Labor Law Outline
Establishing the Collective Bargaining Relationship
I.
Protection of Right of Self Organization
a. Interference, Restraint and Coercion – 8(a)(1)
i. EE Organizers
1. Republic Aviation
a. General no solicitation rule violates 8(a)(1)
b. Needn’t have motive or actual interference
c. U can’t waive in CBA
2. So long as not applied only against Us, ER can:
a. restrict EE solicitation to non-working time and non-working areas
b. can forbid EEs from entering during non-shifts
3. Beth Israel – can’t forbid solicitation in cafeteria
4. Jean Country – balancing
5. Salting – ULP for ER to refuse to hire b/c U organizer
ii. Non-EE Organizers
1. Lechmere – ER can prohibit access, unless U can’t otherwise
communicate; no balancing
Con: ER has much greater access  imbalance
Exception is too narrow
Proposal: reversal; balancing; access to privately owned but
publicly used spaces (like malls)
2. But ER can’t have discriminatory access rule for outsides
iii. Excelsior Underwear – if election petition has been filed, ER must disclose
address list (note – not a ULP)
But: U still needs 30% before election petition this rule is of limited use
iv. Election Propaganda
1. General Shoe – laboratory conditions; can overturn election (8(c) free
speech only applies to ULPs)
2. Gissel Packing – ER may not threaten; may only predict demonstrable
economic consequences beyond ER’s control
Pro: EEs are economically dependant on ER
Con: May limit EE access to info which he should know
Proposal: only overturn election where margin < 20%
3. Midland Nat’l Life – false propaganda ok so long as not misleading
manner; minimal scrutiny
Pro: EEs can sort the wheat from the chaff; should get both arguments
out in the open; propaganda maybe doesn’t make a difference anyway
Con: free and informed choices; responsible election campaigns
Proposal: Total ER neutrality during election
1
4. Sewell Mfg. Co. – election overturned due to inflammatory racial appeals
Con: Paternalistic?
5. Peerless Plywood
a. no captive audience speech 24 hours before election
b. but in general, ER can make speeches w/o granted U equal time
v. Other Forms of ER Interference
1. NLRB v. Lorben Corp – ER can poll EEs under very restricted guidelines
(see Nutshell 60)
2. NLRB v. Exchange Parts – ER can’t promise/give new benefits right
before election
Pro: Fist inside velvet glove; ER could otherwise diffuse bargaining
drives
Con: new benefits is what U wants; polarizes the sides
vi. U interference – 8(b)(1) interpreted more narrowly
1. threatening violence
2. NLRB v. Savair – U cannot promise to waive fees for only those who sign
authorization cards
b. Company Domination of Assistance – 8(a)(2)
i. Electromation –EE action committees were “labor org’s” b/c:
1. EE participation
2. Deal with ER
3. Concerning working conditions
Pro: committees may fool EEs into thinking they have power or a U;
should clearly have 2 interests on 2 sides of the table
Con: discourages cooperation and communication
Proposal: all “EE participation” or “work life quality” groups
ii. ILGW v. NLRB – ER cannot recognize a minority U (g/f no defense)
iii. Abraham Grossman d/b/a Bruckner Nursing Home – ER can recognize a majority
U even if there is a rival, unless rival has filed an election petition
c. Discrimination – 8(a)(3)
i. Budd Mfg. – can’t fire b/c of U activity
ii. Mueller Brass – review under substantial evidence standard
iii. Transportation Mgt. Corp
1. General Counsel must show that anti-U animus was substantial or
motivating factor
2. Burden shifts to ER to show would have fired anyway
Con: Should have violation whenever it’s a factor
Proposal: 8(a)(1) violation is EE see firing as motivated by anti-U
animus, even if it wasn’t
iv. Burnup & Simms – good faith not a defense
Con: EE was not fired b/c of protected U activity!
v. Adkins Transfer – ok to fire two EEs b/c couldn’t afford U wage scale
2
Pro: Real reason was high wage scale; no anti-U animus; requiring
notification is useless, b/c U will refuse
Con: Should at least require ER to tell U its reasons
vi. Darlington Mfg. Co.
1. ER can always go completely out of business, b/c no future benefit
2. But can’t close one plant if the purpose and likely effect is chilling
unionism in remaining business
3. Plant relocation (“runaway shop”) violates 8(a)(3) if due to anti-U animus,
but not if due to sound business reasons (including wage levels)
Con: a meaningless distinction? EEs suffer injury due to decision to
unionize  should be made whole
vii. Remedies
1. reinstatement and backpay (with duty to mitigate)
Pro: remedy is reparative, not punitive
Con: not a significant deterrent; ER may think it’s worth the cost;
fears of retaliation; delay and expense in obtaining
loss to U is greater than loss to just one EE
Proposal: 2x back pay (1977 Labor Reform Act  killed in filibuster)
2. Gissel bargaining order
Pro: remedies loss of U momentum
Con: If EEs too threatened to vote for U, probably also too threatened
to strik  no way to back up demands  not all that useful
3. Phelps Dodge – refusal to hire  Bd. can order hiring
4. 10(j) injunction – restrain ER or U from engaging in ULP while complaint
pending
a. ER or U cannot require
b. General Counsel must invoke, and does so rarely
Proposal: mandatory injunctions for ER discrimination during
organizing campaign (or negotiation of 1st CBA)
5. J.P. Stevens – notice to EEs, access for U, litigation expenses, etc.
II.
Selection of Bargaining Representation
a. Grounds for Not Proceeding to Investigation and Certification
i. U has not demonstrated 30%
ii. Pending ULPs
Pro: atmosphere not appropriate for an election
Con: U can file blocking charges to delay election
iii. Election in past year – 9(c)(3) (or if voluntary recognition  “reasonable time”)
Pro: stability for U, ER, and relationship; don’t want to interfere with
ER’s business
Con: autonomy and free choice
iv. Contract Bar Rule
1. During duration of CBA (but not > 3 years), can’t have an election
2. EEs or rival U can file within 30 day window – between 60 and 90 days
before expiration (or after CBA expires, if no new CBA reached)
3
Pro: after window, U can negotiate new CBA w/o worrying about
election challenge
3. Exceptions
a. U becomes defunct or schism
b. Expansion or changes to ER’s operations
4. American Seating – ULP for ER to refuse to recognize (due to existing
CBA) new U
b. Appropriate Bargaining Unit – 9(a)
i. Shared community of economic interests (see Nutshell 26 for factors)
ii. 9(b) – Bd. can’t:
1. certify prof and non-prof together, unless prof agree
2. decide craft unit inappropriate b/c of earlier certification
3. put guards with anyone else
iii. Appropriate Unit
1. American Hospital Assn. – rule-making for 8 hospital units
Pro: more clarity; smaller units easier to organize
Con: ER wants larger units, because harder to organize
Proposal: More rule-making like this
2. Chicago Health and Tennis Clubs – single retail location factors
Con: Too much power for ER to organize its personnel department in
order to make single location inappropriate
Proposal: Rule that single location unit if presumptively ok (Bd.
proposed and C killed with rider)
3. RLA – requires nationwide units for any given craft or class
iv. Multi-ER bargaining
Pro: More flexibility; ability to bargain with large, industry-wide U
Less expensive, less frequent, and more informed negotiations
Experience leaders
EEs can get gains which no one ER would grant for fear of
competitive disadvantage
Con: larger strikes; restraints on competition; much harder for EEs to
get out than get in
1. Must start out as consensual on both sides; ULP for U or ER to coerce
2. Charles D. Bonanno Linen Service – bargaining to impasse not enough of
an “unusual circumstance” for ER to withdraw during negotiations
Pro: Otherwise, much of usefulness is lost; stability; impasse is
temporary
Con: Should be voluntary; ER bound by CBA which it didn’t
negotiate
3. ER can withdraw if:
a. another ER signs separate agreement which would survive multiER agreement (i.e. unit fragmented)
b. under extreme financial pressure
v. Multi-U bargaining
1. Always ok if Us and ER agrees
4
2. General Electric Co. – U can bring reps from other Us to bargaining table
without ER’s consent, unless clear and present danger to bargaining
process (ex. attempt to expand unit)
Pro: right to choose your rep; expertise; reduces ability of ER to play
Us off each other
c. Review of Representation Proceedings
i. Board’s determination of appropriate barg. unit – not a final order, so ER must
refuse to bargain (commit ULP) to get review (and U can’t get review)
Pro: Making it harder to contest  ERs challenge more often
Con: More delay  threatens industrial peace
Proposal: C could define more clearly what’s a presumptively
appropriate unit
ii. Leedom v. Kyne – narrow exception; ER can sue in court when Bd. certifies a unit
clearly contrary to the Act
III.
Securing Bargaining Rights Through ULP Proceedings
a. Gissel Packing – where ER committed flagrant which make fair election unlikely, Bd.
can order bargaining where U has previously demonstrated a majority
Pro: ERs own actions made fair election impossible, so shouldn’t be
able to claim that this is unfair; symbolic significance;
stability and EE’s wishes
Con: If EEs too threatened to vote for U, probably also too threatened
to strike  no way to back up demands  not all that useful
If no election, how do you really know that U has majority?
Concern for EEs who don’t want U and then can’t
challenge for 1 year
Authorization cards are unreliable
- less chance for EEs to hear ER’s arguments
o but – ER usually knows about campaign before)
- U sometimes misrepresents meaning of cards
o but – Bd. can police
- peer pressure, w/o privacy of polling booth
o but – pressure just as much inside booth
Unclear what ULPs are egregious enough
i. Bd. – determine whether election could be fair at original time of ULPs
ii. 9 App. Cts. – determine it as of the present; changed circumstances
Con: incentive for ER to delay the case
b. Gourmet Foods – cannot order bargaining where U hasn’t demonstrated majority
Con: bargaining order may be the only effective remedy
c. Linden Lumber – where no ULPs, ER needn’t bargain voluntarily
Con: ER should always have duty to bargain with rep. who has
majority support; major delay before election
Proposal: Bd. can certify based on majority authorization cards
5
Speedier elections (w/in 2 weeks), with challenges to bargaining
units and other disputes resolved after election
d. Withdrawing recognition
i. 8(a)(1) violation if ER instigates or assists a 9(c)(1) decert petition
ii. Brooks – ER must wait 1 year after election, even if U clearly becomes minority
Pro: Industrial peace; U needs time to produce results
Con: EE choice
iii. Curtin Matheson – ok for Bd. to decide whether replacements support U on caseby-case basis
Pro: replacements may disagree with particular strike, but not U
generally; or may just be particularly hard off
Otherwise, huge incentive for ER to hire replacements or even
provoke strike
Con: replacements clearly don’t support U
iv. Allentown Mack Sales – ER can poll only if has reasonable doubt as to U’s
continuing majority status
Pro: Polling is disruptive and unsettling
Con: Polling is not coercive; EE choice
v. ER can only petition for election where:
1. reasonable doubt (U.S. v. Gympsum), and
2. recognition has been requested (renewal counts, so ER can ask at end of
CBA) (9(c)(1)(B))
Pro: don’t disrupt bargaining every time CBA expires
vi. Levitz Furniture – ER can only withdraw recognition where U actually has lost
majority
Pro: stability; keep U in
Negotiation of the CBA
I.
Exclusive Representation and Majority Rule
a. J.I. Case – CBA trumps all existing individual Ks; (8)(a)(5) and majority rule
Pro: protects EEs who wouldn’t be able to negotiate a good wage for
themselves; ensures EE will look to U, not ER, for better terms
Advantages to individuals are disruptive
Con: Above average workers are disadvantaged
Contrast: Sports and entertainment
Contrast: European system, with multiple Us; we may want
competition among unions w.r.t. the way they handle grievances
and other aspects of service to members
b. Emporium Capwell – U is exclusive rep, so EEs concerted activities independent of U
were not protected b/c amounted to a demand that ER bargain directly with them
Pro: U interest in united front; problem of competing demands on ER;
DFR protects
Con: EEs are prisoners of U; DFR is weak in negotiating context
i. But if no U existed, such concerted activities would be protected
6
c. Steele v. Louisville & Nashville R. Co. – U has DFR for CBA negotiation
d. Limits on majority rule:
i. Defining appropriate bargaining unit
ii. Decertification elections
iii. Democratic rights w/in U (Landrum-Griffin Act)
iv. Limits on U security devices
v. 9(a) – right to present and process grievances (but ER needn’t do anything)
vi. U’s duty of fair representation
II.
The Duty to Bargain in Good Faith
a. 8(d)
i. No duty to agree to any proposal
ii. Rather, good faith requires parties to meet and discuss terms with an open mind
but without being requiring to come to an agreement.
b. ER’s duty – 8(a)(5)
i. A-1 King Size Sandwiches
1. ER proposal for total management control amounted to bad faith
2. can infer bad faith from substantive proposals
3. surface bargaining v. hard bargaining
ii. Truitt Mfg. – ER must provide relevant info to back up bargaining claims that it
can’t afford something
Pro: U can’t judge accuracy of ER’s claims without info
Con: Doesn’t accomplish much, b/c ERs will just say wages
“inappropriate” rather than “I can’t afford it”
1. Detroit Edison – ER needn’t disclose private EE test scores
2. Acme Industrial – duty to disclose continues during term of CBA, so U
can effectively administer CBA through A
iii. Katz – bad faith for ER to unilaterally implement wage increase which was higher
than previous offers (bypassing the U  different than Insurance Agents)
Pro: It’s more than economic warfare; amounts to refusal to bargain
iv. NLRB v. General Electric -- "Bouwalrism” is ULP; fair and firm offer, bypassing
the U with a publicity campaign appealing to EEs directly
Pro: bypassing U; makes U a second class participant; ER comes to
table with closed mind
Con: a revolutionary way to bargain? avoid the silly minuet and waste
of time; publicity is a permissible economic weapon;
arguably 8(c) free speach
c. Union’s duty – 8(b)(3)
i. Insistence on form K – some cases hold this to be a ULP, but current Bd. has
announced that it is not
ii. Must furnish relevant info
iii. Insurance Agents – U slowdown (not protected by NLRA) is not bargaining in
bad faith
7
Pro: Bd. shouldn’t regulate choice of economic weapons or
bargaining tactics; antagonism and self-interest are inherent;
too mush intrusion into substantive terms
Con:
d. Impasse – “where further negotiations would be futile”
i. Once ER achieves impasse, can unilaterally implement proposals
Pro: Breaks the impasses and encourages further bargaining
Con: Very hard to say when impasse reached (ex. TruValue); impasse
cases are long and expensive
ii. Duffy Tool and Stamping – impasse means overall, not just one subject (majority
view in circuit split)
iii. McClatchy Newspapers – narrow exception, where proposal is totally
discretionary and has no terms
Pro: If ER could insist on this, not much left to collective bargaining
Undermines U’s ability to bargain
III.
Subjects of Collective Bargaining
a. American Nat’l Insurance – insisting on a management rights clause is consistent with
good faith (it’s a mandatory subject)
b. Borg-Warner – ER and U cannot insist upon a permissive subject
i. U can never strike over a permissive subject
ii. No duty to bargain w.r.t. permissive subjects
Pro: C didn’t intend revolution that forces ERs to share control of
business with Us; CBAs more easily reached be removing
peripheral issues from bargaining
Con: Drives bargaining underground; bad for Us;
NLRA does not contain this “capitalist exception”!
Bds. and cts. lack expertise in labeling
line drawn should maybe be different depending on the industry
and time
c. Mandatory subjects
i. “wages, hours, and other terms and conditions of employment” – both must
bargain, and both can insist on it
ii. Ford Motor Co. – prices in company cafeteria
iii. Johnson-Bateman – drug/alcohol testing
iv. Fibreboard – contracting out, where IC will do same work, on site, under same
conditions; ER is not changing scope of business
v. Westinghouse
1. U may “waive” mandatory status by acquiescing to past unilateral changes
2. status quo matters
d. Permissive
i. U-member relationship (ex. ballot clause)
8
ii. ER-3rd party relationship (ex. Detroit Resilient Floor Decorators)
iii. Douds – changing the bargaining unit
iv. Pittsburgh Plate Glass – change in retiree benefits
Pro: U has conflict of interests with retirees
v. First National Maintenance Corp. – decision to shut down part of business for
purely economic reasons  permissive
1. balancing test
a. ER’s need for unencumbered decision making
b. whether subject is amenable to resolution through bargaining
c. U’s concerns
Pro: ER needs to be able to run profitable business, and may need to
proceed in secrecy without delay; needs some certainty
Would give U bargaining chip with which to force info-sharing,
delay, etc.
If EEs know ahead of time that plant might close, won’t work as
hard and best workers will leave  even bigger problem
Con: U should be given a chance to bargain, especially where costs is
an issue; may be able to make concessions and prevent closing;
there’s no such capitalist exception
2. Bargaining over effects is mandatory
e. Dubuque Packing – new test for relocation
i. General Counsel shows no basic change in nature of operations
ii. Burden shifts to ER to show either:
1. Core of entrepreneurial control
a. basic change in nature
b. change in scope and direction
c. work at new location varies significantly
d. work at old plant discontinued entirely and not relocated
2. Labor costs were not a factor
3. Even if labor costs were a factor, U could not have offered concessions
that could have changed decision to relocate.
Con: What if labor was one of many factors? What does “could not”
mean? What about “would not”?
IV.
The Role of the Strike and Third-Party Impasse Resolution
a. Gov’t intervention very unusual (206-210 – procedures for nat’l emergency)
i. strikes not usually nation-wide
ii. fewer strikes
iii. RLA – much more extensive intervention through Nat’l Mediation Board
b. ER has duty to bargain despite strike
c. Phelps Dodge
i. no duty to bargain during U slowdown
ii. does this survive Insurance Agents?
d. Land-Air Delivery – during strike, ULP (duty to bargain) for ER to permanently contract
out the U’s work
9
i. Hawaii Meat – possible exception, if permanent is necessary for continuing
operation during strike
V.
Bargaining Remedies
a. Order to bargain
Pro: not totally toothless, b/c of contempt power
Con: doesn’t really help, since ER may just go through the motions
Need punitive remedy
Can take years (especially if need App. Ct. to enforce), while U
gets weaker and can’t make up for it with $
b. H.K. Porter – Bd. cannot order a specific CBA provision; 8(d) – can’t impose substantive
terms
Pro: freedom of K
Con: mere order to bargain is weak
Proposal: amend 8(d) to allow such a remedy, especially for a standard
term in the industry; allow for punitive remedy (ex. no gov’t Ks;
double backpay)
c. Ex-Cell-O Corp. – can’t order monetary compensation in the amount EEs would have
received had ER bargained to agreement sooner
Pro: It amounts to ordering substantive terms and punishment
Unfair b/c many things may have changed
Refusal to bargain is only way for ER to challenge election
Con: can infer terms from ER’s other plants, other ERs in the
industry, or national averages
d. For flagrant cases, Bd. may order ER to pay litigation expenses, to mail a signed copy of
the order to each EE, or to give U names and addresses of EEs
e. Alternatives
i. arbitrator decides terms
Con: when you know failure to reach an agreement will just result in
A, less incentive to bargain to agreement
ii. Mediation
iii. Bd. orders terms (H.K. Porter)
iv. European system – Minister of Labor authorized to promulgate a standard K for
the industry
Strikes, Picketing and Boycotts
I.
Rights of EE Protesters Under the NLRA
a. Protected and Unprotected Concerted Activity
i. Individual activity
1. In general, courts have strained to protect individual EEs
2. NLRB v. City Disposal – individually asserted rights under CBA counts as
concerted activity (“Interboro doctrine”)
Pro: invoking CBA is integral part of the entire process, similar to
filing a grievance
10
Con: maybe C used the word “concerted” for a reason; ER can’t
please every individual EE all the time; this makes every CBA
breach a ULP; Bd. shouldn’t interpret CBA
3. Weingarten – requesting U rep. during interrogation is concerted
4. Meyers – for non-U EEs, refusing to drive truck b/c unsafe is not
concerted
5. Peter Cailler Kohler Swiss Chocolate – protected for single EE to honor
picket line at another ER
ii. Eastex, Inc. – newsletter protected b/c sufficient relation to EEs interest, even
though not a specific ER-EE dispute
Pro: mutual aid and protection
Con: ER has no control over state legislation
iii. Unprotected concerted activity – “indefensible”, “reprehensible”, “disloyal”
1. Duty of loyalty
a. Jefferson Standard Broadcasting – not protected; EE breached
duty of loyalty by disparaging product, where didn’t mention
connection to labor dispute
b. Patterson Sargent – connection to labor dispute still too attenuated
(paint made by scabs)
c. Sierra Publishing – connection close enough  protected
2. Strikes timed to create uncommon risk of injury
a. Federal Security – security guards strike w/o notice
3. Slowdowns (Elk Lumber), intermittent strikes, violence
4. Strikes which are ULPs
a. strike over a permissive subject
b. strike to force ER to commit ULP
5. Violation of federal law or state criminal/tort laws (unless “tolerable”)
6. Wildcat strikes (Emporuim Capwell)
7. Strikes violating no strike clause
a. Mastro Plastics
(A) no strike clause does not cover ULP strikes over ER’s
attempt to oust the U
(B) But a general no strike clause does waive right w.r.t. less
serious ULPS which could be redressed through A
b. Employer Responses to Concerted Activities
i. 8(a)(3) in general – need to show:
1. Discriminatory conduct
2. Motivated by anti-U animus
3. But – needn’t show anti-U effect, so long as can reasonably presume that
action would have such an effect
ii. Mackay Radio & Telegraph
1. Economic strikers can be permanently replaced
2. But can’t discriminate in choosing who to reinstate
11
3. Clinton executive order – terminate federal Ks with ERs who hire
permanent replacements; D.C. Cir. struck down
Pro: Place some limits on what U can demand; least of many evils
“Business necessity” is too uncertain
Con: There is no “capitalist exception” in the act!
Should at least condition ER right on a business necessity test
huge disincentive for U to strike
more common for unskilled workers, who most need protection
inefficient for economy
Proposal: permanent replacements only if business necessity
no permanent replacements for economic strikers
(Clinton Ex. Order for federal Ks  struck down)
iii. Erie Resistor – 8(a)(3) violation to offer non-strikers super-seniority
1. Inherently destructive of right to strike  needed find specific ER motive
2. No overriding business reason
Pro: Affects all strikers (not just those replaced)
cripples strike effort
conflict b/w strikers and non-strikers
 makes future bargaining difficult or impossible
3. contrast TWA v. IFFA (RLA) – ER can offer non-strikers choice
domiciles, and needn’t displace them when strikers return
Pro: Not super-seniority b/c only a 1 time thing
Con: This effectively gives super-seniority
Proposal: can’t give any extra benefits to non-strikers
iv. Lockouts
1. American Ship Building – defensive lockout is allowed
Pro: EEs have no right to insist on K demand free from economic
disadvantage; Bd. does not have general authority to equalize
bargaining power; no purpose of discouraging U membership
Con: distorts bargaining positions
2. Buffalo Linen – when U strikes one ER in multi-ER unit (whipsaw strike),
the other ERs can lockout, absent proof of discr. motive
3. Brown – ER can operate with temps during defensive lockout, and can
refuse to hire EEs as temps
Pro: Not anti-U; tendency to discourage U membership is remote;
merely neutralizing economic effect of whipsaw tactic
Con: hard to reconcile with 8(a)(3)
4. SC hasn’t addressed offensive lockouts, but circuit courts allow
a. intent to promote bargaining position v. intent to destroy U
b. Boilermakers (D.C.Cir) – ok to hire temps during offensive
lockout
v. Great Dane Trailers – ER cannot pay accrued vacation pay only to those working
on a certain date during strike
12
1. Not inherently destructive like Erie
2. But where ER does not show a legit and subst. business justification,
General Counsel needn’t show anti-U motive
Con: Hard to see this in Act’s language
vi. Laidlaw Corp. – application for reinstatement after economic strike must be
considered ongoing by ER (otherwise, 8(a)(3) violation under Erie)
vii. EE refusals to cross picket lines of another ER
1. Protecting activity, but balancing
2. Courts are more inclined than the Bd. to give weight to ER’s interest 
permanent replacement often allowed where business justification
viii. Metropolitan Edison – where strike in violation of CBA, ER cannot discipline U
officials more severely than others for failure to stop it
ix. ULP strikers
1. absolute right to reinstatement
Con: May require discharge of replacement who was exercising
statutory right not to strike
Proposal: ER has to pay both
2. NLRB v. Thayer – Bd. can order reinstatement of ULP strikers who
engaged in unprotected activity, under balancing test
a. Clear Pine Mouldings – Bd. does not currently do this
b. Contrast economic strikers – no reinstatement
3. Replacements can’t vote (contrast permanent replacements for economic
strikers, who can vote)
II.
Constitutional Limitations
a. Teamsters v. Vogt – states can enjoin picketing in some circumstances; picketing is
speech plus (but blanket bans are unconstitutional)
b. ILA v. Allied Int’l – no “political speech” exception to NLRA provisions or NorrisLaGuardia
c. Edward J. DeBartolo – to avoid constitutional problems, consumer handbilling without
picketing does not “coerce” under 8(b)(4)  not a ULP
d. Hudgens v. NLRA
i. No constitutional right to picket in mall
ii. Instead, balancing for EEs; Lechmere for non-EEs
iii. On remand – mall owner committed 8(a)(1) ULP
III.
The NLRA
a. Organizational and Recognitional Picketing
Pro: protects U standards from a non-U competitor; picketing
promotes more reliable election b/c demonstrates U’s power
Con: puts ER in a bind – recognize minority U? or endure?
Even where turns out to have been illegal, ER can’t get damages
i. Drivers Local No. 639 – 8(b)(1) does not ban recognitional picketing
ii. 8(b)(4)(C)
1. no strike, coercion, etc. in defiance of another U’s certification
13
iii.
iv.
v.
vi.
2. 303 damages available
8(b)(7) – no recognitional picketing by non-certified U where:
1. No damages, but 10(l) injunction or cease and desist
(A) ER is currently recognizing another U
(B) Election has been held in previous year
(C) Picketing lasts more than a reasonable time (not more 30 days), and no
election petition has been filed
1. when U files for election and continues to picket, ER can file for
expedited election
Publicity proviso to 8(b)(7)(C)
1. Informational picketing allowed where truthfully advising public that ER
does not have U EEs, unless effect is to interfere with pickups and
deliveries
2. Crown Cafeteria – Proviso allowed even though a goal is recognition
3. NLRB v. Local 3 – if “publicity” is actually a signal to other workers and
unions, not allowed; signal picketing v. publicity picketing
Blinne – If U files blocking ULP charge, must still file election petition w/in 30
days, but election can be put on hold
Area standards picking is not recognitional picketing  always allowed
Pro: legit concerns about competition from ERs with lower wages
Con: Not all that different from recognitional picketing, since U sets
area standards
Where another U already certified, ER can’t bargain with
picketing U
b. Secondary Pressure – 8(b)(4)
Pro: a way for weak Us who can’t shut down primary but can pressure
secondary; free speech
Con: secondary is helpless; U is weak for a reason
i. Rice Milling – primary picketing which turns away deliveries is not unlawful
secondary activity
ii. ILA v. Allied Int’l – no exception for political boycotts
iii. NLRB v. Denver Bldg & Construction Trades Council – where dispute is with
non-U subcontractor (primary ER), cannot picket the entire construction site (i.e.
the general contractor/secondary ER)
iv. Local 761 (G.E) – separate gate at plant for independent contractors (who are
secondary)
1. If IC work is related  can picket the gate (can appeal to secondary EEs)
2. If IC work is unrelated  cannot picket the gate (must meet Moore Dry
Dock standards)
3. Markwell – related work doctrine doesn’t apply to construction sites
Pro: Construction industry has a lot of clout already (can have pre-hire
agreement; doesn’t face foreign competition)
Con:
14
Proposal: G.E. should apply to construction industry, so U with
dispute with sub-K can picket whole site (vetoed by Ford)
v. Acceptable activity
1. UFCW – where object is recognition of certified U, secondary pressure ok
2. Servette – ok to ask a secondary ER (or an EE with managerial discretion)
to stop dealing with the primary, or to threaten lawful action
3. Douds – secondary ER which is performing strike work and is closely
intertwined with primary ER  no longer neutral secondary  can picket
vi. Moore Dry Dock Co. – U has right to picket at the situs of the dispute, where
owned by secondary ER, so long as:
1. limited in time
2. P is engaged in normal business at situs
3. limited in space
4. picketing is clear that directed only at P, not S
vii. Consumer Appeals
1. Publicity proviso – non-picketing publicity ok to advise public that
product produced by primary ER is distributed by secondary ER
a. but musn’t interfere with pickups and deliveries
b. only chain of production/distribution
2. Edward J. DeBartolo – handbilling doesn’t “coerce”
a. Probably makes publicity proviso unnecessary
b. Extends to all secondary ERs, not just distributors
3. Tree Fruits – single product picketing (aimed only at consumers, not
secondary EEs) does not “coerce” secondary ER  no ULP
Con: C distinguished picketing and non-picketing in the proviso for a
reason; effect may be just as bad
4. Safeco Title Insurance – single product picket does coerce where the
product is an overwhelming portion of secondary ER’s business (“ruin or
substantial loss”)
Con: where such a connection, maybe secondary isn’t really neutral
(Douds)
hard to reconcile with Tree Fruits
viii. Hot Cargo Agreements – 8(e)
1. ER and U cannot agree that ER will not deal with someone
a. 8(b)(4)(A) – U can’t strike, coerce, etc. to obtain or enforce a hot
cargo agreement, either
2. Work preservation
a. Allen-Bradley – sword, not shield; antitrust violation
b. Nat’l Woodwork Mfr’s Assn.
(A) U and ER may agree that ER will not deal with someone,
so long as preserving work traditionally performed by U
members (8(e) only aimed at secondary activity)
15
(B) And U’s concerted refusal to enforce the agreement does
not violate 8(b)(4)
c. Enterprise Assn.
(A) agreement itself was ok under Nat’l Woodwork
(B) But concerted refusal in order to enforce violated 8(b)(4)
b/c ER (sub-K) who made the agreement did not have
right to control  illegal secondary pressure aimed at
sub K (gen K had right to control and thus was primary
Con: right to control test doesn’t make sense; it’s sub’s own fault; sub
is the P
3. Construction exception – where general contractor agrees only to hire
unionized subcontrators
a. Only covers work to be done on the premises
b. U can strike to obtain without violating 8(b)(4)(A), but a strike to
enforce violates 8(b)(4)(b)
(A) damage suit to enforce is allowed
c. Connell Construction – Union signatory clause with gen K in
absence of CBA doesn’t fall in exception, b/c not limited to
situations where non-U and U men would be working together
d. Woelke & Romero Framing – Same agreement in CBA is fine
c. Work Assignment Disputes – 8(b)(4)(D) makes it a ULP for a U to strike or pressure ER
to assign work to EEs in one U rather than another
d. Featherbedding
i. 8(b)(6) – ULP to force ER to pay for services not performed
ii. NLRB v. Gamble Enterprises – make work is ok
e. Violence and Union ULPs
i. Norris-LaGuardia – before issuing an injunction due to violence, ct. must find that
public officers are unwilling or unable to protect ER property
ii. Bagwell – excessive fines amounted to criminal sanction, not civil  need jury
trial
iii. Agency law determines U responsibility for individual action
1. Bd. will not grant monetary damages
2. Cease and desist, or 10(j) injunction in aggravated cases
f. Remedies
i. 10(j) – discretionary and very infrequent; examples include:
1. strike during 8(d) cooling off period
2. inducing ER discrimination against nonmembers
3. violence or mass picketing
ii. 10(l) – mandatory injunction for secondary and recognitional violations
iii. §303 – damages for 8(b)(4) (but no punitive or injunction; preempts state
remedies)
16
Administration of the CBA
I.
Grievance Arbitration – see pp. 714-20
Pro: promotes industrial peace, b/c substitute for economic warfare
less time and money
solves the unforeseeable
can consider long term factors, morale, tensions, etc.
CBA is common law of the shop
Con: usually takes away U’s right to strike
II.
Judicial Enforcement
a. Textile Workers v. Lincoln Mills
i. Courts can order A under §301
ii. Federal common law will apply
iii. Norris LaGuardia does not prohibit order
b. Lucas Flour
i. State court has concurrent jurisdiction, but must apply fed. law
ii. If CBA requires A over a dispute, strike over the dispute violates the CBA (even
if there is not a no strike clause) unless the CBA says otherwise
Pro: It’s a quid pro quo
Con: Takes away U power
c. Standards for Ordering A
i. United Steelworkers v. American Mfg. – court cannot refuse to order A because it
thinks claim is frivolous
Pro: Even if frivolous, valuable for EE to be heard; ct. can’t weigh
merits
ii. United Steelworkers v. Warrior & Gulf Navigation
1. A clause excludes matters which are strictly a function of management
2. Court should order A, and A should decide whether the contracting out is
strictly a function of management
d. Arbitration after CBA expires
i. John Wiley & Sons
1. merger  ER absorbed by non-U company, and CBA terminated
2. successor merged ER must A under CBA w.r.t. grievances which had
arisen while CBA existed
3. procedural arbitrability is for A to decide
ii. Litton Financial Printing
1. In general, A clause does not extend beyond termination of CBA
2. But express or implied terms of CBA may extend A past expiration
3. Nolde – presumption of arbitrability post-expiration for disputes arising
under/during the CBA, unless expressly negated
17
4. Here, layoffs after CBA terminated based on ability not seniority  not
based on rights accrued or vested during CBA  no A
Pro: A must be consensual
Con: Court shouldn’t decide merits
iii. United Steelworkers v. Enterprise Wheel & Car
1. Arbitrator can order reinstatement and backpay after expiration of CBA,
for claims arising during CBA
e. Review of A awards
i. United Steelworkers v. Enterprise Wheel & Car – A award enforceable so long as
draws essence from CBA
ii. Major League Baseball Players Assn.
1. Court can’t substitute its own credibility determinations for A’s
2. Even if A is dishonest, should only vacate, not reverse
iii. Eastern Assoc. Coal Corp. – public policy exception (allowing court to overturn
A award) is very narrow and must be based on a very clear PP
1. Scalia, concurring – PP exception only where award violates positive law
iv. United Paperworkers v. Misco – same
f. Enforcing a No Strike Clause
i. Boys Market – Norris-LaGuardia does not forbid a court from enjoining a strike in
violation of a no strike clause, so long as:
1. The CBA has an A clause (and ER agrees to A)
2. The strike is over an arbitrable grievance
3. Equitable relief standards are met – ongoing breach, irreparable injury,
balancing ER’s and U’s injuries
Pro: same relief available in state and federal court
otherwise, disincentive for ER to agree to A/no strike
arrangements, b/c damages aren’t enough
Con: rewrites the law
ii. Buffalo Forge – court cannot enjoin sympathy strike
iii. Atkinson v. Sinclair Refining – no individual liability for breach
iv. Reis – wildcat strikes
1. individuals not liable, but can be discharged or disciplined
2. U not liable; no duty to stop it
v. Mastro Plastics – no strike clause held not to cover strike against serious ER
ULPs which undermined U’s representative status.
vi. Does Norris-LaGuardia bar injunctions against ERs? Ex. ER breaching a K by
selling business to a successor without binding successor to CBA
Question: does refusal to cross another ER’s picket line violate a no strike clause?
Probably not, because underlying dispute is not arbitrable
III.
The Role of the NLRB and the Arbitrator
a. Conduct which allegedly violates both the CBA and the NLRA
18
i. Carey v. Westinghouse – Court can order A, even if issue is one which Bd. could
decide
ii. C&C Plywood – Bd. can decide a ULP charge, even if it involves construing the
CBA
iii. Spielberg Mfg. Co. – Board will defer to arbitration so long as
1. A procedure is fair and regular (no fraud, collusion, etc.)
2. Parties agree to be bound
3. Decision is not repugnant to NLRA
4. A had heard and determined factual issues underlying ULP
iv. Collyer – Bd. will defer to A which hasn’t even happened yet (but retain
jurisdiction in case is doesn’t meet Spielberg standards)
Con: protection of public rights shouldn’t be lost through private K
b. Arbitrability of statutory claims
i. Should A consider external law? Big debate
ii. Alexander v. Gardner-Denver – no presumption of A for statutory claims
Pro: civil rights laws vindicate public rights; risk of U discr.
Con: benefits of A
iii. Wright – need clear and unmistakable waiver (but doesn’t decide whether such a
waiver would be enforceable)
iv. Circuit City – in non-U context, EE can agree to arbitrate statutory claims and
forgo court action; FAA applies to employment contracts
c. The duty to bargain during the term of an existing CBA
i. ER’s duty before modifying terms
1. Term contained in CBA  must obtain consent
a. If no consent and mandatory  CBA breach and 8(a)(5)
b. If no consent and permissive  just CBA breach
c. U has no obligation to bargain
2. Term not contained in CBA
a. Mandatory
i. Must bargain to impasse before implementation
ii. Zipper clause (forgoing bargaining) must be clear and
unmistakable
iii. Johnson-Bateman – U will not be held to have waived this
right, unless clear and unmistakable with a full discussion
during negotiations
iv. Milwaukee Spring – relocation does not modify CBA terms
for wages, etc.  don’t need consent; bargaining to
impasse is enough
Pro: All demands should be laid on table initially; K stability
Con: U can’t foresee everything, and waste time to try to
Ind. peace promoted by open, ongoing discussion
b. Permissive  may unilaterally implement
ii. U’s duty
19
1. Term contained in CBA  8(d) – cannot strike until end of CBA and 60day cooling off period
2. Term not contained in CBA
a. Mandatory  strike ok, unless no strike or zipper clause
b. Permissive  strike always a ULP
Successorship
I.
Duty to Bargain
a. Fall River Dyeing (and Burns)
i. Successor is required to bargain with U where:
1. A majority of S’s workforce are former EEs of predecessor
a. determined when S retains a substantial and representative
complement of workers (with continuing demand rule)
b. S can hire whoever, but can’t discriminate
2. There is substantial continuity – same work, same setting, etc.
Pro: Industrial stability and peace; U vulnerable during transition
Con: we don’t know if majority EEs at new ER support U; election
would be better
ii. But successor is not bound by old CBA
Pro: Successor situations often arise when old ER wasn’t doing well
 bad idea to stick with old CBA which may have been part of
the problem
Con: Industrial stability
1. Wiley distinguished:
a. Wiley is 301, which isn’t bound by 8(d) rule against imposing
substantive terms
b. Wiley is based on a preference for A
c. Wiley was a merger, with state law background
II.
Duty to arbitrate under predecessor’s CBA
a. John Wiley & Sons
i. merger  ER absorbed by non-U successor, and CBA terminated
ii. successor merged ER must A under CBA w.r.t. grievances which had arisen while
CBA existed, if substantial continuity of identity
iii. A will decide which substantive provisions of old CBA survive (how??)
b. Golden State Bottling
i. Successor bought the whole business
ii. Must reinstate EE with backpay, b/c this was an existing ULP liability
c. Howard Johnson
i. No duty to arbitrate under old CBA, where S only bought some of P’s assets (not
a merger) and did not hire a majority P workforce
ii. No merger, so predecessor still exists  U has no remedy
Con: Incentive for ER not to hire old EEs
20
III.
Double Breasting
a. ER has both a U and a non-U subsidiary
b. 2 part test for whether the U’s CBA covers the non-U subsidiary
i. Are the 2 entities really a single integrated ER?
ii. If so, is it an appropriate bargaing unit?
Pro: rat’l reaction to competition in marketplace
Con: discrimination against U EEs
IV.
Bankruptcy
a. Generally, bankruptcy trustee can reject executory K
b. But before rejecting CBA, trustee must have sought some accommodation from U and
show some necessity
c. Court have been pretty allowing with ERs on this
Labor and The Antitrust Laws
I.
Clayton §6 – exempts labor org’s from antitrust laws; ERs not exempt
a. Hutcheson—labor orgs. are exempt, unless combine with non-labor orgs.
II.
Allen Bradley – U not exempt where combines with nonlabor organizations
a. here – conspiracy with ERs to keep non-local manufacturers out of NYC
b. Work preservation as a sword, not a shield
Pro: ERs shouldn’t circumvent antitrust by including U
Con: The pronouncement is too broad; U combines with ER whenever
there is a CBA
III.
UMW v. Pennington
a. U cannot conspire with one set of ERs to impose wage scale on other ERs in order to
drive them out of business
Pro: competition
Con: it’s natural and appropriate that ERs are concerned with whether
other ERs will get lower wages
will just drive it underground; wages is a mandatory subject
b. Generally limited to predatory schemes
IV.
Jewel Tea
a. U negotiated CBA with multi-ER unit which restricted operating hours
b. Agreement fixing pricing would clearly be illegal, even if CBA with just one ER
c. But agreement with one ER or multi-ER unit fixing wages clearly legal
d. This is more like wages, b/c more directly related to terms and conditions of employment
(necessary to protect U’s interest)  exempt from antitrust
Con: Very unclear where to draw the line
Proposal: any agreement over a mandatory subject is ok
V.
Brown v. Pro Football
a. Multi-ER unit can bargain to impasse implement together, w/o violating antitrust
21
b. Exemption continues past impasse for a reasonable time, but doesn’t go on forever
VI.
Connell Construction
a. U tried to get general K to agree to deal only with sub Ks who are party to U’s multi-ER
CBA
b. Such a U signatory clause outside context of CBA is not exempt
i. A direct restraint on business market with substantial anti-competitive effects,
above and beyond eliminating wage and working conditions competition.
ii. It’s too broad. Ex. more efficient sub excluded even if pays U wages
iii. Seems to imply a least restrictive alternative test for removing wages and other
terms and conditions of employment from the market, but…
c. Woelke & Romero – if it’s within a CBA, it’s fine
VII.
American Federation of Musicians v. Carroll
a. Price floors are ok, because closely related to wages of U members
VIII.
Unsettled – whether same conduct can violate both NLRA and antitrust
Pro joint liability: maybe party should be able to elect which one
Con: labor law violation should keep it from being an antitrust
violation
specific provisions of NLRA are better indication of C intent
than general provisions of antitrust statutes
Preemption
I.
Overview
a. Garmon preemption
Pro: conduct is more or less prohibited based on the remedy provided
 would upset balance to allow state to impose extra remedies
i. Garner – State cannot enjoin picketing which violates 8(b)(2); interferes with
Bd’s primary jurisdiction
ii. Garmon – State cannot regulate activity which is either arguably protected or
arguably prohibited by the NLRA
1. Possible exceptions
a. Matter of peripheral concern
b. Deeply rooted in local feeling and responsibility (ex. violence)
iii. Lockridge – state cannot order reinstatement of EE based on breach of K b/w EE
and U, since firing was arguably a ULP
iv. Gould – state won’t K with ERs who have committed 3 ULPs  preempted; state
can’t impose add’l sanctions
Pro: consequences of ULP shouldn’t differ depending on the state
conduct is more or less prohibited based on the remedy
provided  would upset balance to allow state to impose extra
remedies
Con: maybe it furthers purpose of NLRA by providing add’l sanction
v. Exceptions
22
1. Farmer – tort action for IIED not preempted
a. Underlying conduct not protected
b. Overriding state interest deeply rooted in local feeling and
responsibility
c. Little risk of interference with Bd’s performance
d. Limitations:
i. The discr. can’t be the underlying outrageous conduct
ii. It must really be outrageous
iii. Non-excessive damages
Con: Lack of general principles for future line drawing
2. Linn – state defamation law similarly not preempted
3. Sears – state injunction under trespass law not preempted
a. Picketing arguably prohibited, but trespass law addresses different
aspect (location) than NLRA (purpose)
b. Picketing arguably protected, but U did not file a ULP charge 
not interfering with Bd.
4. Strike enjoined for violence
b. Machinists preemption
i. Machinists – injunction against partial strike preempted
1. Partial strike not protected or prohibited, but is part of free fire zone
intentionally left unregulated by C
2. The question – will state regulation of self-help frustrate effective
implementation of the Act’s processes?
ii. Golden Gate Transit – city cannot condition franchise renewal on strike
settlement
iii. Market participant – State can require bidder to pay prevailing wage, as
calculated based on U scale
c. §301 preemption – state courts can hear suits to enforce CBAs, but must apply federal
law
II.
Selection of Bargaining Representative
a. Brown v. Hotel & Restaurant Employees – no preemption were state places restrictions
on who can be a U official
Pro: LMRDA indicates that right to choose U official is less absolute
than right to choose a particular U
Con: by addressing explicitly in LMRDA, C may preemption more
appropriate
III.
Collective Bargaining
a. Local 24 v. Oliver
i. state antitrust law preempted when applied to mandatory subject in CBA
ii. federal labor policy encourages bargaining, but not substantive terms  state law
limiting terms of CBA concerning mandatory subjects frustrates C purpose
23
b. Minimum benefits laws  no Machinists preemption (and no Garmon either)
Pro: One goal of NLRA was higher wages and benefits  these laws
promote it
neither encourages nor discourages organization and bargaining
Con: No different than Oliver; makes preemption a one-way ratchet
Takes away ability of EEs to bargain for different balance
Proposal: Statutes of general applicability are ok
i. Met Life – no preemption for state law requiring minimum mental health benefits
ii. New York Telephone – no preemption for state law granting unemployment
benefits to strikers after 7 weeks
Pro: policy underlying statute does not concern ER-U relations
federal Social Security Act authorizes
deeply rooted in local feeling and responsibility
Con: A hugely powerful tool for Us, especially since ER bears the cost
It’s not of general applicability
iii. Fort Halifax Packing – no preemption for state law mandating severance pay for
plant closings, where U allowed to bargain down
c. Belknap v. Hale – economic strike replacements allowed to sue ER who promised them
permanent replacements; peripheral concern
Pro: ER could reinstate strikers and keep replacements
ER can protect itself by conditioning permanent replacement on
settlement with U or Bd. ULP determination
Con: Deters settlement with striking U
Burdens ER’s resort to an economic weapon  Machinists
preemption
IV.
Enforcement of CBAs
a. Allis-Chalmers v. Lueck
i. State tort law preempted, where EE claims bad faith under CBA
ii. Claim requires interpreting the CBA
b. Lingle
i. State retaliatory discharge law not preempted
ii. An independent tort – elements do not require interpreting the CBA, even though
underlying facts are the same
Pro: state can provide minimum substantive guarantees to all workers,
and CBA shouldn’t take away those rights
c. Lividas
i. state labor policy preempted, where comm’r chooses not to enforce prompt wage
payment law w.r.t. unionized EEs
Pro: would discourage collective bargaining, b/c less protection with
CBA
ii. prompt payment law not preempted – looking to CBA for damages is subsidiary
V.
Retaliatory Lawsuits – Bill Johnson’s Restaurants
24
a. If suit is well-founded  can’t be enjoined as a ULP, even though retaliatory
b. If suit is baseless  can be enjoined as ULP
VI.
Supervisors
a. 2(3) – excludes them from definition of EE
b. 2(11) – defines supervisors (duties connect by “or”)
c. 14(a) – NLRB does not prohibit supervisors from unionizing, but ER shall not be
compelled to bargain with the,
d. State can enjoin supervisor picketing
e. State cannot prohibit ER from firing supervisors for labor activity
The Individual and the Union
I.
The Right to Fair Representation
a. In general
i. Steele v. Louisville & Nashville RR (RLA)
ii. Ford v. Huffman – U owes DFR to all EEs in unit; duty implied from §9
representation provisions
iii. Miranda Fuel – it’s also a ULP
b. Collective Bargaining
i. Air Line Pilots v. O’Neill – DFR interpreted very narrowly in negotiating CBA;
pretty much has to be bad faith; very wide range of reasonableness
Pro: Otherwise, courts would be too involved in CBA negotiations
There are always tradeoffs b/w different parts of unit
Democratic process protects
Con: Non-members can’t participate in democratic process; election
bar rules
ii. Ford v. Huffman – credits for veterans service are fine; existence of differences is
what Us are required to resolve
c. Grievances
i. Vaca v. Sipes
1. DFR includes
a. no hostility or discrimination towards individuals
b. good faith and honesty
c. no arbitrariness
2. Federal and state court have jurisdiction for breach of DFR, and federal
law governs (no preemption, even though breach of DFR is a ULP)
Pro: Filing ULP charge with Board may not be enough
Regional Director may not go to complaint
Can only order U to cease and desist
3. EE can also sue ER under §301 (despite A clause) for breaching the CBA
where U has breached DFR in refusing to grieve further
Pro: U should be able to settle with ER where appropriate; otherwise,
A would become too expensive and thus less useful
25
Con: EE should be able to sue ER so long as attempted to exhaust
grievance procedures; shouldn’t require U breach of DFR
4. Court can decide merits instead of ordering A
Pro: repeat player concern – EE represented by independent person,
rather than U in A; efficiency
Con: A is better (this is what Canada does)
5. No absolute right to grieve; it is not a per breach DFR if:
a. U and ER settle grievance w/o A
b. Grievance is later found to be meritorious
ii. Union News – U did not breach DFR in agreeing to discharge without just cause
Pro: It’s just as if U is agreeing with ER to modify the CBA
Con: CBA creates reliance and vested rights in individual members of
the unit, so U can’t negotiate away K breaches claimed by
individual EEs
iii. Bowen v. USPS – apportion damages between ER and U according to fault
1. ER pays back pay up until time A would have happened
2. U pays back pay since then
Pro: U did increase the damages
Con: It’s mostly ER’s fault; only ER has continuing ability to right the
wrong
Hurts U financially and encourages processing of frivolous
grievances
iv. Clayton – EE must exhaust CBA procedures before suing ER and U, but need not
exhaust internal U procedures
v. Railway Labor Act
1. individual EEs can pursue own grievances to adjustment board
2. U authority to settle requires actual authority from EE, U constitution, or
custom
d. Union Hiring Halls – Breininger
i. Courts have jurisdiction for DFR where U allegedly denied job referrals in
retaliation for anti-U-official activities
ii. Needn’t have an ER breach of CBA in order to make a DFR claim against a U
e. Foust – no punitive damages for breach of DFR
Pro: would unduly interfere with discretion of Us in handling and
settling grievances
juries have too much discretion
II.
Union Security
a. NLRB v. General Motors
i. 8(a)(3) – not a ULP for ER to agree with U to require U membership (within 30
days of being hired) as a condition of employment
1. So technically, “union shop” is allowed
26
2. But – can only require “membership” inasmuch as that means paying dues
and fees
3. To require dues, membership must be available on same terms
ii. “Closed shop” (requiring U membership before hiring) is illegal
a. Exception – construction industry
iii. “Agency shop” is allowed – not requiring membership, but requiring paying dues
and fees
Pro: free rider problems
b. Machinists v. Street
i. Under RLA §2, Eleventh, EEs cannot be forced to pay dues which go towards
political activities with which the EE disagrees
Pro: 1st Amendment considerations; free riders concerns are smaller
Con: This is rewriting the statute; main consequence is paperwork
c. Beck – same for NLRA 8(a)(3); expenditures must:
i. be germaine to collective bargaining
ii. in furtherance of interest in labor peace and avoiding free riders
iii. not add significantly to free speech burden inherent in U security devices
d. Procedure and notice requirements
i. Ellis
1. Rebate scheme no good, b/c gives ER interest free loan
2. Convention, social activities, publications – non refundable
3. Organizing other firms – refundable
ii. Marquez – U does not breach DFR when it negotiates a CBA which uses the
8(a)(3) language, without mentioning the Machinists and Beck limitations
iii. California Saw and Knife – procedural and notice requirements (arising from
DFR) for Beck refunds
iv. ALPA v. Miller – EEs can challenge agency fees in court w/o exhausting A
e. State Right to Work Laws – can’t require membership or paying dues
i. State can enjoin operation of agreement
ii. But state cannot enjoin a strike or picket aimed at obtaining such an agreement (a
ULP strike  prohibited  preempted)
Pro: freedom of K
Con: free riders
f. Hiring Halls
i. Local 357, Int’l Bhd. of Teamsters – U hiring hall is fine so long as doesn’t refer
based on U membership
Pro: 8(a)(3) and 8(b)(2) only outlaw discrimination
hall is efficient clearinghouse for jobs; mobility and flexibility
Con: surely conditioning employment solely on U referral encourages
U membership
III.
Discipline
a. Scofield – ok for U to penalize for EE who produces too much
27
b. Allis-Chalmers – U can fine members (fine = wages) who work during strike
c. Pattern Makers’ League – members must be able to resign during strike (and return to
work) without incurring fines
Pro: unionism must be totally voluntary
Con: free-riders – EE gets benefits of bargaining, and can then just
drop out
In becoming a member, EE knew about this provision  it is
voluntary, b/c not forced to join
U has right to proscribe its own rules; internal affairs of U
protected by 8(b)(1)(A)
Proposal: U requires 30 days notice before resigning (this was allowed
before Pattern Makers)
d. Florida Power – U can fine supervisor-members who report to work during strike
28