Labor Law

THORNHILL v. STATE OF ALABAMA (1940) • FACTS: State passed a statute against picketing. The Employees picket in a company town and the President of the Union is arrested for picketing and is put in jail. ISSUE: Is this statute legal? Is it against collective bargaining law? Can Alabama prevent peaceful picketing, even though it is protected by the NLRA (a federal statute)?

(RIGHT TO PICKET)• HOLDING: Employees should not be treated as trespassers because they were invited to live in the company town and to work there. Moreover, Alabama cannot pass a statute limiting peaceful picketing and free-speech because of the importance of free speech on labor issues and because this area (where the picketing took place) was held out to be a common area (of the town/company). The Court, thus, found the statute invalid on its fact. Freedom of speech and press guaranteed by the Constitution embraces the worker's liberty to discuss publically their concerns about employment. The Court balanced property rights with individual rights.

Alternatives to Strike As a Mode of Resistance

1. ATS is grounded in the idea that normal collective bargaining process won't work (collective bargaining or a normal strike won't work). 2. ATS depends on Employee's showing that they have a high degree of mobilization (show that there are a lot of Employees that have a dispute with the Employer). 3. ATS is based on applying political, economical, and social pressure on the Employer (example: hold hearings; pressure politicians; turn to OSHA) 4. ATS transforms bargaining issues into community concerns, not a labor struggle.

• There are two types of cards:

1. Any time there card is dual-purpose or ambiguous it is a card to see if there will be an election (need 30 percent to get an election). A union can also become a "certified" union through an election. A certified union has an irrebuttable presumption in favor of majority status for one year and thereafter has a rebuttable presumption of majority status. 2. If it is a single-purpose card, then if 50 percent of the Employees have the cards, then they skip the election and the union becomes the union of the Employees.

WRIGHT LINE (1981)

1. General counsel must first establish a prima facie case that protected activity was a motivating factor. 2. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation. 3. If unable to make this showing, the employer is in violation of section 8(a)1

Runaway Shop Rule: If the persons exercising control over a plant that is being closed for anti-union reasons:

1. Have an interest in another business, whether or not affiliated with or engaged in the same line of commercial activity as the closed plant, of sufficient substantiality to give promose of their reaping a benefit from the discouragement of unionization in that business 2. Act to close their plant with the purpose of producing such a result; and 3. Occupy a relationship to the other business which makes it reasonably foreseeable that its Employee's will fear that such business which makes it reasonably foreseeable that its Employees will fear that such business will also be closed down if they persist in organizational activities, then an unfair labor practice has occurred Runaway Shop - Is an illegal shut down. It's where an employer transfers equipment and resources to another plant and effectively shuts down the shop.

Handbilling, Consumer Picketing and Corporate Campaigns

8(b)(4) proviso protected "publicity other than picketing, for the purpose of truthfully advising the public, including consumers that a product is being produced by an ER with whom the labor organization has a primary dispute and are distributed by another Employer."

DEFINITION OF SERVANT:

A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

YELLOW TAXI OF MINNEAPOLIS (1983) • FACTS: Employment contract said that cab drivers were independent contractors. ISSUE: Whether the cab drivers are Employees or independent contracts. This matters because employees can collectively bargain, but independent contractors cannot.

COURT: Said that working in an employment contract is not dispositive and does not matter. The Court, again, considered the independent contractor factors. HOLDING: Cab drivers were independent contractors. Here, the drivers did not have to wear uniforms, did not have to keep a trip log for the employer (only the city), and the city controlled the cab drivers more than the company. Moreover, there was no company dispatcher and the good will did not go to the company.

NLRB v. INT'L RICE MILLING

Court held picketing to be lawful even though the picketers encouraged supplier truck drivers not to deliver because the picketers were at their Employer's site. If the picketers went to the supplier's site, then it would have been a secondary boycott.

GATEWAY COAL V. UMW (1974) • FACTS: Workers in a mine refuse to go in to work because of poor air quality. They wait around for it to be fixed but some workers go home prior to the company finally getting it fixed. They later find out that the foremen had been forging air quality records and when one of the foremen who had been fired was reinstated the workers refuse to work for him, because they do not trust him and fear for their lives.

Court of Appeals - dissolves the injunction and says that neither the collective bargaining agreement nor the federal act should require minors to work when there are significant questions as to their safety. Court of Appeals found that there was a public policy exception to arbitration if there is a safety issue. Supreme Court - says the arbitration provision includes safety disputes. This is contrary to the public policy objection found by the Court of Appeals.

MOLON MOTOR v. NLRB (1992) • FACTS: Employees took over the break room and commandeered it for 5 hours. The Employer said, "Either you go to work or you will be terminated." ISSUE: Does this activity lose the protection of section 7 because the Employer has a property right to the Employer's premises? Problem: Line between a protected work stoppage and an illegal trespass is not clear-cut.

Court: Evidence shows that the Company ultimately fired the workers because they refused to go to work and refusing to work is protected activity under section 7 of the NLRA. RULE: Employer must give Employees the opportunity to leave the premises without threatening termination. Wright Line: 1. General counsel must first establish a prima facie case that protected activity was a motivating factor. 2. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation. 3. If unable to make this showing, the employer is in violation of section 8(a)1

2. If it is a single-purpose card, then if 50 percent of the Employees have the cards, then they skip the election and the union becomes the union of the Employees.

Cumberland Shoe Doctrine Aaron Brothers Doctrine

NLRA Section: 8(a)4

ER can't discharge or discriminate against EE b/c he filed charges or gave testimony under the act.

NLRA Section: 8(a)3

ER can't discriminate against union members or discourage membership in the unions. After Taft-Hartley, can't encourage, either. EE has the right to not be in the union.

NLRA Section: 8(a)2

ER can't dominate or interfere with formation or administration of unions (outlawing company unions).

NLRA Section: 8(a)1

ER can't interfere, restrain, or coerce EEs with their exercise of §7 rights.

NLRA Section: 8(a)5

ER can't refuse to bargain collectively with EE reps.

Two Kinds of Strikes: 1. Economic strike 2. Unfair Labor Practice Strike

Economic strike a. Striker are just trying to get a better deal b. In these kinds of strikers, the Employer can permanently replace economic strikers Unfair Labor Practice Strike a. Strikers can only be temporarily replaced by the Employer b. An Employer doing so would be in violation of 8(a)1 and 8(a)3 →If there are components of both types of strikes, then the Employer can only hire temporary replacements.

NLRA (Wagner Act): Sec. 7: Beating heart of NLRA

Employees have the right to self-organize, to form, join, or assist labor organizations, ot bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining (strikes, boycotts - even applies to non-union shops) or other mutual aid or protection.

NLRA Sec. 8

Employer Unfair Labor Practices

LECHMERE, INC v. NLRB (1992) • FACTS: Lechmere is the anchor store to a shopping center. Employees are not organized, but the union wants to organize them. The union goes on employer's property to put flyers in the parking lot. Lechmere management disposes of the flyers. Then the union retreats to the grassy strip where they attempt to pass out literature to employees. There is a conflict of rights: • Employees: The right to have information from each other or from outsiders as to the merits of organizing • Employers: Property Rights

HOLDING: (Thomas) • Instead of allowing the Board's balancing accommodating, Thomas says so long as Non-Employee union organizations have reasonable access to Employees outside of Employer's property - the requisite accommodation has taken place. • Employee's right to information depends on whether it is "infeasible" for others to get information to them outside of the employer's property. • Store employees were accessible to nonemployee union organizers, and, thus, Employer did not commit unfair labor practice by barring organizers from its property.

LINGLE v. MAGIC CHEF (1988) • FACTS: State law created a tort claim for wrongful discharge. Federal law (Labor Management Relations Act) said it was wrongful discharge and had to go through arbitration. Issue: does the federal law preempt the state law claim for retaliatory discharge? ISSUE: Does the federal law preempt the state law claim for retaliatory discharge?

HOLDING: If the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of the state law (which might lead to inconsistent results because each state could have different laws) is pre-empted and federal labor laws (which are uniform throughout the country) must be employed to resolve the dispute. In Illinois, the application of the state retaliatory discharge law does not require a court to interpret any term of a collective bargaining agreement. All that the court has to look at is: 1. The employees conduct and 2. The conduct and motivation of the Employer Thus, the state law does not depend on the meaning of a collective bargaining agreement and the state law is not preempted.

ALLEN FAMILY FOODS, INC. (1985) • FACTS: Employees left early due to worsening road conditions. The Employer did not have a policy regarding bad weather. The Employees did not complaint to the Employer about its lack of formal policy concerning bad weather. The Employees did not attempt to persuade the Employer to permit them to leave work early on account of the blizzard.

HOLDING: • Court said that there was no evidence that these Employees, by leaving early, were protesting the Employers policy as to snowy road conditions. • Basically the Employees needed to directly state that they were leaving and protesting due to a POLICY of the Employer • The Employees actions indicate at most an attempt to set their own terms and conditions of employment. These employees were not engaged in a protected work stoppage over terms and conditions of employment • Here, Employees were not engaged in protesting actual terms and conditions of employment (weather and weather policy). In Washington Aluminum, the Employees were protesting heat, which is a working condition and the Employees had complained about it previously.

NLRB v. WASHINGTON ALUMINUM (1962) • FACTS: Employees had been complaining about working conditions (too cold in the building). One day, the furnace breaks and the working conditions are unbearable. The employees leave without telling management. The employer assumes that either the employees (1) quit, or (2) even if they didn't quit they were fired for leaving without permission. ISSUE: Was this concerted activity that is give protection?

HOLDING: • Court said that this was concerted activity, even though the employees did not complain about the activity as a group and left individually. • Workers took the most direct route to protect their conditions (they did not have an established bargaining unit) • Reasonableness is not part of the inquiry into the activity • Workers do not forfeit their section 7 right even if they do not make a demand upon the employer

TIMEKEEPING SYSTEMS V. LAWRENCE LEINWEBER (1997) • FACTS: Employer sent out an email to Employees regarding a proposed plan for an incentive bonus system and changes in vacation policy. Employees emailed the other employees that spelled out the result of a proposed vacation policy change. The Employer required the Employee to write an apology. The Employee said he couldn't come up with anything and the Employer fired him.

HOLDING: Court held that this was concerted activity • In communicating with his fellow employees, Leinweber was attempting to correct any misimpression of the vacation proposal and to arouse support for his own decision to appose the proposal. Court further held that this was Mutual Aid and Protection • Leinweber's effort to incite the other employees to help him preserve a vacation policy which he believed best served his interests, and perhaps the interests of other employees, unquestionably qualified his communication as being in pursuit of "Mutual Aid and Protection." • The activity did not lose its protection because the Employee used the company's email system. The Employee was not taking over the computer system. The Employee wins because the Employer failed to meet its burden under Wright Line to show that it would have discharged the Employee even if he had not sent the letters to the other Employees.

NLRB v. WEINGARTEN (1975) • FACTS: Employer saw that Employee only put $1 into the cash register and then left with a box for the larger, and higher priced $2 chicken lunch. Employee was called into the office to discuss the issue. The Employee requested her Union Steward, but the supervisor would not allow it.

HOLDING: Employer's denial of Employee's request that a union representative be present at an investigatory interview which the Employee reasonably believed might result in a disciplinary action meant that the Employer interfered with, restrained, and coerced the Employee's right to engage in concerted activities for Mutual Aid and Protection and constituted an unfair labor practice.

WEST COAST HOTEL v. PARRISH (1937)• FACTS: Employer sought review of the decision of the Supreme Court of Washington, which held that the Minimum Wages for Women Act was constitutional. The employer contended that the Act violated the Due Process Clause of the Fourteenth Amendment.

HOLDING: The Court upheld a minimum wage law for women on the ground that women were an exploited class who were in an unequal position with respect to bargaining power.

HITCHMAN COAL AND COKE CO. v. MITCHELL (1917) • FACTS: Coalmine owner owned 5,000 acres of coal lands and operated a coalmine that employed 200 to 300 men. It operated as a non-union mine. The union sought to unionize the plant. The owner brought a suit in equity to obtain an injunction to restrain the union from interfering with the relations existing between the owner and its employees in order to compel the owner to unionize the mine.

HOLDING: The Supreme Court determined that upon all the facts, it was constrained to hold that the purpose entertained by the union to bring about a strike at the owner's mine in order to compel the owner, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose, and that the methods resorted to by the union were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the union.

COPPAGE v. KANSAS (1915) • Facts: • Railroad Employer has a contract with Employees that they cannot join a union. The Employer sues the state of Kansas for prohibiting the contracts like this. • These are called "Yellow Dog" contracts and Kansas has a state statute that prohibits such contracts.

HOLDING: Yellow Dog contracts are OK because the employee voluntarily entered into the contract. Moreover, there is no inherent right to join a union. Further, states cannot interfere with the freedom to contract (Lochner era).

UNITED FOOD WORKERS and HORMEL (1986) • FACTS: • Hormel makes Spam. Local union went on strike and picketed but Hormel refused to bargain. • Then union sets up picket lines at the banks where Hormel deposits corporate funds or gets investor funds. • Board of Directors of the Banks and Board of Directors of Hormel sitting on each other's Boards. This is analogous to a distributor's relationships. • There is a claim that the product is revenue. • Workers picket to not patronize these banks based on dispute with Hormel. Don't patronize the bank's services because of the dispute with Hormel.

HOLDING: • Court holds that this kind of picketing does not fall within the Tree Fruits case, which held that workers could picket the product. • The Board says the product is not revenue. The product is food. • Does that kind of picketing fall within Tree Fruits (is that picketing the product?). The Board says that the product is not revenue. • Production is modern and based on contractual networks. Court assumes this model is like that during the Industrial Revolution. • Professor thinks this is the wrong decision. • Here, Court refuses to extend the Proviso. This action is prohibited. Court goes against the ALJ.

IN RE ELK LUMBER (1950) • FACTS: Employees don't like what they're getting paid so they slow down production. • If they had gone on strike it would have been protected; however, they could have been permanently replaced. • This is not really work-to-rule because they are working for what they're getting paid to do • Employees are never told how much work they had to do and they were never warned that they would be discharged if they worked too little. • Employees knew that their amount of production was not satisfactory to the Employer.

HOLDING: • Slow-down was not protected concerted activity, so the Employer did not violate NLRA by discharging Employees. • Test for determining whether Employee conduct loses its section 7 protection: whether the activity is so indefensible as to warrant the Employer in discharging the Employees. • Indefensible means either: o Unlawful objective or o Improper means • It was implied in the contract that they would work in good faith → by the Employees not doing this - they were trying to set the terms of their contract.

NLRB v. ADKINS TRANSFER (1955) • FACTS: The workers at the company were union members. The company hired the two employees to maintain the company's trucks in the maintenance department. The employees joined the local union and the union began negotiating contracts for the two employees. After discovering the union wage scale for the employees' positions, the company decided to close the maintenance department and discharge the employees. The company never filled the positions. The union filed a complaint with the NLRB alleging violations of the Act. The NLRB ordered the company to reinstate the two employees and filed a petition in court for enforcement of its order. The court denied the petition, finding that the company did not violate the Act.

HOLDING: • The court concluded that the company committed no unfair labor practice by choosing to discontinue its maintenance department and to discharge the two employees. The court found that the company did not discharge the employees to discourage union membership. The company simply could not afford to pay the higher union wage scale. • Trial examiner says not a ULP because there was no anti union animus. This business move was just a matter of economic reasons. Simply, it was just cheaper for the company to have this done. • The Board overturned the trial examiners decision and the Court reversed and agreed with the trial examiner. NOTES: • Isn't the employer's prerogative to hire and fire whoever they please? Employer might be restrained if there was no cause to fire an employee but there might be cause to fire if the alternative is cheaper. • Adkins seems to say that an employer can fire and subcontract out of bargaining union work because of economic business reasons. Cases after suggest that employer has to bargain around doing this activity. As long as employer bargains over the subcontracting decision and reaches an impasse, then the employer can unilaterally subcontract. • What about a union closing? See Darlington Manufacturing.

INT'L ASSOC. OF METAL WORKERS v. NLRB (1988) • FACTS: • When a labor dispute between employees, permanent workers, and employer broke down, employer lawfully locked out employees and continued to operate with temporary replacement workers in order to leverage its bargaining position. • Employees challenged the action as a violation of 29 U.S.C.S. §§ 158(a)(1), (3) (1982), and sought review after the NLRB held that employer's conduct did not violate the law. • The court noted that an employer did not violate §§ 158(a)(1), (3) unless its action was motivated by antiunion animus. • Antiunion motivation could be inferred without proof if the conduct was "inherently destructive" of employee rights. If the adverse effect of the conduct was "comparatively slight," an employer could overcome the inference of animus by proving business justification for the conduct. • The court found that employer's conduct was not inherently destructive of the collective bargaining process under the facts presented. Employer's conduct in bringing pressure to bear to strengthen its bargaining position was a legitimate, substantial and sufficient business justification for such conduct.

HOLDING: • The court denied the employees' petition challenging the NLRB's order that allowed the employer to continue to operate with temporary workers after lawfully locking out employees in a labor dispute. • Thus, the court held that Employees aren't the only ones that can bargain by withholding work and that the Employer should also be able to lock out workers for bargaining tactic. • Either side is taking a risk by withholding work or access to work, but both sides are permitted to do as much. • There is harm to the employees because they aren't working and aren't getting paid. There are pains for the company too if they lose production, etc. - but can hire replacements if it is an economic strike. • Locking out employees limited. For example, if and employer refuses to bargain and it is an unfair labor practice. Employer cannot compound the situation by locking out employees. That will also be seen as an unfair labor practice. • But if the employer is engaged in economic bargaining, then the employer can put pressure on the employees by locking them out.

NLRB v. BRIDGEPORT AMBULANCE SERVICES (1992) • FACTS: Employees had a union that was the collective bargainer for the Employees. Employees went on strike without the union telling them to do it ("wildcat strike").

HOLDING: • Wildcat strike was protected activity. Employees attempts to bargain directly with the Employer when they have a union to do it, is not protected activity. • However, here Employees strike had nothing to do with collective bargaining and did not affect the union's ability to bargain with the Employer. RULE: • Unless a wildcat strike is called for the purpose of asserting a right to bargain collectively in the union's place or is likely, regardless of its purpose, to impair the union's performance as exclusive bargaining representative. • Section 9(a) does not put the strikers beyond the pale of section 7.

PATTERN MAKERS' LEAGUE of NORTH AMERICA v. NLRB (1985) • FACTS: • Union sought review of a decision sustaining a ruling by the Board, holding that petitioner committed an unfair labor practice, in violation of the NLRA, § 8(b)(1(A) by fining 10 members who violated petitioner's constitution by resigning during a strike and returning to work. • The court held that when petitioner's members refused to support a strike, whether or not a union rule prohibited returning to work, members were refraining from a concerted activity, a right protected under NLRA, § 7. • Further, the NLRA, § 8(b)(1(A), provided that a union committed an unfair labor practice if it restrained or coerced employees exercising that right.

HOLDING: (5-4) • The court held that the Board had the primary responsibility for applying general provisions of the NLRA to the complexities of industrial life. • Further, when the Board's construction of the NLRA was reasonable, it should not have been rejected merely because courts might prefer another view. • The Board had been consistent in construing the NLRA as prohibiting imposition of fines on employees who had given their resignation. • When petitioner's members refused to support a strike, whether or not a rule prohibited returning to work, members were refraining from a concerted activity, a right protected under the National Labor Relations Act (NLRA). • When petitioner restrained employees exercising that right, petitioner committed an unfair labor practice under the NLRA. • Court in Allis-Chalmers held that union could fine employees. Did employees resign lawfully as in the union's constitution? NOTES: • Taft Hartley eradicated the closed shop agreement. That provision also allows union to collect fees from all employees. • Employees that don't choose to be in a union (right to work states) still benefit from union activity. Thus, collecting dues from everyone prevents complete "free riding." • However, this doesn't go to the question of whether a person can resign if the union goes on strike.

IN RE DEBS (1895)• Facts: Workers of Chicago Railroad union went on strike. All of the large centers of population in the U.S. were dependent on these stockyards for their food supply.

HOLDING: Court allowed an injunction from strike because the strike was interfering with interstate commerce.

U.S. v. SILK (1947) • ISSUE: Are drivers and handlers employees or independent contractors? • It is an important distinction because independent contractors must pay their own Social Security tax, but Employers pay Employee's Social Security tax

HOLDING: Court looks at the definition of Independent Contractor. Both drivers and handlers supplied their own tools. However the drivers supplied trucks (which are more expensive than the cheap tools being supplied by the handlers). • Drivers were held to be independent contractors • Handlers were held to be employees

NLRB v. INT'L BROTHERHOOD OF ELECTRICAL WORKERS (1953) • (Jefferson Standard Case) FACTS: Technicians sponsored or distributed handbills, which made a sharp, public, disparaging attack upon quality of station's product and its business policies, and which made no referent to union, to labor controversy, or to collective bargaining, in a manner reasonably calculated to harm station's reputation and reduce its income.

HOLDING: Discharge of certain technicians was "discharge for cause" not "unfair labor practice" within the Taft-Hartley Act, though at the time of distribution of handbills a labor dispute existed between the station and the union. • Purpose of harming Employer's reputation is "disloyalty" and disloyalty is "just cause" for discharge • Disloyalty overpowers Employees concerted activities protected by section 7 of the NLRA

BIRD ENGINEERING and KEITH MAIN (1984) • FACTS: Employer made a rule saying that Employees' could not leave the premises during lunch break or break time. The Employees ignored this rule and left during their breaks. When they returned to the Employer's premises, they were fired.

HOLDING: Employees did not go on strike because they did not stop working. If they had gone on strike that action would have been protected. Instead, the Employees simply ignored the Employer's rule. By ignoring the rule, rather than going on strike, the action was not a legitimate protected exercise. Thus, it is insubordination and the Employer can fire an Employee for this purpose.

TECHNOLOGY SERVICE SOLUTIONS and INTERN. BROTHERHOOD OF ELETRICAL WORKERS (1997) • FACTS: Employees were customer service representatives that worked from their homes and did not know each other's contract information. The Employees asked the Employer for each other's contact information to help with organizing. The Employer refused.

HOLDING: Employer may have violated section 8 of the NLRA. RULING: • Just because the Employee cannot organize because of the organizational structure does not mean that the Employer violates section 8(a)1 o For example: Having no central location is not enough to violate section 8(a)1 • However, if the Employer takes actions that make it unreasonably difficult for Employees to reach other Employees, then that could be a violation. • 8(a)1 is a violation for interfering with Employee organizing protected by section 7. An Employer does not have to perform an "overt act." Thus, refusing to act can still violate 8a1. • HOWEVER, Court holds that refusing to furnish contact information was not an over act and there was no 8(a)1 violation.

NLRB v. ERIE RESISTOR CORP. (1963) • FACTS: e'ees struck after CBA expired. E'rs offered 20 years of "additional seniority" to workers who returned to work and to all replacements. All strikers were rehired, but when layoffs became necessary, those without "additional seniority" were laid off first. ISSUE: Does the Employer commit an unfair labor practice under section 8(a) by giving replacement workers during the strike and strikers who return to work seniority?

HOLDING: It was a violation of 8a1 and 8a3, even though there was no specific evidence that the Employer gave the seniority in order to break or discourage the strikers. 8a1 - Employer cannot interfere with or discourage union activity For the NLRB to prove this, they do not have to show intent by the Employer. The NLRB can just look at the character of the act. There is a violation if the conduct does in fact interfere with union activity whether or not the Employer intends it to interfere with union activity 8a3 - Employer cannot retaliate for union activity. For the NLRB to prove this, they have to show intent (anti-union animus). However, if the conduct is inherently discriminatory, the NLRB does not have to show intent. HOLDING: Giving super-seniority to replacements is inherently discriminatory so the NLRV does not have to prove anti-union animus.

CORONET CASUALS, INC. and UPPER SOUTH DEPARTMENT, ILGWU (1973 ) • FACTS: Respondent chose not to reinstate striking workers. Board found this as an unfair labor practice. Certain employees had tried to damage other employees cars, others tried to make it difficult for cars to enter the parking lot by standing in front of approaching cars. Other employees decided to exchange name calling an profanities. One employee would stand in front of cars and jump back as they approached, kick cars, throw mud and gravel, shout names and profanity, throw eggs at delivery truck. ISSUE: Whether the actions of the strikers were substantial enough to warrant not being reinstated.

HOLDING: Momentarily blocking cars of non-strikers and using non-threatening language does not make the strike unprotected. RATIONALE: • NLRA must have intended to allow minor stuff that always occurs during strikes. Impulsive misconduct is to be expected, especially against non-strikers or picket breakers. • Moreover, each striker's eligibility for reinstatement must be judged solely upon incidents in which the striker individually participated. • Upon proof that the strike misconduct on the part of a particular striker has occurred, the burden of proving the innocence of the striker shifts to the Employee who, in order to gain reinstatement, must show that the conduct was not sufficiently serious to justify the Employer's refusal to reemploy the striker. • In determining whether reinstatement should be ordered for unfair labor practice strikers, the severity of the Employer's unfair labor practices must be balanced against the Employee misconduct (this standard is rejected by Clear Pine Mouldings).

WI DEPT. OF INDUSTRY v. GOULD, INC. (1986) • FACTS:The state had a statute that said if companies were found to be in violation of the NLRA, they would not be allowed to sell anything to private parties within in the state.

HOLDING: The NLRA pre-empts a Wisconsin statute debarring certain repeat violators of the act from doing business in the state. RATIONALE: 1. States may not regulate activity that the NLRA protects or prohibits 2. The NLRA would prevent the state from forbidding private parties within the state to do business with repeat labor law violators 3. Nothing in the NLRA prevents private purchasers from boycotting labor law violators, so the state is not allowed to invoke this remedy.

NLRB v. CITY DISPOSAL SYSTEMS (1984) • FACTS: Employee refused to drive a truck with no brakes and was discharged. ISSUE: Was the Employee's activity concerted?

HOLDING: Under the collective bargaining agreement the Employee could refuse to drive an unsafe truck, therefore the Employee was asserting a collectively bargained right. Interboro Doctrine: Employees' reasonable and honest assertion of collective bargaining right is a concerted activity and protected under section 7 of the NLRA. Moreover the Employee doesn't have to explicitly refer to the collective bargaining agreement when he is asserting his right.

NLRB v. FRUIT & VEGETABLE PACKERS (1964) • FACTS: Primary Employees pickets to consumers of a store that sells primary Employer's products.

HOLDING: Union secondary picketing of retail stores confined to persuading customers to cease buying the product of primary employer did not fall within area of secondary consumer picketing condemned as an unfair labor practice, even if the picketing was effective to reduce secondary employer's sales of primary employer's product leading or possibly leading to secondary employer dropping the item as a poor seller. • 8(b)(4) makes it an unfair labor practice to coerce any secondary person with the object of forcing the secondary person to cease selling products of the Employee's Employer does not prohibit all consumer picketing at a secondary site. • 8(b)(4) has a proviso that protects Employees (will not be an unfair labor practice) doing other things than picketing to inform consumers that the Employee has a dispute with the Employer. • 8(b)(4) means that it is an unfair labor practice to coerce secondary Employer's to stop dealing with the primary Employer. o However, there is an exception when the purpose of the Employee activity is publicity to truthfully advise the public, other than picketing, unless the publicity has the effect of inducing the secondary Employee to stop doing work for his own Employer. o Must truthfully advise the public to be protected. o If the picketers are picketing the product ('don't buy Washington apples') there will be some revenue affect on Safeway, but that's OK because the labor dispute is being labeled clearly as with the primary Employer, so not unfair labor practice.

VICO PRODUCTS CO., INC. v. NLRB (2003) • FACTS: • Three months after the union was certified as the exclusive bargaining representative for the employees, the employer moved its manufacturing and distribution facility. • The following month, the employer declined to give its employees a wage increase as it had done the preceding five years. • The Court held that the evidence showed that the move decision was based on labor costs. • One of the employer's primary reasons for relocation was that the move allowed for automation of machines. This move, then, was based on labor costs. • The employer's cost-benefit analysis was performed after the company decided to relocate. • The employer's after-the-fact offers to engage in effects bargaining were irrelevant. The union did not waive the right to bargain because it was unaware of the past annual wage increases. Because the past increases were regular and consistent in criteria, the employer could not discontinue the program unilaterally. • Substantial evidence supported the Board's finding that the relocation decision was motivated by antiunion reasons. • The haphazardness, the timing, and the secretive nature of the hasty relocation decision rendered the decision "suspicious." The Board's restoration order was within its broad discretion.

Holding: Dubuque Packing: 4 step process: • Burden is on Board Counsel to show that the move was unaccompanied by a change in the nature. • Then the employer may rebut the prima facie case by showing: o The work at this location varies significantly from the last location o Work at previous decision will be discontinued entirely o Decision involved change in scope and direction of the enterprise. • Employer can still defend by showing it was no a labor cost decision • Union could not have offered labor cost concessions that would have resulted in employer changing its decision. After finding Vico could not justify, what could the board do? (Runaway shop) • They can order restoration of production at the runaway site. RULE: Notice of relocation is required before an Employer tries to collectively bargain with the union. Here, Employer decided to relocate before they tried to negotiate.

COMMONWEALTH v. HUNT (1842) • Facts: Seven defendants banded together in a meeting to make a group which would extort great sums of money from employers by threatening to walk out if not paid better. ISSUE: Is it a criminal act for a group of workers to band together and make efforts to increase their own wages.

Holding: No, if their intent was a positive one and not just to harm other workers in the same industry, their actions are not criminal. Rationale: Common law doctrine of conspiracy does not apply to labor unions. Shaw says not every combination to do things is not illegal. • No problems with workers to get together to do things that they cannot do as easily individually. • If it is clear that workers can individually withhold their labor why cant they do it as a group?

NLRB v. GISSEL PACKING CO. (1969) • FACTS: The union had waged an organizational campaign, obtained cards from employees, and then demanded recognition from the employer based on the cards. The employers said NO, and embarked on anti-union campaigns which resulted in unfair labor practices. ISSUE: Whether the card holding is legitimate to authorize a union representation without election...

How the union becomes the bargaining representative of the Employees: • Need 30 percent of Employees to have an election. This results in a back and forth campaign between the Employer and the Union. • If, during the election, the Union gets more than 50 percent of the vote, then the union is declared a "Certified Union." • But a union can also become the bargaining representative of the Employees even without an election if 50 percent of the Employees show that they want the union to be their representative. The 50 percent showing means there doesn't even have to be an election. More than 50 percent is enough to have the Union be the exclusive bargaining representative. • Moreover, election cards are not the only way to show the Employer that the Union has Employee support. The Employees can also wear t-shirts, go on strike, etc. • There are two types of cards:

NLRA: Sec 9

How unions become certified

CATERPILLAR, INC (1996)• FACTS: Employee who was in a union representative told people that he "would get them paid." ISSUE 1: Was there work-to-rule? Yes. ISSUE 2: Employer gave gag order to Employee, which violated section 8(a)1 ISSUE 3: Discharge of Employee as a result of stuff he did during his grievance procedure

ISSUE 1: Was there work-to-rule? Yes. • The Court says because these are highly paid factory workers that do not need to be told what to do and they are getting paid to do work that they are not doing. In addition, the Employees had work-to-rule training. ISSUE 2: Employer gave gag order to Employee, which violated section 8(a)1 • Work-to-rule: work and get paid but do less work (only do what you are told to do; don't make suggestions for improvement; don't do more than you have to) • Standard: whether the Employer engaged in conduct, which, it may reasonably be said, tends to interfere with the free exercise of Employee rights under the Act. • Employer violated 8a1 by imposing a gag order on Employee. Employee's statements constituted protected union activity. Work to rule activity is unprotected. Here, the statement made by the Employee showed no connection to a work-to-rule campaign. ISSUE 3: Discharge of Employee as a result of stuff he did during his grievance procedure • Employee's statement was protected and he could not be discharged for insubordination. • Rule: Determine whether the statement made is "indefensible in the context of the grievance involved." o Insubordinate behavior during grievance meetings is necessary because it's dispute between the two parties. • Even assuming that the Employee could be discharged for insubordination, the Employee would still not lose protected status because his actions were provoked by the Employer ("provocation doctrine"). o Employer did not meet the Wright Line burden o NLRB v. Headwater: standard for provocation doctrine → compare the extent of the Employer's conduct with the extent of the Employee's conduct. o This is different from Clear Pine Moulding case where Court held that there was no balance of conduct test when the Employee is on the picket line.

CUMBERLAND SHOE DOCTRINE

If the card itself is unambiguous (i.e. states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was only to be used for the purpose of obtaining an election.

CITY CAB OF ORLANDO v. NLRB (1980) • ISSUE: Whether the cab drivers are Employees or independent contracts. This matters because employees can collectively bargain, but independent contractors cannot.

Independent Contractor Factors show that the drivers are Employees: • 90 percent of cab driver's business came from dispatcher of the Employer or at the Airport • The drivers had to keep a log and record their trips • Cab drivers could only drive during certain hours • Drivers had a dress code • Cab vehicle had advertisements on it and the benefits went to the cab company, not to the driver HOLDING: Drivers were Employees and were allowed to collectively bargain.

NLRB V. HEALTH CARE & RETIREMENT CORP. OF AMERICA (1994) • ISSUE: Whether workers were "employees" or "supervisors" for collective bargaining reasons. • This is important because the NLRA affords employees rights to organize and to engage in collective bargaining. The Act does not grant those rights to supervisory employees. • The NLRA affords employees rights to organize and to engage in collective bargaining. • The Act does NOT grant those rights to supervisory employees.

NLRA defines Supervisor as: Any individual having authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, discipline, direct adjust grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of "independent judgment." Courts hold that nurses are supervisors because they are making judgments in the interest of the Employer.

NLRA (1935)

National Labor Relations Act is a United States federal law that limits the means with which employers may react to workers in the private sector that create labor unions, engage in collective bargaining, and take part in strikes and other forms of concerted activity in support of their demands. The Act does not, on the other hand, cover those workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers.

NLRB v. TRANSPORTATION MANAGEMENT (1983) • FACTS: Bus Driver contacts a union and talks about the possibility of organizing the workplace. The manager (Employer) tells another worker that he will get even with the Bus Driver for attempting to organize. A short time later, the Bus Driver is discharged for leaving his key in the bus and talking about unauthorized business. The Bus Driver claims an unfair labor practice and that the manager is anti union. The Bus Driver claims that the real reason he was discharged was for trying to organize a union.

Once the general counsel says there is some retaliation for union activities the burden shifts to the Employer to give another reason for the discharge. Then the burden shifts back to the Employee to show that those reasons are pretextual. HOLDING: Court uses the Wright-Line rule to find that the Employer's purported reason for firing the Employee (leaving his keys in the truck) was pretextual because the company had never fired anyone before for that offense even though workers frequently left their keys in the vehicle and had non-work related discussions. Thus the real reason that the Employer fired the Employee was because of anti-union animus, which is an 8(a)3 violation.

COMPLETE AUTO TRANSIT, INC. v. REIS (1981) • FACTS: • Three trucking companies brought suit against certain employees who had staged a wildcat strike resulting from the employees' belief that their union was not properly representing them in negotiations for amendments to their collective bargaining agreement. • The collective bargaining agreement to which the trucking companies and the employees' union were parties contained a no-strike clause and subjected all disputes to a binding grievance and arbitration procedure. • Relying on 301(a) of the Labor Management Relations Act which by its terms confers jurisdiction on Federal District Courts to decide lawsuits alleging violations of collective bargaining agreements, the trucking companies sought, among other things, damages against the employees in their individual capacities for all losses arising out of the unlawful work stoppage. The companies sought no damages from the union, alleging that the strike was neither authorized nor approved by it.

PROCEDURAL POSTURE: • Court held that an employer may not sue his employees for monetary relief for breach of a collective bargaining agreement whether or not the union may also be liable. • The COA affirmed, concluding that Congress had not intended through 301 to create a cause of action for damages against individual union members for breach of a no strike agreement. HOLDING: (Brennan) 301(a) of the Labor Management Relations Act does not sanction damages actions against individual employees for violating the no-strike provision of a collective bargaining agreement whether or not their union participated in or authorized the strike.

Common Situs Dilemma

Picketer's employer works on same site as other employer's.

UNITED STEEL WORKERS OF AMERICA v. US STEEL • Facts: Workers at factory want the plant to stay in business because their whole livelihood depends on it. Company says they will stay open if certain concessions are made. They closed anyway. ISSUE:: Did workers have a detrimental reliance right and can the court require a factory to stay open?

Promissory Estoppel: Workers would have to prove three elements of for the doctrine of Promissory Estoppel: 1) That there was a promise intended to create reliance 2) That the promise capable of being relied upon 3) And that the workers relied on the promise to their detriment Court: Workers did not detrimentally rely because the promise was made conditional on something that did not occur (profitability of plant).

AUDUBON HEALTH CARE CENTER (1983) • FACTS: Nurses refuse to pick up an extra shift but remain at the health care center and continue doing their own work.

RULE OF LAW: Partial strikes are not protected by section 7 of the NLRA • A concerted stoppage of work by employees is not protected under section 7 of the Act if it is conducted in an improper manner. • A partial strike, in which employees refuse to work on certain assigned tasks while accepting pay or while remaining on the employer's premises is a method of striking which is not condoned by the Board. • While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging gin a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all of their services from their employer. • Workers cannot pick and choose the work they do or when they will do it. Such conduct constitutes an attempt by the employees to se their own terms and conditions of employment in defiance of their employer's authority to determine those matters and is unprotected.

REPUBLIC AVIATION CORP. v. NLRB (1945) • FACTS: Employer adopted a rule against solicitation. Employee passed out union material during lunch periods and was discharged. There is a tension between Employees' right to organize and Employer's right to maintain discipline in the workplace.

RULE: If an Employee is trying to organize on work time in a work area interfering with Employer production, the Employer has the right to retaliate or prohibit such activity, but if the organization is off premises and not on work time then the activity is presumed valid.

HORMEL v. NLRB (1992)• FACTS: • The employee argued that the employer discharged him for engaging in activity protected by § 7 of the Act. • The employer contended that it fired the employee solely for participating in unprotected activity, advocating the consumer boycott of the employer's products. • The Board concluded that the employee did not support the boycott based upon its examination of his subjective intent. • The court noted that supporting a boycott of an employer's product was protected activity only if it was related to an ongoing labor dispute and did not disparage the employer's product. ISSUE: Whether the board properly determined that Langemeier did not support he consumer boycott of Hormel products after the end of the local dispute between Local 9 and Hormel at the Austin Plant.

RULE: An employee can be fired for disloyalty to his company (boycotting), UNLESS it is related to an ongoing labor dispute and does not disparage the employer's product. HOLDING: • The court held that the board's subjective approach did not entail a possible construction of the Act because it was inconsistent with the statutory policy of preserving the employer's right to discharge an employee for disloyalty. • The court agreed with the board that the employee's handing out leaflets and speaking in favor of extending the boycott arose out of an ongoing labor dispute and were protected by § 7. • However, the employee violated his duty of loyalty by participating in a boycott parade and rally because his mere presence indicated that he supported the boycott. • Section 7 of the NLRA protects the rights of employees "to engage in...concerted activities for the purpose of...mutual aid or protection." • Nothing in the Act prevents an employer from disciplining or discharging an employee for disloyalty, however. • As a rule, an employee who supports a boycott of his employer's product violates his duty of loyalty to the employer. This is an exception to that rule however: supporting a boycott is protected Section 7 activity if it (1) is related to an ongoing labor dispute and (2) does not disparage the employer's product. (See Jefferson Standard). • Employer didn't win here because he didn't show that he took steps sufficient to limit the interference reasonably to be drawn from his participation in the parade and rally. • COA doesn't touch the First Amendment implication. Perhaps the employee was just voicing his opinion?

HANSON, TRUSTEE OF UNION v. GUYETTE, SUSPENDED UNION PRESIDENT (1986) • FACTS: When Local p9 did not want to follow the orders of the International Union, the IU placed a trustee in charge of Local P9. ISSUE: Whether IU had authority under its constitution and under labor law to appoint the trustee.

RULE: The constitution of IU authorizes the imposition of a trusteeship upon a local union whenever, in the judgment of the IU exec committee such action is required. It may be exercised for enforcing compliance with directives of the IU. HOLDING: It was the purpose of enforcing the directives that they implemented the trusteeship here and thus according to the broad language of the constitution it was proper.

DUNKIN DONUTS v. NLRB (2004) • FACTS: Lessor Employer leased out Employee's to Lessee Employer Lessor and Lessee Employer violated NLRA 8a (1,3) ISSUE: Whether the Employers are Joint Employers?

RULE: Two separate entities may be joint Employers of a single workforce if they share or co-determine those matters governing essential terms and conditions of employment. HOLDING: Court holds these are Joint Employers. Because both are: • Involved in hiring, firing • Disciplining • Assigning of work and equipment • Recognition and awards • Day-to-day direction of the leased Employees

NLRB v. FAN-STEEL METALLURGICAL CORP (1939) • FACTS: Employee engaged in a "sit-down" strike by taking over the plant production. Board ordered company to reinstate all workers with backpay. Issue: Whether the board had the authority to require employer to reinstate employees who were discharged because of their unlawful "sitdown strike."

RULING: • The NLRA, in authorizing strikes, only contemplates lawful strikes. o Taking over the means of production is an unlawful act. • Employees had a right to strike but had no license to commit acts of violence or to seize the Employer's plan, which would be trespassing. • NLRB's powers to require affirmative action "to effectuate the policies" of the NLRA is broad but not unlimited. The NLRB cannot punish, it can only remedy. ***• Fansteel becomes classic case of misconduct forfeiting protection of the strike.

DeBARTOLO v. FLORIDA GULF COAST BULDING COUNCIL (1988) • FACTS: Employee construction workers hand out handbills to consumers telling them not to patronize the mall.

RULING: There is no doubt that if they picketed the shopping mall, then that would be a prohibited by 8(b)(4), however, here they were not picketing, they were doing a consumer boycott (handing out handbills). The First Amendment requires that there be no unfair labor practice HOLDING: • Union's peaceful distribution of handbills at shopping mall's entrances, urging customers not to shop at any of mall's stores until mall's owner promised that all mall construction would be done by contractors paying fair wages, did not violate the provision of NLRA making it an unfair labor practice to "threaten, coerce, or restrain any person" to cease doing business with another. There was no suggestion that leaflets had any coercive effect on costumers of all, and there was no violence, picketing, or patrolling by union members • Not all handbilling, picketing, or other appeals to secondary employer to case doing business with employer involved in labor dispute is "coercion" if it has some economic impact on neutral, within the meaning of NLRA provision prohibiting union from threatening, coercing, or restraining any person to cease doing business with another.

STANDARD CONCRETE PRODUCTS INC. v. GENERAL TRUCK DRIVERS UNION (2003) • FACTS: • Sympathy Strike - Union represents Employees at multiple plants. • One plant's Employees go on strike. The Employees under the union at other plants go on strike to support the other Employees. • The unions of the other plants have no strike clauses. The Employees of the other plants already have what the striking union wants.

RULING: • A general no strike clause that does not specify whether sympathy strikes are included or excluded. The clause does not, simply by virtue of its incorporation in a collective bargaining agreement constitutes such a clear and unmistakable waiver of sympathy strikes. • Look at the intent of the parties (if they wanted to include sympathy strikes in a "no strike clause" and the burden is on the Employer to show a clear waiver of the right to do sympathy strikes. Here, the union did not make a clear and unmistakable waiver of its members' right to do sympathy strikes.

FORD MOTOR and JOHN ELLIS (1979) • FACTS: Strikers walked around the entire plant for 20 minutes (including places where people were working) telling all the Employees to leave their work and join the group.

RULING: • Court determines that this was unprotected activity. Even if no workers actually joined the group, the chanting would inevitably interfere with the work and the Employee's and it was inherently disruptive and disorderly. • Employer has the right to maintain discipline in its establish, and the strikers disrupted the Employer's discipline. o "This was so disrespectful to as seriously to impair the maintenance of discipline."

NLRB v. MACKAY RADIO & TELEGRAPH COMPANY (1939) • FACTS: • There was a dispute over a contract between a union and a company. • The Employees are called out for an "economic strike" • The company brings in replacements to keep operating business • Strikers eventually ask to return to work • Workers are told they can return to work except that the company has promised some replacements jobs, thus bumping some of the strikers from being allowed to return to work. • The strikers that were not allowed to return were the ones who were actively involved in the strike

RULING: • Court must decide whether the strike is in connection with a labor dispute because if there is a labor dispute the strikers are still Employees. • Court says that an Employer has the right to continue production if he can hire replacements when the Employees are on strike • However, the restriction on this is that the Employer cannot do this to try to break the strike because that would be a section 8 violation. HOLDING: Employer was in violation of 8(a)3 because they put the strikers who were the most involved on the waiting list to return to work rather than reinstate them, which they did with other strikers who were not as involved in the strike. This showed discrimination for engaging in union activity.

J.I. CASE v. NLRB (1944) • FACTS: Employer issues contract to Employees, which stipulates that, for a term of a year, the wages will be fixed. In the mean time, a union wins and election to be the Employee's representative of collective bargaining. The Employer refuses to bargain because of the contract. The NLRB said that the contracts, however, were no barrier to bargaining.

RULING: • When Employees vote for a collective bargaining representative, they forfeit any possibility of an individual contract. • Tradition of collective bargaining is that it benefits most Employees, thus, workers on the average will be able to do better and if they vote by majority, they should be able to use the union to collectively bargain, even if some Employees would do better under the individual contract. • The principle that makes collective bargaining effective is the principle of solidarity (doing better together) • Individual contracts and collective bargaining cannot coexist: collective bargaining wins o Collective bargaining serves the purpose of the NLRA - that the purpose of collective bargaining serves the welfare of the entire group, on average. • Collective bargaining means that the majority rules and that all the Employees must follow what the majority says.

REPUBLIC STEEL CORP. v. NLRB (1939) • FACTS: Employer set up Employer dominated unions and ran campaigns that every Employee should join that union. The Employees were threatened with discharge and when they were on strike under an outside union, they were beaten. The violence escalated and strikers were killed. ISSUE: What can the Board order as remedy for unfair labor practices.

RULING: Employers actions were retaliation of engaging in union activities and was a violation of 8a1 Sometimes, it's enough for the Board to say cease and desist or to reinstate Employees with backpay. However, section 10c authorized the Board to take any affirmative action that will effectuate the policies of the Act. This is a very broad grant of authority on the issue of remedies. Here, the Board ordered the Employer to reinstate the Employee with backpay. HOLDING: The Board knows best how to remedy the Employer wrongs so the Court defers to the Board. However, certain Employees were not reinstated because of their misconduct during a strike. The Court determined which Employees committed felonies and they were not reinstated (this part wasn't deferred).

TEXTILE WORKERS UNION v. DARLINGTON MFG. CO. (1965) • FACTS: Employer closes down the company in retaliation for Employee's voting in a union. ISSUE: Where there is clear anti union animus, is a retaliatory shutdown of the company a violation of 8a3?

RULING: No, it's not an unfair labor practice. • If Employer shuts down part of its business in retaliation for Employees voting in a union in order to send a message to other Employees, then that is an unfair labor practice. But here, Employer shut down the entire business. • Employer has the right to terminate his entire business for any reason he pleases. • Rationale: there would be no future benefit for the Employer to remain open and either not make a profit or suffer a loss.

CLEAR PINE MOULDINGS and INT'L WOODWORKERS of AMERICA (1984) • FACTS: Strikers threaten to kill and burn houses down and hit non-striker's cars

RULING: Not every impropriety committed in the course of a strike deprives and Employee of the protection of the Act. However, serious acts of misconduct may disqualify a striker from the Act's protection. What is "serious misconduct?" RULE: • Whether the misconduct is such that, under the circumstances, it may reasonably tend to coerce or intimidate Employees in the exercise of rights protected under this Act. • Court rejects to adopt the rule that they will balance Employer unfair labor practices against the Employee's misconduct (OVERRULES CORONET) • Court rejects a per se words alone rule. The Court says that words alone can be sufficient to disqualify a striker. o Need to Look at the at the circumstances to determine whether words alone is "serious misconduct." • In cases of misconduct, the remedy is to deny reinstatement and back pay to the Employees. POLICY: People should resort to legal remedies rather than force.

J.P. STEVENS & CO., INC v. NLRB (1969 • FACTS: Employer had multiple violations of unfair labor practices. Basically Employer didn't care about the law. So the Board ordered the Employer to send a notice of the Board's order to all Employees. The Board also ordered the Employer to read the order to all Employees. The Board wanted access to company bulletin boards for the year and ordered the Employer to make a list of its Employee's names for the union. The Employer claimed that the Board's orders made organizing easier for the union. Court says this is true, but the Boards order is OK because the Employer had violated the Act so many times before.

RULING: The Board's order was OK because the Employees needed to know that the unfair labor practices would not happen again.

NLRB v. JONES & LAUGHLIN STEEL CO. (1937)• FACTS: Supreme Court made the NLRA (Wagner Act) constitutional because the NLRA has close connection to interstate commerce.

Rationale for NLRA: • Employers could not punish workers for joining unions • Made as a meant to transfer wealth from owners to workers • Reason for this is that workers will use their wages to buy goods and stimulate the economy • Section 7 creates a right to employees: o Can join organizations o Can bargain collectively through representatives o Can strike

NLRA: Sec 10

Remedies

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

Right of Control: 1. Masters control over Details? 2. Employed engaged in Distinct Occupation? 3. Length Employed 4. Skills (specialized) 5. Work done under supervision or by a specialist without supervision? 6. Location of Work (onsite or offsite from the ER's location) 7. Tools and place of work (provided for worker or provided by worker?) 8. Pay (By the time or by the job?) 9. Regular Course Business (part of daily production or short term contracted function)

GEORGE A. HORMEL & COMPANY (1988) • FACTS: Employee wears cram your spam t-shirt to work and other people see it. The employee wore it under other clothes but it was partially visible for a moment, he was fired for disloyalty and violation of a no boycott agreement. ISSUE: Whether the wearing of the shirt was protected concerted activity in which a violation occurred when he was fired for the activity.

Rule: If there is no ongoing labor dispute there can be no relationship or link between an employees conduct and a labor dispute. NLRB v. Electrical Workers. Holding: He was not protected and thus legally fired. • If there is no ongoing labor dispute there can be no relationship or link between an employees conduct and a labor dispute. NLRB v. Electrical Workers. • It must be settled whether there was an ongoing labor dispute. o In Emarco, even though the strike had ended the company has not completed its end of the deal to end the strike, payment of the pension plans, thus the dispute had not officially ended and the employee could be considered protected. o Here, the shirt was not worn in support of anything to do with an ongoing issue, not the rehiring of struck workers or any connected reason. Even though he says he was not protesting anything, the wearing of the shirt is still part of the Austin strike, which had been ended. o The labor dispute was considered officially over and the wearing of the shirt was an unprotected act. o Furthermore his action was an unprotected dissident activity in that it was conduct in opposition to the policies and actions of his s9(a) representative.

NLRB v. GREAT DANE TRAILERS, INC. (1967) • FACTS: A union filed an ULP complaint with the NLRB charging the employer with discrimination in terms and conditions of employment discouraging union membership, as well as with unlawful interference with protected activity, in violation of 8(a)(3) and (1) of the NLRA. The charge was based on the employer's refusal to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement, while announcing an intention to pay such benefits to striker replacements, returning strikers, and nonstrikers who had been at work on a certain date during the strike.

Supreme Court held: 1. The union's complaint stated an unfair labor practice charge and the National Labor Relations Board was not deprived of jurisdiction merely because the employer's conduct might also have supported a lawsuit for breach of a collective bargaining agreement under 301 of the Labor Management Relations Act, 2. In determining whether an employer's discriminatory conduct constituted an unfair labor practice under 8(a)(3) of the National Labor Relations Act, once it was proved that the employer engaged in discriminating conduct which could have adversely affected employee rights to some extent, the burden was on the employer to establish that it was motivated by legitimate objectives, and antiunion motivation had to be proved only if the employer came forward with evidence of legitimate and substantial business justifications for its conduct, and 3. The Board's finding of an unfair labor practice in the case at bar was supported by substantial evidence and should have been sustained notwithstanding the absence of proof of an antiunion motivation, since the employer had failed to present evidence of legitimate motives for its conduct, which had been proved to carry a potential for adverse effect on employee rights.

LYNG v. INT'L UNION, UNITED AUTO WORKERS (1988) • Facts: Workers go on strike and get no food stamps.

The Court applied a rational basis analysis and concluded that the statute was rationally related to the legitimate governmental objective of maintaining neutrality in private labor disputes. The union should have been providing for the strikers. Three factors: • Act not intended to be a weapon • Workers choose to strike • Striker's right to association does not require the gov. to furnish funds to maximize the exercise of that right

AARON BROTHERS DOCTRINE

This is the way to determine when an Employer must recognize the cards as union support. General Counsel has the burden of proving Employer's bad faith and Employer will not be held to have violated his bargaining obligation simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority. An Employer faced with the cards, can say that the cards don't represent a majority, but if they say that they must take non-interrogational means to find out if there is a majority. Or, the Employer can call for an election.

INT'L BROTHERHOOD OF TEAMSTER v. DANIEL • Facts: Teamsters want information regarding investments. They argue that workers holding pension rights are holding securities.

Use the HOWEY test to determine whether worker is entitled to disclosure of info: "Is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others" ** Court says NO: 1. Labor is not an investment because an employee is considered as selling his labor primarily to obtain a livelihood. 2. Employer contributions are not made "on behalf" of any individual worker 3. Charland v. Norge: There is no constitutionalized property right in a job

VEGELAHN v. GUNTNER (1896)

When strikers use coercion, intimidation, and threats then the strikers are subject to civil, but not criminal charges. "One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services the least possible return."

COMMONWEALTH v. MORROW (1815) • Facts: The workers banded together to refuse to work for any less than a specific price or walk out. The court charged them with criminal conspiracy. ISSUE: Can workers be indicted for conspiracy to quit working if demands are not met?

Yes, any act which threatens to put someone out of business like this and damage the welfare of the town is conspiracy punishable by indictment. Rationale: This sort of looks like the first makings of a labor union? The judge is concerned about stopping production. (About the government on behalf of the public against the union.)

JOY SILK DOCTRINE

o Employer can refuse to bargain with a union claiming representation status through possession of authorization cards if he has a "good faith doubt" as to the unions majority status; Instead of bargaining he could insist the union seek an election in order to test out his doubts.

Secondary Boycotts • Two types of effects of a strike: Primary and Secondary • Prohibited by 8(b)(4) • Secondary boycott:

o Union applies pressure o Coerces o Or restrains a person with whom the union has no dispute over terms of employment in order to induce that person to cease doing business with another Employer with whom the union does have a dispute.

EASTEX, INC. v. NLRB (1978) • FACTS: • Employees want to pass out a pamphlet, which has pro-union material in it. In addition, the material has political information in it. ISSUE: Does it have to be a protest over something the employer has control over? For example: An employer policy?

• Court holds that this is activity that is protected under section 7 and that this activity was for Mutual Aid and Protection. • Supreme Court says that Employees can be engaged in Mutual Aid and Protection not just of one's co-workers in a given plant or company, but of all workers or a combination of different workers. • Court holds that this is still Mutual Aid and Protection. Employees distribution of political material, rather than work-related material, is still concerted activity for "mutual aid and protection" because the workplace is the one place where employees clearly share common interests and where they traditionally seek to persuade fellow workers. • Moreover, this activity does not lose its protection because it is conducted on the Employer's property during non-working time. • Court found that the Employer could not prevent Employees from distributing such literature in nonworking areas of Employer's property during nonworking hours, in absence of showing by Employer that a ban was necessary to maintain plant discipline or production.

Labor Law:

• Defined in terms of federal legislation, primarily the National Labor Relations Act, govern collective bargaining and union representation

EPILEPSY FOUNDATION v. NLRB (2001) •

• Extends Weingarten right to unorganized work place. • Having a witness can serve to encourage the employer in the non-organized situation to act in some procedurally fair way with some consistency across cases. • There is the same employee interest in having a witness, even if that person is not a union representative. • The Supreme Court overturned this later. Court says that it would not have the same effect. • Section 7 protects any employee that is working to engaging in a protected concerted activity. • If that right wasn't protection, it would be highly unlikely that organization would ever occur. The employer could discriminate and ensure that union organization would never materialize.

PHELPS DODGE CORP. v. NLRB (1941) • FACTS: e'rs refusal to rehire 2 e'ees who had voluntarily quit before a strike, and refused to rehire several others because of union affiliations.

• It is a violation of section 8 to refuse to hire someone because of union affiliation • Can you discriminate against pro-union workers at the level of hiring? o No, refusal to hire pro-union employees is an interference with attempts to organize under section 8 and would be a major deterrent to existing workers to self-organization. o Court says that Employer is free to hire as he is to discharge, but in neither case does the statute permit discrimination against unions

• NLRB v. Town and Country • Towring: • Oil Capital:

• NLRB v. Town and Country: "Salted Employees - union Employees who apply for jobs with the Employer are protected from discrimination • Towring: Held that a salted Employer is not protected unless the Employer proves that he is genuinely interested in being an Employee for the Employer. • Oil Capital: Held that a Salted Employee who is retaliated against and discharged for union activity can only get back pay if the Employee can show that the Employee would have worked the full time for the Employer.

High Velocity Labor Market

• Nowadays with corporations coming and going more often people cannot rely on staying with one company and they find themselves wondering what's next. • It is much harder to organize unions with the frequency of turnovers and job changes in today's High Velocity market.

PAYNE v. WESTERN & ATLANTIC RAILROAD (1884)

• Payne was the first case to announce the at-will discharge rule where the Employer/Employee is free to fire or leave for good reason, bad reason, or no reason at all. Thus, there were no restrictions on mobility. • There is no equality of bargaining power under this model because everyone has an equal opportunity to bargain for what they want in the free market.

Low Velocity Labor Market

• People expected their careers to stay with the same company and advance in that company.

Employment Law:

• Refers to diverse both of state and federal law that regulates individual employment relations.

NLRB v. KENTUCKY RIVER COMMUNITY CARE (2001) • • In another nursing case, the Supreme Court interpreted the independent judgment requirement to deny the Board's tests that there is no supervisory status when employees exercise ordinary professional or technical judgment in directing less-skilled employees to deliver service in accordance with employer-specific standards.

• The NLRB ruled that professional judgment was categorically not, and different from independent judgment. • Supreme Court overruled this saying that professional judgment may be independent judgment depending on the circumstances. • The Board places the burden of proof on the party claiming the employee is a supervisor (this is usually the company).

INT'L PAPER CO. v. NLRB (1997) • FACTS: • The company argued that it implemented the permanent subcontract during the lockout solely for economic reasons and that its action did not support an inference of antiunion motive. • The court held that the company's implementation of the permanent subcontract while the lockout was in progress, but only after having fulfilled its bargaining obligations on the issue, produced too minimal an effect to place the company's conduct in the inherently destructive category. • Additionally, not only did the company's conduct have a comparatively slight impact on employee rights, but the company met its burden in showing that its implementation of the permanent subcontract was based on legitimate and substantial economic business reasons.

• The employer who wants to subcontract out work is not permanently prevented from doing so. Just has to seriously bargain. • If parties reach an impasse then employer can unilaterally bargain for subcontracting work. Even in a lockout situation the employer has a duty to bargain to an impasse before unilaterally engaging in subcontracting. • Nonetheless, even if International Paper has fulfilled bargaining duty isn't it still inherently disparaging to future bargaining efforts? Court here says there is only a slight impact on the bargaining of the union's future and the employer is not doing this as a punishment (they are doing this because it is cheaper). • So the employer is just getting the same work done more cheaply by subcontracting even though the work is only available because the employer has locked out the former employees. Employees should just understand this because it's not personal (Ct. says).

Constructive Concerted Activity and the Link to Individual-Based Rights

• The group-based model of federal labor law extends protection only to "concerted" activities of employees. • This means that individuals cannot seek protection if they act alone.

COLLINS v. CITY OF HARKER HEIGHTS: • Facts: Gov worker died because of government's failure to train, warn, or provide safety equipment.

• The worker was only denied Due Process under the 14th amendment if the city's failure to train reflects "deliberate indifference" to the constitutional rights of its inhabitants. • Due process clause does not obligate city to maintain minimal levels of safety and security. • May be an assumption of risk argument if worker is paid a higher wage for danger.

Judicial Assumption of Work - Individual:

• Voluntary Contract • Work for Wages • Wages includes Risk

INT'L UNION OF ELEC. RADIO & MACHINE v. NLRB (1961)• RULE: For a secondary boycott to be an unfair labor practice, its purpose must be to induce secondary Employees to engage in concerted conduct against their Employer in order to force him to refuse to deal with the struck Employer; if picketing incidentally induces such action of secondary Employees, the it is still lawful.

• Whether picketing at gate utilized exclusively by employees of independent contractors working on struck Employer's premises was unlawful would depend upon type of work performed by those using separate gate. • Union could picket gates used by employees, suppliers, and customers of struck employer, though it may not picket gates used by contractors performing tasks unconnected with normal operations of struck employer. • Mixed use of gate to struck employer's premises both by employees of independent contractors performing tasks unconnected with normal operation of struck employer and by employees of independent contractors performing conventional maintenance works as necessary to normal operation of struck employer would not bar picketing of such gate. • Strikers cannot strike the gate because only independent contracts doing work unrelated to the business go through the gate.