terms and conditions of employment.
  • Perfectly clear exception: when successor hires all employees, must initially consult with employees' bargaining representative before fixing terms. (must negotiate before changing terms).
  • Easy exception--employer can cut wages and discourage people from working.

• Can't discriminate against hiring union employees because of union status, however.

Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO

[417 U.S. 249] 1974 United States Supreme Court (cb18-12)

• Not an 8(a)(5) case, but rather contract enforcement case.
• Howard Johnson bought out franchisee, who had union contract requiring that contract bind successors, assigns, purchasers, lessees and transferees.
• Franchisee, however, did not require Howard Johnson to assume contract.
• Franchisee had 53 employees prior to sale; HoJo? reduced work force, and hired only 9 of former employees.
• Issue is whether HoJo? is required to go to binding arbitration.
• No evidence that HoJo? discriminated in rehiring on basis of union membership.
• Union may have claim against franchisee, but not against HoJo?'s.

Wheelabrator Envirotech Operating Services Incorporated v. Massachusetts Laborers District Council 1144 and Laborers International Union of North America

• Union had successorship clause in city contract
• Most bidders for contract assumed successorship and put in bids based on union wages; one contractor assumed it could slash wages, gave low bid, selected by city.
• Company hired all prior workers, but did not keep to union wages.
• Wheelabrator was prior contractor; union filed grievance against Wheelabrator for violating successorship clause. Wheelabrator's defense: they had no power over competitive bidder. No privity between companies.
• Bargaining history showed that successorship clause was supposed to make sure Wheelabrator insured union contract would continue even in competitive bidding situation, arbitrator found for Union, despite employer's claim that it had no way to enforce clause.
• Also filed grievance against City; City contract had provision that City couldn't contract out city work, even though six years had passed.
• Union demands City make up difference between subcontractor rates and union rates; City agrees.
• Case deals with lost sick days, vacation, etc..