[Type text][Type text][Type text]

Labor Law Checklist

NEED TO WATCH FOR

ANY AGREEMENT that requires the employer not to do business with some other person or business. This is a hot cargo clause THIS IS ILLEGAL (unless construction) Strike to obtain a hot cargo agreement to get the ER to agree to this provisionillegal 8(b)(4)(A) ULP Strike to enforce a hot cargo agreement also illegal would be even worse, because would be the strike directed at neutral party (the one the ER did business with)

Whenever there is a walkout or a strike ASK: is there an ARBITRATION CLAUSE? If there is an arbitration clause, this walking out or work stoppage, however peaceful, will be unlawful, because it has been waived by the union. The ER can get a Boys Market injunction. Even if there is no explicit no-strike clause, under Lucas Flour, A => NS clause (unless facts show ER tried and failed to get such a clause into the contract). (and for BMI: show likelihood of irreparable harm greater than harm to the U being enjoined)

*Whenever ANYONE IS FIRED, DISHCARGED, laid off, not hired back Was this possibly, arguably BECAUSE OF UNION ANIMUS? Was it because the UNION came in and raised prices? => argue both sides ER: economic reasons, play up profitabily, sound business motive, sound economic reasons, ex. Adkins (trucker mechanics) Union: because of the union, play up animus BUT, when fired/laid off/closed, was the ER terminating its business? If the ER was terminating its business, can fire for ANY reason

**When someone fails to bargain, when there is an election that seems unfair (for not laboratory conditions) Dont forget about GISSEL AS A REMEDY => Gissel as an alternative to voluntary recognition or election: where there are majority and there are ULPs, Bd. can order this as a remedy (but not if no majority, Gourmet Foods rejected), have Gissel bargain where the ULPs committed are so serious as to negative the possilbility of a new, fair election. If employees are respecting another primary picket line => refusing to cross a picket line, or sympathy strike, this is protected, concerted activity. ER can get around protection by having no sympathy strike clause though.

Laboratory conditions requires that free choice be disrupted => argue whether the conditions that occurred here really inflicted with EE free choice But DOESNT need to find an ULP conduct that falls short of coercive threat/inducement/promise can interfere w/lab conditions Argue conflicting policies - on the one hand, policy about false statements, Board only looks at statements if Board document or forgery because people are expected to otherwise know, OTOH Board policy about not allowing ER inducements, and racial statements suggests people cant watch out for their own interests.

If employees are supporting each other more broadly OR if soliciting between employees, OR if ER is infringing upon the BU employees rights to communicate with employees from another BU (Guardsman example) Employee for the Act: def- Any employee, and shall not be limited to the employees of a particular employee. Generally, employees have the right to speak about WTC of employment with other employees and still concerted, protected activity (ex. Eastex) - exception: non-union organizers, even if they are employees of someone.

Someone being QUESTIONED? INTERVIEW? Weingarten Is it like a poll? Very strict 5-factor test. **Is it like interrogation? Lorben factors, totality of circs.

Remedies Always consider Gissel bargaining order are there ULPs here that make this unlikely there will a free and fair election, or was the atmosphere so poisoned can have Gissel bargaining order is someone refusing to bargain? Gissel Would this be a place that 10(j) injunction would be appropriate? would be discretionary for the district ct if just and proper UNION VIOLENCE Prevent ER from flagrant ULPs Stop ER from closing operation or liquidating assets to avoid backpay Just because nonviolent doesnt mean protected Union sitdown = nonviolent Union slowdown = nonviolent But because these are during the workday, they are unlawful Strikes during 60 day cooling off = peaceful but if violate, will be unprotected **be on guard if strike is in pursuit of featherbedding bargaining clause=> only if some work will this not be ULP, if striking over no work, WILL be ULP. (Gamble) And of course, secondary boycott and hot cargo could be peaceful but will be unprotected

Work stoppage doesnt always mean protected either If in pursuit of permissive subject If DURING WORK hours

IS ONE OF THESE TYPES OF STRIKES OCCURING? These are all illegal strikesIllegal Primary StrikesSecondary Activitiy

Violent strikesHot cargo provisions strikes (seeking to obtain hot cargo clause, or enforce)

Strikes during cooling off periodR/O strike when there is certified union in place

Slowdown Work-assignment dispute

Featherbedding strike (when meets narrow rule)

Striking for a larger bargaining unit-cant strike in support for larger bargaining than those certified by the Board (would change who was majority rep)

Breach of the duty of fair representation is an ULP! Union can be enjoined to stop from violating the duty of fair representation. NLRB codified DFR as a ULP. DFR cases: Steele, Huffman, Hines (WAS) What happens when a contract expires? First, sixty days prior to the contract expiration, the union must notify the company in writing of its intention to renegotiate the labor contract. The union then begins preparing for negotiations by selecting a bargaining committee, formulating proposals that will be given to management's negotiating team, doing research necessary to support the union's proposals, developing a communications strategy for the members during the negotiations as well as with the public, if difficult negotiations are expected. If the union and management are still in negotiations when the contract expires, the union has three choice Second, If the union and management are still in negotiations when the contract expires, the union has three choices: To accept management's proposals; To extend the contract expiration date with the joint agreement of both the union and management (a common choice); or To agree with the employer that they cannot reach settlement and declare an impasse in which the employer is free to implement its final offer and the union is free to strike if the members vote in favor of that option. More than 95 percent of contracts are settled without workers having to strike

ISSUES CHECKLIST

NLRBs Jurisdiction: to take the case NLRB must have jxn If ULP: filed within 6 months? Six month SOL for ULPs. Employer? => must affect commerce, must be private sector, cannot be religious (excessive entanglement), cannot be public-affiliated entity (charter school=similar enough to public school to be excluded), cannot be air/rail (RLA), cannot be labor org. Employee If not employee, generally NOT protected under the Act. Is the person within one of these groups: if so, they are excluded from the Act: are they an agricultural worker, domestic worker, someone employed by parent or spouse, air or rail carrier covered by RLA? is this an independent contractor? Apply common right of control test: rt to exercise control over the manner and means by which the individual performs services. Is this person someone whose work has ceased as a consequence or in connection with any current labor dispute or because of an ULP? ex. strikers, unfairly discharged people, anyone with an 8a3 charge => still are employees NOT to supervisors Is this a supervisor? Does the individual meet these three requirements (Health Care Retirement Corp nonprofessional nurses were supervisors) (1) Has the right kind of authority 2(11): authority 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 recommend such action. (2) The exercise of the authority requires independent judgment (3) The individual holds this authority in the interest of the employer Healthcare Retirmenet => work primarily patient care; nonprofessional conflicts w/professional EEs who also use indpt judgment being employees If this is a supervisor: Can be in a union with the rank-and-file employees (ex. police lieutenant, foreman) and be in the bargaining unit, but they are not protected for the act, will be a permissive subject of bargaining to broaden the BU to supervisors. Can have their own unions of supervisors unions but will also not be within the Act. Was the supervisor fired or discharged or had some action against? Generally NOT protected because not within Act Supervisor is NOT protected for pro-union activities (Parker Robb) But also sometimes protected => if discharged because of these activities, can have backpay, can have reinstatement. Can super show that discharge interferes with EEs section 7 rights? Discharged for refusing to commit ULPs? Gave adverse testimony to Bd? For processing EEs grievance? As a pretext for discharging a pro-union crew? For failing to prevent organization? NOT to managers, managerial Managerial, def: is this someone who expresses and makes operative decisions for their ER, both including and other than policy decisions that are associated with labor relations? Does this person make policies, exercise management or administrative power for the ER? Compare to the college faculty of Yeshiva University there is management power, they are making decisions over the direction of the entity substantial, independent decision-making authority on policy and operations Making management policies, dealing with other EEs? would be managerial Is this someone with a learned skill? => professional Professionals ARE within employees of the Act But special rules for bargaining units Job applicants ARE within employees of the Act hence, rules for salts (genuine interest test) Retired persons not employees limited to working employees (Pittsburg Plate Glass) Arbitration issues that implicate ULP => Board will accept or defer jxn on a CBA violation -- Dubo, Collayer Deferment: if party charging ULP files grievance at same time, Bd will defer processing on ULP; Collayer: parties have contracted for an arbitrator, so the Board will avoid substituting its own processes for their agreed-upon dispute resolution and defer where there are factors including: Contract calls for binding and final arbitration; dispute clearly requires interpretation of the CB; the dispute is contractual in nature? Ex. does the dispute involve a collective right of employees? => looks like a collective right. But also an individual claim is well-suited for deferment (United Technologies). If yes => Board will defer processing claim until after grievance-arbitration. Policy => Board has strong deferral policy in refusal to bargain cases

Campaign: Communication Is anyone talking to each other? Are they employees? Are they talking about wages, terms, or conditions of employment? Concerted action: def: whenever two or more employees get together and discuss wages, terms, conditions of employment. This is protected by NRLA. Facebook? Internet, email, Twitter, other things that could be similar? Requirements for protected communications: (Brockton) Is this communication: Reasonable? Concerted? - must be to another person About the wages, terms, conditions of employment? (a mandatory subject) Does not need to have made statement in workplace (Facebook) EE does NOT need to have a union in place or not. **Implications: Communications are concerted, protected activity. The EE then not be fired for the Facebook, etc. comments because they are now protected 7 activity, if is fired, is ULP 8a3 by ER. Is there a company communications policy? (Brockton Hospital any info, Cintas confidentiality, Guardsman no fraternization) Could EEs reasonably interpret ERs policy to be a prohibition against section 7 rights? If so, section 7 rights will be infringed upon. Doesnt matter if didnt actually have bad results No intent requirement Will be 8a1 ULP for this policy infringing on protected activity (conversations between 2+ EEs about wages, terms, conditions). Campaign: Solicitation What is the employer doing here? Broad nonsoliciation policy? Any rule that prohibits solicitation during non-working time = presumptively invalid (Republican Aviation) Doesnt matter if no anti-union animus for 8a1, blanket ban on solicitation (that includes nonworking times) is presumptively invalid, unless ER can show that there are special circumstances that make the rules necessary to maintain production or discipline Retail: would this interfere w/customers in sales area? Can ban, but cant be 8a3 discrim. Healthcare institutions: rule applies for PATIENT CARE areas only, not visitors => ER cannot ban in areas where would not disrupt health care operations or disturb patients (Beth Israel, cafeteria) ER will argue: we are like retail, like hospital, have concern w/public image (necessary to maintain production) In his/her actions, is the employer obstructing a flow of access that is protected by Section 7? Competing rights = ER right to restrict solicitation and distribution of prounion material to off-duty time and nonworking areas; EE has 7 right to communicate with other EEs on different shifts (during this EEs nonworking time) Who is doing the talking or seeking the access? If employees => oral solicitation: Republic Aviation: EE have absolute rt to solicit other EEs during nonworking times, and if an ER tries to stop this, violates 8a1 Nonworking times: includes during the working hours paid breaks, lunch hour, to and from lunch, rest periods, cafeteria During working times: ER can limit prounion solicitation, but must do it consistently. (Register Guard) If employees => literature distribution Working areas: can prohibit during both nonworking and working time BUT if other types of literature distribution are allowed in these areas, cannot discriminate against U literature Nonworking areas: cannot prohibit during nonworking time, unless show special considerations: patient, retail). Concern = litter, property destruction. nonworking areas = exit, restrooms, parking lots Non-employee organizers? Salts? Protected under 7 if GC shows genuinely interested in employment relationship with ER Salt can lie and still get job (Hartman); but salt not protected for non-7 activity (The Industrial Co. Southeast) If not: An Er may take rsbl steps to ensure that nonemployees are prevented from trespassing on its property. ER can deny access unless no alternative means available: Seafarers Unon, logging camp (Lechmere). Doesnt matter if U didnt have good luck getting people pamphlets on windshields sufficient Lechemere Property interest = what is in lease, parking lot, but not public property. Who is the audience? Is it the employers EEs? OR is the suppliers or customers of the employers? => likely to deny access Ex. patients in the hospital- could not discuss with patients Customers in retail Where is this taking place? Ers property => Lechmere rule above, ER has right to kick out non-EE solicitor Is this in a mall? Cannot have broad nonsoliciation policy in a mall. Shopping center? Hudgens: no const right to picket at shopping center, can be threatened w/criminal trespass. Lechmere: could apply to solicitors. Are the employees using the ERs property? EEs do NOT have statutory right to use ERs property for section 7 matters, section 7 protects rt not means. No rt to use the ERs bulletin board, email (Register Guard), videocamera, copy machine for union activities Bulletin board is mandatory subject of bargaining but is not substitute for solicitation ER permitted to impose restrictions about use of his property but cant discrimination against the union - but babysitting requests are different Campaign: Union insignia, union buttons Presumptive right to wear union insignia But that right is not absolute: can limit union insignia, buttons to maintain image, protect certain parts of ERs image. Is this retail business? Not only clothes, any customer interaction Legitimate business reason? contact with customers?) Healthcare facility => contact with patients (Beth Israel: contact with patients? how many patients in the area? Have to balance ERs discipline and property rights: buttons cannot criticize ER, msut be safe, can be banned if uniform policy. And cannot restrain 7 rt not to wear a button (U uniform). ER will argue: I needed to preserve my image, was within rt to discipline, U will argue: this was not within one of those exceptional circumstances Campaign: Campaign Tactics, Speech (1) Were there any ULPs by the employer? Didnt submit Excelsior List? U will argue that ER didnt give them Excelsior List before the elction, ER has to give the union the name sof employees 7 days in advance, ER must turn this list over to RD of Board, doesnt matter whether ER sent out his or her own materials Captive audience speech issues timing? **Think of captive audience speeches broadly ex. Register Guard email. Anytime speech made during company hours, on company time, and on company property to the EEs (ex. broaden to email). Was there a captive audience speech within 24 hours of election? (Peerless Plywood) => If yes, Board will set aside election Also to Us: no megaphone on truck (but U has no right to demand equal access to shop floor) BUT allowed within 24 hours: propaganda, speeches where attendance voluntary and on EEs own time Employers Speech ER speech is generally sheltered, but cant have threats or promises of benefits. 8(c). Not all ER speech or literature necessarily interferes with EE free choice. Virginia Electric. ER can share opinion about U if not coercive. But under, Gissel: If ER makes a prediction, is that prediction: Based on objective facts, Predicting demonstrably probable consequences, AND Beyond the control of the employer OR a decision already arrived at Threats Direct threats Implied threats predictions (plants gonna close if union in here - Gissel) Evaluate in larger context of EE free choice bargaining going to start on a clean table depends, if other ULPs more likely (in Shaw, start from scratch = appropriate hard bargaining attitude, not coercive) Must furnish information if requested if make statements about financial future (demonstrably probable) - Dal Tex If have basis in objective fact: permissible predictions, can do it ER will argue: not threats, permissible predictions as to the precise effects, based on the demonstrably probsable consequences. U will argue: threat, whatever ER says is likely to be taken as coercion by EEs, limiting choice (and even if not ULP, laboratory conditions). suggestions can be coercive if have been in past based on experience Is there any policy that is threatening, or any other written statement, document that suggests business will shut down, or some bad consequences will happen if union comes in? ex. all operatios will cease if unionized policy Promises about benefits Did the ER promise benefits? youll get a raise, with or without the union Did the ER promise to withdraw benefits if U won? If yes => ULP, ER cannot make promises Exception: if pattern in place if do something every year, this will not be impermissible promise, just something that is going to happen can promise again xmas turkey gift can be given if its a pattern Union can make promises **Inducements Even if it looks nice, did ER provide any benefits during the campaign? **Board will presume that benefits given before an election are unlawful (Exchange Parts) BUT the benefit could be okay for another reason (Bd will look at factors OL p.12. Were these regularly scheduled economic benefits prior to the economic campaign? (2) Were there any ULPs by the union? Union is also barred from inducements Savair (cant buy the votes by offering to waive fee if sign recognition card); Nestle (class action announced night before) But distinguish=> did U waive the fee for all employees? not seen as unlawful pressure, OK. Union not barred from promises though But union cannot coerce anyone in 7 rights, which include rt to refrain from joining/assisting union Was there any physical restraint or coercion by the union? Destruction of company property? Could violate 8(b) as coercion to join nion. Can also have union coercion during term of unions tenure if would coerce EEs into joining union, will be union ULP ex. use of a health fund solely for benefit of union members (3) Even if there werent any ULPs, could the losing party still obtain a new election under the laboratory conditions rule? (Has something upset requisite laboratory conditions? also can overturn election results) Laboratory conditions => General Shoe: Board will set aside election if conduct of ER (1) falls below the Boards standards for a laboratory setting of a fair election, and (2) direct proof of widespread dissemination (Spring Industries) (3) Bd will weigh other factors: how close margin of victory was, how close in time conduct occurred to election (ex. Nestle night before) Union can fall below laboratory conditions also Ex. forging Board documents by union would fall below lab conditions Was their third party speech? ER can be held accountable based on standards of apparent agency Apparent agency: would a person think that the third party was acting as ERs agency? If yes, ER can be held accountable for the speech (ex. threats about if U comes in from 3rd party) Campaign: Other Possible ULPs key here is always coercion. U argues this was coercion, ER says preserved free choice. 8a1 = interfere, restrain, coerce EEs in the practice of their section 7 rights; lab Is anyone asking questions? Interrogation: Is a supervisor talking to employee at union? Might be interrogation => non-anonymous questioning, often spontaneous, of an employer to an employee about the union If interrogation: apply the Lorben Corp test: would an individual or onlooker reasonably feel coerced under all of the circumstances? (1) Background: what is the history of anti-union discrimination? any history of union animus (if you are ER, minimize; if you are U, play up past ULPs/coercion) (2) Nature of info: what is the nature of the information sought? Did the interrogator appear to be seeking information upon which to base an action against the employee? (if you are U: this is the kind of info that would be used) how extensive was the questioning? very extensive or quick exchange? detailed information sought? (3) Place and Method of questioning: called into the bosss office? air of unnatural formality about it? (if so: more likely coercion, rsbly feel coerced) (4) Identity of the Questioner: how high on the chain of authority was the questioner? But these factors are not exhaustive: totality of circumstances, openness of thee employee about their union affiliation to ER, friendship btw ER and EE. Polling: Is this a comprehensive inquiry of large groups of workers to ascertain their union views? Struckness: will be 8a1 ULP unless the following safeguards are met: (1) The purpose of the poll is to determine the truth of a unions claim of majority (2) This purpose is communicated to the employees (3) Assurances against reprisals are given (4) ER has not otherwise engaged in ULP or created a coercive atmosphere (5) The employees are polled by secret ballot. U will argue: created a coercive atmosphere, many other actions, test is meant to be a strict test (response by Bd), polling is inherently coercive. ER will argue: free choice was preserved, and met factors, was in good faith, was in double-bind. ERs polling arguments why needs to poll If pre-election: ER is trying to facilitate labor peace and voluntarily recognize, but it will be ULP if ER recognizes a minority union (8a2), even if does so in good faith Ladies Garment If while union is bargaining agent: ER does not think that there is majority support anymore for the union, but Board has changed the test for employers withdrawal of recognition, must have actually lost majority support before can withdraw, trying to ascertain employees view so can comply with Boards rule. Levitz Furniture. Is the union doing these activities, not the employer? (ER might argue union did the same) Union polling: pre-election polling done by the union is generally not considered grounds for setting aside an election, not seen as coercive. Union interrogation: union does not Is employer distributing things in a way that could function as polling, or requesting participation in a way that could count people? Participation in video, handing out buttons, mugs, stickers, signing interest sheet, any other anti-U paraphernalia but union can have video, photographs ER will argue: was not a method of counting, was just countering the unions stickers, campaigning. U will argue: this was a comprehensive inquiry of large groups of workers, it must meet the strict standards for polling of employees, polling is inherently coercive, the act of polling itself (any attempt to ascertain views of EEs as a whole) generally tends to cause fear of threats. If you are ER: argue that not questions, conversation, ER speech protected; argue that not polling but interrogation under more flexible Lorben Corp test; if you are union, argue that this was closer to polling. Surveillance Can the action be construed as spying, watching, or looking at what the union is doing? Definition: supervisors stationing themselves near union meetings and observing and identifying employees attending the meeting, following union supporters to see where they go after work, requesting or directing EEs to report on union activities of co-workers. Also cannot have: cameras in break-rooms, or for the employees to think they are being watched. Did the ER put in a broad surveillance policy after union begins election campaign? will be ULP Monitoring, watching, spying, making it sound like the ER is spying ER will argue: has right to discipline. Or that is one of these permissible ways to engage in survieillance: Was only watching the non-employee union organizers who were on company property (Lechmere) Surveillance was bargained for (if this was after CBA) Longstanding practice, not because union animus, done to maintain quality control, 8a1 is about balancing the ERs property/discipline interests against the unions right to engage in s7 activities If surveillance and union loses => election may be set aside but there must be proof that ER caused or authorized the surveillance before it can be found guilty of an ULP Other kinds of language during campaign False Statements Board will NOT generally review the truth of campaign statements people can decide what to believe for themselves. Two exceptions the Board will set aside an election where the winning party has: (1) Forged a document (something that by its nature conceals that it was forged) (2) Misleadingly misused or altered Board documents (to suggest that Board was on Us side) (ex. putting X on the sample ballot) But, if can prove that there was wide dissemination (by direct proof, Spring Industries) and that this upset employee free choice and laboratory conditions, Board might set aside election for impact of false statement on election. Rule applies even if false statement is made within 24 hours of thee election (AWB Metal). Racial content of statements Sewell: where the atmosphere is inflamed by racial prejudice, and reasoned decision is an impossibility, Bd will set aside election as not meeting laboratory conditions (ER calculatedly tried to play on EEs racial prejudice to reject the union). Can have statements with racial content if: Only has minor or isolate references to race The statements with racial overtones are (1) temperate in tone, (2) germane to the campaign: relevant to the campaign, suitable topic of the campaign (ex. U contributes to civil rights groups), (3) factually correct. Can be by either U or employer KI Corp (U tried to inflame prejudice, sent letter from different Japanese businessman). When close question, resolve against person who made statement Employer Domination and Assistance Employer here would be any supervisor acting as an agent of the ER rules of agency cover the ERs responsibility for subordinates Domination - def: the actions of the employer are domination, assistance, or interference, and the group getting the domination, assistance, or interference is a labor organization. Electromation test. (1) Is there a labor organization? Doesnt need to be a formal labor organization. Instead: Employees participate not supervisors, not managers Representative EEs are participating in a representative capacity Organization broadly deals with ER there are some bilateral mechanisms. (U will argue: employer was unlawfully assisting here, is labor org, is ULP; ER will argue not labor organization) (2) Is the employer dominating the labor organization? Monetarily supports Creates; determines continuing existence; determines structure and function of Supervises the agenda or procedure of meetings But NOT: if the ER is simply expressing favor of one union over another (but also cannot coerce employees in their views). But NOT: where the labor org is only unilateral (suggestion box), or where the committee is managers, college professors exercising discretion about future of college (managers fails 1st), or solely an employee committee that resolves grievances w/o interaction with mgmt. Do not need to show anti-union motive. Remedy: dis-establish labor organization if ER has dominated the organization Assistance def: improperly influencing or unlawfully assisting a labor org, again no anti-U animus required for union to prove ULP Company property where rival unions Did the ER allow access to company property to one union and not the others? (access to facilities, to company services: legal counsel, office space, secretary, equipment, copier) Will be ULP Distinguish: if there are no rival unions and ER permitted access to a union, this would be okay if promptly recognized the union after majority support Solicit employees to sign withdrawal cards per se violation of 8a2 Assist with decertification petition per se violation of 8a2 Allowing union to conduct meetings during paid work time Exerting pressure on EEs to join a specific union Recognizing independent inside union over a national union *Recognizing a minority union, even if in good faith automatic, per se violation of 8a2 (Ladies Garment) (unless 8(f) pre-hire agreement in construction industry) However, ER still has duty to bargain with the incumbent union even if there is a rival elections petition (RCA Del Caribe), incumbent union has presumption of majority status, ER can only withdraw recognition if actual knowledge that has lost majority, and a rival election petition only requires a 10% showing of interest by the rival union. ERs Duty of Neutrality for Rival Unions Midwest Piping Doctrine Midwest Piping Doctrine: ER violates the Act if it recognizes and enters into one contract when another has filed a petition for an election with the Board and representation proceedings are pending. ER has an obligation to be neutral during an election. Cannot confer recognition, cannot make up CBA before union gets majority status CAN: have letter of agreement When Midwest Piping Doctrine applies If there is an incumbent union and no decert. petition, no duty of neutrality At the point the 2nd union files its petition, the duty of neutrality kicks in => rival unions question concerning recognition triggers duty of neutrality for employer, even if one of the unions shows it has a majority. Midwest Piping analysis (1) Are there rival unions soliciting? If there are no rival unions, ER can voluntarily recognize the union if there is 51% showing of interest in the cards. (2) Have the rival unions filed a petition? ER will owe duty f neutrality to rival unions Bruckner: employer risks 8(a)(2) violation if recognizes either, even if one has majority, or if enters into contract. Midwest Piping: ER has obligation to be neutral. No duty of neutrality prior to petition ER is is free to recognize a union if that union represents "an uncoerced, unassisted majority" of employees. (Bruckner Nursing) However, even if there is a petition filed, ER still has duty to bargain with the incumbent even if rival filed a petition (RCA). (3) Has ER favored one of the unions, provided assistance, done anything less than duty of neutrality? Cannot provide assistance to one union and not the other (property, access, copier, secretary, money). Cannot enter into a CBA with a union before they have majority support (even if non-rival, unless construction) (Majestic Weaving) Can make a letter of agreement about the goals for bargaining (Dana Corp) ER will argue: this was a letter of agreement, not a CBA, we were not providing assistance to one of the rival unions, were only setting up a cooperative framewor Protection from Employer Discrimination (1) Was the employees conduct or activity protected? If the employees actions were protected, concerted activity, then the ERs response (if firing, layoff, change in benefits), will violate 8a3. Concerted activity about wages, terms, conditions of employment or other mutual aid and protection Does NOT require the union, only requires 2 or more employees (Washington Aluminium: EEs walked off because too cold, Jasper was only 2 who thought bad lighting). Spokesperson, constructive spokesperson (if non-unionzied) Interboro doctrine ((1) reasonably directed to a right in the collective bargaining agreement, and (2) statement or action is based on EEs rsbl belief that is being asked to perform a task not required to be performed or conflicts with CBA). Personal griping is not protected For mutual aid and protection Not about third parties EEs could be disciplined where effort to improve conditions of patients, not about employment relationship (Orchard Park, Five Star) Weingarten rules for interviews of union EEs, NOT for interviews of non-union EEs (IBM) Protected activity Peaceful work stoppage Safety-related protest Employees will engage in unprotected activity when: Violence Waived means: striking if there is a no-strike clause (Boys Market; bargaining directly with ER when union in place (wildcat strikes, Emporium Capwell) Indefensible, disloyal (product disparagement, breach of confidential information, false allegations or affadavits) Uncommon risk of injury (Marshall Car Wheel) Slowdowns (Elk Lumber: they thought they should be getting paid more) or other work stoppage while still on paid time, in the workplace BUT if sympathy strike, could be protected as sympathy strike, refusal of these EEs to cross picket line Because a supervisor was getting disciplined or supervisor was discharged for a management issue. But protected if walked off because: supervisor was protesting ULP. SIGNAL PICKETING SECONDARY BOYCOTT HOT CARGO CLAUSE Solicitation, literature distribution, communication (facebook comments) Strike anything done by ER in reaction to a strike will be discrimination, strike is protected Being in a union, union-related; being fired for pro-union activities (2) Adverse action: not only firing BUT IF FIRING, RAISE 8a3 ISSUE Laid off, fired, discharged, replaced Favoring one group of EEs over the other because of pro-unionactivitie s Not being hired because of pro-union Phelps Dodge (remedy=reinstatement + backpay with DTM) Also: changing benefits, giving benefits to strike replacements, unequal benefits between union and non-union people, benefits that are affected because someone participated in protected activity. Erie Resistor: Employers cant give super-seniority to permanent replacements for layoff/recall purposes Rubatex Corp: ER cant give post-strike bonuses to those who worked during strike not supported by sufficient valid business justification (3) Was the ERs conduct motivated by this protected conduct? Boards burden-shifting framework (1) Burden on Board: GC has burden of showing that anti-union animus was a motivating factor in the ERs decision: Describes adverse effect Plus evidence that there was some form of discrimination, or that ER believed or knew that the person engaged in some protected activity (2) Burden shifts to ER: must show same thing would have happened even if EE had not engaged in protected conduct: ex. sound business justification. (strike benefits: operational needs, loss of customers, public safety, extreme situation; normal discharge: couldnt pay union wage rates: *issue whether is anti-union animus, Adkins held was not, or that employee was just a lousy EE) If ER fails to rebut, GC will prevail regardless of the degree of motive involved Therefore has proven that anti-U animus was substantial or motivating factor in addition to the legit reason. OR, GC may prove employers legit reason was a pretext for discrimination Budd Mfg (accumulation of offenses was pretext) = (4) HOWEVER If the ERs conduct is inherently destructive of U membership, Board may assume an antiunion motive, disregard evidence of business purpose, and find a violation w/o indpt proof of motive Great Dane (typically post-strike). (a) Determine effect on EEs: inherently destructive on important employee rights OR comparatively slight impact on EE rights? (b) Test will depend on if comparatively slight or inherently destructive If comparatively slight, GC still have to show motive, as above, ER can refute by showing business justification. If inherently destructive: no proof of anti-union motive needed. B Board can still find ULP even if no finding of anti-union animus from the impact; if offer business justification, Bd. will balance ERs right/business justification with Section 7 right of EEs Policy consideration: would the hiring/firing/discharge chill union animus? if someones conduct = so extreme and they are fired, not threat to union activity (Mueller Brass). Was the ER discouraging union participation? Thiis will also be 8a3 Was there strikebreaking? => when offering inducements (ex. Erie: super-seniority) to those who leave the strike or to strike replacements Withdrawal of vested benefits from striking EEs? ex. vacation pay (Great Dane) Was there discrimination regarding union personnel? ex. Metropolitan Edison will discourage Partial lockout based on protected activity? This will also be 8a3 ULP Unions Hiring/Firing Discrimination Legal: union shop (membership in union is compulsory after employment, arrangements are legal provided U is majority rep) but membership must be able to be satisfied by payment of dues (only payment of dues can be demanded). union security clause gets this Illegal in RTW states Agency shop: full membership is not required, but all EEs must pay dues and intiation fees legal Illegal in RTW states Closed shop: union membership required before hiring illegal, 8a3 Hiring hall: Union refers employee to ER legal, unless there is discrimination on the basis of union membership in making referrals (even though often is anyway) Partial Closings, Runaway Shops, Going Out of Business => ANALYZE UNDER 8a3 When the union came in, or in response to union animus, did the employer: Move some of the bargaining units work? Ex. Regal Cinemas Move the entire business? (runaway shop) Make ANY CHANGE where because of COSTS? Specifically if made a change because of union wage scales Could make argument of anti-union discrimination Because union has higher costs But likely will not be accepted, still economic motive Partial closing Adkins Test: 8a3, burden-shifting: subject to Darlington, an ER may suspend part of its operations or change its business methods as long as the change in operations is not motivated by anti-union animus Partial closing of a subsidiary Darlington Special Darlington test if still have other business interests when close The closing is an ULP (8a3) if: (1) it was motivated by a purpose to chill unionism in any of the remaining plants of the single ER, and (2) ER reasonably could have foreseen that closing would have that effect. Remedies order to reopen if feasible or backpay from point of closure Runaway shop after union comes in, business closes down and moves to new state/area so that union has to organize again Test: 8a3, burden-shifting (1) GC can establish anti-U animus by timing of relocation; (2) ER has to rebut with business motive/would have reached decision anyway even if not union. Generally must have other new economic factor to show that motivate you besides the union But Lassing, mgmt. friendly circuit, Union was new new econ. factor If ER, emphasize that union was an economic consideration, ~Adkins. If union, emphasize other conduct that heightens inference of anti-U animus BUT Relocating once there is a union involved Can relocate if bargain over effects COA may overturn Bds decision if finds that primary motive for relocation was business necessity issues Rapid Bindery Going Out of Business ok for any reason, even anti-U animus I will close the shop if union wins => ULP Actually closing the shop if union wins => NOT ULP Remedies for ULP Violations -- was there a ULP? If so, consider the full path, **dont forget what the Board can do Reinstatement can have reinstatement even if it was for a hire, and the employee has obtained equivalent employment (but will be subject to DTM for backpay) Backpay -- **ALWAYS subject to DTM Even for ULP strikers their reinstatement with backpay will be limited if they dont mitigate their damages Rule: any backpay award is subject to EEs duty to mitigate, will be reduced if there were substantially equivalent jobs in the relevant geographic area and the EE unrsbly failed to apply for those jobs burden on ER to show jobs in the geographic area burden on EE to show reasonably applied for those jobs (St. George Warehouse) elderly, lack of skill, not exceptions Cease and desist order Board issues order telling employer to stop violating the act Must post the ordernormally ers post where ULP Extraordinary remedies Corporate wide posting remedies, etc ex. reading notice to all employees, posting on internet Paying NRLBs litigation expenses, etc Giving union access to the plant Reopen plants that have been closed Injunctions 10(j) Injunctions discretionary for district ct to issue idea is emergency injunction Prequisties: RD has issued complaint, and ULP is pending or in ALJ, Bd, COA Requirements: district court must believe injunctive relief is just and proper: irreparable injury, harm possible to nonmoving party, likelihood of moving partys success on the merits, public interest Often for UNION VIOLENCE, prevent ER from flagrant ULPs, to stop ER from closing operation or liquidating assets to avoid backpay 10(l) Injunctions Bargaining Orders - order to bargain without having an election, without voluntary recognition Boards only affirmative remedy but if Board finds, will withhold election or set it aside and instead issue a bargaining order as a remedy for the various violatios. Two situations when Board will order bargaining order (1) ER has committed so many ULPs during election that destroy change for fair and free election + union has majority of cards (2) ULP for employer to refuse to bargain with the rep chosen under 9a Requirements for ULP Gissel Bargaining Order Union can demonstrate prior majority support Cards were unambiguous on their face Cumberland Shoe doctrine for card check: cards cant say that they are being solely or exclusively used to get an election, if so, authorization will be invalid ER had committed ULPs, and the changes of having a fair and free election were slight because of the severity of the ULPs (Linden Lumber: no Gissel if no ULPs) Board also considers factors: presence of hallmark or egregious violations (ULP must be pervasive); number of EEs affected; identity of perpetrators; timing of ULP (how close to election); change in circumstances after the violations The Election No review of election (representation) issues unless Leedom v. Kyle, only when the Bd acts in excess of its powers by contravening the Act on its face ex. professionals have to vote to be w/nonprofessional rule not where based on factual determinations Boire v. Greyhound, Ridgewood College Election petition Kinds of petitions Is this a petition for certification? Must have 30% interest (from cards) if election petition Must have 10% interest if challenging a rival union If are the incumbent union, need only 1 card Petition for decertification By EEs in the bargaining unit, or by rival union w/showing of interest from BU EEs 30% interest required Cant do it during irrebuttable presumptions: k bar, election bar ER cant taint w/unlawful assistance Decertification election will also trigger 1 year election bar Employers RM petition where ER good faith basis in uncertainty that the union retains majority support or where rival unions. good faith basis in uncertainty = more lenient than good faith reasonable doubt Board review of petition: IF DOESNT HAVE ONE OF THESE => Regional Direcotr will NOT proceed w/election Board jurisdiction (Commerce Clause, in an industry affecting commerce) Unit is an appropriate bargaining unit There can be more than one appropriate bargaining unit To challenge unit determination (w/8a5) ER must show that unit is truly inappropriate (Blue Man Group): no legitimate/rational basis for exclusion, there are overwhelming similarities between the two units. How rebut? Trident Seafoods ER showed functional integration with unrebutted evidence and that the two units overlap entirely, can be said to have zero community of interest separate from each other, identical interests (re: hours, employment, benefits, supervision, training). Community of interest: Bd. will consider from both the U and the ER Unions community of interest: extent and types of current org (cannot be the only factor though for determining BU), bargaining history, similar duties, skills, function, training, benefits, employment Ks. Employers community of interest: lines of supervision, EEs working conditions, organizational lines. Who wants what generally U wants: smaller BUs, be able to whipsaw (one manager, multiple bargaining units, multiple strikes to cause more of a headache) - if ER challenges and says no legitimate basis for exclusion, U will argue differences between the BU and non-BU employees (ex . Blue Man skills, training). ER wants: bigger BUs, and to be in line with organizational demarcations (so not whipsaw) ex. Blue Man, ER challenges because said techiciains should be with everyone else; ER will challenge to aruge wrongfully excluded, ER will highlight similarities between BU and non-BU. High stakes: election unit, represents all (exclusive and majority rep), EEs waive right to bargain individually with ER (ex. Emporium Capwell). Specialized rules: guards, professionals (w/nonprofessionals), acute healthcare facilities, craft unions. [OL at 26] Multiple plants? Single unit presumptively appropriate even where there was another plant 20 miles away and their operations were integrated (Dixie Belle Mills) goal of NLRA is to encourage collective bargaining, makes more likely (pro-U policy). Other kinds of bargaining units Multi- bargaining unit Creation Mutual Consent all ERs have to agree, U has to agree Board must deem appropriate looks at past negotiations of ER Withdrawal -have negotiations begun? If negotiations have not begun => a single employer can withdraw from multi-ER unit If have begun (including if at impase) => single employer cannot withdraw from the multi-employer bargaining unit, unless Gets consent of all the parties, including all other ERs and the union OR Unusual circumstances financial hardship, or U contracts with other ER Impasse does NOT count (Bonnano) Union also has to follow these rules, also needs consent or unusual circumstances in order to withdraw Coalition Bargaining Either side can choose its negotiation team as it sees fit Other party will commit ULP for failure to bargain if does not bargain because of this, unless the situation is so infected with good will because of the additional person that GF bargaining becomes impracticable. Evidence of proper showing of interest thru cards (usually 30% of EEs in the bargaining unit) Exception: 8(b)(7) expedited elections where the ER files an ULP complaint under 8(b)(7)(C) then the ER can direct an expedited election No commission of remedied ULPs blocking charge ULPs by ER ULPs by union Proper Timing: Does NOT Violate Election Bar after an election, must wait another year before the Bd will direct another election in the bargaining unit or any subdivision of the bargaining unit (including if lost/if was decertification election). Recognition Bar where there was voluntary recognition => for a reasonable period of time where the union has had a fair chance to succeed. Certification Bar- no prior certification within the preceding year During the year: irrebuttable presumption of majority status (no petitions) unless unusual circumstances Brooks. After 1st year, rebuttable presumption of majority status. Contract Bar no existing CBA that would block the petition (irrebuttable presumption for the three years of the contract). three years of labor peace. Is there a CBA in place? If an old contract expires, and a new one is not renegotiated, new U can file petition. But there is still presumption of majority status after the CBA expires (Bartenders). Is it within the first 3 years? only bars for the first three years, Shaw Supermarkets. A contract that is longer than 3 years will still only bar for 3 years. If new U comes in => 4th and 5th year provisions do not apply, nullified. (American Seating Co) Is the contract able to serve as bar? No illegal provisions? In writing, by both the ER and the U? Applies to the employees who are concerned in the petition? [OL at 25] The election itself Voter Eligibility Last payroll Strikers/Replacements If youre an unfair labor practice striker, youre eligible to vote indefinitely If youre a non-replaced economic striker, youre eligible to vote indefinitely If youre a permanent-replaced economic striker, youre eligible to vote for 1 year after the strike began If youre a permanent replacement, you get to vote If youre a temporary replacement, you dont get to vote If youre on layoff, youre eligible to vote if it appears likely that you will be recalled Are these non-striking replacements? => Bd assumes they support the incumbent union Are these (voting, permanent) replacements => Bd does not presume anything about their union views, meaning no anti-U presumption either Recognition if U presents the majority of cards, ER has no obligation to accept, ER can refuse to bargain based on the cards, does NOT need to give affirmative reason, can say no comment. Exception: If ER knows from a personal poll the majority of the EEs supported the union Withdrawing Recognition from the Bargaining Unit CONSEQUENCES If withdraws unlawfully => remedial bargaining order for the U, as part of that gets reasonable period of time and rebuttable presumption of majority (U gets temp majority status) **If withdrawal is before, after, or during strike, and ER withdraws recognition, now is ULP during strike, can convert strike to ULP strike, very expensive. And if ER has changed benefits without bargaining about them can be ordered to restore them. Three ways to withdraw (1) Unilateral withdrawal, most risky (need objective evidence that U no longer has majority support), Levitz; overruled Celaneste, objective GF basis no longer eough. (2) Poll many requirements [if poll, then see that have objective not majority, withdraw?] (3) RM election petition- needs GF reasonable doubt, and meet time requirements of a petition otherwise Analysis (1) Has the employer withdrawn recognition during one of the irrebuttable presumption of majority status If withdrawn during election year; recognition bar; certification year; contract bar during the first 3 years of the contract => per se ULP, violates duty to bargain in good faith. whether or not the EEs still support union (Brooks) whether or not the ER thinks there is majority support only for: dissolves and becomes defunct, almost all members transfer, affiliation to new union) (2) Is there a rebuttable presumption in place? Continued majority status of the union after certification year expires Continued majority status after expiration of CBA (Bartenders: ER withdrew after CBA expired, this violated 8a5). (3) Does ER have objective evidence that union has actually lost majority status support OR does ER instead have doubt that there is a majority? If ER has objective evidence that actually lost => can unilaterally withdraw (Levitz) But if ER does NOT have objective evidence that actually lost => CANNOT unilaterally withdraw, will be ULP Instead, if ER has good faith doubt => ER must file RM petition for an election and await the results of the election before withdrawing recognition. (Levitz: std is lower than used ot be)

Duty to Bargain in Good Faith with the Exclusive Representative Is anyone trying to go around the union as exclusive rep? Is this a mandatory subject or a permissive subject? See above/see sheet If mandatory subject No negotiation between ER and EE Individual EE cannot negotiation directly with ER => can be discharged without protection ER cannot negotiate directly with employee => will be 8a5 violation, ULP LIMIT: ER can explain to employees position on something without ULP (ex. what its last best offer is). Existing individual employment contracts are not a bar to CBA, CBA wipes these out to the extent that they conflict (the individual employment Ks can still exist to the extent that they are OTS of the CBA and not inconsistent). J.I. Case No exception for issues that impact a minority of EEs more strongly Emporium Capwell If permissive subject Individual EE can negotiate directly with ER to the extent that it is not inconsistent with the current CBA. Has the union waived the rights of its employees? Waiver of Title VII right to sue in court => legal, and can be enforced, Penn Plaza Class action waiver => legal, BUT Board has held it doesnt preempt NLRA, participation in class can still be concerted activity Right to picket, right to strike, right to sympathy strike all can be waived Right to ULP strike not within the no strike clause in general, but can be waived if explicit. Individual section 7 rights of solicitation (Magnavox) => cannot be waived Right to refrain from wearing union insignia => cannot be waived Weingarten right can be waived

Duty to Bargain in Good Faith (5 ways ER can violate: bouwlerism, unilateral on a mandatory, surface, not furnish info, regressive) Def: 8(d) - both the union and the employer have an obligation to: (1) Bargain in good faith about the wages, terms, and conditions of employment (2) Meet at regular times (3) Come with an honest effort to reach an agreement ***Significance of Duty to Bargain in Good Faith If does not bargain in good faith => union can file 8(a)(5) labor practice Employees can go on strike for their bargaining demands AND for the ULP If union succeeds with ULP charge, employer will owe: (1) backpay -but with DTM, (2) reinstatement of employees, (3) on top of ERs loss of work time, interruption. (1) Is there a duty to bargain in good faith over this topic? Rule: NLRB requires the employer and union to bargain collectively over any mandatory subject. 8(d). Unilateral activity by ER on a mandatory subject unless the union has waived the right to bargain over the subject. Significance of whether mandatory vs. permissive subject

IssueIf subject is mandatoryIf subject is permissive

Duty to bargain in negotiations and duty to furnish information Must bargain about the subject if party raises it.

If potetnailly relevant, must furnish info about the mandatory subject must be disclosed Do NOT need to bargain about subject if party raises it were not talking about that right now is NOT a ULP. Must attach it to something they want.

Unilateral Actions

And because DTBEmployer cannot take unilateral actions unless:-Management rights clause-Bargained-for subject in existing CBA-At impasse, implementing LBO.And because no DTBEmployer can take unilateral actions on permissive subjects

Individual negotiations between employer and employees Cannot, the union is the exclusive bargaining rep on WTCE. 9(a). Can to the extent no conflict.

Ability to bargain until impasse.and because must bargain about it, can bargain until impasse. and because do NOT need to bargain about it, can NOT bargain until impasse

Economic StrikeAt impasse, YES They cannot reach impasse, therefore NO economic strike

Employer LockoutAt impasse, YESThey cannot reach impasse, therefore NO employer lockouts.

(a) Still within timeframe that there would be a duty to bargain for the parties? Bargaining before execution yes, King Size Sandwiches After impasse, when negotiation Impasse means you can't agree and negotiations have come to a complete halt. BUT, if one or both parties change their minds about something, then they have a duty to return to good faith bargaining. Therefore, if at impasse => no bargaining, unless one or both parties change their positions on a mandatory subject. Once reach agreement, during the term of an agreement, on new subjects and duty to disclose - Acme When the employees are on strike if the parties change their position about something After the contract has ended Sometimes dont have to arbitrate the grievance But DO have to bargainin good faith Successorship: when 51% of ER2s employees are from the old ER, bargaining demand, continuity of employment (see later). (b) Is this a mandatory or permissive or illegal subject? Does this affect the wages, hours, or other terms and conditions of employment of the bargaining unit employees? Is this a management decision (matter of mgmt. pereogoative- will be permissive) OR is this the effect of a mgmt. decision (will impact the wages, terms, conditions, employment of EEs will be mandatory). Particular subjects Retiree benefits Pittsburgh Plate Glass => can apply vitally affects test Having retiree benefits, for the current EEs, is a mandatory subject affects their wages, is a condition of employment, term But the manner in which retiree benefits for current retirees are paid out by ER does not vitally affect the terms and conditions for active EEs. Bargaining unit work for supervisors is mandatory WARN act if closing plant with 50+ EEs Decision to sell business similar to decision to close business (and if partial closing: bargain over effect not decision). **Bargain over effects: pensions, severance pay what impact will the closure have on the EEs If want there to be a duty to bargain Will argue it affects wages, money, money can be described more loosely, Oliver minimum rentals, cafeteria food, babysitting on site, pattern could come to be thought of as a wage (turkey money every year). If pattern => how long-standing is the pattern? Is it related to productivity? (~wages) Is it a fixed sum in case over a long period of time? (~wages) Will argue this is linked to working conditions, or other conditions of employment => something the EEs came to expect as part of their job - compare to vending machines (Ford) (ford factors). If dont want there to be a duty to bargain Will argue this is a GIFT, ex. Christmas turkeys from class, therefore it is a permissive subject, not related to productivity, not wages. Will argue this is not about current BU employees ex. Pittsburgh Plate Glass. (c) If this is a midterm negotiation => has the union previously waived its right to bargain over this topic? (see below) Zipper, Mgmt rights clause, Conduct in negotiations Bd. requires the employer and the union to bargain collectively over any mandatory subject, and unilateral action by the employer would a ULP unless the union waived the right to bargain over this. Then failure to bargain with union over thisand taking a unilateral actionis NOT violation of DTB. If mandatory subject must bargain in good faith until impasse If permissive subject of bargaining: there is no duty to bargain in good faith over a permissive subject of bargaining. in order to bargain about it, they both have to elect to do so. Cannot bargain to impasse, cannot take CA over ER can take unilateral actions over permissive subject ER can negotiate directly with EEs over permissive subjects (2) Conduct: did the parties bargain in good faith? Parties are obligated to confer in good faith with respect to wages, hours, and other terms or conditions of employment (8(d)) (A) Did the party implement a unilateral action on a mandatory subject before impasse was reached? Katz (366) held: this frustrates objectives as much as a flat refusal Impasse = point after long bargaining when no agreement is reached & parties do not want to make any changes. Determining impasse requires a case by case, totality of the circumstances (including history of relationship b/t parties, record of what has been said at the table via parties notes, importance of the issue) Might be that the parties disagree both file different ULPs In this case => NLRB will look at understanding of both parties and history of negotiations. Impasse must be about the entire negotiations, not one issueDuffy Tool & Stamping. ( ER has very limited ability to make changes is really limited if negotiations go on for years and ER must maintain the status quo), Once impasse is reached, the duty to bargain in good faith ends BUTimpasse is a temporary condition that ends once a party decides that they will change. Only at impasse can the ER implement last, best, final offer (and take this unilateral action) Katz: parties had NOT yet reached impasse, and ER unilaterally implemented sick leave policy the use of economic power by granting wage increase and changing the sick-leave plan = flat refusal to bargain about those issues (i.e. terms and conditions of employment), this is not a form of economic power allowed by NLRA, parties have to bargain about those issues. POL: unilateral action plainly frustrates the statutory objective of eastablishing working conditions through bargaining. Even though here, the ER gave a wage increase and said he was doing it in good faith, because have the U in place, have to bargain=> some might want it, some might not. AND the union could still require that the ER not take unilateral action on something that had done previously merit increases in Katz. Implementing a change that is better than what was bargained for (after ER has implemented last best offer) is inconsistent with a sincere desire to reach an agreement (Pacific Gamble) Arguments for each: when there is an allegation that party unilaterally implemented Unions arguments 1) The change was about a mandatory subject and therefore could not put in unilateral change other than the last best offer at impasse not a gift compare with others therefore you should have bargained over this under Katz. 2) Impasse issue did not reach impasse ex. if implemented a change that was better than bargained for, Pacific Gamble did not reach impasse, in general, facts and circumstnaces Employers arguments 1) This was in our discretion If existing CBA => point to mgmt. rights clause If new topic, argue that it was totally discretionary, therefore could do what wanted and was not unilateral in violation of DTB, ex. merit wage increases 2) This was a legitimate economic weapon under American Ship and Insurance Agents. Er would cite to Insurance Agents - there are limits on the Board's power to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ. The Board would agree with the Union => If discretionary increases based on are a mandatory subject of bargaining because they were decided based on a fixed rubric of employees standard performance throughout the year, and amount to wagesnot gifts, then unilaterally discontinuing the merit increase would be unlawful.; and merit pay is a mandatory subject, McClatchy. For this reason, ERs last, best, final offer cannot give employer unlimited control, the LBO cannot be a discretionary wage increase, because this will undermine the purposes of collective bargaining. McClatchy Newspapers (370). (B) Flat refusal to bargain? (C) Refusal to meet and confer at reasonable times? (D) Insisting to impasse on a permissive subject of bargaining? Both sides argue whether subject is mandatory or permissive If mandatory => would have been ULP not to bargain to impasse on this If permissive => will be ULP to bargain on impasse on this (E) Not furnishing information in line with duty to furnish information? Truitt An employer is obligated upon request to furnish the union with information that is potentially relevant and that would be useful to the union in statutory responsibilities. (Truitt) Truitt=company said in bargaining that 10 cent raise would break the company, U asked to see the financial information Unions also have duty to provide information Important as part of evaluating a party's claims made during negotiations. NLRB v. Truitt Manufacturing Defense: Interest in Employee Privacy - Detroit Edison Co.: standardized tests that revealed personal information. Continues throughout the term of the CBA ex. Acme. Role of Economic Weapons in bargaining Engaging that something trying to get the other party to meet demands during duty to bargain? => on the job protests do not violate DTB even when they exert pressure while people getting paid and are unprotected Proponent will argue it is ECONOMIC WEAPON within the American Insurance meaning, it is unprotected but it is not an ULP, it is not a violation of the duty to bargain in GF. Conduct in the workplace slowdown Sit-ins Not attending business meetings - these were all things that were economic weapons but did not violate duty to bargain they were economic pressure but they were not bargaining in bad faith. Strike does not violate duty to bargain in good faith American Insurance there are limits on the Board's power to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ. Board can only order parties to bargain, not which economic weapons to use (unless secondary) Did the Board exceed limits on its power? Board cannot order substantive specific clauses Even when would end the dispute, when entire dispute is about one clause, still cant Cummer-Graham (arbitration clause refused when had no-strike clause), H.K. Porter (check-off clause dispute). Board cannot order wage increases Board cant order make-whole remedies if there is a challenge to certification (Ex-Cell-o) But can order reinstatement, backpay, access, notices (see above)

Employee Collective Action: but apply this analysis throughout (concerted? for mutual aid + pr? protected?) Employee collective action reflects a balance employees right to engage in concerted action vs. employers right to maintain order and control in the plant. This balance is reflected in separating protected from not protected activity under 7

If activity is protected by 7 (concerted, MAP, + protected) If activity is NOT protected by 7

Employer CANNOT fire employee for involvement in the activity, and it will be 8(a)(3) and 8(a)(1) UNFAIR LABOR PRACTICE for employer to take action against employee (benefits, firing) for involvement in this activity. Employer CAN fire employee for involvement in the activity, because of the activity.

Employee can be reinstated with backpay (subject to DTM) if Board finds that ER acted in retaliation to EEs participation in protected activity. Employee will have no recourse in challenging the employers decision to fire; ER can fire an employee for any reason at all, as long as it isnt because of section 7 activity, and here it isnt.

**Section 7 protects both unionized and non-unionized employees, if the employees actions were concerted and for mutual aid and protection and not unprotected means (ex. disloyal, violent). (1) Concerted? One or more people engaging in activity together for the purpose of mutual aid or protection? Washington Aluminim, Jasper (can be only 2). If non-unionized: acting as spokesperson, even if not two people? or acting as constructive spokesperson, talking to ER about a bad lighting for everyone? => concerted IF the activity of the single employee is concretely linked to the other employees. Complaining about machine and no one else felt that way => not concerted. No griping. If unionized: Interboro Doctrine. If an employee asserts a right 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 of the EE that he is being asked to perform a task not required to be performed according to the CBA, or that conflicts with the CBA but the EE can be wrong as long as its reasonable and honest .then the action is concerted activity, even though the EE is alone when he does his action. If want Interboro Doctrine to apply => compare to City Disposal CBA had provision about driving safe trucks, he refused to drive truck b/c didnt think it was safe, this went to the rights of all employees, because all the EEs were covered also by the CBA provision, he was enforcing everyones right not to drive unsafe trucks If dont want Interboro Doctrine to apply => argue that the EE is only standing up for his own benefit. Ex. EE arguing mourning policy when he alone had strange calamity and it is unfair as applied to him. (2) For Mutual Aid and Protection Is the EE advancing a cause within the employment relationship? Look at the EEs/EEs ends : what is the action direct toward? If contract provision yes, for collective bargaining or other mutual aid and protection Third parties NOT within employment relationship Orchard Park the patients, whether the patients were too hot in the nursing home ward X for MAP Five Star the kids safety But employee causes more broadly are within the employment relationship (general employment relationship Eastex) If unionized employee => Weingarten Interview IS for mutual aid and protection Employee must reasonably fear that discipline against them will be expected to follow dont get a union steward with you for (1) conversational interview, or (2) meeting about a decision already arrived at, not just if mtg to communicate a decision already made EE must request representation (and dont get Miranda rt to be told) Must have union in place, IBM Dont get to choose favorite, dont get to have person with them if interview is to happen immediately (EE gets to have confidential mtg with steward before going into interview), **ER may not limit the role of the steward to silent observer. and the U rep cant be disciplined for accompanying the EE to the interview (Intl Ladies Garment) BUT ER can: (in addition to granting the request) No longer have the employee disciplinary interview, and offer the EE a choice between: NO interview at all OR Continue the interview without having a union rep with them, waive it there Therefore, ER can dilute this very muchand ER would argue this if challenged on Weingarten grounds Theory behind ERs escape clause => nothing that say EE has to have the interview, only caselaw that the EE has to have a rep if has the interview. (3) Protected? ** the means of how the unions or the employees action is done Even if concerted, even if for mutual aid and protection/the employment relationship, if an unprotected means, it will be outside the scope of 7.Unprotected Means Indefensible, reprehensible? (Aroostok) Violent? Uncommon risk of injury or property damage? Disloyal? Product disparagement? (Jefferson Standard) Includes boycotts (also secondary) Can breach as an EE or prospective EE Five Star Breach of confidential information? (ex. trade secrets) False allegations or affadavits concerning the ER that are deliberate or malicious Sitdown, slowdown, any concerted action during work time? other than a sympathy strike, which IS protected Against sprit of NLRA? trying to get someone fired for being dissident, goal = against other laws **Over a supervisor when the supervisor would not have been protected for this act Protected IF supervisor is protesting ULP NOT protected if super is just fired for managerial decision, or other supervisor discipline During cooling off period? If strike during cooling off period and economic strike => unprotected But if strike during cooling off period and ULP strike => still protected, Maestro Secondary? Signalling? To obtain Hot Cargo Clause? To enforce Hot Cargo Clause?Special Protected Means to Note Safety-related protest (protected if have good reason) Refusals to cross picket lines Picket line at employees own company If a primary picket and refuses to cross => concerted and protected If a secondary picket line at EEs own company and refuses to cross => now EE is participating in the illegal means of the pickets (by aligning w/the pickets, is now also unprotected and subject to discharge for actions) If at another company when EE is making deliveries, or when EEs are receiving orders (hypo) => concerted and protected If someone stops work for refusal to cross picket line, ER can hire temporary replacement for that employee/those employees s

Strikes and Lockouts Strikes Section 7 protects concerted activity, and this includes the right to peaceful work stoppage (peaceful strike). But Congress has also expressed desire to settle agreements at bargaining table without recourse to economic weapons pro-arbitration policy, and arbitration now => no strike. Note: High stakes for both if unions strike is unprotected => can be fired for being involved in the strike capital punishment if ERs lockout is ULP or other response method is discrimination against strikes => once find ULP, strike is converted to ULP strike, ER has to pay reinstatement/backpay subject to DTM, but still expensive. Does this meet the checks for a protected strike? Doesnt implicate any of the unprotected activities? Not during cooling off period? Reached impase?? MUST HAVE REACHED TOTAL IMPASSE Striking about mandatory subject? Lack of No-Strike Clause? Lack of Arbitration Clause? A => NS; if they are striking in the face of arbitration clause, also unprotected Employers Response Does the employers response to a strike have the possibility to convert this into a ULP strike? (1) Has there been a ULP by ER after strike? Evaulate using 8a3 if related to hiring/firing: Great Dane Test Comparatively slight=> need to establish ERs anti-union motive, ER has opportunity to refuse with business reasons. Inherently destructive 8a3 violation without motive But not all action will be ULP Christmas bonuses wasnt, was based on productivity, was comparatively slight Discharging strikers -8a3, because of protected (Laidlaw) Inducements for striking EEs to retun to work (strikebreaking thru inducing) Belknap, Erie Resistor Employer action related to payment /withholding of benfits Great Dane vacation pay Partial lockout - IBEW 15 (2) Would it be a ULP strike by subjective/objective factors of the Board? Board will evaluate strike as ULP based on subjective factors whether the EEs think it is, posters, flyers-and objective factors (bargaining dispute btw parties, timing). Employers permitted options at impasse Implement last, best final offer an ER may implement his final offer, provided other negotiations not taking place. Lockout employees Must be at impasse lockout becomes ULP where employer is locking EEs out to avoid bargaining in good faith Offensive at impasse, before strike (American Ship) Lockout Requirements: (1) ER cant use lockout as a means to injure a labor organization (2) ER cant use to evade his duty to bargain collectively, in GF with union (3) Anti-union animus: will be subject to 8a3 motive test ER must argue: business justification, needed to lock out EEs to exert economic weapon, ex. because there would be upcoming busy season when could not have strike (American Ship) (4) Must maintain GF bargaining duties during lockout although at impasse, if one party changes position. But, ER is allowed to use economic weapons, Boardsr role is not to function as the arbiter of economic weapons (Ship) Defensive at impasse, after strike Could be at one in a multi-ER union (Buffalo Linen) Partial lockout bad idea, very likely 8a3 charge Local IBEW 15 locked out the EEs after strike, 8a3 charge, it was because anti-union animus Great Dane test Rule: To justify a partial lockout on the basis of operational need, an ER must provide a reasonable basis for finding some of the employees necessary to conintue operations and others necessary (and cant be past strike conduct). Lockout employees plus hire temporary replacements during lockout Hire replacement workers If economic strike: hire permanent replacement workers but, if hasnt bargained in GF or engages in other ULP, could be substantial liability. If ULP strike: only can hire temporary replacement workers, not as strong a tool against the union. Replacement Worker Rules - MacKay Cant discharge the strikers Can perm replace economic strikers Discharged strikers remain employees, preferential reinstatement, must reinstat when vacancies arise, unless striker has obtained substantially similar employment elsewhere. If ER does not extend vacancies to them => must show would have refused reinstatement based on skill or ability and not because of participation in strike Notification must notify strikers who want to return to work (have made unconditional offer to return to work) of vacancies But ER doesnt have to bump more junior EEs Transworld Cant treat union officials more harshly than other EEs if there is a violation of no-strike clause Metropolitan Edison b/c would discourage being U officer Other options Continue operations with only supervisors or other BU employees who are willing to cross picket line Try to invite strikers to work but cannot induce them to come back with raises, etc. Employers actions can be 8a1 or 8a3 violations in response to strike Employers Remedies if there is a strike If no no-strike clause or arbitration clause Temporary Replacements Perm Replacemetns Lockout (offensive, defensive) If there was a no-strike clause or arbitration clause **Boys Market Injunction Judicial enforcement of no-strike clause ER will file 301 for breach of contract (the no-strike clause) Requirements Not extending to Buffalo Forge Right to damages from unauthorized strikes 301 authorizes damage suits for unions for breach of contract Wildcat strike liability If was only no-strike clause, ER could file for breach w/301

[just pure checklist after this point refer to outline p. 45 75] Picketing Section 7 protects concerted activity, and this includes the right to picket. Mention constitutional location picketing is distinguished from speech because coercive; picketing on behalf of an unlawful objective is not constitutionally protected, even if it is in a peaceful manner (Vogt because it was similar to secondary boycott, state could enjoin). Hudgens: the first Amendment is not a bar to criminal trespass of picketers, nor of arrest (for criminal trespass) of picketing. Recognition or Organizational picketing (1) Is this picketing? Confrontational aspect? Picketing is distinguished from other forms of speech by its coercive/intimating element (Carpenters Union) (2) If this is picketing, is it for recognition/organization? If no => Go to #3 If yes => Subject to Recognition Picketing Rules UNLESS: information picketing is also a goal Crown Cafeteria Proviso allowed even though a goal is recognition Recognition/Organization Picketing Rules If any of these bars, the picketing will be a per se 8(b)(7)(C) violation if the ER files a ULP charge. (if it is impossible to file a petition w/in 30 days => ULP) Contract Bar -- no recognition picketing during CBA bar Certification Bar no recognition picketing during certification yr Election Bar no recognition picketing within a year of an election Recognition Bar where the employer has lawfully recognized in accordance with this Act any other labor organization In excess of reasonable time, usually 30 days, without filing of a certification petition 30 day requirement still applies if recognition + ULP 30 day requirement does not apply if informational picketing; and can recognitional + informational goal (3) Even if this is picketing, does it instead have information or area standards as (one of) its goals? => falls within publicity proviso doesnt have to follow 30 day bar can picket in excess of 30 days w/o election petition Informational Purpose = truthfully inform the public about ER not being unionized Area standards Truthfully inform the public that ER doesnt meet area standards But (4) Is it actually signal picketing? Activity that is short of picketing or is picketing through which a unio signals to another group of employees or union members that hey should pressure on the picketed employer. This in turn puts pressure on the employer of those employeesmaking this a form of secondary pressure. ILLEGAL. Ex. picketing that halts pickups or deliveries by independent trucking companies Purpose = to signal, or to discourage members of other unions from performing work for the benefit of the picketed ER Electrical Workers In response to 8(b)(7) recognitional picketing charge (ex. if in excess of the time requirements), union will argue: This wasnt picketing, this was handbilling 8(b)(7) doesnt come into play May be protected as speech DeBartolo This was not recognition, it was information/area standards=> publicity proviso This was not signaling, it was information/area standards only => publicity provison This wasnt recognition picketing, was solely about ULPs of the employer Secondary Boycotts Is this activity the application of economic pressure upon a person with 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 union does have such a dispute? Who does the union have the beef with? Who is the union putting pressure on? in order to get the primary to do what they want, they are putting pressure on someone else: picketing them, hurting them If the union is putting pressure on the secondarys employees, or on the secondary employer by pressuring its customers, this will be a secondary. NOTE: the beef is always with the primary If its primary strike, the answer to these questions will be the same: Company A; Company A. If its secondary, they will be different Soviet Union for invasion; ship company But NOT secondary: Incidents of lawful picketing sympathy strike (other peoples refusal to cross picket line, other delays from primary strike). Intl Rice Milling. Exceptions to secondary boycotts Individuals are allowed to refuse to cross a picket line is incidential to primary, not secondary Publicity, other than picketing, to advise the public the products of the primary employer are being distributed by another employer handbilling, ex. DeBartolo Tree Fruits ExceptionSingle Product Picketing is OKAY (establishing the legality of picketing a struck product at a secondary employer, where the struck product is one of many products sold by the secondary employer) Policy: freedom of K, dont want neutral bodies involved Consequences if action is a secondary boycott Board can issue cease and desist order Even before hearing on the merits, RD is to secure an injunction in district court against probable violations pursuant to 10(l0 303 tort compensatory damages for secondary pressure like lost business because of the pickets ER can fire the employees because of the activity not protected To Consider In Secondary Boycott Problem A. Picketing vs. Handbilling Step 1: Is this picketing or handbilling? Handbilling does not threaten, coerce, or restrain, ay person to cease doing business with another within the meaning of 8(b)((4)(B). DeBartolo. Therefore, if the activity is only bannering (RA Sushi) or handbilling or pamphlets, U has good arugment that it is not unlawful secondary pressure DeBartolo: HANDBILLING => NOT SECONDARY BOYCOTT Peaceful pamphlets to customers about the fact that ER fell below area standards resembles speech, consider w/free speech protections Carpenters Union: BANNERS PEACEFULLY ON STREET => NOT SECONDARY BOYCOTT Stationary vs. walking back and forth Not shouting; require more than mere persuasion after DeBartolo 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 Step 2: If this is handbilling, or bannering, activity that is short of coercive, is it unlawful secondary pressure through signal picketing? 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. 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. activity short of a true picket line is secondary pressure if it is signaling to start the secondary pressure by other unions this is why must raise issue on the bannering/handbilling cases Giving signals to other EEs and union members to put pressure on a secondary ER 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. If INFORMATION => and only BANNERS => will be short of coercion (step 1) and short of signaling (step 2). B. Ambulatory Situs Is anyone moving here? - aka: 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). Rule: 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) - Union may lawfully follow the trucks and the drivers and picket the trucks and employees as they go about their business. Apply Moore Dry Dock (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 (2) At time of picketing primary employer is engaged in its normal business at the situs (3) Picketing is limited to places reasonably close to the location of the situs 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. Pickets (who are supposed to be there attacking the primary) should not talk to the customers of the secondary. (4) Picketing discloses clearly that the dispute is with the primary employee If the truck driver works for primary employer, union can ask the driver not to drive the truck The 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/cross picket line). Driver, as a primary employee, is a protected striker if he decides to honor the picket Union will argue: we were doing primary (when they were really doing secondary, stretching how close they were to the truck, putting pressure on the secondary to put pressure on the primary. C. Common Situs 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 (1) Picketing strictly limited to times when the situs of dispute is located on secondary employers premises (2) At time of picketing primary employer is engaged in its normal business at the situs (3) Picketing is limited to places reasonably close to the location of the situs (4) Picketing discloses cle