Labor Law Outline, Fall 2012 (long version)

INTRO

I. The NLRAs Jurisdiction
1. Private sector only. Public sector has their own labor laws.
2. Affecting Commerce
a. Jurisdiction over businesses that affect commerce: any private sector enterprise whose operations
affect commerce.
b. Coextensive with the reach of the Commerce Clause.
c. See page 54 for list of amounts for NLRA jurisdiction over size of business.
3. Employer Exemptions
a. These employers are NOT employers within the Act.
b. Government, political subdivision, public entities
i. Government as employer: United States; government corporation; any state, or political
subdivision thereof as employer are excluded. NRLA does not apply to a government
corporation, including Federal Reserve Bank or any state or political subdivision.
ii. Many public employees are covered by public equivalents that provide essentially the same
rights of the NLRA with the exception of the right to strike.
iii. But some charter schools, not reached: Pinkerton Academy (2008) not covere
c. Religious school
iv. Act should not be construed to cover secondary schools operated by the Catholic church.
Regulation = excessive entanglement.
d. Railroad and Air Carriers
v. They are subject to the Railway Labor Act
e. Any labor organization
vi. Anyone acting in the capacity of involved in or as an officer or agent of a labor organization.
4. Employee Exemptions
a. Generally
i. Employees usually includes any employee and is not be limited to employees of a particular
employer (see Eastex: employee newsletter about general labor goals affecting themselves as
employees about the states right work statute, other labor issues; held: this was their status as
employees).
ii. Employees also includes any individual whose work has ceased as a consequence of (or in
connection with) any current labor dispute or because of an unfair labor practice. (need to be
within employees for 8a3 protection) STRIKERS
iii. This is specifically about the right of striking employees/their replacements to vote in an
election
iv. Strikers are still considered employees and cannot be discriminated against (in their
hiring/firing) by an employer.
v. What is the eligibility of replacements hired for striking workers? - if an election takes place
during the course of a strike, and an employer has kept the business going by hiring
replacements for striking employees. Ex: think if Chicago had hired substitute teachers during
the teachers strike. Are the strikers and/or their replacements entitled to vote in a
representation election?
1. **If an ULP strike: yes
a. Entitled to reinstatement
b. In an ULP strike, the striking employees have the right to (after a finding of
ULP) to return to their jobs and displace any replacements hired.
c. In these situationswhere the strikers return to work--the STRIKERS but
not the replacements are eligible to vote.
2. If an economic strike aka not an ULP strike: one year only
a. Not entitled to reinstatement (unless strike it self is unlawful)
i. But are entitled to fill vacancies and not be discriminated against.
ii. Exception: an economic striker may be converted into an ULP
striker if the employer discharges the economic striker before hiring
a replacement.
b. ER does have the right to hire permanent replacements
c. NLRB Rule: economic strikers are eligible to vote for up to one year.
i. But lose this status if have been (1) discharged or denied
reinstatement for serious misconduct, (2) had their job eliminated
for economic reasons, (3) or job is eliminated for economic reasons.
ii. Rights of replacement workers in economic strike to vote (rights
of the permanent replacements?)
1. Situation: ER hires permanent replacement workers for
most the striking employees in an economic strike. The
employer cannot automatically withdraw recognition
because the NLRB does not allow the employer to presume
that all the replacement workers are antiunion. Curtin
Matheson Scientific (employer had withdrawn recognition,
held that this was 8a1 and 8a5 (DTB) violation).
2. Policy: if allows strike replacements to oppose union, gives
ER not only the right to win a strike by hiring replacements
but also lets him get rid of the union.
iii. Note: all issues as the voting eligibility of striking workers and their
replacements are deferred until after an election => brought through
challenges.
b. Agriculture
i. Farm employees not within; LIMITATION: employees who do work to increase the value of
the product (the already marketable product) do NOT fall within the exclusion. Contrast
farmer or livestock-raiser vs. butcher.
ii. Packing and refining are also covered employees. Packing: meatpackers unions, or wholesale
fruit packagers (Tree Fruits)
c. Independent contractors
i. TEST: common law right to control test under which a series of facts and factors are
considered to determine the extent of a companys control over the individual at issue (and
whether an employee). => employer has right to direct and control the employees work, the
person who hired the other person has the right to exercise control over the
manner and means by which the individual performs his or her
services.
1. The right to discharge a worker at will and without cause is strong
evidence of the right of direction and control.
2. The following factors should also be taken into consideration:
a. Whether or not the party performing the services is engaged in a separately established
occupation or business.
b. The kind of occupation, with reference to whether, in the locality, the work is usually done
under the direction of the principal without supervision.
c. The skill required in performing the services and accomplishing the desired results.
d. Whether the principal or the person providing the services supplies the tools, equipment, or
place of work for the person doing the work.
e. The length of time for which the services are performed to determine whether the
performance is an isolated event or continuous in nature.
f. The method of payment, whether by the time, a piece rate or by the job.
g. Whether or not the work is part of the regular business of the principal.
h. Whether or not the parties believe they are creating the relationship of employer and
employee.
i. The extent of actual control exercised by the principal over the manner and means of
performing the services.
j. Whether the principal is or is not engaged in a business enterprise or whether the service
being performed are for the benefit or convenience of the principal as an individual.
i. Hearst Publications (newsboy case): Supreme Court rejected the right to control test.
Supreme Court was deciding whether the newspaper venders were employees within the Act
or instead were indepdent contractors. Examined the economic facts of the relationship and
purposes of the statute to find that the vendors were closer to employees than to independent
business and held that they were covered by the Act, affirming the Boards decision. But
Congress rejected amended the Act in the T-H Act to exclude independent contractors and
expressly criticized Hearst. After the T-H, Board began applying the right to control test.
ii. Courts give deference (Universal Camera Corp.) to the decisions of the Board re:
independent contractor vs. employee: SCOTUS rejected judicial assertiveness to Boards
right to control determinations United Insurance Co.
d. Supervisors:
i. Employees are supervisors if:
1. They meet one of these 12 functions within the 2(11) definition of supervisor: any
individual having the authority, in the interest of an employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward or discipline other
employees, or responsibility to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the
exercise of authority is not of a merely routine or clerical nature, but requires use of
independent judgment.
2. The exercise of that employees authority (in that activity) requires the use of
independent judgment, and
3. The EE holds that authority in the interest of the employer?
ii. ** If yes to all three, then they are supervisor excluded from the Act.
iii. Health Care & Retirement Corp: SCOTUS held that nonprofessional EEs who in addition to
their duties in patient care, assigned work and monitored the work of nurses aids were
supervisors. This was true even if the nurses primary duties were patient care, not directing
other employees
iv. IF the employee is a supervisor, implications: can be in union, but not protected from
hiring/firing because of union activities (no 8a3), generally no sec. 7 protections.
v. Exceptions: Supervisors can be protected if terminated/discharged in these six ways:
1. If supervisor can show his/her discharge directly interferes with an EEs exercise
of section 7 rights, the supervisors termination is protected. (i.e. can get
reinstatement and backpay).
a. Chilling not enough though, must have proof of direct interference.
b. Supporting the union would not directly interefere with the unions exercise
of section 7 rights
c. Criticizing other supervisors for their ULPs would not be directly interfering
with an employees section 7 rights unless this supervisor himself did the
ULP.
d. Protesting something that supervisor did that looked like ULP, and then
discharge of that supervisor, also is not proof that it directly interferes with
the section 7 rights of the employees.
i. Parker Robb: supervisor was crew chief of a group of EEs
scheduled for discharge, arguably b/c of union involvement,
supervisor protested the discharge, said they were some of his best
employees. He was fired, complaint with Board. Board denied relief
for him because discharge of a supervisor will be protected only if it
will directly interfere with EEs exercise of sec. 7 rights.
2. Refusing to commit an ULP - contrast w/Parker Robb. Protesting someone elses
possible ULP vs. refusing to commit (yourself) an ULP.
3. Testifying before the Board/statements to the Board
4. Processing an EEs grievance
5. As a pretext for discharging a pro-union crew
6. For failing to prevent organization
e. Managers and Managerial Employees
i. There is no express exclusion in the Act for managers but they have been someone who
makes mgmt. decisions, privity of company policy. This is Board and court-made law, not in
the NLRA of adding this exclusion. Court and Board have gone back and forth with
managerial employees.
ii. Who are managerial employees?
1. Those who formulate and effectuate mgmt. policies by expressing and making
operative decisions for their employer, both including and other than policy decisions
that are associated with the formulation and implementation of labor relations
policies. Bell Aerospace
2. SCOTUS: Congress intended to exclude from the protections of the National Labor
Relations Act all employees properly classifiable as managerial, not just those in
positions susceptible to conflicts of interest in labor relations. National Labor
Relations Act.
iii. Yeshiva University: university professors and assistance deans in bargaining unit were not
employees for the Act, exercised managerial power.
f. Confidential employees: if have information that is confidential information that affects labor policy.
Ex. secretaries.
g. Domestic workers excluded from NLRA
h. Undocumented immigrants?
i. Sure-Tan (1984) extended NLRA to unauthorized immigrants but in 1986 Congress
amended; unlawful to knowingly employ undocumented aliens. Hoffman Plastic Compounds
(2002): could not get reinstatement nor backpay if unlawful immigrant.
i. Retired persons - term employee has been limited to working people, does not include those who
have retired. (Chemical Workers)
5. Special rules for certain types of employees
a. Professional Employee
i. Professionals ARE included but there are rules.
ii. Who is a professional => anyone who has a learned skill
iii. Professional can be in a union, but they have to take a separate role from non-professionals.
iv. A majority of the professionals have to vote to be in the union with the other people,
otherwise, the professional form their own union.
b. Graduate teaching assistance (get paid, but are students), hospital house interns
i. Brown University: Overruled New York University (in 2004), held that TAs are NOT
employees (Bush Board)
c. Job applicants ARE considered employees covered by the NLRA
i. This includes union organizers who apply for jobs to help organize a nonunion business from
the inside (salting) (Town & Country Electric, SCOTUS)
ii. Note that in application of 7 rights, General Counsel must show that salt was genuinely
interested in establishing an employment relationship w/the ER to prevail in 8a3 hiring/firing
discrimination action. Toering Elec. Co. (2007)
II. Standard of Review for Board Decisions
1. Substantial Evidence Rule
a. Boards finding of fact will be upheld if it is supported by substantial evidence on the record
considered as a whole.must be enough evidence to support the agencys conclusion in a reasonable
mind. Still, it is a stronger standard of discretion than before the Taft-Hartley Act (if supported by
evidence a very low standard). Universal Camera Corp (US 1951); cf. Mueller Brass (really
sexually offensive guy on the factory floor, but Board found there were enough facts, COA reversed,
called Boards conclusion appalling, Prof/Dissent: COA was acting more like trial court, looks like
was substantial evidence).
2. Administrative deference
a. Chevron: judicial review of administrative matters: judicial review of administrative agencies on
matters of statutory interpretation is also deferential, and the court will not impose its own
interpretation for that of the agency unless the agencies interpretation is clearly erroneous.
b. 1) First, the court will look to the plain language of the statute. If it is clear, court will stop and will
enforce the congressional intent.
c. 2) However, if the statute is not clearif the NLRA allows room for different interpretation-- the
court will defer to the administrative agencies interpretation of the statute.


Section I. THE ORGANIZATIONAL CAMPAIGN and PROTECTION AGAINST EMPLOYER UNFAIR
LABOR PRACTICES

A. Employer Interference, Restraint, or Coercion 8(a)(1)
1. Background of Section 7 and 8(a)(1)
a. Section 7 recognizes employees basic right to organize and bargain collectively.
i. Employees shall have the right
1. To self-organization
2. To form, join, or assist a labor organization
3. To bargain collectively through representatives of their own choosing.
4. And to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection,
ii. Employees shall also have the right to refrain from any or all such activities
1. Except to employees dont have a right to refrain when the labor organization
requires membership as a condition of employment (in a union shop) (illegal in
Virginia) as authorized in section 8(a)(3) [section 158(a)(3) of this title].
b. Section 8 describes employer violations of these rights (ULPs)
i. 8(a)(1) makes it an ULP to interfere with, coerce, or restrain employees in exercise of their
section 7 rights.
ii. Focused on effect - If a policy, practice, procedure of an employer has the effect of interfering
with, restraining, or coercing employees in the exercise of their section 7 rights, this is an
ULP.
1. How employees could reasonably interpret. (Cintas)
2. Possibility of chilling is enough to violate 8a1. (Cintas)
iii. Rule: It shall be an unfair labor practice for an employer
1. (1) To interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in 7 (Includes all other ULPs, as well as some exclusively 8(a)(1)
violations, such as solicitation.)
2. (2) Employer domination or assistance-- to dominate or interfere with the formation
or administration of any labor organization or contribute financial or other support to
it
3. (3) To discriminate in hiring or firing or to discourage membership in any labor
organization
4. (4) To discriminate against an employee because he filed charges under the Act
5. (5) To refuse to bargain collectively with the bargaining representative
c. Other general labor law information
i. Authorization Cards: legal document, proxy for union is my exclusive bargaining agent for
this company -they must be voluntary; valid if of the employees sign the cards need a
majority
ii. Cannot appeal representation decisions
2. Analyzing Access and Solicitation Issues
a. (1) Who is the intended audience?
i. Is it the employers employees?
ii. OR, is it the suppliers or customers of the employer => likely to deny access, but not
necessarily
1. Ex. patients in the hospital case
2. Ex. customers in retail
b. (2) Who is doing the talking or seeking the access?
i. Employees => Republic Aviation and its related rules will govern (Cintas, Register-Guard).
1. Unique setting? (retail, hospital) rule would be different, but would also then be
different for shop floor rules.
ii. Non-employees => are they salts? if not, unless it is in the rare exception, the ERs denial
of access will e lawful.
3. Limiting Organizational Activities on an Employers Property By Non-Employees
a. Solicitation or Distribution by Nonemployees [Employers Protection of Property]
i. Employer private property rights almost always prevail over employee union rights.
1. As long as there are alternative means of reaching employees (alternative means
available: Babcock), the employers property rights prevail.
a. An employer may prohibit solicitation or distribution by nonemployee
organizers anywhere on company property, provided the union has
alternative reasonable means of communicating with employees available.
Babcock v. Wilcox
2. Parking lots are regulated the same way, they are included in the analysis of the
employers property (Babcock).
3. Exception to parking lots: if the lots are open to other solicitors, then the employer
must allow the union as well. (BUT, usually can find a difference between charities
and private solicitors ex. case where the Girl Scouts were allowed to solicit but
didnt have to let the union solicit.)
ii. Non-employee access is ALLOWED when:
1. There is no other way to reach the employees (i.e. they live on employer property)
a. Limited exception, described in Lechmere - mountain resorts, mining camp,
logging camps, etc.
b. Other than this, if alternative means available to reach the employees, even
if they are not ideal, doesnt count.
2. Banning the union is a discriminatory rule because OTHER SOLICITORS are
generally allowed but union organizers are not.
a. But just because the public is allowed isnt enough to be discriminatory
against union; there must be other solicitors allowed.
iii. Ways to Limit the Babcock Rule f
1. Salting
a. Salting: result of decisions with very distinct EE vs. non-EE protection for
section 7 rights. Definition: the practice of having union-staff organizers
apply for jobs with targeted companies. If hired, these ppl do their assigned
work for the co. but also engage in union organizing activities in their
nonworking time (because that way solicitation is protected you can ban
solicitation during working time, see Republic aviation rule, but not during
nonworking time) on the company property.
(a) Rules for salts- NLRB has treated salts as employees as
SCOTUS has agree (Town & Country Electric holding). They
have section 7 rights as employees. Then, in order for General
Counsel (of NLRB) to prevail in a 8a3 (hiring/firing discrim.)
claim against salt must prove that the applicant was genuinely
interested in establishing an employment relationship w/the ER.
2. Have employees come after hours
a. Off-Duty Employees - ex. an employee who comes back onto the parking
lot after his shift is over to talk to EEs.
b. Rule: An employer can deny access to the premise by off-duty employees
ONLY IF:
(a) The access is only limited with respect to the interior of the plant
and other working areas
(b) The policy is clearly disseminated to all employees notification
(c) The policy is non-discriminatory it must apply to all off-duty
employees seeking access
c. If these conditions are not met, the employee can come after-hours when off
his shift to solicit employees.
3. Public areas adjacent to the ERs property.
a. Ex. what about the grassy public areas adjacent to the privately owned mall
parking lot?
b. After this issue was remanded to the Board, held that Lechmeres action of
not allowing the union organizers to solicit had violated the act, was 8a1
violation of union interference (for the employees). and this was on
remand => held that it was even more important to allow the union
organizers on the private property after Lechmere.
iv. Cases
1. Babcock v. Wilcox- Non-employee union organizers wanted to distribute union
literature in factorys parking lot. Employer had a no solicitation rule on the property.
There was a highway adjacent, the only safe way they could distribute was through
the parking lot.
a. Held: ERs can keep strangers (i.e. non-EEs) off of their property unless
location is so 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) there are no alternative means available.
b. Application: the union organizers in this instance had other opportunities to
have contact with the companys employees => did NOT violate 8a1.
2. Lechmere (92) shopping center case, store in a mall on a four-lane divided highway.
Union put an ad in the paper, got little response. Organizers put handbills on the
windshielfs of the Ees cars- they were ordered off the lot by a Lechmere mangaer .
The union resorted to alternative means but had little luck with these options. They
filed an ULP charge.
a. Held: The solicitation rights for employees are NOT extended to
nonemployees => no such obligation against soliciciation is owed to non-
employees.
b. There is no need for accommodation of property rights and Section 7 rights
unless you would have total obliteration of the Section 7 rights (because so
remote that there was no other way to get to the workers). [unless it would
be infeasible for the U to reach the EEs by other reasonable nontrespassory
means, or the ER applies its no-access rule discriminatorily, the ER may
oust the union organizer.
3. Shopping Center Access Cases
a. Logan Valley union picketed inside a shopping center, the target of the
picketing wsa a tenant of the shopping center, a retail store with a non-union
staff, Supreme Court held that they were protected through First Amenmdent,
~ Marsh (company town) precedent, because shopping center was
functional equivalent to company town.
b. Hudgens overruled Logan Valley. A majority of the Court was persuaded
that Logan Valley was wrongly decided. Current rule: short of a company
town situation, even in a shopping center, there is no constitutional right to
enter on a private property to engage the speech.
(a) Criminal trespass they could be threatened with criminal
trespass if they did not depart [can peacefully handbill without it
being your ULP labor prac charge, but might still get threat for
criminal trespass/criminal trespass]
c. But in a shopping center, are alternative means available? Yes, this could
be true; employees might have a statutory right to picket a t shopping centers
under 7 if they could satisfy the no alternative means available test.
4. Limiting Organizational Activities by Employees
a. Applying 8(a)(1)
i. No need to show that any particular person was in fact successfully restrained or coerced, ex.
Cintas.
1. If the employer follows up on the threat, can be a separate violation.
ii. Need only show that the conduct has a natural tendency to do so, employees would
reasonably interpret the policy in this way. (Cintas)
iii. Employer motivation is usually irrelevant for 8(a)(1). There is no scienter (intent)
requirement. EXCEPTION: Balance business justification w/ chilling effect Ex. employer
can expect employees to work, not to pass out literature during work time.
b. Solicitation
i. Types of solicitation:
1. Oral
2. Distribution of authorization cards (this is not considered distribution of literature)
ii. Rules for solicitation by employees
1. Nonworking time. An employee can solicit during non-working time (if an
employer tries to stop this, it is a violation of 8(a)(1)); this includes before and after
hours as well as all breaks (even if they are paid breaks). NOTE that it is working
timenot working hours.
a. This means that the employees can solicit
(a) During breaks (paid breaks),
(b) Lunch hour (even if paid during)
(c) To and from lunch
(d) Before or after work (ex. in the parking lot)
(e) Rest periods
b. No showing of anti-union animus is required for a violation of 8(a)(1).
(a) Ex. Republic Aviation - employer had longstanding, general rule
against soliciting soliciting of any type is not permitted in the
factory or offices. Blanket rule was put in place before union
activity began, there was no union animus. However, the animus
doesnt matter for the NLRBs rule for solicitation.
c. Any rule that prohibits solicitation during non-working timeincluding a
broad, blanket ban on solicitation--is presumptively invalid, absent evidence
of special circumstances (requiring broad solicitation rule to maintain
discipline, production, business).
(a) Presumptively valid means that dont have to show impact on
workers rights before proving 8(a)(1) violation for this.
(b) Ex. Republic Aviation Supreme Court rejected ERs argument
that the Board must first show demonstrable adverse impact on
organizing of the no-solicitation policy before finding 8a1
violation. Republic Aviation.
d. Exceptions: Special circumstances. If an employer can show special
circumstances that makes rules necessary to maintain production or
discipline, they can make a rule addressing actions during non-working time
with no violation of 8(a)(1).
(a) Retail Stores: Solicitation would interfere with customers in the
sales area. But, employer must ban ALL solicitation
(b) Health Care Providers: Employer can ban solicitation in all areas
where there are patients (this does not include other areas that are
open to visitors, and even some patients: cafeteria, gift shop, etc.
or other areas where would not disrupt health care operations or
disturb patients) see Beth Israel (hospitals policy banned
solicitation in cafeteria, but barely any patients there, policy
violated 8a1)
(1) test: (a) Devoted strictly to patient care? (b) Would
disruption to patient care necessarily result if solicitation
and distribution permitted in the cafeteria
(2) but note that a hospital could prohibit solicitation in
corridors and sitting rooms on floors with patients, because
this could affect patient care. ex. RNs Demand Safe
Staffing could be banned, scare factor of buttons, nurses
encountered patients.
2. Flipside: An employer may limit prounion solicitation during the employees
working time without violating 8(a)(1).
a. Republic Aviation Corp: (80) employer had longstanding no-soliciation
policy. Blanket rule was put in place before union activity began, there was
no union animus. However, the animus doesnt matter for the NLRBs rule
for solicitation: presumption that it violates 8(a)(1) unless show special
circumstances. Held: policy violated 8(a)(1)
b. But, the ER must enforce their anti-solicitation rules consistently; otherwise,
they may be liable for discriminatory enforcement (violation of 8(a)(3)).
Discharge based on solicitation during nonworking times (the employees
own time) also violates 8a3 (discriminatory firing).
(a) Example: a restaurant prohibits union solicitation, but allows
employee selling of Girl Scout cookies, hand-painted bottles,
raffle tickets all other types of solicitationduring working
hours. **not on the same footing. Only allowing the Girl Scouts
to solicit on property was okay; there was no ULP for
forbidding the union to solicit G generally finds a difference
between charitable and private solicitors
3. Rationale: Republic Aviation balancing: Weighing for the 8(a)(1) analysis- must
balance for 8a1. In Republic Aviation:
a. Unions interest = communication for section 7 rights, banning solicitation
during nonworking time is unreasonable impediment to organizing
b. Employers interest = employers right to maintain production and discipline
c. The employees section 7 rights outweigh the employers right to
manage/discipline employees when in nonworking time. When it is on their
own time, balance is in their favor. When it is on the employers time, then
the employers production/management is greater. But, the employer can
have some inconvenience or even some dislocation of property rights; may
be necessary in order to safeguard the right to collective bargaining.
d. Result of the balancing: nonworking times, EEs can solicit other EEs
4. Email Solicitation
a. We treated this as use of employers property. See below, Reigister Guard.
b. The employer has a basic right to control use of thc companys property and
therefore could restrict so long as it was nondiscriminatory.
5. Union solicitation rights cannot be bargained away in a CBA.
a. Magnavox bulletin board provision in CBA. Employees were prohibited
during this time even from solicitation in nonworking areas. Company
rejected a union proposal to change the non-solicit rule.
b. Held: The bulletin was not an adequate substitute for the employees fair
substitute esp. w/r/t the rival unionsand the union could not waive
solicitation rights.
c. A union cannot waive:
(a) The solicitation rights of its critics or rivals
(b) The solicitation rights of its own supporters. (contra Stewart
concurrence)
d. In general
(a) Union can waive collective rights (i.e. striking)
(b) Union cannot waive individual rights (i.e. distribution of
literature) this is even after the union has been established (ex.
bulletin board by long-standing union).

c. Distribution of Literature
i. Working Time: same as solicitation: the employer can regulate with no violation of 8(a)(1)
ii. Non-working Time in working areas: employer may usually ban distribution in working
areas even during nonworking time, because of its legitimate interest in keeping the area free
of litter
1. This means that even during nonworking hours still cannot go into work area and
distribute the literature.
2. This is a difference from solicitation.
iii. Nonworking time in nonworking areas: employer cannot ban distribution without a showing
of special consideration
iv. The retail and health care exceptions apply here as well
v. Compare between solicitation and literature distribution
1. Soliciation
a. Working time: employer can regulate
b. Non-working time: employer cannot prohibit employee solicitation absent
special circumstances
2. Literature Distribution
a. Working time: employer can regulate (working areas)
b. Non-working time:
(a) Employer can prohibit in working areas
(b) Employer cannot prohibit unless special consideration shown
d. Communication
i. It necessarily encompasses employees right effectively to communicate with other
employees regarding self-organization at the jobsite; an employee has a right to discuss the
terms, and conditions of her employment with other employees. Brockton Hopsital.
ii. In communication, and in 8a1 generally, possibility of chilling is enough to violate 8a1.
1. Section 7 is a prohibition against the impact of an employers actions how
employees could reasonably interpret.
2. It doesnt matter if there has actually been a sec 7 rights rather the mere
maintenance of a rule that could CHILL sec 7 rights is still in violation of sec 8a1. =>
although the rule did not expressly forbid protected employee discussion, it was
enough that an employee would reasonably construe it as such
iii. Test for Policies about Communication
1. Could an employee reasonably construe this policy to forbid protected employee
discussions about the terms and conditions of their employment with other
employees?
a. Ex. Could an employee reasonably construe this policy to forbid protected
7 discussions? If so, 8(a)(1) violation.
2. These conversations must be about t and cs of employment
3. Must be reasonable
iv. Application
1. Brockton Hopsital: DC Circuit enforced the Boards order invalidating company
policy that prohibited the sharing of information concerning patients, associates
(employees) or hospital operations violated section 7 => any info was broader in
Cintas
2. Cintas Corp (DC Circuit, 2007) (87) - confidentiality agreement at the factory. Board
determined that this violated 8(a)(1) because employees could reasonably interpret
the companys policy to violate 8(a)(1).
a. HELD: (1) A rule that does not explicitly interfere with protected employee
activity may nevertheless violate section 8a1, (2) evidence of actual
employee conduct cannot vindicate an unlawful rule; and (3) an employers
failure (intentional or not) to enforce a facially unlawful rule does not
vindicate the rule.
3. Rule against loitering, solicitation, unlawful work stoppage
a. Would violates 8a1 (is ER restricting ees s7 rights), is ULP (see below:
broad solicitiation ban is violative of 8a1).
4. Rule against abusive or profane language, harassment or mental abuse does
not violate EEs s7 rights or constitute a violation of 8a1.
e. Union Insignias and Buttons - presumptive right to wear union insignia, even in work areas; EEs
have right to wear union badges, buttons and t-shirt while working.
i. Republic Aviation - discharge of employees for failure to remove union buttons violated
8(a)(1). Board did not find animus, but wearing union insignia is protected. SCOTUS upheld;
construed the conflict as one between Section 7 and the right to self-organization on the one
hand, and The employers right to maintain discipline on the other. Worker also has the right
not to wear a uniform with a union logo on it under the section part of 8a1 also right to
refrain from these rights. Lee v. NLRB.
ii. EXCEPTIONS: cannot criticize ER, must be safe; can be banned if ER has uniform policy, or
if ER shows special circumstances:
1. Healthcare RNs demand safe staffing button
2. Where might alienate customers
3. Where might interfere with the employers need to maintain production and
discipline for example if so big that interferes with work (reflects 8(a)(1) balancing
f. Employees Use of Employers Equipment or Property
i. Employees do not have a statutory right to use the employers property for section 7 matters.
Using the property for section 7 matters is not a section 7 right. Section 7 protects
organization rights rather than the particular means to engage in those rights
1. Does not the most efficient or convenient means or communicating, but that there is
a way of communicating. Ex. in register Here they still had face-to-face
communication.
2. Employees do not have a section 7 right to use an employers bulletin board
3. NO statutory right to use the TV in breakroom to show prounion campaign video
ii. Employer can restrict employees use of equipment.
1. A basic right of Er to regulate and restrict employee use of co. property such as copy
machine
2. Employer has every right to restrict the use of phone calls on the cos phones
3. EXCEPTION: if the prohibition is discriminatory.
a. All five Board members in Register Guard agreed that even a facially valid
no-solicitation policy could be invalidated under 8(a)(1) if it was applied
discriminatory.
b. But Register Guard did consider dog-walking equivalent to union
organization. Causes different amounts of disruptions.
c. CONTRAST this with the Lechmere rule: where exclude non-union
organizers but allow the Girl Scouts, this is discriminatory and violates
8(a)(1).
iii. Use of the property does not depend on the cost of using the equipment (ex. emails are free to
send).
iv. Application: Register Guard Employee sent email to coworkers from her work account, but
she had composed the email on her own time. Everyone used the email accounts to send
person emails. She got warnings for sending the emails. Held: employees did not have a
statutory right to use the employers property for section 7 matters. Using the property for
section 7 matters is not a section 7 right. this was even though people were allowed to post
about babysitting jobs.
g. NO right to use email for union purposes - Register Guard
i. Even though doesnt cost ER anything
ii. Even though composed in non-work time
iii. Using the ERs propertybased on ERs property rights and potential for disruption
iv. Significant setback for employees
h. Other Ways the Union Can Access Employees
i. Off-site/home visit
1. Excelsior List Employer must file names and addresses of EEs with the Regional
Director of the Board seven days before election. Employer must do this whether or
not ER has sent out his/her own materials.
a. Excelsior ER had written to employees, U asked for addresses, ER refused.
Came up w/this new rule. Have to hand the names over 7 days before an
election; this is a way of making more of a level playing field for EEs
/unions against employer in elections
b. Rationale: Free and reasoned choice for employees => necessary for an
informed electorate, and they do not perceive a substantial infringement of
ER interests from such a requirement.
c. Distinguishing from Babcock: communication outside of work is not
interfering with employees interest in discipline, employee interests in self-
organization are shown to be substantial.
d. Supreme Court approval in Wyman-Gordon
e.
2. Then using the Excelsior List, union can make home visits.
a. Home visits tool pre-dates both Lechmere and Excelsior list
b. List makes the home visits by professional organizers easier to implement.
ii. Republic Aviation: face-to-face in nonworking times
iii. Salting see above RE: the implications of Lechmeres prohibition on professional organizers
on the property.
iv. Employer has to post notices
1. On the horizon, possibly: proposed rule (2010) that would require all ERs to post a
conspicuous notice that would set forth in detail rights of EEs under NLRA
2. ER would have to post notice where other notices to employees are posted,
communicate the notice by email or however else notices are customarily used for
workplace notices.
3. Notice would set forth rights plus common employer violations.
i. Discriminatory Application Issue
a. Lechmere: Although ER could lawfully exclude non-union organizers from its presence on the
property, it could NOT also exclude charitable, civic, and other social solicitations on the property
without being discriminatory.
i. Lechmere says:
1. If you want to ban the non-employee organizers => that is ok
2. But you cannot also allow non-employee charity people when you exclude the
non-EE organizers => that is discriminatory and violates of 8a1.
b. Register-Guard: said that groups and organizations vs. just individuals were different.
i. **what rule for discrimination to apply?
ii. Class: CAN put in a rule against billboards and email if it is nondiscriminatory. Prof: If
you ban the Girl Scout cookies too. But in Register Guard, they said this would be okay?
c. Role of animus in 8(a)(1) violations for employees inability to communicate?
1. Prof: must have a rule in place before the organizational campaign begins (or it will look like
union discrimination).
2. The employer may ban union matl from a co. bulletin board so long as no general info is
allowed- if allow general info, then you will have to allow union info.

B. Organizational Campaign: Speeches, Propaganda (8(a)(1) and 8(c))
1. Captive Audience Speeches
a. An employer may give antiunion speeches to employees on company time and on company property
(to the captive audience) as long as the speech itself is not coercive. (but that is why we get the T, P
concerns). The ER can make the captive audience speeches even if the ER refuses to give the union
equaly time to reply/an opportunity on company property during work hours to reply.
b. LIMIT: The Board has imposed a 24-hour buffer period before a representation election. During this
period, the free speech privilege for both the employer and the union is curtailed.
i. Captive audience speeches forbidden the 24 hours before an R election
ii. Violation of this is sufficient to set aside the election.
iii. Exception: the 24 hour rule doesnt apply to
1. Employer speeches if the attendance by the EEs is voluntary and on the EEs own
time; or
2. Noncoercive radio messages can also happen within the 24 hour period
c. Unions demands for shop floor have not been accepted. Unions do NOT have the right to make
speeches to employees at the employers company
i. Livingston Shirt Co. (105) Board found rough equality between the unions ability to make
such a speech on its own property (union hall) and of other solicitation methods (like
nonworking time, or home visits).
ii. NLRB v. Steelworkers (NuTone and Avondale) (106): SCOTUS upheld the employers
denials of unions requests to the shop floor the employers denial of the ERs request does
not in itself constitute an ULP. But mixed messages between the holding and dicta (court
noted the result could be different if the no-solicitation rules truly diminished the ability of
the labor organizations involved to carry their message to the employees),
iii. Therefore NOT an ULP for an employer to refuse a unions request for equal time
d. Exceptions: (Steelworkers dicta)
i. IF in a case with a privileged no-solicitation rulebecause of special circumstances of
retail/healthcare/department store businessthe union WOULD be able to reply.
ii. Why? Because have the restrictive no-solicitation rule, would have to let the union reply with
their own open shop speech.
1. Board stated it would require ER to grant a unions request for equal time in retail or
department-store stores (hospitals, too?)
2. But not such requirement for mfg or wholesale trade where the typical no-solicitation
rules applied
e. EXCEPTION to captive audience speeches: No captive audience speeches on company time within
the 24-hour period prior to an election. Peerless Plywood.
i. Either union or employer cannot do a speech within the 24 hour period before an election
ii. Tendency to interfere with sober and thoughtful choice so shortly before an election
iii. Violation of the Peerless Plywood rule will result in setting aside an election and ordering a
new election.
iv. ALLOWED within the 24 hour period:
1. Handing out propaganda during the 24 period.
2. Campaign speeches during the 24 hour period, either by the union or boy the
employer, on or off company property, if employee attendance is voluntary and on
the employees own time.
f. Application
i. Register-Guard (110, see above also re: property) (email can be thought of both as company
property and re: the captive audience speech access to employers in company setting on
company time)
1. ER has basic property right to regulate company use of the property => no right ot
the most convenient method of communication.
a. Again balancing the employees Section 7 rights vs. the employers interest
in maintain discipline. Section 7 is rights not means.
b. Just as the employer has the basic property right to make the speech
2. Regster Guard held that union employee to use the employers email system for
section 7 matters, ER did not violate 8a1 by maintaining the communications policy.
a. The on the shop floor it was a newspaper, people working at their
computes, she sent from her company email address using the employers
email system to the employees work email addresses.
g. Result of these cases: Captive audience speeches remain an important tool in the employers
campaign without an opportunity for the EEs to have equal access to this tool.


2. Employer Speech
a. Employers Speech Rights
i. 8(c): The expression of any views, argument, or opinion, unless it contains a threat of
reprisal or force or promise of benefit
ii. Gissel: an employer is free to communicate to his employees any of his general view about
unionism or any of his specific views about a particular union, so long as the communications
do not contain a threat or promise.
iii. Therefore, employer speech is generally sheltered, except for threats or reprisals.
1. Opinions are okay.
a. An employer is free to communicate to his employees any of his views so
long as communications do not contain a threat of reprisal or force or
promise of benefit. A threat occurs when more than the objective facts or
already-decided matters discussed below.
2. Speeches or literature from employer do not necessarily interfere with EE rights
a. Virginia Electric (1941): Court rejected the contention that all employer
speeches or literaturenecessarily interfere with employee free choice and
violate 8a1, but the Court did authorize the Board to find coercion (aka 8a1
violation) when circumstances justify it.
b. Violations of 8(c) Test for Threat, Implied Threats, Predictions (which are implied threats)
i. RULE: (Gissel) The prediction (or implied threat, or statement) must be
1. Employers statements must be based on an objective facts
2. Must predict demonstrably probable consequences
3. The result must be beyond the control of the employer or a decisions already arrived
at.
ii. Application of Gissel rule
a. Plant closings Have to have objective facts to substantiate statements.
1. Employer said Teamsters were a strike happy union that would
make impossible demands on the company and force it out of
business Gissel. Held not to be based on objective facts and
therefore threat. (but, he did say that this was seen because of
what had happened in the area: still, it was a ULP)
2. If the union gets in here it will do serious harm or were on
shaky ground
(1) This was okay where the employer could back it up.
3. Distinguish: statements made on objective facts or after a decision
has been made (ex. newspaper clippings)
(1) Duty to furnish information
4. Distinguish: absolute right to close
(1) Partial closing no right to partial close if chilling effect
(Darlington); but the employer does have an absolute right
to close.
b. Indication that wont change
1. Nothing is going to change: conveys an idea that it is futile to
get a union into the company.
2. I will abide by current policies no matter what
2. Employers statements are determined by the context in which the statement is made
a. Statement that bargaining will start from scratch (EEs guaranteed
minimum wage) held to be noncoercive where ER was not otherwise a bad-
faith/coercive employer. It is also okay if it is was seen as indicating an
employers appropriate give and take of labor relations.
iii. Promises of Benefits
1. Cannot withhold benefits
a. Ex. If you vote for the union, I promise to eliminate your vacation pay.
b. This is a violation of 8a1 interferes with free choice, is coercion.
2. Cannot promise benefits in exchange for antiunion behavior
a. ER prohibited from promises benecial treatment (such as promotions or
higher wages) t oEEsin exchange for keeping the employer and voting
against union/anti-union action.
b. Ex. You dont need the union, (I promise that Ill give you a raise), youll
get a raise with or without the union.
3. Cannot provide benefits: Economic Coercion and Inducements
a. Fist in the velvet glove: The Eer is giving the Ees benefits during a union
campaign; there is a presumption that the Eer is doing this to influence Ees
and therefore an 8(a)(1) violation; RESULT: Set-aside the election
1. Think of this a bribing, bribe can muddle the thinking of the
employees: temporarily gratified by the raise
2. Exchange Parts - Eer gave benefits shortly before an election
with the purpose of effecting the outcome of the election Union
cant put benefits in your pocket, only the Company can do that
(and then gave them benefits); Court ruled that this was a 8(a)(1)
violation even though Eer hadnt violated had any other ULPs
3. But note - paternalism-heavy approach rather than the anti-
paternalism approach of Midland (Board only gets involved
w/most egregious misreprestnations)
b. EXCEPTION: PATTERNS
1. if do something every year this is not an impermissible promise,
this is something that will be happening [does this need to be
promised?]. RULE: if can show that there is a pattern it will be
okay. Ex. give the Christmas turkeys every year.
(1) Ex. if an ER routinely gives a cost-of-living pay increase
every year, or who gives merit pay increases every fall, ER
can do this, if it is the same as the ER would behave if there
were no union/campaign in the picture.
(2) Remember that the ER will be in trouble if they dont grant
usual benefits could be taken as coercion .
4. Effect of timing of benefits on analysis
a. Board will presume that the benefits are unlawful if they are given before an
election
b. The Board will look at:
1. Were the benefits given in repeated refusals to the union?
2. Were the benefits given just before an election?
3. Were the benefits announced just before an election when the
benefits could have been delayed?
4. Were the benefits something the rival union asked for? (to take
down one of the unions)
5. Application: Predictions vs. Threats and Promises of Benefit
iv. Third Party Speech
1. Is the employer responsible for speech of a third party? Ex. a third party threatens
about plant closure.
2. Board: decides based on standards of apparent agency: person would think they were
acting as the employers agent.
3. Example: third party threatens about plant closure in a small company town.
Someone else in town says that if the union comes in, it will threaten the future of the
business. If someone would think that the third party was acting as the unions agent,
would be.
v. Connection between employer speech and duty to disclose (Duty to Furnish Information)
1. If the employer makes the statement that the union will put the ER out of business,
the union has a right to look into the financial records of the employer.
2. This is how the union can determine if factual statement (permissible prediction
based on objective facts) vs. threat of retaliation (if the union comes in, I will close
the business (with nothing to back it up) or the Gissel reports about businesses that
did not close b/c union and said they did).
c. Laboratory Conditions for Representation Elections
i. General Shoe Rule: Laboratory Conditions
1. Power to set aside elections, even where employer speech would be sheltered by 8(c)
in finding an ULP. Setting aside an election is not the same as finding ULP; Board
can do this despite 8(c) where does not meet Laboratory Conditions
a. Laboratory conditions: union elections should be like experiment in a lab. If
Ers speech is too out of line, will contaminate the lab conditions
(employees free choice of bargaining rep)
b. Laboratory Conditions test
1. The employer speech falls below the Boards standards for a
laboratory setting of a fair election
(1) Not requiring threats/promises
(2) Instead that falls below laboratory conditions
2. There is direct proof of widespread dissemination and election
impact.
c. A violation of the laboratory conditions ULP. Thus, only remedy: re-do
the election
2. Application: General Shoe - On the eve the election, the employers supervisors
made home visits and election-eve speeches to small groups of employees who were
brought to his officers.
a. Under 8(c): not threats or promises of benefits. Just talking to employees.
8(c) not violated, not ULP.
b. Under laboratory conditions: not labratory conditions, the standard had
fallen to low; Board could set aside election.
3. Application: after 1952 despite the General Shoe ruling, Board started giving
greater latitude to ER speech in close cases even in close cases about petitions to
set aside elections (under LC not under 8(c) ULP). Cases decided in favor of ER:
a. Esquire ER stated its agreement with Boards bargaining unit
determination and its intention to litigate the issue, delaying bargaining for a
year or two
b. Sout1hester -- !!! immigrant EEs were warned of possible deportation if
they joined the Communist union
c. Silver Knit company pointed out lost work and pay that would result from
strikes and warned that any pay raise through unionization => consistent
with fact-based statements? (in Dal-Tex, below)
ii. Relationship between laboratory conditions and ULP charge of 8(c) employer speech
1.
d. Application: Speech Cases
i. If you are employer => argue that this was expression of legal position, opinion, prediction; if
you are union => argue that (1) ULP: threat/promise, there is no factual basis, this would be
taken as a threat, especially because of position or ER/EE or (2) if not that, file petition to set
aside election because lack of laboratory conditions, equate to General Shoe, infringing on
EE free choice on eve of election.
ii. 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.
1. Bd: Ers statements were coercive (i.e. illegal threats) and not protected by
8(c). ULP here
2. Telling them that You may come out with a lot less than you have now; if there was
a union, there would be a strike, and strikers would be out of a job.
3. No facts to back up prediction that you may come out with a lot less than you have
now
iii. For Laboratory Conditions: Dissemination
1. Crown Bolt - no presumption, have to prove that it was disseminated.
a. RULE: Now, in order to prove that to set aside election, must have direct
proof of widespread dissemination and election impact. In the case, there
was no empirical vidence suggesting the inevitability of dissemintation, so
not set aside.
b. Rationale: itw as very difficult for the employers to rebut the presumption of
dissemination. So they changed the standard. Now no presumption and the
union must have direct proof of the widespread dissemination. Presumably,
i.e. empirical evidence.
3. Other Campaigning ULPs by Employer
a. Recall TIPS (Threats, Interrogation, Promises, Surveillance)
b. Interrogation and Polling
i. Interrogation (an investigation of an individual employees view or a small group of
employees attitudes toward the union. Ex. grill someone in your office or just ask them what
their opinion is)
1. RULE: use factors to determine whether there is coercive atmosphere, factors were
identified in Lorben Corp.
2. Asking an Eee if they have signed an authorization card can, by itself, be a violation
of 8(a)(1), but it is not a per se violation. Ex. There are situations when asking an
employees attitudes about the nion is not an ULP: You really think the unions
going to help you? Could be interrogation, but not necessarily if a friendly
conversation
3. Test to determine if questioning is a ULP: -- determine whether particular
questioning interferes with, restrains, and coerces employees as found in the record
as a whole (Lorben Corp)
a. Blue Flash Factors: totality of the circumstances approach for interrogation
1. Who is doing the questioning (first line supervisor less coercive
than higher-up)
2. Where the questioning is occurring (shop floor less coercive than
managers office)
3. The extent of the questioning (more extensive = more coercive)
4. The type of the questions (more specific = more coercive)
5. Totality of the circumstances (ex. factors such as the friendship
between the ER and the supervisor might make this not coercive
in the circumstances)
6. Openness of the employee with their union affiliation
b. Application in Lorben Corp (150): ER had a paper with the question Do
you wish the union represent you? and the super handed the sheet to each
employee in the plant throughout the plant. Held: based on more lenient
Blue Flash, and the ER did not have history of bad labor relations, was not
an ULP (was not coercive).
4. Specific Application: If employer wants to talk to employees about an upcoming
ULP charge and prepare a defense is not an 8(a)(1) violation.
a. In this specific context, the ER should meet these requirements, and only
then can the ER talk to the EEs about the upcoming ULP charge and
prepare a defense
1. Atmosphere free of union animus
2. Questions must be relevant to issues involved in the complaint
3. (Employees subjective state of mind must not be probed)
4. Questions must not be coercive in nature.
5. Assurance of nonreprisals must be given , purpose of the
questioning must be communicated to employees
6. Participation of employee occurs on a voluntary basis
ii. Polling (a systematic attempt to gauge the sentiments of all of the bargaining unit employees)
1. (Why poll? ER might want to know if, once pressed for demand for majority support,
whether the union really has majority support, might be willing to grant if U really
does. BUT if an ER grants recognition based on a mistaken belief that the union has
majority, guilty of violating 8(a)92) cannot assist a minority union.)
2. Not per se unlawful, but there are four factors that must meet for polling. The Board
revised the Blue Flash factors, that were applied in Lorben Corp, for the polling
situation in Struckness.
3. Will be an 8a1 ULP UNLESS the following safeguards are met (must meet all)
polling is always risky.
a. (1) The purpose of the poll is to determine the truth of a unions claim of
majority
b. (2) This purpose is communicated to the employees,
c. (3) Assurances against reprisal are given,
d. (4) ER has not otherwise engaged in ULP or created coercive atmosphere.
e. (5) The employees are polled by a secret ballot
4. Applications of Polling
a. Employer might engage in polling by handing out Union NO buttons and
seeing who takes them
b. Or, an employer might hand out t-shirts (again, seeing who takes them) and
then noting who takes a shirt for the purpose of identifying supporters
c. Video for anti-union campaign by employer. Can the employer ask for that
purpose? NO, the employer cannot do that, because it is practically the same
as polling. If the employer asks and they say yes, then it is like saying no the
union, vice cersa
5. Unions vs. employers polling
a. Different standards. The Board continues to adhere to the Strucknes criteria
in determining whether or not the employer has polled in violation of 8a1.
b. Pre-election polling done by the uinion is generally not considered grounds
for setting aside an election
c. Ex. Kusan Mfg. Co. Union makes home visits and gathering signatures
there and on the shop floor yes, the union can do that (interrogation)
(but the ER is in a greater position to coerce the employees than the
union is).
6. Application polling and interrogation cases
a. Struksnes Construction Co. (NLRB, 1967) (153) -- after there was unsettled
law for a long time, DC Circuit remanded, advised NLRB to come up with
guidelines, the guidelines they came up with are above.
1. Union requested recognition and asserted in a letter that the
represented 20 EEs in a unit of 26 EEs. ER denied that the union
had such support. He proceeded to circulate among all of his
employees a petition it said, DO you want me to bargain and
sign a contract with [union]? Please sign your name yes or no.
The ER personally got the signatures of the EEs at the end of one
shift and 2 foremen got the signatures from the other people. He
told the EEs that their answers wouldnt make any difference in
their employment, but he didnt; have a general meeting to
explain why he was trying to get the workers feelings about the
union
2. COA remanded, holding that Blue Flash factors were not enough
to determine whether coercion was present
(1) Blue Flash factors: applied in Lorben Corp. More lenient
standard that was used for polling before new Struckness
guidelines. Totality approach vs. brightline rule for polling.
Interogation = questioning a few; polling = systematic
attempt to get the views of the whole.

c. Surveillance
i. Definition: Supervisors stationing themselves near union meetings and observing and
identifying employees attending the meeting, following union supporters to determine where
they go after work, or requesting or directing employees to report on the union activities of
co-workers.
ii. Rules
1. Surveillance of employee activity is almost always held to violate 8a1.
2. If an employer, supervisor, manager, etc. spies on EEs, there is a 8(a)(1) violation
even if EEs dont know that they are being spied upon - even when the EEs are
unaware that they are being watched or monitored.
3. Surveillance violates 8a1 if the EEs think that they are being watched (Heck, from
Gissel case)
a. If an EE decides to tell the employer about union activity w/out being
provoked, there is no violation, but there IS a violation if ER then uses this
information in a way that makes it sound like they were spying (i.e. I heard
about that speech you gave last night at the union meeting)
iii. When can the employer engage in surveillance?
1. (1) Ees know they are there and (2) they are not used to spy on union activity or
punish for union activity
a. When for quality control purposes
b. Can also be bargained over as a condition of employment
2. When there are organizers who arent employed that come onto the property, ex.
have camera about them
3. When done after a union organizational drive
4. Note: there arent the criminal procedure issues because this is a private employer
(can look in someones pocketbook).
4. Union Misconduct in Campaign
a. Union inducement
i. Union cannot waive fees conditioned on signing a card or voting (cannot directly bribe); cant
waive fees for those who sign union slip or authorize card.
1. Savair: cant waive initiation fees for those who sign union slips.
a. SCOTUS: by permitting union to offer to waive initiation fees for EEs to
sign recognition slips before the election, the boar allows the union to buy
endorsements and paint a false portrat of EE support.
b. Also, ominous to those EEs who didnt sign the slips.
c. After this case, unions started waiving ALL initiation fees for new
bargaining units. (Waivers for all EEs are legit, if they can join before AND
after the election.)
2. Union offering to reimburse wages of employees who attended organization
meetings? (gilbert) => Board has held that this does not impair EEs free choice of a
bargaining representative.
ii. Contrast: union can make the union more appealing (rather than direct coercion/exchange) by
promising the waive/reduce fees in the future.
1. he promise to waive dues nondiscrimatorily is permissible if it is not relate to this
person whether or not they sign. Wabash Transformer Corp. (164) - Union promised
that if it won, it would waive payment and fees , union is allowed to make promises,
union can promise just about anything as long as it isnt taking direct action like
in Saviar and could be seen as buying the votes.
b. Union cant restrain or coerce EEs in exercise of their 7 right not to join a labor organization;
it is an ULP. TEST: would this be physical coercion, a threat of coercion, or an implied threat of
coercion?
i. Not joining a union is also protected by 7
ii. Union cannot use fraud and intimidation
iii. Union cannot use threats or violence :EEs 7 not to join is violated if EEs feel
threatened/coerced into joining.
1. (1) Intent: is the action reasonably calculated to coerce employees in maintaining
union membership
2. (2) Action: Coercive of pro-union, threats.
a. Ex. speech in front of an employers store informed the audience that the
union intended to organize the store and that wives and children of EEs
better stay out of the way; explicit threat of violence; saying to an EE that
there will be trouble later.
c. Union promises
i. Board generally wont set aside an election if UNION promised better wages, etc., that are
outside its power.
ii. Although an ER is forbidden to express the hope that it may be able to raise wages and
improve working conditions if a union is defeated, an important argument made by labor
organizations to secure union memebers if that if enough EEs join the union the union can
obtain additional advantages and if they dont will not be able to get these advantages.
iii. Rationale: To deny the union the ability to make such promises would essentially disable it
from persuading the employees about the benefits of union representation.
5. Other Limitations on Campaign Propaganda
a. Factual Misrepresentations: False Statements and Forgeries
i. Rule: Midland (138) no probing of campaign propaganda, UNLESS it misuses or alters a
Board document or is a forged documents which by their nature conceal that false. The
Board will not probe into the truth or falsity of the partys campaign statements,
ii. Exception: there are TWO situations where the Board would continue to overturn elections.
Where the winning party had:
1. (1) Misleadingly misused or altered Board documents (you dont mess with us), OR
2. (2) Forged documents, which by their nature conceal the fact that they are false.
iii. Rationale:
1. Serious doubts whether a significant number of votes are even influenced by the
campaign
2. Assume that employees would and could recognize campaign propaganda for what it
was
3. Hollywood rule was difficult to administer, led to unpredictable results b/c it
depended on subjective judgments about materailtiy and substantiality of
misrepresentation arguments
4. Undermined the finality of election results (b/c could set aside election based on
misrepresentation, wasnt clear what would be determined a misrep).
iv. Application
1. If a union has circulated to the workforce a copy of the NLRBs Notice of Election
with info about the election and direction about the election, along with a blank
sample ballot, which has an X in the Yes for the Union check mark box, will the
Board consider this for possible setting aside of election under General Shoe?
a. This is a Board document, so will probe into its truth or falsity.
b. Is there something to indicate that this is a sample ballot and was circulated
by the union? If not something to indicate this, then it will be set aside,
because then it implicates the board and shows approval of the board (and
Board is one of the 2 exceptions in Midland).
2. AWB Metal one Member of Board raise question of whether an exception to
Midland for misrep within 24 hours of election should be under a different rule (aka
should analyze for setting aside or not), but did not gain following.
b. Inflammatory Appeals
i. Not lab conditions where the atmosphere is infalme by passion, reasoned decision is an
impossibliyt
1. Sewell (149) the ER had calculatedly tried to inflame the racial prejudice of EEs to win
election by the EEs rejecting the union on racial grounds alone.
a. At the of Civil Rights, election held at companys plants in Georgia. Union lost
the election. ER had circulated Militant Truth a newsletter which had articles
linking unions, blacks, racial integration, Communism and anti-Christianity
basically defaming the union by linking it with black people and harping on
racism
b. Held: set election aside
ii. But CAN have statements with racial message, but only if
1. (a) Minor or isolated references to race, which might have to be tolerated, OR
2. (b) The statements with racial overtones (ex. unions position on segregation, unions
financial contributions to civil rights groups) are:
a. (1) Temperate in tone
b. (2) Germane [relevant, suitable, connected to the campaign], AND
i. Example: unions financial contributions to civil rights groups
c. (3) Correct factually.
3. Burden on whoever presents the racial statement: must show why statements were
truthful and germane and that the statements were temperate in tone. Where a close
question, resolve against ER.
iii. Application
1. Non-laboratory conditions occur because of third party
a. Congressman wrote letters to all the EEs saying to join the union and saying
derogatory things about the employer.
b. Held: it was okay, freedom of speech (did not inflame that much?).
2. KI (Corp) v. USA (150)
a. On the day before an R election at a Japanese-owned company in Ohio, the
union circulated copies of a letter from a popular magazine from a Japanese
business (who had no connection to the company) criticizing American workers
as lazy and uneducated (union was trying to get the EEs to get riled up against
the ER because dont like the Japanese company).
b. Held: it was an appeal to inflame
c. Applying the Sewell standard
i. Temperate
ii. Gernmane?
iii. Correctly factually? No, there was NO EVIDENCE that ER in fact held
anti-American views. Because no record evidence that the Employer in
fact held anti-American views, the Union was not truthfully setting forth
the Employer's position; in vilation of laboratory conditions.
3. In general, though, when not racial, there is a high tolerance for reckless, obnoxious talk
in labor elections, union meetings, disputes and can even be propaganda or
misrepresent, as we saw from Midland.

C. Company Domination or Assistance 8(a)(2)
1. Section 8(a)(2): Employers cannot dominate, assist, or interfere with the formation or administration of any
labor organization.
2. Emmpoyer Domination
a. Employer dominated labor organizations: (1) The actions of the employer are domination,
assistance, or interference, and (2) The group getting this domination, assistance, or interference is a
labor organization
i. Actions of the employer (Domination)- When is employer support considered an ULP?
1. If the ER monetary supports a labor organization (see below on what labor
organization is)
2. If the ER creates an organization
3. When ER determines structure and function or where the continuing existence
depends on the employer
4. When supervise the agenda or procedure of meetings
5. NOT a violation: if the ER if Eer is simply supporting a union
a. Ex. if Eer simply states that they suggest the EEs support one union over
another if there is competition for unionizing the workers.
6. No antiunion motive needed to show employer domination
b. Labor Organization - any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes, wages, rate of pay, hours of
employment, or conditions of work.
i. Electromation Test
1. (1) Is this a group of employees? There must a be a committee or group in which
EMPLOYEES participate.
2. (2) Is the committee representative? They must purport to speak on behalf of other
employees that are not present
3. (3) Is the c
a. Dealing with: broader than contemplating negotiation a CBA
b. All that is required is some bilateral mechanisms
i. Employees making proposals to management and
ii. Management responding to those proposals.
ii. This is a broad test, labor organization or employee representation committee here does
NOT mean formal union.
1. Does not need to have a formal structure. Does not need to have payment of initiation
fees or dues. Does not need to have election officers, constitution or bylaws. Does
not need to meet regularly. EEs dont need to believe that their organization is a labor
organization.
2. ER domination rule applies even if all that is done is the solicitation of input from the
workers
iii. LIMITS what is not a labor organization
1. Managerial and adjudicative organization -- Organization whose purpose is
limited to performing a managerial or adjudicative function is not a labor
organization under NLRA.
a. IN those situations: no dealing with ER because no negotiation, no
domination
i. Examples: a committee that decided the validity of employees
complaints and didnt discuss or deal with management about these
complaints, or an employees organization that resolved employees
grievances without interacting with management.
b. If there is any negotiation, then there is dealing with and violation.
2. Unilateral ex. a suggestion box
3. Sharing info committee without making proposals a committee that exists for the
purposes of sharing information with the employer, not ordinarily be a labor
organization if the committee offers no proposals to the employer.
c. Application in Electrmation ER set up committees for the employees (Action Committees) after it
made changes to its salary policies.
i. (a) Labor organization? Yes. (a) employees participated. (b) the employees on the comittees
acted in a representational capacity (purporting to speak on behalf of employees not present),
(c) and purpose of the committees was for management and employees to reach bilateral
solutions about the salary issues essence of dealing with the employer.
ii. (b) Were the companys actions domination? Yes: ER created, organizations existence on
management, its structure and function was arranged by management (ER drafted purposes
and goals of commitees; determined # of members appointed people from mgmt. to faciliate),
EEs participated on paid time (people were in committees on their paid time within a
structure ER had created: note that this seems nice, but still is against the broad ban on
financial assistance from ER to labor organization)
d. Application: managerial employees. This wouldnt be an issue in the case of University professors
who participate in the development of their ERs policies with the employer, because they are
excluded from Acts coverage.
3. Unlawful assistance and interference
a. Even if the employer does not dominate a labor organization/employee group by creating it, etc. it
may still improperly influence or unlawfully assist a labor organization in violation of 8a2.
b. Examples of assistance:
1. Allowig one union to have access to property while denying it to another.
a. Supplying company facilities or serviceslegal counsel, office space,
secretarial services, printing or other equipment, access to company
facilitiesto one union while denying them to another, would be
unlawful support in violation of 8a2.
i. but if there are no rival unions and ER permits access to a union,
this would be okay - if then promptly recognized the union after
majority suppot
2. Recognition of minority union (below, Bernard Altman)
3. Money: Contribute financial and other support to the union but note that remedy is
just a cease-and-desist, not terrible
4. Solicit employees to sign withdraw cards: It is a per se violation for an employer to
assist employees with attempt to withdraw authorization cards.
a. This falls into employer domination or assistance. Just as employer cannot
assist a labor organization, cannot assist another labor organization in
joining or trying to get rid of the incumbent union
5. Assist with decertification: Employer cannot assist employees in preparing or filing
decertification petitions.
6. Solicit employees to join: Solicit employees to join a union
7. Usually allow union to conduct meetings during paid work time
8. Permit use of company facilities
a. but what rule for allowing them onto company property? not unlawful
assistance?
9. Provide clerical assistance to a union
c. Unlawfully grant recognition to a minority union (Bernhard-Altmann)
i. Recognition of minority union is interference: recognizing a union that is not the majority
gies that union a marked advantage over other unions, gave the union the deceptive cloak of
authority (Bernhard-Altman).
ii. These are AUTOMATIC VIOLATIONS No union may accept and no employer may grant
collective bargaining rights UNLESS there is a MAJORITY
1. 8(a)(2): If an Eer grants recognition when there is no majority, Eer has violated
iii. Strict test: no good faith defense.
1. Bernhard Altman: Both the ER and the union believed that the union had a majority
of the employees when they signed the memo of understanding and granted
recognition, it only had the support later once signed the CBA. Held: the employers
granting and the unions accepting of recognition before the union had majority
support violated the Act, were unlawful assistance.
2. Rationale: no GF defense because it would make EEs have to suffer at the hands of a
possibly GF but careless employer. Once there is unlawful interference, doesnt
matter if was in good faith.
iv. Distinguish: if there is a rival union to an incumbent union, employer still has a duty to
bargain with the incumbent union, this is not unlawful assistance even if the unions majority
status is questioned because there is this new election/ there was a decertification petition for
the incumbent union.
d. EXCEPTION: Construction Industry
i. 8(f): Construction employers and union can enter voluntarily into prehire collective
bargaining agreements covering construction workers before the majority status of the
employees for the ER is determined. Rationale: so short-term so can have excpetion to he
requirement for majority union only recognition.
ii. (In addition: construction employers can require, as a condition of employment, that their
employees join the 8(f) union within seven days from the start of work provided that no state
right-to-work laws were violated.) NOT okay in RTW states
e. Remedies: If just the assistance: cease and desist (Ex. if giving money: stop giving money to the
union). This is if the employer has just improperly influenced or unlawfully assisted without
domination. (Ex. cease and desist the support, withdraw recognition.)
i. But if the ER has dominated the labor organization: dis-establish the labor organization if the
employer has dominated the labor organization.
4. Midwest Piping Doctrine & Neutrality Agreements Situation of Rival Unions
a. Employer Neutrality Midwest Piping Doctrine (but RCA and Bruckner)
i. Midwest Piping: ER violates the Act when it recognizes and enters into a contract with one
union (which shows that it has majority support & request voluntary recognition) when
another has filed a petition for an election with the Board and representation proceedings are
pending. The employer has an obligation to be neutral.
1. By executing an agreement with one union while another union has a representation
proceeding pending, even if it would normally be OK to accept the cards and confer
recognition on a voluntary union with majority of cards.
2. Ex. Midwest - two unions,. ER conferred recognition on Steam who claimed they had
majority support and requested recognition. Meanwhile other union told ER had filed
petition. After this, even while knowing about others petition, ER conferred
recognition to one. Board held that ER violated an obligation to be neutral during
representation proceedings, this gave one union prestige, discouraged membership in
the other union, the cards might not necessarily reflect, and should wait until the rival
unions have election.
ii. Midwest Piping Doctrine: duty of employer to be neutral in rival union situations. Board
imposes a duty of neutrality where an election petition has been filed.
1. Two situations have been distinguished from employers duty of neutrality:
a. Duty of neutrality is only after the rival union has filed petition for
election
i. Bruckner Nursing Home ER is required the employer to take a
position of complete neutrality only after the filing of a valid
election petition. Before such a filing, the employer is free to
recognize a union if that union represents a majority of the EEs
(through majority of cards).
b. ER still has duty to deal with an incumbant union even if a rival union has
filed a valid election petition. (RCA Del Caribe)
i. When an employer with an established bargaining relationship
(incumbent bargaining agent) faces a demand for recognition by a
rival organization, the ER is not required or permitted to withdraw
from bargaining with the incumbent union even after the rival union
has filed a petition with the Board for an election.
ii. To withdraw from majority union, ER must follow rules for
withdrawal from incumbent union => Levitz Furniture,
Allentown Mack rules for withdrawal (ER must have good faith
basis, that is based in objective fact, in order to withdraw
recognition from incumbent union).
b. Neutrality Agreements: Majestic Weaving & Dana Corp
i. Cant confer recognition, cant make up the CBA beforehand and have the CBA go into effect
upon union securing majority status. But can have letter of agreement about standards for
bargaining if the union is majority and if the bargain.
ii. Majestic Weaving (CBA contingent on majority status): drafted CBA before union had
majority status
1. Facts: A union negotiated a collective bargaining agreement with an employer
contingent upon its securing majority support by card authorization. Involved a
recognition agreement and negotiating of a contract.
2. Held: this contingent upon majority status agreement violated 8a2 provided the
minority union with cloak of authority. This constitutes unlawful interference and
imposing a minority representative on unconsenting majority
iii. Dana Corp (Board, 2010) (183): prerecognition agreement letter
1. Letter of Agreement, Company promised to observe neutrality, and would bargain
with the union upon proof of majority status.
2. Letter set up cooperative framework for productivity and competiveness around
which future CBA would be built
3. Board distinguished this from Majestic Weaving: this was not a recognition of a
minority union followed by the negotiation of the CBA, the effectiveness of which
was postponed, this actually postponed the granting of recognition and
4. Dissenting member: the letter of agreement was really very similar to CBA.
c. EXCEPTION: Normally an employer cannot have agreements with a minority union. BUT in
construction union, can negotiate w/minority union 8(f) pre-hire agreements.
i. Non-RTW States: the construction employer can mandate that they join that union. THe
agreements say that (1) I can bargain with the union (2) have these ageements (3)
everyone must join the union, and (4) I can make these agreements even though its a
minority union.
1. RULE: An employer violates 8a2 when enters into a collective agreement with
any union before that company has hired a substantial. Exception: Construction
industry, Landrum-Griffin Act section 8f, b/c so short-term.
ii. RTW States: can still have the construction pre-hire agreements, even though are
otherwise a right to work state.
iii. See Indiana (the right to work law will not prohibit exclusive pre-hire agreements with labor
unions in the building and construction trades).
iv.
5.
a.

D. Protection from Retaliation Through Hiring, Firing, and Closing: 8(a)(3)
1. What 8(a)(3) protects from
a. Being fired for pro-union activities
b. Unequal benefits between union and non-union activity people
i. Employers cant give super-seniority to permanent replacements for layoff / recall purposes
only (Erie Resistor)
ii. Post-strike bonuses to those who worked during strike not supported by valid business
justification (Rubatex Corp.)
c. Unequal discipline between union and non-union activity people
d. Discrimination regarding the terms of employment, even if not outright hiring/firing
e. Favoring one group of employees over another because of union activity on reinstatement of
economic strikers or recall from layoffs.
f. Not being hired because of pro-union activity
i. Job applicants: Phelps Dodge: Supreme Court holds that 8a3 protects job applicants as well
as those who are already employed.
ii. Ex. think of the salts, they would have an 8(a)(3) violation if General Counsel can show that
the salt was genuinely interested in establishing an employment relationship in 8a3 hiring
action. (Town & Country Electric: SCOTUS held that 8a3 also protects job applicants who
are paid union organizers, subject to the anti-salting rule that these applicants must be
actually committing to working there.)
g.
Hiring, Firing, Different Benefits
1. Proving Discrimination (burden is on the General Counsel)
a. 8(a)(3): a ULP for discrimination against someone for their support of a union (i.e. firing a union
supporter)
i. For there to be a ULP, there must be
1. Proof of discrimination
a. That the EE was fired, not hired, different benefits for union/non-union
b. And must have the effect of discouraging support for the union
2. Proof of discriminatory motive
a. Anti-union motive, motive was to discourage or encourage support for a
labor organization and/or retaliation for protected union activity
ii. Remedy: Reinstatement with backpay
2. Mixed Motive Framework (Board in Wright Line, upheld by the Supreme Court in Transportation Mgmt)


To prove unlawful discrimination under 8(a)(3), must show improper motive. The Board can
establish this by mixed-motive test.
(1) The burden is first on the GC to show that there was in fact some adverse affect (some union firing,
deprivation of benefits): General Counsel provides inference of the anti-union motive: must establish
that the protected conduct was a motivating factor. Could offer evidence that: (1) there was some form
of discrimination; (2) the person actually engaged in the protected activity or the ER bleived that the
person engaged in this activity, and the ER actually had knowledge of the protected activity/belief. Ex:
case where 3 days after standing on street corner talking to union rep, was fired. circumstantial
eivdnece of motivating factor
(2) Then, employer has opportunity to rebut: shows that same thing would have happened even if he
wasnt in the union.
(3) If does not pro-- ER would have fired the employee anyway for permissible reasons relating to
unprotected conduct (ER bears the burden of proof, must show by preponderance if the evidence that
would have made the same decision regardlessCannot be pretextual, ex. Budd)
ER can generally discharge an employee for any reason (a good reason, a poor reason, or no
reason at all if the conduct is not protected by section 7 for basis of the decision.
Eer doesnt have to discipline everyone the same, they just cant discriminate b/c of union
support
(3) But, if the employer fails to establish the affirmative defense, the General Counsel would prevail
regardless of the degree of motivation involved.




3. Application of Firing (Discrimination)
a. Edward F. Budd Mfg. Co. pretextual reason, therefore employer does not rebut in mixed motive
i. Must look to the real reason for the discharge; here, the Eee was consistently doing a bad job
but wasnt fired until he was seen talking to a union organizer; 8(a)(3) violation found
ii. If the employer has waited not to fire a bad employees, even though like here the EE came
into work drunk, and only fire when know about union activity - : of anti-union motive, the
timing here indicated that ER fired because of anti-union activity (seen talking on street
corner), not because of accumulation of offenses would have been fired long before and
the ER had not taken action against him for these activities. It is ULP 8a3 to fire someone
based on union activity, violated.
b. Budd, 2: What if upon reinstatement, Budd continues living a life of leisure and debauchery while on
the job? If this happened, company should document that action and fire for that reason.
c. Mueller Brass two employees here. COA overturned Boards findings about employees that there
was anti-union motive.
i. Stone: bad attendance record, co. had doctors notes that said he could come back on May 6,
but then he got his own doctors note. Company had admitted opposition to the union and had
knowledge of Stones sympathies towards the union. Board found that the discharge of Stone
was motivated by desire to get rid of Stone b/c he was a known union supporter (8a3
violation), COA overturned: stated that the company had always failed to credit doctors not
because of his union activity. Note also that OK to have admitted opposition to the union by
ER.
ii. Rogers (sex toy guy): lots of sex toy/SH incidents at the plant. Company also had knowledge
of Rogers union sympathies and prior discrimination against him. Board found that the
discharge of Rogers was pretextual, COA again overturned.
d. Reason for the anti-union motive is a mistake still 8a3 violation
i. Shamrock Foods - ER mistakenly thinks that employee engaged in misconduct while he
engaged in statutorily protected activity. If an EE is engaging in statutorily protected activities.
If the Er fires, does this violate the Act? Held: Boad found violation; DC Circuit enforced;
finding that discharge of employee who was widely acknowledged leader of unionization
effort violated NLRAeven if it was good faith mistake, still was intent.
e. Situations where especially would not be discriminatory:
i. If EEs violations are so flagrant that he almost certainly would have been fired anyway
there is no room for discirmination to play a part. The EE will not have been harmed by the
ERs union animus, and no one will be discouraged from joining a unionno chill concern
because all will understand that the EE would have been fired anyway.
4. Supervisors and 8(a)(3)
a. Rule from Parker Robb (213) a supervisor can be terminated, even if it includes speaking up for the
union, unless it directly interferes with the Section 7 rights of statutorily protected employees.
5. Discrimination to Encourage Union Membership
a. Hiring Halls
a. Hiring Hall: List of people that the union refers from when a contractor is looking for
employees
b. Hiring Halls are NOT ULP provided that the union cannot discriminate among members and
non-members to get on the list
a. Union Security Under Federal Legislation Limitations to compulsory union membership Union
Security Clauses
i. Closed Shop: you must be a member of the union BEFORE you may be employed now, a
8(a)(3) violation
ii. Union Shop: Eer can hire anyone they want, but the Eee must become a member of the union
w/in x days; proscribed by 8(a)(3)
iii. Agency Shop: The Eer can hire anyone they want, but new hires must become a dues paying
(financial core member) member (the union can say they dont want your dues, but Eee cant
unilaterally decide that) this is LEGAL
1. Financial Core Member: The employment agreement requires membership, but you
only have to pay the dues; if you are a fcm, the union does not have disciplinary
authority over the Eee the union cannot fine or cause termination as they would
against a member for crossing picket line, etc.; union can request termination for
failure to pay dues or sue to collect (there are no other remedies)
2. 8(a)(3): Can require you to become a member w/in 30 days applies to all
industries
3. 8(f): Can require membership w/in 7 days construction industry
4. VIOLATIONS: If union tries to get Eer to wrongfully fire someone, it is a 8(b)(2)
on the union for trying to get the Eer to violate 8(a)(3); Eer gets a violation if they
do it.
iv. Maintenance of Membership Clauses: If you are a member when the bargaining agreement
goes into effect or you become a member during the life of the agreement, you are a member
until it expires
v. Dues Check-off Provision: agreement which allows Ees to authorize Eer to withhold the dues
from the paycheck

Partial Shutdowns, Runaway Shops, Going Out of Business
1. Partial Closing of Department
a. Issue: Analyze partial closing under the 8a3 analysis: was there an anti-union motive?
i. General Counsel must show that the union consideration was a motivating factor (this
establishes a prima facie case to defeat the motion to dismiss)
ii. Then, the burden shifts; the Eer is in violation UNLESS the Eer can show that they would
have made the same decision regardless of the union support
b. Adkins partial closing of a department by firing 2 employees no showing of anti-union animus
i. Employer has a trucking company, small truck line operator. No evidence of anti-union
animus (guy uses Teamsters people even when doesnt have to by going down to union hall
to get extra truckers, all of his employees are Teamster). This was about his maintenance
department he had employed a mechanic and his assistant for the servicing of ERs trucks,
union demanded pay raise, ER could not afford.
ii. RULE: A company may suspend its operations or change its business methods so long as the
change in operations is not motivated by the illegal intention to avoid its obligations under the
Act. An employer may discharge its employees [including here, shutting down the
department and firing the two EEs] for any reason, except one that violates the Act.; held
that the costs were the reason for discharge, not 8(a)(3) violation.
1. Here, held that the true reason for the discharge was that could not afford costs,
not anti-union animus. Can shut down the department or fire the two EEs. Was
important though that appeared to be not based on union animus, though.
2. Runaway Shops and Relocations to other states
a. When a business closes down a plant and moves to another state (where different labor laws, or so that
there will have to be another union campaign). Think of this as a collective form of 8a3 firing, if
close down after union comes closing down and moving because of the union.
b. Rule: shop WILL violate 8a3 unless strong business justification/economic necessity, are not
analyzed under Darlington rule but under the traditional 8a3 rule.
i. (1) Burden first on Board -- General Counsel has the burden of showing that anti-union
animus was a substantial or motivating factor in the decision to discharge.
ii. (2) Then burden shifts to ERThen the burden has the opportunity to rebut or offer as an
affirmative defense that it would have fired the employee anyway for permissible reasons
relating to unprotected conduct
iii. In the runaway shop context, the reason will usually be the business necessity for moving to
the other state
c. Must emphasize business costs to conclude that same result would have occurred regardless.
d. Examples of runaway shops:
i. Subcontract out a departments work
ii. Move business to a less unionized state or abroad
iii. Move business where EEs arent unionized yet
iv. Move business abroad
e. Rapid Bindery ER moved its operation from one location to another shortly after the union was
certified, but during the election the ER had told the EEs that such a move was likely, after the union
was certified it didnt bargain.
i. Board: this was ULP, this was anti-union animus motivated runaway shop
ii. Court on appeal: All of the evidence points to sound business reasons => **although there
may have been animosity in the past, no basis for the inference that here the animosity was
the PRIMARY motive for the move when convincing evidence came in about the business
necessity => reversed.
f. Lassing extreme view union-friendly circuit: considering the advent of the union as a new
economic factor as the economic necessity to justify the move.
i. But actually, this is somewhat similar to Adkins could not keep the two EEs because of the
wage scale that the union required
ii. Because of cost, his only 2 options were to close and not have them or not be able to meet b/c
of business necessity.
iii. But note that very difficult very rare when have anti-union animus as separate from the
added costs; if the ER can frame it as business necessity not antipathy, leaves not much left
of 8a3.
3. Closing of a Subsidiary Darlington (207)
a. Darlington was a textile company that operated one mill, but it was owned by a larger company,
which controlled other mills, but the president of Darlington also owned the parent company.
Company resisted the organizing drive, threatened to close the shop, and then union won, so they
actually did close the shop.
b. Issue: when can ER close shop in retaliation for employees decision to be represented by a union?
i. If there are no other subsidiaries: employer has absolute right to terminate his entire business
pleases, even with anti-union motive.
ii. If subsidiaries/partial closing: take anti-union animus into account. The closing is an unfair
labor practice if:
1. (1) It was motivated by a purpose to chill unionism in any of the remaining plants
of the single employer
2. (2) If the employer reasonably could have foreseen that closing would likely have
that affect.
iii. Therefore it was ULP in Darlington.
4. Rule: -The purpose and effects test you have to have both an illegal purpose and a foreseeable effect
a. An employer who closes a plant engages in an unfair labor practice 8(a)(3) violation if:
i. (1) Employer has an interest in another business
ii. (2) Employers conduct is motivated by desire for future economic benefit from other plants:
to discourage the employees at the other plants
iii. (3) It is reasonably foreseeable that other employers will derive an antiunion benefit
b. Remedies: Order to reopen if feasible or backpay from point of closure until they get a new job
5. Going out of Business
a. Distinguish: threatening to close vs. closing
i. I will close the shop if the union wins => ULP
ii. Actually closing the shop if the union wins => NOT an ULP.
b. RULE: Management DOES have the right to go out of business, even if its out of union animus.
i. Justice Harlan in Darlington => this is not an 8a1 violation nor an 8a3 violation
1. 8a1 analyis: 8a1 is the balancing test between the Ers business justification for an
action and the affected Section 7 rights of the employees. But here, the decision to
close is so peculiarly a matter of mgmt. prerogative that it could NEVER
constitute a violation of 8a1 unless it did so derivatively from an 8a3 violation.
2. 8a3 analysis: Conduct by the ER must be motivated by desire for future economic
benefit if ULP and there is no future economic benefit if closing the business =>
rule that cant go OOB would be startling innovation.
ii. But, see above, different rule about a partial closing


Closing of a department Adkins 8(a)(3), need to have been same decision would have
made otherwise
Runaway shop (moving the shop) 8(a)(3), company will emphasize business necessity
Partial shutdown Darlington Darlington test for chilling effect
Going out of business Can have union animus, NO rule against this


E. Remedies for Unfair Labor Practices
1. It can issue a cease and desist order to remedy specific or general conduct if the company has a long history of
anti-union sentiment (in such circumstances the Board can order an employer to cease and desist in any
manner from interfering with an employees organizational rights).
a. Ex. assistance in employer domination
2. It can issue orders for affirmative action; that is, it can order the employer to fix a problem
a. Example: Gissel Bargaining order-If employer has committed hallmark violations and union has
majority support, Board will issue a bargaining order
b. When might unions seek bargaining orders ?
i. Some minor unfair labor practices but did not interfere remedy is new election
ii. Unfair labor practices interfered with election appropriate remedy is bargaining order
iii. Extreme unfair labor practices bargaining order even w/o proof of majorit
iv. Board has progressively narrowed second category (only hallmark violations) and has all
but eliminated the third. But if employer has committed hallmark violations and union has
majority support, Board will issue a bargaining order
3. Reinstatement, with or without backpay
a. Any backpay award is subject to employees duty to mitigate (Grosvenor Report).
i. Duty to mitigate: There were substantially equivalent jobs in the relevant geographic area,
and the employee unreasonably failed to apply for these jobs
ii. In St. George Warehouse (with old employees) changed the burden of proof. Now, EE has
burden to prove that he or she did not unreasonably fail to apply for these jobs.
1. S. Geroge Warehouse - Burden on the ER to show the jobs were available; then
shifts: the burden is on the victim of discrimination (employee) to show that took
reasonable steps to seek those jobs. [b/c they are in best position]. Rationale: they
know better.
iii. St. George - not making large allowances for age, or lack of skill, still have to search (every
though had limited education and skills and were elderly, did NOT justify not searching
within the 2 weeks).
1. This means looking for a job within the two weeks after are fired because EEs they
failed to search w/in the 2 week remedy, they might get reinstatement, but they
wont get backpay (because they did not mitigate this).
b. Can also get reinstatement w/backpay (subject to duty to mitigate) for hiring
i. Phelps Dodge (US 1941): Discriminatory refusal to hire--NLRB has authority to compel
employer to hire person and backpagy. Held: same remedy as for discriminatory discharges,
reinstatement with backpay, this is true even if the V of discrimination has obtained
equivalent employment in another job.
ii. RULE: (1) NRLB has authority to compel employer to hire person, but (2) Damaged
employee must seek to "mitigate" back-pay award by seeking other employment
iii. Rationale: The goal is to undo the wrong by offering the men discriminated against the
opportunity of employment that shouldnt have been denied to them
c. Courts give deference to Board for backpay and reinstatement remedy
i. A matter of administrative competence, courts must defer of the Boards discretion. ABF
Freight Systems SCOTUS held that the Board is not precluded from ordering reinstatement
with backpay of an EE discharged in violation of 8a3 but who had also lied under oath at the
ALJ hearing.
ii. But also limits of the remedy
1. Hoffman Plastics Compound Recent case (2002), SCOTUS held that
undocumented immigrants illegally in the U.S. are ineligible for backpay remedy.
But immigrants are entitled to protections of NLRA>
4. Notice remedies
a. posting notice in the plant that it has been found to have committed an unfair labor practice;
b. mail notice stating that it has committed an unfair labor practice;
c. have a company official read the notice of unfair labor practice to employees;
d. Recent Obama appointees: required that remedieal notices be poseted of the ULPs on where ERs
regularly communicate with EEs electronically.
5. Access remedies
a. give union access to employer bulletin boards or parking lots;
b. Misc. for the benefit of the Board, ex. reimburse the board for costs of prosecution the action
6. Section 10(j) Injunctions
a. 10(j) authorizes the Board in emergency situations to seek temporary injunctions in federal
district court restraining the employer or union from continuing an unfair labor practice even
before a hearing occurs. emergency situations
i. Prequesites to obtaining a temporary injunction: must be after a complaint has been issued by the
Regional Director and while an ULP hearing is pending before an ULP or (2) while an ULP is
proceeding/making its way through the ALJ, Board, and court of appeals.
ii. Requirements for obtaining a temporary restraining order (temporary injunction) under 10(j)
courts split
a. Some courts apply these four requirements plus another two-step approach before. First
they ask: (i) Does reasonable cause exist to believe there was a violation of NLRA? (ii) Is
the injunctive relief just and proper? And then to analyze just and proper but without
the four factors.
b. Other courts say that dont need two step analysis rather, just weigh these four factors,
traditional 4 part equitable test.
i. (1) Irreparable injury
ii. (2) Harm possible to nonmoving party that would happen b/c of this -- the
likelihood that the unfair labor practice will continue unless restrained
iii. (3) Likelihood of moving partys success on the merits
iv. (4) Public interest
c. Other courts says two-step approach, incorporate four factors
iii. Examples of when would use
a. Union violence => management can get an injunction to stop that violence.
b. Prevent an ER from flagrant ULPs that would otherwise have to be contested during
many months of litigation
i. Ex. ER interference with organizing campigns
c. To stop ER from undermining the bargaining representative
i. If the ER has withdrawn recognition or is subcontracting
d. To stop ER from closing an operation or liquidating assets to avoid backpay

II. SELECTION OF THE REPRESENTATIVE FOR THE PURPOSES OF COLLECTIVE BARGAINING
A. Three Ways to Have Union Recognition
1. There are three ways a union can be recognized:
a. Through a Board certified election (selected)
i. This is the only way union gets certified benefits of certication include certification year
rule
b. Through voluntary recognition by an employer
i. Section 9(a): Act gives exclusive bargaining authority to representatives that are designated
or selected by a majority of the EEs in the appropriate bargaining unit (have a community
of interest).
ii. When does this occur? Ex. if the employer accepts the cards. -- Voluntary recognition of a
union as the bargaining representative of employees can occur if an employer intentionally or
unintentionally accepts evidence that a majority of the employees have signed union
authorization cards or have in some other way indicated they want the union to be their
bargaining representative.
iii. Card Check
1. Authorization Cards: legal document, proxy for union is my exclusive bargaining
agent for this company
a. They must be voluntary
b. Valid if majority of the employees sign the cards
c. If a union uses cards for recognition (i.e. doesnt tell Ees that these are only
being used to get an election), they can be binding to show a majority the
duty to bargain can arise without a board election
2. Cumberland Shoe doctrine: being solely/exclusively used to get an election, the
authorization is invalid must represent desire to be represented, not desire for an
election
3. Rules for employer rejecting cards (from Gissel)
a. Rule 1: An employer can insist that the union go to an election, regardless of
his subjective motivation, as long as he is not guilty of misconduct. Need not
give an affirmative reason for rejecting the reocngiton request, can demand
an election by saying no comment to the union.
b. Rule 2: But, if there is misconduct in the bargaining, as in Gissel, can be an
8(a)(5) violaton.
c. Exceptions:
i. (1) An employer cannot refuse to bargain based on the cards if
knoew, from a personal poll (Ex. did a poll to determine if union
had majority status) that a majority of the EEs supported the union
ii. (2) ER cannot refuse recognition if initially because of questions
about unit appropriateness and then claim later that he doubted
unions strength.
4. Wont be certified if by cards, only recognition (and not same certification bar rule)
c. Through involuntary/forced recognition through a bargaining order based on past misconduct by the
employer. Board order of bargain.
2. Gissel Bargaining Orders strike vote?
a. General rule: Bargaining order will apply when there is ER resistance that is seriously coercive or
discriminatory against unions and results in an ULP, and only a slight possibility that can erase the
effects of past ULPs and ensure a fair election.
i. Normally, when an ER is confronted with a recognition demand based on cards he can accept
(voluntary recognition) or can reject (usually), then the employer can file a petition for an
election (under 9(c)(1)(B)) or the union can file a petition for an election, and there will be an
election (see above).
ii. But if the ER commits independent and substantial ULPs disruptive of thee election
conditions, the Board may withhold the election or set it aside, and issue instead a
bargaining order as a remedy for the various violations.
b. Three examples of where union seeks bargaining order


i. When Have Prior Majority Support and Commission of Prior ULPs - Gissel
1. The unions had majority card support from the employees, and the employers had
committed hallmark unfair labor practices.
a. In Gissel - coercively interrogating the employees about union, threatening
them with reprisal, promising them benefits; coercively interrogating ees;
coercive interrogation, threats of reprisal; claiming that cards inherently
unreliable, calling union strike-happy, run by hoodlums, cause company to
close plant, plants in the are were closing because of Teamsters, people were
old and they wouldnt get other jobs
b. Having the employees think there was surveillance, coercively interrogating,
threatening with discharge and promising benefits
2. Requirements for Gissel Bargaining Order - The Board will issue an order to the
employer to bargain with a union, despite the adverse election result or the Boards
decision to forego the election at all IF:
a. The union can demonstrate, usually by signed cards, prior majority support;
b. The cards were unambiguous on their face
i. Cumberland Shoe doctrine: being solely/exclusively used to get an
election, the authorization is invalid must represent desire to be
represented, not desire for an election
ii. Gissel doesnt extend to when the cards are not single-purpose or
when not clear on their face here on their face the signer
designated the union as his representative
iii. On the other hand, it is ok if the union says that the card will
probably be used to get an election, as long as not solely to get an
election.
iv. Also f the card is procured by misrepresentation or coercion
(objective standard), the card will be held invalid
a. The employer has committed ULPs
b. The chances of undoing the effects of the ULPs and holding a free and fair
election are slight, because of the severity of the ULPs.
3. Factors the Board considers for Gissel order (in addition to requirements)
a. Presence of hallmark or egregious violations the ULP must be pervasive,
egregrious
b. Number of EEs affected by violation/size of bargaining unit (if more
affected, more likely)
c. The identity of the perpetrators of the ULP (president vs. lower-echscleon
supervisor)
d. The timing of the ULP: how close to the election was this?
e. Direct evidence of impact of the violations on the unions majority
f. Likelihood the violations will reoccur
g. Change in circumstances after the violations
4. Note: But, if have bargaining order as remedy, will not get certification. Only an
election would get the union the benefits of certification. Two parts here:
a. (1) Union as bargaining representative can get this under Gissel bargaining
order
b. (2) Union as certified can get this ONLY with election
5. Criticism: catch-22 of Gissel is that the bargaining remedy order (of making an
uncooperative employer bargain) is only as strong as the threat of a strike falls on
the employees to strike.
6. Application: General Stencils Board issued bargaining order where the union had
a majority of the cards and had not petitioned for an election, but ER had made
threats to the employees in his speech closings about the loss of jobs, that the plant
was going to close were widespread & tended to destroy free choice; COA upheld
most of the Boards order --
ii. When Do Not Have Prior Majority Support
1. Gissel DICTA: In some exceptional cases, the ULPs might be so outrageous and
pervasive that even where no majority support, the union can obtain a majority
order.
2. Gourmet Foods (Board, 1984) held that if an employer commits serious and
repeated violations of the Act, the Board does NOT have the power to order that
employer to bargain, even If the union has never in the past demonstratied majority
support. Board concluded that the majority-rule principle of the Act rendered a
nonmajority bargaining order beyond the Boards power.
a. Majority rule must be adhered to even in exceptional cases
3. Improper imposition by the Board of its own choice of exclusive representative
would substitute speculation for objective evidence (like a majority of cards),
because here Despite Gourmet Foods, the Board has still issued bargaining orders in
some instances where there was not a majority
a. Ex. where majority status has been lost, but Board issues bargaining order
b. And to do this, relying on 10(c) ability for the Board to make employee
victims of outrageous and pervasive ULPs whole.
c. In such cases: give great weight to the rationale of the Gourmet Foods
dissent that the employee union would have secured majority support but
for the employers extensive wrongdoing.
iii. When Have Majority Support, But NOT Commission of ULPs
1. Linden Lumber (Supreme Court, 1974) (291) limiting the use of bargaining order
remedy
a. Held: An employer in an ordinary case need not bargain with the union
merely on the basis of a card majority. Just because have majority cards does
not mean necessarily get a bargaining order.
b. Facts: Unions had majority card showing, ERs refused to extend recognition,
union wants to have bargaining order. Can they? No SCOTUS affirms that
the Board can require the union to go through the typical
election/certification procedure (petitioning to the board, having petition
reviewed, and then setting up an election) and using the bargaining cards to
show that they have sufficient interest.
c. But not providing this non-election route absent an ERs ULP (and pervasive
ULPs).
2. In this situation, its the unions burden of invoking the election procedure ERs
election pettion only when has doubts about continuing majority support of union
a. Union when there is no ULP but there is majority support should set election
process into gear.

B. The Representation Election
1. Generally
a. Judicial Review of Representation Proceeding: No judicial review in the courts of appeal. Section
10(e)-(f) provides that final orders of the Board are subject to review in appropriate federal circuit and
Board determinations in representation cases are not final orders. In order to have judicial must raise
the issue parasitically in an ULP.
i. What this means: parties will commit an ULP in order to get a representation decision
reviewed. Ex. employer doesnt think that the bargaining unit determination was correct; will
refuse to bargain so that have ULP filing and then ULP charge. Then once they are in federal
circuit court, the parties will be allowed to raise the representation decision. Even once in
court, though, offer wide deference here.
ii. Exception: Leedom v. Kyle (267): can have judicial review for a representation question
when the Board acts in excess of its powers (i.e. when it contravenes the statute) and is not
within the Boards discretion but on the face of the statute. In Leedom, bargaining unit
determination, Board allowed for comingling of professional and nonprofessional employees
in the unitaccording to the Act, professional employees are not to be comingled with
nonprofessional employees without the vote of the majority of the professional employees to
do so.
iii. But otherwise, narrow application
1. Boire v. Greyhound Corp.).(272) - where determining the bargaining unit (or any
other representation issue where the union does not allege an employers unfair labor
practice), if the determination is on a factual issue, NO judicial review was a
factual issue of how closely related maids, porters, etc. were and whether community
of interest.
2. Ridgewood College question of whether the school was an instrumentality. State
instrumentalities are not within the NLRA explicitly, was not within the statute, was
a question of fact/determining if this fit within something in the statute, not directly
violating the Act.
3. Issue of whether the employees had managerial power: (1) a question of
interpretation, (2) second of all, although supervisor is describe, manager was all
through case law, definitely not a question of a direct violation of the statute no
judicial review.
b. Certification proceedings:
i. Typically one method by which employees select a union or choose to not be represented by
one is by a majority vote in a secret ballot election in an appropriate bargaining unit.
ii. This is the Boards favored method for union recognition better for establishing peace, more
efficient
iii. This is the only way for certification, though, and to get the benefits of certification (one year
fixed).
c. Types of certification petitions
i. (1) Petition for certification
1. filed by an individual, a group of employees, or typically a union that is alleging
substantial support and wants to be the collective bargaining unit and the employer
refuses to (voluntarily) recognize them as the representative.
2. They will need the 30% of the cards in order to have an election
3. They want to establish themselves as the CB representative
ii. (2) Petition for decertification
1. Ffiled by an individual, group of EEs, or a rival union.
2. . Alleges that the currently recognized bargaining agent no longer has the support of
a majority of employees in the unit.
3. Cannot do this during the election-bar or contract bar see Brooks (employees
changed their minds after an election, but had to wait until after certification year)
4. Requirements: If the Board finds that these are present, will conduct an election: (1)
They meet the timing requirements (see above Bar Rules), (2) The petition is
supported by a substantial number of employees. 30% support, (3) cannot be
tainted by unlawful employer assistance or interference.
a. If it is tainted in this way, that will constitute unlawful employer assistance
(to a non-minority group) and ERs ULP 8a2
5. Election bar rule also applies for decertification elections: if after this petition have
election cannot have another election for a year.
iii. (3) Employers petition - If the employer has good faith doubt that the union has majority
status, it may request an election
1. An Eer cannot file a decertification petition, however they can file a certification
petition which challenges the majority status of the incumbent union as long as there
are specific alleged facts which lead the Eer to this conclusion.
2. With this ER petition, employer seeks to resolve whether a union that has demanded
recognition has majority support. The employer therefore is the one who calls for the
election. BUT, there must be a prior demand for recognition by the union, done so
that the employer cannot call for an election before the union is ready.
3. Requirement: employer must have good faith basis for uncertainty that the union
retains majority support. Employer CANNOT just file decertification petitions to
force a vote to force a union to undergo the costs of an additional election.
4. Note also that if employer withdraws because has doubt about union majority status
=> will present problems for withdrawal- Levitz
a. An employer may withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority or bargaining
unit employees (Levitz Furniture: needs objective basis in fact)
d. Process for Certification
i. Union solicits, gathers cards
ii. Assess support through cards, presents to employer for voluntary recognition
iii. If employer does not accept, file election petition
iv. Board reviews petition and investigates
v. Moves on to investigation?
vi. Holds an election if the union wins, they are certified.
1. One year election bar rule
2. Once that union bargains with the employer, three year contract bar rule
2. Voter Eligibility for the Election
a. General: you have to be on last payroll before the election, and have to be employed on day of the
election
b. Strike replacements and continued support for the union
i. When dealing within non-striking replacements, the board presumes the replacements support
the incumbent union
ii. BUT, no presumption for replacement workers after a strike. Instead employer must come
forth with some objective evidence substantiate his doubt of continuing majority support if
going to withdraw bargaining or recognition. (same standard as other types of withdrawal
of recognition when not replacement workers, see below).
i. Curtis Matheson (Justice Marshall): Board will NOT extend presumption that striker
replacements oppose the union: ER must still have objective basis.
iii. If youre an unfair labor practice striker, youre eligible to vote indefinitely
iv. If youre a non-replaced economic striker, youre eligible to vote indefinitely
v. If youre a permanent-replaced economic striker, youre eligible to vote for 1 year after the
strike began
vi. If youre a permanent replacement, you get to vote
vii. If youre a temporary replacement, you dont get to vote
viii. If youre on layoff, youre eligible to vote if it appears likely that you will be recalled
c. Strike replacements and continued support for the union
i. When dealing within non-striking replacements, the board presumes the replacements support
the incumbent union
ii. BUT, no presumption for replacement workers after a strike.
1. Instead employer must come forth with some objective evidence substantiate his
doubt of continuing majority support if going to withdraw bargaining or recognition.
2. Curtis Matheson (Justice Marshall): NO presumption that striker replacements
oppose the union: ER must still have objective basis. Strike-breakers might actually
support the union but were forced to cross the picket line because of economic
reasons requiring him to work. Strikers still get to vote while they are the bargaining
unit, so if the employer could presume that the new employees were no pro-union,
could just hire a lot and then have good faith basis that the ER no longer had duty to
bargain.
3. BOARDS REVIEW OF ELECTION PETITION
a. (1) Within Boards jurisdiction (in an industry affecting commerce)
b. (2) Timely petition filed by proper party no prior certification and a year has lapsed since last
election
i. Election Bar: One year election bar rule: election cannot be held within a year of each other
ii. Certification Bar: a certification is a bar to another investigation within one year after the
election; honor the certification status of the union for one year
1. The time is from the date that the union is certified (Brooks begins to run at
certification rather than from the date of the election).
2. During the year: irrebuttable presumption of majority status (no petitions), unless
unusual circumstances (see Brooks)
a. Unusual circumstances: certified union becomes dissolved or defunct, as a
result of schism all the officers or members of the certified union are
transferred to a new local or international, size of BU fluctuated rapidly
w/in a short time
3. After the first year: rebuttable presumption of majority status
a. Ex. rules for union withdrawal from the union because of this rebuttable
presumption
4. Recognition bar when there was voluntary recognition: for a reasonable period of
time
c. (3) No other valid collective bargaining agreement
i. Contract Bar Rule: during the life of an existing contract, Board does not allow
certification/de-cert. petitions to be filed (except for window in the end)
ii. Requirements for contract bar to apply: The contract must be reduced to writing and executed
by both the union and ER. In addition, the agreement must apply to the employees covered in
the unions petition Must grant the union as exclusive representative of all workers in that
union, members and nonmembers. Must embody substantial terms and conditions of
employment and not merely wages (also not merely tangential issues). A contract with a
clearly unlawful union-security provision will NOT bar, but a contract with an ambiguous
union-security provision will bar. Racially discriminatory contracts wont bar.
iii. Contract bar rules:
a. Petition will only be entertained during the window no greater than 90 days or
less than 60 days before the termination of the existing agreement
b. But if the parties do not contract for a new CBA during the insulated period, and the,
if the old contract expires, you can file a petition until a new contract takes effect
c. If the contract is a three year contract with a re-open clause, the 90-60 day
window only occurs at the end of the 3 years (not in the re-open phase), however,
if it is a longer contract, the window still occurs at the end of 3 years
d. A contract that is longer than 3 years will still only serve as a contract bar for three
years.
1. Similarly, if new union comes in, new union not bound by the old unions
contract even if the old contract was for four or five years.
2. American Seating Co.- -fourth and fifth year provisions do not apply;
have to bargain new on those issues, little point to selecting new
representative if unable to negotiate new terms and conditions of
employment.
a. ULP for ER to refuse to recognize (due to existing
CBA) new U
e. Question page 230 If a new contract is agreed upon and executed during this
period, and no petition has been filed (because then an election?)
f.
g.
iv. When contract bar rules will cease to bar/ not bar
1. (1) More than three years after it was negotiated (after the first three years of its life)
a. Shaw supermarkets the three years the employer has the power to
unilaterally withdraw recognition if it has reliable evidence of the loss of
majority support
2. (2) If the bargaining representative has become defunct ( union is unable or
unwilling to represent the EEs in the bargaining unit). failure to do day-to-day
functions, hold meetings. Container Corp.
a. Then union administer the contract on behalf of employeesgrievance
mechanisms, for ex., not working properlytherefore treat the instrument
as binding wouldnt stabilize labor relations.
3. (3) Changes in circumstances that affect that bargaining unit expansion, changes in
employers operations. (merger, relocation, hiring substantially all new employees,
creating new operation) General Extrusion
4. (4) If the contract has illegal clauses and affects employee rights (i.e. union security
clause) then contract is not a bar. BUT if it doesnt affect employee rights (i.e hot
cargo, antitrust) the contract is still a bar.
d. (4) Appropriate showing of interest authorization cards are both necessary and sufficient to meet
showing of interest requirement
i. Usually have this showing of strength by cards (cards have to meet card check requirements)
1. To have election => need 30%
2. If an opposing union, => 10%
3. If one union wants to challenge the incumbent just a single card.
ii. ER has never been given right to challenge whether a sufficient showing is made.
e. (5) No commission of unremedied ULPs
i. Policy of the Board not to continue with election proceedings while charge is being
investigated known as blocking charges, because the union can file for ULP charges in
order to slow an election.The Board will resolve this charge before proceeding w/processing
an earlier-filed election petition
ii. Ex. If the election proceedings are going badly but ER is committing ULPs => union will
seek blocking charge => supends the election until NLRB determines whether there is an
ULP. This puts the election on hold.
f. (6) appropriate bargaining unit
4. BARGAINING UNIT DETERMINATION
a. Criteria: requires only an appropriate bargaining unit.
b. To be an appropriate unit, the employees must share a Community of Interest.
i. From employees point of view
1. Extent and types of union organization of employees
a. But note: extent of organization by the EEs cannot be determinative, cannot
be the only factor for why this is an appropriate bargaining unit. 9(c)(5)
2. Historically part of the same group
3. Bargaining history in the industry
4. Similar duties, skills, functions, working conditions of the employees
5. Employees have same work, same benefit, same supervision, same contract
ii. From managements point of view
1. Similarity of the employees working conditions
2. Lines of supervision of the employees
3. Functional aspects/organizational demarcation (ER will want along lines that the
company is already organized so that no whipsaw strikes minimize recurring
strikes
c. Specialized rules for bargaining units
i. Professionals: Cannot mix the professionals with non-professional without a majority vote
by the professionals to be in a union with the nonprofessionals.
1. Professionals: employee whose work is predominately intellectual, requiring the
constant exercise of discretion and judgment and knowledge of an advanced type
acquired through advanced specialized, or intellectual instruction
ii. Craft Unions: Ex. carpenters. Must offer the craft employees the right to be in a separate
union.
iii. Security Guards: Cannot mix security guards with other types of employees. And the
security guards must be in their own union, which is a union associated only with security
guards.
1. Rationale: Security concerns if the labor union strikes and there is no one to control
the striking employees.
2. BUT: Guards caveat: They can be placed in a union with non-guards by consent (by
their consent), but they cannot get protection if they choose this, AND the Board will
not certify such a union.
iv. Hospitals and bargaining units
1. 29 CFR Pt. 103 (1989)
a. Except in extraordinary circumstances and in circumstances in which there
are existing nonconforming units, the following shall be appropriate units,
and the only appropriate units, for bargaining units in R election petitions,
except that, if sought by labor organizations, various combinations of
units may also be appropriate :



2. Note the law is setting limits on proliferation of bargaining units; the concern is
having too many bargaining units. The employees therefore can combinebut still
in accordance with the other bargaining unit rules. namely: if you have a
professional [see definition above: someone with specialized training, education]
with a non-professional [ex. clerical with the registered nurses, RNs would be
professional], MUST have the majority of nurses consent to this.
3. Nurses are still possibly managerial if they have assignment tasks => and are
therefore excluded from the NRLA, period. Even if they are listed on the bargaining
unit list here.
4. These are setting bargaining units for each group of peopleif within the same
subset at the hospital, all of these people are in the same bargaining unit.
a. Ex. Paramedics case (Virtua Health) the 150 paramedics had to be within
the rules of the 8 units they were technical employees, but had to be with
ALL technical employees, which meant had to be in a bargaining unit of
950 people, union will not want to go forward with election).

d. To challenge the unit determination (as part of another ULP claim), ER must show that the unit is
truly inappropriate.
i. If the bargaining units are separate and
1. There is no legitimate basis for exclusion of certain employees from the unit and
those employees are exclude.
2. There are overwhelming similarities between two units that have been made into
separate units because the ER had unrebutted evidence showing the functional
integration between the EEs and they overlapped entirely)
ii. But there can be more than one appropriate bargaining unit. As long as they share a
community of interest can be together for the bargaining unit, as long as it isnt truly
inappropriate to exclude another group of employees.
iii. Blue Man Group there were both present similarities and differences, but there were enough
similarities between the music technicians that set them apart from the other employees that it
wasnt A (where would not be appropriate unit just to have one box) but B (where could have
them as each their own BU or together).
1. These factors here: different forms of payment, different ways of signing in,
difference management, different skiills, work space, interaction than with other
members of crew (but still were on same crew, many similarities with crew).
2. See picture: If the two groups of employees in A, whose interests almost entirely
overlap, are separate BUs this will be truly inappropriate. But in B, they can either
be together (they share community of interest) or they can each be in separate BU
and it will be an appropriate unit.
e. Does the employer has multiple location (ex. chain store)?
i. Single unit (ONE STORE) is presumptively appropriate in both service (Ex. Frischs Big Boy:
single store BU even though chain) and manufacturing (ex. Dixie Belle Mills even though
there was another warehouse 20 miles away and their operates were integrated, it still was an
appropriate bargaining unit).
ii. Rationale: The goal of NLRB and the Act is to encourage collective bargaining; it is easier to
encourage collective bargaining if the union and employer are only within one store.
f. Role of contingent employees in bargaining units
i. Contingent employee: people are supplied by and under contract with one employer, but
perform services for a second user employer who is under a contract with the supplier of
the labor services.
(1) all registered nurses (5) all skills maintenance people: boiler room workers
(2) all doctors (6) all business office clerical employees
(3) all professionals other than RNs and doctors (7) all guards
(4) all technical employees (8) all other nonprofessional employees (not tech,
skills, guards, clerical)

ii. Issue: can the temp workers be in a bargaining unit with the normal employees?
iii. Rule: H.S. Care: The Board does not include employees in the same unit if they do not have
the same employer (including both joint and main employer), absent employer consent. Treat
these units as multiemployer units: appropriate only when mutual consent; involuntary
combinations of those employees are inappropriate bargaining units.
1. If ERs get together and have one bargaining unit: union must consent; if union gets
the temps involved: ERs must consent
iv. Greenhoot: Union sought to combine employees from lots of different temp agencies and one
user employer together into one bargaining unit, petitioned for that. Held that needed to have
the user employers consent, it was multiemployer bargaining.
g. It is unlawful for a single union or a group of unions to insist upon, or to strike in support of demands
for, the expansion of bargaining to units larger than those certified by the Board.
5. MULTI-EMPLOYER BARGAINING (relates to whether appropriate bargaining unit)
a. A number of employers within a single area or industry band together to bargain as a group with a
union, which in turn represents all of the employees at all of the companies. Ex. clothing, construction,
longshore & maritme, trucking and warehousing, coal mining, wholesale and retail trades.
b. Board has held that multiemployer units are allowed, but Board does not direct an election initially in
a multiemployer unit. Instead:
i. Mutual consent - The units must be formed by mutual consent (union has to agree, all the
ERs have to agree)
ii. Board deems appropriate - And then once the union and employers agree, the Board will
review it, and can deem the union appropriate.
c. Boards review of a multi-employer bargaining
i. Employers participation for a substantial period of time in joint bargaining negotiations
ii. Employers consistent adoption of the agreements from those joint negotiations
iii. Board will look for consent of both the employers and the union having representative status
iv. ER can be part of a multiemployer unit for one category of its employees but may function as
a single-employer unit for other groups of its employees. Seagram & Sons. Ex. join with
others for the welders but not for the plumbers.
d. Withdrawing from a multi-employer bargaining unit
i. Before negotiations begin: employer can withdraw
ii. After negotiations OR impasse: only if (1) the employer has the consent of all the parties (all
other ERs, union) OR (2) unusual circumstances
1. Bonanno: ER tried to withdraw from multi-employer union after bargaining had
begun when the employers and union at impasse. SCOTUS: utility of multiemployer
bargaining is furthered by the limiting when a single employer can leave such a unit,
if an employer could leave at impasse, would destroy bargaining process.
2. What would be an unusual circumstance? An individual agreement that is clearly
inconsistent with, and destructive of, group bargaining, would be grounds for
unusual circumstance ex. where union is not executes separate agreements that
will survive unit negotiations union has fragmented and destroyed integrity of
bargaining unit. in Bonnano, no interim agreements (although two of the ERs met,
no negotiations).
6. Union Negotiating Committees
a. Definition: In a mixed union negotiating committee, the union in negotiations brings other union
negotiators from different unions to the bargaining table, not to help in the formation of the collective
bargaining agreement but as experts in negotiation.
b. RULE: Mixed-union negotiating committees are NOT pe se improper absent of showing of ulterior
motive or bad faith, and an employer commits an unfair labor practice unless it bargains with the such
a group
c. Either side, can choose as it deems fit a representative and neither side can control the others
selection, unless the situation is so infected with ill-will GF bargaining impracticable.
i. ER has the burden to demonstrate that the union negotiating committee was so infected with
ill will by having someone else there
ii. But clear and present danger would be a reason and meet this infected with ill will
requirement. Examples:
1. conflicts of interest; someone as a bargaining representative who has expressed great
animosity towards the employer,
2. violence, threats by the union
3. a union established company in direct competition with the employer;
4. an ex-union official added to employer committees to put one over on the union
[conflict of interest]
5. someone who has made racial or ethical slurs on or against the employer.
d. Distinguish: coordinated or coalition bargaining
i. When a single union insists upon, or strike in support for, the expansion of bargaining to
unions larger than those certified by NLRB.
ii. Cannot try to get units larger than those that are certified.
7. CHALLENGING ELECTIONS
a. **Seven days to challenge the votes of the election
b. Setting aside of elections
i. Conduct that is violates 8(1)(a) automatically interferes with the exercise of a free election
because it interferes with Board laboratory conditions (Dal-Tex Optical Co.) the Board
will set aside the election
ii. Laboratory conditions also set aside election
iii. Board may decline to set aside the election if actions too isolated and minimal to have effect
iv. Board wont set aside election for misleading statements, only coercive or deceptive tactics
(Midland
8. OTHER ELECTION ISSUES
a. Vote Requirements
i. Petitioning union need only receive a majority of votes cast
ii. Will be certified as bargaining representative for all employees in unit
iii. Tie vote results in no representative union must have MAJORITY
b. Run-Off Elections
i. If no single choice receives a majority, Board conducts a run-off between top two vote getters
ii. Suggested that if majority of voters indicate that wish to be represented, run-off should be
between top two unions, even if No Rep choice is among top two vote getters

C. Duration of the Unions Status as Bargaining Representative (so there was an election, now what)
1. Irrebutable Presumptions: during these irrebuttable presumptions, the EEs cannot file decertification
petition; ER cannot file employer petition, rival union cannot file petition
a. Certification Year: Where a union wins an election, the Board has ruled that the twelve-month period
where no other petition may be filed for an election (certification year) unless unusual circumstances,
even if the employees change their minds - Brooks
b. Election Bar
i. Section 9(c)(3): No election shall be directed in any bargaining unit or any subdivision
within which, in the preceding twelve-month period, a valid election shall have been held.
ii. Must be one year between the electons
c. Voluntarily Recognized Unions: reasonable time
i. Where a union has been recognized voluntarily without an election, a similar presumption of
majority support is applied but the irrebutable presumption only continues for a reasonable
period of time after recognition rather than the periodof one year. Test: where the union has
a had a fair chance to succeed
ii. Dana Corp changed this (only 45 days before other unions can file petition
d. Contract Bar Rules: where contract meets requirements (see above), cannot file election petitions
while there is a contract. Therefore if there is an incumbent union, there might be only one 30-day
window (every three years) where can file petition
2. [added 12.7] Presumptions: The presumption establishes a prima facie case that an employer is obligated to
bargain, and that its refusal to do so is unlawful.
a. Presumption of continued majority status after expiration of certification year
b. Presumption of continued majority status after expiration of collective bargaining agreement
(Bartenders)
i. Therefore, to withdraw recognition, ER must have objective evidence after Levtiz
1. ER may, without petitioning for an election, unilaterally withdraw recognition
where it can prove that the union has actually lost the support of the majority of
the bargaining unit.
a. Must not be during an irrebuttable presumption (ex. if there is a K bar,
couldnt be, but could be after certification bar if no K).
b. Bartenders Assn: labor contract expired and they continued to
negotiate. But then the ER notified union they doubted continued
majority status and would not bargain until the union demonstrated
majority support. Held: this violates 8a5 unless they can show that
union no longer had majority support or was grounded on GF and
reasonably grounded in unions continuing majority status. New Levitz
rule: for ER to withdraw recognition from a union where has GF
doubt about majority status, must have objective evidence that the
union actually has lost majority statuts.
2. Example: Shaw Supermarkets (2007) - there were 1600 EEs and during the
window of the three year K, an employee in the BU filed a decertification pettiiton
with the signatures of 900 EEs (way more than 50%), ER checked the names to make
sure that they were actually people on the roster, found that they were, and then
withdrew support action for 8a5 refusal to bargain and 8a1 no, this is objective
basis in fact.



ii. If ER merely has GF doubt (merely harbor s uncertainty or doubt concerning a unions
majority status) => ER must petition for RM election and await the outcome of the
election before withdrawing recognition.

c. Not rebuttable: U is entitle to conclusive (irrebuttable) entitled to a conclusive presumption of
majority status for one year following certification and a conclusive presumption of majority status
during the term of any collective-bargaining agreement for at least
i. Policy =>labor peace; allows U to concentrate on obtaining/administering fairly CBA, and
having stable CB relationship, without worrying about immediate risk of losing majority
status, campaigning.
3. [Successorship]
i.
4. Loss of Representative Status
a. Under current law, there are three major ways to challenge unions continuing majority status: (1)
employer withdraws from negotiations, refuse to bargain further with the union, and withdraw
recnogtion on the bais that the union has lost majority support; (2) employer may file an election
petition under certain circumstances (petition for election to test the unions majority status), and (3)
employees can file a decertification petition.
b. Withdrawal of recognition => object evidence requirement, only where has lost the support of
the EEs (Levitz)
i. Withdrawal of recognition means that the employer chooses to withdraw from negotiations
with the bargaining unit, An employer may withdraw recognition from an incumbent union
only where the union has actually lost the support of the majority or bargaining unit
employees (Levitz Furniture)
ii. Levitz - employer can withdraw recognition from an incumbent union only if the employer
can show that that the union has actually lost the support of a majority of the bargaining-unit
employees.
1. Burden is on employer to show loss of actual majority support in any litigation that
might arise.
iii. Remedy: if the ER unlawfully withdraws recognition from an incumbent union, the union can
get a remedial bargaining order and as part of that must be allowed a reasonable period of
time to bargain before its majority statutes may against be challenged (Lee Lumber)
1. The reasonableness of that time: related to how long they were in collective
bargaining beforehand, in addition to other factors (p. 300)
iv. Other consequences:
1. If ER has changed benefits without bargaining after withdraws recogntiiton, can be
ordered to restore them
2. If the withdrawal is during a strike/before strike, it can convert an economic strike
into an ULP strike (very expensive for employer).
c. File petition to secure a representation election to test the status of an incumbent union => lower
standard than withdrawal of recognition
i. Levitz Furntiture: the Board has adopted a lower standard of GF employer uncertainty,
because the Board expresses preference for elections to decide representation status rather
than unilateral withdrawal of recognition.
1. Rationale: promoting free choice by lower threshold for elections
ii. Therefore, the kinds of statements in Allentown Mack may be considered to satisfy the lower
standard for GF uncertaintysuch as after the ER conducts a pollbut still needs to have
baseis in objective fact (reliable, not speculative).
1. What kinds of evidence are objective facts to justify reasonable, GF basis?
Admissions by union officials that the union had lost its majority, filing of a
decertification petition signed by a majority of the employees, written and oral
statements by the EEs reputidating the union.
iii. Requirements:
1. Filed after the certification year expires
2. Employer demonstrates good faith reasonable doubt (take into account broader range
of evidence)
d. Employees decertification petition/decertification elecetions (also discussed above)
i. AN employee or a group of employees may file a petition asserting that the labor organization
certified/recognized currently is no longer the representative of the majority.
ii. If the Board finds that support by substantial numer (30%) and that a question of
representation exists (not time barred) Board wil conduct an election.
iii. Like ERs pettion, limited by the time periods: election bar, certification bar, contract bar 30
da window (in many incumbent union situations, there will only exist 30 day window twhere
EEs can file).
e. Note: if instead of doing these, the ER makes offer to union about a new contract, if union accepts and
creates a contract, there is a conclusive presumption of majority support (it was a rebuttable
presumption before the contract) for the length of the contract

III. NEGOTIATION OF THE COLLECTIVE BARGAINING AGREEMENT

A. Exclusive Representation and the Majority Rule
1. Exclusivity: the Union is the exclusive representative of the employees. The union as exclusive rep excludes
any other person or group seeking to represent the same employees regarding wages, hours, or other T/C of
employment.
a. Exception: grievances exception, 9(a) [see below]
2. The union speaks for the majority: no individual employment contracts.
a. Get the benefits of having the majority voice: a collective voice in negotiating your wages, hours, and
working condition; a just cause provision rather than being an at-will employee; benefits such as
Grievance arbitration provisions, fringe benefits, etc.; anything else the union is able to get into the
CBA
b. Existing individual contracts are not a bar to a CBA. J.I. Case Co. v. NLRB (Supreme Court, 1944).
i. Employer had made individual contracts with about 75% of the employees, after the union won
the election the company argued that it did not have to bargain with the union while the
individual contracts were in effect. Held: once have the certification of the union the union is
the exclusive bargaining representative, the fact that the individual employees had contracts did
not supersede the union as exclusive representative and majority rule.
c. Employee is free to vote against representation if he values his own bargaining position more than that
of the group; but one the union is in place, the majority rules, and if it collectivizes the employment
bargain, individual advantages or favors will generally in practice go in as a contribution to the
collective result [JI Case Co. v. NLRB].
3. No exception for racial issues (no exception for issues that directly impact only a minority of the union
members more than others) Emporium Capwell
a. But union has duty of fair representation
b. But fair representation high threshold, see sexual harassment case (CB
4. Individuals cannot negotiate directly with the employer for a change to the CBA (Emporium Capwell); if the
Eer does this, they will be found for an 8(a)(5) violation and EEs can be discharged without protection (going
outside of the collective bargaining).
i. Individuals who engage in concerted activities or attempted to bargain on behalf of others
without the support of the union are not protected from discipline by the union or Eer, including
discharge (i.e. they can be fired without the Eer violating 8(a)(1)). This may be different if
there is a claim that the union is not treating them fairly.
5. Employees waive the right to have strike: no wildcat strikes, and to other concerted activities over mandatory
subjects.
a. Employees have to be represented by the union as their exclusive representative, unless the grievance
exception, even where there are racial issues. -
b. Emporium Capwell (Supreme Court, 1975) (319) Ees tried to bypass the union/the grievance
procedures in place and bargain with the ER over racial minority working conditions. They picketed,
handbilled. He fired them. Although the employees activity would have been concerted, protected
activity (picketing store, distributing handbills), the union was their exclusive representative about
these issues; discharges were not protected by section 7 and the ERs actions were not ULP.
6. Limits on Exclusivity & the Majority Rule:
a. As a threshold consideration, it only exists where there was majority support, and the majority support
(ongoing) can be challenged.
b. (1) Grievance procedures
i. Although 9(a) exclusive rights to the union for bargaining over mandatory subjects, EXCEPT
that an individual has the right to present grievances directly to the Eer, provided that:
1. (1) The grievance is consistent with the CBA
a. How to determine? on the face of the CBA, and look to the bargaining
history and past practice to determine if something conflicts with the
bargaining agreement.
2. (2) The union has been given the opportunity to have a representative present
ii. 9(a) exclusive representatives, employees adjustment of grievances directly with
employer): provided that at any individual employee or a group of employees shall have the
right at any time to present grievances to their employer and to have such grievances adjusted,
without the representative of the bargaining rep, as long as the adjustment is not inconsistent
with the terms of a CBA in effect and that the bargaining rep has been given an opportunity to
be present.
iii. This was the method that the employees were supposed to go through in Emporium Capwell.
c. (2) Exclusivity only applies to mandatory subjects of bargaining:
i. **If not a mandatory subject of bargaining union is not the exclusive representative, EEs may
bypass and go straight to employer for the permissive subjects The union as exclusive rep
excludes any other person or group seeking to represent the same employees regarding wages,
hours, or other T/C of employment but the EEs can bypass for permissive (although such are
rare).
d. (3) Bargaining unit determination
i. Distinct groups of individuals (should) be protected from expansive effect of exclusivity
through unit determination
ii. If the employees are in a unit and are being represented by a union, must have the community
of interest standard met (employees who share a community).
iii. Based on the factors analyzed for community of interest, they should be similar for duties, skills,
working conditions, job classifications, employee benefits, promotional ladders, degrees of
supervision among employees => and these terms and conditions of employment are what they
are locked into bargaining together about. Therefore, should be set up so that what benefits one
benefits all.
e. (4) Landrum-Griffin Act Amendments: provides for a bill of rights for union members to guarantee
democratic rights and procedures for internal affairs of unions, members can speak at union meetings,
etc. (330)
f. (5) A worker who is in a bargaining unit for the majority unit does not automatically have to become
a member of that union.
i. A bargaining unit employee still has the union speak for him, still cannot directly negotiate
w/ER over mandatory subjects
ii. BUT, a unit EE must become a union member only if the ER and the union negotiate a
provision in the CBA making membership a condition of continued employment (a union-shop
provision). And sometimes in these union-shop provisions only membership required is
paying dues (a fee).
1. States are empowered to enact RTW laws which make union-shop provision illegal
in their state, section 14(b) cannot contract for this provision in these states.
g. (6) Union cannot waive certain rights of the employees it represents
i. Magnavox union did not have the power to waive the normally applicable solicitation and
distribution (of pamphlets, etc) rights of employees.
ii. Certain section 7 rights can be waived, ex. right to strike as quid pro quo to get grievance and
arbitration provisions or other ER concessions but not solicitation rights (see earlier in OL,
re: solicitation, here Stewart concurrence about freezing out).
h. (7) Duty of Fair Representation
i. Duty of Fair Representation: The union, in collective bargaining, is to represent the duty to
represent the entire membership; and where it is the exclusive representative, must represent the
non-union or minority union members of the craft without hostile discrimination, fairly,
impartiality and with good faith.
1. Union cant make distinctions among members based on differences that are not
relevant: race, union member of just dues-paying.
2. If the distinctions are based on race alone, they are irrelevant, like in Steele.
ii. Breach of the duty of fair representation is an unfair labor practice. Union can be enjoined to
stop from violating duty of fair representation.
iii. Application
1. Steele (black locomotive fireman) (331): black firemen were excluded from the
union, but the black workers still had the union as their representative, in its CBA
with ER was going to fire all the black firemen and only white firemen could be
promoted. Supreme Court of Alabama said this okay, Supreme Court: reverses, there
is a Duty of Fair Representation, and enjoined union.
2. Ford Motor v. Huffman: seniority credit for military service to EEs who had
completed a probationary period of 6 months with Ford. Supreme Court held that the
union did not breach DFR union could make reasonable distinctions among
members, seniority credit for the military people was reasonable.
3. In processing grievances: union cannot flatly decline to process meritorious
grievances raised by black or female workers in the bargaining process. But can
decide not to process them for any other relevant reason.
B. The Duty to Bargain in Good Faith
1. Duty to Bargain in Good Faith, 8(a)(5): Both the union and the employer have an obligation to:
a. (1) Bargain in good faith about the wages, terms, and conditions of employment
b. (2) Meet at regular times
c. (3) Come with an honest effort to reach an agreement.
2. Duration of the Duty to Bargain in Good Faith
a. In bargaining before execution of the CBA, ex. King Size Sandwiches, aka the period of contract
negotiations
b. After impasse, when negotiating
c. Labor-management relations during the terms of an agreement (Acme Industrial Co.)
d. While the employees are on strike (because impasse => EEs can strike, ER can lockout, but still have
duty to bargain in good faith).
e. After the contract has ended -- Litton Printing (705) : after expiration of a CBA there is still a duty to
bargain in good faith (8a5: there is ALWAYS a duty to bargain in good faith, whether or not there is a
CBA in place or not, this is how we get an agreement, during a strike, before strike, before CBA, after
CBA), but arbitration is excluded from mandatory duty to bargain it is a matter of consent.
3. Subjects of Bargaining: Mandatory, Permissive, Illegal
a. See sheet
b. Borg-Warner set up system of three: many provisions are clearly into one of the three categories
i. Mandatory subject of bargaining: wages, terms, and conditions of employment "settle
an aspect of the relationship between the employer and the employees (Pittsburg Plate
Glass & Chemcial Workers thats why retirement benefits for retired EEs werent)
1. Must bargain about it
2. Waivers: can have a waiver of EEs Title VII rights and these have to go to
arbitration cannot file a Title VII suit? Yes, mandatory subject.
a. Can also have a class waiver: EEs waive right to establish class action
b. BUT the Board has held that the FAA does not preempt the NLRA. So
participation in the class action can still be concerted activity
ii. Permissive: cannot force the other to bargain about it
iii. Illegal: cannot bargain about illegal subjects of bargaining
c. Some are more unclear: both employers discretion but have an impact on the employees, argue that
affect the conditions of their employment
i. For these: Did the circumstances of a particular case bring it closer to Fibreboard
(subcontracting,
based decision on labor costs; Regal Cinemas; Dubuque packing for relocation), with its
bargaining requirement, or was this an entrepreneial decision about the future of the company,
about the scope of the enterprise, (First National Maintenance: JANITORS: partial
closing, labor costs not a factor in managements decision, or the relocation argument of
Dorsey Trailers), with no bargaining requirement?
1. Key cases for on the border of permissive/mandatory
a. Fibreboard (subcontracting was mandatory)
b. Regal Cinemas (~Fibreboard: mandatory)
c. First National Maintenance (decision to close was scope of business
enterprise)
d. Dubuque Meatpacking (relocation was mandatory)
e. Dorsey Trailers (relocation was because scope of enterprise and capital)
f. Westinghouse (consider the effect on employees; was mandatory)
2. Basic questions for cases on the border
a. Does this have an impact on the bargaining unit?
b. Is it based on labor costs?
i. Based on labor costs => will be mandatory subject
ii. Based on operating costs => will be mandatory subject
iii. Unless ER can argue scope of the enterprise (capital, change of
operations)
c. Is this a basic change in the business, in the scope of the enterprise?
i. Then will not be mandatory, will be permissive, ER does not have
to bargain, Fibreboard concurrence.
4. Bargaining Tactics and the Duty to Bargain in Good Faith: Standards of Conduct, Proving Good Faith/Bad
Faith
a. Standards of Conduct: 8(d) requires that, over mandatory subjects of bargaining (wages, hours,
working conditions, etc.) the union and employer bargain collectively is the performance of the
mutual obligation of the ER and the union to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment, or the negotiation of an
agreement, but such obligation does not compel either party to agree to a proposal or require the
making of a concession.
b. Meet at reasonable times and confer
i. Meet reasonable times: What is reasonable for this contract? How long are the intervals
between meetings before unreasonable. Generally considered that parties are not obligated
to continue once they have bargained to impasse. In some rare instances a party could refuse
to meet if the composition of the other partys bargaining team was purposely selected in
order to be disruptive and offensive. (Dicta in General Electric)
c. Bargain in good faith
i. Good faith: Bargaining with real intention of concluding a collective bargaining agreement
(King Size Sandwiches),
d. But such obligation does not compel either party to agree to a proposal or require the making of a
concession
i. Bargain but that does not mean the parties have to reach an agreement; bargain until impasse
(bargained in GF to a deadlock). Herman Sausage: parties can maintain the stalemate if it is
genuinely and sincerely held.
ii. Concession: union forced to go too low, going lower wages/benefits.
5. Proving Good faith vs. Bad Faith
a. Rarely proven by direct evidences; proof must ordanarily be from inferences from external conduct.
b. Do the substantive proposals suggest bad faith?
i. From the proposals as a whole. In some cases, BF can be inferred from the substantive
proposals that the party has made during the negotiations. King Size Sandwiches.
1. King Size Sandwiches: from the whole of the proposals offered to the union, the
clauses taken as a whole were unusually harsh and unreasonable. .
a. Although it like there was good faith here from the outside met at
reasonable times (parties here had 18 bargaining sessions over 11 month
period) and places with the union, did not have union animus, and had not
engaged in obvious conduct that had suggested bad faith, the content of the
bargaining suggests bad faith.
b. Clauses: wages (semi-annual merit increase only, at companys discretion,
no wage schedule, company in total control over wages); very broad
management rights clause, that gives the company exclusive control over
subcontracting work, assigning, discontinuing any or all of its operations,
zipper clause, no strike clause, layoff and recall, discharge and discipline
(total control). Tactics: when the union didnt like a clause, the company
responded with clauses that were even broader.
c. Held: the companys proposals, taken together, establish that company was
not bargaining in GF.
2. Especially applicable when both parties are sophisticated, see King Size.
ii. But, the Board/courts cannot impose substantive provisions or that these seem to
advantageous to one side
1. Cummer-Graham (no-strike clause, but ER wouldnt grant arbitration clause:
although usually together, question was for parties and not necessarily bad faith)
2. Just because advantage is to one party does not mean a violation or that the party
used its bargaining power (Chevron Oil Co.).
iii. Bargaining over a management rights clause is not per se 8a5 violation, American National
Insurance (382)
1. What was this clause: clause stating that promotions, discipline, scheduling were the
responsibility of management and were excluded from arbitration.
2. Board: insisting to impasse on this clause violates duty to bargain in GF
3. Supreme Court: This can be a mandatory subject of bargaining and can insist on it to
the point of impasse.
a. Ex. CANNOT say Decisions about promotions are none of the unions
business at the bargaining table that would be against duty to bargain in
good faith, 8a5.
b. But from this decision, can say I will discuss with you today the matter of
control over promotions of decisions, but it is our firm position that they are
none of the unions business and will not discuss them with the union during
the terms of the contract, and bargaining hard over that provision.
iv. Cannot bargain over bargaining unit determination.
1. Douds v. Intl Longshoremans Assn- Board had granted bargaining unit for
employees in port of New York. Union continued to demand agreement, in
bargaining, to cover union members from East and Gulf Coasts, not just New York.
Held: cannot bargain over the BU that is a question for the Board, and if want to
review it with the Board, do so through Board ULP proceeding.
c. Do the tactics or procedures employed y the respondent in bargaining with the other party
suggest bad faith?
i. On the job protests, I nsurance Agents - on the job protests do not violate duty to bargain
even though they are not protected, they are a way to exert economic pressure.
1. To put economic pressure on the employer, employees engaged in of slow-downs,
sit-ins, leafleting, and picketing, not attending business meetings, but still going to
work, not on strike. Held (Brennan): economic weapons are part of collective
bargaining, but the bargaining has to be in good faith and cannot reveal
unwillingness to have free interchange of views; just because activity (slowdowns)
are not protected does not mean they are BF bargaining.
ii. Boulwareism
1. General Electrics Lemuel Boulwares strategy of making a reasonable offer and
then refusing to budge.
2. Held: take-it-or-leave it approach plus the campaign of unbending firmness evidence
bad faith, the ER was not in a position to sincerely bargain.
iii. Surface bargaining: saw this in King Size Sandwiches. When the party is engaging only in
empty talk and mere surface motions of collective bargaining, is not really bargaining,
therefore is not bargaining in good faith.
d. Duty to Disclose/ Supplying Information
i. Duty to supply information: If ER mechanically repeats that cannot pay without proof, and
refuses to supply the requested information, his would be failure to bargain in GF. But not
every case where fails to turn over information: must be upon particular facts of the case. But
the information must be relevant and of use to the union in carrying out its statutory
responsibilities.
1. Unions also have duty to provide information
2. Also extends during the term of an agreement. (Acme Industrial if relevant/ of use to
the union for their responsibilities.)
ii. Requirements
1. Must be relevant (Truitt: the duty to bargain in GF requires the company to turn
over to the union upon demand information in that the ER has in its possession which
the union claims is important to informed bargaining. (Union requested cos
financials when company said that they could not afford 10 cent hour increase
because it would break the company, SCOTUS enforced order to turn over
information from co to union).
2. Defense: Interest in Employee Privacy? Detroit Edison Co.: employee aptitude tests.
ER refused to disclose test questions, actual EE answer sheets, and scores linked with
the names of the people who got score. Supreme Court: sensitivity of the situation,
bears on the individuals basic competence, order requiring the co. to uniformly
disclose the information (without redacting, etc.) was error.
iii. Therefore, If the Eer has given ANY indication that they cant afford the requested wage
increase, and the union requests the information, they must show the union the books fact-
based analysis to determine if this type of statement has been made.
iv. When does the duty to provide information exist?
1. The duty to furnish information arises as soon as the union is elected.
2. See it in Employer Speech when can ask for the facts
3. The duty continues through the life of a contract so far as it is necessary to resolve
grievances and administer the contract.
e. Unilateral Act
i. Unilateral Action: Eer changes wages, hours, or working conditions without discussing it
with the union before impasse
ii. Unilateral action is a per se 8(a)(5) violation, even if it increase, the union may not have
wanted that benefit, but may have wanted something different and must have offered the
last best offer.
iii. Once impasse has been employer may unilaterally implement last, best, final offer.
1. Must be overall impasse. Duffy Tools (parties deadlocked over the no-fault policy,
but not over the rest of the other mandatory bargaining issues. Held: ER cannot
implement unilateral change because there was a deadlock on the proposal alone, not
overall impasse; there is no animal as a deadlock on a single issue in a
multifaceted negotiation that is the point of bargaining, then you bargain about that
regarding something else).
iv. The provisions implemented as LBO must either be the same ones that the union was offered,
OR the provisions give same/less to the Ees than was offered to the union
1. Employer who unilaterally implements less favorable terms does not violate the Act
(Telescope Casual Furniture)
2. But If ER implements a change that is better than what had bargained, this is
necessarily inconsistent with a sincere desire to conclude an agreement with the
union. Katz. (unilaterally implemented sick leave policy after negotiations had
stalled, but it was better, they therefore hadnt reached impasse).
a. What is better provision? Have to look at it as a whole. Ex. Pacific
Gamble (441) ER offered higher hourly wages to the replacement
employees, but did not offer the same overall total package as had applied to
the union members. Board found there was a violation because the ER did
not bargain in GF (8a5 violation) and didnt make last best offer. COA
reversed and held that the last best offer made to the union (better overall
package).
3. *Exception to LBO implementation: NLRB has carved out an exception to
impasse rule, the last best offer cannot give the employer unlimited control.
a. Ex. discretionary wage proposals (McClatchy Newspapers NLRB said this
undermined the purposes of collective bargaining)
f. Role of Impasse in Bargaining
i. If a legal impasse is reached
1. Firm can unilaterally implement its last, best offer
2. Parties may submit to third party intervention (ex. mediation)
3. Parties may agree to continue to work under the old contract
4. Lockout by employer
5. Strike by empleoyees
ii. Elements of Impasse
1. Good faith of the parties in negotiation
2. Mandatory subject of bargaining
3. No realistic possibility that continuing negotiations would be fruitful
iii. Still have duty to bargain if parties are willing to bargain again; parties remain obligated to
attempt to negotiate an agreement in good faith
iv. Insistence to impasse on agreement concerning a permissive subject of bargaining is a per se
violation. Borg Warner.
1. So how do you do it? Offer something you know that they want in exchange.
2. Ex. I know you want this union check-off and 5 cent raise. How about I give you
that and you give me this court transcriber at the bargaining agreement.
v. Even if at impasse, Board cannot reach agreement for the parties. .
1. H.K. Porter Co. (446) - Dispute was about a check-off clause. Held that the Board
could not order them to put in the check-off clause, even though the dispute was
about that specified issue and ER was not GF bargaining over that. (requested
remedy to bind the employer to a specific contractual term). SCOTUS
overturned, held that Board cannot enforce its substantive provisions on the private
bargaining process. Board cannot put in its own substantive measures. Board does
have the power to require employers and EEs to negotiate, but not to impose
substantive provisions
2. Rationale: NLRA is grounded in the premise of freedom of contract
3. This is true even though the COA concluded that they check-off clause being ordered
may be the only means of assuring the Board, the court, that the employer no longer
harbors the illegal intent
vi. **Union and Er may disagree that true impasse has been reached and file a charge of an
unfair labor practice for failure to bargain in good faith. The NLRB will determine whether
true impasse was reached based on the history of negotiations and the understandings of both
parties.
E. Bargaining Remedies
1. The NLRB can order the parties to discuss a term but they cannot order them to agree to: Board can order the
ER to sit down and bargain (Gissel bargaining order)
a. H.K. Porter: Court can order parties to bargain and can hold them in contempt if they do not
b. But neither the Court nor the Board can order the parties to agree to anything (no duty to agree)
2. The Board CANNOT order specific substantive clauses to be in a CBA.
a. H.K. Porter Co. (446) - Dispute was about a check-off clause. Held that the Board could not order
them to put in the check-off clause, even though the dispute was about that specified issue and ER was
not GF bargaining over that. (requested remedy to bind the employer to a specific contractual
term)
b. Board cannot order wage increases.
i. If a company that had engaged in a pattern of ULPs increases the wages of its non-union
workforce by 5.5% but bargains with its unionized workforce for no more than a 4.5%
increase, may the Board order the 1% increase as a remedy? NO - the Board cannot order a
wage increase; the Board has no authority to order a wage increases. Same ban on Board
putting in substantive contract provisions applies.
3. If there is a challenge tos certification, Board cannot declare a make-whole order (an order which allows Ees to
get what they would have gotten had the certification not been challenged).
a. Ex-Cell-O Corp. (NLRB pg. 646): Eer refused to bargain while it challenged the unions
certification for 2 years. Trial Examiner suggested make-whole agreement for the time that had been
attempting to secure injunction, goig through review. The NLRB determined that it does not have the
power to order back-pay b/c it would in essence be writing an agreement for the parties.
i. Held: cannot order the employer to provide monetary relief or make whole remedies to
employees, even if the employer unlawfully refused to bargain. Either party has the right to
use economic clout to defeat the other party at the bargaining table
ii. A remedy that seeks to go beyond bargaining order by also remedying the past effects of
employers unlawful is ALSO not allowed under the rationale of H.K. Porter amounts to
substantive making by Board.
b. Board has no authority to order a wage increase (prob 3, 458)
4. But, if there is a strike and then an ULP is found, EEs can get backpay and reinstatement


IV. UNION COLLECTIVE ACTION: STRIKES, PICKETING, BOYCOTTS, HANDBILLING

What actions can the EEs do and what can the ER do to respond - it is an 8(a)(1) violation if an employer interferes or
restrains concerted activity it can also be other ULP (i.e. 8(a)(3) for discriminating against those who act)


Types of Employee Action Types of Employer Responses to Strike
-Unprotected Strike
-Economic strike
-Sympathy strike (refusal to cross
another unions/employees picket line)
-ULP strike
-Slowdown (unprotected)
-Walk out [check again] (not getting
paid) (protected: cold people)
Fire the strikers (ULP, will be subject to reinstatement and backpay)
-Temporarily replace strikers
-Permanently replace strikers (only in economic strike)
-Superseniority to replacements and non-strikers (will probably be ULP: Great Dane
test) (Erie Resistor)
=Withholding benefits from strikers (will almost definitely be ULP: Great Dane test)
-Lockout employees (full lockout) (will be OK) (American Shipbuilding; Buffalo
Linen)
-Partial lockout of EEs (likely ULP, IBEW)

A. Protected Concerted Activities
1. Introduction
a. If determining unions activity (It is a section 7 right for employees to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection
i. Protected: under 7 it is not protected if it is an illegal act or has an illegal ends or means
(the illegal ends doesnt even have to occur look at what the intent was) and involves
EMPLOYEES, AND
ii. Concerted: Joint activities done by or for a group of workers or whether another Eee is
trying to solicit or induce the support of other Ees (can be concerted w/ one person acting
alone IF it is soliciting or acting on behalf of others)
iii. For Mutual Aid and Protection: the ends of what they are doing
a. If determining employers activity: Was unions concerted? Was unions protected? Was
employers response protected within the NLRA?
i. Was the employees activity concerted activity
ii. Was the employees activity protected by Section 7 (protected activity)?
iii. If the employee has engaged in concerted protected activity, does Section 8(a)(1) or Section
8(a)(1) make the employers response to that activity violate the Act?
8(a)(1): employer acts in some way to restrain or interfere with the employees exercise of their right
to strike, picket, engage in that protected activity: because it is protected by Section 7, the same way
employer interfering with, ex., solicitation is a violation of NLRA.
8(a)(3): employer makes hiring/firing decisiosn in response to the employers protected activity
(protected by Section 7), if the employer discriminates in the hiring, rehiring, firing, or benefits of
those who have engaged in protected activity.
2. Unionized vs. Non-unionized Employees
a. Section 7 protects both unionized and non-unionized employees, if the employees actions were
concerted and for the purpose of other mutual aid or protection
b. The rights of non-unionized employees here are both broader and narrower: can take direct action
unlike in Emporium Capwell, where there was a union in place and they couldnt directly picket the
employer (because had to go with union, there was an exclusive rep regarding WTC of employment in
place). At the same time, the rights of unionized employees are broader many times, ex. Weingarten.
c. Regardless of union/non-union employees have an absolute right to file a complaint
i. With OSHA
ii. With Courts
1. Except Title VII rights are wavied
iii. With legislative representatives
1. Keiser Engineers was protected even thought it was to legislature
3. (1) Concerted Activity
a. If employees engage in activity that is protected by 7: they can exert this muscle on employer and
have some recourse against firing, even if the are not in a union.
b. 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.
c. Usually one or more people engaging in concerted activity for the purpose of mutual aid or protection
within the employment (employer-employee) relationship. Does not require the union if it is concerted
(2+ people).
1. Washington Aluminum (1962): Employees walked out b/c plant was too cold. Held:
Concerted activity, even though not directed by the union. Still protected. The 2+ people
participated together, for their mutual aid and protection (within the employment relationship).
Company was held to have violated 8(a)(1)
2. Can be even just two even if no one else agrees. Jasper only 2 of the 50 employees were
cold, or ex. if two employees in a non-unionized workforce go and talk to the ER about bad
lighting on factory floor.
3. can be concerted activity if approach someone else Fabozzi sexual harassment suit (Holling
Press)
d. There can still be concerted activity even if union has waived right to class action suit.
1. Can still have concerted activity even if the EEs have waived their class action right: the
Board has held that the FAA does not prevent concerted action; a class wavier under the FAA
(in which the EEs say that they will not pursue suit, will only arbitrate) does not preempt
protection of the 7 rights.
e. Individual can be concerted activity
2. Non-unionized individuals
1. If acting as spokesperson- Individual can be concerted activity in trying to gather
other employees or if acting as a representative of at least one other employee
(example: as a spokesperson for all of the employees, and then the individual person
talks to the plant manager). But contrast: the employer is not acting on behalf of
other employees if just (without CBA) talking about something affects the other
employees without acting as spokesperson.
a. Ex. if the employee talks to ER about poor lighting on the factory floor,
employee can be fired because of this complaint without violating 7, was
not concerted if just going on your own to talk to the employer (and no
Interboro because no CBA).
2. If concretely linked, analogous to spokesperson ex. If (without CBA) person is
acting as spokesperson for other workers about equipment/safety issues for many
employees.
a. If have an individual saying its unsafe and was a tool that was unsafe for
every worker, identical tool, could be seen as a spokesperson even w/o CBA.
But if no one else agrees with him: this wouldnt be true.
b. The activity of the single EE has to be concretely linked to the other
employees.
c. Also complaining about machine/equipment after it was fixed and no one
else felt that way: not concerted
3. Unionized individuals, if have CBA: Interboro Doctrine
a. Interboro Doctrine: If an employee asserts a right to an employer that is (1)
reasonably directed to a right in the collective bargaining agreement, and (2) the
statement or action is based on a reasonable and honest belief that he is being asked
to perform a task not required to be performed/that conflicts with the CBA, then it is
concerted activityeven if Ee is acting alone.
i. City Disposal (SC, 461) - Employee was fired because he refused to drive a
truck, he said that it was unsafe, but was alone. CBA had provision about
driving safe trucks. Held: this was concerted activity. The employee was
asserting a right under the CBA, even if was by himself, with his own
interest immediately in mind, this right was grounded in CBA, these rights
go to the rights of all employees, was engaging in concerted activity.
b. Application of Interoboro
i. Incorrect EE: Will be concerted activity even if the EE was incorrect in
understanding of the CBA
ii. Own interests: If the persons statement or action is directed to a right in
the CBA/a right that is ground in the CBA, it is okay (still for mutual aid and
protected, and concerted) if they have their own interests most immediately
in mind (City Disposal)
iii. Only about them: Will NOT be enough if it is only for the one EEs benefit.
1. If guy goes to the employer because the mourning policy is unfair
as applied to them, this is not concerted action, it is not for the
mutual aid and protection. Safety issues like City Disposal are a
good contrast: his safety most in mind, but also the safety of other
people who would drive this truck would be affected.
iv. No griping: Gripinga personal complaint to ER about something that is
only remotely related to the CBAwill not be protected.
1. If employer discharged an employee for purely perosnal griping,
the EE could not claim 7 protection. Cannot only be remotely
related to the CBA; must be some thing that is from the CBA,
could be enforceable by arbitration; at some point, an individual
EEs concerns may become so remotely related to the actions of
fellow employees that it cannot reasonably be said that the
employee is engaged in concerted activity
4. Weingarten Rules: Employee Interview
a. NLRB v. Weingarten: Where there is a collective bargaining relationship and the
employer calls an employee in for an interview and the employee reasonably fears
that discipline against them can reasonably be expected to follow he may request
that a union representative be present
i. Employer is not bargaining with the union rep, the union rep is just there to
help with the interview.
b. Weingarten, Inc. (SC, 472) employee had a right to have a union representative in
the interview she had with employer when the interview was for investigatory
purposes of her that she reasonably feared would result in her discipline.
5. Rules for Weingarten right to apply
a. Only applies where the employee requests representation as a condition to
participating in the interview
b. The employee must reasonably fears that discipline against them can reasonably be
expected to follow investigatory or disciplinary interview
c. Weingarten: the right was concerted for mutual aid because about how the employer
disciplines his employees.
d. The union representative is safeguard interest of all the EEs in bargaining unit by
accompanying to a disciplinary interview .
e. Not a decision already made
f. No Weingarten right arises if the employer intends merely to communicate a
disciplinary decision previously made
g. There is a union in place! The Weingarten right does not extend to non-union
employees.
i. IBM (474)- no similar protection for coworkers; coworker doesnt represent
the intrests of the entire workforce, does not have same skills as union rep.
h. Other rules
i. Weingarten rule can be waived in the CBA
ii. If the interview is to happen immediately, they dont get to have the person
in the room with them, but must allow the EE to have a confidential meeting
with the union steward first
iii. Doesnt give EE ability to choose their favorite union steward
iv. The employer may not limit the role of a representative to that of a silent
observer
6. Union repsrenative who seeks to accompany an employee to the investigatory or disciplinary
interview cannot be disciplined for seeking to do so. Intl Ladies Garment Workers.
7. What ER can do if EE requests union steward
a. Grant the request
b. No longer have the disciplinary intervie
c. Offer the EE a choice between
i. No interview at all OR
ii. Continue the interview without having a union representative with them
iii. (Rationale behind these: there is nothing that says a union member has to
have an interview, only that if they do have the interview, they are entitled to
representation: but it wont look good for the ER in arbitration if not
interview)
4. (2) For Mutual Aid and Protection
a. Employment Relationship
ii. For collective bargaining or other mutual aid and protection: Concerted activity must be
dealing with the employer-employee (employment) relationship in order to be for mutual aid
and protection. Mutual aid consists of improving the actual working conditions of the
employees. But as long as the activity can be viewed as furthering the employees interests as
related to their employer, it will be for mutual aid and protection.
iii. Employment relationship construed broadly
1. Eastex, Inc.(482): employees sought to distribute the union newsletter in
nonworking areas and during nonworking time. The union newsletter appealed to
employees to write to state legislators and oppose incorporating a right to work law
into the states constitution, noted Presidents support for unions, and urged
employees to register to vote and vote for pro-union candidates. Held: Topics in the
newsletter are for mutual aid and protection, thus, must allow distribution of the
newsletter. Construe employment broadly.
2. Limit on Eastex - the protection does not extend to the point at which the
relationship becomes so attenuated (to work as employees) that cannot be thought of
as for the mutual aid and protection of al employees
a. Harrahs (487) one of the employees has an idea for how the management
could be more profitable. Distributed leaflets. Was not held to be protected
as mutual aid and protection was not about the employee as an employee.
b. Employment Relationship
iv. For collective bargaining or other mutual aid and protection: Concerted activity must be
dealing with the employer-employee (employment) relationship in order to be for mutual aid
and protection. Mutual aid consists of improving the actual working conditions of the
employees. But as long as the activity can be viewed as furthering the employees interests as
related to their employer, it will be for mutual aid and protection.
v. Employment relationship construed broadly
1. Eastex, Inc.(482): employees sought to distribute the union newsletter in
nonworking areas and during nonworking time. The union newsletter appealed to
employees to write to state legislators and oppose incorporating a right to work law
into the states constitution, noted Presidents support for unions, and urged
employees to register to vote and vote for pro-union candidates. Held: Topics in the
newsletter are for mutual aid and protection, thus, must allow distribution of the
newsletter. Construe employment broadly.
2. Limit on Eastex - the protection does not extend to the point at which the
relationship becomes so attenuated (to work as employees) that cannot be thought of
as for the mutual aid and protection of al employees
a. Harrahs (487) one of the employees has an idea for how the management
could be more profitable. Distributed leaflets. Was not held to be protected
as mutual aid and protection was not about the employee as an employee.
b. Third parties would not be employment relationship
i. If the employees action/conduct deals with a third party, the activity will generally not be for
mutual aid and protection of the employees because it will not be about the employment
relationship as between the employer and the employees. (harsh results)
ii. Merely raising safety or quality of care concerns on behalf of non-employee third
parties is not protected under the act.
1. And look at the communications themselves to determine.
2. Ex. School bus drivers to parents: Your children arent safe because of unsafe
neighborhood, high levels of crime. - not about the employer-employee relationship.
iii. Examples
1. Orchard Park -- efforts to improve working conditions and terms of employment are
mutual aid and protection, but not efforts to improve conditions of third parties. But
the nurses who complained to the Patient Hotline not concerted activity. Orchard
Park Health the employees saw that their patents were very hot. They dialed the
Health Care Patient Hotline, and the coworkers were together they said the patients
wee very hot. Nursing home administration discipline the employees. Is this
protected activity no it was about the third party of the patients.
2. Five Star -- Applies (as they all do) for prospective employees also school bus
drivers had sent letters to school board saying that this employer had molesters,
didnt protect children, then their company didnt get the schools job, so they
applied for jobs with the company they had criticized. Some of the peoples letters
were protected if they talked about the employment relationship. But some letters
were only about the safety of the children at stake did not indicate about the
safety of the drivers, or the employment (company-drivers) relationship.
c. May be read more narrowly
i. Sexual harassment case was not deemed to be for mutual aid or protection (472) woman
discharged after she asked other woman who had also been sexually harassed to testify about
other instances. Issue: Did Section 7 cover her conduct of trying to persuade co-employees to
testify in support of her in her sexual harassment? (aka, was this an ULP?)
ii. 1) Was her activity protected by Section 7?
1. Concerted - yes, approaching another person is
2. For mutual aid and protection HELD: NO.
a. Contrasted with Eastex (was for benefit of all employees), held here this was
particular to her sexual harassment distress, was motivated by her own
situation rather than the wellbeing of the group. The Board thought that
the possibility that Ms. Garcia might in the future suffer a like injury for help
was too remote and speculative.
3. Protected method/means therefore dont reach this question
iii. 2) Was this 8(a)(3) firing? No, her activity was not protected by section 7
5. (3) Protected: Issue of what is protected vs. unprotected activity.
a. Were the means that the activity was undertaken within the scope of 7?
b. There are no legislative guidelines, Board/courts just going off discretion here: but is critical, because
it will either render the employees immune or susceptible to discharge
c. Protected Activity: lawful strikes, lawful pickets
d. Unprotected Activity: activity will be unprotected when it falls in one of these categories
i. Even if activity was concerted, was for mutual aid and protection, if it is unprotected, it will
not be covered by section 7. If the EEs are discharged because of this activity, their discharge
will not because of protected section 7 activity.
ii. These activities would be unprotected:
indefensible, reprehensible
disloyal
sitdowns, slowdowns
economic pressure for permissive
against the spirit of NLRA
violence
secondary boycotts
property damage
not acting within proper time guidlelines: strike during cooling off
waived means


Type of Unprotected Activity:
Is the activity
Example / Contrast with Protected Activity
Indefensible or
reprehensible
Aroostook: medical employees complaining about working conditions while treating
patients).
Breach of confidential
information
Breaches duty of loyalty - Breaching with confidential information would be
breach of duty of loyalty even if its about the W/T/C of employment
Product Disparagement or
disparagement of business
activities
Breaches duty of loyalty

-Jefferson Standard (EEs picketed and then commenced a campaign criticizing the
quality of the stations programming, not about their work conditions, just against the
quality of the employers programming); passed out 5000 leaflets to public, leaflets
signed WBTV technicians.

-Can breach as current employee or as prospective employee: Five Star
Transportation (2007) (union was up against a non-union company, union people
wrote to school board saying that the company was reckless incompetent
negligent EEs said that they were not hired in violation of 8a3 (not hired because
of protected concerted union activity motive); Board held that their activity was not
protected, it was disloyal within the meaning of Jefferson Standard.

But, Media General Operations (4th Cir. 2009) held that employees reference to
companys vice president as a stupid fucking moron was protected.

Includes Boycotts unless protected, the Eer can discipline with no violation of
8(a)(1). You can ask the public to boycott the product, if you are on strike, but you
cannot ask for a public boycott, if the Ees are still working (Jefferson Std- SC).
But, still cannot disparage even if you are on strike: can hav long-lasting effects
even if on trike still cant disparage.
False allegations or affadavists
concerning the employer that
are deliberate or malicious.

Breaches duty of loyalty

But its okay to make false allegations if they are not deliberate/malicious.
Sit-down




Walkout



Occurs when EEs refuse to do their work in plant. Ex. where ER had to close the
plant and the EEs wouldnt leave was unprotected (Fansteel): caused property
damage also. Exception: if very minor, maybe half an hour



**Trompler, Inc (338 F.3d 747) (walkout in protest over a supervisor: protected)
Is it protected for employees to walk off about a supervisor?
In general: maybe not. but here, it is protected if the supervisor was





Walking out when pots were
full of hot steel
protesting an ULP.
But the termination of the supervisor herself would be unprotected.
AND walking out because the supervisor was getting disciplined (vs.
protesting an ULP) would not be protected.

Now you are getting into dangerous to people/property, creating a high risk of
danger: not protected.
Slowdown Work stoppage as a concerted activity is not protected activity if it is not a direct
strike the slowdown is where they are still getting paid. This means of concerted
activity is not protected. Elk Lodge.
Contrast with a strike: employees are not getting paid, it is protected.
i.
Economic pressure for
permissive subject
First, a unions use of economic pressure falling outside the scope of mandatory
bargaining will constitute a refusal to bargain in good faith. Therefore, employees
therefore the engage in concerted activity about permissive subjects will NOT be
protected

Violence Tort or criminal violations are unprotected. However, there is a tolerable limit
there is some point at which conduct on the picket line is tolerable, must be tested
by the norms of industrial confrontation; policies and norms of 7 must supersede
even state criminal or tort law. Initially it is the job of the Board to determine which
activity should be deemed unprotected because its closeness to assault, slander, or
trespass and/or irresponsible.

Property damage or creating
risk of injuries
-Harm to property
-Trespass
-Sabotage of plants if use these means, unprotected activity
-Walking out at a time that poses uncommon risk of injury
Example: especially strikes/walkouts that are timed to create an uncommon
risk of injury to the employers plant or spoilage to the companys goods or
to the goods of others which the company is processing. Marshall Car
Wheel (491) unprotected where employees walked out of the plant at a
time when there was a lot of hot steel and molten iron. Even if they had been
walking out (concerted) about their employer-employee relationship (mutual
aid and protection), means unprotected.

Against the spirit of the NLRA Ex. 1.: where object of the striking EEs is to induce the ER to discharge a worker
because he is a dissident voice within the union (trying to get ER to commit and
ULP).
Ex. 2: Trying to get an ER to do something that is against federal regulations.
Employer could discharge. American News Co
Ex.3: going around the exclusive representative. Emporium Capwell. (even though
their goals were laudableracial discrimination, and Title VII, another federal EE
law), when they were doing it without the endorsement of the incumbent union it did
not supsersede the exclusive rule of NLRA, peaceful activity was therefore
unprotected. waived
**Time guidelines Calling a premature strike w/o a cooling off notice period sixty day cooling off
period before the end of the contract after the open window closes.
Employees who engage in a premature strike are subject to immediate discharge.
Participating in waived means See below
Secondary Boycott/exerting
secondary pressure
See below
EE repeatedly challenged the
supervisors order, or EE does
something against their job
responsibilities that is not 7.
Not protected listen then grieve
Participating in Waived A union can waive protected activity: can waive strikes, sympathy strikes,
Means slowdowns. Then, activity that was previously protected becomes unprotected.
Effect of waiving means: Not prohibited by NLRA but the action is NOT protected.
AND Employees can be discharged for participating, and can be met with employee
discipline for their actions w/o shelter of 7.
What can be waived: right to strike, right to cross picket line, right to have union
officials not be more disciplined (aka can allow the union officials to be more
disciplined) noted in Metropolain Ediso. But CANNOT waive solicitation-
Magnavox



B. Strikes and Lockouts
1. Introduction
a. Striking is statutorily protected
i. The peaceful work stoppage is one of the activities protected in NLRA by Section 7. But
Congress has also expressed desire for disagreements at bargaining table to be resolved
without recourse to economic weapons.
ii. It is the presence of effective weapons held in reserve by both sides that encourages
negotitation and settlement within the NRLAs collective bargaining framework
1. Point of a strike is to force an opponents hand.
2. Strike is an economic negotiating tool; collective bargaining works because the
parties conclude that the risk of losses through a strike are so great that compromise
is cheaper than an economic battle.
b. Limitations on strikes
i. Consequences of violation: union
1. If a union strikes in violation of the recognized limits on the right to strike, the strike
will be unprotected and strikers can be discharged with little or no recourse no
reinstatement, no longer employees.
2. If strikers engage in unprotected violence or sabotage, can also be fired.
ii. Consequences of violation with limitations on employer response
1. If ER responds improperly to threats to strike or to the strike itself, commits an ULP.
2. The strike is then converted into an ULP strike, and the ER can lose the ability to hire
permanent replacements for strikers and may have to reinstate the strikers with
backpay.
2. Notification and the Cooling Off Period
a. Notification Requirement
i. Section 8(d)(1) requires that any party desiring to terminate or modify an existing collective
bargaining agreement must serve written notice on the other party at least sixty days before
the expiration date of the contract. If the contract does not provide an expiration date, must
provide notification sixty days prior to the time when the termination or modification is to be
made.
ii. Then, the party has to continue in full force and effect, without resorting to strike or lockout,
with all of the terms and conditions of the existing contract for sixty days after the notice is
provided or until the contract expires, whichever occurs later.
iii. Health care industry has 90 day notification period, 10 day notice of intent to strike or picket.
b. Strike is unprotected if during the cooling off period
i. If you have a strike during the last 60 days of the contract that is economically motivated
and/or aimed at termination or modification of the agreement, the strike is not a protected
concerted activity (Mastro Plastics)
1. But what about after the contract has ended?
ii. Failing to comply with the provisions = an unlawful refusal to bargain within 8(a)(5)
(employer, if does lockout) or 8(b)(3) (union ULP) this applies to both union and ER.
iii. And any employee that strikes within the cooling off period loses his status as an employeeof
the employer for purposes of Section 8 (employer ULPs), 9 (representation), and 10 until
reemployed by employer.
c. Exception: ULP strikers (Mastro Plastics)
i. 8(d) addresses economic strikes, not ULP strikes you can always strike for a ULP,
UNLESS: there is a no strike clause (general no-strike clause) and not a serious ULP.
1. In Maestro, the union had struck one month after it had given ER notice of its desire
to negotiate new terms, but it was still protected because the strike was to protest the
discharge of a union supporter and the employers unlawful assistance to another
union seeking to displace the union.
ii. Exception 2: national emergencies
d. Two Types of Strikes
i. Economic strike: anything that is not a ULP (Ees looking to improve wages, hours and
working conditions, bargaining power during negotiatons)
ii. ULP strike: If the NLRB finds an antecedent ULP (it is not a ULP strike if the union believed
there to be a ULP but the NLRB didnt find one)
3. Effect of a Strike on the Duty to Bargain: the duty to bargain continues when there is a strike; strike does not
suspend the bargaining obligation.
a. Insurance Agents Intl Union: In general, a unions resort duing negotaitions to a peaceful work
stoppage does not in itself violate the duty to bargain in good faith.
b. The duty to bargain does not terminate when there is a strike. Strike is a means of putting pressure on
the employer by the union during bargaining process.
c. CONTRAST: but employer did NOT violate the Act when refused to continue contract negotiations
with a union engaged in an unprotected slowdown. (Phelps Dodge)
i. Board: Slowdown negates the existence of honest and sincere dealing in the Unions request
to negotiate in these circumstances.
4. Unprotected Strike Activities
a. Violence
i. Violence in Strikes unprotected. If strikers engage in violence or sabotage, the strike is
unprotected, they can be discharged. 670- 673
1. Agency principles apply
2. Never a protected activity; union violence is an ULP, 8(b)(1)(A)
3. Result of violence =>
b. Striking Before Impasse
c. Striking Before Cooling Off Period (above)
d. Striking in Violation of No-Strike Clause
i. No-strike clauses are a waiver of a section 7 right
1. Another waiver was in Emporium Capwell: employees could not engage in concerted
activity outside of the union
2. Strikes in violation of the contractual no-strike clause are unprotected, EEs able to be
discharge for their strike. Also can be subject to injunction: Boys Market injunction.
3. If a strike is wavied and employees join a proscribed strike, they lose their protected
status as employees and their right to reinstatement
4. Strikes in violation of a no-strike clause can be met with employer discipline without
recourse for employees
ii. Scope of no-strike clause
1. Applies to economic strikes (Mastro)
2. Normal no strike clause does not extend to sympathy strike (unless have a no
sympathy strike provision in the CBA). (Buffalo Forge)
a. Sympathy strike = employee refusal to cross a picket line.
b. Buffalo Forge (SC, 740): the limits of Boys Markets rule company had a
no-strike clause, management and production EEs refused to cross picket
line of the clerical EEs who were on strike. ER sought injunction, court
refused- the sympathy strike was not an arbitrable grievance was not in the
CBA. Did not meet the first part of the test, this was not in the CBA, was not
an arbritable grievance, no injunction.
3. Does not apply to ULP strike.
a. Mastro Plastics v. NLRB: No, when a strike is motivated by ULPs and not
economic reasons it is not waived. The prohibition against any strike in
the agreement deals solely with strikes with economic motivations
iii. What are an employers options when faced with a strike in violation of no-strike clause?
1. A 301 action
a. 301 suit to compel arbitration for breach of contract if have no-strike clause
b. If meets all requirements => can have a Boys Market injunction
c. 301 suit for breach of contract if no arbitration clause in the CBA
2. A 301 action for damages caused by the strike
a. Consider this whenever ER has sustained damages => can look to 301 for
breach of the contract and get the damages
3. 8(a)(5) ULP charge?

e. Rights of employees who engage in unprotected activity during a protected strike (546)
i. Violence/threats of violence by the EE that are unprotected conduct: NO LONGER Thayer
Rule (where could be reinstated. NEW RULE: Clear Pine Mouldngs nonviolence or
verbal threats of violence => lose protection as a ULP striker for reinstatemfent and
backpay => even if its because of a ULP strike CONTRAST Thayer, where even
if EE did unprotected conduct in strike could still be reinstated if ERs conduct was very
severe).
ii. Clear Pine Mouldings balance approach
1. ER was being struck for what ultimately found to be violations of 8a1, 8a3, 8a5. But
the employees engaged in abuse, threatening behavior. Can they still be reinstated?
2. Held: NO the balancing test of balancing the employers wrongs (ULP) against the
employees unprotected activity (such as violence, threats) encourages threats, bad
PP, therefore not reinstatement

5. Employee Refusals to Cross Picket Lines
a. Refusal to cross a picket line at the employees own company
i. If the picket line is at the employees own company, it is definitely protected activity (the
employee who honors it and refuses to report to work will be deemed if the picket line is a
product of a lawful strike or picketing to be a participant in that lawful strike or picketing,
also protected against discipline by 8a1.
ii. On the flip side, if the employee supports an illegal picket line by not crossing it, ex. the
picket line is incident to a secondary boycott in violation of Section 8(b)(4), then the
employers act of aligning himself with the picketers will also be unprotected activity, even
though he himself is not on the picket line but is instsead just supporting it. This employee
can then be subject to discharge.
b. Refusal to cross a picket line at another company
i. This is concerted (even though the employee makes the decision himself) activity and it is
protected activity under section 7.
ii. Reasons to support this as a protected activity
1. Showing support for others in labor movement who may one day support that lone
EE: concerted as employees together, suggests something similar to Jefferson
Standard.
2. Not the same as secondary boycott, 8(b)(4): to respect a picket line isnt designed
to exert harmful economic pressure to make concessions in bargaining.
a. It is not a situation where they have beef with another; rather, these
employees are supporting the primary strike.
b. Can equate it more to incidents of a primary strike rather than secondary
activity.
c. But, the right of employees to refuse to cross a picket line can be waived by the union in the CBA.
i. But if there is only a no-strike clause, this does not preclude sympathy strikes.
ii. If a no-strike clause though, Buffalo Forge
1. Buffalo ForgeRule: Held that a Boys Market injunction was inappropriate for a
sympathy strike. This was a sympathy strike in support of other employees at the
plant, the clerical and technical workers, who were striking, and the production and
maintenance employees refused to cross the picket line. The Supreme Court denied a
Boys Market injunction the no-strike clause and grievance procedure in the
company and unions contract did not cover this; was a sympathy strike.
d. Effect of refusing to cross a picket line: can the employer be discharged?
i. NO, if a sympathy striker (someone who refuses to cross a picket line) is fired because of this
activity, that is 8(a)(3) violation, ~ to if someone were fired because of a strike. Hired/fired
based on protected union activity.
ii. Therefore, if the purpose of the purpose of the primary strike is lawful (i.e. is not a secondary
boycott), the ER has violated 8(a)(3) if they are fired.
1. If they stop work, employer can hire replacement worker
2. In addition, ER can hire replacement for the work that the original employer (the
sympathy striker) is refusing to doex. the replacement will deliver to the place
where the employees are striking.
3. BUT the employer cannot otherwise hire a replacement for a sympathy striker (again,
cannot discharge because of this).
iii. Excetpion: if the EE supports (refuses to cross a picket line of) an illegal strike.
1. Then the Eee is in violation of 8(b)(4).
2. And the effect of engaging in unprotected activity => the employee can be
discharged (in determining whether activity is unprotected or protected, the stakes
are high; the employee is either immune or susceptible to discharge CB 488).
6. ULP Strikes vs. Economic Strikes
a. Converting between
i. Employers actions can convert the strike (545)
1. Laidlaw Corp -- Was an economic strike but then during the strike the company
notified the strikers of their termination, became an ULP strike.
2. Strikes can start out as over bargaining demands or demands for recognition and then
during the course of the strike the employer commits an ULP like refusing to bargain
with a certified union or discriminatory discharging of a union supporter (Laidlaw)
3. Then the union can prolong the strike for the ULP
ii. If the employer responds improperly to the strike
1. Then ER commits an ULP
2. Strike is converted to an ULP strike
3. If Board finds ULP, employer cannot hire perm replacements for the EEs, which is
one of the most important weapons for the employer. And has to reinstate and pay
backpay for the employees when the strike is over (and discharge temporary
workers)
iii. If employer improperly discharges a striker or fails to reinstate a striker when it has a duty to
do so, it can be ordered to reinstate the striker and pay backpay.
1. This applies for both ULP and economic strikes: ER might not reinstate when there
are vacancies because of strike activity. This would violate 8(a)(3).
2. And definitely violates in ULP if doesnt replace when strike is over.
b. Waiver for an economic strike (or for a strike in general) will not be interpreted as a waiver for ULP
strike. (Maestro Plastics)

Economic Strikers ULP Strikers
Notice requirement: 60 days cooling off period, must
notify NLRB that going to modify or terminate contract
Not required to follow notice requirement (Maestro
Plastics)
Generic no-strike clause covers them NOT necessarily covered by generic no-strike clause
(Maestro Plastics)
Can be permanently replaced CANNOT be permanently replaced, temp replacements
ONLY
Indefinite employee status w/ preferential rehire (unless
none of the strikers can do the job in question), but no
automatic reinstatement with backpay.
Employer can hire temporary replacements, but striking
EE must be taken back as soon as strike is over
reinstatement with backpay
Eligible to vote in any election or decertification
election one year only after date strike began ( 9(c)(3)
Able to vote indefinitely in elections


[Employers Response]
7. Employer Interference with the Right to Strike
a. General
i. The right to strike is a protected (concerted, for mutual aid and protection) right of employees
under the Act. Employees who are on strike are still employees.
ii. Therefore opened up to 8(a)(1) or 8(a)(3) liability for treating the strikers differently
because of their protected activity (aka striking).
b. Discharging strikers
i. Discharging a strike for his or her involvement in a protected strike violates 8(a)(1) and
8(a)(3).
ii. If there was a no strike clause => ER can punish the strikers universally, randomly, or in
proportion to guilt (Midwest Precision Castings Co. STRIKE WILL BE UNPROTECTED
1. BUT in the absence of an explicit contractual duty imposed on union officials, ER
cant discipline the union officials more severely for work stoppage in breach of a
no-strike clause; this would violate 8(a)(3) (Metropolitan Edison Co.)
a. An employer cannot discipline union officials more severely than other
union employees for participating in an unlawful work stoppage, falls within
unlawful 8a3 violation. Rationale: holding that being a union leader is
protected activity, violates 8a3 when special punishment for that protected
activity
c. Employer inducements to striking EEs to return to work
i. Erie Resistor (507): ER gave super seniority to the people who did not strike or the
replacement employees, super seniority meant that the others would be first fired. IF you
return to work , Ill give you an addition 20 years seniority. Union filed ULP charge.
1. Court: this plan was inherently discriminatory (before Great Dane, but related) and
therefore was ULP interference.
2. Held: The Board concluded that the business purpose asserted was insufficient to
insulate the super-seniority plan from the reach of s 8(a)(1) and s 8(a)(3), and we turn
now to a review of that conclusion
a. This was a section 7 issue, was going to interfere/discourage union acitivty.
Therefore, balancing test balanced whether employers business needs
over discouraging striking, balance in favor of union.
b. And it involved benefits of employment, which is an 8(a)(3) issue (has to do
with payment, benefits these are 8a3 issues [payment or withholding
benefits]
d. Employer action related to payment or withholding benefits, either during strike or after
i. No obligation to pay employees during strike
ii. Once strikers come back, however, there is interference with strikes by treatment of former
strikers if: fire or layoff former strikers, discriminate against them w/r/t job assignments,
discriminate against them about benefits.
1. IBEW, Great Dane
2. Apply Great Dane test to see if what employer is doing is discrimination against
previous striekrs
iii. And employer can discontinue accrued benefits to employees or taking other action
withholding or discontinuing benefits, but will be subject to strict Great Dane test. In Great
Dane, it was shown to be inherently destructive and was an 8a3 violation.
1. Great Dane (520): discontinuing vacation benefits if you had been to work on __
date could you get the benefits, and that date was during the strike. It was accrued
vacation benefit. Held: the employer violated 8a3 and 8a1. Under the framework
below, once prove that inherently destructive action, burden is on ER to show that it
was motivated by legitimate reasons.
2. Other examples: discontinuing the sickness and accident payments on disability leave
when the strike begins; or trying to get employees to return to strike by super-
seniority.s
iv. Great Dane Test: Is the employers action based on union activity (of striking) and using that
as the basis for decisions in employees benefits, aka discrimination in violation of 8a3?
1. (1) Determine the effect on employees
a. Comparatively slight impact on employee rights, OR
b. Inherently destructive: Was the employers decision inherently
destructive of important employee rights?
i. Great Dane Court held that proved discriminatory conduct
carrying potential for adverse effect proven, ER didnt bring
forward evidence of substantial business reason for the decision.
2. (2) Relationship of effect to motive:
a. Comparatively slight => need motive if employer has come forth
w/business reasons. If the adverse effect of the discriminatory conduct was
only comparatively slight, need anti-union animus.
i. Can the employer refutewith business justifications? (Local
IBEW)
1. I s there a business justification being offered? =>Local
15 IBEW: When it has been established that ER conduct
negatively affects EE rights, can the ER can state a
business justification for actions?
2. Ex. operational needs, loss of customers, public safety,
extreme situation
3. Business justification can refute the 8a3 charge if the
impact on right of employees to strike is comparatively
slight. But if there is no business justification, cannot refute
even if comparatively slight.
ii. I f employer can refute, then General Counsel has to present anti-
union motive
b. Inherently destructive => ULP without motive.
i. If can reasonably concluded ERs conduct was inherently
destructive of important employee rights, such as the right to strike,
then NO PROOF OF ANTIUNION MOTIVATION IS NEEDED,
AUTOMATIC ULP.
ii. Employers actions are submitted to stringent test, such actions are
permissible only if after balancing the business justification against
employee rights, business justification is found to be superior.
iii. The Board does not have to show anti-union motive.
iv. AND even if the employer introduces evidence that the conduct was
motivated by business concerns, the Board can still find an ULP,
Board will balance the ERs right/business justification with the
Section 7 rights of the employees.
c. Justice Stewart/Harlan dissents: this is creating a different burden of
proving motive than in other 8a3 cases true.
v. Application of Great Dane test
1. Christmas bonuses based on productivity, no bonuses after the strike? Was okay: (1)
Board said this had comparatively slight effect; and (2) there was enough of business
justification for the comparatively slight aspect of the test.
8. Employer Countermeasures and Replacement Issues
a. What can an employer do when there is a strike?
i. Options for the employer are to continue operations with only supervisors or other non-
bargaining unit employees who are willing to cross the picket line. Or can try to invite strikers
to return to work, but cannot make inducements that would interfere with the strike or
discourage strike. OR, the employer hire replacements: the employer can always hire
temporary replacements, who work during the strike (ex. replacement refs during the
NFL strike), they must be willing to cross the BU employees picket line.
ii. OR the employer may be able to hire replacement workers greatest weapon, can totally
hire new people for their jobs. But if the Er hasnt bargained in GF or there canbe an ULP,
substantial liability. permitting use of replacement workers is part of the balance btw labor
and management, it is the ERs economic weapon to combat the economic pressure of the
strike (Belnap dissent)
b. Replacement Worker Rules
i. Ads for replacement workers or promises to replacement workers for perm employment
Belknap
1. After ER takes action that could constitute ULP (ex. ER unilaterally putting effect
raise for those who quit the strike to return to work, or for remaining workers), after
the charge starts, advertisements of permanent employment to replacement workers
would also be ULPs sbecause they could be viewed as threats to refuse to reinstate
ULP strikers, threats are ULPs under 8a1.
2. BUT a replacement K with a replacement promising perm replacement, subject to a
settlement with EEs union and to a ULP order directing reinstatement, would be a
contract sufficiently permanent to permit prevailing EE to abide by ERs promises,
and also would not be ULP threat against the ULP strikers that they wouldnt be
reinstated.
ii. Hire Temporary Replacements
1. Employer can hire employees to fill strikers jobs for the duration of the strike.
2. Employer doesnt have to bargain with the union about the temp employees. They
may be paid less than the strikers they replace. They dont have the right to vote for
union.
3. *Because strikers remain employees under NLRA, ER that has hired temporary
replacements, the employer MUST:
a. Reinstate strikers who make an unconditional application for reinstatement
(during the strke), AND
b. Must reinstate the strikers after the strike is over. The temporary workers are
only hired for during the strike.
c. Exception: if the strikers have obtained substantially similar employment.
d. This is what employer would have to do in ULP strike.
iii. Permanent Replacements
1. NO perm replacements in an ULP strike: where a strike is caused or prolonger by an
employer ULP. [How to determine if it is an ULP? Objective (bargaining disputes
btw parties, timing) and subjective (whether EEs think it is, ex. posters, flyers )
considerations] But ERs ULP need only be one contributing cause of the strike,
doesnt need to be sole cause.
2. Rule 1: Employer in economic strike can permanently replace the workers. ER is not
required to discharge the replacement workers when the strike is over -- even upon
the strikers decision to return their jobs. (MacKay)
a. Mackay Radio (504) If workers strike for economic reasons, employers
cannot fire the workers but can replace the workers with permanent
replacements, and employers are not bound to discharge those hired during
the strike to fill the places of the returning strikers.
i. President Clintons executive order thtat federal contracts couldnt
have perm replacements => struck down by D.C. Circuit in
Chamber of Commerce of the U.S.
3. Rule 2: But, replaced strikers remain employees under the Act and are entitled to
reinstatement when vacancies arise. And when the strike is over, ER may not
discriminate in rehiring strikers based on union activity if vacancies arise. IF ER
discriminates against the workers, it will be 8(a)(3) violation. MacKay Radio
a. Will be 8(a)(3) discrimination test; must show decision would have
happened otherwise because the strikers remain EEs (mackay) ex. if would
have refused reinstatement on grounds of skill or ability not because of
participation in strike. ER had to reinstate and backpay for the EEs who
didnt reinstate after there were vacancies.
b. However, employer can refuse reinstatement on the grounds of skill or
ability, but cannot refuse reinstatement based on participation in the strike
(and no finding of skill/ability here).
4. The employer has the right to retain the permenant replacements
a. If workers strike for economic reasons, employers cannot fire the workers
but can replace the workers with permanent replacements, and employers are
not bound to discharge those hired during the strike to fill the places of the
returning strikers. (Mackay).
5. But, Land Air (442) even in an economic strike, employer cannot hire replacement
workers that are all independent contractors in order to diminish the bargaining unit
(by having people who cannot be in unions?).
a. Rationale: the employees have a right to get their old work back as
competitors (not that reinstatement, but they can apply to this job again).
b. Exception: subcontracting OK if necessary to the business purpose of
keeping the plant continuously in operation and time of the decision is of the
essence- Hawaii Meat
iv. Rights of economic strikers who dont have reinstatement (Laidlaw)
1. Economic strikers who unconditionally apply for reinstatement at a time when their
positions are filled by permanent replacements
a. (1) remain employees: termination of an economic striker is a per se ULP,
cannot discharge strikers
i. Laidlaw ULP by ER when the employer terminated other strikers,
because they remained employees under the Act, and then they were
fired because of their stirking activity.
ii. Browning-Ferris (7th Cir.): the employer could not lawfully go
further and discharge the employee, as distinct from permanently
replacing; discharge severs the employment relationship entirely, it
is a violation of the employees section 7 rights.
b. (2) have preferential recall rights: when a vacancy opens, they can get it
i. And if they do not, can file 8(a)(3) for discrimination
ii. Economic strikers to be fully reinstated if there is a vacancy
c. (3) may still retain representation voting rights for twelve months afterward
(Laidlaw)
d. As a result in Laidlaw, the strike was converted from economic strike to
ULP strike.
2. Reinstatement rights of permanently replaced strikers
a. About reinstatement
i. Must continue to unconditionally apply for reinstatement in order to
be eligible. If there is a vacancy and the striker is qualified, he or
she should be reinstated. If there if not a vacancy => put on
preferential (recall) hiring list
1
=> wait for reinstatement when
vacancies occur
ii. But if a striker obtains substantially equivalent employment
employer no longer has duty to recall
b. If reinstated, reinstated worker is entitled to full reinstatement to the
same or substantially equivalent position as his or her prestrike job with the
same seniority and benefits and pay.
i. Laidlaw Corps (529) union went on strike, then employees were
rehired. They were reinstated at the rate of new hires. Employer
must reinstate at the same rates as before strike, here paying lower
rate violated 8a3 (benefits of the job are also part of 8a3
discrimination)- discrimination based on union activity.
1. ER was going to reinstate him as a new hire with lower
wages and benefits. Doing so appeared to be wholly
unrelated to any of its economic needs (** but could aruge
if it were related) and had effect of penalizing EE for
concerted, protected activity.
2. But, 8a3 analysis: would have been different if the
employer had offered
ii. TransWorld (SCOTUS, 533)- after the strike ended, the airline ER
was not required by NLRA to displace flight attendants who worked
during the strike in order to reinstate striking flight attendants with
greater seniority (there werent positions open not entitled to
displace them).
iii.
3. **If an employer fails to follow the rules here and reinstate a striker when there is a
vacncy, iER can be directed to reinstate them with backpay.

9. Lockouts: by the employer

1
Order is determined as a mandatory subject of bargaining
a. ****can the ER hire replacements when lockout? YES
b. ****can the ER hire perm replacements when lockout? NO

c. Definition: a lockout occurs when the employer determines the timing of a labor stoppage and advises
employees they may not return to work until a contract settlement is reached
d. HB: Notice requirements apply to lockout, the same as strike the employer wishing to lockout its
employees must file appropriate notices and observe waiting periods
e. As a Defense to Concerted Activities
i. Buffalo Linen (511) (Supreme Court, 1957)
1. The employees picked out one employer, said that they were going to go down the
line and strike employer by employer. After this happened, all of the employers
locked out the union.
2. But, the issue here: the union had called a strike at only one of the companiesbut
all of the employers in the multi-employer bargaining unit locked out their
employees. Was this a violation of 8a1 and 8a3?
a. Unions argument: In prior cases, the Board had authorized a lockout only
when reasonably necessary by the ER to anticipate a strike which would
otherwise have been timed to cause undue harm to the employers
equipment or business [defensive lockout]. But the Board added to the
defensive lockout in the Buffalo Linen case the idea of a multi-employer
defensive lockout.
b. Board: the multi-employer lockout was a legititimate response to union
concerted activity.
3. Supreme Court upheld the Boards decision employers can have self-help for
employers when the legitimate interests of the employers and employees collide.
a. Balancing: Employees can resort to self-help. Look at the interests of the
employer and the union in doing the lockout.
b. Legitimately balanced the interests here; permitted lockout where economic
hardship was sown, even when it was a lockout by all the members of the
mutli-employer bargaining unit and the union had only struck against one of
the companies.
4. The balance (8a1)
a. Right of a union to work (without lockout), engage in protected activities
(the strike against the one union)
b. Economic hardship to the employer who was being struck.
f. Offensive (Preventative) Lockouts
i. Offensive lockout (full)
1. Full offensive lockout: (definition) the use of a temporary layoff of employees as a
means to bring economic pressure to bear in support of the employers bargaining
position, after an impasse has been reached. In American Shipbuilding, held that an
offensive lockout was not per se 8a1 or 8a3 violation.
a. An offensive lockout as a bargaining tool is distinguished from
i. (1) Situations where the employer has used a lockout as a means to
injure a labor organization (Hopwood Retinning); and (2) use of
lockout to evade his duty to bargain collectively.
ii. Also, when ER shuts down his enterprise temporarily for reasons of
renovation or lack of profitable work unrelated to collective
bargaining situation, is a different situation than this less of
possible ULP (only was ULP when it was to chill related
subsidiaries).
2. American Shipbuilding (Supreme Court 1965) (512) no ER 8a1 nor 8a3 violation
when ER temporarily shuts down plant and lays off EEs after a bargaining impasse if
the sole purpose of bringing economic pressure to bear in support of the ERs
legitimate bargaining position.
a. 8a1 and 8a5 analysis
i. Held: No 8a1 violation. Employers lockout here was consistent
with bargaining with employees economic weapon. Duty to
bargain is not a right to bargain without having economic
disadvantage. There is a right to a work stoppage, but not to
determine the timing of work stoppage.
b. 8a3 analysis (also note: once negotiations were resumed, and occurred for 2
month until 2 year contract agreed on, employees were recalled the
following day)
i. Not inherently destructive that do not look to employers motive (as
in Erie Resistor), therefore must analyze the employers motive
(8a3).
ii. Trying to distinguish between operative or economic purpose
[which would not be an anti-union motive in 8a3] and between
anti-union animus, which would be if the ER were trying to
discourage membership in the union.
iii. Here, not the slightest evidence and no finding that the ER was
trying to discourage membership in the union.
c. Boards role is not to function as the arbiter of the sort of economic weapons
the parties can use in making their bargaining demands: here offensive
lockout was used to advance their bargaining demands.
ii. Partial Offensive Lockout
1. Analyze a partial lockout using the 8(a)(3) Great Dane test, like they did in Local 15
IBEW.
a. To justify a partial lockout on the basis of operational need, an
employer must provide a reasonable basis for finding some employees
necessary to continue operations and other unnecessary and it cant be
because of their past strike conduct.
b. Looks suspicious when it is partial, and especially when related to strikers.
2. Local 15 IBEW (523)
a. As a response to strike, company locked out and/or refused to reinstate
employees who were on strike at the time of the unions unconditional offer
to return to work, while not locking out the employees who were returned to
work after the unions offer or were not involved in the strike.
b. The court analyzed with the Great Dane test for 8(a)(1) or (3) violation
relating to employer responses to concerted activities.
c. Held that the ER did not offer justified business purpose and displayed anti-
union purpose.
g. Replacement Issues in Lockouts
i. Local 15 IBEW: company locked out and refused to reinstate employees who were on strike
at the time of the unions unconditional offer to return to work, while not locking out the
employees who were returned. was again Great Dane analysis, especially 8(a)(3).
ii. HB: Can use temporary replacements during the lockout if consistent with legitimate business
purpose.
iii. HB: perm replacements for lockouts could be union-busting method.
h. Good Faith Bargaining during Lockout
i. American Ship-building was also 8a5 allegation that by locking out, the ER wasnt
engaging in GF bargaining. Could havea bargaining weapons, but had to bargain.
ii. BUT required to be at impasse. Although American Ship involved a lockout that occurred
when the parties were at impasse, the Board has ruled that the absence of an impasse,
although a factor to be considered, does NOT automatically render a lockout unlawful. that b
iii. Other GF bargaining duties are also important during ER lockout
1. Failing to observe other GF bargaining duties (ex. providing relevant info to union if
union requests) can render the ERs lockout unlawful Truitt obligation duty to
disclose.
2. **Lockout is also illegal for the purpose of forcing agreement on a nonmandatory
subject
C. Picketing
1. General
a. RULE: Picketing is generally protected activity. Protected, concerted activity under Section 7.
Protected against discipline, interference, termination, etc. from employers under 8a1.
i. Picketing and handbilling are two forms of concerted activity that have traditionally been
used by employees and nonemployee union representatives to forward union goals.
ii. Goals of picketing: put pressure on the employer, or on someone else (not OK if secondary
picketing)
1. advertise that employer is not fair;
2. inform the public about employer;
3. protest the employers current ways.
b. Primary picketing against the primary employer is protected under 7 and 13 ("Nothing in this Act,
except as specifically provided for herein, shall be construed so as either to interfere with or impede or
diminish in any way the right to strike, or to affect the limitations or qualifications on that right")
i. But it can be prohibited by the CBA
c. General prohibition against non-primary picketing [ 8(b)(7)]: prohibits picketing "where an object
thereof is forcing or requiring an employer to recognize or bargain with a labor organization
[recognitional picketing]" or "forcing or requiring the employees of an employer to accept or select
such labor organization [organizational picketing]" "unless such organization is currently certified
as the representative of such employees."
i. If the employees block store entrances, swarmed around customers, and engage in other acts
of intimidation, then injunctive relief is appropriate
2. Although Section 7 classifies picketing as protected activity, Section 8 of the prohibits or limits picketing and
handbilling depending on several factors. Picketing is prohibited where:
a. (1) If it occurs during the 60 day cooling off period (does this apply for ULP picketing?)
i. Again: the cooling off period. Cooling off period: federal labor laws require a 60 day waiting
period before workers can strike to force a termination or modification on an existing
collective bargaining agreement. The terms of the agreement remain in full force and in effect
during this period, and any workers who strike OR PICKET during this period can be fired.
The 60 day cooling off period begins when the union serves notice on the employer, or
when the existing contract ends.
ii. BUT, this does not affect the rights to employees to strike in protest of some ULPs of their
employer.
iii. After impasse, there is a 60-day cooling off period ( 8(d)(4))
b. (2) If it is recognition picketing and goes on for more than 30 days without filing a petition for
election.
c. (3) If it is in the face of a provision for no picketing in the CBA
d. (4) Secondary picketing if it is a type of secondary activity. Secondary boycotts are banned
i. See below: secondary action
2. Picketing and First Amendment Protections
a. Thornhill v. Alabama the high point of First Amendment protection for picketing
i. Declared that in general peaceful picketing is within the First Amendments protection of
freedom of speech and is protected by the First and Fourteenth Amendments => The Court
has RETREATED from this position since then though.
ii. No longer First A protected just because picketing; picketing is distinguished from
speech.
1. Vogt: Discussing R/O picketing by union that had adverse consequences for
employer, where the state had ordered an injunction: Picketing by an organized
group is more than free speech since it involves patrol of a particular locality and
since the very presence of a picket line may induce action of one kind or another.
iii. Emphasis on value of free speech; No clear and present danger from peaceful pickets
iv. There has to be a basis for fear of violence in order to have statute against picketing.
b. Retreat from Thornhill
i. Picketing is protected by Section 7 as concerted activity for mutual aid and protection.
ii. But it is not in itself protected by the First Amendment (it can be infringed upon without
freedom of speech violation). Picketing is no longer pure political speech, and the
communicational element of picketing can be substantially curbed if there is a significant
social justification for doing so.
iii. Constitutionally can enjoin peaceful picketing (here was no violence in Vogt, merely
picketing the entrance of ERs business with sign). A state may constitutionally enjoin
peaceful picketing if the injunction is rationally based on furthering some public policy that is
otherwise valid. (Vogt)
1. Here: several suppliers refused to deliver and haul goods to and from the plant,
caused substantial damage, and held that there could be this injunction
iv. Teamsters v. Vogt, Inc. (SCOTUS, 1957) (551)
1. Gravel pit in Wisconsin. ER was gravel pit with 15 to 20 men. Union engaged in
organizational picketing of the 15 to 20 gravel pit employeespurpose of picketing
was to induce the employees to join the unions. The men on this site are not 100%
affiliated with AFL. The drivers of several trucking companies refused to deliver
and haul goods to and from the plant, causing substantial damage to the ER. had
effect of signal picketing (signaling to third parties, parties not to this dispute, to
bring their economic power to this issue)
2. Court found that unions purpose was to coerce the employer to interfere with its
employees right to freely choose whether or not to join a labor organization. That
would be in violation of their 7 right not to join a union. Held: courts may issue
injunctive relief for picketing designed to "coerce the employer to put pressure on his
employees to join the Union."
c. 1st Amendment still allows restrictions on labor acts, even where there is a political component.
i. Allied International: the Soviet Union case. Even though the workers were expressing their
political views as the reason for the secondary action, this was still secondary action; still
illegal.
ii. First A didnt save them even when primary was for political reasons.
d. Peaceful persuasive appeals to consumers are protected by the first A.
i. But they may be protected as primary activity by general section 7 rights and picketing, if
not secondary activity.
e. There is no absolute, constitutional right to strike, by due process considerations.
i. Vogt Dicta: Due Process consideration do NOT guarantee the absolute right to strike.
ii. Numerous absolute strike prohibitions for public employees have been sustained (United
Federation of Postal Clerks upheld a blanket statutory ban upon strikes by federal
employees)
f. There is freedom to associate in labor organizations.
3. Picketing can be threatened with criminal trespass.
a. Hudgens v. NLRB:
i. The union members were at a privately owned shopping center; they were arrested with
criminal trespass. The employees went on strike against their employer and then picketed the
retail stores of the shoe company. Manager of shopping center and informed the EEs that
they could not picket the mall or the parking lot and threatened them with arrest.
ii. First, was this a const problem no, this is about Section 7 balancing for an 8a1 violation
(Supreme Court):
1. Section 7 right
2. Private property rights of the employer (shopping center not sufficiently similar to
public area to be considered public; overruling Logan Valleys holding about
property rights of shopping center that was only in exceptional company town
case Marsh; shopping center is not the functional equivalent to a municipality;
shopping center not within Marsh exception).
3. Who owns the property private or public
iii. CONTRAST: If this had been on a public sidelwalk, then the Fist and Fourteenth
Amendments would clearly have protected the picketing.
iv. But, Supreme Court remanded, and on remand, held: that this did violate Section 8(a)(1)
rights of the employees (partly because here the picketeres were company employees this
was the retail store of what they were manufacturing for).


4. Organizational/Recognition Picketing

The issues here are NOT secondary boycott issues. Instead, what are the rights of unions to picket for recognition or to
organize employees.

NLRA 8(b)(7)
8(b)(7): Union cannot picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer
where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor
organization as their representative, unless such labor organization is currently certified as the representative
(A) Recognition- where the employer has lawfully recognized in accordance with this Act any other labor
organization and a question concerning representation may not appropriately be raised under 9(c)
(B) Election bar- where within the preceding 12 months a valid election under 9(c) has been conducted
(C) 30 day limit- where such picketing has been conducted without a petition under 9(c) being filed within a
reasonable period of time not to exceed 30 days from the commencement of
[1] Expedited Election Proviso: PROVIDED, That when such a petition has been filed the Board shall forthwith,
without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the
labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results
[2] Advising the Public Proviso: PROVIDED FURTHER, That nothing in this subparagraph (C) shall be construed to
prohibit any picketing or other publicity for the purpose of truthfully advising the public that an employer does not
employ members of, or have a contract with, a labor organization, unless an effect of picketing is to induce any
individual employed by any other person in the course of his employment, not to pick up, deliver or transport goods or
not to perform any services.

Summary
If the picketing is for recognition or organization, it must meet the requirements for Recognition Bar, Election
Bar, Contract Bar, 30 Day Limit of the 8(b)(7). if it is for recognition or organizational purpose (to try to get
recognition for the union, to try to get workers to sign card)
If the picketing is going to be for longer than 30 days, the union MUST file an election petition. The Board can
then direct an expedited election. The union does not need to show typical showing of interest for this election.
(Blinne)
These rules apply even if recognition is only one of two goals, ex. if recognition goal AND protest an ULP
goal of the picketing.
BUT if the picketing is instead just stating to the public that the employer does not have a union, this will be
Informational Picketing, and this will be within the informational picketing proviso (publicity proviso), and
it will NOT be subject to the Recognition Bar, Election Bar, Contract Bar, 30 Day Limit of the 8(b)(7). Can go
on for longer than 30 days, can happen he day after the election.
Although information picketing is protected by this proviso and is not subject to all of these 8(b)(7) limits on
recognitional or organizational picketing, if the informational picketing is determined to be signal picketing, it
will not be within the informational picketing proviso (not exempted from the 8(b)(7) rules) and moreover, it
is secondary pressure.
Distinguishing between informational and signal picketing: signal picketing is when employees (ex. one union)
signals to other unions that they should respect the picket (ex. not cross the picket line), in turn putting
pressure on their employers, which puts pressure on the target employer. Picketing is unlawful (and not
information) if it seeks to acts as a signal to trigger organized economic action backed by a group other
unions employees. Information picketing, by contrast, appeals only to employees in the establishment and
members of the public for the purpose of informing that there is not a union. This is within the publicity
proviso if the elements of communication predominate. If the employer loses patronage, it is chiefly because of
the impact of the pickets message upon members of the public acting as individuals, not upon group dynamic
of other unions recognizing the signal. (598)
If there are any other violations of 8(b)(7) (other than (c)), there are still violations and the publicity proviso
doesnt apply.
If AN EFFECT of the picketing is to cause someone to stop work, this is a violation of 8(b)(7)(C) and there is
no defense. The only exception is a de minimus standard which says if the effect is very small (i.e. only one or
two deliveries arent made) it doesnt matter. However, if the one delivery is the main delivery, it is a
violation. Basically, you have to look at the specific circumstances
To be informational not signal picketing, the purpose of the union must be to truthfully address to the public
the fact that there is no union. There also cannot be secondary effects. If there are effects and the purpose,
judging from the unions actions, is that there is some effect on the employer: still appears to be informational
(Widgets, p. 599 #3).

In More Detail
1. Because of the confrontational aspect of picketing, no blanket 1
st
Amendment protection
a. This confrontational aspect is what differentiates handbilling from picketing
b. No recognition picketing is only an ULP subject to regulation by the Board if it involves violence,
intimidation, and reprisal or threats (conduct involving more than the general pressures implicit in
economic strikes)
c. Board is authorized to regulate peaceful recognitional picketing only when it is employed to accomplish
objectives specified in 8(b)(4)
d. Stationary vs. patrolling, location (in front of street, vs. not), violence, action
2. Definitions
a. Recognitional picketing is when the union is trying to get recognition.
b. Organizational picketing is when the union is trying to get workers to sign authorization cards (usually
both are together)
c. Target for Recognitional is employer; target for organizational is employees.
d. When it happens: union hasnt been certified, there hasnt been an election, and union is picketing
3. Limitations on Recognition/Organizational Picketing if does not meet these, the Board will find a per se
8(b)(7)(C) violation
a. (A) Where another union has been lawfully recognized
i. Where they have been recognized will be impossible for the union to file a petition in the next
30 days
ii. Contract Bar: nobody can picket for recognition for up to three years after the contract if
recognition picketing. Because they cant file a petition. Because cant get certified; Board would
reject the petition.
iii. Certification Bar
1. This applies even if the goal of the strike was only to obtain recognition as to a portion of
the EEs in the bargaining unit (Gilbert)
iv. As soon as a union puts up a picketing line, if it is impossible to file a petition in the next 30 days
(i.e. contractual bar), Board will find a per se 8(b)(7)(C) violation
v. NOTE: If the union has not been lawfully recognized, this will not apply.
1. Ex. Employer grants recognition to Union A where Union A did not have majority
support -Union B pickets for recognition, 8(b)(7)(A) does not apply b/c there has not
been lawful recognition of another organization, but there is no defense to 8(b)(7)(C);
however, Board will not issue an order b/c of 8(a)(2) violation
b. (B) Election Bar
i. No picketing for recognition a year after the election. Because then they cant file a petition.
Because the other union is certified. Taft-Hartley Act made it unlawful for a union to engage in a
strike or picketing for recognition in defiance of certification of another union as the bargaining
representative of a union. Whenever a valid NLRB representation election has been held within
the previous 12 months (8(b)(7)(8)), no recognition or organizational picketing.
c. (C) In Excess of Reasonable Time
i. This limit prohibits picketing that has been conducted without the filing of a certification petition
within a reasonable amount of time not to exceed thirty days
i. Picketing can only last for a maximum of 30 days or else have to file a petition for an election.
ii. Absent filing of a petition, picketing for recognition/organization became an ULP if done for
longer than that. Become an 8b7C violation. On the other hand, if they file a petition, the filing of
the petition means that PICKETING CAN CONTINUE while the petition is being processed.
iii. But, if the union has filed a petition + they continue picketing because now they have filed a
petition + then the ER files an 8b7C charge => can shorten the period of permissible picketing by
holding an expedited election. But the expedited election is ONLY for an 8b7C proceeding
iv. If picketing is having a strong effect on the employer, the reasonable amount of time might be
less than 30 days
4. Two Exceptions for 8(b)(7)
a. Expedited Elections
i. Recognition/organization picketing is limited to a reasonable period not to exceed thirty days in
general. However, if the union has filed a timely election petition, the picketing may continue
pending the processing of the petition. (Blinne) But, Congress has provided for an expedited
election procedure once this petition is filed, so as not to continue the R/O picketing.
ii. Procedure
1. (1) Union has filed an election petition
2. (2) Employer then files an 8(b)(7)(C) charge with the Board
3. (3) The Board may then direct an election in such a unit as the Board finds appropriate
and will certify the results of that election
a. This election requires neither a hearing nor a showing of interest among the
employees. As a consequence the election can be held and the results obtained
faster than in a regular election under Section 9(c) and is therefore called an
expedited election.
4. If after this expedited election, if the employees reject the union, the union cant engage
in R/O picketing for another years.
b. Publicity Proviso -- information picketing is okay, unless it becomes secondary picketing.
i. Definition: When picketing takes the form of truthfully advising the public that the employer is
non-union, or another matter of concern to the union. Picketing that appeals only to the EEs in the
establishment and members of the public. (Publicity)
ii. The publicity proviso of 8(b)(7)(C) exempts picketing that is for an informational purpose.
But this exception is negated if the picketing has the effect of disrupting the employers
business.
1. ***
2. If there is secondary effect, no longer protected: unless an effect of picketing is to induce
any individual employed by any other person in the course of his employment, not to pick
up, deliver or transport goods or not to perform any services.
3. If there are only one or two disruptions, the Board will hold the publicity proviso valid
4. Smitley: The publicity proviso requires that picketing (1) for an informational
purpose: be addressed to the public and be truthful and (2) not have a secondary or
signaling effect not induce other unions to stop deliveries or services
5. if it meets publicity proviso, it can go longer than 30 days, because no subject to the
requirements of 8(b)(7)
a. IF INFORMATIONAL: Can be after an election, can be longer than 30 days
b. IF RECOGNITION: Must abide by the limits in (A), (B), (C).
i. IT CAN BE BOTH INFORMATIONAL AND HAVE A
RECOGNITIONAL GOAL AND STILL EXTEND BEYOND 30 DAYS
Crown Cafeteria (publicity proviso allowed even though a goal
is recognition).
1. Informational picketing allowed where truthfully
advising public that ER does not have U EEs, unless effect
is to interfere with pickups and deliveries. Crown
Cafeteria allow even though a goal is recognition; but
limit is signaling: if publicity is actually a signal to other
workers and unions, not allowed; signal picketing v.
publicity picketing.
2. Rules: publicity proviso applies even if there is an
additional R/O objective, provided that the picketing is
1) addressed mainly to the public
2) truthful
3) does not significantly interfere with deliveries or
services perform by other EEs
4) did we discuss this in class? check notes..
c. Where a union loses an R election, it may subsequently picket the ERs premises
if the banners/signs etc clearly indicate that the picketing is solely informational
and the U only pickets customer entrances and does not interfere w/deliveries, is
addressed to the public.
iii. Signal Picketing vs. Informational Picketing
2


2
Picketing before a union election is divided into two categories: (1) picketing which halts pick-ups or deliveries by independent trucking concerns or the
rendition of services by the employees of other employers [because they have been signaled about something], and (2) picketing which appeals only to
employees in the establishment and members of the public. Signaling: The former class is essentially a signal to organized economic action backed by group
discipline. Such economic pressure, if continued, causes heavy loss and increases the likelihood of the employers coercing the employees to join the union.
Informational: But picketing which appeals only to the employees in the establishment and members of the public, for the purpose of informing that there is
not a union, is within the publicity proviso. In the second type of picketing, the elements of communication predominate. If the employer loses patronage, it
is chiefly because of the impact of the pickets message upon members of the public acting as individuals. (598)
1. Signal picketing: picketing which halts pick-ups or deliveries by independent trucking
concerns or the rendition of services by the employees of other employers [because they
have been signaled about something
a. A signal to organize economic action backed by a union this uses other
employees, of other employers, to get involved in the labor dispute. This is a
form of secondary actioninvolves taking advantage of neutral parties.
b. Signaling to employees at other employers that they should put pressure on their
employer, in order for that employer to not work with the primary.
2. Activity that is picketing or is short of true picketing through which a union signals to
another group of employees and union members that they should put pressure on their
employer (a secondary employer), so that the secondary employer will put pressure on
the unions employer.
a. Example: Picketing that results in halts in pickups or deliveries by independent
trucking companies or rendition of services by the EEs of other ERs. (Because
you have sent the signal to the union members/employees of other employers.)
3. Purpose: Discourage members of other unions from performing work for the benefit of
the picketed employer. Try to get other unions to get involved in your labor dispute. To
have the other unions take note, and have their own secondary action (where they arent
doing work for your employer, even though thats outside of their labor dispute). Signal
picketing is proscribed because it means you are getting others involved in your labor
dispute; depends on union talking to each other not the public
iv. Informational picketing: which appeals only to employees in the establishment
a. Picketing which appeals only to the employees in the establishment and
members of the public, for the purpose of informing that there is not a union, is
within the publicity proviso.
2. But, the picketing cannot have an effect any other person in other unions in the course of
his employment not to pick up, not deliver, etc. this is still true (is still secondary) even
after Electrical Workers?
v. Electrical Workers: signal picketing and publicity picketing should be used in characterizing
the unions tactical purpose rather than in describing the picketings effect Under the second
proviso, it is the purpose which determines which is permissible picketing and which is not
remanded to Board to determine whether the picketing was for purpose of truthfully advising the
pubic
1. They look at both the purpose of the picketing and its effects. But the effect is also a
factor they consider when describing the purpose of the union in taking the recognition
picketing action. But they say that could have impermissive purpose (have signaling
purpose) but still short of inducing the secondary effect, and it would be the purpose
which would make the difference.
2. Looking at both purpose and effect for whether this was 8(b)(7).
3. See #3 below
5. Analyzing 8(b)(7)
a. Is there picketing or threats of picketing?
b. Is the motive organization (seeking to organize the employees) or recognitional (seeking to get recognition
from employer)?
i. If it is only area standards or ULP, it will not be subject to 8(b)(7).
c. Is it impermissible because there is (A) already a union in place, or because an election happened in the
past year (B)?
d. Does this meet publicity proviso?
i. Truthfully informing the public (was the purpose)?
ii. NOT secondary activity?
6. Distinguishing R/O Picketing from Other Types of Activity
a. R/O vs. ULP
i. 30 day rules do not apply to ULP picketing if it is only ULP picketing
1. Blinne - Rules only apply to recognition/organization picketing, not ULP picketing - If in
Blinne they had NOT been picketing for recognition, if they had only been picketing for


for the ULP, they wouldnt have had to be within the 30 days for the petition, they would
have been able to picket past 30 days.
2. If the union is picketing purely in reaction to unfair labor practices, there is no 8(b)(7)
ii. But, where the union was picketing for both ULP and for recognition, the 30 day requirement
applied.
1. Blinne here they were in violation of 30 days requirement and 8(b)(7).
2. The union was still required to file a timely petition for recognition.
a. This was even though it was recognition and ULP.
b. Exception to the 30 day requirement only if only ULP picketing (then not about
recognition).
b. R/O vs. Signal Picketing
i. If the picketing becomes not informational picketing but signal picketing, it will be secondary. If
it is not informational picketing but is recognition picketing, it will be subject to the time
requirements and the union must file a petition to continue the picketing.
ii. See below (Secondary Pressure) for examples of signal picketing (cf. RA Sushi)
c. R/O vs. Area Standards [the publicity proviso for 8(b)(7) is whether the employer has a union)
i. Area standards picketing: The goal of area standards picketers is to protest the fact that the
picketed employer pays lower wages or offers fewer benefits tha the wages and benefits
established by unionized employers in the area. When this is th picketers goal, picketing is not
regulated by the NLRA.
1. picketing by nonemployees is only protected conduct when the union can demonstrate
that it has meaningful evidence that the target firm actually provides its employees with
substandard wages and benefits
2. Not explicitly R/O but instead: demands that employer pay wages and benefits at level
paid at area businesses
ii. Completely outside 8(b)(7) [Curtis Bros.] => Rationale is that when an employer pays below the
rate in the area, that hurts both the employees of that employer, but more importantly, makes the
union employers less competitive and therefore makes those jobs less secure
iii. Must be truthful
iv. Fact that substantially interferes with pickups and deliveries or causes employees not to go to
work does not make it illegal; if sole object is to protest the substandard conditions, there is
no 8(b)(7) violation (area standards picketing
7. Unions Defenses to 8(b)(7) Violation
a. Past majority support was not a defense
i. Blinne - where election petition not filed within 30 days, employees could not use the fact that
they had support before the transfer as a defense.
1. Here, the ER had moved one of the employees, so they picketed.
2. HELD: No, they cannot. What they should have done was (1) File a petition, and then (2)
File an ULP charge against the employer for the transfer of the union member. Then (3)
no election would have beene held until the satisfactory resolution of the ULP (Boards
rule that doesnt review election petitions when there is pending ULP charge).
b. If handbilling has no picketing, 8(b)(7) doesnt come into play
c. If picketing has no organizational/recognitional objective, 8(b)(7) doesnt come into play
d. Where you have what looks like a 8(b)(7)(C) violation, a meritorious 8(a)(5) charge is a defense to
8(b)(7)(C)
i. If union pickets and does not file a petition within 30 days but claims an ULP, it will violate
8(b)(7) if the ULP is not found to be a meritorious 8(a)(5) ULP complaint
ii. But, in the case of 8(b)(7)(C) complaint and allegations of 8(a)(5) violation, Board evaluates the
8(a)(5) first and only looks at the 8(b)(7)(C) if it determines that there is no 8(a)(5)
iii. If the Board finds no meritorious 8(a)(5), it will immediately enjoin the 8(b)(7)(C) picketing
8. Application: is this picketing prohibited by 8(b)(7), within the publicity proviso, or otherwise unlawful? (599)
Recent dispute between Widgets, Inc. and International Union of Widgeteers. Union has been seeking to organize
and represent the employees of Widgets, Inc.
a. (1) IUW stations pickets at both consumer entrances and delivery entrances, signs reading: Company
refuses to recognize IUW. Do not patronize. Do not cross this picket line. thru the first 2 weeks of
picketing the Teamsters refuse to make deliveries. Widgets files 8(b)(7)(C) charge.
i. This is recognition picketing under 8b7 requirements. There is a publicity proviso, and the fact
that they are picketing the consumer entrances suggest that could be that. and also company
refuses to recognize looks like the purpose is to inform about no union status. But here they also
picket at the delivery entrances suggests signaling. In addition, use of do not cross this picket
line language also applies to the other unions and then the Teamsters refused to make
deliveries, so signaling (has a secondary effect and it looks like it was their purpose).
ii. This is signaling
1. Signaling is secondary activity; NOT JUST information picketing
2. Can get secondary boycott remedies
3. Secondary Boycott, this was not just information picketing
iii. Therefore the Board seeks an injunction
1. Board must seek an injunction if it has reasonable cause to bleive the ERs 8(b)(7)
charge is true
b. (2) This time, the pickets patrol only consumer entrances, have signs saying that please do not patronize
and told Teamsters to continue deliveries, placed ads in newspaper saying that the picketing was solely to
inform the public that ER did not have a union this will be within the publicity proviso, is not
secondary effect, it is only to inform the public.
c. (3) Same facts as #2, except that over the two-month period in which the picketing takes place, three truck
drivers refuse to make deliveries, and one window washer refuse to enter the plant building to do his job.
Is ther ea violation of 8(b)(7)(C)?
i. Will still be seen as informational.
d. A threat to picket by a union that cant lawfully picket is an automatic 8(b)(7) violation (A-1 Security Serv.
Co.
e. If the union is picketing purely in reaction to unfair labor practices, there is no 8(b)(7). If the union is
picketing in reaction to flagrant unfair labor practices and also demanding recognition, the Board will
likely issue a 10(j) injunction and a bargaining order

Getting an Expedited Election
Union Pickets &
Files Election
Petition Within 30
Days
Union Picketing Less
than 30 Days W/O
Filing Petition
Union Picketing
More than 30 Days
W/O Filing Petition
Company Does
Nothing
Normal Election No Election No Election and
Picketing May
Continue
Company Files
8(b)(7)(C)
Expedited Election No Election but
NLRB Issues
Complaint and Seeks
10(l) Injunction
Company Files
8(b)(7)(C) and an
Election Petition
Expedited Election


5. Secondary Boycotts and Secondary Pressure

Proscribes two types of activity:

(1) Engaging in a strike, refusing to handle goods, or inducing another individual to strike or refuse to handle goods
(2) Threatening, or otherwise coercing, an employer for any of these three illegal objectives:
[1] to force an employer to enter into a hot cargo agreement 8b4A;
[2] to force a third party to cease handling the employers goods or to force the third party to
case doing business with the employer (typical boycott - cease doing business), 8b4B; and
[3] to compel an ER to assign work to one union rather than another (but 8b4D is analytically
distinct this relates to work assignmentsbut is ALSO a purpose for which EEs cannot strike.
-At its core, a secondary boycott is the application economic pressure upon a person within whom the union has
no dispute regarding its own terms of employment in order to induce that person to cease doing business with
another employer, with whom the employer does have such a dispute.
-can also have recognitional goals, where the union is not linked with any employer, but still exerting secondary
pressure as means for recognition
ex. Union A pickets Employer B to pressure C to recognize Union A or any other uncertified union, there is a
violation 8b4 this is secondary activity
-refusing to cross picket lines does IS NOT secondary activity third parties can choose not to cross a picket line
-Reasons for the deeply ingrained opposition to secondary boycott: we place high value on the freedom of individuals
and groups to use peaceful methods when they are in a labor dispute, but with the secondary boycott, there is now an
uninvolved or neutral party
- Secondary boycotting is regulated 8(b)(4); a union can picket against a primary employer, this is protected activity.
However, means prohibited by 8(b)(4) against a secondary employer are a violation of 8(b)(4) and a union unfair labor
practice; such means exercise by unions are illegal and unprotected: any company suffering damages because of
unlawful secondary boycotting can sue and recover damages from the union (is a tort, can sue via 303); the activity is
unprotected (EEs can be discharged for engaging in will not be protected concerted activity); the Board can issue a
cease-and-desist order, and in advance of a Board hearing, the RD is to seek 10(l) injunction in district court against
probable violations of 8(b)(4)(B).
.

MUST ASK -
--Primary, who does the union have the beef with?: the employer with which the
employee/union has the dispute. ex. labor contractor who supplies the employer with
replacement workers
--Secondary, who are they putting pressure on?: ex. hotel manager (when picketing in his
parking lot and asking him why he would rent to scabs). A secondary employer is a neutral
third party that the union is pressuring to stop doing business with the primary party with the
object of persuading the primary party to meet union demands (in labor law, third party is
secondary)
--Putting Pressure on: are they putting pressure on the secondary to achieve some goal with
the primary?
--Unions purpose: what is the unions purpose in doing this? (is it related to the primary
employer OR is it related to the secondary employer?) note object of language in 8(b)(4)

A secondary boycott is an unfair labor practice.
8(b)(4): It is an ULP for union
(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in
an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or
(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is:
(A) a hot-cargo clause: forcing or requiring any employer or self-employed person to join any labor
or employer organization to enter into any agreement. in which the employer ceases or refrains or
agrees to cease or refrain from doing business with any other person, or otherwise dealing in any of
the products of any other employer (8(e))
(B) secondary pressure: forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer,
or to cease doing business with any other person, or forcing or requiring any other employer to
recognize or bargain with a labor organization as the representative of his employees unless such labor
organization has been certified as the representative of such employees under the provisions of section
9 (but primary strikes and picketing not prohibited).
to get objectives with is putting pressure on Company
B
Company A hoping that B cuts ties
with A
as a result of the
pressure

or the employees of Company B
union so that they put pressure
on B

Provided, That nothing in this clause shall be construed to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing.
Provided further [Secondary Boycotts Publicity Proviso], That for the purposes of this paragraph 8(b)(4)
only, nothing contained in such paragraph shall be construed tor prohibit publicity, other than picketing, for
the purpose of truthfully advising the public,, including consumers and members of a labor organization, that a
product or products are produced by an employer with whom the labor organization has a primary dispute
But Signal Activity Not Sheltered: as long as such publicity does not have an effect of inducing any
individual employed by any person other than the primary employer in the course of his employment to
refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of
the employer engaged in such distribution.

A. Initial Secondary Boycott Rules
1. Two different means are prohibited
a. Refusal to work on any goods of an employer union saying that it will not handle or work on any
other goods.
b. Putting pressure on a neutral, third-party employer in order to achieve a purpose with an employer
with whom a union has a dispute.
2. If action is a secondary boycott:
a. Board can issue a cease-and-desist order.
b. Even before a Board hearing on the merits, the Regional Director is to secure an injunction in
district court against probable violations of Section 8(b)(4)(B), pursuant to Section 10(l).
i. Section 10(l): specifically areas where Congress speaking loudly against there is an
obligation on the RD to request an injunction from the district court.(applies to secondary
boycott, strikes in support of work-assignment disputes, unlawfully protracted recognition
picketing).
1. Ex. if there is a secondary boycott, the secondary ER will file a charge in violation of
section 8(b)(4)(ii)(B) and the Regional Director will issue a complaint and seek an
injunction under section 10(l). The district court will then rule on the injunction. (Ex.
Pye v. Teamsters EEs getting together at the liquor store to create congestions).
ii. Preliminary investigations of charges with 10(l) injunctions are given priority over all other
cases except similar cases in the office where it is filedo r where it is referred. Also, Congress
went so far as to declare the secondary boycott a federal tort remediable by an action for
compensatory damages under Section 303.
3. Primary strikes and picketing are NOT within the scope of the 8(b)(4) secondary boycott prohibitions. (Denver
Bldg)
a. A primary strike will also (strictly) have the effect of restraining workers not of this employer to cease
doing business, but there is primary action.
b. Same with picketing, if picketing conducted at the primary situs and directed to primary employees
will also turn away deliveries or pickups o be made by employees of the secondary companies,
although the extent that picketing of the primary may induce a brief work stoppage of the secondary,
this is not secondary picketing but incident of lawful primary picketing.
4. Incidents of Lawful Primary Picketing still primary. Primary would be if the pressure were primary, but
there was a brief work stoppage of secondary employees as an interruption in the business of the secondary
employer incident of lawful primary picketing.
a. Ex. sympathy strikes as incident to lawful picketing, are not unlawful, are not secondary activity
or other strike-related inconvienience.
b. Picketing conducted at the primary situs and directed to primary employees may also turn away
deliveries or pickups to be made by employees of the secondary companies.
c. Although the extent that picketing of the primary may induce a brief work stoppage of the secondary,
this is not secondary picketing but incident of lawful primary picketing.

B. Publicity (non-picketing) vs. Secondary Activity
1. Level of coercion matters in the secondary analysis
a. If your handbilling has an object of preventing business of targeted employer, and it induces
employees to stop work, you have lost the publicity proviso shield
b. Pure handbilling, even if you are speaking, is permitted
2. However, if the handbilling becomes in any way confrontational, the action becomes secondary
pressure/secondary boycott.
3. DeBartolo, union has a dispute with a construction company building a department store in the mall and
handbills outside mall asking customers not to shop at any of the stores in the mall
a. This was not picketing: Just distributing the handbills, not picketing or patrolling; little reason here to
find that the handbilling coerces the customers. Just advocating that consumers not shop at the stores;
not being coercive; picketing has a coercive element to it. Court essentially finds that handbilling can
never be coercive (if peaceful).
b. For the handbilling to become picketing, it owould have required requires a showing of threats,
coercion, or restraits, little reason that the handbilling coerces to the level of secondary boycott (that
the handbilling coerces secondary employers) and did not here. Therefore the secondary boycott
ban did not reach the handbilling; within publicity proviso.
4. RA Sushi
a. Not shouting; require more than mere persuasion after DeBartolo
b. Picketing does not suggest that Congress understood the term to encompass the mere display of a
stationary banner directed to street, did not create confrontation
c. Therefore, this fell within the section 8(b)(4) proviso. Publicity Proviso: publicity, other than
picketing, for the purpose of truthfully advising to the public, including consumers that a product or
products are produced by an employer with whom the organization has a primary dispute.
i. Promoting a customer/consumer boycott (a consumer boycott of a secondary employer is
unlawful only if it is inducted by picketing or coercion) is not per se illegal if it is not by
picketing.
d. Here, because it was not patrolling, even though the signs were about the secondary employer, was
still OKbut usually this would mater
5. If the activity IS picketing and it is for consumer awareness?
a. Then we are in Tree Fruits/Safeco analysis, and determine the scope of the effect, only limited
exception for the Tree Fruits type of situation.
6. But if signaling, still secondary.
a. Activity that is picketing or is SHORT OF true picketing through which a union signals to another
group of employees and union members that they should put pressure on their employer (a secondary
employer), so that the secondary employer will put pressure on the unions employer. A form of
secondary pressure.
i. Exmaple: Picketing that halts pickups or deliveries by independent trucking companies or
rendition of services by the EEs of other ERs in order to send a signal to the employees of
other unions.
b. Purpose: Discourage members of other unions from performing work for the benefit of the picketed
employer. Try to get other unions to get involved in your labor dispute. To have the other unions take
note, and have their own secondary action (where they arent doing work for your employer, even
though thats outside of their labor dispute). Signal picketing is proscribed because it means you are
getting others involved in your labor dispute.
C. Determining I f Conduct is Secondary Boycott
1. Definition: The secondary boycott is the application economic pressure upon a person within whom the union
has no dispute regarding its own terms of employment in order to induce that person to cease doing business
with another employer, whith whom the employer does have such a dispute.
2. Boycott is a generic term for when union of one company pressures the employees of another company
(Company S) to do something so that Company S will withdraw its services from Company P- this
withdrawal of services is the boycott.
3. In other words, the union has a beef with on employer. But they are exercising economic pressure on another
partythe employer they do not have the beef within order to try and get that employer to stop doing
business with whoever they have the beef with.
4. Examples: Primary pressure (protected) vs. Secondary pressure (illegal):
a. The union may seek to organize its employees at Company P to get what it wants PRIMARY
ACTION, this would be DIRECT, this is PROTECTED
b. The union could ask Company S to voluntarily withdraw its services from Company P (to hurt
Company P) this would not be impermissible secondary pressure on Company S.
c. But, if the union then thinks it can get Ss employees to engage in a work stoppage so that S is
frustrated and then ceases doing work because the union that has beef with P is behind the S
employees actions now this is SECONDARY pressure.
d. Union encourages Ss customers not to shop at Company S so that way Company S will get hurt, and
agree with the Company P union that it will stop stocking/supplying Company P. (secondary)
e. Union pickets at Company S in order to pressure Company S to stop selling/supplying/buying from
Company P (secondary)
5. But distinguish: incidents of primary striking/picketing

D. Analysis questions to ask
1) Who does the union have the beef with?
1. Can also be a non-employer, but just someone they have beef with. Allied I nternational (556): ILA
stopped loading/unloading Soviet shipments. Held: this was a secondary boycott.
2. Can also be a non-employer, someone they have beef with because that employer does not have a union.
Moore Dry Dock: A boat (Phopho) came into the dock to get prepared for departure. The on-ship crew is
nonunion. The union wants to pressure the ship (the Phopho) into becoming union. Their goal was to put
pressure on the ship so it would hire the union. The dispute was with the ships owner, not the dock. The
sailors union picketed the dock and got the ships workers to stop working. Here, the dispute is with the
ships owner: not the dock
2) Who is the union putting pressure on?
1. Moore: the person they wanted to do something with was the primary, the ship. But they put pressure on the
dock (by picketing the dock) in order to get the dock to say to the union, this is because of you, and therefore
we wont let you come back here.
2. If its on the secondarys employees in an effort to get them not to shop to piss off the secondaryto
make the secondary do what you want to withdraw its services from the primary SO THAT THE PRIMARY
DOES WHAT YOU WANT
3. If its on the secondarys customerss in an effort to pressure the secondary to make the secondary do
what you want and not withdraw its services from the primary-- SO THAT THE PRIMARY DOES WHAT
YOU WANT
3) What is the union doing here?
If the union is taking action, it must be that the union is only appealing to the primary employer.
IS THERE A MISMATCH BETWEEN who they have the beef with and the ACTION?
Picketing is limited to picketing reasonably close to the situs (must be close to the gate)- and this is the situs of the
primary; can only do action with the one that you have the beef with.

E. Application of determining secondary vs. primary activity
1. I nternational Longshoreman (603) the union boycotted Soviet goods after the Russian invasions of
Afghanistan, urged its employees not to handle goods (at their various employers) from Russia.
a. Union had a beef with Russia, with Russias policy for
b. Union was trying to force the companies to cease doing business with each other and to cease using,
selling, handling, transporting, or dealing with Russian products.
c. Union was pressure on the neutral employers (Allied) [they have nothing to do with this dispute] in
order to achieve its endhave them withdraw so that will hurt the primary (Soviet Union). Wasnt
dispute with unions for the goods, was dispute with Russia for its invasion of Afghanistan (it has no
dispute with the employer. Its sole dispute is with the USSR for its invasion of Afghanistan).
2. Denver Building: strike was aimed to force the unionized GC to terminate his K with the nonunionized
Subcontractor was illegal

a. Picketing against one subcontractor at a job site may induce a work stoppage among employees of
other subcontractors and interrupt work deliveries of materials to an entire jobsite
b. Who did the union have a beef with? Union had a beef with the subcontractor, the one non-union
contruction subcontractor on the job site ***union had a dispute with the non-union subcontractor
c. Who did the union take action against? Union took action against the general contractor- -there was a
strike, they picketed the job site and refused to work with nonunion labor, there was a picket there for
two weeks and turned away all the labor that was from a union.
d. An issue: did this count as separate employees? They are not really neutral the way we usually think
of secondary pressure. But here, they were independent enough for the pressure on the general
contractor, after the beef with another subcontractor, by the rest of the subcontractors unions. held
that striking against General Contractor when had beef with subcontractor was secondary boycott;
unfair labor practice.
3. Contrast with Denver Building - Douglas Dissent
a. Arguably, however, the rationale for secondary boycott does not extend here. This was pressure on a
secondary employer, but was not a remote front the way we typically think of for secondary
boycott, nor the concern of Congress in enacting. In addition, the picketing would have been legal if
there had been no subcontractor involved (Douglas) but instead if there had only been one general
contractor involved, and the union employees would have been able to strike had the employer put
nonunion men on the job. Indeed, the exception for hot cargo clause suggests that this is also
a concern of Congress. [hence Douglass argument led to legislation by both houses to overrule
Denver Building, but President Ford vetoed legislation; it would lead to continued inflation in the
construction industry).
4. Distinguish: another employees refusal to cross your picket line VS. unlawful secondary activity
a. International Rice Milling (Supreme Court): It is lawful to strike at primary situs. If a secondary
employee chooses to honor this line (i.e. truck driver wont deliver), this is a lawful incidental
secondary effect of the primary picketing sympathy strikernot an unlawful secondary strike on
your behalf.
b. Limits on the incidents of reasoning --
i. if the union induced the individual employees of neutral employers not to come to their
business, that would not be the decision of the sympathy strikers anymore. It would be
exerting pressure on Companies of Company B, not to do business (as part of Company B), to
put pressure on Company A secondary.
ii. Also cannot ask the secondary employees to effectively honor the picket line elsewhere (only
at primary premises)

Specialized Applications of Secondary Boycott Issues

A. Ambulatory Situs can apply MDD rules for both
1. Ambulatory Situs: A mobile employer (i.e. truck, ship), when the situs of the dispute is not limited a fixed
location, but is instead ambulatory (Moore Dry Dock).
a. Moore was also an issue of an ambulatory situs: it came to rest temporarily at the premise of another
employer.
2. A Union engaged in a lawful primary strike is entitled to picket the Employer not only at its principal place
of business but also wherever else the Employer carries on its business. (Moore)
a. Ex. an employer who makes deliveries and pickups
b. Ex an employer that performs work at a customers place of business.
c. Ex. Moore boat was ambulatory, came to rest at the dock, could picket the boat if reasonably close to
the boat (on the dock).
3. In these situations, the Union may lawfully follow the trucks and the drivers and picket the trucks and
employees as they go about their business.
4. However, Moore Dry Dock Rules still apply:
a. (1) Picketing strictly limited to times when the situs of dispute is located on secondary
employers premises must actually follow the ambulatory situs, and only be there when the primary
situs (boat, car, truck) is actually at the situs
b. (2) At time of picketing primary employer is engaged in its normal business at the situs
c. (3) Picketing is limited to places reasonably close to the location of the situs
i. Also cannot be directed at a customer of the secondary employer. It is illegal for the Union to
try to involve the customer in its dispute with the Primary Employer. Ex. bakery delivery:
cant talk to a customer of the bakery while at the site if you are picketing the truck driver.
ii. ***Picketers should not talk to anyone while they are picketing at a customer's premises, but
should only give anyone asking about the picketing one of the notices with which they will be
provided and should otherwise direct all questions to the to the Union official in charge.
d. (4) Picketing discloses clearly that the dispute is with the primary employee
5. Application
a. If the truck driver works for primary employer, union can ask the driver not to drive the truck
b. Secondary employer cannot fire its employees who honor the strike by refusing the unload the
truck from the primary employer (refusal to unload that particular truck is protected activity)
refusal to cross picket line
c. The driver, as a primary employee, is a protected striker if he decides to honor the picket and not drive
B. Common Situs
1. Common Situs: many employers at same location (i.e. construction site) where more than one ER occupies
the same physical location. The issue becomes: it may be hard to determine what is illegal secondary action
(ex. on the dockworkers in MDD, no beef w/them) vs. what is lawful primary action directed at a particular
employer.
2. Moore Dry Dock: A boat, the Phopho, was stationed at Moore Dry Dock. The Sailors Union had a beef with
the Phopho. The union picketed at the entrance of Moore Dry Dock, with signs declaring that the Phopho
was unfair. The union had requested permission on the part of the dock adjacent to the ship, but was denied.
Had large impact on the workers at Moore Dry Dock.
a. The picketing by the sailors unquestionably would have been primary action if it had been a Phophos
dock. However, the boat was tied up at the Moore Dock: and therefore the picketing by the Sailors
Union therefore had an effect on the other employees at the common situs the issues arises because
Phopho was not tied up at its own dock, but the dock of Moore they had a common situs.
b. Issue: when the two employers share a common situsat the same locationis the picketing primary
or secondary? Rule: Neither right (unions right to picket, secondary employers right to be free from
picketing) can be absolute. MDD Rules, four conditions. All were met in MDD.
3. Moore Dry Dock Rules - in a situation with a common situs, picketing on the premises of the secondary
employer is primary/lawful if it meets the following conditions
a. (1) Picketing strictly limited to times when the situs of dispute is located on secondary
employers premises
b. (2) At time of picketing primary employer is engaged in its normal business at the situs
c. (3) Picketing is limited to places reasonably close to the location of the situs
d. (4) Picketing discloses clearly that the dispute is with the primary employe
4. Applying
a. (2) at a time when normal business
i. If the ship is in the drydock but none of the primary party employees are present at the
drydock, the union cannot picket the drydock, because the primary employer is not present
and/or not engaged in its normal operations
b. In Moore, they only picketed when the boat was there; if the primary employer is only there 9 to 5,
you cannot picket the secondary employer at 6 PM. You can only do it when the primary is also there)
c. (3) The picketing is limited to places reasonably close to the location of the situs [dont go half a mile
away];
d. The picketing discloses clearly that the dispute is with the primary not the secondary employer
i. Moore: The union clearly stated it had its dispute with boat, not Dock
5. Limitations on Moore Dry Dock:
a. If the boat docks only briefly if a shipyard permits a vessel to use its dock briefly, not permitting that
union can picket by MDD Rules (stated in the opinion).
C. Ally Doctrine
1. Ally Doctrine:
a. Case-law interpretation of 8(b)(4); protection under 8(b)(4) is limited to neutral third parties
b. The Ally Doctrine insulates the union from secondary boycott charge.
c. Requirements (had all in Douds): The secondarys employees are doing work which, but for the
labor dispute, would be done by the striking employees; the primary ER is paying for this work; and
there is a contract or agreement btw the struck employer (primary ER) and secondary ER to have the
secondary party do the work.
d. Did the secondary employers employees do work (and were paid for it by primary ER under a
contract) which, but for the strike on primary ERs employees, would have been done by the
primary ERs employees (the people striking)? If so, the secondary employer becomes an
extension (ally) of the primary employer; not an unlawful secondary boycott. Secondary employer
is then not a neutral party to the dispute (wants the work).
e. Picketing employees can picket on things besides their work though.
2. Douds v. Metropolitan Federation of Architects (SDNY) (611)
a. The secondary ER here was the firm that the architects work had been transferred to when the
EEs struck. Also, here the primary employers supervisors started supervising the secondary
employers employees while they were doing the unions work. Was firmly allied with the primary
employer and its conduct was against the unions action; in every meaningful aspect it was itself a
party to the contract - held: wasnt a secondary boycott, the secondary party was acting as a
party to the contract; a party that had an interest in the negotiations.
b. Ct looked to the purpose of the secondary boycott prohibition
3. Limits: If secondary employer stops doing Primary ERs work, they regain their secondary status. (at that
point, union must stop all actions against them or suffer an 8(b)(4) violation.)

D. Reserved Gate Doctrine a way to limit common situs picketing

Reserved gate is attempt by an ER to isolate the employees and the employer involved in the dispute from other Ers at
the single location. Most commonly create separate gate or entrance to the premises, one for employees of the
primary ER and another (or others) for the remaining employees. The rationale: the picketing can then be confined to
the gate reserved for the primary ER because cant claim that your secondary effects are only because common situs.

1. When common situs picketing is being conducted, the persons who own or control the property may establish
a reserved gate to be used exclusively by employees, suppliers, and customers of the primary employer, and a
separate gate or gates to be used by all other persons entering or leaving the site. If such a reserved gate is
established, the picketing (by the primary) will be confined to the gate reserved for the use of the primary
employer and its customers or suppliers. now union cant claim MDD, because have to be separated,
wouldnt be to places reasonably close to the situs (3rd MDD rule).
a. Without a reserved gate: if both people doing business with the primary ER and neutrals use the same
gate, the unionunder the MDD rulescould picket at that gate (meeting those 4 requierments).
b. But this may cause unionized workers of neutral employers not to want to cross the picket line, even if
it complies with MDD and says that the dispute is against the primary ER, and other members of the
public might also not want to cross.
2. If the employer has established these separate gates for primary and secondary employees, the union must
determine which gates they can lawfully picket. If there are mixed gates (for all Ees), the union can picket
there and appeal to everyone. If the gates meet the requirements below, and the union continues to picket at a
gate used exclusively by neutrals, the picketing would violate MDD, and be secondary boycott. If union
respects reserved gate, its actions will be legal.
a. If you can tell the people apart (i.e. distinct uniforms), it is undecided whether you could appeal to
those not involved.
3. To determine if picketing a gate used exclusively by independent contractors is a violation of 8(b)(4)(A), ask
(General Electric):

General Electric creates a limitation on the separate gate: picketing I S allowed, aka the ER will not be able to create
a separate gatewhere the work is related to the primary employer. The rationale: ERs should not be allowed to
use separate gates to break apart really primary w/ primary causes; should not be allowed to use separate gate to
defeat what is more like primary activity; traditional purposes of a strike.

a. Whether there was a separate gate, marked and set apart from the other gates
i. If yes => union not able to picket (if meets other two)
ii. If no => mixed use => EEs can picket here, can have MDD (i.e. some are doing
maintenance work and some are doing new construction looked like that in General Electric)
b. Whether the work is related the normal operations of the employer
i. If indepdent contract work is related can picket the gate (can appeal to secondary EEs)
ii. If independent contractor work is unrelated cannot picket the gate (must meet Moore Dry
Dock standards for the rest of the plant, and the gate will not be their primary)
c. Finally, if this work were done during a time when normal operations were occurring, would it mean
they have to shut the plant/operation down?
i. If yes => the union can picket. Dont want to have separate gate so that ER could have it for
something that he would have had to cease operating to do (i.e. replacing equipment).
ii. If no => support the employer having the separate gate
d. Gates in Construction Cases
i. Denver Buidling
E. Consumer Appeals (Tree Fruits vs. Safeco)
1. Servette: ok to ask a secondary ER (or an EE with managerial discretion) to stop dealing with the primary, or
to threaten lawful action
a. unions request to supermarkets to stop stocking Servette, and even backing that request with threat
that it would distribute handbills asking the public not to buy named items distributed by Servette (and
actually distributing the handbills in some cases) was not ULP (Supreme Court).
b. Two reasons: (1) this was not a secondary boycott because there was no inducement to cease work;
c. (2) The handbills would have been covered in the publicity proviso, not coercive within the scope of
secondary boycott but instead publicity; unions behavior did not threaten, restrain, or coerce the
retailers within the meaning of 8(b)(4). If the union threatens something it could lawfully do, that
threat is not prohibited.
2. Producer in Secondary Boycotts Publicity Proviso is construed broadly
a. Supreme Court held that it did, even though they were just distributor had not produced anything in
Servette therefore the threat of handbilling was within the shelter of publicity proviso, because the
handbills themselves were also within publicity proviso (producer-distributor).
b. DeBartolo, again: (620) producer could cover construction, could be producer of store
construction but the Court would not extend it as far as that all the business tenants in the shopping
mall were sheltered (ex. could not say that their retail businesses were also products produced by the
construction).

3. Consumer Appeals-
a. Publicity proviso non-picketing publicity ok to advise public that product produced by primary ER
is distributed by secondary ER
i. but musnt interfere with pickups and deliveries
ii. only chain of production/distribution

b. Tree Fruits (622): union picketed outside supermarkets and asked customers not to buy Washington
apples, EEs were fruit co. employees on strike against fruit supplier ER (walking back and forth in
front of Safeco)
i. Rule: Single product picketing (aimed only at consumers, not secondary EEs) does not
coerce secondary ER no ULP
1. This action is not coercion within meaning of ban on secondary boycott because
there is no inducement of anyone to stop work and picketing only persuades the
customers not to buy the struck product (de minimis economic impact) not at the
secondary employer generally, not asking customers to withhold patronage from the
secondary employer in total, only at their struck product in the store. Rather, they
were only asking customers to boycott the primary employers goods, and in an
environment when this was possible.
2. Safeway could only coerced if had substantial economic impact on its business
ii. Cf. Kroger- it wasnt possible for the customers in that case to separate out what was primary
product (the bags) from what was not, because the bags were what they used for everything.
This became into situation where the one product seeped into everything; could not be
separated.
c. In Safeco Title Insurance Co., union picketed local title companies that sold Safeco insuranc
i. Court held the picketing as illegal and distinguished Tree Fruits: Where the struck products
are the main products of the store and secondary picketing against consumption of the
primary product leaves responsive consumers no realistic option other than to boycott the
secondary company altogether, this is a violation of 8(b)(4)(ii)(B)
d. Middle situations: reasonably likely to result in ruin or substantial loss test
i. Footnote from Safeco ruin or substantial loss as the deciding factor.
ii. Court: If secondary picketing were directed against a product representing a major portion
of a neutral employers business, but significantly less than that represented by a single
dominant product, neither Fruit Trees nor Safeco would necessarily control.
iii. In such a situation, the critical question: Is the secondary appeal reasonably likely to
threaten the neutral party with ruin or substantial loss? a question for the Boards
expertise.
e. DeBartolo Applying Tree Fruits and Safeco, and because of Const concerns, the Court narrowly
construed 8(b)(4) so as not to bar customer handbilling on a secondary site see above
i. Customer handbilling= ok
ii. And it is OK even on a secondary site
f. Could be an argument that Tree Fruits esp. and the subjective standard leave the 1959 consumer
amendments less powerful than Congress intended (p. 635).

F. Hot Cargo Clauses
1. Hot Cargo Clauses
a. Hot Cargo Clause: Agreement between an employer an a union where the Eer voluntarily agrees to
stop doing business with another, for example a non-union or struck company.
i. It is an ULP for a labor organization and an employer to enter into a contract in which the
employer agrees to cease from handling any of the products of any other employer, or to cease
doing business with any other person. ER and U cannot agree that ER will not deal with
someone
ii. 8(b)(4)(A) U cant strike, coerce, etc. to obtain or enforce a hot cargo agreement, either
b. Hot cargo agreements are illegal, and strikes to obtain hot cargo clauses are illegal. There are
exceptions for construction industry and garment industry. A strike to obtain a hot cargo
provision is an unfair labor practice
i. 8(e): It shall be an ULP for any labor organization and any employer to enter into any contract
or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease
or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products
of any other employer, or cease doing business with any other person, and any contract
containing such an agreement shall be to such extent unenforceable and void
ii. PROVIDED, That nothing in this subsection shall apply to an agreement between a labor
organization and an employer in the construction industry relating to the contracting or
subcontracting of work to be done at the site of the construction, alteration, painting, or repair
of a building, structure, or other work
c. Secondary Boycott Analysis
i. Have the beef with: the person that doing that boycott of the struck company, the non-union
company (primary)
ii. Taking action against: the party that is your employer who here, the union does not have the
beef with
iii. Therefore, it is secondary pressure.
d. Examples/Why we dont allow these
i. If the Teamsters succeeded in persuading all trucking companies that they work for to agree that
the company (ex. Company A) would not require Teamsters to handle the goods of any
employer who became involved in a labor dispute with Teamsters, Intl.
1. Making the employer have a boycott of anyone who gets in a strike with the
Teamsters making the employer a secondary party to your beef with the people
who do strike the Teamsters (other ERs)
ii. Then, if a labor dispute arose in the ABC Stores, the teamsters, under such an agreement with
their employer, would refuse to handle ABC Stores goods.
iii. This is subjecting the employer of the Teamsters to the secondary pressures by the union that
Congress has found dangerous; the employer is now hurt by the labor dispute of another
(because Teamsters Employers employees arent handling certain products).
iv. Subcontracting Clause
a. **union standards clause may be okay in some jxns
Board had decided that union standards NOT okay 649,
653
b. union signatory clause is not okay: except in
construction
2. From Meat Highway Drivers - the signatory clause requiring employer to
subcontract with unionized companies only. Was going to say that employer could
not do business with certain businesses (i.e. nonunionized businesses), this is like a
hot cargo clause, because restricting who the ER can do business with.
3. (A subcontracting clause which allows the employer to subcontract work only to
employers having bargaining agreements with the union is illegal under 8(e).
4. Rationale: this makes the person that the union cares about the contract of (the
subcontracting potential party) the primary because that is who the beef is with
but even if it were a work preservation clause, it fails under the union objectives
elsewhere test of National Woodwork => the clause is not limited to concerns over
protecting work at the contracting employer.
2. Is it a hot cargo clause? Work Preservation Issues if this is a work preservation, it will not be hot cargo
clause
a. What is a work preservation clause? Ex. National Woodwork
i. Philly housing project. Contractors association had a clause in their contract that said no
member will handle any doors which have been fitted prior to being furnished on the job. They
wanted to finish the doors. When the finished doors came, the union refused to handle them.
The door company (or the union representing it the Woodwork Manufacturer) filed charges
that the will not handle provision violated Hot Cargo Prohibition (was a do not handle clause,
that violates NLRA).
1. Argument of doormakers: they are doing a boycott with us, this is secondary action,
even if they dont like us, they cant use secondary boycott as the means to achieve
this in their K, Hot Cargo Clauses are illegal.
ii. Supreme Court: upheld the Boards dismissal of the case; this was not a secondary activity, this
was about preserving the work of the bargaining unit. K Held: here the object of the provision
in the CBA was to preserve work that was traditionally performed by the bargaining unit
employees, therefore not a violation/not a hot cargo clause.
b. TEST: Is the clause limited to concerns over protecting work at the contracting employer?
i. Whether an agreement is a lawful work preservation agreement depends on whether, under the
surrounding circumstances, the Unions objective was preservation of work for bargaining unit
employees, or whether the agreement was tactically calculated to satisfy union objectives
elsewhere (Natl Woodwork)
ii. Iin addition, the work must be traditionally done see below, meat drivers (whether the work
has been traditionally done by bargaining personnel)
c. A union can violate an otherwise valid WPC by enfocing it against non-union products but not
against union products if agreement is valid, Us concerted refusal to enforce the agreement does
not violate 8(b)(4)
i.
3. Is it a hot cargo clause? Work Acquisition vs. Work Recapture in Work Preservation
a. Meat Highway Drivers (646) - the work allocation clause
i. Clause required that all deliveries in Chciago, whether from within the city or from out of state,
be made by union EEs covered the agreement.
ii. To be work preservation, objective must be to preserve jobs that have been traditionally held by
the bargaining unit
1. Were these jobs that traditionally have by the bargaining unit => were these jobs that
the bargaining unit traditionally had?
a. Held that they were we have not work acquisition but work recapture
2. Business had lost jobs recently, this was work recapture of some of the recent
changes.
iii. When can have work recapture?
1. Technological changes (ex. doors)
2. Methods of distrubtion are changed
3. Work must be fairly claimable
4. Is it a hot cargo clause? Right to Control Issues
a. Enterprise Assn (Pipefitters)
i. Union signed agreement with heating and AC sub-contractor providing that the threading and
other work on the AC units for a jobsite would be by the union. But the general contractors job
specifications were to have pre-cut AC units. When the AC units arrived at the jobsite, the
union refused to install them because of the clause
ii. Issue 1: Work Preservation Clause VS. Work Acquisition Clause
1. The clause in the contract itself: which the Supreme Court DID see as a work
preservation clause. The clause was lawful, was NOT a hot cargo clause. Can still
apply the work preservation rule.
b. But, although the clause was lawful, Supreme Court held that it was unlawful to enforce it under these
circumstances unions objectives were not limited to influencing the subcontractor (their employer)
but also the general, because the GC alone had the power to distribute the work you said it was
only to the one you made the contract with, that your work preservation clause enforcement was only
against the sub, but the sub doesnt have the right to hand out that work, it is actually also against the
general. and because the union sought to influence the policies of another employer, the majority
found this enforcement of the WPC secondary economic pressure

Therefore, a lawful work preservation agreement must pass two tests:
1) Objective must be preservation of work traditionally performed by employees represented by the
union
2) Contracting employer must have power to give employees the work in question the right of
control test

If the clause is a work preservation clause, normally (except in the right of control situation), union
can strike to get the clause AND strike to enforce the clause unless the employer gives up control over
the work by making an agreement with a third party.

5. Special Rules and Exemptions: Construction and Garment
Construction Industry Garment Industry
Contents of the
Hot Cargo
Clause
Can only apply to things made or
work done on the job site.
Can have any contents
-Er cant contract with
nonunion companies (beef
w/the nonunion)
Getting the Hot
Cargo Clause
Can strike to get it - no NLRA violation Can strike to get it - no
NLRA violation
Enforcement CANNOT strike to enforcenot
protected under NLRA but can enforce
as a breach of contract.
Can strike to enforce it
this is protected (ex. can
take action to enforce the
hot cargo clause)

a. Construction Industry
i. Reason: Union does not like to work alongside non-union at a construction site
ii. Union can strike to obtain without violating 8(b)(4)(A), but a strike to enforce violates 8(b)(4)(b)
1. Damage suit to enforce is allowed
iii. Applies to things made or work done AT THE SITE ONLY.
1. Strike to obtain a hot cargo clause relating to work done elsewhere is not lawful
(because the hot cargo agreement isnt within the exception).
2. If the materials were manufactured elsewhere, they are not covered by the proviso
3. The employer is still allowed to refrain from accepting jobsite materials made
elsewhere by a nonunion company
iv. Why cant the construction union enforce the hot cargo agreement? Strikes to enforce a hot
cargo agreement would o sever the business relationships between the employer and the other
party when already started are banned.
v. Connell Construction Co. (SC 654): Stranger to the contract. a big union, which was not
involved on this jobsite, picketed a major construction project until it got an agreement that
Connell would use only workers in its union. RULE: The authorization given by the
construction proviso for hot cargo in construction extends only to agreements (1) within the
context of collective bargaining relationships and (2) possibly to common situs
relationships on particular jobs site.
vi. Woelke & Romero Framing having the agreement (agreement that construction ER will not
subcontract to non-union EEs) in CBA is fine

G. Other Concerted Activities Issues
1. Work-Assignment Disputes
a. Congress enacted 8(b)(4)(D) to deal with work-assignment disputesdisputes over which specific
unions membership should preform particular work for an employer.
b. It is an ULP for a union to cause a strike or concerted refusal to handle goods in order to compel an
employer to assign work to EEs represented by one particular union instead of to employees
represented by another union.
i. 8(b)(4)(D) It is an unfair labor practice for a union to induce a strike or a concerted refusal
to work in order to compel a employer to assign particular work to employees represented
by a union rather to employees represented by another union, unless this is in violation of
an order or certification of the Board determining that the employees were the union that
should be performing that work.
c. Procedure for 10(k) Hearing
i. If a U strikes or threatens to strike to obtain work, ER or competing union can file an
8(b)(4)(D) charge not until this strike or threat to strike happens
ii. But hearing will not proceed at all if within 10 day of receiving notice of the filing of the
Section 8(b)(4)(D) charge the parties to the dispute submit to the Board satisfiactory
evidence that they have resolved the dispute
iii. If they havent resolved within 10 days, Regional Director can then seek a federal court
injunction under 10(l) if there is rsbl cause to believe that a violation of 8(b)(4)(D) has
occurred.
iv. At the 10(k) hearing: Regional Office conducts
1. Board must make a decision (Radio and Television Union). Employer has to show
up, in addition to the two competing unions.
2. Criteria the Board uses for 10(k) disputes Machinists Lodge
a. Skills and work involved
b. Agreements between unions and between employers and unions
c. Awards of arbitrators
d. Common sense and experience
3. Must settle work-assignment issues thru this method, NOT through striking or
concerted refusal to work. AND the ULP charges of the unions will be dismissed if
there is a voluntary adjustment of the work
v. Upon compliance by the parties to the dispute with the decision of the Board or upon such
voluntary adjustment of the dispute, such charge shall be dismissed.
d. Enforcement
i. Ex. if the Board awards to one of the unions, but the employer continues to insist on giving
work to the other union. - Plasters Local
ii. (1) The 10(k) decision standing alone binds no one. That will instead come from the
8(b)(4)(D) proceeding (a) when the union strikes or does concerted refusal when the work
was other than an award from the Board aka if dont comply and act against it, will be
union ULP; or (b) if the union got the work they can take action if they want to, because
this will be protected by 8(b)(4)(D).
iii. if the winning union is not acutally assigned the work, it can strike/picket w/o violation the
section.
e. Orders arent final orders; arent directly reviewable: need to have 8(b)(4)(D) strike or picket in order
to get review of the Boards decision here.
f. Radio and Television Union (CBS) (656): conflict between the two unions over who would get certain
work. Employer didnt know what to do, divided work between the two, but then each of the unions
had work stoppages. Board had to make a final determination, need to make an affirmative decision of
who gets the work in a 10(k) proceeding.

2. Featherbedding
a. Labor unions are free to press for make-work devices in collective bargaining and to oppose the
introuciton of labor-saving machinery (can engage in concerted activity) can bargain for in
negotiations (ex. Gamble).
i. Where proposals in good faith contemplate the performance of actual services (even if
saving labor, making more tedious) no ULP
b. But it would be an ULP to take action to call or engage in a strike where the object to he strike is
featherbedding practice or take other action to establish standby arragnements or otherwise secure
payment when no work is required.
c. Employment of unnecessary number of workers, all of whom perform somework, CONTRASTED
with payment and compensation of stand-bys. But unions remain free to seek make-work devise
and oppose labor-saving machinery.
d. Examples of make-work agreements (where some, not NO work, is required)
i. Gamble Enterprises: musicians were on standby for traveling show, they were not really
needed. But the standby musicians were held to be okay because they did some work
proposals were offered in good faith of substantial performance by the musicians was
ok
ii. Minimum number of crew regulations in railroads
iii. Insisting on inclusion in the CBA of a provision for making bogus type make bad type,
throw it away, but then they were doing something) American Newspaper Publishers Assn
v. NLRB (not illegal if they are doing something)
iv. Painters going over with a dry brush pipes that have already been painted
e. Motivated by a desire for job security/employee claim health and safety
3. Violence and Union ULPs -Violence during a strike or picketing may subject a union to several sanctions
a. Discharge
i. If EEs engaging in violence are employed by the company that is the object of their violent
strike may be discharged for their conduct b/c is now an unprotected strike
ii. Not within 7 or 8(a)(1) shelter no longer protected concerted activity; to be protected by
8a1 must be protected by 7.
b. State courts may enjoin the action **another way injunction happens in addition to Boys
Market
c. State courts can issue a judgment of damages (compensatory AND punitive) against a union found to
have engaged in violence (serious violence to person and property during strike/picketing)
d. Possibly criminal prosecution
e. If the misconduct can be charged to a union, it maybe found to violate Section 8(b)(1)(A) saying that
union cannot force an EE to engage in union to stop violence
i. State authorities have congruent power with national to stop
ii. Agency law principles applied to hold union accountable (union not automatically
accountable)
iii. **but, if threats to strike-breakers, or physical injury to them, are by officers or EEs of the
union within their general scope of activities on behalf of the union even despite contrary
union instructions, the union may be held accountable (Longshoremens Union) whether
the acts were specifically authorize is not controlling
iv. However, Board will not grant monetary damages
v. Instead, cease and desist, or 10(j) injunction in aggravated cases
f. Bagwell excessive fines amounted to criminal sanction, not civil need jury trial
4. Remedies for Union ULPs
a. 10(j) injunctions; discretionary and very infrequent; examples include:
i. strike during 8(d) cooling off period
ii. inducing ER discrimination against nonmembers
iii. violence or mass picketing
iv. These are different than 10(l) because can only be sought by RD after a complaint has been
issued at the regional office AND only authorization by a full Board AND lies within the
discretion of the RD and is not mandated by the NLRA.
b. 10(l) mandatory injunction for secondary and recognitional violations, also strikes in support of
work assignment demands
i. If there is a secondary boycott, the secondary ER will file a charge in violation of section
8(b)(4)(ii)(B) and the Regional Director will issue a complaint and seek an injunction under
section 10(l). The district court will then rule on the injunction; gets priority in office
obligation on RD to request injunction and the charge is believed to have merit
ii. traditional equitable test: suffer irreparable harm, likely violation, likely to succeed on the
merits
c. 303 damages for 8(b)(4)
i. in Taft-Hartley, ULPs are federal torts. These torts may be remedied by actions in federal
and state trial courts for damages for past economic caused to the employer
ii. No damages before the Board; must sue for damages in court
iii. When can employer bring a 303 claim:
1. Threshold: what the union has done must be an ULP
2. There is past economic harmthat has been done to an employer.
iv. Is limited to
1. Compensatory damages, no punitive damagens
2. Also no injunction under 303. have to go to Board for that under 10(l) or 10(j).
v. It is possible that the Board could find NO union ULP district court in federal tort action
could find that the union owes compensatory damages
vi. ALSO the union might have to pay punitive damages if there is also an action in state law
pendant jxn where punitive damages
vii. Examples of damages: if ER in a secondary boycott is the secondary neutral party that
gets harmed; loss of business profits that can be ascertained with reasonable certainy; time
and money spent attempting to have the picketing stopped.

Section V: Administration of the Collective Bargaining Agreement

A. Grievance Arbitration
1. Grievance Procedure
a. Grievances: disputes that relate in some manner to the proper interpretation or application of the CBA
b. Grievance procedure: Procedure for dealing with the resolution of contract disputes, not by lawsuit in
civil court, but instead by internal plant/company machinery.
i. Grievance time limit is usually within a matter of days
c. Union/ER objectives about the grievance procedure
i. Union wants to set out with specificity how the grievance and management procedure is
going to be followed
ii. Union wants a lot of steps, ER doesnt want a lot of steps
iii. Typically starts by having the aggrieved EE or union to present grievance to appropriate
supervisor or foreman, and moves up the chain. Final step is arbitration.
d. Above all: OBEY AND THEN GRIEVE. You get to grieve if you DID what you were supposed to
do.
i. Better for industrial justice and plant efficiency.
ii. Its part of collective bargaining: the remedy is in the grievance procedure, not in the
individual disobeying.
iii. Remedy is in the greivacne procedure not extra-contractual methods
e. Pro of system: promotes industrial peace, b/c substitute for economic warfare
i. Less time and money
ii. Solves the unforeseeable
iii. Can consider long term factors
f. Con: if we think strike is good/important way for the union to have bargaining, usually takes away the
unions right to strike
2. Labor Arbitration System
a. Have arbitration provisions in an estimated of 96% of all agreements today
b. Most common = individual, occasionally can be three-person panel. Usually decide on the arbitrator
on ad hoc basis. Or might have a permanent umpire selected. Umpire thinks more about long-term,
big picture; ad-hoc thinks more about this dispute only, also more into splitting the difference so gets
rehired.
c. Arbitrator is a creature of contract: the parties can place limits on what the arbitrators role can be.
i. Management wants a clause saying that the arbitrators has only ability to interpret the CBA,
not that the arbitrer can add.
ii. Unions think that they will get a more sympathetic hearing from an arbitrer
iii. Can bargain for the relief the arbitrator is able to give.
iv. Can bargain for whether/not arbitrator has to write post-arbitration briefs to explain decision
(doesnt have to, but could); or that the arbitrator has to rule then and there.
v. Hearing can take place almost anywhere an office, conference room at a plant, hotel room
vi. Often parties are not represented by lawyers; evidence rules dont apply. Usually represented
by shop steward and ER representative. The union will typically bargain for shop steward to
get super seniority b/c they are acting as the lawyers and the union has put in the time to
train/invest them
vii. Dont require that there is a written decision although can bargain for that
viii. Can also bargain for the kinds of relief that an arbiter will give
d. ER will have the burden if the arbitration is for dircrimintation or discharge
i. Just Cause: most grievances are about discipline of EEs.
ii. Burden of proof is on the union, but in just-cause dismissals, the ER has the burden
e. Arbitration depends on the context of the employment context
f. Employees past record is critical
g. **Relate to the duty to bargain:
i. Arbitration Clause mandatory (and arbitration clause implies a no-strike clause - Lucas
Flour)
ii. No-strike clause mandatory
iii. BUT, interest arbitration clause is a PERMISSIVE subject.
1. Clause says: if we cant reach an agreement regarding the next agreement at the end
of this one, we will have an arbitrator come in; this is a permissive subject b/c it is
talking about wages, hours, etc. in the NEXT agreement and mandatory subjects only
apply to the CURRENT agreement
iv. Any WAIVERS of section 7 rights. because then it affects the conditions of employment,
requiring ED claims to go to arbitration (this is legal, see cases below, and dont get another
trial) will be mandatory.
h. Union will decide (sift through) the cases that it will take up to arbitration and the union can do this
as long as it is not violating duty of fair representation

B. Judicial Enforcement of Collective Agreements
1. Under 301(a), Congress has assigned the federal courts the duty of determining whether the reluctant
party has breach CBA contractual duty (ex. whether breached the obligation to arbitrate grieavnces).
a. District courts have subject matter jxn over enforcement of labor contract claims. Parties can sue in
federal court for enforcement of a labor contract. Otherwise would be stuck in state court because its
contract law.
2. Federal common law of labor disputes applies in 301 enforcement (Lincoln Mills)
a. Lincoln Mills: 301 authorizes federal courts to crate a body of federal law to enforce CBAs court
may order SP of promises to arbitrate under 301
b. Federal common law will apply
c. Norris LaGuardia does not prohibit order (had prohibited injunctions; this is different: congressional
policy of peaceful resolution of labor disputes favors enforcement of agreements to A).
d. Lincoln Mills U forcing ER to go to registration the CBA had no-strike clause and grievance
procedure with arbitration as final step (had both arbitration cl and no-strike cl); suit to compel
arbitration. Supreme Court compelled arbitration. 301 provides more than only to confer jxn of
federal courts over labor organizations, but also to determine whether the relevant party has violated
CBA.
3. Examples of federal common law by Supreme Court
a. Lucas Flour (691): an arbirtration clause implies a no-strike clause.
i. Caveat: If the parties want to bargain in the CBA for the arbitration clause to still allow the
right to strike, they can do this.
ii. In the case, Teamsters and ER had arbitration clause. But they didnt have an express
promise by the union not to strike during the term of the agreement. Teamsters struck. ER
commenced action in state court for damages from business losses against ER during the
strike. (damages from contract violation: violation of the CBA and ER wants damages, and
bringing suit in fed court for fed court to award damages) . Held: court could enforce
arbitration clause against the union and have them pay damages
iii. No-strike clause does not necessarily imply arbitration clause, but is quid pro quo for the
arbitration clause
b. Groves v. Ring Screw (692): plain language of a bargaining agreement could reserve the use of strike
to resolve grievances, but not favored method.
c. Wiley & Sons (703) another substantive rule- here there was a merger. Does the successor employer
after a M&A have a duty to arbitrate the unions grievance even though the CBA was made with the
prior company? Held: yes.
4. State court has concurrent jxn to federal court , but federal law will apply (Lucas Flour)
a. Dowd Box (691): actions can be brought under 301 in state or federal court. Not intended to oust
state courts also over having jxn.
i. But unions/ERs will probably remove it to federal court. (FQJ)
b. Lucas Flour (SC): but if parties bring in state court, the state courts enforcing labor contracts still must
apply federal law.
5. Enforcing the arbitration clause - ordering employers to bargain
Why arbitration? Lincoln Mills, Steelworkers decisions, Lucas Flour: have emphasized that arbitration is a means
to the end of the voluntary settlement of labor disputes, general goal of national labor-relations policy.
a. Court can enforce arbitration if the ER refused to arbitrate on the basis of the grievance not having
merit; a company must submit all grievances to arbitration regardless of how frivolous they may seem.
AKA court cannot refuse to order A because it thinks claim is frivolous, still must order arbitration.
(Steelworkers v. American Mfg)
i. Court is limited to determining if the parties had agreement to arbitrate not merits of the
grievance
ii. Steelworkers v. American Mfg. Co.: ER argued shouldnt have to go to arbitration because
grievance was frivolous). Court still orders arbitration .
iii. Rationale: There is no exception for those deemed to be meritorious in the no-strike clause,
and they are quid pro quo for each other (aka if arbitration giving up the right to strike on
this) so the arbitration has to be able to include merit/non-merit. Also, airing grievances
may reduce tension in workplace.
b. Parties do have to go to arbitration where anything short of clearly excluding the issue from
arbitration.
i. Resolve doubts in favor of coverage: 99% of the time have to go to arbitration, would
have to be very clear that the party maintained its right not to arbitrate to get past this test.
ii. Famous test: an order to arbitrate the particular grievance should not be denied unless it
must be said with positive assurance that the arbitration clause is not susceptible to an
interpretation that covers the asserted dispute.
iii. Warrior Gulf: had broad arbitration clause plus ambiguous mgmt. rights clause (issues
which are strictly a function of mgmt. shall not be subject to arbitration). But the ER still
had to go to arbitration because to decide on whether this required arbitration would require
arbitration, did not meet positive insurance that the arbitration clause is not susceptible to
such an interpretation requirement, when the issue was whether the ER had to arbitrate
over contracting-out grievances when had clause saying that matters which are strictly a
function of mgmt. shall not be subject to arbitration.
1. Also, past practices are important in dictating the present practice, scope of in
managemtn functions and whether the action would be within the scope (see
Verizon ex. p. 702)
iv. If had a CBA clearly excludes subcontracting, specifically, from arbitration, though that
might be the 1% of times that the court couldnt order arbitration over it. unless
specifically
c. Arbitration after CBA expires
i. Wiley & Sons (703) merger issuedoes the successor employer after a M&A have a duty
to arbitrate the unions grievance even though the CBA was made with the prior company?
Held: yes, procedural arbitrability is for A to decide (issue was whether had followed the
preqs to arbitration).
1. Substantive: Court can order to arbitrate if this is in the bargaining agreement;
district courts job is to interpret the contract of the CBA.
2. Procedural: did a party do everything they were supposed to do before arbitration-
this is an issue for the arbitrator.
ii. There is is a still a duty to bargain in GF and not take unilateral action (ER commits ULP if
makes unilateral change in existing term if doesnt bargain to impasse.)
1. But NLRA doesnt require that arbitration clause continue after end of K or that an
ER commits a ULP when changes clause w/o bargaining to impasse.
2. In general, A clause does not extend beyond termination of CBA
iii. However, some grievances after the CBA expires may arise under the agreement, but
otherwise contractual obligations will case. Three situations where A clause continues after
CBA has terminated:
1. If offense took place before K expired
2. If theres a right that accrues or vests before K expires, and the grievance is about
that right.
3. the facts that lead to the grievance occurred during the period of the CBA
iv. There will be a presumption of arbitrability post-expiration for disputes arising
under/during the CBA, unless expressly negated.
1. Nolde Brothers (SCOTUS, 1977): After K expires, grievance over severance pay.
Vested right, like severance pay, that arises under the K then the right continues after
the K. UNLESS express provisions in the K that negate it.
2. Ex. EE is accused of stealing, then the CBA expires the next week (/month) and they
are fired. would be arising under the CBA
3. But in Littion no order to arbitrate. EEs argued that their seniority should have been
taken into account for layoffs, the layoffs occurred a year after the CBA. Court held
no obligation on ER to go to arbitration on these layoffs .
a. Offense took place after CBA.
b. Seniority was not vested and they no longer had the layoff protections
after CBA
v. Terms that expire with the CBA
1. Union security clause
2. Dues check-off clause
3. No-strike clause terminates with K unless grievance arbitration continues
4. Arbitration clause
d. United Steelworkers v. Enterprise Wheel & Car
i. Arbitrator can order reinstatement and backpay after expiration of CBA, for claims arising
during CBA
6. Enforcing the arbitration clause review of A awards
a. After the grievance has gone up through the G-A procedure, the employer might bring an action to set
aside the award. In this case, the award is now being reviewed by the court. As long as arbitration
decision is drawn from the K, court should enforce it.
i. Can be ambiguous
ii. Doesnt need to provide an opinion unless bargained for this (this can make it difficult for
a court to assess to what extent the arbitrator actually followed the law).
b. Essence Test (Enterprise Wheel)
i. Essence test: as long as arbitrator purports to be interpreting the K, then the arbitrators award
is OK and enforceable, even if there are mistakes of facts or law. The arbitration award is
enforceable so long as draws essence from CBA.
c. Only time dont apply is where:
i. (1) not drawing from the CBA arbitrators own views only, arbitrator is no longer within
the scope of authority
ii. (2) fraud or dishonesty
iii. (3) affirmative misconduct (SCOTUS in Garvey, 2001)
iv. (4) public policy is in violation of arbitrators decision but very narrow exception
d. Enterprise Wheel & Car Corp (SC, 715):
i. The employee had applied for backpay after fired, arbitrator awarded the backpay. ER refused
to comply with award, union sued to enforce the award in district court. District court directed
ER to comply with the award. COA refused to enforce the arbitrators award. Supreme Court
overturned. Courts should not refuse arbitration awards on the merits.
e. Garvey (SC): baseball case
i. COA could not overturn the credibility of the determinations of the arbitrator, even if there
were error s of fact or interpretation, could not overturn on the merits of the decision. Only if
the arbitro is dishonest or affirmative misconduct. (baseball case: arbiter also didnt admit
evidence of a letter written at the time of the arbitration admitting to the collusion).
ii. As long as arbitrator purports to be interpreting the K, then the arbitrators award is OK and
enforceable, even if there are mistakes of facts or interpretation of law (improvident, even
silly factfinding is OK and will enforce the award or even serious error).
f. Factfinding is for the arbiter, not for the courts on appeal
7. Public policy issue in A awards very narrowly construed
a. The policy must be not just based on general considerations of supposed public interests but on a
well-defined and domiant policy reflected in speicifc laws and legal precedents.
b. Eastern Associated Coal Corp.
i. Public policy exception (allowing court to overturn A award) is very narrow and must be
based on a very clear PP
ii. Arbitrator ordered ER to reinstate EE who was fired b/c tested positive twice for pot.
Award violates no specific provision of any law or regulation consistent with DOT rules,
etc.
c. United Paperworkers Intl v. Misco: SCOTUS enforced award reinstating drug-selling EE because it
was not baed on sufficient public policy. EE worked at dangerous slitter-cutter machine at paper plant.
i. The policy must be explicit and in positive law companys public policy concers were
based only on general considerations of supposed public interests not specific laws and
legal precedents.
ii. Unanimous Supreme Court reversal
8. Enforcing a No Strike Clause
a. Boys Market Norris-LaGuardia does not forbid a court from enjoining a strike in violation of a no
strike clause, so long as
1. The CBA has an arbitration clause (and the parties have both agreed to this
arbitration or no-strike clause)
2. The dispute must be based on something arbitrable under the grievance procedure
(a grievance which both parties are contractually bound to arbitrate).
a. Cause of the dispute must be subject to the settlement procedures provided
by the K by the ER and union (striking in violation of a no-strike clause).
3. Equitable relief standards are met ongoing and currently going o breach, the breach
will cause irreparabe, balancing harm to U and ER (ER will suffer more from having
the strike continue than the employees will than if issue an injunction).
b. Boys Market --The union and ER had CBA with broad arbitration clause and no-strike clause. EEs
refused to restock merchandise in frozen food (supermarket), employer sued for injunctive relief.
Court was allowed to order injunction, even though subject also to arbitration for settling grievances
where there is a violation of no-strike clause an d other conditions met.
i. Policy if no injunction, disincentive for ER to agree to A/no strike arrangements, b/c
damages arent enough incentive for ER to agree to arbitration (damages are not
sufficient award here, and action for damages furthers industrial strife).
c. Buffalo Forge (SC, 740) ** if strike not over arbitrable offense, court has no ability to issue an
injunction.
i. Boys Market ONLY extends to arbitrable grievances (a grievance which both parties are
contractually bound to arbitrate) if there is NOT a no-strike clause, or this is activity that
is not expressly barred as part of the no-strike clause, it will not be enjoined. (Buffalo Forge)
Normal no strike clause does not extend to sympathy strike (unless have a no sympathy
strike provision).
ii. Company had a no-strike clause, management and production EEs refused to cross picket
line of the clerical EEs who were on strike. ER sought injunction, court refused- the
sympathy strike was not an arbitrable grievance was not in the CBA. Did not meet the
first part of the test, this was not in the CBA, was not an arbritable grievance, no injunction.
[sympathy strike = refusal to X picket line] (was at EEs own site)
d. Other limits:
i. Mastro Plastics no strike clause held not to cover strike against serious ER ULPs which
undermined Us representative status. (special rules for ULP strike, serious enough that
union was not able to maintain rep status)
e. 2Employee liability?
i. Limits of 301 if find union violation of CBA: only union has to pay; individuals are not
liable for damages under no-strike clause. (Atkinson ER wanted 24 individual EEs to pay,
held: EEs were not liable for damages)
ii. 301(b): reversed CL rule that labor org couldnt be sued as entity. Not enforceable against
individual members or assets.
f. Union liable for damages related to wildcat strikes?
i. Reis: employees participated in a wildcat strike which was not authorized by the
signatory union and therefore the union could not be held liable for damages. However,
Court held that even though this result would leave the employer with no financial remedy
for the loss of business during a wildcat strike), Congress did not have intent to hold
individual employees liable for damaegs.
1. Instead, disciplined for EEs who engage in unprotected wildcat strikes = they are
unprotected, can be discharges
2. ~ Emporium Capwell
ii. Carbon Mines: Local and international union not liable for damages from violation of a no-
strike clause by wildcat strikers, unless ER can show that the union (local or international):
(1) adopted, (2) encouraged, or (3) prolonger the strikers or was otherwise responsible by
principles of agency. BUT it is okay to do nothing or fail to use reasonable means to
control the action.
1. In Carbon Mines, unions were NOT liable for failing to use reasonable means to
control the actions of the locals or of the wildcat strikers.
2. 301(e): agency law governs but whether the acts were actually authorized or
subsequently ratified is not controlling.
g. Applying Boys Market:
i. Did the CBA have an arbitration or no-strike clause?
ii. Was the dispute based on a grievance that both parties (especially ER) were contractually
bound to arbitrate?
1. Must be the specific type of strike: Buffalo Forge, cant extend no strike clause to
sympathy strike by the EEs as arbitable grievance.
iii. Were the standards for equitable relief met?
iv. If so, who is liable?
1. Authorized by union? (adopted, encouraged, prolonged)? union can be liable for
damages, but not EEs
2. Wildcat strike? No U liability for financial damages (ex. the loss of business during
wildcat strike), unless can prove union adopted, encouraged, or prolonged the
strikers.
9. Other options available to employer in addition to 301 suit to compel arbitration
a. 8(a)(5) ULP charge
b. 301 suit for breach of contract if no arbitration clause in the CBA


VI. Role of the NLRB and the Arbitrator During the Term of a Collective Bargaining Agreement (p. 745-808)
1. Concurrent jurisdiction of NRLB and Arbitrator
a. Issue: who has jurisdiction/control of the dispute if there is conduct that allegedly violates both the
CBA and the Act? (traditional breakdown: CBA violations: the arbitrator usually deals with; NLRA
violations: unfair labor practices, the Board deals with).
i. 8a3 often interacts with the discharge grievances: but an ER can fire an EE for anything as
long as it is not 7), also 8a5 (if ER unilaterally changes); but in the CBA union will bargain
for just cause provision: clause that provides that an employer may discharge employees
only with just cause (almost all have this). discharge arbitable grievance because
grieve that discharge not for just cause.
ii. Areas to look for interaction between the two:
1. Alleged discriminatory discharge for cause employment and 8a3
2. Representation or work-assignment issues
3. Unilateral employer action (employer takes an action such as contracting out
bargaining unit without first bargaining with the EEs, might violate a work-
preservation clause in the CBA as well as the duty to bargain of ER).
b. Carey v. Westinghouse: Arbitration can properly be ordered, even if issue is one which Board could
decide. (issue: if the A is the one thats doing the deciding and the issues would also be ULPS)
i. Issue was work-assignment dispute, which could have presented 8(b)(4)(D) issues or
violation of the CBA or the Boards bargaining unit abilities. Board compelled arbitration of
the mater, going to arb may have curative effect. State courts had held that the issues were
R case ULPs and the NLRB had exclusive jxn (because was bargaining unit, work assignment)
but Supreme Court ordered arbitration.
ii. **And in these cases the Board shows deference to the arbitrators award - the Board shows
deference to the arbitral award provided the procedure was fair and the award was not
clearly repugnant to the Act (Carey v. Westinghouse, SC).
c. C&C Plywood: Board has jurisdiction to decide ULP cases that would require it to construe
provisions of a CBA Board has the jxn to construe the CBA.
i. C&C Plywood (747) Board can decide a ULP charge, even if it involves construing the
CBA
1. Board was deciding 8a5 failure to bargain
2. Held that the Board could interpret the CBA in determining whether had violated
DTB
3. (Board generally does not have jxn over contract violations. Want contract violation
issues to go to arbitrator. Or if party wont go to arbitration, file 301 in district court
=> court looking at clause can order arbitration (arbitration policy of 301). But still
have ULPs and the Board has primary jxn over those issues.)

4.
ii. Acme - Board can still enforce the duty to bargain during the terms of the agreement, even if
it means looking to the CBA about disclosing information. Union asked company for
information, ER denied, union filed 8a5 ULP. Also here enforcing the ULP would aid in the
arbitration process, not intrude.
1. Was again important here that the Board was not generally construing what was and
was not a contract violation or dispute that was bargained for by the parties. Here,
Board was not making a binding constructionof the labor K, but aiding arbitration b/c
discovery-ty[e issue.
d. Board will generally defer to arbitrarors award deferral
i. The Board shows deference to the arbitral award provided the procedure was fair and the
award was not clearly repugnant to the Act (Carey v. Westinghouse, SC).
ii. Dubo: The Board will defer processing an ULP case when a similar contract dispute was
already being considered in the parties G/A procedure, which was likely to resolve it.
iii. Board does not lose jxn, but defers to the decisions of an arbitrator. The parties will be bound
by the decisions of the arbitrator, even if it is an ULP issue IF: (Spielberg-)
1. All the parties agreed to be bound by the arbitration decision
2. The procedure of the arbitration proceedings were fair and regular
3. The arbitration decision was not repugnant to the Acts purpose and policies
4. Arbitrator had heard and determined factual issues underlying ULP
iv. Olin Corp. (ER gave harsher punishment to union leader, the union had waived this in the
CBA. Would otherwise normally be a discharge) new harsher test; he party seeking for the
Board not to defer has the burden of persuasion.
1. Test: the Board WILL DEFER if (presumption of deferral).
a. The contractual issue is factually parallel to the unfair labor practice issue,
and
b. The arbitrator was presented generally with the facts relevant to resolving
the unfair labor practice.
c. Weigh that the award was not clearly repugnant** (palpably wrong,) to
the purposes and policies of the Act
i. The award must be susceptible with an interpretation consistent
with the Act [would be good herefore for an arbtr to render an
outline of those issues to avoid reversal]
d. The settlement is reached through a collective bargaining process which is
fair and regular
e. Board will also practice deferment to pre-arbitration grievance settlements
i. Bd. will defer to A which hasnt even happened yet (but retain jurisdiction in case is doesnt
meet Spielberg standards)
1. Downside here- looks like public rights lost through private
ii. Plumbers & Pipefitters (758) allowed Board to have pre-arbitration deferral (deferrment to
an employee committee)
iii. Titanium Metals Corp
1. Applying the Spielberg-Olin test.
2. EE was discharged. Before he was, the union had also pursued discharge through the
grievance procedure. Letter of Understanding between union and ER (he was not
discharged for protected activity).
3. D.C. Cir: this was not fair and regular process, there was no claim of the duty of
fair representation (when one EE from the union, *raise this), was considered with
facts relevant. And did not find repugnant where the ER and U waived an
employees rights when not violating duty of fair representation but there was
nothing legally impermissible in the terms of the agreement.
f. Board in R cases can have further proceedings about certification
i. Board will defer to an arbitrators judgment on a representation matter only if the arbitrator
applies the Boards criteria for making unit determinations - criteria include (stricter
test):
1. bargaining history, integration of operations, within the group, progression of
employees within the group from lower to higher grades
2. The arb could not ultimately decide on the award of representation, so it was not
interpreting the contract on the basis of these standards (Westinghouse)
ii. Westinghouse: after the rendition of the arbs award, the board assumed jxn to clarify the
unions certifications; arb neglected barginging history, operations within the group when
making determination.
2. Judicial Deference in Title VII
a. Alexander v. Gardner-Denver (racial discrimination claim) - title vii claim not waived in ct
i. Said that NO arbitration
b. Gilmer (NYSE and ADEA) - no title vii claim in court
i. Okay arbitration 764
c. Wright v. Universal Marine (ADA) Supreme Court reversed the COA decision relying on Gilmer
that the EE had to go to arbitration for the claim (unanimous Court): employees did not hve a clear
and unmistakable waiver of rights to audicial forum for fed claims of ED and therefore could go to
court
i. BUT did not reach the question of what could happen if did have such a waiver
d. Penn Pyett (SCOTUS, 2009) - did have such a waiver grievance/arbitration as the exclusive
remedy for all ED violations

B. Judicial Enforcement of Collective Agreements
10. Under 301(a), Congress has assigned the federal courts the duty of determining whether the reluctant
party has breach CBA contractual duty (ex. whether breached the obligation to arbitrate grieavnces).
a. District courts have subject matter jxn over enforcement of labor contract claims. Parties can sue in
federal court for enforcement of a labor contract. Otherwise would be stuck in state court because its
contract law.
b. Lincoln Mills: Federal common law of labor disputes applies in 301 enforcement (301 authorizes
federal courts to crate a body of federal law to enforce CBAs court may order SP of promises to
arbitrate under 301).
c. Dowd Box (691): State court has concurrent jxn to federal court. Actions can be brought under 301 in
state or federal court. Not intended to oust state courts also over having jxn. But unions/ERs will
probably remove it to federal court. (FQJ)
d. Lucas Flour (SC): but if parties bring in state court, the state courts enforcing labor contracts still must
apply federal law.
11. Enforcing Arbitration Clause
a. Substantive federal common law for enforcing arbitration clauses:
i. Lucas Flour: An arbitration clause implies a promise not to strike even though the contract
does not have an explicit no-strike clause.
1. Based on policy of promoting arbitration as the means to resolve labor disputes
2. Also comes into play in Boys Market, where can enforce specific injunction of no-
strike, even if only have an arbitration clause.
3. The scope of the no-strike clause will be the scope of the arbitration clause
4. Rationale: favor arbitration as the way to resolve labor disputes. (This is also the
rationale of Lincoln Mills (can order A as specific performance)
ii. Wiley v. Livingston: After a merger, a successor employer has a duty to arbitrate a unions
grievance, even though it was the predecessor and not the current ER who had the CBA
with the union.
1. Case also distinguished btw procedural arbitrability vs. substantive arbitrariliy
2. Substantive is for court to order, procedureal is for A to decide (issue was whether
had followed the preqs to arbitration).
3. Substantive: Court can order to arbitrate if this is in the bargaining agreement;
district courts job is to interpret the contract of the CBA. Presumption that a court
rather than the arbitrator is to determine questions of substantive arbitrability (and
order the ER to bargain). courts are to decide when there is disagreement about
whether there is a duty to arbitrate
4. Procedural: did a party do everything they were supposed to do before arbitration-
this is an issue for the arbitrator.
a. Rationale: same reasons as the Lincoln Mills: need to enforce arbitration
clauses
iii. Vaca v. Sipes: in individual actions under 301, the grievance machinery must be exhausted
before the EE can argue for Kual violations in court, unless there is a breach of the duty of
fair representation .
b. Lincoln Mills: Agreements to arbitrate can be specifically enforced by district courts because of 301.
i. Rationale: industrial peace comes in the form of the no-strike promise. If the unions made
the no-strike promise, they need to have their arbitration clause enforced. The arbitration
clause is quid pro quo for no strike clause is arbitration, it must be enforceable.
ii. Norris LaGuardia does not prevent specific enforcement. NLGA was passed to correct the
abuse of the injunction in labor courts, went against peaceful labor relations.
c. Steelworkers v. American Mfg: cant decide which to enforce arbitration clause on based on merit.
i. Court can enforce arbitration if the ER refused to arbitrate on the basis of the grievance not
having merit; a company must submit all grievances to arbitration regardless of how
frivolous they may seem. AKA court cannot refuse to order A because it thinks claim is
frivolous, still must order arbitration.
ii. Court is limited to determining if the parties had agreement to arbitrate not merits of the
grievance
iii. Rationale: There is no exception for those deemed to be meritorious in the no-strike clause,
and they are quid pro quo for each other (aka if arbitration giving up the right to strike on
this) so the arbitration has to be able to include merit/non-merit. Also, airing grievances
may reduce tension in workplace.
d. Steelworkers v. Warrior Gulf: Even if there is a management rights clause, parites must go to
arbitration where anything short of clearly excluding the issue from arbitration.
i. Resolve doubts in favor of coverage: 99% of the time have to go to arbitration, would
have to be very clear that the party maintained its right not to arbitrate to get past this test.
ii. Famous test: an order to arbitrate the particular grievance should not be denied unless it
must be said with positive assurance that the arbitration clause is not susceptible to an
interpretation that covers the asserted dispute.
iii. Warrior Gulf: had broad arbitration clause plus ambiguous mgmt. rights clause (issues
which are strictly a function of mgmt. shall not be subject to arbitration). But the ER still
had to go to arbitration because to decide on whether this required arbitration would require
arbitration, did not meet positive insurance that the arbitration clause is not susceptible to
such an interpretation requirement, when the issue was whether the ER had to arbitrate
over contracting-out grievances when had clause saying that matters which are strictly a
function of mgmt. shall not be subject to arbitration.
iv. Also, past practices are important in dictating the present practice, scope of in
managemtn functions and whether the action would be within the scope (see Verizon ex. p.
702)
v. If had a CBA clearly excludes subcontracting, specifically, from arbitration, though that
might be the 1% of times that the court couldnt order arbitration over it. unless
specifically
e. Steelworkers v. Enterprise: see below. Reviewing A awards: essence test. Policy for A is so strong to
have A as the means for settling labor disputes that the courts will only apply very narrow standard of
review for A awards.
12. Enforcing Arbitration after CBA expires
a. Rule: Arbitration does not continue in effect after the expriation of a CBA (unless arising under), not
extended even by operation of Boards approach to 8a5 in Katz (there is a duty to bargain in GF
before/after/during CBA, and no unilateral action).
i. Rationale: the principle behind arbitration is that it is consensual rather than compulsory,
arbitration is a creature of contract, especially agreement btw the parties (Litton)
b. Nodle Brothers/Linton: In general, A clause does not extend beyond termination of CBA However,
some grievances after the CBA expires may arise under the agreement, but otherwise contractual
obligations will case. Three situations where A clause continues after CBA has terminated:
1. If offense took place before K expired
2. If theres a right that accrues or vests before K expires, and the grievance is about
that right.
3. the facts that lead to the grievance occurred during the period of the CBA
ii. If meet one of these situations, there will be a presumption of arbitrability post-expiration
for disputes arising under/during the CBA, unless expressly negated.
iii. Application
1. Nolde Brothers (SCOTUS, 1977): Severance pay was a vested right; after K expires,
grievance over severance pay still arises under CBA, do have to go to arbitration.
2. If EE is accused of stealing, then the CBA expires the next week (/month) and they
are fired. would be arising under the CBA
3. Litton: no order to arbitrate. EEs argued that their seniority should have been taken
into account for layoffs, the layoffs occurred a year after the CBA. Court held no
obligation on ER to go to arbitration on these layoffs .
a. Offense took place after CBA.
b. Seniority was not vested and they no longer had the layoff protections
after CBA
c. Layoffs were not only based on the time the EEs had worked there (might
have vested during the time), but also their other qualifications, these other
qualifications did not vest or accure during the CBA.
4. Terms that expire with the CBA
a. Union security clause
b. Dues check-off clause
c. No-strike clause terminates with K unless grievance arbitration continues
d. Arbitration clause
c. Steelworkers v. Enterprise Wheel & Car: Arbitrator can order reinstatement and backpay after
expiration of the CBA, even if otherwise looks like it goes against these rules, if meets Essence Test.
13. Review of Arbitrator Awards
a. Enterprise Wheel: Essence test: as long as arbitrator purports to be interpreting the K, then the
arbitrators award is OK and enforceable, even if there are mistakes of facts or law. The arbitration
award is enforceable so long as draws essence from CBA.
i. After the grievance has gone up through the G-A procedure, the employer might bring an
action to set aside the award. In this case, the award is now being reviewed by the court. As
long as arbitration decision is drawn from the essence of the contract, K, court should enforce
it.
ii. A award can be ambiguous.
iii. It doesnt need to provide an opinion unless bargained for this (this can make it difficult for a
court to assess to what extent the arbitrator actually followed the law).
g. Essence Test: Only time dont apply is where:
i. Not drawing from the CBA arbitrators own views only, arbitrator is no longer within the
scope of authority
ii. Public policy is in violation of arbitrators decision but very narrow exception
iii. Meets one of very narrow reasons for overruling ER
1. Fraud
2. Affirmative Misconduct: exceeding scope of authority provided by CBA, manifest
disregard of the law
3. Award violates public policy (see below)
h. Enterprise Wheel & Car Corp (SC, 715):
i. The employee had applied for backpay after fired, arbitrator awarded the backpay. ER refused
to comply with award, union sued to enforce the award in district court. District court directed
ER to comply with the award. COA refused to enforce the arbitrators award. Supreme Court
overturned. Courts should not refuse arbitration awards on the merits.
i. Garvey (SC): baseball case
i. COA could not overturn the credibility of the determinations of the arbitrator, even if there
were error s of fact or interpretation, could not overturn on the merits of the decision. Only if
the arbitro is dishonest or affirmative misconduct. (baseball case: arbiter also didnt admit
evidence of a letter written at the time of the arbitration admitting to the collusion).
ii. As long as arbitrator purports to be interpreting the K, then the arbitrators award is OK and
enforceable, even if there are mistakes of facts or interpretation of law (improvident, even
silly factfinding is OK and will enforce the award or even serious error).
j. Factfinding is for the arbiter, not for the courts on appeal
14. Public Policy Cases
a. The policy must be not just based on general considerations of supposed public interests but on a
well-defined and domiant policy reflected in speicifc laws and legal precedents.
b. Eastern Associated Coal Corp.
i. Public policy exception (allowing court to overturn A award) is very narrow and must be
based on a very clear PP
ii. Arbitrator ordered ER to reinstate EE who was fired b/c tested positive twice for pot.
Award violates no specific provision of any law or regulation consistent with DOT rules,
etc.
c. United Paperworkers Intl v. Misco: SCOTUS enforced award reinstating drug-selling EE because it
was not baed on sufficient public policy. EE worked at dangerous slitter-cutter machine at paper plant.
i. The policy must be explicit and in positive law companys public policy concers were
based only on general considerations of supposed public interests not specific laws and
legal precedents.
ii. Unanimous Supreme Court reversal
15. Enforcing a No Strike Clause
a. Boys Market: if no strike clause => can have injunction. Courts can enjoin a strike if it violates no-
strike clause and meets these three conditions:
i. Norris-LaGuardia does not forbid a court from enjoining a strike in violation of a no strike
clause, so long as
1. (1) The CBA has a mandatory grievance-arbitration procedure.
2. (2) The dispute must be based on something arbitrable under the grievance
procedure (a grievance which both parties are contractually bound to arbitrate).
a. Cause of the dispute must be subject to the settlement procedures provided
by the K by the ER and union (striking in violation of a no-strike clause).
3. (3) Equitable relief standards are met ongoing and currently going o breach, the
breach will cause irreparabe, balancing harm to U and ER (ER will suffer more from
having the strike continue than the employees will than if issue an injunction).
ii. Union and ER had CBA with broad arbitration clause and no-strike clause. EEs refused to
restock merchandise in frozen food (supermarket), employer sued for injunctive relief.
Court was allowed to order injunction, even though subject also to arbitration for settling
grievances where there is a violation of no-strike clause an d other conditions met.
iii. Rationale: If no injunction for strike, disincentive for ER to agree to A/no strike
arrangements, b/c damages arent enough incentive for ER to agree to arbitration
(damages are not sufficient award here, and action for damages furthers industrial strife).
b. Buffalo Forge (SC, 740) ** if strike not over arbitrable offense, court has no ability to issue an
injunction.
i. Boys Market ONLY extends to arbitrable grievances (a grievance which both parties are
contractually bound to arbitrate) if there is NOT a no-strike clause, or this is activity that
is not expressly barred as part of the no-strike clause, it will not be enjoined. (Buffalo Forge)
Normal no strike clause does not extend to sympathy strike (unless have a no sympathy
strike provision).
ii. Company had a no-strike clause, management and production EEs refused to cross picket
line of the clerical EEs who were on strike. ER sought injunction, court refused- the
sympathy strike was not an arbitrable grievance was not in the CBA. Did not meet the
first part of the test, this was not in the CBA, was not an arbritable grievance, no injunction.
[sympathy strike = refusal to X picket line] (was at EEs own site)
c. Other limits:
i. Mastro Plastics no strike clause held not to cover strike against serious ER ULPs which
undermined Us representative status. (special rules for ULP strike, serious enough that
union was not able to maintain rep status)
16. Employee and Union Liability for Violatios of CBA (esp. strikes when no-strike clause)
a. Atkinson: Limits of 301 if find union violation of CBA: only union has to pay; individuals are not
liable for damages under no-strike clause. Where the ER wanted 24 individual EEs to pay, held: EEs
were not liable for damages.
i. 301(b): reversed CL rule that labor org couldnt be sued as entity. Not enforceable against
individual members or assets.
b. Reis: But the union is usually not liable for damages related to wildcat strikes.
i. Where EEs participated in a wildcat strike which was not authorized by the signatory
union and therefore the union could not be held liable for damages. However, Court held
that even though this result would leave the employer with no financial remedy for the loss
of business during a wildcat strike), Congress did not have intent to hold individual
employees liable for damaegs.
1. Instead, disciplined for EEs who engage in unprotected wildcat strikes = they are
unprotected, can be discharges
2. ~ Emporium Capwell
c. Carbon Mines Test: Local and international union not liable for damages from violation of a no-strike
clause by wildcat strikers, unless ER can show that the union (local or international): (1) adopted, (2)
encouraged, or (3) prolonger the strikers or was otherwise responsible by principles of agency. BUT
it is okay to do nothing or fail to use reasonable means to control the action.
i. In Carbon Mines, unions were NOT liable for failing to use reasonable means to control the
actions of the locals or of the wildcat strikers.
ii. 301(e): agency law governs but whether the acts were actually authorized or subsequently
ratified is not controlling.
17. Applying Boys Market:
a. Did the CBA have an arbitration or no-strike clause?
b. Was the dispute based on a grievance that both parties (especially ER) were contractually bound to
arbitrate, under that mandatory grievance-arbitration procedure?
i. Must be the specific type of strike: Buffalo Forge, cant extend no strike clause to
sympathy strike by the EEs as arbitable grievance.
c. Were the standards for equitable relief met?
i. Irreparable injury, weighing.
d. If so, who is liable?
i. Authorized by union? (adopted, encouraged, prolonged)? union can be liable for
damages, but not EEs
ii. Wildcat strike? No U liability for financial damages (ex. the loss of business during wildcat
strike), unless can prove union adopted, encouraged, or prolonged the strikers.
18. Summary of what parties can do
a. Actions Available to a Party Aggrieved because Breach of Contract
i. Grievance arbitration
ii. 301 suit to compel arbitration if other party will not go to arbitration (ex. Lincoln Mills)
iii. 301 suit for breach of contract if no arbitration clause in the CBA
iv. 8a5: for refusing to submit to arbitration (if ER) (Litton: arrangements for arbitration are a
term of condition and a mandatory subject of bargaining, if refuse during the term of the K,
not duty to bargain in GF).
b. Where an ER has a Boys Market Strike
i. 301 action to enjoin strike/compel arbitration
ii. 301 action for damages caused by the strike
iii. Request for 10(j) injunction
iv. Discharge strikers (unprotected strike)
v. 8b3: for union refusing to submit to arbitration


VI. Role of the NLRB and the Arbitrator During the Term of a Collective Bargaining Agreement (p. 745-808)

Issue: What should the Boards posture be when an ULP charge could have been, is in process, or already has been in
the arbitration (contractual remedies for CBA breach) forum?
Examples of where the Board jxn for ULPs and the As control for CBA violations would overlap:
-Alleged 8a3 discriminatory discharge (ULP) and violation of just-cause discharge in CBA
-Representation or work-assignment issues, bargaining unit (ULP) and distribution of work as provided in CBA
-Unilateral employer action over a term or condition of employment (8a5, ULP, not bargaining in GF) and a work-
preservation clause in the CBA as well as the duty to bargain of ER (ER agrees in CBA not to subcontract work, or
explicitly they put in CBA that ER will bargain with union before subcontracting).

3. Concurrent Jurisdiction
a. Overall rule: Board will generally defer to arbitration, general deferral doctrine.
b. Boards jurisdiction: ButBoard can still act even if there is a charge on the same issue considered in
another forum or if Board will be interpreting the CBA in its case.
i. C&C Plywood (747) Board can decide a ULP charge, even if it involves construing the
CBA
1. Board was deciding whether ERs act was unilateral action in violation of duty to
bargain in GF, ER had reserved the right to adjust pay for particular EEs of special
fitness of glue-spreader, looking at the CBA to interpret whether this act about
payscale violated CBA.
2. The Board could interpret the CBA in determining whether had violated DTB
3. Limitation on Boards jxn: can only go so far as necessary to determine the ULP
charge or will exceed jxn, Board only has jxn over NLRA/ULP issues; contractual
violations are for arbitrator
ii. Acme: union asked for info (duty to disclose). Held: Board can order the information for duty
to disclose, even where it overlaps with contractual obligations. Aids in the arbitration
process.
c. As ability: Arbitration can be ordered on cases that the NLRB could or can decide.
i. Carey v. Westinghouse: work-assignment dispute, but also related to Boards jxn in
bargaining units. And if there had been a dispute, would have related to the Boards authority
under 8(b)(4)(D).
1. For the 8(b)(4)(D) issue: definitely concurrent jxn here because the Boards jxn does
not come into play until there is a strike and the ULP charge is file.d
2. For the bargaining unti issue: Even here, the Court thought the policy of arbitration
onf Lincoln Mills justified sending the dispute to arbitration.
a. Test for when the Board should show deference: provided the procedure was
a fair one and the results were not repugnant with the Act.
4. Board Deference to Arbitration
a. Simultaneous Grievance and ULP Charge
i. Dubo: When charging party simultatenously files a grievance under the contract and a ULP
under the Act, the Board will defer processing an ULP case when a similar contract dispute
was already being considered in the parties G/A procedure, which was likely to resolve it.
b. Pre-Arbitration Deferment Standards (Collyer/United Technologies/Hammontree) - arbiraton hasnt
happened yet, but union brings ULP claim
i. Rule of thumb: Board will defer to the machinery. Board has pre-arbital deferral policy
Board defers or delays its consideration of a complaint until arbitration called deferment
in Hammontree
ii. Collyer United Technologies (769): parties should avoid subistuting the Boards process for
their own mutually agreed-upon method of dispute resolution. Collyer factors to consider for
deferral:
1. Where dispute arose w/in a long and productive collective bargaining arrangmenet
2. Where there is no claim of employer antagonism to employees exercise of their
NLRA rights
3. Where the employer has agreed to resolve the merits of the dispute through
arbitration
4. Where the dispute requires interpretation of the CBA
5. Where the parties contract clearly encompasses the dispute at issue;
6. Where the CBA provides for arbitration on a broad range of issues.
7. Where the ER is eager to arbitrate the dispute (United Techonologies)
iii. National Radio: extending Collyers test (wait and see, defer to the G-A) to 8a3 claims
iv. United Technologies: applying Collyer here to 8a1 claim (threat) within the grievance
mechanisms the threat related to grievance procedure, so it was an arbitable grievance.
Held: the Board should defer to the g-a machinery.
1. And this was particularly good for the grievance mechanism b/c the threat was by an
individual EE during the grievance procedures first step
2. Policy: the parties have bargained for the arbitration, fundamental to collective
bargaining that the parties are bound by the terms of the contract.
3. Con: this is dangerous in conjunction w/post-arb deferment; As function is to
effectuate the parties intent rather than to enforce the Act, he might issue a ruling
that doesnt fully award an EE his NLRA rights
v. Hammontree: agreeing that deferment is permissible, specifically in context of must require
the EE to exhaust grievance rememdies before going to before the Board for the Board to
consider his ULP complaint (delaying). [has claim => if it is grievance remedies, must
exhaust grievance remedies => then the Board shows deference to decisions made in g/a
decision).
1. issue came up because the CBA, like 8(a), also barred discrimination against
union members, so he was arguing that it was his union activity and his grievance
that got him on the worse shift w/fewer seniority options
c. Post-Arbitration Deferral Standards resembles judicial deference
i. Olin Corp: announcing new rule for deferral
1. ER gave harsher punishments to union leader. But the union had wiaved this right in
the CBA. The arbitrator had decided against the EE.
2. Held: the ULP need not to have been expressly considered by the arbitrator aslong as
the statutory and contractual issues were factually parallwel and the arbitrator had
been presented with facts generally relevant to the stuatory isuse.
3. Olin Test: (Boards test)
a. The contractual issue is factually parallel to the unfair labor practice issue
i. Ex. whether there was a waiver of the ULP here (Olin) or whether
there was a contractual violation by firing the U rep
b. The arbitrator was presented generally with the facts relevant to resolving
the unfair labor practice.
c. The award was not clearly repugnant with the purposes and policies of
the Act => specifically that it is not palpably wrong => meaning that it is
not susceptible to an interpretation that is consistent with the Act.
i. Look to other cases and interpretations of the Act ex. in Olin (U
reps discharge) looking to Metropolitan Edison, considering
similar issue but had made exception for this type of instance).
ii. i.e. if it is consistent with an interpretation that is consistent with the
Act, the Board should defer if the case also meets (1) and (2),
meaning that it is good practicefor arbitrator to render an outline of
the Act issues considered
d. also, from Spielberg under fair and regular conditions
4. And, Olin Test puts the burden of proving the test (aka that the award was repugnant)
on the party seeking to have a Board hearing (and not have deferral to the As award):
done in order for the policy in favor of arbitration.
5. Rationale: Olin arbitrators interpretation is what the parties have bargained for
and what national labor policy promotes. Harvester (Board would note rexemainte
the merits of a dispute resolved in arbitration regarding the merits and application of
a union-security provision
3
): Defer in order to promote industrial peace, want to
encourage arbitration in collctive bargaining and giving hospital acceptance to
arbitration.
6. Old test: Spielberg: (1) all the parties agreed to be bound by the arbitration decision;
(2) presented with facts parallel to the ULP charge A had heard and determined
factual issues underlying the ULP, (3) the arbitration decision was not repugnant to
the Acts purpose and policies.
ii. Plumbers & Pipefitters: Deferral to Grievance Procedure Committees determination that EE
should be rehired without backpay, the grievance committee had proceeded to the third step;
can defer to pre-arbitration grievance settlements; applying Olin test to this.
iii. Titanium Metals: one EE had distributed newsletters, union did not pursue his claim through
grievance procedure. Board did not take his claim to arbitration. Could the Board defer based
on this determination by union? Held: yes, if met he Olin test. And no showing of
repugnance/that it was not impermissible EE discipline of one employee is subject to the
waivalbe rights by union, as long as there is Duty of Fair Representation being upheld.
1. Can defer even if the union waives EEs right by not taking to arbitration as long as
no DFR problem
d. Post-Arbitration Deferral in Reprsetnation Cases is Weaker
i. Board in R cases can have further proceedings about certification
ii. Board will defer to an arbitrators judgment on a representation matter only if the arbitrator
applies the Boards criteria for making unit determinations
1. The Boards criteria for making unit determinations
a. bargaining history, integration of operations, within the group, progression
of employees within the group from lower to higher grades
2. The arb could not ultimately decide on the award of representation, so it was not
interpreting the contract on the basis of these standards (Westinghouse)
iii. In Westinghouse, after the rendition of the arbs award, the board assumed jxn to clarify the
unions certifications; arb neglected barginging history, operations within the group when
making determination.
e. Role of Arbitration Clauses in EEs Ability to Bring Title VII Claims
i. If claim has been considered, court will generally say no 2 bites of the apple. If not
considered, court will usually allow Title VII court claim also, its not waived just because
there is arbitration. Exception: if its explicitly, clearly, unmistakenly waived.
ii. Alexander v. Gardner-Denver: racial discrimination claim, Court held that the claim in federal
district court would not defer to arbitration decision finding that EE had been discharged
for just cause. [now rejected: an unwaivable right to a judicial forum for statutory claims]
iii. Gilmer: when there was an arbitration decision about the discharge, arbitrators did have
capacity to rule on employment discrimimination claims. [arbitration can be be a suitable
remedy on its own]
1. SCOTUS interpreted FAA each individual can be required to arbitrate all disputes
arising from employment you dont get two bites of the apple with arbitration.

3
Clause requiring employees, as a condition of employment, to maintain union membership or pay union dues
or requiring an employer to check off dues from employees' wages.
Where there has a been an arbitration decision, the arbitration agreement covers all
potential termination disputes.
2. Gilmer: held that the Federal Arbitration Act compelled arbitration of a claim
under the Age Discrimination in Employment Act
5
where the claimant hadsigned
an agreement in a securities registration application to arbitrate all employment
disputes
iv. Wright v. Universal Marine (ADA): Unlike Gilmer, case hadnt gone to arbitration yet. Court
will not presume that when there is an arbitration clause, civil rights statutory claims are also
waived, unless there was explicit language in an arbitration agreement - a clear and
unmistakable waiver of the employees right to sue for the Title VII claim.
1. Wright case went off on the contract language and said that there
was not a clear waiver.
2. Therefore employee still had chance to go to court instead
3. If there is not a waiver, does the employee get a trial de novo on her Title VII
claim after arbitration, or does the court review the arbitrators award?
v. But where there was a clear and unmistakeable waiver, this waiver is enforceable: Penn
Plaza v. Pyett
1. By contrast to Wright, Penn Plaza said there was a clear waiver
prof: "clear, unambiguous, and negotiated by the union then you
can waive it."
2. Where there is a clear and unmistakeable waiver of Title VII right, court should defer
to (possibility of) arbitration proceeding; EE cannot pursue claim.
3. Court relied on (1) Duty of Fair Representation of the union to justify allowing
unions decision whether to arbitrate claim to govern the Title VII claim (when there
was waiver clause) and that (2) union can be subject to ADEA/civil rights claim if
itself discriminates.
4. This is different because saying they waive even when union did not present their
age discrimination grievances union had withdrawn their age discrimination
claims
vi. IN SUM:
1. Arbitration can be a suitable remedy for an ED claim where this is the claim decided
on and it is presented (no 2 bites of the apple)
2. A general arbitration clause for grievances normally does not waive the EEs right
for a Title VII claim/statutory claim the EE can pursue this claim before exhausting
the statutory remedies for Wright, the general arbitration clause in the CBA did not
require him to arbitrate him ADA claim. (general arb. clause does not waive
ability to pursue)
3. BUT, if there is a narrow, explicit, clear and unmistakable waiver of employees
ability to sue for statutory claims in court, this will be enforceable, arbitration will be
only way to adjudicate their claims union can waive the EEs ability to sue Title
VII under one of these clause (Pyett) (but possible to waive)

VII(1). Duty to Bargain During the Term of an Agreement
1. Have duty to bargain in good faith during the term of the contract.
a. Duty to Bargain in GF: Cant take unilateral action ex. during a strike (Belknap)
b. Duty to Bargain in GF: Duty to Disclose Acme, Katz (unilaterally implemented sick leave policy
after negotiations had stalled, but it was better, they therefore hadnt reached impasse).
c. But generally, terms of the union contract are fixed for the duration of the contract, there is no duty to
bargain over these terms until the contract is due to expire. **If a party wants to change a term of
the contract => Midterm Modification, below.
i. Exception: wage reopener, union
1. Midterm Modifications: if a party wants to open up the discussions for bargaining again.
a. Overall Rule
i. Must discuss any mandatory subject of bargaining upon request, unless have reduced your
agreement on that subject to writing [then apply TEST 1] or unless you have agreed in writing
not to bargain about it during the term of the contract [then cannot]. J acobs. But if the topic
of the modification is not contained in the CBA (if this is NOT a provision in the contract),
and is a mandatory duty to bargain, will have duty to bargain about it: obligated to discuss.
ii.
b. TEST 1: If the topic of the modification is contained in the agreement
i. Union:
1. 8(d) Notification Requirements has to notify 60 days before proposed modification
negotiations, and cannot strike until end of CBA and 60-day cooling off period
a. and would still need impasse I think
2. Duty to bargain in GF (Katz, Acme)
ii. ER must get consent if is to modify a contractual term during the term of the agreement
(Miwalkee Spring did not get consent, but was OK because determined topic of
modification not contained in agreement)
1. and 8(d) notification requirements are for both parties
2. and confer in good faith
c. If the topic of the modification is not contained in the CBA if this is NOT a provision in the
contract:
i. General rule: If the topic of the modification is a mandatory subject of bargaining , and it is
not contained in the contract => the ER and U must bargain about this proposed modification
if one party raises it. (you are obligated to discuss)
1. Ex. Jacobs: the union proposed a modification about pension, pension is a mandatory
subject of bargaining, they had to bargain about it after the union gave notice they
wanted to bargain about i
2. Even if it was discussed during the negotiations, if it is does contained in the contract,
there will still be a duty to bargain about it unless the ER can show the union waived
right to bargain over the topic in the future by conduct during neogitations.
ii. However, the parties will not have to bargain if (and no 8a5 violation IF) over a mandatory
subject if:
1. Management rights clause must be explicit waiver of further negotiations
a. If there was a management rights clause that explicitly provided that the
union had waived its ability to modify the specific term of the CBA during
the term of the agreement, dont have to bargain about the modification
b. But a basic, general management rights clause will not be effective to be a
waiver
2. Zipper Clause (clear waiver)
a. Clear + express + unequivocal + unmistakable waiver of bargaining is
needed
b. Ex. the waiver clause by GM and UAW
3. Waiver by Union Conduct
a. In Johnson Bateman, looked to past negotiations, conduct but didnt find
waiver
b. NO waier
4. **If the topic was merely DISCUSSED in the negotiations, but not WAIVED, it is
considerd to be not contained in the contract, and there IS a requirement to bargain
about the proposed modification.
2. Cases:
a. Jacobs: Union sought three mid-term modfiications
1. (1) Wage change but there was a wage-reopener clause, so this is fine, they can
bargain about this
2. (2) Insurance had been discussed in negotiations, was NOT in the contract
3. (3) Pensions not in dicussions, not in contract
ii. ER refused to discuss the insurance and pensions issues, U says that ER violated duty to
bargain in GF. The majority agreed that violated for pensions. Concurrence didnt agree for
the insurance. The union didnt waive these by not putting them in the K: if they are not in the
K, the ER stil has to discuss them. Here ,there was not a sufficient waiver, only a broad
mgmt. rights clause not sufficient to waive their modifications, had only a zipper clause
generally worded, mgmt. rights clause generally worded, and no waiver by general conuct
during negotiations
iii. But, later decision Pepsi-Cola: discussion by itself is not waiver, - U will not be deemed to
have waived its right to have the ER discuss a subject in mid-term unless it has clearly
manifested an intention to relinquish that right (explicit statements at bargaining table or
explicit K provisions).
b. Johnson-Bateman past conduct related to the general topic is not a waiver of future negotiations
i. EEs had to undergo a drug test as new EEs, but that didnt mean U waived its duty to bargain
about future mandatory drug tests about all EEs
c. Milwaukee-Spring issue: was the relocation contained in the unions wage and hour clause or the
recognition clause? The Board held that it was not contained in either. Therefore, the action by the ER
was something not contained in the agreement, which meant that hard to bargain. But they had argued
that the union had satisfied its obligation to bargain in GF about the effects of its relcation.
i. Therefore, because they had bargained in GF about this, if it was not contained in the
agreement the ER was allowed to do this.
ii. Why did it matter?
1. If contained in the contract : ER must obtain the unions consent before
implementing change
2. If NOT contained in the contract: we know that they must bargain in GF, cant put
in unilateral change (ex. Johnson-Bateman). But, here the ER had bargained in GF.
So, the ER would have met the obligation of general bargainin gin GF to impasse
before the proposed change.
3. And here, the union rejected the proposals, and therefore would have not had the
consent required in 8(d).
4. But, held that this was not containd in, so ER had met obligation.
d. Midterm bargaining rules POLICY: stability of collective bargaining want mechansims in place so
that notification and consent before modifications that are in the CBA, and DTB about changes that
are outside the CBA.

VII(2). Bankruptcy Laws
1. Ordinarily, total repudiation of a labor agreement by ER is a violation of 8(a)(5) but in bankruptcy laws, a
debtor in possession is allowed to unilaterally reject all executor contracts.
2. Bildisco v. Bidlsico: NJ company distributed building supplies. Filed for bankruptcy. Company sought
permission from the Court to reject its CBA as a debtor-in-possession after a hearing the Court granted
Bildisco permission to rejct the CbA and allowed the union to file damages as a creditor. Court held that can
reject the CBA, and that rejecting because in bankruptcy was not ULP.
3. Immediately after the decision, Congress amended Bankruptcy Code added special provisions about
rejection of CBAs.
4. Requrirements: (before rejection of CBA, trustee must have sought some accommodation from U and show
some necessity Congress: somewhat stricter procedures for debtor seeking to modify a CBA ).
a. Modifications must be necessary to the debtor meet necessity requirement
b. But necessity requirement does not mean essential or bare minimum proposed modifications to
the agreement must have some element of necessity
c. But, studies have sown that more often than not bankrupt parties are able to get out of their
commitments and reject the CBA when bankrupt company


VIII. Successorship: Duty to Bargain with Union
Summarized Rules
1. The successor employer has ad uty to bargain with the union whre
a. (1) A majority of Ss workforce are former EEs of predecessor, and
b. (2) There is substantial continuing beween the work the EEs are doing the same work in the same
setting. (factors to apply)
2. However, successor ER is under no obligation to hire the predecessor ERs employee
a. But if doesnt hired them based on anti-union animus, this is 8a3 violation.
3. When does DTB not apply to successor employer?
a. Not retain
b. Successor ER has indepdnent good faith doubt
c. Complete different operational structure
4. But the DTB does not commence until the successor has hired the majority of its workforce as the former
employees not until the point that substantial and rep complement have been hired
5. AND that successor is not bound by old CBA
a. Policy: Successor situations often arise when old ER wasnt doing well; bad idea to stick with old
CBA which may have been part of the problem. On the other hand, not good for industrial stability.
Tests in More Detail/Application
1. Burns Security - held: ER had DTB with the union, but did not have to honor the labor contract with the union
for predecessor.
a. ER has duty to Bargain with Predecessor Union if a continuity of workforce and a continuity of
conditions
i. Described in Fall River Dyeing
ii. When a company (a) hires as a majority of its workforce (in an appropriate bargaining unit)
employees who had sworked for a unionized company and (b) these EEs continue to perform
the same work in the same setting, the successor ER is obligated to recognize the preds
union AND bargain with the preds union during the same period of times the pred would be
obligated to do. (ex. in Burns)
iii. But, the DTB with a preds union would NOT apply to a company acquiring a unionized
business in any of (at least) 3 situations:
1. Less than majority
a. From Burns =>When recruitment for new EEs results in, for example, an
almost complete turnover, provided that there is no anti-union 8a3 animus
(cant not hire the EEs because the ER1 EEs were unionized).
b. From Fall River Dyeing: when results in anything other than majority of the
EEs
2. When, because operational structure and practices differ from those of the pred, the
former bargaining unit is no longer appropriate, even if all those old EEs were
retained ex. if the former Ees were dispersed among other EEs and no longer had
COI.
3. When ER2 has in good faith a reasonable doubt that the union continues to represent
a majority of EEs - but no such doubt w/in a year of certification
iv. But successor ER has no obligation to actually hire the preds EEs, provided there is no anti-
union animus.
b. DTB does not commence until hired the workforce; therefore can implement unilateral before the
DTB commence
i. Timing of DTB => does not commence until the successor ER has hired the workforce and
has hired the EEs from the preds workforce
ii. Can Have Unilateral Before => When the bargaining begins, there is no status quo,
meaning that the ER is entitled to implement unilateral changes before the union rquests
bargaining. Do not need to bargain to impasse to establish its own starting wages and
working conditions, and offer them directly to the EEs
c. But NOT the labor contract: ER2 does NOT have to honor the ER1-EE CBA.
i. Unanimous by Court on this
ii. Policy = voluntary contrcting
iii. Especially because Court wants ER 2 to be able to have freedom to revitalize a business;
therefore should renegotiatie
iv. This means that U has to renegotiate old K (including w/economic power)

2. Fall River Dyeing - Revised Burns Test (Burns-Falls River Dyeing Test)
a. Whether DTB: DTB I f Substantial Continuity =>ER has duty to Bargain with Predecessor Union if a
continuity of workforce and a continuity of conditions => based on the substantial continuity
i. Burns Rule: When a company (a) hires as a majority of its workforce (in an appropriate
bargaining unit) employees who had sworked for a unionized company and (b) these EEs
continue to perform the same work in the same setting, the successor ER is obligated to
recognize the preds union AND bargain with the preds union during the same period of
times the pred would be obligated to do.
ii. Modification in Falls River: DTB arises if continuity of workforce (majority) +
substantial continuity in the conditions based on totality of circumstances, established
through factors: same work in the same place business of both ERs essentially the same;
same production process (Falls River: same equipment); same body of customers; EEs
considered the workplace to be replacement; hiatus is a factor (here there was 7 month
hiatus) but it is not decisive
b. When DTB Arises: DTB Arises When Substantial and Representative Complement of Employees
is Reached =>If at the moment of the substantial and representative complement, the majority of
ER2s employees were from the ER1, then the successor ER would have a duty to bargain with the
union representing the EEs.
i. How to determine substantial and representative complement? Board looks at factors,
including:
1. Whether the job classifications designated for the operation were filled or
substantially filled
2. Whether the operation was in normal or substantially normal production
ii. Policy: ER wants full complement, notes use of that language in Burns (true) also says
that there is an interest in having a majority of the EEs want to have a union; Court countes:
there is also a significant interest in the EEs being represented ASAP especially because the
EEs used to have a union, now dont, bad for moral => therefore nix the ERs full
complement rule/language, adopt substantial and representative complement rule.
iii. **Note on application: conflicting pressures on ER
1. Once the EEs have reached substantial and representative complement, the ER will
be violating 8(a)(5) if U has requested to bargain and ER refuses to bargain with
U.
2. OTOH, if ER recognizes U when its too earlybefore substantial and representative
complement has been reachedthen the ER risks violating 8(a)(2).
iv. Also, its the ER who must determine whether at substantial and representative complement,
not the Board (in responding to the Us requests to bargain) but, Court acknowledges ER
is in the best position to determine when there is substantial and representative complement
reached.
c. When Does a Request to Bargain Take Place: Continuing Demand Rule => Once U makes the
demand, it stays in effect as a continuing demand.
i. The successors duty to bargain with the union (H1) at the substantial and representative
complement of EEs (H2) is triggered only once the union has made a bargaining demand.
However, once the union has made a demand to bargain, even if this si a premature demand
that has been rejected by the employer, this demand remains in force until the moment the ER
attains substantial and representative complement of his/her employees (and the DTB arises
& if doesnt 8a5 violation.).

ii. Rationale by Court: this is a reasonable policy of the Board; the U doesnt know the ERs
plans for the business; the demand should remain in force until the ER attains & then the
DTB.
d. Again the Fall River analyses = Powell (there was a clear break btw ER1 and ER2, Burns used
language of full, ER2 bought the ER1s equipment at a public auction/open market, EEs subjective
intent was different).

IX. Duty to arbitrate under predecessors CBA
1. Golden State Bottling Co.
a. The board has the statutory authority under NLRA to treat the bona fide purchaser as successor to
ER1s liability for a preexisting ULP
b. Why were they liable => because had knowledgeof preds ULPs, they had a duty to remedy it
because they had knowledge of it.
c. ER had 8a3 charge; ER2 was liable for claim; ER2 should in the future secure an indemnity clause
from ER1
d. here had a true successor situation kept majority of EEs, continuined on w/o interruption
2. Wiley & Sons
a. Corporate merger, ER was absorbed by non-U successor, and CBA terminated
b. Successor merged ER must arbitrate under (the previous unions) CBA about grievances which had
arisen while CBA existed, if substantial continuity of identity.
c. Arbitrator will decide which substantive provisions of old CBA survive.
3. Howard Johnson issue of pure purchase of assets vs. the Wiley situation of a corporate merger
a. Distinguished from Wiley & Sons (where there was a duty to arbitrate)
b. No duty to arbitrate under old CBA, where successor only bought some of predecessors assets and
did not hire a majority preds workforcethis was not a merger, but buying off the property of the
predecessor and then hiring new employees.
c. Key distinctions
i. This wasnt a merger, this was an asset purchase
1. Wiley => was a complete merger, where the old company was completely absorbed
into the new entity, and the initial employing entity (corporation) completely
disappeared,
2. Howard Johnson => this case involved instead only a sale of some assets; the initial
employers remained in existence as viable corporate entities (they are still family
doing business, they are now getting $$ from leasing the hotel to HJ).
ii. Substantial Continuity of Identity vs. Not Hiring Back the Workers
1. Wiley => hired back all the EEs, which didnt do in HJ
2. HJ => Only hired back 9 of the 53 EEs; not a substantial continuity of identity
d. Therefore, Wiely had to arbitrate from old CBA, here dont have to arbitrate the unions claims even
though there was clause in that CBA that would be binding on succcesors that there was language
suggesting this.
e. Note: Burns and Fall River: look at successors current workforce and then whether the majority of
the current workforce are people who had worked at ER1 (ex. of the 100 people now employed at ER2,
60 of them are from ER1, do have DTB); HJ emphasizes the proportion of the predecessors
workforce that is retained by the successor (how many people from ER1 are in ER2: ex. of the 100
people in ER1, only 8 are at ER2).

X. The Double Breasted Employer
1. Situation: sub-contractor that is already unionized may deicde to create a parallel, nonunionzed entity in
order to submit bids to GCs who invite bids from non-U sub-contractors. A union can then contend that the 2
entites are actually a singular employer and that the CBA with the one company (the unionzed company)
extends to the other, so the U also has representation over the other EEs.
a. If the ER says okay = > now U represents all
b. More likely => ER says NO rejects the union, union may file 8(a)(5) charge.
2. Board will do 2-step analysis to 8(a)(5) charge
a. Step 1: Are the 2 etnites properly to be treated as a single integrated ER?
i. Common operations, common ownership, common mgmt., cerntalized control of labor
relations
ii. If no => end of analysis. If yes => Step 2.
b. Step 2: If yes, do the 2 enterprises constitue a single bargaining unit? => community of interest test.
c. If yes to both, then the 2 entities will be a signle appropriate BU and the U will be the rep of all the
workers and the contract of the 1 union will now cover the terms of employment for both.
XI. Anti-Trust- Pennington (UMW combines with large coal cos to set wage standards, b/c large are getting
mechanized, this will but the smaller coal cos OOB)
1. U cannot conspire with one set of ERs to impose wage scale on other ERs in order to drive them out of
business
2. As long as union acts in its own interest, with its own employer or employers in the bargaining unit, the U is
allowed to take action for price-fixing. This will not be anti-trust. multi-ER bargaining units OK
3. Will also not be anti-trust if acts in its own interest and only combining with other labor groups. So long as the
U acts in it elf-interest and does not combine with non-labor groups, not anti-trust activity
4. But WILL be anti-trust if the union combines with non-labor groups employer-union agreements seeking to
prescribe labor standards outside the BU are not permissible, are anti-trust.
a. This is true even though what the U-ERs were working on was about wages

XII. Pre-Emption
1. No explicit preemption in NLRA
2. But NLRA still preempts state law
a. Florida v. Hill
b. Exception: NJ could set licensing requirements
c. Ohio case
d. Missisippi v. Met Life
e. Fort Halifax