Philadelphia Cordwainer’s case (1806)

- journeymen accepted 25cent reduction for boots for export

- journeymen realized that export boots were regular occurrence and demanded
higher wages
- they voted to turn out (strike)
- best work men were still able to make living making fine footwear for local
market, they turned out only to avoid being scabbed
- likely that growth of the export trade made room for inferior workmen who feared
that to win the demands might kill the export trade and throw them out of
employment
- eight leaders were arrested for criminal conspiracy to raise wages
- English common law was held to be common law of United States (no statute
necessary)
o British authorities were said by the court to establish that a conspiracy of
workmen to raise their wages was criminal at common law
- Pros agued:
o Promote expansion of manufacturers bc cordwainers have no stake in
community
o Higher wages = higher prices
o Unions were coercive
o People were coerced to join union
- D argument:
o Freedom of association
o Scarcity of labor = rise in prices
o Can’t use British common law
o Concerted negotiations
- Penn did not like having independent power structure of the union
- Leaders were convicted
Commonwealth v Hunt (1842)
- Ds refused to work for certain master bootmakers bc they employed journeymen
who were not members in good standing of the society
- Indictment claimed ds had formed unlawful club, society among themselves
- Conspiracy = combination of two or more persons, by some concerted action, to
accomplish some criminal or unlawful purpose or to accomplish some purpose,
not in itself criminal or unlawful, by criminal or unlawful means (combination of
people doing certain otherwise legal acts is unlawful)
- Distinguish bt confederacy set forth in indictment and the one contained in the
constitution of the society
- Manifest intent of association is, to induce all those engaged in the same
occupation to become members of it. Such purpose is not lawful
o In order to charge all members with criminal conspiracy, must be proved
that theh actual object of association was criminal
o When association is formed for innocent purposes and abused by those in
charge, those in charge are the criminals
- Court said it was not criminal for association to not work for person who after due
notice should employ a journeyman and not a member of the society
 o Not illegal for men to agree to exercise their own rights in manner to
subserve their own interests
- Court said that since object was lawful and means were not unlawful agreement
could not be criminal conspiracy
- The legality of such an association will depend upon the means to be used for its
accomplishment
- No illegal purpose can be found in the constitution of the Bootmakers society and
cannot perceive that the indictment charges a criminal conspiracy punishable by
law
Walker v cronin (1871)
- alleges d unlawfully with the unlawful purpose of preventing ps from carrying on
business persuaded and induce persons who were in employment of ps andn other
about to enter employment to leave and abandon employment w/out consent and
against their will
- sets forth: 1. intentional and willful acts 2. calculated to cause damage to ps in
lawful business 3. done with unlawful purpose to cause damage and loss w/out
right or justifiable cause on part of the d (malice) 4. actual damage and loss
resulting
o intentional causing of such loss to another, without justifiable cause, and
with malicious purpose to inflict it, is of itself a wrong
- court said that no wrong is done to him whose employment they leave, unless a
contract exists by which such other person has legal right to the further
continuance of their services
- no right to be protected against competition but there is a right to be free from
malicious and wanton interference, disturbance or annoyance
- one who entices away a servant, or induces him to leave his master, may be held
liable in damages therefore, provided there exists a valid contract for continued
service, known to the d
Secor v Toledo (1877)
- Railway company was in possession of receiver, ds forcibly stopped the trains
- Duty of court to protect the receiver
- Power of court to punish for contempt limited to person so near as to obstruct
justice, misbehavior of its officers in their official acts, and disobedience or
resistance by any person to any lawful writ, process, order, rule, decree or
command of the court
- The act committed constitutes the offense, the forcible seizure of property not in
the possession of an individual or of a corporation but of the court
Vegelahn v Guntner (1896)
- negotiated with employer, ended up striking, p employed replacements
- the strikers: 1. set up patrol in front of premises sometimes blocked the entrance
2. intimidated persons seeking to enter employment of p (indecent language and
threats) 3. interfered w/persons seeking entrance to factory 4. notified insurance
companies that p’s prop was in danger and 5. followed delivery teams of p to its
customers and threatened several customers to injure them and business if they
continued to trade
- issue: whether ds should be enjoined against maintaining patrols
 - employer has right to engage all persons willing to work for him and persons
employed or seeking employment have right to enter into or remain in
employment of any person or corp willing to employ them
- motive or purpose does not justify maintaining a patrol in front of p’s premises as
means of carrying out their conspiracy
- combination to do injurious acts expressly directed to another, by way of
intimidation or constraint, either of himself or of persons employed or seeking to
be employed by him, is outside of allowable competition and is unlawful
- conspiracy to interfere w/p’s business by means of threats and intimidationm and
maintaining patrol in front of premises in order to prevent persons from entering
his employment, or in order to prevent persons who are in his employment from
continuing therein, is unlawful, even though such persons are not bound by
contract to enter into or to continue in his employment; and the injunction should
not be so limited as to relate only to persons who are bound by existing contracts
- Holmes dissents of course
Plant v woods (1900)
- One union refused to work where members of the other union were employed
o This was to compel members of the other union to rejoin the one about to
go on strike
- D argues that one may work for whom he pleases and in absence of any contract
may cease to work when he pleases for any reason
o Also says that what one may do individually several may lawfully do
- Court said that w/out indicating to what extent workmen may combine and may
act by means of strikes and boycotts to get the hours reduced or their wages
increased, or to procure from their employers any other concession directly and
immediately affecting their own interests, or to help themselves in competition
with their fellow-workmen
- It was intention of ds to compel the other union members to join their union and
they had no right to force others to join
Holmes dissents
Coppage v Kansas (1915)
- state law reads: act to provide penalty for coercing or influencing or making
demands upon or requirements of employees, servants, laborers, and persons
seeking employment. Not to join or become or remain member of any labor
organization as a condition of such person securing employment, or continuing in
the employment of such individual, firm, or corp
- case brought on ground that statute is in conflict with 14th amendment
- p was employed by RR and requested to sign agreement if he did not sign he
could not remain employed there (no coercion)
o agreement was to withdraw from a union
- p refused to sign and was discharged
- empolyment was at will not under contract
- there is a right to make contracts
- disturbing equality right, must be deemed to be arbitrary unless it is supportable
as reasonable exercise of police power of the state
- law is intended to deprive employers of part of their right of contract
 - not public institutions charged by law w/public or govt duties, that would render
maintenance of their membership a matter of direct concern to general welfare
- state may no strike down the right of contract directly or indirectly by declaring
that public good requires removal of inequalities that are but normal and
inevitable result of their exercise, and then invoking police power in order to
remove inequalities, w/out other object in view
- individual has full right to join union, but no inherent right to do this and remain
in the employ of one who is unwilling to employ a union man
o employer has right to prescribe terms upon which he will consent to the
relationship
- statute is void
Holmes dissents
Lowe v Lawlor (1908)
- demurrer to complaint that ps inflicted 3 fold damages for injuries from
combination and conspiracy declared to be unlawful by anti trust act
- demurrer was on ground that combination stated was not within Sherman act
- strike was to unionize ps business, in support of strike national consumers boycott
was instituted by united hatters and AFL against sale of ps hats across country
- Sherman sections 1, 2, and 7
o 1. every contract combination in the form of trust or conspiracy, in
restraint of trade or commerce among several states or w/foreign nations is
declared illegal…
o 2. guilty if person or persons monopolize any part of the trade or
commerce among several states
o 7.
- Court says combination in this case falls w/in Sherman
- Ds combined for direct purpose of destroying interstate traffic
- Congressional intent show that attempts were made to exempt orgs of farmers and
laborers from the act and all efforts failed
- Precedent includes combinations of labor as well as capital
- Combination does fall w/in Sherman
Duplex printing v deering (1921)
- two of three unionized manufacturers informed union that they would terminate
their agreements with union unless duplex also entered into same agreement
- local strike was a failure, sympathy strikes occurred
- duplex brought suit over violation of Sherman act
- Clayton was passed after beginning of suit but it was effective from the time of its
passage and applicable to pending suits for injunction
- Clayton section 6 – nothing contained in antitrust laws shall be construed to
forbid existence and operation of labor, or agricultural organizations from
lawfully out the legitimate objects thereof, nor shall the orgs be held to be illegal
combinations in restraint of trade
o Section 20 – no restraining order or injunction order shall be granted by
any court of the us unless necessary to prevent irreparable injury to prop.
No restraining order or injunction shall prohibit any person or persons,
 from terminating any relation of employment or from ceasing to perform
any work or labor
- This is limited to those who are proximately and substantially concerned as
parties to an actual dispute respecting terms and conditions of their own
employment
- Act contains qualifying words concerning conduct: peaceful, lawful for a.
terminating employment b. communicating info or persuading c. ceasing to
patronize and persuading others d. paying or withholding strike benefits e. doing
any act
- Sympathy strike = a threat
- Section 20 legalizes secondary boycotts in so far as it rests on, or consists of,
refusing to work for any one who deals with the principal offender
- Complainant has a clear right to an injunction
Coronado v united mine workers (1925)
- mines destroyed by workers, receivers were appointed
- not enough evidence to show intentional restraint of interstate trade
- in order to impose liability on the organization have to show that what was done
was done in accordance with their fundamental agreement of association
o this was not the case
- issue: whether acts were done in intentional restraint of trade
- convention proceedings show that union members spoke of surrounding states and
effects on unions they have
- jury could reasonably infer that the purpose of the union miners was to destroy
power of mine owners to send output into interstate commerce to compete with
union mines in surrounding states
- preventing supply from entering interstate market does not make violation of
Antitrust Act, has to be intent also
Great northern v brousseau
- temp restraining order issued to stop ds from threatening and doing acts of
violence in connection w/strike
- court said that the purpose of an injunction ought to be to state the specific acts
forbidden (show line separating wrong from right conduct)
- affidavits dealing w/ strikes were becoming more untrustworthy
o courts have become accustomed to decide imp questions of fact using affs
- Clayton section 20 does not authorize strikers to go upon prop of company w/out
its consent to attend at any place employees may be for purpose of peacefully
obtaining or communicating info or peacefully persuading such new employees to
abstain from working
- Replacement workers kept separate and protected from strikers this practice
nullifies provisions of Clayton Act (no opportunities for peaceful persuasion)
- History shows that danger goes both ways
- Court found earlier that tents at points of ingress to company prop or assembling
in large numbers was serious intimidation to workmen going about the yards in
the necessary performance of their duties
o Court required all tents to be removed and limited pickets to 3
- Clayton says that irreparable injury is necessary for an injunction
 o Strike inherently cause irreparable injury
o The injury Clayton 20 seeks to prevent is conduct which prevents by
means of violence or duress the employer from carrying on his business
- Specific injunction issued to be published in newspaper and posted in
conspicuous places
Frankfurter Article p73
- problems w/injunctions:
o temp ones may come with no notice and may be based on dubious affs and
may have function of staying d’s conduct regardless of ultimate
justification of such restraint
o suspension of activities affects only strikers, employer resumes efforts to
defeat strike free from interferences
- individual workers must combine in order to achieve free competition
w/concentrated capital just as corporations do
- only w.in very narrow limits is it court’s function to apply their own notions of
policy
Norris-LaGuardia Act of 1932
- section 1 – no court of US shall have jur to issue any restraining order or temp or
permanent injunction in a case involving or growing out of a labor dispute except
in conformity w/provisions of this Act
- section 13 defines labor dispute in language so sweeping yet specific to preclude
Duplex-type escape
- section 4 – any involving growing out of labor dispute no order may be issued by
fed court restraining or enjoining any of the union activities meticulously defined
in that section (involve all pressure tactics except violence or fraud)
- section 7 - even where violence or fraud exist and section 4 is unavailable an
order restraining or enjoining such conduct may be issued only after hearing and
finding of fact
o hearing must be preceded by due and personal notice to all against who
relief is sought
- temp restraining order to temp injunction may be issued on condition that
complainant file adequate bond to recompense those enjoined for any loss,
expense, or damage caused by improvident or erroneous issuance of such order or
injunction including court costs and attny fees
- section 9 – every restraining order for violence or fraud shall only prohibit
specific acts complained of in bill of complaint
- section 11 – guarantees right to trial by jury
- section 3 – declares yellow dog contract contrary to public policy of US and
therefore unenforceable
- section 6 – no labor org or officer or member shall be held responsible or liable in
any court of US for unlawful acts of individuals except upon clear proof of actual
participation in or authorization of such acts or ratification of such acts after
actual knowledge
- section 10 – provides expedited appeals in case where any court in US issued or
denied temp injunction in situation involving labor dispute giving proceedings in
c of a precedent over all other matters except older matter of same character
 - can enjoin if civil authorities cannot control situation
o have to have hearing
o give notice
o call witness (cross exam)
o diff judge at injunction and trial
US v Hutcheson (1941)
- whether use of conventional, peaceful activities by union in controversy w/rival
union over certain jobs is violation of Sherman
- carpenters demanded jobs given to other union members
o employers denied the jobs to carpenters and carpenter refused arbitration
and went on strike, picketed An-Busch and its tenant and requested in
publications that union members and their friends not drink busch beer
- indicted on criminal combination and conspiracy in violation of Sherman
- demurrer denying this constituted violation of laws of US was sustained, appealed
- court must consider not merely Sherman statute mentioned in indictment but also
related enactments which entered into decision of district court
- courts restricted scope of section 20 of Clayton to trade union activities directed
against an employer by his own employees (this led to Norris-LaGuardia)
- N-L further narrowed circumstances under which fed courts could grant
injunctions in labor disputes, also said that allowed area of union activity was not
to be restricted to immediate employer-employee relation
o In to decide whether union conduct is violation of Sherman have to read
Sherman, section 20 of clayton and N-L as harmonizing text
- As long as union acts in self-interest and does not combine w/non-labor it is not
violation of Sherman
- Refusal to work and peaceful attempt to get members of other unions to refuse to
work are w/in scope accorded to workers of section 20 (terminating employment
relationship or ceasing to perform work or persuading others by peaceful means
so to do and recommendation to union member and friends not to buy or use
product of An-Busch is covered by ceasing to patronize
- 13 (c) of N-L says labor dispute includes controversy concerning terms or
conditions of employment, or association or rep of persons in negotiating
regardless of whether or not disputants stand in proximate relation of employer
and employee
o 13(b) person is participating or interested in dispute if engaged in same
industry, trade etc or has direct or indirect interest
- Clayton was to nullify Duplex case
PATERNAL PROTECTION: OF LAW, COLLECTIVE BARGAINING, AND SOCIAL
THERAPY
The Railway Labor Act of 1926
- regulates collective bargaining in RR industry: administered by National
Mediation Board and National Railroad Adjustment Board
- if they refuse to arbitrate and do not otherwise resolve dispute they are free to
resort to usual economic pressures having exhausted Act’s conditions precedent
 - if dispute threatens substantially to interrupt commerce to degree such as to
deprive any section of country of essential transportation service board must
notify president who may then invoke emergency provision of the act
Texas and NO RR v. Brotherhood of Steamship clerks (1930)
- company denied recognition of clerical union, while controversy was pending bf
mediation board company tried to instigate formation of union for the clerks
- DC granted temp injunction, recognition of company union was obtained in spite
of injunction, DC ordered that the company union be disestablished and reinstate
the other
- Temp injunction was made permanent and C of A affirmed
- RLA of 1926 section 2 says: reps shall be designated in manner w/out
interference, influence, or coercion by either party
- Company argues that statute violates 1st and 5th amendments bc action taken by
company in recognition of union was not contrary to law and there was no
warrant for interposition of the court
- Motive: RR wanted to save money by setting up another union, allowed workers
to devote company time to recruiting, incurred recruiting costs, discharged reps of
other union
- Issue is whether legal duty was imposed on the RR company
- This was based on recognition of right of both employees and employers,
employees have right to freely organize, employers have right to select employees
or discharge them
- Injunction affirmed
Railway labor Act
- Tried to guarantee RR workers right to organize w/out interference by employer
- Also gave unions right to bargain and imposed upon employer obligation to
bargain
- Improved power of average worker, rules no longer set unilaterally
Virginian Ry. V system federation no.40 (1937)
- Suit for RR to recognize and treat w/ Board certified union
- Trial court directed RR to treat with union – it restrained them from entering into
contract concerning rules, rates of pay, or working conditions except w/certified
union
- Statute at least requires employer to meet and confer w/authorized rep of
employees and basically enter into negotiations
- Courts determine the existence of good faith everyday
- Interest of both parties in avoiding strike negotiation will result
- Decree to treat with union is authorized by statute
- Does not require company to enter into agreement
Wagner Act 1935 (part of NLRA)
- two fundamental propositions: 1. employees have right to organize and bargain
collectively through rep of their own choosing and 2. employer has correlative
duties a. not to interfere w/exercise of rights and b. recognize and bargain
w/chosen reps
- extended these rights and duties to employees not covered by RLA
- this was reaction to invalidation of NIRA
 - Wagner was to 1. resolve labor disputes which would affect interstate trade and 2.
to deal w/economic crisis of Great depression by enhancing bargaining and
purchasing power
NLRB v. Jones and Laughlin steel (1937)
- Board found steel company violated NLRA by engaging in unfair labor practices
affecting commerce
- Board found that there was discrimination and coercion by employer and ordered
to cease and desist and rehire named employees
- Company refused, board petitioned C of A who said that order lay beyond range
of federal power
- Act: 3-6 created board 7 set forth right of employees to organize and bargain
collectively through reps of their choosing 8 defines unfair labor practices 9. rules
as to rep 10. board empowered to prevent unfair labor practices affecting
commerce. Board authorized to petition certain courts to secure enforcement of its
order. Finding of board as to facts are to be conclusive if supported by evidence.
11. board has broad powers of investigation. 12. interference with board is
punishable. 13. nothing in act is to be construed to interfere w/right to strke
- Board alleged that action in discharging employees constituted unfair labor
practices affecting commerce w/in section 8
- Company took in materials from other states and shipped out 75% to other states
- Company did not present evidence to refute charge of discrim.
- The commerce referred to in the act is interstate and foreign commerce in the
constitutional sense
o The term “affecting commerce” means burdening or obstructing
commerce or the free flow of commerce, or having led or tending to lead
to labor dispute burdening or obstructing commerce or free flow of it
o Whether action affects commerce is left to board to decide on case by case
basis
- Unfair labor practices found by board from section 8 are:
o (1) to interfere with, restrain, or coerce employees in exercise of right
guaranteed in section 7
 (7) employees shall have right to self-organization, to form, join,
or assist labor orgs, to bargain collectively through reps of their
own choosing, and to engage in concerted activities, for purpose of
collective bargaining or other mutual aid or protection
o (3) by discrim in regard to hire or tenure or any term or condition of
employment to encourage or discourage membership in any labor
organization
- Statute safeguards rights of employees and employers and preventing discrim and
coercion is proper subject for condemnation
- Theory of act is to encourage free opportunity for negotiation w/accredited reps of
employees to promote industrial peace and bring about agreements which the act
does not attempt to compel
- Board is not entitled to make its authority a pretext for interference w/right of
discharge when right was exercised for other reasons than intimidation and
coercion
 - Act subjects the board to review by courts
- 7th amendment right to trial by jury for cases exceeding $20 but the amendment
preserve right which existed under common law when it was adopted, no
application to cases where recovery of money damages is incident to equitable
relief even though damages might have been recovered in action at law
o This is statutory proceeding unknown to common law
- Order of Board was w/in its competency and Act is valid as applied
Allen-Bradley local 111 v. Wisconsin employment relations board (1942)
- Issue: whether order of Wisconsin employ. Relations board is repugnant to
provisions of NLRA
- Company filed grievance w/state board, state board made findings of fact and
entered order against union for unfair labor practices (mass picketing, threatening,
obstructing entrance and street), C of A sustained the boards findings
o Picketing at all entrances, obstructed entrance, required people entering to
obtain passes, injured persons and prop,
- Fed act was not designed to preclude state from enacting legislation limited to the
prohibition or regulation of this type of employee or union activity
o Court has insisted that intention of congress to exclude states from
exerting their police power must be clearly manifested
- Fed act does not govern employee or union activity of type here enjoined
o Fail to see how inability to do things enjoined subtracts form any rights
guaranteed and protected by the fed act
o If order of state board caused forfeiture of collective bargaining rights,
affected status of employees, a diff question would arise
- Cannot say that mere enactment of NLRA w/out more excluded state reg
American Federation of labor v. NLRB (1940)
- Issue: whether certification of union by the board is reviewable by the C of A
- Board made findings of fact and of law that all workers on Pacific coast constitute
on bargaining unit and CIO is their exclusive rep
- AFL says that they have majority of employees of their respective employers
- Appealled to C of A who said that they did not have jur to review order of the
board conferred upon it by Section 10 of Wagner
- Certification involves under 9(b) decision by the board whether the unit
appropriate for the purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof and ascertainment by the board under
9(c) of bargaining rep who under 9(a) must be selected by the majority of
employees in a unit appropriate for such bargaining purposes
o Board is authorized by 9 (c) whenever a question affecting commerce
arises concerning reps of employees to investigate and certify names of
appropriate bargaining reps
o 10©, 10(e), 10(f)
- Section 9 gives no review of certification unless there is petition for enforcement
or review of an order restraining an unfair labor practice as authorized by 10©
o In that case record of certification becomes part of record brought upon
review of the board’s order restraining unfair labor practice
- All other provisions for review of the board are found in section 10
 o It does not mention certifications defined by section 9
o 10(a) board can prevent any person from engaging in unfair labor practice,
10(b) prescribes procedure for above 10(c) directs the board to issue order
to those who have engaged in unfair labor practices to cease 10(e)
authorizes petition to appropriate fed C of A by board for enforcement of
order
- 10(f) provisions for review of action taken by board
- The statute on its face indicates a purpose to limit the review afforded by section
10 to orders of board prohibiting unfair labor practices, a purpose and
construction which its legislative history confirms
- Congress deliberately chose to exclude representation certs of board from review
by fed appellate courts authorized by wagner except in circumstances specified in
9(d)
- Affirmed
NLRB v Fansteel metallurgical corp (1939)
- C of A set aside order of Board to reinstate discharged employees
- Question of authority of board to order company to reinstate employees who were
discharged for illegal activities involving a sit down strike
- Superintendent refused to bargain with union, so union committee decided on a sit
down strike, police came and all men in plant were discharged for seizure and
retention of the buildings, injunction from state court requiring men to surrender
the premises, men refused and most were either fined or given jail sentences
- Large number of men who had participated were individually hired back but
w/out recognition of the union
- Board concluded that the new union that came in was the result of respondent’s
antiunion campaign ordered to desist from interfering with right of self org and
from refusing to bargain w/the other union
- Sup Court finds that company committed unfair labor practices by antiunion
statements and the fact that they would not collectively bargain when old union
did have the majority
- The conduct of the employees gave good cause for discharge
- Authority of board to require reinstatement:
o Board argues that unfair labor practices led to sit down strike, sup court
says they did not relinquish right to possession of their prop
o Board argues Employees who go on strike bc of unfair labor practice
retain status of employee, section 13 says act will not impede right to
strike but right to strike contemplates a lawful strike – these employees
took a position outside of the protection of the statute
o Board argues that it was entitled to order reinstatement or reemployment
in order to effectuate policies of the act, sup court says that power to
command affirmative action is remedial not punitive and is to be exercised
in aid of board’s authority to restrain violations and as means of avoiding
violations – reinstatement of these employees would not effectuate any
policy of act but would directly tend to make abortive plan for peaceable
procedure
 - Requirement that company has to bargain with old union, no basis for conclusion
that after resumption of work the old union still possesses majority
- Requirement that respondent shall withdraw recognition of new union – cannot
say that there is not substantial evidence to show that formation of this org was
brought about through promotion efforts of respondent contrary to provision of
section 8(2) this was sustained and majority determiniation by proceedings open
to the board
Hunt v Crumboch (1945)
- Issue whether org violated Sherman act by refusing to admit petitioner’s
employees and by refusing to sell their services to petitioner making it impossible
for him to profitably continue business
- 85% of merchandise hauled by petitioner was interstate A&P and union entered
into closed shop agreement where all haulers must join the union, petitioner did
not join the union and A&P at instigation of union cancelled their contract
o Elimination of petitioner’s service did not affect interstate commerce
- DC dismissed case, C of A affirmed saying causing the petitioner to go out of
business was not restraint on interstate commerce and not actionable under
Sherman
- As long as union acts in its self-interest and does not combine w/non labor groups
the licit and illicit under 20 are not to be distinguished by any judgment regarding
wisdom or unwisdom of the end of which the union activities are the means
- Action does not violate Sherman
Taft Hartley act (LMRA) of 1947
- Added right to refreain from any or all such union activities
- Section 8(b) added a set of union unfair labor practices as counterpart to employer
unfair labor practices
o 8(b)(1) forbids labor org to restrain or coerce employees in the exercise of
rights guaranteed in section 7 including right to refrain from union
activities
- Title II establishes procedures for dealing with national emergency labor disputes
- Title III collective bargaining agreements enforceable in fed courts regardless of
amount in controversy and citizenship
- Title IV set up a congressional committee
- Employers were granted full freedom of expression in respect to their views on
union org and they were authorized to call for elections to determine appropriated
bargaining units in wage negotiations
- Banned closed shops
- Unions had to give 60 days notice for termination or modification of any
agreement and were suable in fed courts for breach of contract
o Not allowed to make contribution or expend any of their funds in political
campaigns
- Gives president authority to apply for what in effect is 80 day injunction against
any strike found to be imperiling national health or safety
Universal camera corp v nlrb (1951)
- Issue what is the effect of he admin procedure act and taft Hartley on the duty of
C of A when called to review Board’s orders
 - C of A granted enforcement of order of reinstatement and to cease and desist from
discrim against employees who file charges under taft Hartley
- Wagner act section 10(e) – findings of board as to facts supported by evidence are
conclusive,
o Court read that to mean substantial evidence, must be enough to justify, if
trial were to jury, a refusal to direct a verdict
- Congress conformed wagner act to admin procedure act (record viewed on the
whole)
o A trial examiner’s decision that has been reversed by the board will be
part of whole record
Local 357 teamsters v NLRB
- Casual employee filed charges against employer and union under 8(a)(3) and (1),
8(b)(2) and (1)(A)
- Hiring hall required that employee pay up his dues bf he could be referred from
hall, employee then showed letter from international union official stating he
could get employment w/out working through the hiring hall, union pressured
employer to discharge the employee, agent of hiring hall refused to help saying
employee refused to show up on picket line (of which he was unaware)
- Board found that hiring hall provision (which said that union would provide
employees to employer) was unlawful per se and board found that discharge of
the employee on union’s request constituted violation by employer of 8(a)(1) and
8(a)(3) and violation by union of 8(b)(2) and 8(b)(1)(A) of NLRA
o Board ordered the company and union cease giving any effect to hiring
hall agreement and they jointly and severally reimburse employee for loss
sustained
- C of A upheld board saying employers had surrendered hiring authority to union
- Board went on to say for hiring hall provision to be lawful it must include:
o Selection for jobs shall not be based on union membership
o Employer retains right to reject job applicant referred by the union
o Must post in customary places all provisions relating to functioning of
hiring arrangement
- Unions should be able to operate hiring halls so long as they are not used to create
a closed shop; not bind themselves to reject non-union men if they apply
- Existence of discrimination may be inferred by board, cannot infer discrim from
face of instrument when it expressly provides there will be no discrim
- Board has no power to compel at all that hiring hall be included or excluded in
collective agreements
Landrum Griffin act (LMRDA) 1959
- Titles I through IV deal with internal union problems
- Created an additional union unfair labor practice prohibiting peaceful picketing
for recognitional objectives 8(b)(7)
- Closed loopholes in Taft Hartley secondary boycott provisions 8(b)(4) and 8(e)
Racial and related employment discrim
Steele v Louisville and Nashville RR (1944)
 - Issue whether RLA imposes on labor org duty to rep all employees in craft w/out
discrim bc of race, if so whether courts have jur to protect minority of craft or
class from violation of such obligation
- Substantial minority of firemen are black and by constitution and ritual excluded
from union membership
- New agreement required that not more than 50% of firemen be black, eventually
the union and RR disqualified all blacks and replaced them w/white
- Congressional intent was not to give union power to sacrifice rights of minorities
in favor of their members
- Section 2 of the act says employees shall have right to organize and bargain
collectively through reps of their own choosing. Majority of any craft or class of
employees shall have right to determine who shall rep the craft
o Use of word rep implies rep on behalf of all employees
o Purposes are to avoid interruption to commerce and achieve settlement of
disputes over rates of pay, rules, or working conditions
 This would not be achieved if minority were denied right to have
interests considered at negotiating table only recourse of the
minority would be to strike
- Minority members by way of exclusivity are deprived of right of choosing their
own rep or bargaining individually
- RLA imposes upon statutory rep duty to protect equally interests of members of
the craft as constitution imposes upon legislature to give equal protection to
interests of those for whom it legislates
- Differences that may be considered are in seniority, type of work performed,
- A rep that discriminates may be enjoined from doing this and its members
injoined from benefiting from this
- Allowed remedies of injunction and award of damages
Civil rights act of 1964
- Established EEOC
- 1991 amendment added remedies of injunctive relief, lost wages, and recovery of
attnys fees
City of new york v de lury
- Law differentiates bt public employees and those in private industry
- Issue: whether taylor’s law mandates that public employees shall not strike and
that labor orgs representing them shall not cause or encourage a strike violates
due process requirements of state and fed constitution
- Sanitation men struck, union guy said he didn’t come here to bargain
- Temp restraining order was granted required leaders of union to instruct members
to return to work, leaders disobeyed the injunction
- No grant of absolute right to strike in the constitution
- State had power in governing its internal affairs to prohibit any strike if the
prohibition was reasonably calculated to achieve valid state policy in area open to
state regulation
- Ability of legislature to establish priorities among govt services would be
destroyed if public employees could strike w/impugnity - coercion of public
employees
Wrongful termination: employment at will
- Three exceptions to employment at will doctrine are
o 1. public-policy exception which permits recovery upon finding that
employer’s termination of employee violated important public policy –
employee must prove that employer’s discharge violated policy embedded
in constitutional provision, statute or judicial decision
o 2. handbook exception normally based on assurance in employer
handbook or other policy that employee will not be discharged w/out just
causes -
o 3. implied covenant of good faith and fair dealing
J.I. Case co v NLRB (1944)
- Company offered contracts for employees to sign not required, they guaranteed
employment if conditions permitted in return for guarantee that employee would
continue to work, 75% signed
- Contracts were not condition of employment and signing them had no effect on
status of individual
- Union gained certification while the other contracts were in effect, company
would not bargain w/union concerning any terms in these contracts
- Board held this was violation of NLRA, purpose of NLRA is to supersede terms
of separate agreements w/those of group welfare
- Individual contracts do not warrant refusal to bargain during their duration
Pacific Intermountain express co. 1953
- Two offices of interstate trucking company, union thought two offices should be
one unit, court found offices could compromise either one unit or two separate
units, leave it up to vote
o If employees from both offices vote for same rep then it is one unit
otherwise diff units
National Tube Co. (1948)
- Union wanted bricklayers to sever from current bargaining unit, historically no
severance
- Petitioner argues that 9(b)(2) requires board to establish separate unit unless vote
says otherwise
- Board finds that 9(b)(2) plainly allows board to find separate unit inappropriate
unless prior board decision or bargaining history is sole basis for finding
- Board finds that bricklayers here are intimately tied to steel factory functions and
any change would have adverse effect on productive capacity in industry of vital
national concern
NLRB v. Truck drivers local (1957)
- Issue whether nonstruck members of multi-employer bargaining association
committed unfair labor practice when, during contract negotiations they temp
locked out employees as defense to union strike against on of their members
- Employees of one employer struck, other 7 employers of unit conducted lockout
- Legislative history shows no intent to prohibit lockouts , congress failed to outlaw
multiemployer units, left issue up to the Board
- Right to strike does not deny lockouts
Notes concerning multiemployer bargaining
 - Once negotiation for new contract has commenced withdrawal is permitted only if
there is mutual consent or unusual circumstances
o Permitting withdrawal at impasse would undermine utility of
multiemployer bargaining bc parties would have to bargain under the
threat of potential withdrawal by any party who was not completely
satisfied
Leedom v Kyne (1958)
- Board hearing on cert, competing bargaining unit wanted to be included
- 9(b)(1) says in determining appropriate unit for collective bargaining purposes
board shall not 1. decide that any unit is appropriate for such purposes if such unit
includes both professional employees and employees who are not professional
employees unless majority of such professional employees vote for inclusion in
such unit
- Board did not take vote and included both pro and nonpro employees in one unit,
competing unit had asked board to declare this one unit.
- Board found that 9 employees in competing unit though nonpro they worked
closely enough w/others to be included, board ordered election of which unit to
pick or neither
- DC found board exceeded its power
- Board cert is reviewable only w/unfair labor practices
- Board acted contrary to statute and there was remedy at law, Wagner act does not
preclude independent action if board acted unlawfully and there is a remedy at
law
- Board violated 9(b)(1)
Notes
- Congress has excluded independent contractor from definition of employee in
2(3). It has said that board’s finding that Greyhound is an employer of employees
who are hired, paid, transferred and promoted by an independent contractor is
therefore plainly in excess of statutory powers delegated to it by congress
NLRB v. Kentucky river community care (2001)
- Council of carpenters petitioned board to make all Canney Creek employees on
unit, respondent objected to inclusion of nurses arguing they were supervisors,
respondent sought indirect cert review by bringing unfair labor practices claim
- C of A said burden of proving supervisor status was on petitioner and nurse
supervising nurses aid is not routine job, board argued that nurses use ordinary
profession judgment when directing less skilled employees
o Board’s definition of independent judgment would eliminate all
supervisors
- Taft-Hartley said direction alone makes a supervisor
- Board’s error in interpreting judgment precludes court from enforcing its decision
Notes
- Those excluded from appropriate unit: independent contractors, agricultural
laborers, domestic servants, employees subject to RLA and employees of any
employer excluded from definition of employer in section 2(2)
NLRB v. Town and Country electric (1995)
 - Issue: can a worker be a company’s employee w/in terms of NLRA if also being
paid to help union organize the company
- Company refused to interview 10 out of 11 union job applicants, union filed
complaint under 8(a)(1) and (3)
- ALJ ruled in favor of union members and board affirmed
o Board determined that all 11 applicants were employees as act defines the
word
- C of A reversed due to misinterpretation of the word employee, court says that
word does not cover those who for a company while a union pays them to
organize it
- Board is afforded great leeway in definition of employee
- Board said that Service to a union for pay does not involve abandonment of
service to the company, the task of defining was left up to the board by congress
Edward Budd v NLRB (1943)
- CIO affiliate filed complaint w/Board over unfair labor practices, said that
petitioner forced employees to join union and fired employee in the other union
- Board ordered disestablishment of employers union and reinstatement of
employee
- Employee who was fired was known to be drunk on the job, for a while he was
not fired and received raises bc he was rep for employer union, shortly after he
revealed he joined the other union he was fired
- Employee may be fired for any reason as long as NLRA is not violated
o Board found that employee was fired bc he was working w/CIO
- Board had sufficient evidence to find this – decision upheld
NLRB v. Transportation Management Corp (1983)
- Formula: general counsel has burden to show antiunion animus caused firing,
burden does not shift to employer but even if they failed to neutralize Gen
counsel’s showing they may avoid finding of statute violation by showing
w/preponderance of evidence worker would have been fired anyway
- Issue is whether this is consistent w/ 8(a)(1), (3), 10(c) which says that board must
find unfair labor practice w/preponderance of evidence
- ALJ found there was antiunion animus employer did not know of leaving keys in
bus until after decision to fire, no customary warnings
- Board said that petitioner failed to carry burden that discharge would have
occurred anyway
- C of A remanded to see if G.C. proved he would not have been fired w/out
antiunion activities
- Antiunion animus may exist as long as it wasn’t reason for firing
- C of A required burden to stay w/GC,
- extension of affirmative defense to an employer does not violate the Act, board
was justified in finding that employee would have been discharged, employer
departed from normal practice
NLRB v Burnup (1964)
- two employees said union would use dynamite to get in, employees were fired,
- board held that unfair labor practice occurred, found that threats had not been
made and honest belief they were made was not a defense
 - C of A said employer acted in good faith, refused reinstatement
- Board has found that 8(a)(1) is violated when employee is fired for misconduct
arising out of protected activity despite employer good faith if misconduct never
occurred
o Don’t want to risk discouraging union activity
Republic aviation v NLRB (1945)
- Corp had rule that no soliciting was allowed at factory or offices bf any union
activity even existed, one employee passed out info on union during lunch, 3
others wore buttons, corp. feared this would lead to inference that they recognized
that union
- Board found that buttons did not lead to inference that management supported the
union but since wearing of buttons was the motivation for the firing it was not
based on opposition to unionism
- Prior case had rule that said rule requiring permission to distribute info w/in
factory
o Board said that rule was unfair labor practice, C of A reversed board
- Board is suppose to foster right of employees to organize
- No evidence that solicitation could not be accomplished elsewhere, need evidence
from witnesses open to cross exam
- No solicitation rule is unfair if it discourages organizing
Lechmere v NLRB (1992)
- Store owner made rule to prohibit non-employee union organizers from prop,
NLRA gives rights to employees, Board in a prior case said that contact at
workplace was preferable and ordered company to allow organizing
- C of A refused to enforce so did Sup Court bc no distinction bt employee and non
employee org
- Exception in case of company owned residences,
- non employee organizer must show need for access, union must show no other
way of getting message out or they are discrim against
- 3 fold test: 1. impairment of section 7 2. impairment to prop right if access is
granted 3. availabilities of alternatives
o Test only applies to employers and employees not nonemployees
- As long as nonemployees have reasonable access exception is not met,
nonemployees have to show unique obstacles
NLRB v Virginia (1941)
- Company had spies at union meetings, inside org was formed, fired those
involved w/other unions or if they would not join company union, contract called
for closed shop
- Board ordered disestablishment of union and reinstatement of those fired
- Lower court denied enforcement of board order
- Not illegal to speak out against unions but speech may be used w/other evidence
to show violations
- Board relied too heavily on speeches and bulletin
Notes
 - In peerless plywood case the board set aside an election bc of noncoercive
antiunion speech by employer to his employees on company time and premises
less than 24 hours prior to the election
Struksnes contr. Co (1967)
- Company polled employees about unions
- Board found no violation of 8(a)(5), (1), C of A remanded saying that just bc the
poll met the blue flash test did not mean it was not violative, said the board must
1. indicated considerations on which cases in the future will turn, 2. review
determination in the instant case
- This court believes that any attempt by an employer to get employees opinion on
unions tends to cause fear
- Blue flash says that employee poll must be considered on the record as a whole
o 1. employer’s purpose, 2. employees know of the purpose, 3. assurances
against reprisal, 4. background was free from hostility to organization
- came up with revised blue flash rule – must communicate lawful purpose of the
poll, poll taken while petition for election is pending does not serve any legitimate
purpose and is violative
- employers in this case failed to tell men the purpose of the poll, poll was not
secret, under the old rule it would have been lawful/ under new rule unlawful
NLRB v Wyman Gordon (1969)
- nlrb ordered election, company was to furnish list of employees, company refused
and unions were defeated, board ordered new election and list, company refused,
board filed action
- district court upheld order to furnish list, C of A reversed saying the rule was not
promulgated in accordance w/admin procedure act
o excelsior case said that rule would take effect 30 days from date of
decision
o rule: 7 days after direction of election list must be filed, failure to file
leads to election being set aside
o rule made in excelsior is not valid bc it was not applied to the parties in
that case
- in this case company was ordered to furnish list when election was directed,
Board did have power to do this bc it applied to those parties
o order to furnish list furthers congress purpose of ensuring fair/free choice
of bargaining reps
o board has power to subpoena and court has jur to enforce it
o list falls w/in section 11 of what may be subpoenaed
Company unions
- wagner sections 2(5), 8(2) [now 8(a)(2)], - makes it unfair labor practice for an
employer to dominate or interfere w/formation or admin of any labor org or
contribute financial or other support to it
o violation of 8(2) led to disestablishment of org
- taft Hartley – if union was affiliated w/national or international union board
would analyze charge of company interference under 8(a)(1) rather than 8(a)(2) if
there was violation board ordered cease and desist instead of disestablishment
 o board assumed that employer could not completely subjugated org that
was affiliated w/national or intl union as w/an unaffiliated
o congress did not approve of the disparate treatment so Board treated all
unions the same using 8(a)(2) and order disestablishment for both
EI Dupont co (1993)
- issue: whether certain committees are employer dominated unions
- employer bypassed union by dealing w/certain committees
- judge said violation bc employer dominated formations and admin, also violation
bc bypassed union by dealing w/committees, safety conferences were not
violations,
- first have to determine if committees were labor orgs is labor org if 1. employees
participate, 2. org exists at least in part for purpose of dealing w/ employers 3.
there dealings concern conditions of work, grievances, labor disputes, wages,
rates of pay, or hours of employment
- fact that management and employees were on committee and used consensus-
decision making the committees were for purpose of dealing w/employer
o committees were labor orgs
- domination of org and admin did exist bc management had veto power, selected
who would be on committees
- safety conferences attempted to keep bargainable issues out, not successful but no
dealing went on just brainstorming
NLRB v exchange parts (1964)
- company gave employees birthday holiday and more overtime and vacation
benefits just prior to union election
- board affirmed findings of trial examiner saying this was violation of 8(a)(1)
- C of A found that announcement of bday holiday was not to influence election
o It accepted the boards findings about vacation and overtime benefits
o C of A said that since benefits were put into permanent effect and not
contingent on election it was not unfair labor practice
- This court disagrees w/C of A it believes that conferral of benefits while rep
election is pending does interfere w/protected right to organize
o 8(a)(1) prohibits intrusive threats and promises and conduct immediately
favorable to employees which is undertaken w/express purpose of
impinging upon freedom of choice and is reasonably calculated to do so
Textile workers v darlington (1965)
- darlington permanently closed plant following election that selected bargaining
rep, board found them guilty of unfair labor practices, C of A refused to enforce
order of board for back pay for all of the employees until they obtained equivalent
work
- company resisted the organizing campaign and threatened to close mill if union
won, union filed charges that company violated 8(a)(1) and (3) by closing plant
and 8(a)(5) by refusing to bargain w/union after election
- this court believes that employer has absolute right to terminate entire business for
any reason but that right does not include closing part of business no matter what
reason, board was correct in treating closing only under 8(a)(3)
 - when employer closes entire business even if liquidation is motivated by
vindictiveness toward union such action is no unfair labor practice
o if they transfer work to another plant or open one to replace organized
plant it is unfair labor practice
- if those closing plant for antiunion reasons it is unfair labor practice if 1. they
have interest in another business no matter what line of work of substantiality to
give promise of their reaping benefit from discouragement of unionization in that
business 2. act to close plant w/purpose of producing such a result and 3. occupy
relationship to other business which makes it realistically foreseeable that
employees will fear that such business will be closed down if they organize
- remedies available for partial closing: order reinstatement of discharged
employees in other parts of the business
NLRB v gissel (1969)
- issue is whether union can establish bargaining obligation by means other than
board election
- wagner 8(5) it shall be unfair labor practice for employer to refuse to bargain
w/reps of employees subject to 9(a)
o 9(a) refers to rep as one designated or selected by majority of employees
w/out specifying how rep is to be chosen union rep presents convincing
evidence of majority support
o employer may insist that union go to election and does not have to give
any affirmative reasons for rejecting recognition request
o where union obtained signed cards from majority of employees , in
absence of bona fide dispute as to existence of required majority of
eligible employees, employer’s denial of recognition of union would have
violated 8(a)(5)
Be-Lo stores case
- court said that forced bargaining is reserved for only most unusual circumstances
- shows split bt circuits
Loss of majority status
- section 9© says that employees, a rival union, or an employer may file petition for
decertification election
o employees or rival union may trigger decert election by showing
disinterest in incumbent union supported by 30% of employees
- court said that employer may refuse to bargain w/union if it has good faith doubt
as to union’s majority status
Allentown mack sales (1998)
- employer withdrew recognition of union after 8 of 32 employees expressed
opposition, employer polled employees and union lost, union filed 8(a)(1) and (5)
charges,
- board and supreme court decided that employer must have objective reasonable
doubt as to union’s majority status
- employer who believes union has lost majority may: request formal board
supervised election, withdraw recognition and refuse to bargain, or conduct
internal poll of employee support
 o latter two are unfair labor practices unless employer can show it had good
faith reasonable doubt about majority support
- in a later case the board decided that an employer that withdraws recognition
violates 8(a)(5) unless it can show that at the time it withdrew recognition the
union had actually lost majority support
Brooks v NLRB (1954)
- union won election and a week later a majority of employees wrote a letter saying
they no longer supported that union, employer refused to bargain
- board held that employer committed unfair labor practice in violation of 8(a)(1)
and (5)
- a. certification if based on board-conducted election must be honored for
reasonable period ordinarily one year in absence of unusual circumstances
- b. unusual circumstances were found in at least 3 situations: 1. the certified union
dissolved or became defunct 2. all members and officers of certified union
transferred affiliation to new local or international 3. size of bargaining unit
fluctuated radically w/in short time
- c. loss of majority after reasonable period could be questioned in two ways 1.
employer’s refusal to bargain or 2. petition by rival union for new election
- d. if initial election resulted in no union does not bar another w/in a year (this one
was changed)
o except under unusual circumstances the taft Hartley no longer left the
board free to have election w/in 12 months
- employer committed unfair labor practice
American seating (1953)
- 3 year contract in place after 2 patternmakers wanted to sever, employers argue
that contract bars severance
- board said that if contract is for usual duration it serves as a bar
o employer and old union failed to establish that 3 years was usual duration
so contract was considered to be for unusual duration thus not a bar to
severance
- board directed election in a unit of patternmakers and union won
- this court finds that employer violated 8(a)(5) and (1) of the act
Union conduct and right to organize
Zeiglers refuse collectors inc v nlrb (1981)
- hearing officer found that union officer’s actions created atmosphere of fear and
reprisals, election was set aside ordered new election, Board refused to set aside,
employer refused to bargain, Board upheld unfair labor practices charge under
8(a)(5)
- if it is determined that substantial possibility existed that threats affected outcome
of election, new election must be held
- factors to consider include: number of threats, severity of threats and whether
those threatened were put in fear, number of workers threatened, whether threats
were made close to time of election, whether they persisted in minds of
employees at time of election, whether reports of threats were widely circulated,
whether effect of prounion threats were canceled out by promanagement threats,
closeness of vote, whether threats can be attributed to union or management
 - none of the prounion employees who made the threats were acting as agents of the
union and the union did not sponsor or condone their acts
- board and courts have found that even though threats made were not attributable
to union an election will nevertheless be set aside where the conduct created
atmosphere inimical to the employee’s exercise of free and fair choice
o hearing officer was in best position to determine this
o board’s expertise cannot substitute evidence
- hearing officer was right there was atmosphere
Misrepresentations
- so long as statements by union or management do not rise to level of threats or
coercion 8© likely protects them
- Hollywood ceramics (1962)
o Wage misrepresentations made day bf election: election was set aside on
ground that 1. misrep was of sufficiently consequential order to have
reasonably affected the result 2. employees did not have independent
means for recognizing misrep 3. misrep was made at such lat moment in
campaign as to preclude employer from rebutting
- Shopping kart food (1977)
o Board overruled the above case
- New rule: no longer set aside elections on basis of misleading campaign
statements, but board will intervene in instances where party has engaged in
deceptive campaign practices as improperly involving board and its processes, or
use of forged documents which render voters unable to recognize propaganda for
what it is
- Board continued to flip flop on misrep
Fee waivers and other benefits
NLRB v savair manufacturing (1973)
- Union won election, employer challenged, board certified, employer refused to
bargain, union filed unfair labor practice, board ordered employer to bargain,
- Union had sent out recognition slips allowing those who signed to be exempt
from initiation fee if union won,
- Expressing of views, argument or opinion whether written, printed, graphic or
visual form, shall not constitute or be evidence of an unfair labor practice under
any of the provisions if such expression contains no threat of reprisal or force or
promise of benefit
- This was not consistent w/a free election
Thornhill v Alabama (1940)
- Alabama statute about loitering no picketing if it hinders, delays, or interferes
with or injures any lawful business or enterprise of another
- State court convicted individual who convinced picketers to join of loitering, C of
A sentenced him to prison time for not paying fine
- Reason for legislation was to avoid breach of peace at labor dispute, not
sufficiently imminent so as to outlaw range of activities they did here
Federal supremacy
- 3 strands of Garmon preemption doctrine 1. conduct that is arguably protected or
prohibited under NLRA, exceptions are a. matters deeply rooted in local interests
 and b. matter peripheral to NLRA 2. conduct that is neither protected or
prohibited but allowed under NLRA 3. actions for breach of collective bargaining
agreement under 301 of NLRA
San diego v garmon (1959)
- union asked employer to retain only union members, employer refused saying no
union designated, union picketed, state court enjoined until a union was chosen,
board refused to hear case on unfair labor practices so it went to state courts,
- US sup court said that board’s refusal to hear case did not allow state courts to
hear case it would have otherwise been preempted from hearing
- Issue is whether NLRA precluded state court from awarding damages
- States may regulate where issues are merely peripheral to LMRA or where issue
is deeply rooted in local feeling w/out congressional direction
- If matters fall w/in section 7 or 8 states are ousted and its up to board, if board has
not decided on matter state court may not touch if uncertain
notes
- First question is whether state has substantial interest in regulating conduct
involved and if so second question is whether state regulation will pose serious
risk of interference w/admin of national labor policy
Lingle v norge division (1988)
- Issue is whether employee covered by collective bargaining agreement w/remedy
for retaliatory discharge may enforce remedy
- C of A held that state law remedy was preempted by 301 of LMRA
- Contract provided for arbitration of grievances, arbitrator decided for
reinstatement w/back pay, Dist. Court dismissed saying that claim for retaliatory
discharge was intertwined w/collective bargaining, C of A agreed that 301
preempted
- If resolution of state law depends upon meaning of collective-bargaining
agreement state law is preempted
- Determination of retaliatory discharge is factual and does not depend on
agreement
Organizational and recognitional picketing
- Landrum-Griffin act addressed blackmail picketing by minority union for
recognitional or organizational purposes
- In order for union to fall w/in 8(b)(7) it must use illegal means (picketing or
threats thereof), at improper time and w/illegal purpose (requiring employer to
recognize or bargain w/union or forcing employees to organize) 3 situations
o 1. 8(b)(7)(A) employer has lawfully recognized union and no question
concerning rep may be raised
o 2. 8(b)(7)(B) valid election under 9(c) w/in previous 12 months
o 3. 8(b)(7)(C) where no union has organized employees
 allows union to engage in recognitional or organizational picketing
for reasonable period (usually 30 days) during which time it must
file petition for rep election under 9©
 2 provisos – expedited election proviso and advising public that
employer uses nonunion labor or has no union contract
 o board may order cease and desist but it is not always effective bc time
consuming
International hod carriers building (blinne construction) (1962)
- board found unfair labor practice against union, board granted union’s request for
reconsideration
- 3 prohibitions 1. where another union is lawfully recognized and question cannot
be raised 2. if election has been held w/in 12 months 3. have to file w/in 30 days
o if no unfair labor practices charge – no expedited election, and union must
request expedited election
- if employees reject union if is barred from picketing for 12 months
- must be free election, must not halt delivery or pickup
o this renders expedited election inapplicable
- union picketed to get recognition, payment of scale wages, bc of unfair practices
and transfer
- no rep petition was filed, but union filed unfair labor practices w/in 30 days
- union only had cards signed by employees
- court said must be certified union to be exempt from having to file for recognition
- had the union been picketing solely for unfair labor practices none of 8(b)(7)
would have applied
- should have filed for both recognition and unfair labor practices
Crown cafeteria case (1962)
- cafeteria would not hire from union hiring hall, union picketed for more than 30
days, board found picketing was for recognition, board allowed reconsideration bc
prevailing party needed clarification
- congress did not intend to prevent unions from picketing for publicity while they
took part in any other organizing activities
Claude everett construction (1962)
- company told union they were open shop and paid less than other union
companies, union wrote letter of protest, got no answer, and began picketing for
more than 30 days, certain pickups and deliveries stopped being made,
- trial examiner found that picketing was to conform wage rates and concluded this
violated 8(b)(7), board said that union may have legitimate concern over
substandard conditions and might forgo recognition
- union did not try to recruit, union has in the past picketed to raise wages w/out
going for recognition
- found that although picketing interrupted business it’s okay since not for
organizational purposes
Secondary boycott and hot cargo
- secondary boycott may involve outsiders to dispute and widen labor strife beyond
primary combatants law frowns on this
- 8(b)(4)(A) now (B) specified kinds of pressure to be unfair practices
- to fall into 8(b)(4) trap union must have both proscribed means and proscribed
object – means are strikes and other coercing activities, objects are forcing
employer or self-employed person to join union or employer org or to enter into
agreement to engage in secondary boycotts (hot cargo agreement proscribed by
8(e)) A.; forcing person to cease doing business w/another (secondary boycott)
 B.; forcing employer to recognize one union when another has been certified as
rep C.; forcing employer to assign particular work to members of one union
instead of another D.
o provisos allowing union to escape – 1. any person who refuses to cross
picket line at business of primary employer even if employed by
secondary employer this won’t violate 8(b)(4) 2. may picket at secondary
employer to publicize that they are in business w/primary employer but
escape hatch closes if this causes secondary employees to cease work
- if 8(b)(4) is violated board may issue cease and desist order under 10(c) (often
ineffective)
- any party injured by union’s violation of 8(b)(4) may receive damages under 303
- have to determine if employer is indeed secondary of if so involved w/primary
- secondary must also be neutral in order to receive 8(b)(4) protection
NLRB (royal typewriter) (1955)
- while strike went on royal had customers get repairs from other and send receipt,
union picketed some of royal’s larger customers whom it had reason to believe
were having independent companies do repair work
- board actions unlawful, found no evidence that this picketing took place at
entrances used exclusively by employees of those companies, notice to public
only was added to picket signs, one of the customers did agree to discontinue
doing business w/royal
- trial examiner found that picketing constituted inducement and encouragement of
employees, that union’s professed intent not to influence employees was no
defense
- requests and threats directed at secondary employers are not illegal and
solicitation of customers of secondary employers is not illegal, the only thing
proscribed by 8(b)(4) is inducement or encouragement of the employees of
customers
o attempts to induce are proscribed
- in the case of a repairman out on a call who did not wish to cross the picket line
- this court finds neither intent to induce, nor effective inducement, nor even
probable inducement of employees no evidence to support finding of unlawful
inducement and encouragement of employees in violation of 8(b)(4)(A)
NLRB v. Denver bldg (1951)
- whether union committed unfair practice by going on strike w/object to force gen
contr. on construction project to terminate its contract w/subcontractor n project
- gc awarded electrical subcontract to firm that employed nonunion workmen, only
nonunion on job, union gave gc notice that members of affiliated unions would
leave job and remain away until otherwise ordered and would put up picket, gc
notified nonunion subcontractor to get off the job
- board ordered union to cease and desist from engaging in those activities
- 8(b)(4) shall be unfair to engage in strike where object thereof is (A) forcing or
requiring any employer or other person to cease doing business w/any other
person – restricts labor org and agents in use of economic pressure where object is
to force employer or other person to boycott someone else
 - must first determine that strike was for proscribed object – not necessary to find
that sole object of strike was that of forcing contractor to terminate
subcontractor’s contract
- 8© does not pertain here
- conduct of union constituted unfair labor practices under 8(b)(4)(A)
General Electric (1961)
- GE confined employees of independent contractors to one entrance to insulate
employees from the labor disputes in which they were involved
- Union called strike and picketing took place at all gates, almost all employees of
independent contractors refused to enter
- Trial examiner said that picketing at gate 3a was primary, board said that union’s
object in picketing there was to involve ind cont employees and violate 8b4A
- When situs of primary employer is ambulatory set out standards: 1. that picketing
be limited to times when situs of dispute was located on secondary premises 2.
that primary employer be engaged in his normal business at the situs 3. that
picketing take place reasonably close to the situs and 4. that picketing clearly
disclose that the dispute was only with the primary employer
- If there was separate gate for deliveries, barring of picketing at that gate would
make clear invasion on traditional primary activity of appealing to neutral
employees whose tasks aid the employer’s everyday operations
- There must be a separate gate marked and set apart from other gates; the work
done by men who use the gate must be unrelated to normal operations of
employer and work must be of kind that would not, if done when plant were
engaged in its regular operations, necessitate curtailing those operations
- Cannot be mixed use of the gate
NLRB v General truck drivers (1994)
- Union dispute w/nonunion piggyback services that had subcont w/RR, picketed
all gates including one used only by RR workers, customers and suppliers
- Board found violation, union cannot picket at gate if it is used only by neutrals
- Any of following violations give rise to rebuttable presumption: 1. picketing
limited to times when situs is on secondary premises, 2. at time of picketing
primary employer is doing normal business at the situs, 3. picketing limited to
places reasonably close to the situs, 4. clear that dispute is w/primary employer
o Violated #3
o Related work does not apply bc gate was neither owned by nor proximate
to primary employer
o Picketing at gate used only by 3rd parties doing related work is primary
(rendering services relating to primary’s day to day work)
o Inference may be refuted if circumstances indicate that union’s objective
was not secondary
- Union did violate
Tree Fruits case (1964)
- Proviso unions may use publicity other than picketing to inform as long as
publicity does not have effect of inducing ind. Employed by any person other than
primary employer in course of his employment to refuse to pick up, deliver, or
 transport any goods, or not to perform services at the establishment of the
employer engaged in distribution
- Issue: whether union violated this when they limited secondary picketing to
appeal to customers not to buy products of certain firms
- Union wore placards and distributed handbill that told customers not to buy
apples, no deliveries or pickups were obstructed
- Board found that secondary picketing of consumers is prohibited, congress did not
want to violate 1st amd w/this law
- When picketing is only to persuade customers not to buy it is closely confined to
primary dispute
DeBartolo corp v. Florida gulf coast building (1988)
- Peaceful handbilling at de bartolo, dispute was bt union and HJ construction,
union asked customers not to shop at mall, union said it sought consumer boycott
not secondary strike
- Board said that handbilling was coercion here, C of A said that it was not
- court held that §8(b)(4) could not be construed to prohibit peaceful handbilling,
unaccompanied by picketing, urging a consumer boycott of the retailers in the
mall, in order to exert pressure on the mall owner. The court found that the
handbilling did not threaten, coerce, or restrain any person to cease doing business
with another
National woodwork manuf assoc. v NLRB (1967)
- Frouge was bound by collective bargaining agreement bt union and org of Philly
contractors, no member will handle doors fitted prior to being furnished on job,
doors that arrived were prefitted, union members would not hang those doors
- Manuf assoc. filed charges for unfair labor practices under 8(e) entering
agreement where employer agrees to refrain from handling any products of any
other employer, and in enforcing this union committed unfair practice under 8b4B
forcing person to cease using products of any other
- Board dismissed, trial examiner found this to be primary activity, purpose is to
protect economic interest of employees by preserving unit work, bc it incidently
affects others is no basis for invalidating provision
- C of A reversed board in one respect - sentence was designed to effect a product
boycott, but sustained since conduct involved only primary dispute and protected
by proviso that nothing contained in B shall be construed to make primary strike
or picketing unlawful
- Contract clause requiring they not handle nonunion material is hot cargo clause
made unlawful by 8(e) but it reaches only secondary pressures, primary work
preservation agreements are not banned
- Must inquire whether under all circumstances union’s objective was preservation
of work for Frouge’s employees, or whether agreements and boycott were
tactically calculated to satisfy union objectives elsewhere
o Need not be dispute w/boycotted employer for activity to fall in category
as long as object of agreement is that boycotted employer, or benefits to
other than the boycotting employees or other employees of the primary
employer thus making agreement or boycott secondary in its aim
NLRB v Steam and pipefitters (1977)
 - Issue whether union instigated refusal of a subcontractor’s employees to handle
or install factory piped climate control units, which were included in gen cont job
specs and delivered to construction site, was primary activity beyond reach of
8b4B or whether is was secondary activity prohibited
o Whether boycott was tactically calculated to satisfy union objectives
elsewhere
- Contract bt gen and sub said that pipes were to be cut and fitted on site, contract
bt gen and factory said they would be precut and fitted, union members refused to
install precut fitted pipes, gc filed complaint alleging union committed unfair
labor practice under 8b4B, gc charged that action was taken to force sub to cease
doing business w/gc and to force sub and gc to cease dealing w/manufacturer
- ALJ found that 8b4B was violated bc union’s object was to influence gc by
pressuring sub who had no power to award work to union, Board agreed
- C of A set aside board’s order
- Issue is whether an object of the inducement and coercion wsa to cause cease-
doing-business consequences prohibited by 8b4 the resolution of which in turn
depends on whether the product boycott was addressed to labor relations of the
sub and its own employees or whether union’s conduct was tactically calculated
to satisfy objectives elsewhere
- This was violation
o Court held that bc boycott was tactically calculated to influence the gc by
exerting pressure on the sub, the union engaged in illegal secondary
activity, union could not use a valid work-preservation provision to defend
against the illegal activity
Jurisdictional disputes
- Bt two or more unions rather than bt union and employer, either representational
or work assignment disputes
o Board uses section 9 to resolve representation disputes
NLRB v CBS (1961)
- union was one of two unions that repped two separate classes of employees,
employees were disputing over work duties, and employer allowed employees of
the other union to assume lighting duties at particular production, The employees
who were not awarded the duties staged a strike, so the employer subsequently
filed an unfair labor dispute claim under § 8(b)(4)(D)
- Board heard the claim under § 10(k) of the Act, failed to decide the issue and
ordered union to cease and desist from strike
- appellate court, refused to enforce the cease-and-desist order
- On certiorari review, the court upheld the appellate court's order, holding that the
Board was required under § 10(k) to determine the issue and decide which class
of employees was entitled to perform the duties.
- Finally, the court held that § 10(k) required the Board to decide jur disputes on
their merits and not just simply to relegate that duty to the employer
Featherbedding
- Provisions that increase the demand for certain services
- Taft Hartley added 8(b)(6) to ban certain make-work provisions
American newspaper publishers v NLRB (1953)
 - The association filed a complaint alleged that a union engaged in an unfair labor
practice under § 8(b)(6) by insisting that newspaper publishers pay printers for
reproducing advertising matter for which the publishers ordinarily had no use.
- Statute is it shall be unfair for labor org to cause or attempt to cause employer to
pay or deliver or agree to pay or deliver money or other thing of value, in nature
of exaction (extortion), for services which are not performed or not to be
performed
- In affirming the circuit court's affirmation of the Board's dismissal of the claim,
the court found that the union's insistence upon securing payment of wages to
printers for such work was not an unfair labor practice. The practice called for
payment only for work that the publishers' employees actually did in the course of
their employment, so the union's insistence was not in the nature of an exaction
and did not cause or attempt to cause the publishers to pay anything in the nature
of an exaction. Section 8(b)(6) left to collective bargaining the determination of
what, if any, work, including bona fide "made work," would be included as
compensable services and what rate of compensation would be paid for it.
NLRB v Washington aluminum(1962)
- The employees left work w/out permission saying it was too cold to work and
were discharged, complaint was filed with the Board, prior to the day of the
walkout, the employees had complained about the heating situation
- Board found the employees' conduct was a concerted activity to protest the
company's failure to supply adequate heat in its machine shop, that such conduct
was protected under § 7, and the discharge amounted to an unfair labor practice
under § 8(a)(1), employer was also ordered to bargain collectively with the union,
the status of which as majority bargaining rep turned on ballots cast by four of the
seven workers.
- C of A refused to enforce the orders
- On certiorari, the Court found that the Board correctly interpreted and applied
NLRA bc employees had no bargaining rep at that time, they were not required to
make a more specific demand in order for the activity to fall under § 7 of the Act,
walkout grew out of a "labor dispute" within the plain meaning of § 2(9)
NLRB v IBEW (Jefferson Standard) (1953)
- Union members handbilled criticizing quality of tv station, they were fired, union
filed unfair labor charges
- Board found that discharge was not unfair labor practice, C of A remanded for
finding if handbilling was unlawful
- On appeal Court framed the issue was simply whether employees were discharged
for cause, Court reasoned that nothing could be further from the purpose of the
Taft-Hartley Act than to require the employer to finance the employees' attack on
the employer who continued to pay their salaries. The fact that a labor dispute
existed contemporaneously did not help the employees. The Court believed that
the handbills attacked the employer's policies without any relation to the labor
controversy.
NLRB v insurance agents international union (1960)
- Union employees used economic tactics while negotiations were going on
- Examiner said it was ok, board said it was unfair, sup court affirmed
 - Issue: was this a refusal to bargain collectively
- Wanted to avoid board’s involvement in terms of CBA, parties should have wide
latitude during negotiations, tactics may be condemned but not unlawful under
8(b)(3)
- Sup Court affirmed bc contract negotiations appeared to have been conducted in
good faith. Engaging in a work slowdown was a permissible use of economic
pressure. Bc respondent's behavior otherwise indicated willingness to bargain, the
use of harassing tactics did not, w/out more, amount to a refusal to bargain
US v Enmons (1973)
- Against law to affect interstate commerce through extortion, strikers were using
physical violence to gain concessions,
- DC granted dismissal failure to state offenses under Hobbs,
- wages have to be for unneeded or unwanted services, Hobbs took away union
wage exception concerning unneeded or unwanted services, Hobbs does not
include violence for legitimate collective bargaining objectives, no case has
upheld that hobbs deals w/legitimate objectives, criminal statute must be strictly
construed
- Ds, union employees, prosecuted for violation of NLRA, accused of engaging in
acts of physical violence and property destruction in furtherance of a conspiracy
to force employer to agree to a union contract for higher wages and other benefits
- govt appealed the district court judgment dismissing the indictment for failure to
state an offence under NLRA It argued that the statutory language proscribed
interference with commerce by extortion such as that committed by defendants.
- On appeal, the court affirmed the judgment from the district court. The court held
that the literal language of the statute did not support the argument that the Act
would reach the use of violence to achieve legitimate union objectives, such as
higher wages in return for genuine services which the employer seeks. The court
held that in that type of case, there has been no wrongful taking of the employer's
property.
NLRB v Mackay radio (1938)
- Union struck during CBA negotiations, replacements were hired, 5 replacements
were kept on and 5 most active strikers were not asked to return, discrim in
putting strikers back to work is section 8 violation
- Its is not unfair to hire permanent replacements
Notes
- Congress went on to pass that permanently replaced workers cannot vote in rep
elections
- Section 2(3) of NLRA says that strikers retain their employee status while on
strike. Absolute right to reinstatement depends on whether stoppage is determined
to be unfair labor practice strike or economic strike
o Strikers who were engaged in unfair labor practice strike are entitled to
reinstatement to former jobs upon unconditional offer to return to work
o Unfair labor practice strikers must be reinstated even if the employer has
hired permanent replacement s and even if permanent replacements must
be discharged
 o When economic strike occurs employer is free to hire permanent
replacements for strikers and may lawfully refuse request for
reinstatement from striker who has been permanently replaced by time
strike ended
 Even when permanently replaced, economic strikers remain
eligible to vote in rep election held w/in 12 months of
commencement of strike 9©(3) – strikers who have been
discharged bc of misconduct are denied right to vote
o Strike that begins as unfair labor practice strike may become economic
strike when unfair labor practice ceases to be factor
- Former strikers constitute a preferential hiring list that continues indefinitely
- Crossovers – no reason why those employees who chose not to gamble on success
of strike should suffer consequences when the gamble proves unsuccessful
o No presumption that the replacements oppose the union
- Striking union must rep all employees including replacements fairly
NLRB v Erie resistor corp (1963)
- Issue: whether an employer commits unfair labor practice under 8(a) of NLRA
when he extends 20 year seniority credit to strike replacements and strikers who
leave strike return to work
- Union went on strike, replacements hired told they would keep jobs, and they
would get superseniority, strike became in protest to that, strikers began returning
to work, union gave in, when layoffs came it was mostly the strikers that got laid
off due to lack of seniority, union filed charge
- Examiner recommended dismissal, board said specific evidence of discrim is not
required, C of A said promise of seniority is allowed if solely for business and it
is ques. Of fact for board,
- Sup court says board may infer, employer must be held to intend results that came
from his actions, employer interest outweighs unions concerning hiring permanent
replacements but not in granting super seniority
- The Supreme Court agreed that the business purpose of keeping production going
was insufficient to insulate the super-seniority plan from § 158. Therefore,
because respondent's judgment that the claimed business purpose would not
outweigh the necessary harm to employee rights, it properly put aside evidence of
respondent's motive and declined to find whether the conduct was or was not
prompted by the claimed business purpose.
American Ship v NLRB 1965
- issue whether employer commits unfair labor practice under Act when he locks
out employees during labor dispute to bring economic pressure
- board has held that lock outs are permissible to safeguard against loss where there
is reasonable ground for believing strike was threatened or imminent
o board has approved lock outs designed to prevent seizure by sitdownstrike
- to be violation of 8(a)(1) must have interfered w/section 7 protections
- right to strike is the right to stop work and nothing more
- lockout is not inconsistent w/right to bargain collectively or right to strike
- held that employer did not violate 8a1 nor 8a3 when after reaching impasse
temporarily shuts down plant and lays off employees for purpose of bring
pressure to support legitimate position
NLRB v Great dane trailers 1967
- whether in absence of proof of antiunion motivation an employer may be held to
have violated 8a3 and 1 of nlra when it refused to pay striking employees vacation
benefits accrued under terminated CBA while it announced an intention to pay
such benefits to replacements, returning strikers, and non strikers who had been at
work on certain date during strike
- RULE: First, if it can reasonably be concluded that the employer's discriminatory
conduct was "inherently destructive" of important employee rights, no proof of an
antiunion motivation is needed and the Board can find an unfair labor practice
even if the employer introduces evidence that the conduct was motivated by
business considerations. Second, if the adverse effect of the discriminatory
conduct on employee rights is "comparatively slight," an antiunion motivation
must be proved to sustain the charge if the employer has come forward with
evidence of legitimate and substantial business justifications for the conduct.
Thus, in either situation, once it has been proved that the employer engaged in
discriminatory conduct which could have adversely affected employee rights to
some extent, the burden is upon the employer to establish that he was motivated
by legitimate objectives since proof of motivation is most accessible to him.
NLRB v Katz 1962
- The National Labor Relations Board challenged a ruling of a divided panel of an
appeals court, which denied enforcement of the Board's cease-and-desist order
against the employer. The Board issued the order after finding that the employer
violated its federal statutory duty to bargain collectively by instituting changes
regarding matters that were subjects of mandatory bargaining without first
consulting a union with which it was engaged in bona fide contract negotiations.
The appeals court ruled that the unilateral acts complained of, occurring as they
did during the negotiations for a collective bargaining agreement, did not per se
constitute a refusal to bargain collectively. The U.S. Supreme Court reversed the
judgment, holding that the employer's unilateral change in conditions of
employment under negotiation was a violation of its statutory duty to bargain
under 29 U.S.C.S. § 158(a)(5) because the change circumvented and frustrated the
statutory objectives as much as did a flat refusal to bargain.
NLRB v American National insurance 1952
- Objecting to the union's proposal of unlimited arbitration in a collective
bargaining agreement, respondent employer proposed a management functions
clause listing certain matters as responsibility of management and excluding such
matters from arbitration. Holding that respondent's action in bargaining for
inclusion of any such clause constituted per se violations of § 8(a)(1), (2) of the
National Labor Relations Act (Act), 29 U.S.C.S. § 151 et seq., petitioner NLRB
ordered respondent to bargain collectively with the union and prohibited
bargaining for any management functions clause covering a condition of
employment. The court of appeals denied enforcement of that portion of the order
directed to the management functions clause and held that the Act did not
 preclude an employer from bargaining for inclusion of any management functions
clause in a labor agreement. On certiorari, the Court affirmed, holding that the
duty to bargain collectively was to be enforced by the good faith bargaining
standards of § 8(d) of the Act to the facts of each case, rather than by prohibiting
all employers in every industry from bargaining for management functions
clauses altogether.
NLRB v Wooster 1958
- Respondent employer insisted that collective bargaining agreements with its
employees include a ballot clause calling for a pre-strike vote and a recognition
clause excluding the international union as a party to the agreement and
substituting a local affiliate. Petitioner NLRB held that respondent's insistence
constituted a refusal to bargain in violation of § 8(a)(5) of the National Labor
Relations Act. In response to petitioner's motion to enforce its order, the appellate
court set aside that portion relating to the ballot clause but upheld the order
relating to the recognition clause. In affirming in part and reversing in part, the
Court concluded that respondent had met the requirements of § 8(a)(5), (d) as to
the subjects of mandatory bargaining. However, that did not enable respondent to
refuse to enter into agreements on the ground that they did not include some
proposal that was not a mandatory bargaining subject. Such conduct constituted a
refusal to bargain about subjects within the scope of mandatory bargaining;
respondent could not lawfully insist upon either the ballot or recognition clauses
as a condition to any agreement.
Fireboard paper products v NLRB 1964
- Petitioner employer notified the union for its maintenance workers that it would
be contracting out the maintenance work upon expiration of the current collective
bargaining agreements. The union filed unfair labor practice charges against
petitioner, alleging violations of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National
Labor Relations Act (Act). The National Labor Relations Board held that
petitioner's failure to negotiate with the union constituted a violation of § 8(a)(5)
because contracting out work, even if done for economic reasons, was a
mandatory subject of collective bargaining. On appeal, the district court granted
the board's petition for enforcement. The court granted certiorari to consider
whether petitioner was required by the Act to bargain with a union representing
some of its employees about whether to contract out work in which those
employees had been engaged. The court held that contracting out of work was a
condition of employment which was a mandatory subject of collective bargaining
under the Act. The board was charged with enforcing the Act and had the
authority to take any action necessary, including reinstatement of employees.
NLRB v Truitt 1956
- issue whether board may find employer has not bargained in good faith when they
say can’t afford higher wages but produce no evidence
- courts said if argument is important enough to bring up at bargaining have to
supply evidence
- reasonable for board to find this lacks good faith
White v NLRB 1958
- whether they bargained in good faith or whether strike was unfair labor strike
 - unilateral increase in pay prior to bargaining was not unfair practice
- simply evidence of proposals and counters
- Petitioner employers entered into a collective bargaining agreement with a union.
Subsequently, the employees conducted a labor strike. Respondent National
Labor Relations Board issued an order based upon its findings that petitioners
violated 29 U.S.C.S. § 158(a)(1), by making threats and promises to employees,
and 29 U.S.C.S. § 158(a)(5)(1), by instituting minor wage increases without prior
negotiations with the employee's bargaining representative. Petitioners filed a
petition to review and set aside respondent's order, and respondent filed a cross-
appeal to enforce its order. The court granted in part and denied in part the
petition and denied respondent's request for a rehearing. The court held that there
was evidence which supported respondent's finding that there was conduct on
behalf of petitioners which interfered with, restrained, and coerced employees in
the exercise of their right to engage in union and concerted activities, and that
petitioners thus violated §S 8(a)(1). However, the court held that the unilateral but
justified increase of pay of 5 of the 60 members of the bargaining unit did not
amount to violations of either §§ 8(a)(1) or 8(a)(5).
NLRB v GE 1969
- GE VP came up w/plan to convince employees that good things did not come
from the union, plan entailed 3 elements 1. study of employee desires and
competitive market to construct attractive offer 3. present offer to union and make
clear it will not deviate 3. merchandise offer directly to employees
- Union struck, board found the stance in violation of 8(a)(5)
- Just bc agreement was reached does not mean 8(a)(5) was not violated
- Employer may not combine take it or leave it stance w/publicized stance of
unbending firmness
Notes
- chevron case – proper test is whether charged party has real desire to reach
agreement
- jp stevens case – lack of good faith shown when there is adamant adherence to
demonstrably unreasonable positions plus other unfair practices like unilateral
changes and refusal to furnish relevant info
- pease – employer may make proposals that are unacceptable to union but harsh
and unreasonable proposals might indicate bad faith
HK porter 1970
- company delayed union for 8 years concerning getting dues from paycheck,
Board and c of a ordered to cease and desist, not clear if had to allow dues from
paycheck as per court order
- whether board has the power to require the agreement to clause
- have to allow free negotiations under govt supervision, cannot require agreement
to clause
- the cease and desist remedy not great but up to congress to improve
Ex-Cell-o 1970
- company refused to bargain to get review of board order certifying union, union
filed 8a1 and 5, company denied saying cert was invalid, Trial examiner had
awarded compensation for loss
 - awarding comp for employee loss was too speculative and could amount to
writing contract for them
- 10© orders remedy of cease and desist
- Cannot punish party, cannot compel agreement
- Action of refusing bargain was not flagrant just attempt to review cert
- No basis for compensatory remedy unless board finds that contract would have
resulted from bargaining – too speculative
Hecks 1974
- Although the Board found that the employer's unfair labor practices were
aggravated and pervasive and that its violations of the National Labor Relations
Act had probably caused the union to incur greater litigation expenses and
organizational costs, the Board refused to order the employer to reimburse the
union for such expenses on the ground that such an award would not effectuate
the policies of the Act. The Board reasoned that its orders had to be remedial, not
punitive, and that collateral losses were not considered in framing a
reimbursement order. Concluding that the Board had in subsequent decisions
abandoned its policy against awards of litigation expenses and excess
organizational costs, the court of appeals modified the Board's order to include
reimbursement for such costs. On review, the Court held that the court of appeals
improperly exercised its authority by enlarging the Board's order without first
affording the Board an opportunity to clarify inconsistencies in its decisions
Note –
- with exception of cases in which employer refusal to bargain is patently frivolous
NLRB does not consider itself to have authority to issue a “make whole” order in
refusal to bargain cases
o such order would make wage and other benefits ultimately obtained by
union retroactive to date of employer’s refusal to bargain
Enforcement of collective agreement
Textile workers v Lincoln mills 1957
- On review, the court held that the agreement to arbitrate grievance disputes
contained in a collective bargaining agreement entered into between petitioner
union and respondent employer, under the authority of § 301, 29 U.S.C.S. § 185,
of the Labor Management Relations Act of 1947 (Act), should be specifically
enforced. The court stated that it would undercut the Act and defeat its policy if it
read § 301 narrowly as only conferring jurisdiction over labor organizations. A
case or controversy arising under § 301(a) was one within the purview of judicial
power as defined in U.S. Const. art. III. Further, as the policy in favor of the
enforcement of agreements to arbitrate grievance disputes was clear, there was no
reason to submit them to the requirements of § 7, 29 U.S.C.S. § 101, of the
Norris-LaGuardia Act.
- Issue of jur of fed district courts to hear breach of collective bargaining
agreements, including failure to arbitrate and to comply w/arbitrators awards
- If either party refused to arbitrate as provided in agreement and grievance
procedure has been followed the other party may sue under taft Hartley section
301 to compel arbitration
 o Held that 301 authorizes fed courts to fashion a body of substantive law
(fed common law) for the enforcement of collective bargaining
agreements
United steelworkers v american manu 1960
- The collective bargaining agreement (CBA) between the union and the employer
contained a provision that called for all grievances not adjusted to be submitted to
arbitration. The employer refused to submit a grievance to arbitration because it
found the grievance to be frivolous and not subject to arbitration under the CBA.
The union brought an action to compel arbitration. The district court granted the
employer's motion for summary judgment, and the appellate court affirmed on the
basis that the grievance was frivolous. Upon the union's writ of certiorari, the
appellate court's decision was reversed. The union's grievance claimed that the
employer had violated a specific provision of the CBA. The employer contended
that it had not violated the CBA. Thus, a dispute existed between the parties as to
the meaning, interpretation, and application of the CBA. The CBA required
arbitration of all unresolved claims, not just those that a court deemed
meritorious; thus, the district court erred in granting the employer's motion for
summary judgment. The courts had no business weighing the merits of the
grievance or determining whether the language of the CBA supported the claim.
United steelworker v warrior 1960
- The court reversed a decision that held that contracting non-employees to perform
company duties was a function that was strictly a function of management, which
was exempted from the arbitration provision of a collective bargaining agreement
between petitioner and respondent. The court disagreed with the lower courts that
contracting out grievances were excepted from the grievance procedure of the
agreement. Although the agreement exempted from arbitration matters that were
strictly a function of management, the contracting function did not fall into this
category because the agreement did not exclude contracting out nor was there any
showing that the parties designed the phrase "strictly a function of management"
to encompass any and all forms of contracting out. The grievance alleged that the
contracting out was a violation of the collective bargaining agreement. There was,
therefore, a dispute as to the meaning and application of the provisions of the
agreement, which the parties agreed would be determined by arbitration. Whether
contracting out violated the agreement was a question for the arbiter, not for the
courts.
United steelworkers v enterprise 1960
- The union filed suit for specific enforcement of the arbitration provisions of a collective
bargaining agreement with the employer. Arbitration was ordered, and the arbitrator
awarded reinstatement with back pay, minus pay for a 10-day suspension and such sums
as the employees received from other employment. The employer refused to comply, so
the union moved for enforcement, and the employer was ordered to comply. The
appellate court agreed that the district court had jurisdiction to enforce the award but held
that the failure to specify the amounts to be rendered it unenforceable and that the
requirement for reinstatement of the discharged employees was unenforceable because
the agreement had expired. On certiorari, the United States Supreme Court held that the
district court had exceeded its authority in reviewing the merits of the award and that the
courts had no business overruling an arbitrator based on a different interpretation of the
agreement. In reversing the appellate court's judgment, the Court concluded that although
the arbitrator was commissioned to interpret and apply the collective bargaining
agreement, he had to use his own judgment in reaching a decision.
- In steelworkers trilogy the sup court held that the merits of either the grievance or
the arbitration award are irrelevant when fed court is asked to enforce an
arbitration agreement or an award thereunder
o Judicial review is limited to whether the award draws its essence from the
collective agreement whether the award was w/in the authority conferred
upon the arbitrator by the agreement if so the award traditionally has been
held to be final and binding
 Under this approach it is always proper for the court to determine
whether the dispute or grievance in question falls w/in agreement
to arbitrate whether there is substantive arbitrability. If not
arbitrator would have no authority and any award would be void
• It is sufficient if the claim on its face falls w/in the scope of
the arbitration agreement and all inferences are to be drawn
in favor of arbitration
• Courts determine substantive arbitrability, it is customary
for arbitrators to decide questions of procedural
arbitrability ie whether grievance was properly filed w/in
time limits specified in CBA (line is not always clear)
• Waiver of judicial review – parties may voluntarily submit
issue of arbitrability to arbitrator in which case they waive
any right to subsequent judicial review of arbitrability
MLB players v garvey 2001
- In a series of decisions, arbitrators found that baseball clubs had colluded in the
market for free-agent services in violation of the industry's collective bargaining
agreement. Pursuant to the settlement agreement, respondent former player
submitted a claim for damages. An arbitrator rejected a letter presented by
respondent, which provided evidence that the club had offered to extend
respondent's contract, and denied respondent's claim. Respondent's motion to
vacate the arbitration award was denied, but the appellate court directed the
arbitration panel to enter an award for respondent. On certiorari review, the
supreme court reversed the judgment of the appellate court. The appellate court
erred in reversing the order of the district court denying the motion to vacate the
arbitrator's award, and it erred further in directing that judgment be entered in
respondent's favor. The appellate court usurped the arbitrator's role by resolving
the dispute and barring further proceedings, a result at odds with governing law.
- Courts are not allowed base decision on disagreement w.arbitrator’s findings of
fact
Local 174 teamsters v lucas 1962
- The judgment finding petitioner union violated a collective bargaining contract by
striking to settle a contract dispute was affirmed where the contract called for
arbitration to resolve disputes. Respondent fired an employee for unsatisfactory
work. Petitioner called a strike to force respondent to rehire the employee.
 Respondent brought suit in the state trial court, asking for business loss damages.
The trial court applied principles of state law and found for respondent where the
strike violated the contract and was an attempt to coerce respondent to forgo its
contractual right to discharge an employee for unsatisfactory work. Petitioner
appealed. The state appellate court affirmed. Petitioner again appealed. The
Supreme Court affirmed, holding that although federal labor law pre-empted state
law where a conflict existed, affirmance was proper where petitioner violated the
agreement despite the absence of a no-strike clause in the contract. A strike to
settle a collective bargaining agreement violated the agreement because the
agreement called for arbitration proceedings to settle disputes.
- Actions for breach of CBA brought in state courts may be removed to fed courts
by ds under fed question removal jur
Boys markets v retail clerks union 1970
- Petitioner corporation and respondent union were parties to a collective-
bargaining agreement that provided that all controversies would be resolved by
arbitration and that no work stoppages would occur during the lifetime of the
agreement. After respondent called a strike, petitioner filed a complaint that
sought an injunction and specific performance of the contractual arbitration
provision. The relief was refused on the basis of Sinclair Refining Co. v.
Atkinson, 370 U.S. 195 (1962), which held that the anti-injunction provisions of
the Norris-LaGuardia Act, 29 U.S.C.S. § 104, precluded a federal district court
from enjoining a strike in breach of a no-strike obligation under a collective
bargaining agreement, even though that agreement contained provisions
enforceable under § 301(a) of the Labor Management Relations Act, 29 U.S.C.S.
§ 185(a), for binding arbitration of the grievance dispute concerning which the
strike was called. The U.S. Supreme Court overruled Sinclair because it was in
direct contradiction with congressional policy favoring the voluntary resolution of
labor disputes. Therefore, the judgment was reversed and remanded for an
affirmance of the requested relief.
- Fed courts not precluded by Norris Laguardia from enjoining strike in breach of
no strike clause where strike is over grievance that both parties are contractually
bound to arbitrate
o A court asked to issue this injunction is to order employer to arbitrate as
condition of obtaining injunction
o Injoining court must also consider ordinary principles of equity in
determining whether injunction is warranted
 These include whether breaches are occurring and will continue or
are threatened, whether strike will cause irreparable injury to
employer, and whether employer will suffer more from denial of
injunction than will the union from issuance
Mastro plastics corp 1956
- Petitioners made efforts to persuade their employees to select a certain union as
the employees' collective bargaining representative. Petitioners discharged an
employee who actively opposed petitioners' choice for employees' union,
precipitating a strike by the employees. Petitioners refused to reinstate the
discharged employee or the striking employees. A complaint was filed against
 petitioners, alleging that petitioners' interference and discharge of employees
violated §§ 8(a)(1), (2), and (3) of the National Labor Relations Act (NLRA), 29
U.S.C.S. § 158(a)(1), (2), and (3). Ultimately, the appellate court affirmed the
findings of fact and conclusions of law resulting in an order for petitioners to
cease and desist from the complained interference and requiring full reinstatement
of discharged employees with back pay. The court stated that there were no
contractual or statutory provisions precluding the employees' strike solely against
petitioners' unfair labor practices, so striking employees did not lose their status as
employees under § 8(d) of NLRA, 29 U.S.C.S. § 158(d), and were entitled to
reinstatement with back pay.
Howard Johnson 1974
- Petitioners made efforts to persuade their employees to select a certain union as
the employees' collective bargaining representative. Petitioners discharged an
employee who actively opposed petitioners' choice for employees' union,
precipitating a strike by the employees. Petitioners refused to reinstate the
discharged employee or the striking employees. A complaint was filed against
petitioners, alleging that petitioners' interference and discharge of employees
violated §§ 8(a)(1), (2), and (3) of the National Labor Relations Act (NLRA), 29
U.S.C.S. § 158(a)(1), (2), and (3). Ultimately, the appellate court affirmed the
findings of fact and conclusions of law resulting in an order for petitioners to
cease and desist from the complained interference and requiring full reinstatement
of discharged employees with back pay. The court stated that there were no
contractual or statutory provisions precluding the employees' strike solely against
petitioners' unfair labor practices, so striking employees did not lose their status as
employees under § 8(d) of NLRA, 29 U.S.C.S. § 158(d), and were entitled to
reinstatement with back pay.
Collyer insulated wire 1971