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1973-1974 Annual Survey of Labor Relations Law Thomas J Boston College Law Review Volume 15 Article 3 Issue 6 Number 6 7-1-1974 1973-1974 Annual Survey of Labor Relations Law Thomas J. Flaherty Michael J. Vartain Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Labor and Employment Law Commons Recommended Citation Thomas J. Flaherty & Michael J. Vartain, 1973-1974 Annual Survey of Labor Relations Law, 15 B.C.L. Rev. 1105 (1974), http://lawdigitalcommons.bc.edu/bclr/vol15/iss6/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 1973-1974 ANNUAL SURVEY OF LABOR RELATIONS LAW* TABLE OF CONTENTS INTRODUCTION 1106 I. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY 1107 A. Employer's Role in Representation Affairs 1107 1. "Midwest Piping" Doctrine---Duty of Neutrality; Playskool; Western Commercial 1107 2. Pre-Hire Contracts and Representation in the Construction Industry: R.J. Smith 1110 B. Election Interference 1114 1. Waiver of Union Dues: Savair Manufacturing 1114 2. Board Procedure: Modine Manufacturing 1117 C. Board Jurisdiction; Bodle 1120 II. UNFAIR LABOR PRACTICES 1122 A. Union Discipline 1122 1. Fines Against Rank-and-File Strikebreakers; Boeing; Booster Lodge; General Electric 1122 2. Fines Against Strikebreaking Supervisors; The Board and Courts of Appeals in Conflict 1130 B. Employer Interference and Discrimination 1138 1. Solicitation/Distribution: Magnavox 1138 2. Economic Discrimination 1143 a. Strikers' Reinstatement Rights: Brooks Research 1143 b. Temporary Replacements for Locked-Out Employees: Inter-Colle- giate Press; Ralston Purina; Hess Oil 1146 C. Duty to Bargain 1152 1. Employer Withdrawal from Multi-Employer Bargaining Unit 158111 5 2 2. Surface Bargaining: U.S. Gypsum 3. Successor Employer 1160 a. Duty to Remedy Predecessor's Unfair Labor Practices: Golden State 1160 b. Contract Survival 1163 c. Successor's Bargaining Obligations 1165 d. Defining Successorship D. Secondary Boycotts 117116 I. Right to Control Test: George Koch 1171 2. Hot Cargo Clauses a. The Board's Hot Cargo Jurisdiction: Marriot 11 1 777 7 b. Construction Industry Proviso: Acco Equipment 1180 III. ARBITRATION 1182 A. Arbitration of Safety Disputes: Gateway Coal • 1182 B. Grievance and Arbitration Proceedings—Effect on Title VII Actions: Alex- ander 1187 IV. MINORITY GROUP ACTIVITY—UNAUTHORIZED RACIAL PROTEST AS PRO- TECTED ACTIVITY: The Emporium 1198 V. EMPLOYMENT DISCRIMINATION 1203 A. Introduction 1203 B. Procedural Developments 1207 1. Union Adequacy as a Class Representative: Airline Stewards and Stew- ardesses 1207 2. Burden of Proof in Title VII Actions: McDonnell Douglas 1211 * The authors wish to express their appreciation to Professor Richard S. Sullivan of the Boston College Law School for his encouragement, time, and helpful comments. The opinions expressed in this comment, however, are those of the authors. 1105 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW C. Sex Discrimination 1218 1. Introduction 1218 2. Mandatory Maternity Leave Regulations: Lafleur 1222 3. Grooming Codes: Willingham; Dodge 1227 4. State Female Protective Statutes: Eslinger; Wernet 1231 D. Discrimination Against Aliens: Sugarman; Espinoza 1234 E. Remedies—Affimative Relief 1242 1. Back Pay: N.L. Industries; Rosen; Head 1242 2. Hiring Ratios in Public Employment Cases: Morrow; Harper 1249 Vi. FEDERAL COURT INJUNCTIONS: Granny Goose Foods 1262 INTRODUCTION This is the thirteenth in a series of annual comments designed to summarize and analyze significant developments in labor law. Cases decided during the Survey year—April 1, 1973 to March 31, 1974—are reviewed in a format intended to be helpful to labor law practitioners as well as to the general readership of this review. Significant National Labor Relations Act decisions were ren- dered by the Supreme Court in the areas of solicitation/distribution activity,' election interference, 2 arbitration of plant safety disputes, 3 and union discipline of rank-and-file strikebreakers. 4 Furthermore, during the Survey year, the Supreme Court has been unusually active in resolving issues which have arisen in em- ployment discrimination cases under Title VII, as well as under the Civil Rights Act of 1866 and the Fourteenth Amendment. While these decisions have settled several controversial issues regarding employment practices, additional questions, raising issues appro- priate for Supreme Court review in the future, have contemporane- ously divided the lower federal courts. The issues resolved by the Supreme Court during the Survey year include: the effect of a prior adverse arbitration award in a Title VII case; 5 the burden of proof requirements under Title VII; 6 the permissibility of mandatory maternity leave regulations in public school systems;' and the scope of the prohibition against discrimination on the basis of alienage by privates and state government9 employers. See pp. 1138-43 infra. 2 See pp. 1114-17 infra. 3 See pp. 1182-87 infra. 4 See pp. 1122-30 infra. See pp. 1187-98 infra. See pp. 1211-18 infra. 7 See pp. 1222-27 infra. /I See pp. 1234-42 infra. 9 See pp. 1234-42 infra. 1106 ANNUAL SURVEY OF LABOR LAW I. REPRESENTATIONAL AND ORGANIZATIONAL ACTIVITY A. Employer's Role in Representation Affairs 1. "Midwest Piping" Doctrine—Duty of Neutrality: Play- skool; Western Commercial The Survey year saw significant judicial review of the policy of the Board in regard to the duty of an employer confronted with recognitional demands by two or more unions. Section 8(a)(2) of the National Labor Relations Act (NLRA or Act) forbids an em- ployer "to dominate or interfere with the formation or administra- tion of any labor organization or contribute financial or other sup- port to it . .. ." 1 When an employer recognizes as his employees' bargaining representative a union which is not supported by a majority of the employees, he violates section 8(a)(2) by bestowing "support" upon the minority union. 2 Thus, until the majority of employees have evidenced their choice of a bargaining representa- tive, the employer is held to a duty of neutrality among the unions rivaling for the choice of the majority. In Playskool, Inc. v. NLRB, 3 a Survey year decision by the Seventh Circuit, the Board's view of the scope of this duty of neutrality, popularly termed the Midwest Piping doctrine, was decisively rejected. However, the Fifth Cir- cuit, speaking during the Survey year in NLRB v. Western Com- mercial Transport, Inc., 4 accepted the Board's Midwest Piping doc- trine, and thus adopted a position contrary to that taken by the Seventh Circuit and the other circuit courts.` First announced by the Board in Midwest Piping & Supply Co. 6 in 1945, the Midwest Piping doctrine defined the employer's duty of neutrality under section 8(a)(2) as an obligation to refrain from recognition of one of two or more rival unions at a time when "there existed a real question concerning the representation of the employees."7 The Board, since Midwest Piping, has not formulated I 29 U.S.C. § 158(a)(2) (19W). 2 ILGWU v. NLRB (Bernard-Altmann), 366 U.S. 731, 738 (1961). 3 477 F.2d 66, 73, 82 L.R.R.M. 2916, 2921 (7th Cir. 1973). • 487 F.2d 332, 334, 84 L.R.R.M. 2814, 2815 (5th Cir. 1973). 5 The Seventh Circuit, in Playskool, noted that the courts of appeals have generally refused to adhere to the Board's Midwest Piping doctrine. 477 F.2d at 69-70, 82 L.R.R.M. at 218. Among these courts are the Ninth Circuit, NLRB v. Peter Paul, Inc., 467 F.2d 700, 80 L.R.R.M. 3431 (9th Cir. 1972); the Eighth Circuit, Modine Mfg. Co. v. NLRB, 453 F.2d 292, 79 L.R.R.M. 2109 (8th Cir. 1971); and the Sixth Circuit, American Bread Co. v. NLRB, 411 F.2d 147, 71 L.R.R.M. 2243 (6th Cir. 1969). The Playskool decision includes the Seventh Circuit among these courts, but the Western Commercial decision, adopting the Midwest Piping doctrine, aligns the Fifth Circuit with the Board. • 63 N.L.R.B, 1060, 17 L.R.R.M. 40 (1945). 7 63 N.L.R.B, at 1070, 17 L.R.R.M. at 55. 1107 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW any specific rules governing the required amount of support and the proper means of proof of the support that would be sufficient to create a real question concerning representation.° Instead, it has traditionally required a union to show that. its claim to majority status is "not clearly unsupportable and lacking in substance" if it seeks to prevent the employer from recognizing its rival. As applied by the Board, this test meant that although a union had provided clear evidence of majority status, it was not entitled to recognition by the employer if the union's rival had provided the employer with evidence of majority support so that its claim to majority status is "not clearly unsupportable and lacking in substance." In the Board's Playskool decision,") the evidence indicated that the employer rec- ognized the union as the representative of his employees, although he knew that the union's rival had demonstrated almost thirty percent support in a prior election and had since continued organi- zational and solicitational campaigning. The rival had not petitioned for an election; nevertheless the employer was aware that it was seeking recognition. The Board conceded that the union which was recognized by the employer held a majority of valid authorization cards at the time of recognition, a fact verified by the state labor conciliation service." Nevertheless, the Board held the employer violated section 8(a)(2) by granting the union recognition on the basis of the card majority, since the rival had demonstrated substantial support sufficient to create what it termed a real issue concerning representation.
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