Labor Flashcards
Growth in 19th/20th Century promotes idea of organized labor/EE rights
Industrialization = factory work = dangerous, long hours, EEs lacked control over working lives (how/when to work)
no longer farmers/independent artisans in control of lives; now EEs for corporations
Violence used to promote cause (both workers and industry)
13th Am abolishing slavery/forced labor - idea of personal liberty to ‘sell’ your services to someone else (buyers monopoly)
anti-trust laws applied to Us (enjoining U activity)
Freedom of K/Emt at will (Lochner era) - yellow dog Ks allowed (EE agrees not to support U)
Freedom of commerce -
- secondary boycott [union tries to pressure/persuade parties outside the union/ER] = illegal restraint of trade/commerce that is not proximately related to ER/EE relationship under Sherman Act [which allowed treble damages] or Clayton Act (Hatters; Duplex Printing)
- standard for determining lawfulness of U activity:
1) objective/ends? (interfere w/EE right to choose; hurt ER/commerce; strengthen U)
2) means? (moral persuasion split)
1932 Norris LaGuardia Act: (Anti-injunciton Act)
- Pro-U language: “unorganized worker is commonly helpless to exercise actual liberty of K and to protect his freedom of labor . . . “ p36
- bans injunctions in labor disputes (direct overrule Duplex) (exceptions for violence against persons and property);
- outlawing “yellow dog” contracts.
1935 National Labor Relations Act (NLRA) - 4 main goals and pro-U policy
4 MAIN GOALS OF NLRA:
- stability and labor peace
- encourage unionization, collective bargaining and industrial democracy - union - stronger economy
- purpose to provide fair/neutral playing field, allow union/ER to settle on own terms w/o gov involvement
- bring law into conformity with reality of union organization
Pro- Union Policy statement:
- No freedom of K b/c “the inequality of bargaining power” of individual workers vis a vis corporate employer, and
- declaring policy to protect union/ union activity to balance power of collective capital via collective bargaining with employee representatives.
- ER reaction to EE collective action obstructed free flow of commerce
Three devices for implementing Beating Heart rights:
- exclusivity
- appropriate bargaining unit
- majority rule
ER ULPs outlawed in Sec. 8(a):
- interfere/restrain/coerce EEs Sec. 7 rights;
[Note - this is always violated if other sections are too; so U files ULP alleging violations of 8a1 always, but also 8a3, etc.] - interfere w/union or support u
- discriminate on basis of U membership
- discriminate against EE cuz asserted rights under Act
- refuse to bargain collectively
Sec. 9 - how to reach the promise land (exclusive representation status)
9(a) - Rep designated by majority of EEs in appropriate bargaining unit for purpose of collective bargaining will be exclusive rep
9(b) Board determines appropriate unit
9(c) Board shall hold election upon petition
Sec. 10 - Remedies for violation
Sec. 10 allows ER to terminate “for cause”, but “for cause” does not punishment for engaging in concerted activities under Sec. 7
“make whole” remedy - backpay, bens, and reinstatement
MORE???
Exempted from NLRA:
- AGricultural EEs,
- Public EEs,
- small businesses (less than $500k gross receipts),
supervisors, - managerial EEs (may include faculty at schools - yes to Obama bd)
- contingent workers - ind K, part time, temporary
1947 TAFT- HARTLEY ACT
(over FDR veto), change Congress from pro-Union to neutral
a. AMENDING SECTION 7 to recognize the right of employees “ to refrain” from Section 7 activities,
b. Establishing “unfair labor practices” against unions (now Section 8 b), including most of those above for employers, and adding a prohibition of “secondary boycotts” and other practices (and establishing DAMAGES and mandatory INTERLOCUTORY relief provisions for secondary boycotts),
c. Allowing “union security” agreements requiring all bargaining unit employees to join or contribute to a legally established exclusive bargaining agent, but also,
in SECTION 14-B allowing the states to “reverse preempt” this part of the federal law by enacting STATE statutes now known as “Right to Work” laws forbidding REQUIRING bargaining unit employees represented by a legally constituted exclusive rep. to join or pay money to the rep.
Section 7 Right
Right to Engage in “Concerted Activity for Mutual Aid and Protection,”
Concerted Activity?
(1) “Two to Tango” Rule.
Nodding head;
asking EEs to join may be sufficient
Obama Bd - indiv who complains about an ER policy (of terms, working conditions) that applied to more than just one EE, is concerted b/c the policy applies to more than one EE
(2) Individual Employee Appeals to Other Employees to prepare for action.
(3) Individual assertion of group rights under a CBA
“For Mutual Aid and Protection.”
(may be inferred from circumstances)
(1.) Connection to Employee Wages, Hours, or “Other Terms and Conditions of Employment” [discipline and discharge, layoffs and recall, leave rights, workload, holidays, vacations, fringe benefits and other forms of compensation, and working conditions, etc. – SEE “SCOPE of BARGAINING” in later classes.
(2) Abuse of Right “Unprotected.”
Example:
Hispanics United - Bosses pet complains coworkers are bad at job; on FB “bosses pet is gonna get us in trouble” - other cowrokers respond; Co. fires FB posters for “bullying”
- Held - FB activity was protected cuz concerted activity for mutual aid and protection (several peeps; protect job/reputation as workers)
Weingarten Rights
right to have U rep in investigatory interview
Apply In non-U sector? (currently no) - Yes; concerted activity for mutual aid and protection; defer to Bd mitigate chance of unjust discipline gives EE advocate Sec. 7 applies to all workers, U or no
No (current; IBM)
- Coworkers do not rep whole workforce
- Coworkers cannot redress imbalance of power b/t EEs and ERs
- coworkers do not have same skills as U rep
presence of coworker may compromise confidentiality of info
- Private ER = right to deal individually w/EEs
- IBM is wrong - confuses efficacy of a right w/its existence; requiring coworker rep is NOT = to req ER to bargain w/the coworker
ER Policy violate 8(a)(1)?
does policy tend to chill EE’s exercise of Sec. 7 rights? Yes if:
- explicitly restricts Sec. 7 rights
- EE reasonably construe it to prohibit Sec. 7
- rule in response to U activity
- Rule applied to restrict Sec. 7 rights?
Exs:
- Costco
- Policy prohibiting online messages that defame Costco (Violates 8a1)
- Policy prohibiting leaving costco premises w/o permission
(NOT violation of 8a1 b/c not reasonably understood to violate SEc. 7 right)
—> BUT if language said “EEs cannot ‘walk off job’ or ‘walk out’ (ie strike language) then it would chill exercise of Sec. 7 rights
Purple Communications
email communications for non-work purpose on non-work time are protected if ER allows personal use
email = virtual water cooler
–> Or not: email/FB are in writing, permanent, easily shared worldwide vs. water cooler = ephemeral
Water Cooler re CEO pay
- for mutual aid/protection or merely griping?
- Diff b/t water cooler and posting online in its permanance, more widely shared
- U retort - just a modernization of old rules that allow EEs to discuss terms of employment, esp in nonwork time
- ER - but online is not private convo anymore, posts could harm ER reputation (e.g. “supervisor is slave driver”)
its really just about balancing of interests; of Sec 7 rights and ER legit interests including property rights
Policy against talking during confidential investigation
Must show legit interest in confidentiality of information - protecting witnesses, avoiding cover up [or else it chills EEs expression of Sec. 7 rights]
NLRB jurisdiction
a. Private Sector Businesses “affecting” interstate commerce.
(1) . More than $500,000 gross revenue, and non-retail with more than $50,000 in either sales or purchases out-of state.)
(2. ) Note: Small businesses over which the NLRB does not assert jurisdiction sometimes covered by “Little NLRA” state laws.
b. Excluded Employees:
“Supervisors” [broadly defined],
confidential employees,
managerial employees (including faculty at private schools),
independent contractors,
agricultural employees [but not food processing employees like canneries].
NLRA – Process and Procedure (ULP - “C”)
- Charge
- GC complaint
- ALJ hearing
- review by 5 member Board
- US Ct App
- SCOTUS
Remedies for ULPs
generally limited to:
- cease and desist orders,
- reinstatement
- backpay (minus interim earnings)
- broad cease and desist orders (dont do that again)
posting notice (notice at workplace of the sitch/practice)
NO compensatory/punitive damages
–> Exception for secondary boycotts where compensatory damages allowed under 10(j)
Representation Cases: “R” cases
Board Process for Determining “Questions of Representation.”
Union petitioning for exclusive rep status must demonstrate 30% support (typically via signed cards from individual employees expressing desire for union’s rep.) in proposed and “appropriate” bargaining unit to trigger “R” process.
(1) Issues Include;
(a) Definition of Bargaining Unit (single situs, metro or company wide, “micro” units, etc.?).
(b) Disputes Concerning Whether Individual Employees are Excluded Employees (supervisors, guards, etc.),
(c. ) Alleged Misconduct by Union or Employer Such as Intimidation or Discrimination against union supporters or illegal bribes by either party.
(2) NLRB agents conduct secret ballot election. Parties may state objections, and appeal Reg. Dir. determination to Wash. D.C.
(3) If Union wins, NLRB “certifies” results and union becomes exclusive rep of barg. unit employees. If employer wins, NLRB certifies that result. In both cases further election (to throw union out, or for losing union to try again) is generally barred for one year. This is called the “certification” and “election” “BAR” to an election.
(4) . Bargaining Unit Employees May Petition for “Decertification” of Union as Exclusive Rep. via same 30% showing of support, and generally same process. But various doctrines and rules restrict this as you will see.
(5) . The NLRB Election Process Has Generally Been Described as a “HARD IN, HARD OUT” system: hard for unions to get certified, and hard for the employees to throw the union out once it becomes the exclusive barg. agent under the law.
EXCLUSITY
U.S. Labor Law (but not the law in other nations such as the EU and many Latin American nations ) assumes ONE legal “exclusive rep” for all employees in “bargaining units”, selected by majority rule. The “exclusive rep.” has a legal “duty of fair rep” to all employees in the barg. unit, whether they are union members and supporters, or not.
Three paths to Exclusive Rep status:
(1) Voluntary Recognition -
Card check - [Union’s Demonstration of Majority Support in Appropriate Bargaining Unit, Typically By Signed Cards From Employees Stating Desire for Representation by Union]
Unions generally prefer this path.
Majority in fact
(2). NLRB Majority Election secret ballot Management generally prefers this path. Current law gives employers right to insist on this path (Linder Lumber). WHY?
(3) Certification of Union as Exclusive Rep as Remedy for Egregious ULP’s such as Discharge or Retaliation of Union Supporters Making Fair Election Impossible. Rare.
EEs cannot waive exclusive rep
JI Case
- 75% of EEs under K before U elected as exclusive rep
ER refuses to bargain w/U re those 75% EEs (arguing freedom of K)
COURT - that’s 8a5 refusal to bargain;
- all EEs in barg unit are entitled to exclusive bargaining agent
- rejects ER waiver argument, that EEs waived barg right under K
- it’s not a waivable right; the whole idea of bargaining is inequality of individual bargaining power, so EE must be allowed by majority vote to bargain collectively, so doesnt make sense to let individual EEs to waive that right
NO Direct dealing
EEs bypassing exclusive rep are not protected - Emporium
e.g. EEs bypass U and incite boycott; ER fires EEs
COURT
EEs bypassed U and attempted to bargain w/ER on own
U is exclusive rep and only way to bargain/address grievances
ER not relieved from ban on direct dealing even if EE initiates
Alternatives to Exclusivity
- EU Work Councils - ERs and EE work council rep working together to discuss problems
- what’s a US management fear of ‘work counsels?
–> costs would go up
EE reps would incite EEs to demand higher wages, etc
foot in door, next thing will be collective bargaining and what would be terrible - Volkswagen
- not full work council, can only discuss limited issues
- 15% of EE want a certain rep to speak for them in a work council, ER will voluntarily recognize that cuz its good biz practice - Collaborative Bargaining
- TN - allow 15% of teachers vote to barg. collectively - Multiple reps?
- MO - constitutional right to bargain
BARGINING UNITS
Sec. 9(b) - “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining”
- community of interests
- Little guidance of “appropriate” except to maximize EE freedom - thumb on scale in favor of U’s
- avoid fragmentation
- prefer wall to wall (though now w/”micro units” may be changing)
- 9(c)(5) = extent to which EEs have organized shall not be controlling on Boards determination whether unit is “appropriate”
exclusions from barg units
- Guards,[conflict b/t guards who may be req to enforce ER rules against non-guards]
- Professionals, [predominantly intellectual, uses discretion/judgment; ouptu cannot be standardized]
- Supervisors
(and other excluded employees)
“Multiple Employer Bargaining Units” (construction, food, retail)
- ERs voluntarily belong to association, which has reps at bargaining table - e.g. 100 companies have 5 reps who sit at bargaining table
- defensive tactic for ERs - dont want Us to pick off one ER at a time, then move to next
- desire to take labor costs out of competition, and compete in quality of product, so ERs dont have incentive to squeeze down wages/quality of worker life in order to compete
- Hard to get out - Bonano - ER may withdraw prior to start of negotiatiion w/adequate notice; or by mutual consent, or unusual circumstances
- –> unusual circs - extreme financial pressure or substantially fragmented barg unit
- —-> NOT impasse, which is not unusual and only temporary deadlock
“Micro Units” Controversy in Obama Board rulings.
Micro Units OK - Specialty Healthcare
9(a) puts initiative of selecting unit to EEs not Board
not “the” most appropriate unit
community of interests in small workgroup
–> Burden on ER to show “overwhelming evidence that bigger unit is appropriate”
Card check process
- get cards signed (in no pressure manner)
- go to neutral third party to evaluate cards (so U isn’t outing the EEs to the ER) to see if majority
LIMITS:
1) nobody can pressure/coerce into signing;
2) ER cannot assist U
Linder Lumber
(‘70s) allows ER to demand election - which U must get
- ER subject to ULP for barg w/noncertified U - would req court to engage in good faith inquiry
- dissent - nothing specifies how rep must be chosen; 9a says EEs barg rep is the U “designated or selected” by majority
card check majority
Must have majority in fact, otherwise its an ER ULP (8a2) for assisting U recognition w/o majority support
- Good faith not a defense
- relief - cease and desist from the illegal recognition of U
- practically speaking here, ER/U would then just turn around to EEs and say ‘you’ve seen the CBA, if you like it then sign these cards’ and get a majority card check
U wants Card Check or neutrality agreement
- higher success rates in bargaining
- higher success rates of recognition
- to escape ER anti-union tactics and delay in an election, which have shown to be effective at defeating recognition efforts
- –strong cultural opposition to Us in America (American exceptionalism, dislike collectivism, free market w/indiv bargaining)
- –in reality, ER discriminates against 4%-8% of U supporters
- –captive audience issue
- –ERs get rank and file supervisors to meet w/indivd EEs to persuade/obliquely threaten
ERs hate Card Check
- not a secret ballot and the U is coercive (sign this card, or do you wanna be a scab?
- not informed choice or equal information - U isn’t telling EEs about why Us are bad
- for those reasons, tis not a reliable way to tell if EEs are exercising free choice
Recognition Bar
- [current] - to maintain stability, gives U/ER rsbl time to bargain in good faith w/o decert petition; rsbl = 6 months to 1 year, based on facts of each case and balance stability w/free choice (Lamont Gasket Obama Bd, overruling Dana)
- Old rule - after card check recognition, 45 period for EEs (30%) to file decert petition; if none filed, then begin barg (Dana Bush Bd)
- Us objected to this rule; its hard to get first contract, and peeps want aciton immediately, and this 45 delay hinders those things;
- irony is that minority of 30% can force an election and delay the process, overriding the 70% who wants U and immediate bargaining
PUBLIC SECTOR CARD CHECKS
- same system of card check majorities
- became common for public ERs to just accept validity of card check (like early NLRA private)
- some states have system like Linden Lumber
- other states, like NY, req ER to recognize majority card check
- other states, like OR, CA, ILL, NJ - have laws like EFCA which is the State Board (ERB here in Oregon) is required to certify U that shows majority card check (that is verified) - ER cannot force election like under Linden Lumber
- even if statute says verify by “dues deduction and other evidence”, and means or, because Legislature intended to get away from cumbersome process of election, so simple card check is sufficient to show majority
“Neutrality” Agreements
Three types:
1) ER remain neutral
2) ER give U access to EEs - phone numbers, physical property of workplace;
3) card check acceptance and direct to good faith bargaining (avoiding delay, expense, of electrion process)
Why would ER agree?
1. avoid costs of not doing it (strike, picketing of customers, indirect costs of strained relations w/third parties (e.g. loss of biz w/religious groups); cost of disputed election);
- benefits
advantages of marketing services to unionized firms or to other unions;
assistance from U in lobbying efforts;
enhance ability to attract qualified EEs;
promote cooperative stance w/EEs and U - Spike Lee Factor do the right thing
NLRB Election process
Election is “preferred” method - Gissel
- 30% petition
- Bd decides whether there is a question concerning representation
- Excelsior List
- Hearing
- Election
“question concerning represetnation”
- does Board have jurisdiction
- whether adequate showing of interest (the 30%) - which is admin determination not subject to judical review
- is there a qualified rep? which could be an individual (per 2(a)) or more typically labor org/union; if indiv/labor U doesn’t wanna rep then not qualified
- is the unit appropriate?
- is there a bar to an election?
Bars to election
- recognition bar (why min in recognition bar? cuz need time to allow rep to show effectiveness; max cuz EE free choice is important) to get to a K
- Sec. 9(c)(3) 1 year election bar if ER wins election (EE free choice take back seat to stability)
- if U wins, then “certification bar” - 1 year bar from date of recognition (see Brooks case on 441)
- Contract Bar -
Contract Bar
- stability - whats the point of a K if can just force election immediately; would make it harder for U to make sacrifices necessary to get agreement if rival U could swoop in and say i could get you a better deal
- K must have substantial terms and conditions of employment to show stable bargaining relationship
- 3 yr contract bar for non-party petitions/life of K for parties
- except: “window period” 90-60 days before contract expires, may file petiton for election
- stability vs freedom
- Exceptions - rare - 1. schism (U divides); 2. defunct U
Excelsier List
- ER must give U names & addresses of EEs in barg unit, w/in 2 days of election being ordered (was 7 days, Obama changed it to 2)
- must include email and phone numbers (Obama)
- – PRO - Just how peeps communicate
- – CON - cumbersome for ERs
QUICKIE ELECTIONS
a. compromise - speed up process (good for Us) but keep election as safeguard (rather than EFCA/card check, good for ERs)
b. must have pre-election hearing 8 days after petition is filed
c. after hearing, election may be few days later
d. moves disputes about voter eligibility til after election (e.g. is Drummonds a worker or a supervisor who can’t vote?) - dont wanna hold up the election
e. PROS (Unions)
i. makes elections fair/levels playing field
1. ERs have inherent advantage w/time w/EEs and control over their salary, benefits, etc.
2. prevents ER from brainwashing, coercing
ii. makes sense - have majority support already, why delay?
f. CONS (ERs)
. not informed choice - eliminates time for ER to give its info [Liebman spiel]
1. RETORT - ERs have plenty of time, they are prepared for this and will have materials/arguments ready to go w/in that 20 day period
i. U can lobby EEs for months, pick time to drop petition for election then 8 days later are in a hearing and right to election 14 days later; NOT enough time for ER to give their side of story
ii. ERs will be forced to continually tell EEs about why U’s suck, and U’s dont want that
Why do U’s lose half of their NLRB elections?
- b/c legal rules dont protect EEs well enough?
- b/c U’s own problems? (bureucratic, lost conneciton to workers, etc)
- b/c of American culture of exceptionalism?
- ER coercion!
- –U starts w/over 60% support yet still loses ½ elections . .
Type I Blocking Charge (allegation of pre-election ULP)
delays election until remedy
- e.g. ER fires top 5 U-supporters before election, such that U supporters will change their mind
- U files Type I Blocking charge that ER fired for union activity and must remedy before eleciton cuz its tainted now
Type II Blocking Charge
prevents election from being held
e.g. ER alleges U mischief that makes its election petition invalid
Catchall blocking charge
raises a causal connection b/t alleged violations and subsequent EE disaffection w/incumbent union [e.g. where ER unilaterally changes wages of non-U EEs to erode support for U]
REMEDY = affirmative bargaining order
- e.g. “tainted decert case”; Board determines whether ther eis causal conneciton b/t these ULPs and subseqnet EE disaffection with following factors:
- -length of time b/t ULP and withdrawal of recognition
- -nature of illegal acts, including possibility of their detrimental or lasting effect on EEs
- -any possible tendency to cause EE disaffection from U; and
- -the effect of unlawful conduct on EE morale, organizational activities, and membership in U
Alter ego
Not a successor
alter ego = mere technical change in structure or identity of employing entity w/o any substantial change in ownership or management - must accept CBA
Single/Joint ER (for purpose of successorship)
single ER doctrine applies to determine whether one entity is liablef or ULPs of another entity b/c they are really a single or joint ER;
factors:
1. interrelation of operations;
2. common management
3. centralized control of labor relations
4. common ownership
If successor, buyers obligations?
- status of unexpired CBA
a. Buyer not bound (unless agrees to be bound in buying K)
i. NLRA purpose to encourage private bargaining
ii. if U/ER have K for successor, ER must violate that
b. Buyer has duty of good faith bargaining
c. Stock acquisition = not successorship, just diff stockholders so status quo remains - Duty to bargain if ER employs majority of old EEs - depends on majority status on key date: Representative Complement Test [ie a full shift to do the work]
a. duty to bargain if majority when:
i. job classifications designated for operation were substantially filled
ii. operation was in substantially normal production
iii. size of complement on that date of normal production
iv. the time expected to elapse before substantially larger complement could be at work
v. relative certainty of ER’s expected expansion- — EEs interest in being represented asap outweighs ER interest in maximum EE participation in complement
b. [recall ER cannot discriminate in hiring based on U membership]
c. BUT - ER can set initial terms and conditions of employment while bargaining
- Continuing demand rule
. ER’s duty to bargain at the “substantial and representativce complement date” is triggered only when the U has made a bargaining demand;
. –> if U demands before ER attains substantial and representative complement, then that demands stands until that time
i. if U does not demand, U waives ERs duty to bargain - Successor bar
. Obama Bd - requires ERs to recognize incumbent Us w/o challenge to their majority status after biz transition for reasonable time, not less than 6 months but not more than 1 year - If pending ULP, buyer is liable if a successor - risk (so lower price, indemnify)
Is there successor?
Substantial continuity test
1 whether biz of both is essnentially same
2 whether EEs are diong same jobs in same working conditions under same supervisors
3 whether new entity has same production process, produces same products, an basically has same customers
4 whether retained EEs reasonably view job situation as essentially unaltered – this furthers’ Act’s policy of industrial peace
When can ER withdraw recognition of Union?
When U actually lost majority support (ER must be right, or else violate 8(a)(2) coercion/discouraging U membership )
— Remedy - ER must bargain in good faith
if ER uncertain, may petition for RM election (9(c)), founded on objective evidence (unverified EE statements, EE dissatisfaction w/coll barg decisions, anti-U petition signed) - NOT barg unit turnover (presumption of majority)
Employee Access:
• Balance b/t Sec 7 rights and ER property
• presumptively, balance favors EE rights to do these things on non-work areas and non-work time
• workplace is “uniquely appropriate” for U organizing that is central to Sec. 7 rights; (Republic Aviation)
—— unless special circs re production or discipline [safety, prevent alienation of customers, promote patient care]
• Peyton Packing presumption - work time is for work
- Examples:
- EEs can talk Union activity during non-work time [work “time” not “hours” cuz “hours” might make EE think that includes lunch, but it doesn’t] [Email ok - Purple Comms]
- EEs hand out materials re U activity if away from work areas
- EEs wear U buttons or insignia (unless safety threat, alienation to customers)
- Exceptoins
- presumptively, balance favors EE rights to do these things on non-work areas and non-work time
- patient care providers - cant talk U in patient care area
- ambiguous aresa in hospitals - flower shop/starbucks - if generally open to public then more restrictive rule does not apply
- Presumptively valid Policy
- Policy applies only during work time (ie does not apply during lunch and break periods, before or after work shift)
Peyton Packing presumption
- facially neutral rule prohibiting solicitation during work time is presumptively valid absent discriminatory motive
- OTOH - ER may not prohibit solicitation during non-work time unless special circs re production or discipline [safety, prevent alienation of customers, promote patient care]
Presumptively valid Policy
Policy applies only during work time (ie does not apply during lunch and break periods, before or after work shift)
Non-EE access
background - In some circs, EEs right of self-organization depends on learning from non-EEs (Babcock)
RULE - so long as non-EE U organizers have rsbl access to EEs outside an ER’s property, the requisite accommodation has taken place; it is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the EEs and ERs rights
“reasonable” is nothing more than commonsense recognition that Us need not engage in extraordinary feats to communicate w/inaccessible EEs, NOT an endorsement of view that Act protects ‘reasonable’ trespasses (Lechmere - Thomas)
E.g. Reasonable access (NOT righ to success) - grassy knoll reading license plates at 30MPH (Lechmere)
Dissent - Sec. 2(3) of NLRA - includes “any EE and shall not be limited to the EEs of a particular ER”
Captive Audience
captive audience meeting is mandatory meeting ER calls during work day, even during working time, in which ER discusses its views on unionization
- Balance b/t Sec. 7 and ER property - ER wins re meetings
- Can be individual meetings, small groups, or large
- NO equal time requirements
- Limit - No captive audience meetings w/in 24 hours of vote (Peerless Plywood)
States re captive audiences
- anti-captive audience law = “gag” law (as per ER)
- OR has one
- Big Question on anti-captive audience laws - broad preemption that labor laws carry; D’s winning argument that state captive laws that limit NLRA allows (el.g captive audience meeting) is preempted by NLRA; in adopting NLRA Congress struck delicate balance and states are upsetting that balance;
- opinions differ - advise strict compliance with ORegon’s anti-captive audience, others say ignore it (Labor Comissh ignores);
- MI Dist. Ct. threw it out
- OR law - cannot punish for failure to attend; general reference to ‘religious, political views’ - and defines ‘political’ to include “U”
“free speech” clause of NLRA
8(c) - expression of views or opinions shall not constitute ULP or even be evidence of ULP
=—- BUT No threats or promises
Threat v. Prediction
free speech (8c) vs. “threat of reprisal or promise of benefit [in violation of 8a1]”
1) objective basis for prediction;
2) must communicate idea that consequences are beyond ER control OR to convey that ER decision was already arrived at
Eg. threat v. prediction
- We’re going to close - OK if actually close
- “U could lead to closing” = NOT ok
- ER puts up mock graveyard of unionized ERs = NOT ok
- mock pink slips = OK - “prediction of probable economic consequences” based on experiences of similarly situated stores
- “We’ll start from scratch on bargaining” = ?? ASK DRUMMONDS
Promises of benefits
FIST IN THE VELVET GLOVE
RULE - Bd will infer that bens conferred/announced during critical period (b/t filing petition and date of election) is coercive, but ER may rebut by establishing an explanation other than the pending election for the timing;
POLICY— the evil to protect against is message that source of benefit (ER) can also take it away - - EEs not likely to miss that inference
FACTORS - Bd Examines:
- size of benefit;
- # EEs recieivng it,
- timing of benefit,
- how EEs rsly would view the purpose of ben
- Exception - for benefits that have been past practice; idea here is to prevent something new on eve of election
- —no exception for “permanent” benefit b/c “permanence’ is never sure
E.g. ER gives EE choice of floating holiday, right before election = promise that violates 8a1
Ex of ok benefits: 1. drinks/dinner; 2. slightly larger xmas bonus if a. xmas bonus given every year and b. larger bonuses b/c of good ER finances; 3. new retirement plan if a) ER studying the plan for “some time” before election; b) EE committees interested in plan proir to election; c) date of announcement decided before election petition filed; d) retirement plan applied to all EEs not just the unionized ones
Improper Union benefits
- waiving U initiation fees if EE signs representation card
- U gives EE legal representation in employment law suit (e.g. FLSA case): Rule - OK if litigation commenced prior to filing of election petition
Lies
RULE - Lies are OK (Midland) - regulate manner of deception not substance
Only exception is forged documents, such that people cannot tell
- Idea is EEs don’t need paternalistic agency, they are adults and take everything with grain of salt and can decide for themselves
- Old rule was too hard to administer - stubjective issues of “truth” and time for “effective reply”
OLD RULE (Ceramics) - redo election if other side did not have time to effectively respond to a lie -- idea was preferred way to counter lies is the truth - e.g. time to respond
Disloyalty
e.g. pamphlets “ER sucks, treats this town like shit”
2 prong test: disloyal if:
- EE comms to third do not indicate the comm is related to ongoing dispute;
- Comm is so disloyal, reckless, or maliciously untrue to lose Act’s protection
Critique - central purpose of 7 is grant right to engage in concerted activity for mutual ad and protection even when the exercise of that right might otherwise be considered disloyal - e.g. right to strike, ask consumers to boycott, critique ER product as long as directly tied to labor dispute and not made w/actual malice
Inflammatory Appeals to Prejudice
RULE - minor or isolated is ok but only if termperate in tone, german, and factually correct
remedy - set aside election
- policy - Voters have opp to exercise a reasoned, untrammeled choice
Eg. NOT ok - ER links Us to blacks and “race mixing”
Eg. OK - appeal to racial pride
Discriminatino against U supporters - generally
ER unlawfully discriminates against EE where it takes adverse employment action b/c of EEs U activity - 8(a)(3)
1 in 20 who vote for U suffer discrimination
3 relevant statutory provisions:
- 8(a)(1) - does not require intent, ‘coerce in exercise of Sec. 7 rights” = ULP
- 8(a)(3) - intent req - cant discrim b/c of of U membership [thus, ER shouldnt enforce U sec clause cuz that’s forcing to pay into U - - but there is an exception]
- 10(c) - remedial section - dont have to reinstate if “just cause” to dismiss them
cost/ben analysis of ER - if fire them, worst is must pay backpay minus any EE mitigation (other job earnings), no compensatory or punitiive; and this helps kill the Union
Mixed Motive Cases. (Wright Line test)
A. P - pf case (1) protected activity; (2) ER knew of the activity; (3) U animus
B. burden shift to ER to (1) rebut pf case; (2) show by preponderance of evidence it would have taken same action in absence of EE’s U activity
C. If ER succeeds, then escapes liability [T7 just mitigate damages]
Surveillance
RULE - presumptively violation of 8a1, b/c it has tendancy to intimidate; Unless –
– ER could articulate valid need - e.g. “every time U meets, ER’s property is destroyed and we wanna know who’s doing it”
Interrogation/coercive questioning re U activity
Timsco test
- history of hostility toward U
- nature of information sought
- ID of questioner - e.g. high up? high up = more coercive
- place and method of interrogation
- truthfulness of the reply - shows EE was afraid of telling the truth
Polling
[doesn’t really happen today cuz ER just exercises Linden right to election]
RULE: presumptive violation of 8a1 unless
- purpose of poll is to determine the truth of U’s majority claim
- this purpose is communicated to the EEs
- assurances against reprisal are given - “there will be no reprisal”
- EEs are polled by secret ballace
- ER has not engaged in ULP or otherwise created a coercive atmosphere
polling is related to the ER/EE relationshp so can be valid
OTOH polling serve no purpose that’s not better served by the election itself
Discrimination - pretext
a. 8a3 - EE cannot be terminated b/c of union activity/membership
b. intent - “b/c” may be shown w/smoking gun or circumstantial evidence
i. timing
ii. treat similarly situated EEs differently [e.g. all drivers leave keys in the car but ER only fired the U supporter]
iii. knowledge of EE activities - if small biz can presume ER knows
iv. ERs expressed hostility to U activities
v. ER’s failure to fully investigate purported reason for adverse action
vi. ER’s disparate treatment of EEs on basis of U activity
vii. ER’s reliance on pre-textual reasons to justify the adverse action
c. intent not req where ER act is inherently destructive of Sec. 7 rights
. where sole criterion for bonus pay was U membership –> even if no intent to discriminate, the natural result of such bonus is discrimating on basis of U membership
i. e.g. - Note 2 p373 - Super Seniority for strike breakers as reward for breaking strike - no direct proof of intent to dsicourage U membership, but super seniority carried own ‘indicia’ of intent
ii. - e.g. - refual to give strikers vacation beneftis = natural consequence of discouraging U membership
d. WHAT ELSE IS REQUIRED?
Capitalist Exception to 8a3
ER can go out of biz for anti-U reasons but must actually do so (relocation insufficient)
Distinguish Gissel case “threats v. predictions” analysis.
1) objective basis for linking consequences;
2) communicate to EEs in way that suggests its inevitable and that
ER has no discretion
Public Sector duty to provide info
mostly same, but bound by FOIA rules, and public interest is part of balance
e.g. FOIA protects providing home addresses for privacy and public interest does not outweigh that
Burdens of Proof In the PUblic Sector
Most public sector jurisdictions adopt the Wright Line “but for” test
some adopt “in part” test
- Presume state legislature knows of Wright Line test, so if dont adopt it maybe it meant something diff
- in part accounts for true motive of ER, cuz always will have he said/she said
- but for test allows ER to lay out lots of legit reasons and distracts focus away from ERs true motivation
