Labor Law

Election Process For Union Certification

(1) Formal Process for Election held by the NLRB (30% required for Board/51% for Board Election) (2) Voluntary Recognition (by employer), (3) Card-check agreement. (51% or more)

Wagner Act--National Labor Relations Act

(1935)(Responding to the troubles caused by the great depression) -- Guarantees the right of private sector employees to organize into unions, engaging in collective bargaining, and take collective action.

NLRB Personnell

- 5 Board members, general counsel, regional directors, administrative law judges - Board members appointed by the president to 5 year terms

Section 10 of the NLRA

- Judicial review is established, court enforcement of NLRB orders - (e) Board may petition U.S. Court of Appeals for Enforcement Review - (f) any person aggrieved by a final board order may petition a court of appeals for review - (J) The board has the power to petition Court for injunction, aka, temporary relief against any person, engaged in a ULP.

Regional Directors

- determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists, and to direct an election or take a secret ballot under subsection

Two Types of Remedies for ULP

1. Cease and Desist Order a. Narrow- enjoins the respondent in any like or relate manner from interfering with restraining or coercing employees in the exercise of rights under section 7 b. Broad- a. where respondent has engaged in conduct so egregious or so widespread as to demonstrate general disregard for the employees fundamental statutory rights.z Affirmative Order - Requires the recipient of order to take tangible steps.

Three Types of Union Security Clause(s)

1. Closed Shop The employer can only hire workers from a specific union in order to remain employed. Section 8(a)(3). Illegal. 2. Agency Shop Union membership is optional. ER may hire union and non-union workers, joining U is not a condition of employment. Non-union workers must pay a fee to cover collective bargaining costs ("agency fee") 3. Union Shop ER may hire non-union EE's. However Employees must join union with XX days of employment.

Two types of arbitration and (their definition)

1. Grievance arbitration a. Parties present a dispute involving the terms of an existing CBA. b. Arbitrators role is to decide the dispute by applying the terms of the agreement 2. Interest arbitration a. Used to resolve an impasse or deadlock over the formation of the CBA or a provision in the CBA. The parties ask the arbitrator to settle the differences that lead to the impasse

Process of Filing a ULP

1. Must File A Charge 2. Investigation (regional office investigates and recommends to regional director as to whether there is reasonable cause) 3. Complaint and Answer before the ALJ 4. ALJ Decision & Recommended Order 5. Exceptions

Taft-Hartley Act

1947)(Restricting the power of unions) - Congress limited the "bad practices" of the union, including secondary boycotts, jurisdictional strikes over work assignments, and strikes to fore an employer to discharge an employee on account of union affiliation. - § 301 makes collective bargaining agreements enforceable in federal district court

Landrum-Griffin Act

1959)(Responding to corruption within the unions) - Prevents discrimination within unions, requires financial disclosures for union organizations

9(e) of the NLRA

30% of the board starts an election No election permitted 1 year after certification

Boys Market Injunction

A boys market injunction may be entered when: 1. Underlying dispute is the subject of mandatory arbitration; 2. A strike is in violation of the CBA. Court orders the parties to stop striking 3. Court must ascertain whether injunctive relief is warranted.

Section 8 (b) of the NLRA

A law that makes it an unfair labor practice for a labor union to interfere with, coerce, or threaten employees in exercising their statutory right to form and join unions. - (2) Discriminate in regards to union membership - (3) refuse to bargain with employer - (4) engaging in a strike based upon o Required labor agreements prohibited under 8(e) o Secondary strikes o Negotiating when certification of another union is complete

Successor (Business)

A person obligated to bargain with the predecessor union under the following conditions: (1) there is substantial continuity between the business enterprises and (2) the putative successor hires a subsantial and representative compliment of employees

® Contract between labor & company requires a terminated employee to be fired with "Just Cause" ® After an employee tested positive for Marijuana, arbitrator found no just cause and suspended the employee. ® Employer sued in federal court finding that the award contravened public policy.

Eastern Associated Coal v. United Mine Workers, 531 U.S. 57 (2000) (Just Cause) - Supreme Court considered whether an arbitration award could be held enforceable on public policy grounds if the award asserts a general principle incorrectly. · An arbitration award can be held invalid on public policy grounds if the public policy must be explicit, dominant, and well-defined and refer to positive law, not just general public concerns.

® Airline reorganizes after a bankruptcy, cuts pilot salary in half. Strike ensues. ® Union, ALPA, agrees to end strike if Continental relocates some bid positions. Pilots who retained individual claims were eligible for positions after those who settled. ® Individual pilots sue alleging that the ALPA violated its duty of fair representation, accepting less than the best deal it could.

Airline Pilots Assn. v. O'Neil, 499 U.S. 65 (1991) Supreme Court considered whether a union breaches its duty of fair representation given these facts? · Court concludes that the union must (1) serve all members interest with hostility or discrimination, (2) exercise discretion with complete honesty and good faith, and (3) avoid acting arbitrarily a union satisfies its duty of fair representation is whether the union acted in a reasonable good faith manner when processing the grievance. Union here acted in accordance with that standard given the labor climate. Even if it was not a great deal, the union tried to resolve the vacancies.

NLRA 14(b)

Allows states to adopt Right To Work statutes which make unino security clauses in CBA's illegal.

AHA challenges the facial validity of a rule that requires eight, and only eight defined employee units as appropriate for collective bargaining. AHA argues that Section 9(b) requires the NLRB to make a determination "in each case;" therefore the standard rule the rule requiring eight is (1) invalid (2) against congressional admonition, and (3) arbitrary and capricious.

American Hospital Ass'n v. NLRB, 499 U.S. 606 (1991) · The phrase "in each case" should be read in the context of the statute as a whole. Congress chose to give the Board "discretion in every disputed case." · (H) The statutory construction petitioner advances (limiting the board) is not valid. The legislative history "is best understood as a form of notice to the Board to give appropriate consideration to proliferation. and the board is granted congressional power to change its views based upon reasoned analysis.

Blocking Charge Rule

An NLRB election is barred because an unfair labor practice charge affecting the proposed bargaining unit is pending.

9(d) of the NLRA

An enforcement proceeding or investigation by the board should be included by the transcript.

Ally Doctrine

An exception to the secondary boycott rule. When a neutral employer performs the work that was performed by the striking employee, it becomes an "ally" and may be subject to lawful picketing.

Interboro Doctrine

An individual's assertion of a right grounded in a CBA is recognized as a "concerted activity and therefore accorded the protection of NLRA

Reverse Boys Market Injunction

Applies when the Union believes that Employer is about to take an action that violates the CBA—U asks the court toenjoin the employer from taking that action and instead arbitrating the dispute, this allows the court to issue an injunction to preserve the status quo. Court will review three key things including (1) whether the dispute is the subject of a mandatory arbitration, (2) whether an injunction is necessary to prevent the arbitration from becoming a "hollow informality" or "meaningless ritual."

Voluntary Recognition Bar

Bar that prevents a union-representation election for a reasonable period of time after an employer has voluntarily recognized a union as the representative for a bargaining unit.

Section 9(c) of the NLRA

Board must conduct petitions into matters affecting interstate commerce: - same standards used whether union or employer files action - no election within the prior 12 month period allowed -size of unit is not allowed to be a consideration

® Two mining companies run separate organizations, only interlapping to process coal. Separate management, locations, operations, employees etc. ® One agrees on a CBA with its employees; other is unable to do the same. One asks it's to strike in support of the others efforts. ® Companies file for ULP against the union claiming they violated the NLRA's provision against strikes towards neutral employers. ® District Court and NLRB find that the parties are not neutral because they have a common ownership and interrelated operations.

Boich Mining Company v. NLRB, 955 F.2d 431 (1992) · Court concludes that otherwise neutral employers lose protection if they become allied with the primary employer. · Four criteria (1) common ownership, (2) common management, (3) centralized control over labor relations, and (4) interrelated operations control whether an entity is common or not. Not all four required. · Here, the unions efforts to interrelate the two separate companies is not proper. · Ally Doctrine: If the parties work together in way that is overwhelmingly similar, then a strike against one of the parties is NOT secondary status; instead it becomes a strike against multiple parties.

® Postal employee involved in altercation with an employee, where he's ultimately fired. ® He files a grievance with the local office, but national union—without cause—failed to take action. ® After the Court determined that Union breached their duty of fair representation, the question became whether Union could be held liable for all damages

Bowen v. UPS, 459 U.S. 212 (1983) (parties are liable for the percentage of their harm) · Supreme Court considered whether Union should be liable for damages the include the employers damages when it breached its duty of fair representation. · Court concludes that the Vaca case finds that apportionment of damages is appropriate because the union failed in their duty.

® Contract between labor & company requires arbitration as the method of settling bargained dispute between parties. ® Union begins a strike and picket against the employer. The company files for injunctive relief in the State Courts. ® Case removed to federal courts where Supreme Court considered:

Boys Market Inc. v. Retail Clerks Union, Local 770 398 U.S. 235 (1970) (

® A union certification election is held. A week later the union votes to decertify its election. ® The employer refuses to negotiate with the bargaining unit. Refuses to negotiate because that the unit is without power to negotiate.

Brooks v. NLRB, 348 U.S. 96 (1954) · Employers may not refuse to bargain with a duly certified union, even if the election certification has been denied. · The bargaining unit is bound, after certification to hold to its standing for at least a year before it can change its composition.

® A California statue prohibits employers from using state funds to promote or oppose unions. ® California organizations, including chamber of commerce, seek to enjoin enforcement of the act.

Chamber of Commerce v. Brown, 554 U.S. 60 (2008) · Courts holds the NLRA preempts state laws that restrict employer spending on state funds related to union advocacy. Restrictions on spending are akin to speech restrictions.

A company, in dispute with Union drivers. Dry-cleaning company authorizes a multiemployer unit to engage in collective bargaining with the Union. "The impasse" between Union and employer included with method of compensation: hourly or by commission. Employer withdraws from the Association and hires replacements for striking drivers. Union filed the present action alleging the Employers withdrawal constitutes an unfair labor practice.

Charles D. Bonanno Linen Service, Inc., v. NLRB, 454 U.S. 404 (1982) · Withdrawals once an agreement is established is only permitted by "mutual consent" or an "unusual circumstance." NLRB is empowered to make this factual determination. · (H) Refusal of NLRB to accept an impasse, standing alone, as unusual circumstance warranting withdrawal of employer from multiemployer bargaining unit not arbitrary and contrary to law. NLRA § 8(a)(1,5)

® Union negotiated a CBA with an employer which required nonunion employees to pay dues. ® Non-union employees sued, alleging that they should not have to pay fees to cover the union's expenditures on items unrelated to collective bargaining, including political lobbying, social events, organizing of another company's employees.

Communication Workers of America v. Beck, 487 U.S. 735 (1988)(employers must discuss the amount of dues that will be taken out from the unions) · Supreme Court considered whether a nonunion employee, under the terms of a union security clause, may be required to pay only union fees germane to the CBA · Court concludes that non-union employees may be compelled to pay for union membership because all members benefit from the membership under §8 (a)(3) of the NLRA. Beck right is about the notification. · Court imported the interpretation of the Railway Labor Act into the NLRA. Court held that paying for a portion of the magazine devoted to political issues was not; dues should be pro-rated. · Employees may not be compelled to pay lobbying, social events, or other organizational activity.

Arbitration Deferral Doctrine

Courts should defer to arbitrators decisions in the interpretation of any CBA agreement

Hospital Jail Kitchen employee, Wanda Pollard, is fired. Catalyst is a meeting where COO asked employees to serve as ambassadors and marketers for hospital. COO alleges she (1) demonstrated non-support, stating a preference for working for the County over Elko; (2) dismissed an employee meeting without COO's authority; and (3) demonstrated non-support through comments about how she would not use the Hospital services due to her husband's bad experience.

Elko General Hospital, 347 N.L.R.B. No. 1425 (2006) · Although Section 8(a)(1) protects certain employee activity, if the employer can demonstrate it would have taken the same action without regard to the activity, then the action is protected. · (H) Elko could fire Pollard because the insubordination claims were grounds for lawful discharge.

Duties of Employer & Employee

Employer -- Pay reasonable wages & benefits, provide job security, provide safe work environment, participate in a fair process for resolving dispute. Employee - - Attend work regularly, obey reasonable work rules, produce reasonable work quality

Interest of Employer & Employee

Employer Interest - Maximize profits, productivity and efficiency, employment at will, unregulated labor standards, unilateral decision making Employee Interest - Stability in employment, money, time away from work.

Section 8(a) of the NLRA

Employer based restrictions on activities - (1) ULP on employer to interfere with rights protected under section 7 - (2) interfere with formation of union or financial support - (3) discriminate in regards to employment or hiring

® Dispute arose when Black employees of the company alleged racial discrimination by the company in hiring. ® Individuals attempted to bargain with the company—outside of with their elected union representatives. They were terminated for their actions.

Emporium Capwell Co., 420 U.S. 50 (1975) · Despite non-discriminatory priority in employment, NLRA does not protect concerted activity by minority employees to bargain with their employers outside the collective agreement.

® A union is in a labor dispute with the owners of a shopping mall about the distribution of leaflets to mall shoppers. ® Leaflets advocated for economic retaliation against third-party mall companies until the mall owners used only union labor on building a store within the mall. ® Mall Owners file a ULP against the union, alleging that the union threatened or coerced people engaged in commerce with the goal of deterring them from doing business. ® NLRB found in favor of Mall owner interpreting the original language. Appeals Court concluded that the handbilling constituted consumer publicity rather than secondary picketing; therefore, it was no coercive under § 8(b)(4)

DeBartolo Corp. v Florida Gulf Coast Bldg. & Construction, 485 U.S. 568 (1988) · Supreme Court considered whether it would defer to a federal agency's interpretation of a federal statute if the interpretation may conflict with the Constitution. · Court concludes that the agencies interpretation of the handbill would violate the 1st amendment. · The Court concludes that § 8(b)(4) of the NLRA does not prohibit the peaceful distribution of handbills within its ban on threatening or coercive activities.

Section 11 of the NLRA

Investigatory Powers. The Board and its subsidiaries have access to power to produce evidence, copy such evidence May seek aid of the district courts in compelling production of evidence. Fees paid to witnesses are the same as in the Federal Courts

Section 2 of the NLRA

Defines terms used in the act: employer, employee; supervisor - Employer excludes the United States, Federal Reserve Bank, Subjects of the Railway Labor Act, or Labor organizations.- Employee does not include agricultural laborer, domestic servants, individual employed by parents or spouse, independent contractor

® Company uses aptitude test in the hiring process, promising applicants it would keep scores confidential. ® Union files a grievance and demands for the production of test information. Company defends need for non-disclosure of test, citing to expense & efficacy of the assessments.

Detroit Edison v. NLRB, 440 U.S. 301 (1979)(Secret info doesn't have to be shared.) · Supreme Court considered whether an employer's duty to disclose information to the union requires unconditional disclosure of information kept confidential for legitimate reasons. · Court concludes that the company complies with § 8 by agreeing to produce information only if all applicants consented. Company reasons were legitimate. TF, the NLRB may not compel disclosure of test results.

company has 39 drivers that own their own trucking delivery companies. Question is whether these individuals are subject NLRA as employees or independent contractors

Dial-A-Mattress, 326 N.L.R.B. No. 884 (1998) · NLRB classifies these drivers as independent contractors based upon a range of factors including: paid solely for deliveries, no guaranteed minimum compensation, may decline orders without penalty, maintain their own company uniforms, hire their own employees. · Most important equipment, the truck, is operated solely by the independent contractors. Dissenting Opinion · Looking at the same facts, the dissent finds that several factors militate in favor of classification as employees; first, includes the incentive for employers to mis-classify contractors. · Dial prepares the route for each-owner operator; failure to meet Dial's demands results in sanctions; cannot work for competitors in the same region.

NLRA 8(b)(4)

It shall be an unlawful labor practice for an organization or its agents to "engage in, induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in a strike. . ."[secondary boycott prohibition]

Non-employee Union organizers, after trying to contact employees through a full-page advertisement, enter a parking lot to pass out handbills and leaflets. Employer restricts this practice. NLRB upheld a ruling against the employer; Company required to cease and desist.

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) · A prohibition of solicitation by non-employee members on employee parking lot is not an "unfair restraint" within the meaning of the NLRA. · Where "reasonable alternative means of access exist, NLRA does not authorize trespass onto employee property by non-employee Union organizers."

® General contractor for a shopping mall in Texas hires a subcontractor, who is non-union employer. ® Union begins to picket at the gate used by the non-union employers. Picketing occurs at the primary site, shopping mall, but against the non-union employer. ® Lower Court holds that the non-union employers use of the gates for delivery made it permissible to picket at that site.

Linbeck Construction Corp. v. NLRB, 550 F.2d 311 (5th Cir. 1977) · Appeals Court considered whether picketing of primary employer at location of secondary employer when the primary employer takes deliveries owned by the secondary employee · Court concludes that picketing at a secondary employers location at anytime is not a ULP when the site is one where the primary employee takes deliveries, and the primary employee has not been consistent with when employer will/will not be present.

® The union obtained employee authorization cards and demands collective bargaining representation status. ® . Union doubts majority status and refuses to bargain with union. Suggest to union a petition the Board for an election

Linden Lumber Div., Summer & Co., v. NLRB, 419 U.S. 301 (1974) - An employer may reject a union's claim to majority status. - Although employer rejected the election, union must file for the election.

® An employee is fired for filing a worker's compensation claim. Vindicated in arbitration. Then sues, under state law, alleging retaliatory discharge. ® Employer alleges that the state law claim is preempted by a federal act: the LMRA

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988) · Court held that a state tort claim (retaliatory discharge) is not preeempted by the LMRA if the claim does not involve interpretation of the CBA.

® GE operated a plant with over 1,000 employees in an industrial park accessed by designated gates. ® GE reserved one gate for contractors only, but it too was subject to picketing. Contractors subsequently would not use the gate for work. ® NLRB held that picketing the gate was an unlawful secondary activity intended to induce subcontractors not to do business with GE. Appeals Court affirms.

Local 761, IBEW v. NLRB, 366 U.S. 667 (1961) · Building on Moore Dry Dock, this Court finds that the activities here need to be clarified as to their purpose. If the contractors use the gate for necessary operations normal for operations, then they must not be impeded. · By contrast, if the employees are simply picketing to make secondary employees merely respect their picketing (and not collaborate) then such picketing is permissible. · An employer may lawfully prohibit picketing at a separate gate used only by contractors whose work does not relate to curtail operations.

Contract Bar Doctrine

Doctrine under which the NLRB will not permit an election in the bargaining unit covered by a contract until the contract expires, up to a maximum of three years.

A company reincorporated after a re-organization. Engages in negotiations with former employer but the employer fails to bargain

Fall River Dyeing 7 Finishing Corp. v. NLRB 482 U.S. 27 (1987) (successive employer obligations to bargain · Supreme Court held that a successor employer must bargain with the union that previously represented the majority of its workers if the business shows (1) substantial continuity and (2) representative complement of workers · Substantial Continuity Includes Considering: i. Whether the business of both employers is essentially the same ii. Whether the employees of the new company are doing the same jobs in the same work under the same supervisors; and iii. Whether the new entity has the same production processes, produces the same product to the same customers

® A maintenance union for paper products, which had been in relations with a company for 20 years, announced plans to renegotiate the CBA. Company decided to terminate relationship concluding that hiring temporary contract workers was more affordable. ® Union picketed and filed charges with the NLRB alleging the company's failure to negotiate with the Union was a ULP. ® NLRB finds that the company's motivation was economics, rather than anti-union motives. However, the failure to negotiate was a ULP so the workers needed to be reinstated with backpay. Appeals ensue.

Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964) · Supreme Court considered whether an employer must bargain with a union before contracting our work done by represented employees. · Court concludes that NLRA language requiring "conferring in good faith with respect to wages, hours etc. . ." precludes an employer from terminating a contract w/ union without negotiations. · In this case, the decision to contract out maintenance work did not significantly alter the company's management. Thus, requiring the company to negiate with the union would not significantly abridge the company's freedom to manage its own business. · Prior cases establish that Congress intended to provide unions with, at least, the opportunity to address managements complaints through negotiations. Thus, backpay to union is so ordered.

® Employees allegedly accused of dishonesty in seeking reimbursements for money spent overnight trips. ® Employees are eventually convicted, but the employees point out that with minimal investigation, the union could have discovered that the charges were not grounded in truth. ® Individual drivers sue both the employer and unions alleging wrongful discharge.

Hines v. Anchor Motor Freight, 424 U.S. 554 (1976) · Supreme Court considered whether a suit against an employer by employees asserting breach of collective-bargaining contract was properly dismissed where the breach of duty of fair representation has withstood summary judgment. · Court concludes that the a lawsuit against a union should proceed where there is evidence the union breached the duty of fair representation by failing to conduct their duties. · Union here is subject to the duty of good faith and honesty of purpose. When it violates that duty, the employer may not insist on resolving grievances through § 301 labor agreements.

® The defendant hires Castro to operate machinery in his plant. Subsequently the owner fires the employer. Circumstances appear to involve known support of the union. ® NLRB determines that the employee is fired in violation of the NLRA; orders reinstatement and backpay. ® When determining the amount of backpay at a hearing, Castro admitted that he fraudulently obtained documents and was not eligible to work in the U.S.

Hoffman Plastics Compounds v NLRB, 535 U.S. 137 (2002) Case Purpose/Holding: · Supreme Court considers whether back pay can be awarded to aliens not authorized to work in the U.S. · Finds backpay is impermissible because Board may not issue because NLRB awards must not conflict with immigration law. · It is unlawful for employer to hire an undocumented laborers. So no award may give effect to the illegality of such a contract. Board is unable to grant awards beyond its discretion.

A harassment complaint was filed. Employee sought to have representation at the hearing with the company. But there is no union at this company

IBM Corp., 341 NLRB 1288 (2004) · (H) Coworkers do not represent the interest of the entire work force. Therefore, they are not—as a right—required to be present at disciplinary proceedings. · The Board should have the power to adapt to the changing patterns of industrial life. · Weingartern only applicable to employees represented by a 9(a) bargaining representative.

® Debates over workdays and whether 7.5 or 8 hour workdsays. ® Complaint filed with state of Wisconsin, but motion to dismiss based upon an issue of whether the NLRA protected refusals to work overtime

Internal Association of Machinist v. Wisconsin 427 U.S. 132 (1976) Permissive Preemption · considered whether NLRB or states would regulate conduct explicitly mentioned in the act. · Courts held that the crucial preemption inquiry is whether state regulation would frustrate the effective implementation of NLRA purposes. - The State adjudication here would interfere with the Federal statutory scheme, thus not allowed.

® Railway unions require carries employment based upon union dues and fees. ® Certain employees object to a political agenda unions fund to promote certain agendas; sue on first amendment grounds.

International Assn of Machinists v. Street, 367 U.S. 740 (1961) · Supreme Court considered whether pro-shop laws, which require union support, allow unions to spend funds on political purposes that the employees oppose. · Court concludes that Constitutional considerations prevail. Unions are not empowered to use exacted funds to support political organizations the employee opposes. · In this case, an injunction against the political activities or expressions would infringe upon the unions rights. TF, union may prohibit use of funds from employees who make their objections known.

Three Subjects of Bargaining

Mandatory: (wages, hours of employment, other conditions) Permissive: (awful subject not related to wage, hours or conditions) Illegal: No duty to bargain over illegal conduct

® Union enters into a labor agreement with a production company that requires all performers to obtain a Union membership within 30 days. ® Plaintiff lands a one line role in a production, had to pay $500 dollars before production started. ® Union originally required her to pay the dues before hand. Afterwards, she filed suit alleging that Union breached its duty of fair representation.

Marquez v. SAG, 525 US 33 (1988) · Supreme Court considered whether the security clause, which tracked the language of the NLRA perfectly, violates the duty of fair representation. · Court concludes "membership" under § 8 (a)(3) of the NLRA requires paying dues. · Court considered duty of fair representation requires inquiring whether conduct is (1) arbitrary, (2) discriminatory, or (3) in bad faith. · Court found that SAG applying the direct statutory language from 8 (a)(3) in their conract could not be interpreted as arbitrary, discriminiatory, or in bad faith.

® NLRB certifies a union to represent employees of Company. Parties enter into negotiations about the terms of employment, but appear unable to come to terms. ® Company only agrees to marginal concessions like paid leave of absence. Refuses to give union any say on subjects like safety, overtime, transfer, procedures. ® Appears to be engaged in "surface level bargaining."

NLRB v. A-1 King Size Sandwich, 732 F.2d 872 (11th Cir. 1984)(explores terms of bargaining). · Supreme Court considers whether a company engaged in "surface bargaining" violates the duty to bargain in good faith under the NLRA. · Court finds that Section 8 of the act requiring the parties to bargain is essential to the statutory scheme and requires more than nonproductive discussions about union and management differences. · Surface level bargaining is determined by the board, but may be found by considering the offer by the employees. If the offer is not beyond what is already a greed to, such limited terms. · Here, the company is not operating in good faith when it rejected employees offers with unworkable, unreasonable, harsh terms of employment.

® Dispute arose when a truck driver refused to enter his truck because of his reasonable belief that the truck was unsafe. ® Driver fired for his actions. Then, he sought refuge behind the NLRA—arguing that his unilateral action was an "concerted activity" under the NLRA.

NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984) · (H) Employers need not work together in order for their actions to be concerted.

® A general contractor used a nonunion electrical subcontractor for an otherwise nonunion jobsite. ® The Union successfully effectuated a strike on that jobsite and succeeded in coercing the contractor to order the subcontractor off the job, terminating the contract. ® The subcontractor filed charges with the NLRB, claiming the union induced an unlawful strike to force the general contractor to cease doing business with it. ® NLRB found union engaged in prohibited secondary boycott and entered a cease-and-desist order. But appellate court found boycott primary and refused enforcement

NLRB v. Denver Bldg. & Construction Trades Council, 341 U.S. 675 (1951) · Supreme Court considered whether labor organizations may picket or strike with an object of inducing a secondary boycott · Court concludes that a srike (as opposed to picket) of a secondary employer is a ULP. · Court explains that if the general contractor itself had hired the nonunion workers, the dispute would not have involved a secondary employer. But here, the pursuit of an all-union jobsite required an intent to force the subcontractor, not the general contractor—the subject of the long running dispute—to change its practices.

® During a strike, company. promised replacement workers and strikers who returned to work superseniority. Specifically, the company agreed to add 20 years to each employee's actual service for future layoff and recall purposes. ® After the strike, the company laid of reinstated workers who did not have superseniority status. Union files ULP. ® Company counters that it lowered the plants numbers because of business necessity, rather than antiunion discrimination. NLRB finds that the plan necessarily violates the Act.

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) · Supreme Court considered whether an offer of superseniority to end a strike necessarily violates federal labor laws, even if the offer is motivated out of business necessity. · Court concludes offering superseniority to end a strike necessarily violates federal labor laws. · An employer need not have specific intent to commit a ULP in order to violate the § 8 of the NLRA. · Courts will typically weigh employees interest in concerted activity against the employer's intrest in running a business a particular way. Here, the cost-benefit analysis found an inherently discriminatory policy. TF, Court concludes Erie Reistor's Corp's actions are a ULP.

® 1959 a company is unable to come to terms with International Union of Electrical Radio and Machine Workers. Workers strike. ® During a Strike, company Defendant promised replacement workers and strikers 20 years of seniority in their plant. Same offer is made to employees involved in strike for the purpose of inducing strike's end. o 23 workers return after 4 days. o 87 total workers at the end of first week; 125 the end of the following week. Union then caves. ® Strike ends. Then company laid off those employees who did not break the strike. Company having legitimately hard time and needed to layoff employees. Union filed charges claiming the superseniority plan and layoffs violated the NLRA. ® NLRB found the company violated the act, even if it acted without discriminatory intent. Claim of business necessity is insufficient.

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) · Court holds that offering workers superseniority status to end a strike necessarily violates federal labor law. Even if the offer is made out of business necessity. · An employer is understood to have intended the foreseeable consequences of inherently discriminatory actions. · The Strike is a legitimate interest. · Courts typically should weigh employees interest in the concerted activity against the employer's interest in running a business in a particular manner. · In this case, the actions of the company were discriminatory and therefore the NLRB's decision is affirmed. These actions are discriminatory.

Company is openly hostile towards Union membership. Company confers additional benefits to employees in advance of a union vote; benefits included increased holiday wages, new vacation schedule.

NLRB v. Exchange Parts Co., 375 U.S. 405 (1964) · Broad purpose of 8(a)(1) is to establish the right of employees to organize for mutual aid without interference. · This includes "conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon the freedom of choice. · (H) Confering economic benefits on employees while representation election is pending for the purpose of inducing a negative result is an unfair labor practice within the meaning of Section 8(a)(1)

® A Union calls a strike against companies that sell Washington State Apples. ® In support of the Strike, union pickets Seattle Safeway (grocery) stores that carry the apples. ® *important* Union sends letter explaining the terms of the dispute and forbids the union employees from attempting to not patronize Safeway. Only slect fruit companies are targeted.

NLRB v. Fruit and Vegetable Packers, Local 760, 377 U.S. 58 (1964) · Court concludes that the picketing is not coercive. When a union is picketing a struck product, their free speech rights would be violated if they were not permitted to discuss terms of the boycott.

Employers refused to bargain on the grounds that the authorization cards were inherently unreliable indicators of employee desires. Union files an unfair labor practice charges against employers alleging violations of 8(a)(5) for coercion and intimidation of employees. It is worth noting that employers explained that plant closures were likely if the workers unionized.

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (Bargaining Orders Issued) Two holdings: (1) Employee could not refuse to bargain with union absent a "bona-fide-dispute" as to the employee's election cards. (Even though NLRB process is preferable (2) The Employer may state his opinion as to the future of the plant, so long as such an opinion is not a threat. 1st amendment protects employers' speech.

® Company entered into a CBA requiring it to pay employees vacation benefits to the Friday nearest July 1st of each year. ® Employees strike on dispute from May 16 to December 26 1963. Employees demand ® Employer refused to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement

NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) · Court holds that offering workers superseniority status to end a strike necessarily violates federal labor law. Even if the offer is made out of business necessity. · An employer is understood to have intended the foreseeable consequences of inherently discriminatory actions. · Courts typically should weigh employees interest in the concerted activity against the employer's interest in running a business in a particular manner. · In this case, the actions of the company were discriminatory and therefore the NLRB's decision is affirmed. These actions are discriminatory.

® During a strike between employees & Company, strikers demanded their accrued vacation pay. ® Company originally balks, but then declares that it will honor its contractual obligations of paying vacation only to those employees who reported to work on July 1. Employees who remained on strike were not paid vacation pay. Union files ULP based upon a "discrimination" allegation

NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) · Court concludes that adversely affecting an employees rights (Section 8) violates labor laws, unless the employer shows a clear legitimate business reason. · Controlling principles: (1) conduct that inherently destroys an important employee right violates Section 8, even if there is a business reason for the injury. (2) if the discriminatory conduct is relatively slight and the employer offers a legitimate business reason, then the union must prove that antiunionism motivated the conduct.

® An union warns that It will harass company unless the parties reached an agreement before the present contract expired. ® Rather than soliciting new business, the agents engaged in sit ins, picketing, and leafleting at the Insurance companies home office. ® Company files charges alleging that the union failed to negotiate in good faith, even though the union agreed to a new contract in the interim. ® NLRB concluded that economic harassment tactics demonstrated a lack of good faith bargaining as a matter of law. Appeal proceeded.

NLRB v. Insurance Agents International Union, 361 U.S. 477 (1960) · Supreme Court considered whether economic pressure tactics show a failure to collectively bargain in good faith. · Court concludes using economic pressures—including sit-ins, pickets, and leafletting—are consistent with good faith collective bargaining.

During a strike against their employer, television station employees disparaged their employer "launching a vitriolic attack on the quality of the company's television broadcasts." Company discharged employees for cause.

NLRB v. Intern. Broth. Of Elec. Workers, 346 U.S. 464 (1953) Jefferson Standard · Congress safeguarded certain "concerted activities for the purpose of collective bargaining" within Section 7 of the Taft-Hartley Act. However, employees may not take pains to disparage their employer. Insubordination, disobedience, or disloyalty are adequate cause for discharge. · The actions taken by the employers during the demonstration would have been cause for disciplinary charge under 10(c) of the Act which gives employers power to take adverse actions against employee.

® A union and Steele products company enter into negotiations about an upcoming CBA. ® During negotiations, the company unilaterally adopts three new policies affecting wage increases and sick leave without reaching an agreement. (company engages in merit based raises, reduced paid sick-leave days, and adopted an automatic wage increase proposal) ® Union filed a ULP. Company claimed that unilateral actions were not a ULP because they were engaged in negotiations.

NLRB v. Katz, 369 U.S. 736 (1962) · Supreme Court considered whether unilateral changes to a term or condition of employment violated the employer's duty to negotiate in good faith. · Court concludes unilateral changes in a term or condition of employment violate the employers duty to negotiate in good faith, subject to section 8(a). · Typically, bad faith negotiations are characterized by a refusal to bargain. Here, this is not the case. Nevertheless, the unilateral changes are subject to the same protections involved in bad faith causes where the parties refuse to negotiate.

A hospital labor union forms. Seeks to include nurses, but the hospital objects to the inclusion of the nurses because they are "supervisors" under Section 2 of the NLRA.

NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001) Under § 2 of the National Labor Relations Act, individuals are supervisors if they have responsibility to direct employees using independent judgment in the interest of the employer. Thus, an individual may be a statutory supervisor even if any independent judgment he or she exercises in directing employees coincides with professional or technical judgment the individual would ordinarily exercise in performing the task.

® Workers in San Francisco go on strike over protracted negotiations between the company and the union. ® Company brought in "scabs." But these are employees from other locations. They are promised permanent opportunities if those workers decided to stay after the strike. Company sets policy holding positions for transfer "scabs." But it fills the rest of the employees based upon who had played the most active roles in the union and the strike. So the most active employees were kept out of employment. ® Union filed ULP, claiming the company discriminated against the workers based upon their union activities. NLRB ordered reinstatement & backpay. Appeals ensued.

NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333 (1938) (two part remedy: reinstatement & cease and desist) · Supreme Court considered whether employers may permanently replace striking workers AND discriminate in deciding which returning employees retain their positions after the strike ends. · Court concludes that the employer may not discriminate on which employees are offered positions after a strike based upon their participation in the union . . · The Court found that strikers were "employees" under the NLRA and thus subject to antidiscrimination protections.

® A company distributes special merchandise for supermarket chains. A union, serving their drivers, calls for strike against the company. ® In addition to the strike, the union asked the supermarket managers to discontinue handling companies merchandise. They also warned they would distribute handbills asking public not to by named items in the store if the managers did not cooperate. ® Company files complaint with the NRA alleging union violated the NLRA. Alleges a secondary strike and conduct that "threatens, coerces, or restrains" ® NLRB found no ULP occurred because (1) supermarket manages authorized to decide whether to continue doing business and (2) threats to handbill are not "threats, coercion or restraints" under the meaning of this clause.

NLRB v. Servette Inc., 377 U.S. 46 (1964) · Supreme Court considered whether a union's warning to distribute handbills in front of stores that hand the struck (primary) employer's goods are "threats, coerceion, or restraint" under the meaning of the NLRA · Court concludes that the request of managers to stop serving Servette was a request within managerial discretion NOT a request to strike or refuse to handle goods. (which would be illegal under §8) · Court further decides the condition Severette offered of handbilling in front of stores is not "threat, coerceion, or restraint" with the NLRA.

® Company and Union engaged in collective bargaining. Company argues that it cannot afford to increase it's wages by more than $ .10, and union asks to see the books. ® Company refuses to provide the books so the union could decide on whether to press the company for wage increases.

NLRB v. Truitt, 351 U.S. 149 (1956) · Supreme Court considers whether an employer's failure to substantiate its bargaining position supports a finding that the employer violated its duty to bargain in good faith. · The Court reasons that the NLRA requires an employer to bargain in good faith. TF, a refusal to provide financial documentation in support of a claimed inability to pay is a ground the board may consider. · Unduly burdensome disclosures are not required. But reasonable proof is required.

Insurance company, using ~3,000 debit agents, defines those agents as independent contracts, not subject to the provisions of the NLRA

NLRB v. United Insurance (1968) Classification of employee v. independent contractor is a mixed question of law and fact which relies upon a review of a series of factors: training, independence, discipline, requirement to follow guidelines, payment. NLRB may make this determination, as they will.

A company with a history of displeasure with Union, announces at a meeting "appealing to the employees to bargain with the Company directly." Company reads identical speeches which advocate for the creation of an 'inside' organization. CIO, the opposite organization, is threatened, harassed by employee management. Employer takes actions that were not confirmed as related: discharges two employees who fail to join Independent. Also fires another employee fro membership in an outside Union. NLRB concludes that the actions are "unfair labor practices" within the meaning of 8(1)-(3).

NLRB v. Virginia Electric and Power Co., 314 U.S. 469 (1941) · NLRB's findings that the acts and speeches on May 24 interefere with the 1st Amendment. Certain conduct "though evidenced in part by speech, may amount in connection with other circumstances to coercion within the meaning of the Act." · NLRB should consider the entirety of the complex of activities in making its decision on whether an action is within the meaning of section 8(1)-(3). · (H) The use of speeches alone might be problematic, but taken together with other activities, seem to be a valid exercise.

Factory employees discharged for leaving work without permission when shop was too cold to work in. NLRB ordered reinstatement, back pay. COA reversed finding that the employees did not afford the company 'opportunity to avoid the work stoppage by granting a concession to a demand.'

NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) · Employees need not necessarily allege a specific demand to engage in a "concerted activity." · Even though employees had not alleged a specific demand, their general grievances about the working conditions is sufficient to establish a 'labor dispute' within the terms of section 2(9)[1] of the act. [1] Dispute is "any controversy concerning terms, tenure or conditions of employment."

Dispute concerned the loss prevention of a retail chain store, which interviewed an employee to determine loss prevention records. Store interviewed employee outside of the presence of labor representatives and "asked Collins not to discuss the matter with anyone."

NLRB v. Weingarten, Inc., 420 U.S. 822 (1984) · (H) An employee has the right to Union representatives in a meeting which the employee reasonably believes may result in disciplinary action. It is an ULP and violation of Section 8(a)(1) of the NLRA when they deny the request for presence of an union rep in a disciplinary proceeding.

Recognition Bar

NLRB will not permit an election in the bargaining unit where the employer voluntarily recognizes union.

Section 9(c)(3)

No election will be directed in a bargaining unit where a valid election has been held during the prior 12-month period.

Surface Bargaining

Non-producitve discussions about union and managment, Court held these violate the duty of employers to uphold the act.

certification-year bar

One of the bars to union representation elections. The National Labor Relations Board (NLRB) will not order an election for at least one year after certifying a bargaining representative.

® Defendant) refused to hire workers solely because they belonged to a Union. ® Complaint filed against employer in violation of NLRA discrimination provisions. ® NLRB requires hiring of employees+backpay to fill time where the employees were not employed.

Phelps Dodge Corp v NLRB, 313 U.S. 177 (1941) · Court holds that remedies for discriminatory hiring include ordering backpay. · Under Section ten of the Act, "discrimination in regards to hiring" is prohibited. The act should be interpreted in terms of its remedial purpose. · The board is empowered to "take such affirmative actions. . . to effectuate the policies of this act." Therefore, the board has the power to order back-pay/reinstatement because this prohibits employers from denying action under the act.

Three cases consolidated into one. In each case, the NLRB found the employers committed an ULP. ® Three cases included 1. Teamsters. A union that ran a hiring hall placed a union member at the bottom of the list because he was in arrears on his membership dues. 2. COMPANY. Employer filled a position from a union list. Employer denied employment to a union member because he was not in good standing. 3. Gaynor. Employer had a bargaining agreement with union that provided back-pay wage increases to the union's

Radio Officers' Union v. NLRB, 347 U.S. 17 (1954) · Proof of intent to impact union membership is NOT necessary to commit an unfair labor practice under section 8 of the NLRA. · An employer commits an ULP when he encourages or discourages union membership through any means, including at the behest of the labor organization. · The Board properly founds that each of these three cases the employer sought to encourage union membership through acts of discrimination.

Employer prohibitions of solicitation in various forms. In one case, employee prohibits soliciting as a rule, then discharges employees for wearing Union insignia at the company. In a second, employees distributed Union paraphernalia on their own time.

Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) · Total prohibition of all solicitation serves the purpose of discrimination within the meaning of Section 8 (a) of the NLRA. Therefore, an employer may not impose a broad solicitation prohibition on its employees.

® An American shipping Union lost its contract to transport gypsum to a Panamanian ship, the SS Phopho. ® The ship then hired an all nonunion crew to train, work and prepare for departure. The Union tried to represent the new crew, but was unsuccessful. Then, they began picketing in the Moore Dry Dock shipyard, in front of the entrance to the ship. Letters emphasized the dispute was with the Phopho ship, not the shipyard. All workers eventually stop working on the Phopho

Sailors' Union of the Pacific, 92 N.L.R.B. 547 (1950) Moore Dry Dock (Secondary picketing not allowed) · Four Factors Are: 1. Picketing must be strictly limited to times when the situs of the dispute is on the secondary employer's premises. 2. The picketing may only occur when the primary employer engages in its usual business at that site (situs). 3. Picketing must be limited to places reasonably close to the situs. 4. Picketing must clearly disclose that the dispute is with only the primary employer. · NLRB concludes that since the jobsite is movable, and the conditions explaining the picketing were also clear, then this picket is primary action. TF, allowable under Section 8(b)(4) of the NLRA.

® After disagreements over union picketing activities, the California state courts award $ 1,000 in damages. Is award valid?

San Diego Building Trades v. Garmon, 359 U.S. 236 (1959) · Courts finds that absent a compelling state interest, NLRA preempts state power to regulate activities under the ACT. TF, a state court may not impose damage awards where the NLRA would govern. · **Where activities that states purport to regulate are protected by § 7 or are a ULP under §8 states are preempted.

After undocumented employees formed a union, President of company informed INS that employees were illegal immigrants. INS conducted a raid; agreed to deport rather than imprison employes.

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) · Undocumented immigrants are "employees" under the NLRA. Without the protections afforded by the act, immigrants will accept substandard job terms, depress conditions for themselves and ultimately lower the conditions for all employees. · NLRB's holding that Sure-Tan committed an unfair labor practice in the reporting of its employees only after participation in the union is an unfair labor practice.

® A union organizes workers to picket employer, resulting in drivers not delivering material to and from plant. ® Company sued, asking court to enjoin the picketing. State Supreme Court agreed with injunction.

Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284 (1957) · Supreme Court considers whether States may enjoin peaceful picketing conducted for an unlawful purpose? · Courts holds that a state may enjoin picketing if it involves an unlawful purpose. In this case, the unlawful purpose was coercion of workers to join union, in violation of State Law.

® A non-union textile Mill becomes represented by the Textile Workers Union, over the objection of company owners. ® The company promptly closed the Mill, post-election. Union charges the plant operator with committing an ULP. ® It is admitted that the plant operators closed the plant to chill the unionism.

Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263 (1965) · Supreme Court considers whether a partial closure is an ULP if motivated to chill unionism. · Court acknowledges that an employer has a right to completely close its doors. But a plant may not close parts of its business. Partial closures have the effect of chilling unionism within the rest of the company. · If an employer (1) has other substantial business interest that will benefit from discouraging unionism, (2) closes a plant within the same industry to obtain those benefits, and (3) occupies a position with the other business that makes it reasonably likely employees will fear termination for unionization, then the employer has commmited an ULP.

® Union and Plaintiff employer have a CBA which mandates arbitration of greivances. ® Union sues employer to compel enforcement of agreement, citing to § 301 of the Taft-Hartley Act. ® Also will the parties be personally liable

Textile Workers Union v. Lincoln Mills (1957) · Supreme Court considered whether Congress could grant authority to federal courts to develop a body of federal common law for labor disputes. · Court concludes that Congress has the authority under Article III to create federal common law in labor & disputes. Federal Common Law is Supreme. · **Professor asks us to take away that union officials are not liable for personal liability under the Act.** It's a breach of contract case. No personal liability.

What is required to have a sufficient bargaining unit?

The Board will investigate whether the employees share a "community of interest": factors incude. . . similarity of work, benefit, qualifications, physical proxmity. If 30% of the work force signs, then the bargaining unit can seek election. At the elextion 50%+1 is neccessary

Section 9(b) of the NLRA

The board determines the size of bargaining units, in its sole discretion in labor disputes. Board cannot include professional and nonprofessional employees in the same unit. Decide against any craft unit. or Include guards in the bargaining unit of a general bargaining unit.

Exclusive Representation

The legal right and responsibility of the union to represent all bargaining unit members equally, regardless of whether employees join the union or not. Also only one union allowed § 9(a)

Beck Rights

The right to pay less than full union dues, but the right is about the notification.

Chevron standard

Theory of Statutory Interpretation step 1: whether congress has spoken directly to the precise question at issue, if congress has directly spoken to the issue and made its intent clear, the courts as well as the agency must give effect to the unambiguously expressed intent of Congress Step 2: If not, whether the agencies interpretation is based upon a permissible construction of the statute, does not conflict with congressional intent, if no, then both the agencies actions are known to be arbitrary and capricious.

® A state statute prohibits picketing or loitering near business premises for the purpose of interfering with or harming the business without just cause from using state funds to promote or oppose unions. ® A picketing employee is convicted under this statute for confronting a non union member and asking him (peacefully) not to "cross the line."

Thornhill v. Alabama, 310 U.S. 88 (1940) · Supreme Court considers whether a law that prohibits any demonstration or picketing near an employer's workplace violates freedom of speech. · Courts holds the 1st and 14th Amendments prohibit states from violating free speech and press. This includes curtailing information about protected speech—information about strikes certainly qualifies.

Board Election Process

Union can be certified by two processes: (1) Union Authorization Cards where percentage of union employees submit cards requesting union authorization (2) A group of employees petitions the NLRB's for an election process

® Union and Plaintiff employer enter agreement requiring an arbitrator to resolve disputes concerning the "meaning, interpretation, and application" of this agreement. ® Company refuses to arbitrate a grievance over whether a seniority provision in the CBA entitles employees to return to work. ® District Court agrees. ® Appellate courts find the complaint filed by workers to be frivolous and reject arbitration.

United Steelworkers of America v. American Manufacturing (1960) · Supreme Court considered whether courts may decide the merits of a dispute arising under a CBA that requires interpretation. · Court concludes that Courts may not decide the merits of a dispute arising under the CBA that agrees to arbitration. Courts simply decide if this is a matter the parties have agreed to arbitrate the claims asserted. · Parties have negotiated their agreement to arbitrate on the terms of the contract. Thus, the parties have bargained for the arbitrator to decide the terms of the contract. Even if the court would reject the interpretation, it is a matter for the arbitrator to decide.

® Union and Plaintiff employer have a CBA which mandates arbitration of grievances. ® Arbitrator awards backpay minus 10 days. Court finds the arbitrators award is unjust.

United Steelworkers of America v. Enterprise Wheel & Car Corp (1960) · Supreme Court considered whether Courts may review the merits of arbitration awards entered under the CBA · Courts may not review the merits of an arbitration award under a CBA. under the CBA that agrees to arbitration. Courts simply decide if this is a matter the parties have agreed to arbitrate the claims asserted. · A Court may not overrule an arbitrators decision solely because it disagrees with the interpretation of the agreement.

® Union and employer disagree on whether "contracting out work" is a function of management. ® District Court entered summary judgment. ® Arbitrator awards backpay minus 10 days. Court finds the arbitrators award is unjust.

United Steelworkers of America v. Warrior & Gulf (1960) · Supreme Court considered whether a dispute is arbitrable under a CBA absent a clear intent to specifically exclude it? · The grievance arbitration procedure should be adhered to. Greivance procedures applies to all disputes unless it is specifically excluded by a CBA. · Courts were without jurisdiction to review the merits of the underlying grievance, where the arbitration clause was broad, even though the CBA contains a management rights clause

® A meatpacker works in a meat packing plant where he begins to suffer from high-blood pressure and is sidelined by the doctor at the plant. ® The company terminated meatpacker because of poor health. Union processed the grievance, but declined to bring the matter all the way to arbitration. ® Meatpacker filed a class action alleging that the union violated its duty of fair representation by deciding not to take his grievance to arbitration

Vacav. Sipes, 386 U.S 171 (1967) · Supreme Court considered whether a union breaches its duty of fair representation by declining to arbitrate a members grievance if the union acts in a good-faith, nonarbitrary manner? · Court concludes that standard for whether a union satisfies its duty of fair representation is whether the union acted in a reasonable good faith manner when processing the grievance. · If Employee Files a DFR (Duty of Fair Representation) Complaint, may file suit against both the Union & Employer at the same time.

Contract Bar

When a valid collective bargaining agreement covering a period up to three years exists, it will bar an election for the contract period.

Section 9 (a) of the NLRA

a validly recognized union is the exclusive representative of the employees, even if they don't want to be represented.

Duty of Fair Representation (terms)

o The U.S. District Courts have jurisdiction first because this was not created by statute. Came after the boards jurisdiction. o DFR cases require review of substantive information not within the Boards jurisdiction. o Suits also combined with § 301 with the employer as a breach of contract. § NOTE: Filing a grievance through arbitration is permissible

® Union represents clerical employees at Western Airlines, a union shop. ® Non-union employees object to paying more than their pro-rata share of the union's expenses incurred in negotiating agreements and settling grieveances. ® Union charged objecting employees full dues and then rebated the portions founds to be illegal.

·Ellis v. Brotherhood of Railway Clerks, 46 U.S. 435 (1984) Supreme Court considered whether a union may charge objecting employees for all expenditures reasonably necessary for the union to perform its duty as exclusive bargaining agent. · Court concludes that non-union employees may be compelled to pay for union membership, but may not pay for political or ideological activities. · In this case, Court found that charging non members for conference, social activities, magazine, and litigation expenses was valid. Court held that paying for a portion of the magazine devoted to political issues was not; dues should be pro-rated. · Union could not charge employees in full, then use a rebate procedure.

® Company and National Friction Products entered into a settlement agreement. Agreement approved by the District Court. ® Company filed a motion for contempt, alleging that National breached the settlement agreement. But terms of the agreement did not appear clear. District Court dismissed.

·H.K. Porter Company v. NLRB, 397 U.S. 99 (1970) Supreme Court considered whether to hold a party in civil contempt, must the party have disobeyed an unequivocal command of enforcement. And must that command, if an injunction, have described in reasonable detail the conduct enjoined. · Court concludes that holding a party in civil contempt requires the party to flout a command described in reasonable detail. . . · The Court held that the district court properly dismissed this case because the original order did not order National to do or refrain from doing something.

® Surfboard company allegedly gives unlawful assistance to a union by executing a contract with the Union at a time when union did not have majority votes. ® Union lost majority status after execution of contract.

·Keller Plastics Eastern, Inc., 157 N.L.R.B. No. 583 (1966) In keeping with Brooks, these parties have a valid, binding agreement. The union was the statutory bargaining representative when it formed.