Labor Law

C/A for DISCHARGE=Pursue only K(Implied) claim. No Bad faith/tort(unless public policyàStt or Con).

INJUNCTIONS=Norris-Laguardia Act=Anything between ee/er not enjoinable by er(even 2^nd boycotts).  NLRB can.

NLRA/NLRB (1930’s) Administer Act/labor disputes. NLRB=2 arms. 5 member bd makes labor law.

Jx to Commerce clause: bus/entity touches interstate commerce, jx exists.

Review§10: Cts uphold NLRB unless abuse discretion. If policy Ct wants?

COVERAGE (Major exclusion: government). Employees except; Retirees; Hospital residents/interns; Domestic workers; Confidential ees;  Supervisors(Professionals); Managers; Ind contractors (Hearst = sufficient management & control)Taft-Hartley Act: EE if dependent on boss?  Factors: 1)level of control, 2)who provides equipment, 3)who defines how they do their job? 

ULPs

§7: Right: 1)Form Union; 2)Collectively Bargain; 3)Concerted Acts{Strike}.Taft-Hartley: Right not to join Union.

§8(a)(1): §8(a)(2):  Dominate/interfere w/formation/admin or contribute financial/other support (auto 8(a)(1)).

§8(a)(3):  Discriminate hiring/tenure/term/condition employment to encourage/discourage membership(auto 8(a)(1)).

SOLICITATION=§8(a)(1):  Interfere w/restrain or coerce employees in exercise of rights in §7.

Oral: Ees(allowed) or non-employees(not).

Pamphlets/Buttons/Written=Balance Test: Economic % vs. Organization %. Alternate ways communicate a factor.

Presumption: Can’t prohibit solicitation on premises during non-work time i.e. lunch & after work.

Rebut: “Injurious to Business.” If rsbl to limit e.g. nurses on ½ hr break in intensive care unit. Inconvenience Ok.

Issues:  Timing: Work vs Non-work time:  How the rule is applied! Buttons/T-shirts:  Allowed unless inflammatory.

Non-Employee Organization/Solicitation: may be prohibited unless no access then balance er % v. union %.

Employer Communication vs Coercion= 1^st Amd vs Threats.

Employer can’t make threats/predictions of adverse consequences of union; unless rsbly based on objective facts.

Interrogation=Total circumstances test by NLRB to determine if coercive(§7).

Polling of Employees=Polling considered an ULP unless 1)To determine validity; 2)Employees aware; 3)Assurances against reprisals; 4)Secret ballot; 5)No prior ULPs. [Struksnes Construction].

Surveillance=Rule:  Always an ULP.

Conferring or Withholding Economic Benefits=Presume: During union organize, to confer benefit/w/hold usual benefit is §7 violation. Rebut: “business as usual”.

Misrepresentations & Propaganda= are not unfair labor practices

Misrepresentations=Midland =Maj not set aside for last minute misrepresentations. Not substance just w/METHOD. E.g Forgery of documents, physical alterationà situations of violation of Laboratory conditions.

Propaganda=Cannot give captive audience speech w/in last 24 hours of an election.  Can distribute false info, etc.

No “Inflammatory Appeals” èRace. (racial solidarity ok;  If direct relationship b/t statement & legit issue ok.

*§8(a)(3): Most frequently charged violation: burden of proving animus.

1)Organizing; 2)Employer knew; 3)Adverse activity against employee;  4)Different than others similarly situated.

DEFENSE:  Employer Burden to Prove Legit Motive and Not: 1)Pretext{others who did same didn’t get fired or timing};  2)Dual Motive {anit-union animus a substantial motivator} *If Employer can prove would’ve anyway =ok. 

Total Plant Closings & Partial Closings=OK to b/c can’t force stay in business. Except: 1)% other business;  2)close to chill; 3)relation to other bus makes frsbl to ees lose jobs.  Look er publicity& animus. [Darlington]

Runaway Shop&Contracting=§8(a)(3) Elements.  Pretext/Dual Motive?  Would’ve done anyway for economics=ok.

Remedies §8(a)(3):  reinstatement & back-pay(minus mitigation); sometimes more postings than §8(a)(1).

§8(a)(2) Scienter irrelevant.  Prohibits Er Domination/interference/contribution to/w/labor organization.

All potential unions given same access etc (de minimis?).  Draft charter/bylaws or anti-union campaign against one.

Electromation=committees while union organized. 3 part test §2(5): NLRB defines what is labor organization:

1)employees participate; 2)purpose of “dealing w/” employer; 3)Concern “conditions of work,” grievances, labor disputes, wages, rates of pay, or hours of employment. Action Committees are OK so long as no one challenges them. 

Union Misconduct and Waiver Fees:  (Remedy is new election.)

No coercion(violence or threats);  Inflammatory race remarks;  Union can promise higher wages from unionization;  but not employer.

No Waiving union fees for those who sign authorization cards only. Waive fees for everyone=ok.

Election Campaign, Maintaining Laboratory Conditions=Union Access to Employees, Once 30% support.

Excelsior list: w/i 7 days of election.  Er can give anti-union speeches if not coercive.

BARGAINING ORDERS§8(a)(5) “employer must collectively bargain w/employee representatives.”

Gissel 1,2,&3:  Turns on ULPs: 1)Gravity of ULP(termination?);  2)Extent;  3)Timing;  4)Repetition;  5)Intent.  1)Maj card but ULPs make unfair election=sometimes; 2)ULPs undermine maj so fair election unlikely=BO; 3)Minor ULPs w/slight affect =no BO.

NLRB ELECTION(preferred) 2 campaigns=1)maj authorization cards; 2)win Election. No ULPs Er  not have to recognize, even w/maj cards;  union must petition NLRB for election if maj cards.

Election Bar=or bargaining order 12mos. K Bar=max 3yrsàunion/employer filing 90 before or 60 days after K.

Bargaining Units=§9(b) (“Employer unit, craft unit, plant unit or subdivision thereof.”)Appropriate unit so ees can freely exercise their rights. Er prefer large; Ees small. NLRB determines appropriate units:  1)mutuality of %;  2)History of collective bargaining;  3)Desires of ees;  4)Extent of employee organization. Single-Location vs Multi-Location Unit=if enough autonomy then each location gets own bargaining unit.

Collective Bargaining under the NLRA

Union as the Exclusive Representative§9(a)=union has right to be sole collective bargaining unit.

Duty to represent all ees regardless of members/race/gender etc. Remedy=injunction.

No Er Ks w/ees or use them as basis not to bargain.  Clean slate.  Unless No rep or Ks not inconsistent w/agreement.

NO duty to bargain w/min factions, only w/union.  & Not protected under §7 for picketing/strike/work stoppage/boycott w/o union; unless parallel to union objectives! (Concerted activity).

Duty to Bargain in Good Faith=“wages, hours, & other terms employment, etc until impasse.”

Good faith=sincere effort reach agreement.  Subj intent shown by external manifestations.  Regressive proposal;  rejecting “horse-trading.”

Good Faith requires Er Disclose Relevant Info(specific claims/not general)requested. Duty to disclose through collective bargaining.

                Except:  Balancing: need for privacy/confidentiality outweigh need relevant info for bargaining.

Partial Strike Activity vs Unilateral Action by Employer=As Bad Faith

Rule: Strike before impasse is ULP; except for safety.  Picketing Ok;  Employer unilaterally gives what you want not.

Impasse in negotiations & then unilateral action Ok & strike Ok. 

Public safety employees=no leverage b/c can’t strike & public entity can unilaterally impose its terms.

Subjects that Must be bargained on by Employer & Union=Act controls procedure. Here exception.

§9(a)  Mandatory=wages, hours, other terms. Permissive(if both agree)=how union runs its internal affairs.

Rule:  Mandatory subject: Balance: Employer need for unencumbered decision making (Stewart: heart of entrepeneurial control/nature of operation) against benefits to labor-management relations. 

*Contract work b/c cheaper(eliminate union)=mandatory (wages) nature same.  *Partial closure of business; At heart(determines continuation of business) but must bargain over effects i.e. rellocation, severence pay, health benefits! If closed b/c union animus then ULP.

*Partial Relocation of business: general counsel shows no change in nature of operation:  Burden 2 employer defenses:  1)change in essence of operation(discontinunce work);  2)Union concessions wouldn’t make up for not moving. [Dubuque Packing]

*Capital investmentsàlikely permissive.

Remedies=Board can order bargain in good faith. Flagrant can award attorneys fees.  Can’t order acceptance of order.

Strikes/Boycotts/Work Stoppage by Unions & Limitations

Strike=Stt right.  Slowdown=Prohibited. Strikers get jobs back & can’t be permanently replaced.

1st Amd=Depends on your goal commercial or political. Commercial regulated for public policy, not Political.

NAACP v. Claiborne=Blacks boycott/picket merchants for discrimination;  Injunction denied b/c Political.

Allied=political protest USSR in Afghanistan: but removed from source so is economic.

Public Forum=Constitution protect private property from picketing political/commercial (Ca doesn’t).

Hudgens=Public forumèShopping Mall(private prop) only if fully taken on aspects of public forum.

Remember: 1)No constitutional violation; 2)NLRA=§7 balancing §8(a)(1) for organizing/concerted/activity on cos prop.

NLRA§13=Protected if (1)concerted activity{+1 or 1 if good faith belief bargaining in K} or Mutual Benefit/protection & (2)Protected means{non-violent, not disloyal & not 2ndary boycott}.

Mutual aid/protection.  Protected as well under Act.  For benefit of everyone then it is protected, e.g. literature etc.

If disciplinary interview Union rep present but still have to answer Qs; not lead to discipline or not member=no rep.

Hypo: Drug test=Employer bans soliciting non-work areas during non-work time, Mutual aid&protection. 

Hypo: Casino dealer devises plan that allows employee ownership & distributes literature;  not concerted for mutual aid & benefit b/c changes whole relationship(too attenuated from mutual aid & benefit).

Protected=primary non violent Strikes protected, (give notice/cooling off period/before impasse negotiations).

Disloyal=§10àUnprotected if fired for cause. Attack quality/product disparagement unprotected. Distinguish=Nursesàtrue, health, quality part of bargaining (nurse/patient ratios)=protected.

2^ndary Boycotts:  §8(b)(4)è“Illegal use coercion/picketing/etc against 3^rd to force from doing business w/anyone.” 

Segment: supermarket to get union to bake bread(legal), try force not to buy from nonunion bond(Illegal).

Common Situs/Construction=is an illegal secondary strike. Denver Buildings. Incidentally affects other=ok. E.g. deliveries at rear.

Moore Dry Dock=Phopho(primary), but picketing on Moore dry dock’s site(secondary).

Four Part Balancing Test for §8(b)(4)(B) for exception: Picketing when 1)primary is on secondary’s site; 2)primary engaged in normal business at site;3)Picketing is limited to places rsbly close to primary; 4)Picketing discloses the dispute is w/primary

Strike may follow Struck work  to subK, if Primary trying to avoid strike. DenverBuildings=not trying to avoid.

Reserved Gate Doctrine  Can’t picket other’s reserve gate at common site unless secondary’s services essential to primary’s normal operations(shut it down hits primary).

Consumer Picketing=

Boycott(picketing/publicity) at secondary so consumers not buy primary’s product Ok.  Unless merged product rule.

Publicity Proviso of secondary always legal b/c less coerciveèno Picketing.

                Handbilling, radio, Tv not to shop at safeways b/c of Wash Apple Co.

                If Publicity Proviso causes work stoppage or deliveries etc=illegal.

Rule:  Must be distributed product for publicity proviso boycott if hitting at secondary sale site.

DeBartolo=handbilling mall; nonunion contractor building.  Not in publicity proviso b/c contractor not producing a product being distributed!  Not in publicity proviso still ok if not coercive.  Handbills persuasive.  Lechmere=If no other alternative means then can handbill inside mall!!

Merged Product Doctine=Rule:  If primaries product is merged w/secondary then it is illegal to picket(Publicity Ok) at secondary.  Starbucks, Picket safeway b/c uses nonunion refrigerators; Safeway b/c use paper bagsèok.

Alternatives to NLRB Regulation of Campaigns

1)Regulate CONDUCT not speech; 2)give union equal access - provide time for union to address all employees together; 3)Fast remedies, employee back to work quick; 4)better remedies, treble damages; 5)Quick election w/in 5-10 days.

READ AGAIN PAGES 183-87 -  AND THINK ABOUT WHETHER THE SYSTEM OF REGULATION WE LIVE WITH IS REALLY THE RIGHT WAY TO GO, OR ARE THERE BETTER WAYS TO SEE IF THE EMPLOYEE’S FREE WILL IS VALIDATED.

Would strengthen NLRAct by: 

1)even if unfair labor practice by firing union sympathizer, back pay is only amount he would have made - mitigation(union helped him get new job)! Draconion damages like triple damages + attorney fees like in RICO.   

2)Would not let cos shut down & move to Mexico as threat in bargaining process!

3)Super quick electionsàso strong arming by union to sign cards etc & ULPs by employer don’t affect outcome but appeals take so long, but you so what if appeals but election is done.   

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