Q What Would Be Good As 1St Principle (W/O Labor Statutes)

Epstein- Labor (2002)

Checklist

 What would be good as 1st principle (w/o labor statutes)  What must be done under the labor stat framework- even though NLRA unCOn  What would White say (pro-labor to the extreme)

ULP by Mg  Interfere, restrain, or coerce (writ large)- 8a1  Discrim in hire or tenure to encourage/discourage membership in U  Refuse to bargain  To dominate labor org- 8a2  Actual benefits (or promise of) to wrkrs- Exchange Parts  Explicit differentiation b/w U and nonU is per se ULP w/o regard to intent- Radio Officers/Great Dane

ULP by U  Restrain/coerce emps in §7 rts or Mg in selection of reps  Refuse to barg- 8b3 

Actions by workers  Are they “employees”  Is this “concerted action” for “mutual protection” o Do not need specific demand- WA Al  Cannot go outside U in bargaining (Emporium)  Slowdown or partial strike not protected  Can bring grievance to employer- §9

Actions by U  Is this emps (Republic Aviation) or U (Lechmere/Babcock)

Actions by Mg  Is there evidence of antiU animus (big problem)  Is there dual motive  Closing down part OK if biz reason (Lassing) but must barg to K out (Fibreboard) o Actions that look like King out should also be lmtd (though perm replacements are not) o Like ban on perm subKing in strike - LandAir  Shutting down whole firm is OK, but look if just funneling wrk elsewhere- Darlington Mills  Can hire perm replacements- Mackay Radio

CL called off  Republic Aviation shows stat trumps CL Closed shop- all workers must be member of certain U to wrk- basically banned under Taft-Hartley Open shop- U membership is not condition of employment Union shop- wrkrs must become U member in 30 days- permitted in 8a3

Rt to work state- U cannot get K that all emps must be U members)

Are emps better off w/ U? (Yes if in U, no if not)  Us are run by older wrkrs- natural bias to benefit these wrkrs o Will sell out future emps to help self  U’s generate wage premiums of 20% o Threat of U may keep wages up for nonU wrkrs  But to increase wages must cut some wrkrs o Those let go are worse off b/c of U- currently at best job option  Ironically wrkrs want other firms not to be U o Pensions are s/hs and will profit more from owning nonU firms  Promotion chances (to Mg) probably better in nonU (no lingering loyalty issues) Justification of U’s  U’s make firms more efficient/productive- Freeman and Medoff o But firms should seek these efficiencies on their own (w/o cost of U)  Us can provide unified voice for wrkrs- too avoid cost of being dissident  NLRA created to account for inequality of bargaining power

Libertarian view Let wrkrs and Mg K as they want to  Just protect from tortious inducement of breach of K- Schoolmaster case  Yellow dog K (agreement not to join U while in firm) is just fine (banned by NlaG)

Norris LaGuardia (1932)  Immunizes U’s from AT liability for secondary boycotts- Hutcheson

NLRB  Apptd to 5 yr terms by Pres  Prosecution is responsibility of GC (apptd by Pres) o GC decsion not to issue or w/draw complaint is not reviewable by Bd or Cts- Sears  ULP can be initiated by “any person” o Must be filed w/ Bd w/in 6 months of occurrence- §10(b) o Bd rulings (after ALJ decisions) can only be enforced by Cts  Bd has great latitude in applying Ct rulings- See Bell Aerospace

NLRA (1935) Key is duty to bargain w/ exclusive U representative (creates bilateral monop)  Applies to all employees (defined in §2) whether in U or not o Indep contractors are not employees (Hearst held they were but Cong changes def)  General test is indep K just given task- emp told how to do it o Supervisors are not emps  Supervisors hire/fire and direct others- defined in 2(11)  Ginsburg dissent in nurse case notes that merely “supervising” should not make supervisor (swallows up all professionals)  CEO is not textually exempt (does not supervise) but implied exception or no one to barg w/ o Managerial emps are not “emps”- Bell Aerospace  If exercise sufficient discretion to be aligned w/ Mg  Formulate and effectuate managerial policies by expressing and making decisions  Full time faculty at univ are mg emps (same biz interests)- Yeshiva  Non-employees cannot: protected by §7, be included in bu, vote in cert elections o Involvement of mang or supervisors in U activity can be violation of 8a2 (interference w/ U administration)

§7- Rights of employees Rt to organize (and rt not to) and to barg or engage in concerted activities for mutual aid or protection  Considered rt of “free association”  U cannot waive a §7 rt of wrkrs- Magnavox o Considered structural rt (Constitutional like) o §9a is another structural rt- grievance procedure Concerted activity  Does not have to be done by U emps- WA Aluminum  May not be protected if timed to inflict most harm (during busy biz cycle)- that is not for mutual aid  Slow down not protected – Elk Lumber o Slow down hurts more than strike- cannot fire and cannot get job done = bleeding to death o May be OK if diff if Mg acquiesces  Defamation/libel of firm not protected- Jefferson  Does not have to be firm specific action- Eastex (broader letter about state laws)  Can be activity of 1 person- City Disposal Mutual aid or protection  Protects proper activities in support of emps/mg other than their own, can go outside immediate employer/employee relationship- Eastex

§8- ULPs ULP for Mg to:  Interfere, restrain, or coerce emps in exercise of §7 rts- §8a1 o This includes CL violations like fraud, defamation etc o Also read to include inducement- Mg must stay out of process (cannot pay emp not to be in U)  Dominate or interfere w/ the administration of a U or support it (by $ or other)- §8a2  Discriminate in hiring or tenure or condition of employment to encourage or discourage membership in any U- 8a3 o Cannot prefer 1 U over another- Budd o No intent reqd- can infer from discouragement- Radio Officers o Can req union shop (become U member w/in 30 days)

Dual motives (both antiU and bad wrkr)  Budd is ULP even though wrkr is horrible (b/c put up w/ him previous) o Look to previous actions- w/ same and other wrkrs  Transport Mgmt test: o Bd must show bad motive by Mg o Mg can then show legit reason for action to avoid liability . Ep says use 3rd step saying emp has burden of persuasion  Creates incentive for bad emps to use U as shield o Must not create lifetime tenure- over time diminshes

Solicitation by emps (Republic Aviation)  Neutral rule prohibiting solicitation during wrk hrs OK if no animus o Can solicit during break hrs o May allow charity exception- but should keep narrow and isolated  Prohibiting all solicitation outside of wrk hrs on Mg property is illegal unless special circs (safety etc) o Litter is not sufficient  Wearing U insignia is protected o May be able to prohibit pins if customer contact and message would produce divisive atmosphere  Hard Q is area w/ many non-emps (like cafeteria)

Exclusion of outsiders  Presumption against access for non-emp U members unless inaccessibility (logging camp)- Lechmere/Babcock  But now can access thru tech (Net)- so even higher std? Firm biz decisions  Look to when decision is made (before U in Lassing, after U in Darlington Mills)  Evidence of animus is key (see Lassing v Darlington Mills) o Balance against biz justification K’ing out  Must bargain this (mandatory)- Fibreboard

Change method of operations (close down part)  Can change method of operation (K out) as long as no antiU animus- Lassing o Change motivated by econ/finances is not ULP o Mg will not leave any ev of antiU feeling  No bargaining reqd but probably should bargain w/ U anyway (will be rejected), but may find new solution Close/liquidate firm  Moral hazard if related firm can pick up the lost biz- Darlington  Selling piecemeal looks better than as whole- just way to avoid U

Company U’s/8a2 (Mg cannot dominate labor org)  Labor org defined as employees “dealing w/” employers- §2(5) o Not dealing w/ if just to get communication- Streamway o Hinge on emp rather than Mg creation? o Suggestion box certainly OK  Way for firm to block other U’s- due to 1 yr as exclusive bargainer o Incentive to use as sham o Labor Us would be OK if could be removed by real U  Co U is good if set up just for communication (Streamway), bad if used to block other Us o Wrong to say no Co Us anywhere- so stat is limited in Streamway o Only prob if U undermines emps ability to choose U

Elections  These are very important to U and Mg- will spend more $/person than in gov elections  Need 30% of wrkrs to sign card to get election- 9e1 o Mg must provide names/adressess of emps w/in 7 days after election is set- Excelsior Underwear  If U loses election must wait 1 yr for new election- 9e1  If U wins no election for 3 yrs unless changed circumstances (not just std turnover) Can recognize U w/o election  §9 says “designated or selected” o Mg can ask for election  Can also recognize if had maj sign cards and Mg ULP caused loss- Gissel o But only if major ULP o Otherwise Mg can learn from the vote and benefit from ULP Once recognized U gets 1 yr presumption of maj support  After 1 yr that presumption is Rebuttable by contrary evidence or GF doubt w/ subjective ev o Cannot poll wrkrs w/o GF o But need evidence to have GF- catch 22 noted by R’quist in Curtin Matheson  Otherwise 3 yrs until next vote Campaigning Mg speech  Mg not reqd to be silent, can express view/argument o Not ULP as long as “no threat of reprisal or force or promise of benefit”- §8c . Promise of ben is even broader than 8a1 o Can state facts- must back up w/ evidence o Can predict adverse consequences as long as no threat of reprisal- Golub (dissent says just veiled threat) o Key is for Mg to speak evasively and make “predictions” (will have to do this, not own choice) . But Mg stays away from Golub- hard to script in same way . Gissel is ev- seems less objectionable but held to be ULP  If any hint that result is part of Mg free will rather than forced then ULP o Actual benefit (not just promise of) is also ULP- Exchange Parts . Actual ben is even more coercive than promise (Fist in velvet glove) . Actual benefits are now coercive (is this good for wrkrs?) . W/o this rule U would never win  Must continue to deviate from CL once started  But Bd can set aside election results even if no ULP- General Shoe o Test is “laboratory conditions” o If extreme (yet somehow not ULP) can make free choice improbable  Factual statements tested by form, not substance (Shopping Kart rule, revived in Midland) o Assume emps will recognize propaganda as long as clearly marked as distributed by 1 side o Ct avoids ruling on truth of statements No parallel 8c for U’s speech  B/c U cannot make binding promises like Mg can  U speech not credible  But cannot give actual benefit- Savair

Equality of access to wrkrs in campaign  Mg not forced to give = speech time if wrkrs do not request- United Steeelworkers o So U will just tell wrkrs to request now  Mg can address captive audience of emps o U gets same rt though  Emps have no statutory protection for leaving a non-coercive anti-U speech  General Shoe (lab conditions) violation for either side to hold mass assembly w/in 24 hrs of election o Can address individually

Bargaining – correlative duty of freedom of assoc Creates monopoly right for U as exclusive bargaining rep- ULP for Mg not to barg- §8a5  Correlative duty for monop is GF req o B/c both sides are locked in (cannot just walk away from table)  U negotiates terms to be attached to all Ks- not as specific agent for each wrkr o Emps must take these terms or not wrk Individual Ks do not survive the statutory req of bargaining- JI Case  U can waive req of uniform wages o U will set mins, but allow wrkrs to negotiate higher (athletes etc) o Industries w/ same skill levels (manufacturing) will see uniform rates- maybe increases for experience  Even those voting against U are bound  But U must represent interests of all- Steele Only U can req bargaining  Emps cannot go outside U to make demands- Emporium (strike was not protected activity) Good Faith  This is procedural rule- no req to come to terms  U can use economic weapons- Insurance Agents  Mg can insist on a specific term- American Nat’l Ins o But cannot refuse to bargain on all- A1 King Size o Must make some movement- cannot use Boulware tactic (make fair firm offer as 1st offer) . Means have to play game- start at ends and then move  BF to give wrkrs ben in bargaining area w/o going to U- Katz o Undercuts U position o Like Exchange Parts- Mg has power to give bens that U does not

Disclosure  If Mg claims that term will cause bankruptcy, it must disclose info to prove- Truiit o Mg will avoid obligation by never saying it will fold- just say will not be competitive o Means less info will be shared (less forthcoming)  Posner (Graphic Communications) says Truiit obligation does not apply if less than entire shut down  No disclosure if Mg has legit reason not to (test in Edison)

Impasse  Before impasse Mg cannot make changes in terms  After impasse cannot give better terms than last offer to U- Katz

Bargaining Units  For emps w/ substantial mutuality of interest in wages, hrs, and conditions  Does not have to be most approp unit, burden is on Mg to show not appropriate o 1 restaurant in change of 600 can be bu if autonomous – Friendly  U will choose 1 easiest to unionize and try to ratchet up from there

Bargaining Subjects Mandatory Bargaining  Must bargain over “wages, hrs, and other terms and conditions of employment”- 8d  Contracting out is mandatory bargaining subject- Fibreboard o No strike cl, overtime, food service Permissive Subject  Not mentioned in statute  For things not related to terms and conditions of employment o Marketing  No duty to bargain on these things o But either side can propose and can come to agreement  Cannot be used as reason not to agree on mandatory things- Wooster o May take hit on mandatory term to get permissive term o Sequence matters Illegal Subjects  Some topics are not mandatory or permissive but illegal o Like the waiver of distribution rts in Magnavox  Other non-waivable/structural things like rts of exclusive rep, grievance control o Maybe the recognition clause in Wooster (refusing to recognize election winner)

Taft-Hartley (=LMRA) (1947) Enacted as response to strike wave and perception of U abuse of power  Bans closed shops- §10(b)  Creates 60 day cooling off period for strike that will imperil national health or safety- §8(d), §206

Collective Bargaining  Mg cannot deal w/ any other agency or w/ workers individually  Mg must act in way giving regard to wrkrs preference for CB  Duty to bargain, but not duty to reach agreement- §8d o Creates tension- U wants to justify itself, Gov cannot mandate (§8c)

Weapons of Econ Conflict  Generally w/in GF obligations- Insurance Agents Strikes  §13 says nothing in Act should be construed to interfere w rt to strike Econ strikes  Mg can hire scabs in permanent positions- Mackay Radio o Do not need to create jobs for returning strikers  Strikers retain preferential rights to reinstatement- Fleetwood (cannot hire new when strikers ready to return) o W/ permanent replacements- 1) Strikers remain employees and 2) are entitled to reinstatement if replacements depart (unless legit business reason)- Laidlaw o Violation to rehire laid-off replacements ahead of former strikers- Giddings  Cannot discrim b/w strikers and non-strikers- Great Dane  Often U clause that layoffs be based on seniority o So Mg will hire back less than needed to avoid having to lay off scabs if later downturn  Strikers lose rt to vote for strikes >12 months- 9(c)3 (no time limit for ULP strikers) ULP strikes  Created by bargaining impasse or by ULP (or ULP after strike begins)  Must displace permanent replacements to reinstate strikers  BP starts from time of ULP  Can continue to vote  Strike against ULP does not violate no strike clause

Replacements  Mg can hire permanent replacements- Mackay Radio o Ep says this is wrong under stat- too much like K’ing out that was limited in Fibreboard o But forcing use of temp replacements hard on Mg b/c of training costs  Will then have too many emps when strikers return  Replacements are statutory employees – protected from U based discrim and are members of b.u. o Get bens of new K- by JI Case rule  U owes duty of fair representation o But U can parcel out limited # of jobs b/w scabs and strikers in non-discrim way (like seniority)  Strikers not reinstated have priority for vacancies  Returning strikers will maintain seniority over replacement o Cannot give replacements super seniority- Erie Resistor

SubContracting  Cannot use permanent subK’ing during strike w/o bargaining- LandAir Delivery o Diff than perm replacements b/c subKing kills off bu – not so w/ replacements  Incentive for Mg to start off w/ indep Krs- can then just stop K when need to

Are strikes good for wrkrs?  Often leads Mg to discover more efficient ways or investment in machinery o Means less jobs for wrkrs when they return  Firm also loses some client base- so less demand for product

Lockouts  LO after bargain to impasse is not ULP, even if done as econ weapon- Shipbuilding  Lack of bargaining impasse does not make LO per se illegal o Strike history can create legit concern about strategically timed strike- Lane  Cannot hire perm replacements in LO o Otherwise Mg can get rid of U wrkrs (LO and hire)  No subKs- can’t do on strike so obviously not in LO  LO combined w/ temp replacement workers is not ULP unless anti-U motive o Hiring replacements is proof of econ necessity

ULPs by U’s- §8b 8b1- to restrain or coerce: emps in exercise of §7 rts and employers in selection of reps 8b3- to refuse to bargain collectively 8b4 i) induce or encourage “any individual employed by any person” to engage in strike; or ii) to threaten/coerce/restrain “any person” To: a) force hot cargo K b) force person to stop using or “cease doing biz w/” another (but proviso allows primary picketing)

Picketing  Have site specific rules- but violence is keystone- Vegerlan  Treated as econ pressure rather than speech (so subject to regulation)- Vogt  Labor picketing usually not protected by 1st am o But political picketing is  Protected under proviso in 8ba

Secondary Boycotts (2ndary bcotts often go against U to take away some power given to them- too effective)  Can picket at 2ndary if clearly focused on just primary product (Lesnick version)- Fruit and Vegetables (Tree Fruits) o Must be clear about what is picketed o Can this be done in real world- dissent doubts (people will stay away from store entirely)  Cannot picket product if likely to cause ruin or substantial loss- Safeco o More 2ndary is dependent on that 1 product closer it is to violation/picket of 2ndary o But this will chill action- hard for U to know when triggered- Brennan dissent . Ep agrees w/ B, just carrying over what can do at primary . Incentive to sell to boutiques/specialty stores  Handbilling of 2ndary customers OK- Debartolo o Publicity proviso only applies to customer of distributor- but does not ban other things Statute  U prohibited from pressuring secondary employer to cease doing biz- 8b4B  Certain Ks that further 2ndary objectives unlawful- 8(e) (hot cargo) o Exception for construction industry o Cannot strike to secure agreement violating 8(e)- 8b4A o 10(L) obligates Bd to give priority to claims alleging vilations of 8b4 and 8e  §303 allows mg to sue directly in Fed Ct to recover Δs for 8b4 violations 8b4 violations- improper means in support of improper objective  Prohibited pressures o Directed at emps of “any person” to induce work stoppage- 8b4i o Directed at any person that amounts to threats/coercion/restraint- 8b4ii  Must be used in service of an improper object o A) to force employer to enter into hot cargo agreement (8e) or to join U o B) to force person to stop doing biz Provisos to 8b4b  Preserves lawful primary strikes  Can honor picket line at another employer  Keep rt of publicity (except picketing) to advise public that products are “produced” from employer w/ labor dispute o Produced read to include distribution - Servette

Classic def of 2ndary boycott- attempt to influence A by exerting econ or social pressure on persons who deal w/ A Lesnick argument for different def of secondary  Do not look to location of picket- look to effect on second firm  Can get to same place as primary picket by just picketing primaries goods at 2ndary  Must be clear about what is being picketed

Ally Doctrine  Not secondary picketing if picket at ally of primary firm- Royal o Then not “doing biz w/” o Ep says use arms length biz deal test  Real test is whether doing wrk that would normally be done by struck firm  Look to whether Mg pays firm directly and work that would otherwise be done by U

Common Situs- emps of primary working at secondary  Moore test for mobile primary employer  a) limited to times when situs of dispute is at 2ndary b) primary emp is engaged in normal biz at the site c) limited to places close to the location of the situs d) picketing discloses that dispute is w/ primary employer  Must make clear what is being picketed

Separate entrance  Cannot picket at indep Krs entrance unless they are necc to firms normal operations- GE o Ep says if can picket primary should be able to get indep Krs

Hot Cargo clauses- banned by 8e (not voluntary agreements)  Exception for construction and apparel industries o Apparel can have such clause and strike to enforce o Construction exception for wrk to be done at site  Work preservation clause does not violate this- Woodworkers o To keep traditional U task o Extension of Fibreboard o Featherbedding problem- keep wrk but can be done more efficiently elsewhere- deadly  Can use as shield but not sword

Arbitration  Strong presumption in favor of arbitration- Warrior Gulf, American Manufacturing (even frivolous claim) o Read exclusions narrow (must be extremely specific)- Warrior Gulf  Strong presumption in favor of accepting arbs decision and enforcing award- Enterprise Wheel o Basically clearly erroneous std- look if against public policy  Arbitrator can use industry practice- Warrior Gulf  Arb clause does not continue after CBA has expired- Litton o Only arb if facts arose before expiration (not the case for seniority rule) o Like pension bens or vacation o Can K to have arb carry over  Fed Cts can enforce agreement to arbitrate- Lincoln Mills o Even though totally unCon o Use Fed law- basically just strong presumption in favor  Arb is quid pro quo for no strike clause  Final offer arb (in baseball)- both sides give offer and arb chooses 1 of the 2 o Makes both sides come to middle to start

Procedural Arbitrability  Qs about whether reqd procedures to get to arb are for arbitrator (not Cts) to decide- Wiley o B/c procedure is tied in w/ merits

No-Strike Obligations  Fed Ct can enjoin strike in violation of no-strike clause o Ex ante U’s actually better of b/c can bargain for better terms b/c Mg know no strike will be enforced o U gets protection of stat, fixes inequality of bargaining power o If K is legit just enforce  Cannot enjoin if not subject to arb o Sympathy strike could not be enjoined- Buffalo Forge  Epstein rule- As long as K is properly negotiated then give CL remedies o So could enjoin sympathy strike  No Strike Clause is applicable to politically motivated strikes- Jacksonville Bulk Terminals o Test is whether employee/employer relationship is the matrix of the controversy Norris LaGuardia- created before NLRA

Business Transformation  If new firm takes majority of wrkrs in old U then takes duty barg w/ U (though not actual CBA)- Burns o Test is “substantial continuity”- if totally diff then no obligation  Timing of determination is when o Black River says look early in process  Incentive for new firm not to hire old wrkrs o But ULP (8a3) to not hire simply b/c of U status Merger- surviving firm takes on obligations of old firm- Wiley Asset Sale- still 2 corps so U stays w/ old Corp- Howard Johnson  More assets sold make this look more like merger Go out of biz and another takes over- use majority f wrkrs test- Fall River

Federal Preemption  NLRB has primary jurisdiction – Garner o Why give Feds monopoly . They gain from having States take caseload- can intervene if problem  Preempted if clear that conduct is protected by §7 or prohibited by §8- Garmon o Cannot further punish or make OK  But also preempted if arguably subject to §§7 or 8 (arguably prohibited or protected)- Garmon  Exception- do not have to go to board if large state interest (violence etc) o State Ct can have J for tort that is “outrageous”- Farmer  State Ct can hear case if about diff subject than Bd would hear- Sears

Duty of Fair Representation for U U must act in interest of all members- Steele  U breeches duty if is conduct is “arbitrary, discriminatory, or in bad faith”- Vaca v Sipes o Applies to contract enforcement/admin as well as negotiation (Pilots v O’Neil) o Ct examination of U performance must be highly deferential- must be outside “wide range of reasonableness”- O’Neil  This duty is enforceable by Cts w/ §301 suit o Breach of duty violates 8b1A and 8b2- Miranda (but enforcement denied) o Duty to arb is not absolute, but also not full discretion- Vaca  But if no breach of duty, emp cannot seek to enforce on own- Vaca  Δs depend on situation o May order arb, but not reqd o Can seek Δs- Apportion liability b/w U and Mg according to fault of each

Grievance §9-  Individ emp has rt to present grievance to Mg and have grievance adjusted w/o barg rep if not inconsistent w/ CBA o Barg rep has rt to be present

Claim of ULP  GC has final authority in issuing ULP complaints under §10 o Not reviewable by Bd or Ct- Sears  8a3 (discrim in hiring) and 8b2 (causing Mg to discrim in violation of 8a3 or who was denied U membership) take priority over other charges- 10m

Accretion- adding new person to established bu- p341

Epstein points  Culture and moral w/in a firm are invaluable assets  Line will always be drawn b/w U and nonU o Denver Building o Promotion across this barrier is hard- past loyalty o Easier to promote from w/in in non-U o Want clear line so all know where everyone else is  Always look for ev of U animus- can change everything  Look for correlative duties  Sequence matters (bargaining over permissive things)  Balancing- Republic Aviation  If all else fails, suggest the return of the yellow dog o Cost of system does not justify changes in resources . Some say it is justified due to justice concerns Cases Philly Cordwainers (1806)- Shoemakers have 3 reqs: 1) only wrk for higher than avg wage, 2) threaten those who work at lower rates, 3) will not wrk if firm hires nonU 2 looks worst, 1 and 3 just avoid free riders- minimal fine for this make action worth it

Hunt- shift from criminal to civil liability to control U’s

Vegelahn v Gunter (1896) p46- at first hint of violence picketing will be shut down

Duplex v Deering (1921)- Injunction issued against secondary b’cott

US v Hutcheson (1941)- NorrisLGuardia creates AT exemption for U’s

Jones & Laughlin (1937)- Holds that NLRA is Const’l

Hearst (1944)- “Employees” includes independent K’rs Cong then amends definition to exclude indep Ks

United Insurance (1968)- Firm tries to classify agents as indep Ks to avoid U- Rejected do not let Mg beat scheme by labeling- look to CL principles

Bell Aerospace – Managerial employees are not covered by Act Here these were buyers that needed supervisor approval for large purchases On remand Bd rules that these wrkrs do not exercise sufficient indep discretion to be aligned w/ Mg

Budd- Horrible emp is not fired, he is U rep. Suspected of joinging another U and fired Held to be ULP- firm claims b/c of accumulation of offenses but Ct sees as b/c of other U (firm prefers 1st)

Transport Mgmt (1983, White)- Dual motives case: White chooses alternating burdens (Bd show animus then Bd can disprove) rather than rule putting both burdens on Bd

Radio Officers (1954) Infer bad intent from Mg if obvious U discouragement U puts U wrkrs ahead of nonU wrkrs (obvious ULP by U)- Mg accepts ULP even though no proof of Mg intent – inferred from discouragement

Republic Aviation (1945) §7 right to distribute in non-wrk areas in non-wrk hrs Firm has no solicit policy before U activity- Still held to be ULP for firing due to handbills and wearing pins- even w/o animus §§7, 8a1 trump CL trespass rules Balance harm/ben to U/Mg

Babcock (1956) Presumption of non access for non emps But if plant and living quarters are isolated firm must allow non-emp U officers onto property (here isolated plant)

Lechmere Inc v NLRB (1992) p199- §7 does not protect non-emps unless special circumstances (inaccessibility) Firm rule against handbilling, enforced against girl scouts- here used to stop U from handbilling cars in lot- Firm is in shopping center, after being kicked of property moved to public media- U was able to get lic plates (41 names resulted in 1 U membership) May have been worse for others in mall White dissent argues for narrower Ct role- wants Chevron deference to Bd rule allowing this

NLRB v JM Lassing (1961) p212 Can shut down part of biz for econ reason Change in operating methods motivated by econ or financial reasons is not unfair labor practice, as long as not motivated by illegal intention to avoid obligations of NLRA (must show anti-union animus)

Darlington Mills- Do not have to bargain to shut down completely if single line of biz Mg liquidates firm 6 days after U recognized (had threatened to) Corp owned other firms that did same thing, could pick up biz- ULP if just way to avoid U

Washington Aluminum (1962) Shop is freezing so nonU wrkrs decide to walk out Protected activity b/c about wrking conditions- no official demand reqd (mg new reason) Elk Lumber (1950)- Slowdown by wrkrs is not protected Plant changes from per unit wage to hourly (hard to make cutbacks in U firm, must secure U agreement- otherwise just terminate people) – so wrkrs engage in slowdown Mg agreed to look into but fired w/o discussion- made no demand but did not acquiesce in slowdown

Eastex- Apply Republic Aviation rule even though not firm specific info U distributes letters to wrkrs not about the specific firm (about state rule- rt to work and min wage)

City Disposal – One trucker refuses to drive b/c he believes truck to be unsafe (all get ben) = protected activity No excess trucks though- other wrkrs willing to take risk rather than lose salary U refused to prosecute claim (9a says emp has rt to present grievance)

Magnavox (1974)- U cannot waive §7 rt Bd finds that Mg cannot ban U bulletin bd- CofA refuses to enforce and U waives objection Helps current U- harder to assemble support for new U

Streamway- Mg committee not labor org b/c just communicating Firm uses committees to seek wrkr input on how to function – held not to be labor org This is just communication- not labor org

Electromation (1992)- Firm committee held to be labor org even though shuts down when U comes around Created by Mg, prepared to act on suggestions

Golub- Not ULP to make dire prediction if no “threat of reprisal” Mg says U demands in other areas have caused firms to go out of biz- may occur but will not be deliberately done Dissent says just veiled threat

General Shoe- Can set aside election w/o having ULP- test is laboratory conditions Mg speech found protected by 8c but election set aside anyway

Gissel (1969) p358 If Mg speech can be viewed as threat it will be ULP, must only state things out of Mg’s hands Mg tells wrkrs it is on thin ice and points to other firms that fold b/c of U- rules that emps can hear this as threat Hard to script to stay w/in Golub- so Mg just avoids

Midland- Factual statement is not ULP as long as clearly marked as coming from 1 side (regardless of truth) = Shopping Kart rule Emps will discount as propaganda as long as notified Here described situation w/ a different U and left out facts

Exchange Parts- Actual bens (not just promise of) are also ULP Just prior to election Mg gives ben to wrkrs, w/o any condition on vote- just as coercive as promise (inference they could be removed) Described as “fist in velvet glove”

Savair- U cannot give concrete inducement either U gives dues credit for signing non-binding pledge card Way for U to buy false advertising- U election victory not recognized

United Steelworkers- Mg not reqd to give = speech time if emps do not request it Mg gives speech but does not allow emps or U t do so- no mention of Rep Aviation in case Simple solution is for U to tell emps to request

Excelsior Underwear Mg must provide names and addresses for U use w/in 7 days after election is approved Not trade secret- but U can use against- give names to competitors if firm is nonU

JI Case- Labor stat trumps freedom of K- individual Ks do not survive once exclusive barg rep created Firm tried to use prescence of individual Ks to avoid bargaining req

Emporium- Only U can exercise bargaining power- not protected activity if done by emps U has grievance system, emps not happy w/ progression so strike- this was not protected activity Emps claim use of 9a proviso (presenting grievance), but Ct holds this just permits Mg to hear grievance w/o being 8a5 violation for circumventing exclusive barg- but does not req Mg to listen to grievance and does not authorize use of econ weapons

Insurance Agents – U can use econ weapons in bargaining Activity that does not count as concerted activity (slowdowns) is not GF violation

American Nat’l Ins (1952) Mg can insist on a clause Ct reverses Bd ruling that Mg’s insistence on 1 clause was BF- Mg wanted MG functions clause (giving it last say)

A1 King Size- BF to refuse to move from position As U negotiates Mg makes worse offer

Truiit- If Mg makes issue must give info to back it up (req disclosure) Mg claims raise would bankrupt it but refuses to give evidence

Detroit Edison- Mg uses test- not reqd to disclose- put work into designing

Katz- BF to give ben to wrkrs during bargaining on subject of bargaining During bargaining Mg gives better policies to wrkrs in mandatory bargaining area w/o consulting U

Wooster (1957)- Cannot insist on permissive subjects so that no agreement on mandatory Mg wants clause not recognizing winning U and ballot clause reqing vote before strike Ct holds neither are ULPS (?!) but also that neither are mandatory Cannot hold out on these so that mandatory parts not agreed to

Fibreboard (1964)- Contracting out is term or condition of employment that reqs mandatory bargaining Mg Ks out U wrk- held to be term of employment (though concurrence notes it is actual employment, not term of- Concur seems rt) Stewart argues that entrepreneurial decisions (how to invest etc) should not create duty to bargain Darlington Mills would req bargaining here also (said only liquidation does not req bargaining)

Mackay Radio- can hire permanent replacements Hire perm replacements when U strikes- do not have to displace replacements But cannot discriminate against U in who is reinstated

Erie Resistor- (White) Returning strikers must retain seniority over new scabs Mg creates super-seniority rule so that scabs and returning strikers get hirer seniority than strikers Held to be ULP – discriminates against U wrkrs, only effects those who still strike- creates cleavage

Great Dane- Cannot discriminate against strikers Mg wants to pay accrued ben to crossovers and replacements but not strikers Classic case of discrimination- explicit discrim so no need for proof of intent (like Radio Officers)

TWA-RLA case: Do not have to prefer Wrkrs who do not strike able to get better routes- do not have to be displaced by returning strikers But seniority kept for future openings Brennan (D) argues that thisis divide and conquer strategy

Curtin Matheson- No presumption as to U support for scabs and cross overs Would kill assumption of continuing support- would allow Mg to kill U by hiring enough scabs But now req ev to show GF belief, but cannot poll w/o GF = catch 22

Shipbuilding- LO after bargain to impasse is not ULP if part of legit bargaining position Mg worried about strike at inopportune time (seasonal wrk) so LO after bargaining to impasse

Land Air Delivery- Cannot use permanent subK’ing of U work during strike w/o bargaining (maybe OK if legit biz reason- would fold) Diff that perm replacements b/c this kills U while replacements allow wrkrs to decide if U should dissolve

Vogt- can regulate picketing if it interferes w/ legit gov policy Here banned picketing where no labor dispute- picketed firm to make Mg coerce wrkrs to join U

Royal Typewriter- If secondary firm is an “ally” of the struck firm then picket of secondary firm is not secondary boycott. Ally depends on 2d being paid by 1st and knowing that work would otherwise be done by striking emps Mg had warrantied customers use other repair services (pays some firms directly, reimburse for others) Hand (C) says ally if firm pays directly but not if reimburse Moore Dry Dock- If mobile situs (boat/truck etc) OK to picket at 2ndary employer if: a) limited to times when situs of dispute is at 2ndary b) primary emp is engaged in normal biz at the site c) limited to places close to the location of the situs d) picketing discloses that dispute is w/ primary employer U pickets doc not boat, says do all work except on this boat Otherwise to easy for Mg to hide problem

Denver Building- ULP as 2ndary strike to force GK to end subK w/ nonU wrkrs Holds that dispute is w/ subK (that has nonU wrkrs) not the gen K Ep says wrong- this is ally (should not turn on type of K)

Machine Wrkrs v GE- Cannot picket separate entrance of indep Krs unless they do job “necc to firms normal operations” GE has special entrance for indep Krs Dissent says cannot wrk in real world

Tree Fruits- Can aim picketing at consumers of 2ndary employer if clearly limited to struck good Apple growers picket at store that sells apples, tell customers just to not buy apples

Safeco- Product picketing that will lead to ruin or substantial loss is violation Gives no choice but to boycott 2ndary entirely- here was 90% of biz Brennan dissents saying this will chill action, have to research 2ndary- Ep agrees

Debartolo- can handbill customers of 2ndary Diff than picketing- not w/in publicity proviso (protects

Woodworking- Work preservation clause is exception to ban on hot cargo clauses Wrkrs at site fit doors, refuse to handle doors that are pre fit

Lincoln Mills- comes from nowhere, Ct manufactures way to enforce agreement to arb- use CL to govern KS Ct ignores lack of diversity or Fed Q jur- use §301of LMRA Must use fed law of K (not possible under Erie)- call state law fed law to get around problem

Steelwrkrs Trilogy (all by Douglas) American Manufacturing- strong presumption in favor of arb Emp found to be totally disable- but brings claim to be returned to wrk by Seniority- frivolous claim- still must arb

Warrior Gulf- any exclusions from arb will be read very narrowly Mg Ks out U wrk, U says LO- arb clause says no arb for “mg function”- read narrowly, mg functions not listed so arb

Enterprise Wheel- Strong presumption in favor of enforcing arbs award (only overturn if clearly erroneous)

Litton- Arb only survives expiration of CBA for claims with facts that arose under K before expiration Seniority clause does not survive this (seniority accrues but rt for most sr not to be laid off does not)

Boys Mrkt- Fed Ct can enjoin strike in violation of no strike clause (reversing Sinclair- NlaG not bar) Mg doing U wrk, wants Mg to undo so U can do- emps strike (have no strike clause) Must either overrule Sinclair or extend NlaG to state Cts- otherwise have forum shopping Us no longer need this ben- get fair bargaining system under NLRA

Buffalo Forge- Ct cannot enjoin sympathy strike Clerical wrkrs strike- maintenance wrkrs (w/ no strike cl) strike in sympathy Cannot enjoin clerical wrkrs b/c not under K- so can strike If able to get injunction on main should be able to get 2dary

Wiley- Larger nonU firm merges w/ smaller U firm

Burns- if new firm takes over majority of old U must barg w/ U, but not bound by CBA U’d security firm outbid by nonU firm- 2d firm hires much of old firm

Falls River- Old firm goes bankrupt- new firm formed to do part of what old did, buys assets and hires wrkrs Timing to determine if maj of old wrkrs is early (substantial and representative complement) Dissent says wait until hiring done Garner- Recognitional picketing- State Ct enjoins, parties stipulate that this is 8b2 violation (admit violation)

Garmon- Picket customers and suppliers, claim just to educate

Farmer- U member claims discrim by U and verbal assaults/harassment Allowed state ct adjudication of harassment- could decide w/o going to merits of labor issue

Sears- Args that picket was prohibited or that it was protected Not preempted b/c state ct would hear issue (location of picket) diff than what Bd would hear (lawfulness of content of picketing)

Steele v Louisville & Nashville RR- U has duty to act in interest of all members Can have varuiations in effects from Ks based on seniority, skill etc

O’Neil- not violation of duty for U to create K where strikers are better of ending strike than w/ K “Bad settlement may be better than a good lawsuit”- show b/c many took severance

Vaca v Sipes- test for not taking to arb is breech of duty U refuses to take grievance to arb- had gone thru rest of process and hired Dr (said no claim)